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plp.001
This little blurb was written by Bill Haywwod who authored HOW THE WEST WAS LOST.

The right to construct "highways" for public conveyance is a sovereign right. This is why private land may be taken by eminent domain by the state for public purposes such as highways. Eminent domain is a sovereign right. Therefore, whenever the United States presumes to deny a state (which includes the subdivisions of the state which are counties and cities) the authority to construct roads on public lands, the United States has also denied state sovereignty with respect to those lands. Whenever state sovereignty is denied upon a parcel of land, that land is no longer land "of" that state. Instead, that land is "of" he who exercises sovereignty over i t. It is for this reason that a declaration of "roadlessness" on a parcel of public land is equivalient to removing that land from the state. It is entirely an enclave of federal jurisdictional territory within the state just like a military base. The problem with all of this can be identified in two parts.

First, the public lands of these western states were not entirely exempted from state sovereignty by terms of there enabling act compacts with the United States. These public lands are exempt from state taxation and from state laws that would govern or regulate the conveyance or descent of proprietary title but these are the only exemptions from state sovereignty that these lands enjoy. Therefore when Congress presumes go further and deny a state the sovereign right to construct roads for public purposes on public lands it is violating the terms of the state's enabling act compact. It is imposing an additional restriction that was not included in the compact. Second, state enabling act compacts intend that the public lands within each state will be component parts of the new state that is being formed out of former federal territory. Therefore, by terms of its enabling act compact, each state has a claim to the public lands within its borders. Under Article IV, sec. 3 of the Constitution, the Claims Clause, Congress is denied any and all power with which it might "prejudice" the sovereign claims of the states. This is because nothing is more important to the existence of a state than its territory. Without territory, a state, as states are contemplated under the Constitution, cannot exist. This is why the Framers provided absolute protection to state territory from federal expropriation without state consent under the Enclave Clause of Article I, sec. 8. Since public lands are intended by compact to be portions of the sovereign jurisdictional state, and since, under the Claims Clause, Congress has no constitutional authority to "prejudice" a state's claim to its territory, the presumption by Congress that it may now extinguish state sovereignty upon a portion of public lands by way of a "roadless" designation is a constitutional violation. A declaration of roadlessness, whereby the sovereign right of the state to construct roads upon its territory is extinguished, is a direct repudiation of the Claims Clause and of the enabling act compact between the United States and the state which provides that those lands are to be state lands and not federal jurisdictional territory.

Finally, You use the word "rights" when speaking of the consequence of RS2477. Keep in mind the actual text of the RS2477 statute. The text of the statute is as follows:
"the right-of-way for the construction of highways over public lands, not reserved for public uses, is hereby granted."

Note the words "the" and "is." This statute granted not "rights" plural but a single right. "The" and "is" are singular. That single right was the right to construct highways in a particular place. Note also from this that it is not a particular road or group of roads that was granted. To the contrary, and very specifically, it is the singular right to "construct" highways that was "hereby granted." Furthermore, that which has been granted may not be retaken by the grantor. Some of my earlier writings which I believe you have cite judical opinion on the point that that which has been granted may not be retaken. This is why the revocation of RS2477 that was written into FLPMA is bogus. However, this revocation is also irrelevant. The grant of right to construct roads over public lands is meaningful only in the prestatehood, territorial condition. After a state comes into being, unless the public lands, or any portion of them, has been exempted from the exercise of state sovereignty, the sovereignty of the state attaches and, as a sovereign, the state may exercise its eminent domain on the land for the construction of roads regardless of the RS2477 grant. If this is not the case, then the sovereignty of the state is "prejudiced" in violation of both the Claims Clause and the enabling act compact as discussed above.

My greatest frustration with the debate that has ensued over RS2477 is that it has never been addressed within a constitutional context. Faithful reference to first constitutional principles and to the terms of state enabling act compacts would resolve the issue in a flash. The reason this is not done, I believe, is that the federal would lose its fallacious presumption to omnipotence upon the public lands - and the there is a great constituency out there that has a vested interest in maintaining absolute federal control.

From: WCH126@aol.com Bud Haydward, author of HOW

Jer Hobbs
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plp.001
THE AUTHORS NAME IS BUD HAYWOOD. I DON'T KNOW HAW I MISSED GETTING HIS NAME CORRECT. i HAVE KNOWN HIM FOR YEARS AND HE ONCE GAVE ME AND PLP A CASE OF HIS BOOK: HOW THE WEST WAS LOST.

SORRY

JERRY
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