Idaho v. United States, 533 U.S. 262, 27 (2001)

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288

IDAHO v. UNITED STATES

Rehnquist, C. J., dissenting

compensation to the Tribe because of the significant impact the railroad would have upon surface lands:

"[T]he right of way hereby granted to said company shall be seventy-five feet in width on each side of the central line of said railroad as aforesaid[;] and said company shall also have the right to take from said lands adjacent to the line of said road material, stone, earth, and timber necessary for the construction of said railroad; also, ground adjacent to such right of way for station-buildings, depots, machine-shops, side-tracks, turnouts, and water-stations, not to exceed in amount three hundred feet in width and three thousand feet in length for each station, to the extent one station for each ten miles of road." App. 138.

Thus, I do not think it just to infer any intent regarding submerged lands from Congress' requirement of compensation for what was to be primarily an intrusion—and a significant one at that—upon surface lands.

In sum, the evidence of congressional intent properly before the Court today fails to rise to anywhere near the level of certainty our cases require. Congress' desire to divest an entering State of its sovereign interest in submerged lands must be "definitely declared or otherwise made very plain," Montana, supra, at 552. That standard has not been met here.

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