B-146147, AUG. 21, 1961

B-146147, AUG. 21, 1961

TO MR. CLAYTON MCDONNELL:

REFERENCE IS MADE TO YOUR LETTER OF JULY 29, 1961, IN EFFECT REQUESTING RECONSIDERATION OF OUR DECISION OF JULY 25, 1961, WHEREIN WE CONCLUDED THAT THERE IS NO LEGAL BASIS FOR PAYMENT OF YOUR CLAIM FOR DAMAGES ALLEGED TO HAVE BEEN SUSTAINED AS A RESULT OF THE ALLEGED UNLAWFUL TERMINATION OF LEASE NO. W-20-064-ENG 1934, DATED JANUARY 2, 1947.

PRIMARILY, YOU CONTEND THAT SINCE THE WITHDRAWAL FROM SURPLUS OF THE PREMISES COVERED BY LEASE NO. W-20-064-ENG 1934 WAS FOR THE PURPOSE OF LICENSING SAME TO THE MICHIGAN NATIONAL GUARD FOR MILITARY PURPOSES THE ADMINISTRATOR OF WAR ASSETS ADMINISTRATION WAS REQUIRED TO APPROVE SUCH DISPOSAL AND THAT YOUR LEASEHOLD INTEREST WAS NEVER TRANSFERRED TO THE CORPS OF ENGINEERS NOR WAS THE AIRPORT WITHDRAWN FROM SURPLUS. FOR THESE REASONS YOU CONTEND THAT THE INVOLVED LEAVE WAS WRONGFULLY TERMINATED. ALSO, YOU CONTEND THAT UNDER THE PROVISIONS OF 50 U.S.C. 1622 (B) THE ADMINISTRATOR OF CIVIL AERONAUTICS WAS VESTED WITH EXCLUSIVE AUTHORITY OVER SURPLUS LEASEHOLDS ON AIRPORT PROPERTY TRANSFERRED UNDER THE SURPLUS PROPERTY ACT OF 1944, 58 STAT. 765. FINALLY, YOU CONTEND THAT ONLY THE BUILDINGS WERE WITHDRAWN FROM SURPLUS IN 1947.

AS YOU WERE PREVIOUSLY ADVISED, WITHDRAWALS FROM SURPLUS WERE SPECIFICALLY AUTHORIZED UNDER THE PROCEDURE SET FORTH IN SECTION 8301.15 OF WAR ASSETS ADMINISTRATION REGULATION NO. 1 OF JULY 1946, AS AMENDED BY SECTION 8301.15 (B) EFFECTIVE NOVEMBER 30, 1946. SINCE THIS REGULATION WAS IN EFFECT AT THE TIME OF THE EXECUTION OF YOUR LEASE IT NECESSARILY WAS SUBJECT TO THAT REGULATION. ALSO, AS YOU WERE PREVIOUSLY ADVISED ON MAY 22, 1948, THE CORPS OF ENGINEERS, DEPARTMENT OF THE ARMY, FILED AN APPLICATION UNDER SECTION 8301.15 (B) FOR WITHDRAWAL OF THE LEASED PREMISES, AND ON AUGUST 5, 1947, SUCH APPLICATION WAS APPROVED BY THE WAR ASSETS ADMINISTRATION. WHILE YOU CONTEND, IN EFFECT, THAT ONLY THE BUILDINGS WERE INCLUDED IN THE WITHDRAWAL FROM SURPLUS, THE REQUEST FOR WITHDRAWAL APPROVED BY WAR ASSETS ADMINISTRATION PROVIDED FOR A "COMPLETE WITHDRAWAL" AND REQUESTED "APPROVAL FOR THE WITHDRAWAL FROM SURPLUS OF ALL LAND AND FACILITIES.' THE APPROVAL OF THE WITHDRAWAL BY WAR ASSETS ADMINISTRATION SPECIFICALLY STATES THAT "SUBJECT WITHDRAWAL BY THE WAR DEPARTMENT IS TO PERMIT THE ENTIRE INSTALLATION TO BE USED BY THE MICHIGAN NATIONAL ARD.' UPON APPROVAL OF THE WITHDRAWAL REQUEST BY WAR ASSETS ADMINISTRATION ON AUGUST 5, 1947, FULL CONTROL OF THE LAND AND FACILITIES COMPRISING THE GRAYLING ARMY AIRFIELD VESTED IN THE DEPARTMENT OF THE ARMY AND THE AIRFIELD, AND ITS FACILITIES WERE NO LONGER SURPLUS PROPERTY SUBJECT TO DISPOSITION BY THE WAR ASSETS ADMINISTRATION OR ITS SUCCESSOR, OR ANY OTHER AGENCY.

CONCERNING YOUR CONTENTION WITH RESPECT TO THE EXCLUSIVE AUTHORITY OF THE ADMINISTRATOR OF CIVIL AERONAUTICS (NOW ADMINISTRATOR OF FEDERAL AVIATION AGENCY) UNDER 50 U.S.C. 1622B, THAT SECTION PROVIDES THAT THE ADMINISTRATOR OF CIVIL AERONAUTICS HAS THE SOLE RESPONSIBILITY FOR DETERMINING AND ENFORCING COMPLIANCE WITH THE TERMS, CONDITIONS, RESERVATIONS AND RESTRICTIONS CONTAINED IN ANY INSTRUMENT OF DISPOSAL BY WHICH SURPLUS PROPERTY IS OR HAS BEEN TRANSFERRED TO STATES AND THEIR POLITICAL SUBDIVISIONS, MUNICIPALITIES AND TAX SUPPORTED INSTITUTIONS PURSUANT TO THE SURPLUS PROPERTY ACT OF 1944 FOR USE IN THE DEVELOPMENT, IMPROVEMENT, OPERATION AND MAINTENANCE OF A PUBLIC AIRPORT. THE FOREGOING STATUTORY PROVISION HAS NO APPLICATION TO YOUR LEASE SINCE THE AIRPORT HAS NEVER BEEN DISPOSED OF BY THE GOVERNMENT AS AIRPORT PROPERTY UNDER THE TAXES OF THE 1944 ACT. AT THE TIME OF THE CANCELLATION OF YOUR LEASE THE PROPERTY WAS UNDER THE CONTROL OF THE CORPS OF ENGINEERS AND SUCH CANCELLATION WAS CLEARLY WITHIN THE AUTHORITY OF THAT AGENCY.

WHILE IT IS TRUE THAT IN LICENSING A PORTION OF THE GRAYLING ARMY AIRFIELD TO THE STATE OF MICHIGAN (LICENSE NO. W-20-064-ENG-1891) THE GOVERNMENT RESERVED UNTO ITSELF YOUR LEASE PROVIDING FOR THE UTILIZATION OF AN AREA OF VACANT LAND 200 FEET BY 520 FEET AND THE CONCURRENT USE OF THE AIRFIELD, SUCH RESERVATION IN THE LICENSE DID NOT OPERATE TO PERPETUATE YOUR TENANCY OR CHANGE IN ANY WAY THE TERMS OF YOUR LEASE. THEREFORE, SINCE YOUR LEASE, WHICH WAS ON A MONTH TO MONTH BASIS, WAS CANCELLED BY TIMELY WRITTEN NOTICE DATED JUNE 21, 1955, BY THE DISTRICT ENGINEER, EFFECTIVE AUGUST 1, 1955, THERE IS NO PROPER BASIS FOR QUESTIONING THE LEGALITY OF THE CANCELLATION OF YOUR LEASE.