B-141312, OCTOBER 30, 1964, 44 COMP. GEN. 238

B-141312, OCTOBER 30, 1964, 44 COMP. GEN. 238

PUBLIC LANDS - DISPOSITION - FILL OR MAN-MADE LANDS IN CONVEYING TO THE STATE OF HAWAII THE SURPLUS LANDS OF THE UNITED STATES ON SAND ISLAND IN HONOLULU PURSUANT TO THE ACT OF DECEMBER 23, 1963, WHICH AUTHORIZES CONVEYANCE WITHOUT CONSIDERATION AND PROVIDES FOR THE PAYMENT AT ESTIMATED MARKET VALUE OF ANY BUILDINGS, STRUCTURES AND OTHER IMPROVEMENTS ERECTED AND MADE ON SUCH LANDS AFTER THEY WERE SET ASIDE, THE LANDS CREATED BY FILL INCIDENT TO DREDGING THE HARBOR OF HONOLULU ARE NOT CONSIDERED AS IMPROVEMENT FOR WHICH THE STATE OF HAWAII IS REQUIRED TO PAY FAIR MARKET VALUE, EVEN THOUGH FILL OF SUBMERGED LAND MAY IN A GIVEN SITUATION BE CONSIDERED AN IMPROVEMENT, THE LEGISLATIVE HISTORY REFLECTING THAT THE PHRASE ,LANDS OF THE UNITED STATED" INCLUDES THE EXISTING FILLED OR MAN-MADE LANDS, AND IT IS THE EXISTING LANDS OF SAND ISLAND BELONGING TO THE UNITED STATES THAT THE ACT CONTEMPLATES SHALL BE CONVEYED TO THE STATE OF HAWAII WITHOUT MONETARY CONSIDERATION.

TO THE ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION, OCTOBER 30, 1964:

WE REFER TO THE REQUEST DATED OCTOBER 14, 1964, OF THE HONORABLE LAWSON B. KNOTT, JR., AS ACTING ADMINISTRATOR, FOR OUR DECISION ON THE CORRECTNESS OF THE INTERPRETATION WHICH THE GENERAL SERVICES ADMINISTRATION PROPOSES TO PLACE ON PUBLIC LAW 88-233, APPROVED DECEMBER 23, 1963, 77 STAT. 472, IN THE DISPOSAL TO THE STATE OF HAWAII OF SURPLUS LANDS OF THE UNITED STATES ON SAND ISLAND HONOLULU, HAWAII.

PUBLIC LAW 88-233, INSOFAR AS IT PERTAINS TO SAND ISLAND AND IS PERTINENT TO THE PRESENT DISCUSSION, PROVIDES IN SUBSECTION 1 (A)

* * * WHENEVER ANY OF THE LANDS OF THE UNITED STATES ON SAND ISLAND, INCLUDING THE REEF LANDS IN CONNECTION THEREWITH, IN THE CITY AND COUNTY OF HONOLULU, ARE DETERMINED TO BE SURPLUS PROPERTY BY THE ADMINISTRATOR OF GENERAL SERVICES * * * WITH THE CONCURRENCE OF THE HEAD OF THE DEPARTMENT OR AGENCY EXERCISING ADMINISTRATION OR CONTROL OVER SUCH LANDS AND PROPERTY, THEY SHALL BE CONVEYED TO THE STATE OF HAWAII BY THE ADMINISTRATOR SUBJECT TO THE PROVISIONS OF THIS ACT.

AND IN SUBSECTION 1 (B)

SUCH LANDS AND PROPERTY SHALL BE CONVEYED WITHOUT MONETARY CONSIDERATION * * * PROVIDED, THAT, AS A CONDITION PRECEDENT TO THE CONVEYANCE OF SUCH LANDS, THE ADMINISTRATOR SHALL REQUIRE PAYMENT BY THE STATE OF HAWAII OF THE ESTIMATED FAIR MARKET VALUE, AS DETERMINED BY THE ADMINISTRATOR, OF ANY BUILDINGS, STRUCTURES, AND OTHER IMPROVEMENTS ERECTED AND MADE ON SUCH LANDS AFTER THEY WERE SET ASIDE.

ON FEBRUARY 14, 1964, THE DEPARTMENT OF THE NAVY REPORTED AS EXCESS THE FORMER HARBOR ENTRANCE CONTROL POST COVERING 2.48 ACRES OF LAND ON SAND ISLAND. DISPOSAL OF THE 2.48 ACRES UNDER PUBLIC LAW 88-233 IS BEING DEFERRED BY GENERAL SERVICES ADMINISTRATION PENDING RECEIPT OF A REPORT OF EXCESS, EXPECTED IN THE NEAR FUTURE, COVERING THE MAIN PORTION OF THE SAND ISLAND MILITARY RESERVATION. IN CONNECTION WITH THE DISPOSAL OF THE SAND ISLAND MILITARY RESERVATION THE HOUSE COMMITTEE ON ARMED SERVICES, BY LETTER DATED JULY 31, 1964, OF THE CHAIRMAN TO THE SECRETARY OF THE ARMY, RAISED THE QUESTION WHETHER THE LANDS OF SAND ISLAND CREATED BY FILL INCIDENT TO DREDGING THE HARBOR OF HONOLULU ARE TO BE CONSIDERED AN IMPROVEMENT FOR WHICH THE STATE OF HAWAII IS REQUIRED TO PAY THE FAIR MARKET VALUE, IN THE EVENT OF DISPOSAL TO THE STATE UNDER PUBLIC LAW 88- 233. THE ACTING ADMINISTRATOR, AFTER AN EXTENSIVE REVIEW OF THE LEGISLATIVE HISTORY AND BACKGROUND OF PUBLIC LAW 88-233, REACHED THE CONCLUSION, AS TO WHICH OUR OPINION IS REQUESTED, THAT "CONGRESS DID NOT INTEND THE FILLED LANDS ON SAND ISLAND TO BE AN IMPROVEMENT FOR WHICH THE STATE OF HAWAII WOULD BE REQUIRED TO PAY THE FAIR MARKET VALUE.'

SAND ISLAND, LOCATED IN THE HARBOR AREA OF HONOLULU, WAS AT THE TIME OF ANNEXATION OF THE HAWAIIAN INLANDS IN 1898 LESS THAN 10 ACRES IN SIZE. OVER THE YEARS ITS AREA HAS INCREASED TO SOME EXTENT BY NATURAL ACCRETION, BUT MAINLY BY THE DUMPING OF FILL ON SUBMERGED LANDS ADJACENT TO THE ISLAND INCIDENT TO DREDGING AND IMPROVING THE HARBOR OF HONOLULU. AT THE TIME OF ENACTMENT OF PUBLIC LAW 88-233 SAND ISLAND CONSISTED OF APPROXIMATELY 550 ACRES. ONE HUNDRED TWENTY FIVE OF THESE ACRES WERE TRANSFERRED TO THE TERRITORY OF HAWAII PURSUANT TO AUTHORITY GRANTED BY THE 85TH CONGRESS IN 1958 (72 STAT. 850). AS TO THE BALANCE OF THE ACREAGE THE REPORT OF THE SENATE COMMITTEE ON INTERIOR AND INSULAR AFFAIRS (S.REPT.NO. 675, 88TH CONG.), ACCOMPANYING S. 2275, WHICH BECAME PUBLIC LAW 88-233, STATES---

* * * ABOUT 196 ACRES OF LAND ABOVE WATER AND 65 ACRES OF SUBMERGED LAND ARE UNDER THE DEPARTMENT OF THE ARMY. IT IS THESE SUBMERGED LANDS TO WHICH THE TERM "REEF LANDS" IS PRIMARILY APPLIED IN S. 2275. THE REMAINING 27 ACRES ABOVE WATER UNDER FEDERAL CONTROL CONSTITUTE THE SAND ISLAND COAST GUARD BASE.

WHILE FILL OF SUBMERGED LAND MAY IN A GIVEN SITUATION BE CONSIDERED AND IMPROVEMENT ON SUCH LAND (SEE B-141312, AUGUST 12, 1964, 44 COMP. GEN. 76), WE DO NOT FIND THAT IN THE CONTEXT OF PUBLIC LAW 88-233 THE FILL SITUATION OF SAND ISLAND WARRANTS SUCH CLASSIFICATION. RATHER, WE INTERPRET THE PHRASE,"LANDS OF THE UNITED STATES ON SAND ISLAND," AND THE REFERENCES TO "SUCH LANDS," USED IN SECTION 1 OF PUBLIC LAW 88 233, AS INCLUDING THE EXISTING FILLED OR MAN-MADE LANDS. IT IS THE EXISTING LANDS OF SAND ISLANDS BELONGING TO THE UNITED STATES THAT THE ACT CONTEMPLATES SHALL BE CONVEYED TO THE STATE OF HAWAII WITHOUT MONETARY CONSIDERATION.

THAT VIEW OF THE CONTENT OF THE PHRASE," LANDS OF THE UNITED STATES ON SAND ISLAND," IS REFLECTED IN THE LEGISLATIVE HISTORY OF THE ACT. SEE FOR EXAMPLE THE PRIOR QUOTATION FROM THE REPORT OF THE SENATE COMMITTEE ON INTERIOR AND INSULAR AFFAIRS. MOREOVER, IT IS IN CONSONANCE WITH THE APPARENT LEGISLATIVE PURPOSE OF THE ACT, THAT OF OVERCOMING THE LEGAL HINDRANCES WHICH PRECLUDED RECOGNIZING THE CLAIM OF THE STATE OF HAWAII TO SURPLUS FEDERAL LANDS ON SAND ISLAND UNDER THE PROVISIONS OF THE STATEHOOD ACT (PUBLIC LAW 86-3, 73 STAT. 4, 48 U.S.C.PREC. 491 NOTE). SEE S.REPT.NO. 675, 88TH CONG., 1ST SESS. 4.

ACCORDINGLY, YOU ARE ADVISED WE CONCUR IN THE INTERPRETATION OF PUBLIC LAW 88-233 ADVANCED IN THE LETTER OF THE ACTING ADMINISTRATOR WITH RESPECT TO SURPLUS LANDS OF THE UNITED STATES ON SAND ISLAND.