B-65972, DECEMBER 19, 1960, 40 COMP. GEN. 372

B-65972, DECEMBER 19, 1960, 40 COMP. GEN. 372

ROADS - FOREST ROADS - USER CHARGES - TOLLS PAYMENTS BY PRIVATE USERS HAULING TIMBER ON FOREST ROADS TO COOPERATORS WHO WITH THE FOREST SERVICE CONSTRUCT THE ROADS ARE NOT "TOLLS," WHICH TERM AS USED IN 23 U.S.C. 301 REQUIRING FEDERAL-AID HIGHWAYS TO BE FREE FROM TOLLS MEANS THE EXACTION OF MONEY FROM HIGHWAY TRAVELERS WHO ARE PROHIBITED FROM USING THE HIGHWAYS UNLESS THEY PAY THE TOLL, BUT RATHER SUCH PAYMENTS REPRESENT A SHARING OF THE COST OF CONSTRUCTION BETWEEN THE USERS AND THE COOPERATORS FOR THE PURPOSE OF SECURING A SINGLE ROAD SYSTEM.

TO THE SECRETARY OF AGRICULTURE, DECEMBER 19, 1960:

REFERENCE IS MADE TO LETTER OF OCTOBER 11, 1960, FROM ASSISTANT SECRETARY OF AGRICULTURE C. M. FERGUSON, REQUESTING A DECISION WHETHER SECTION 301 OF THE ACT OF AUGUST 27, 1958, 72 STAT. 912, 23 U.S.C. 301, PROVIDING THAT ALL HIGHWAYS CONSTRUCTED UNDER THE FEDERAL HIGHWAY ACT BE TOLL FREE, PROHIBITS THE USE OF FUNDS APPROPRIATED TO YOUR DEPARTMENT FOR CONSTRUCTION OF FOREST DEVELOPMENT ROADS AND TRIALS PURSUANT TO SECTION 205 OF THE ACT, 23 U.S.C. 205, WHEN SUCH ROADS ARE CONSTRUCTED THROUGH COOPERATIVE AGREEMENTS BETWEEN THE FOREST SERVICE AND PRIVATE LANDOWNERS UNDER AN ARRANGEMENT DESCRIBED HEREINAFTER.

SECTION 301 OF THE CITED ACT OF AUGUST 27, 1958, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

* * * ALL HIGHWAYS CONSTRUCTED UNDER THE PROVISIONS OF THIS TITLE SHALL BE FREE FROM TOLLS OF ALL KINDS.

THE ASSISTANT SECRETARY EXPLAINS IN HIS LETTER THAT THERE IS AN INTERMINGLING ON FEDERAL AND NON-FEDERAL LAND IN MANY OF THE NATIONAL FORESTS IN THE WESTERN UNITED STATES, AND THAT WHERE THIS ,CHECKERBOARD" PATTERN OF LAND OWNERSHIP EXISTS THE CONSTRUCTION OF ACCESS ROADS IN THESE AREAS TO SERVE NATIONAL FOREST LANDS OR PRIVATE LANDS, OR BOTH, INVOLVES CROSSING LANDS IN THE OWNERSHIP OF BOTH THE UNITED STATES AND PRIVATE PARTIES. HE STATES THAT GENERALLY A SINGLE ROAD WILL SERVE ALL PARTIES AT LESS COST TO EACH THEN SEPARATE ROADS; AND THAT FREQUENTLY, PARTICULARLY IN DIFFICULT TERRAIN, THERE IS ONLY ONE PRACTICAL AND ECONOMICAL ROUTE FOR SUCH A ROAD.

FOR THESE REASONS, HE SAYS, THE FOREST SERVICE HAS IN A NUMBER OF INSTANCES ENTERED INTO COOPERATIVE ROAD CONSTRUCTION AND USE AGREEMENTS WITH PRIVATE OWNERS HEREINAFTER REFERRED TO AS COOPERATORS. THE AGREEMENTS PROVIDE FOR A SHARING OF ROAD CONSTRUCTION COSTS ON AN EQUITABLE BASIS, MUTUAL USE PRIVILEGES, GRANT OF AN EASEMENT ACROSS PRIVATE LANDS TO THE UNITED STATES, STIPULATIONS OF THE COOPERATOR'S STATUTORY RIGHT OF INGRESS AND EGRESS ACROSS NATIONAL FOREST LANDS, SPECIFICATIONS OF THE STANDARDS FOR ROADS AND BRIDGES, PROVISIONS GOVERNING CONSTRUCTION, USE BY OTHERS, ETC. THE ASSISTANT SECRETARY OUTLINES IN HIS LETTER VARIOUS METHODS OF SHARING ROAD CONSTRUCTION COSTS UNDER THESE AGREEMENTS.

THE SPECIFIC SITUATION GIVING RISE TO THE QUESTION PRESENTED FOR DECISION RELATES TO COOPERATIVE AGREEMENTS WHICH AUTHORIZE THE COOPERATOR TO CONSTRUCT, AT HIS OWN EXPENSE, A FOREST DEVELOPMENT ROAD TO SERVE HIS NEEDS AND, IN ADDITION, THOSE OF THE GOVERNMENT AND ITS TIMBER PURCHASERS. TO REIMBURSE THE COOPERATOR FOR THE CONSTRUCTION COSTS INCURRED OVER AND ABOVE HIS AGREED-TO SHARE THEREOF, THE AGREEMENTS PROVIDED THAT THE FOREST SERVICE WILL PERMIT USE OF THE ROAD BY OTHERS FOR TIMBER HAULING ON THE CONDITION THAT THEY WILL CONTRIBUTE TO THE COOPERATOR THEIR PROPORTIONATE SHARE OF CONSTRUCTION COSTS UP TO THE POINT AT WHICH THE COOPERATOR RECOVERS HIS SHARE OF THE COSTS. THE RATES AND THE TOTAL AMOUNT CHARGED BY THE COOPERATOR ARE CONTROLLED BY THE FOREST SERVICE, AND COLLECTIONS BY THE COOPERATOR ARE NOT PERMITTED TO EXCEED IN THE AGGREGATE THE PORTION OF THE TOTAL ESTIMATED COST IN EXCESS OF HIS SHARE OF THESE COSTS PLUS REASONABLE CARRYING CHARGES.

IN THIS CONNECTION, DURING AN INFORMAL DISCUSSION OF THIS MATTER BETWEEN REPRESENTATIVES OF THE FOREST SERVICE AND OUR OFFICE, IT WAS BROUGHT OUT AND UNDERSTOOD THAT WHERE A PURCHASER OF NATIONAL FOREST TIMBER IS ALSO A COOPERATOR WHO HAS AGREED TO CONSTRUCT A BETTER OR MORE EXTENSIVE ROAD THAN NEEDED FOR THE PARTICULAR SALE OF TIMBER, THE ROAD COST CONSIDERED IN THE TIMBER APPRAISAL IS THAT APPROPRIATE FOR THE NEEDS OF THE PARTICULAR SALE; THE BALANCE OR EXCESS COSTS INCURRED BY THE COOPERATOR BECAUSE OF ACTUAL CONSTRUCTION OF A HIGHER GRADE ROAD IS USED TO COMPUTE THE SHARING OF COSTS BETWEEN APPROPRIATED FUNDS, THOSE TO BE BORNE BY THE COOPERATOR, AND THOSE TO BE COLLECTED BY THE COOPERATOR FROM OTHER USERS OF THE ROAD.

THE QUESTION FOR DETERMINATION HERE WOULD APPEAR TO BE WHETHER THE PAYMENTS THUS REQUIRED TO BE MADE TO THE COOPERATOR BY ROAD USERS, WHO ARE NOT PARTIES TO THE COOPERATIVE AGREEMENT, CONSTITUTE THE PAYMENT OF TOLLS FOR USE OF THE ROAD INTENDED BY THE CONGRESS TO BE PROHIBITED AS A CONDITION OF THE USE OF FEDERAL FUNDS AUTHORIZED BY THE FEDERAL HIGHWAY ACT OF 1921, AS AMENDED, FOR CONSTRUCTION OF FOREST DEVELOPMENT ROADS.

THE ASSISTANT SECRETARY POINTS OUT THAT THE INTENT OF THIS METHOD OF SHARING ROAD COSTS BETWEEN PRIVATE USERS IS TO SECURE A SINGLE ROAD SYSTEM SUITABLE FOR HEAVY HAULING; AND THAT THE NEED THEREFOR ARISES IN SITUATIONS IN WHICH THERE IS ROOM FOR ONLY ONE ROAD SYSTEM, OR IN WHICH A SINGLE ROAD SYSTEM PROVIDES THE MOST ECONOMICAL MEANS OF TRANSPORTATION. THE VIEW IS EXPRESSED THAT PAYMENTS THUS MADE TO THE COOPERATOR WHO CONSTRUCTS A ROAD, BY USERS WHO ARE HAULERS OF TIMBER, ARE NOT IN THE NATURE OF TOLLS FOR USE OF THE ROAD BUT REPRESENT A SHARING OF THE COST OF A SINGLE ROAD SYSTEM WHICH IS A PREFERRED ALTERNATIVE TO THE MORE COSTLY POSSIBILITY OF CONSTRUCTING TWO ROAD SYSTEMS.

THE TERM "TOLL" IN RELATION TO HIGHWAYS GENERALLY APPLIES TO ANY HIGHWAY CONSTRUCTED BY INDIVIDUALS OR BY A CORPORATION PURSUANT TO LEGISLATIVE GRANT WHICH HIGHWAYS ARE MAINTAINED BY TOLLS PAYABLE BY PASSENGERS, THE PAYMENT THEREOF BEING ENFORCED BY THE USE OF GATES OR BARS, AND THE GENERAL PUBLIC BEING ENTITLED TO USE OF THE HIGHWAYS SUBJECT ONLY TO THE PAYMENT OF TOLL. SEE 90 C.J.S. TURNPIKES AND TOLL ROADS, SECTION 1 AND 4. THE WORD "TOLL" AS USED IN TITLE 23 OF THE U.S.C. SECTION 301, REQUIRING ALL HIGHWAYS CONSTRUCTED UNDER THE PROVISIONS OF THE TITLE TO BE FREE FROM TOLLS OF ALL KINDS, UNDOUBTEDLY MEANS THE EXACTION OF MONEY FROM HIGHWAY TRAVELERS WHO ARE PROHIBITED FROM USING THE HIGHWAYS UNLESS THEY PAY THE TOLL TO THE PARTIES ENTITLED THERETO.

IN THE LIGHT OF THIS DEFINITION OF THE WORD "TOLL" WE AGREE WITH THE CONCLUSION OF THE ASSISTANT SECRETARY THAT CHARGES AGREED UPON BETWEEN THE COOPERATOR AND THE FOREST SERVICE AS A BASIS FOR THE SHARING OF COOPERATIVE ROAD CONSTRUCTION COSTS BY PRIVATE USERS ARE NOT TOLLS PROHIBITED BY THE FEDERAL HIGHWAY LAW. SEE BOGART V. WESTCHESTER COUNTY, 57 N.Y.S.2D 506, 512-513, APPEAL DISMISSED 70 N.E.2D 531. THEREFORE, AND IN ANSWER TO THE QUESTION PRESENTED IN THE LETTER, YOU ARE ADVISED THAT THE TERMS OF 23 U.S.C. 301, PROHIBITING THE PAYMENT OF TOLLS FOR THE USE OF HIGHWAYS CONSTRUCTED UNDER THE FEDERAL HIGHWAY LAW, HAVE NO APPLICATION TO THE COOPERATIVE ARRANGEMENTS FOR NATIONAL FOREST ROAD CONSTRUCTION UNDER THE TERMS AND CONDITIONS OUTLINED ABOVE.