B-65972, MARCH 2, 1962, 41 COMP. GEN. 576

B-65972, MARCH 2, 1962, 41 COMP. GEN. 576

HIGHWAYS - FOREST - TOLLS V. USER COST SHARING THE RECOVERY OF A PROPORTIONATE SHARE OF THE COST OF CONSTRUCTION OF ACCESS ROADS IN NATIONAL FOREST TIMBER AREAS OF MIXED GOVERNMENT AND PRIVATE OWNERSHIP FROM THE PRIVATE LANDOWNERS WHEN THEY USE THE ROADS IS NOT TO BE REGARDED AS AN EXACTION OF A TOLL UNDER 23 U.S.C. 301, WHICH PRECLUDES THE CHARGING OF TOLLS ON HIGHWAYS CONSTRUCTED WITH FEDERAL FUNDS, BUT AS A DEFERRED PAYMENT OF THE COST SHARING CHARGES FOR THE CONSTRUCTION OF THE ROAD SYSTEM, AND, THEREFORE, FEDERAL-AID HIGHWAY FUNDS MAY BE USED FOR THE CONSTRUCTION OF ACCESS ROADS AND FOR THE PURCHASE OF INTERESTS IN PRIVATE ROADS AS A NECESSARY INCIDENT TO SUCH CONSTRUCTION.

TO THE SECRETARY OF AGRICULTURE, MARCH 2, 1962:

REFERENCE IS MADE TO LETTER OF FEBRUARY 2, 1962, FROM ASSISTANT SECRETARY OF AGRICULTURE FRANK J. WELCH, CALLING ATTENTION TO DECISIONS OF THIS OFFICE OF DECEMBER 19, 1960, AND JULY 3, 1961, 40 COMP. GEN. 372, AND 41 COMP. GEN. 1, RESPECTIVELY. THESE DECISIONS CONCERNED THE PROBLEMS OF THE FOREST SERVICE AS TO THE SHARING OF COSTS WITH PRIVATE LANDOWNERS IN THE DEVELOPMENT OF TIMBER ACCESS ROADS SYSTEMS IN THE NATIONAL FOREST AREAS OF MIXED OR "CHECKERBOARD" OWNERSHIP OF LAND.

THE ASSISTANT SECRETARY'S LETTER POINTS OUT THAT THE FOREST SERVICE HAS SEVERAL MIXED LANDOWNERSHIP SITUATIONS WHERE ACCESS ROADS ARE NEEDED TO SERVE NATIONAL FORESTS PURPOSES, AND THE LANDOWNERS ARE NOT WILLING, OR NOT PREPARED AT THE TIME THE GOVERNMENT IS READY TO PROCEED, TO COOPERATE IN THE CONSTRUCTION OF THE ROAD.

IN THOSE TIMBER AREAS WITHIN THE NATIONAL FOREST WHERE THERE IS A LARGE PERCENTAGE OF PRIVATELY OWNED TIMBER, ONLY A PART OF THE ROAD SYSTEM CAN BE FINANCED BY PURCHASERS OF THE INITIAL HARVEST OF NATIONAL FOREST TIMBER BECAUSE THE HARVEST WILL NOT SUPPORT THE ENTIRE BURDEN OF THE DEVELOPMENT COST OF THE ACCESS ROADS. IT IS POINTED OUT THAT, IF PRIVATE TIMBER OWNERS ARE NOT WILLING OR ABLE TO ACCOMPLISH A SHARE OF THE CONSTRUCTION CONCURRENTLY WITH THE GOVERNMENT PROGRAM, HARVEST WILL BE COMMERCIALLY FEASIBLE ONLY IF A PORTION OF THE ROAD CONSTRUCTION COST IS MET FROM FUNDS SUBJECT TO 23 U.S.C. 301. THESE PROVISIONS PROHIBIT THE CHARGING OF TOLLS FOR THE USE OF HIGHWAYS CONSTRUCTED WITH FUNDS AUTHORIZED THEREUNDER.

IT IS FURTHER POINTED OUT THAT IN OTHER AREAS IT WILL BE NECESSARY FOR THE FOREST SERVICE TO INITIALLY CONSTRUCT THE MAIN ROADS INTO HEAVILY MIXED LANDOWNERSHIP AREAS ENTIRELY FROM FUNDS APPROPRIATED UNDER THE PROVISIONS IN TITLE 23, UNITED STATES CODE. IN SOME CASES IT WILL BE NECESSARY TO PURCHASE FROM THESE FUNDS THE NECESSARY INTERESTS NEEDED IN PRIVATE ROADS WHICH TOGETHER WITH FOREST SERVICE CONSTRUCTION WILL PROVIDE THE MAIN ACCESS TO PRIVATELY OWNED TRACTS AS WELL AS THE NATIONAL FOREST RESOURCES.

THE FOREST SERVICE PROPOSES TO RECOVER THE PROPORTIONATE SHARE OF COST OF THE ROADS OF THE TWO TYPES CITED FROM THE BENEFITING LANDOWNERS AT THE TIME THEY USE THE ROADS. THE COST SHARING PRINCIPLES FOR SUCH ROADS GENERALLY WOULD BE THE SAME AS THOSE FOLLOWED IN THE EARLIER DECISIONS REFERRED TO ABOVE, 40 COMP. GEN. 372 AND 41 COMP. GEN. 1. THE CONCURRENCE OF THIS OFFICE IS REQUESTED AS TO THE GENERAL APPLICATION OF THE PRINCIPLES ANNOUNCED IN THESE PUBLISHED DECISIONS TO THE PLAN SET FORTH IN THE INSTANT LETTER WHERE THE DEVELOPMENT OF AN ACCESS ROAD SYSTEM WILL BE ENTIRELY FROM FUNDS PROVIDED UNDER TITLE 23, UNITED STATES CODE.

IN 40 COMP. GEN. 372 AND 41 COMP. GEN. 1, THERE WAS RECOGNIZED THE COOPERATIVE ARRANGEMENTS IN KIND, OR MONETARY CONTRIBUTION, INSOFAR AS THE PROVISION, BY CONSTRUCTION, OR PURCHASE, OF A ROAD SYSTEM FOR HAULING TIMBER FROM TRACTS OF MIXED GOVERNMENT AND PRIVATE OWNERSHIP WITHIN THE NATIONAL FOREST. WHERE VOLUNTARY COOPERATION WAS NOT OBTAINABLE AND THE UNITED STATES PROVIDED THE ROAD OR AN IMPROVEMENT THEREOF, THE COLLECTION OF COSTS FROM TIMBER HAULERS USING THE ROAD WAS NOT REGARDED AS A TOLL COLLECTION BARRED UNDER 23 U.S.C. 301. THE INSTANT CASE INVOLVES THE APPLICATION OF THE SAME PRINCIPLES.

ACCORDINGLY, IN THOSE INSTANCES WHERE THE GOVERNMENT HAS PROVIDED THE ROAD SYSTEM BY CONSTRUCTION AND PURCHASE OF INTERESTS IN PRIVATE ROADS AS A NECESSARY INCIDENT TO SUCH CONSTRUCTION FROM FUNDS PROVIDED UNDER TITLE 23, U.S.C. THE RECOVERY OF COSTS FROM THE BENEFITING LANDOWNERS PROPORTIONATE TO THEIR SHARE UPON USE OF THE ROAD IS NOT TO BE REGARDED AS AN EXACTION OF A TOLL BARRED UNDER THE PROVISIONS OF 23 U.S.C. 301 BUT RATHER AS A DEFERRED PAYMENT OF THE COST SHARING CHARGES FOR THE CONSTRUCTION OF THE ROAD SYSTEM.

THE QUESTIONS SET FORTH IN THE LETTER OF FEBRUARY 2, 1962, ARE ANSWERED ACCORDINGLY.