B-106776, JANUARY 24, 1952, 31 COMP. GEN. 329

B-106776, JANUARY 24, 1952, 31 COMP. GEN. 329

PUBLIC PROPERTY - LOANS BETWEEN DEPARTMENTS, ETC. - DAMAGES TO REAL PROPERTY WHILE RULE PROHIBITING REPLACEMENTS OR REPAIRS TO PROPERTY GENERALLY NO LONGER APPLIES TO PERSONAL PROPERTY LOANS BETWEEN GOVERNMENT AGENCIES UNDER CERTAIN CONDITIONS, WHEN LOANS ARE MADE PURSUANT TO 31 U.S.C. 686 AUTHORIZING AND REQUIRING PAYMENT FOR PERSONAL PROPERTY TRANSFERRED FROM ONE AGENCY TO ANOTHER, NO SUCH AUTHORITY EXISTS AUTHORIZING SIMILAR ACTION WITH RESPECT TO REAL PROPERTY, SO THAT THE DEPARTMENT OF THE ARMY MAY NOT REIMBURSE THE DEPARTMENT OF AGRICULTURE FOR THE COST OF RESTORING NATIONAL FOREST LANDS DAMAGED BY ARMY PERSONNEL DURING MILITARY OPERATIONS.

REFERENCE IS MADE TO LETTER DATED NOVEMBER 29, 1951, FROM THE ACTING SECRETARY OF THE ARMY, PRESENTING FOR DECISION THE QUESTION AS TO WHETHER DEPARTMENT OF THE ARMY FUNDS ARE AVAILABLE TO RESTORE NATIONAL FOREST LANDS TO THEIR FORMER CONDITION WHERE SAID LANDS ARE DAMAGED BY ARMY PERSONNEL DURING MILITARY MANEUVERS AND TRAINING OPERATIONS.

THE LETTER OF NOVEMBER 29, STATES THAT THE DEPARTMENT OF AGRICULTURE HAS MADE AVAILABLE TO THE ARMY CERTAIN NATIONAL FOREST LANDS FOR MANEUVERING AND TRAINING PURPOSES PURSUANT TO JOINT POLICY AGREEMENT APPROVED BY THE SECRETARY OF AGRICULTURE OF JUNE 11, 1951, AND BY THE SECRETARY OF THE ARMY ON JULY 3, 1951, PARAGRAPH D5 OF WHICH PROVIDES THAT THE DEPARTMENT OF THE ARMY WILL " BUDGET FOR RESTORATION MONIES, TO THE EXTENT MUTUALLY AGREED UPON BETWEEN THE DEPARTMENTS OF AGRICULTURE AND ARMY.'

THE VIEW IS EXPRESSED IN THE LETTER THAT, UNDER THE RULE ANNOUNCED IN DECISION OF JANUARY 11, 1951, B-99774, 30 COMP. GEN. 295, TO THE SECRETARY OF AGRICULTURE, DEPARTMENT OF THE ARMY FUNDS WOULD BE AVAILABLE FOR PAYMENT FOR DAMAGES TO PERSONAL PROPERTY CAUSED BY ARMY PERSONNEL. HOWEVER, IN VIEW OF THE EXPRESSED UNCERTAINTY AS TO WHETHER THAT RULE CAN BE EXTENDED TO COVER DAMAGES TO REAL PROPERTY, THE SPECIFIC QUESTION IS POSED AS TO WHETHER DEPARTMENT OF THE ARMY FUNDS WOULD BE AVAILABLE TO REIMBURSE THE DEPARTMENT OF AGRICULTURE FOR THE COST OF RESTORING THE NATIONAL FOREST LANDS IN QUESTION TO PRODUCTIVE CAPACITY BY UNDERTAKING EXTENSIVE SOIL EROSION CONTROL MEASURES; RANGE RESEEDING; PLANTING OF TREES; AND THE CONSTRUCTION OF ROADS, BRIDGES AND BUILDINGS.

IT HAS BEEN A GENERAL RULE OF LONG STANDING THAT, IN THE ABSENCE OF AUTHORITY THEREFOR, WHEN FEDERALLY OWNED PROPERTY, REAL OR PERSONAL, IS LOANED BY ONE AGENCY OF THE GOVERNMENT TO ANOTHER, THE LOANING AGENCY IS NOT ENTITLED TO CHARGE FOR ITS USE OR DEPRECIATION OR TO HAVE LOST PROPERTY REPLACED OR DAMAGED PROPERTY REPAIRED BY THE BORROWING AGENCY UPON ITS RETURN TO THE LOANING AGENCY, 10 COMP. GEN. 288; 25 ID. 322; 26 ID. 585.

HOWEVER, IT WAS HELD IN THE DECISION OF JANUARY 11, 1951, SUPRA, THAT SINCE THE PROVISIONS OF 31 U.S.C. 686, AUTHORIZING AND REQUIRING PAYMENT FOR PERSONAL PROPERTY TRANSFERRED FROM ONE AGENCY TO ANOTHER ON A PERMANENT BASIS LIKEWISE SANCTIONS SIMILAR TRANSACTIONS ON A TEMPORARY LOAN BASIS, THE RULE PROHIBITING REPLACEMENTS OF OR REPAIRS TO PROPERTY GENERALLY, NO LONGER APPLIES TO LOANS OF PERSONAL PROPERTY AS BETWEEN GOVERNMENT AGENCIES WHEN THE LOAN AGREEMENT PROVIDES THAT THE BORROWING AGENCY MUST RETURN THE PROPERTY IN AS GOOD CONDITION AS WHEN LOANED AND THAT THE EXPENSE OF PLACING THE PROPERTY IN SUCH CONDITION WOULD BE BORNE BY THAT AGENCY, SUBJECT, OF COURSE, TO THE AVAILABILITY OF ITS APPROPRIATIONS.

NO SUCH AUTHORITY EXISTS AUTHORIZING SIMILAR ACTION WITH RESPECT TO REAL PROPERTY GENERALLY. WHILE CERTAIN LANDS UNDER THE JURISDICTION OF FEDERAL AGENCIES OR INSTRUMENTALITIES ARE EXEMPT FROM THE APPLICATION OF THE GENERAL RULE, SUCH AS THOSE HELD IN TRUST, 20 COMP. GEN. 581, OR BY GOVERNMENT CORPORATIONS, ID. 699, NO AUTHORITY HAS BEEN FOUND FOR MAKING PAYMENTS FOR COMPENSATION ARISING OUT OF USES OF THE NATIONAL FOREST LANDS MADE AVAILABLE TO OTHER AGENCIES ON A TEMPORARY LOAN BASIS.

NO APPROPRIATION OF THE DEPARTMENT OF THE ARMY HAS BEEN CITED, AND NONE HAS BEEN FOUND, THAT MIGHT BE CONSIDERED AS AVAILABLE FOR EXPENDITURES SUCH AS CONTEMPLATED HERE. MOREOVER, IN VIEW OF THE SPECIFIC AUTHORITY CONTAINED IN THE ANNUAL APPROPRIATIONS FOR " FIELD EXERCISES" OF THE ARMY, TO MAKE PAYMENTS FOR THE "USE AND REPAIR OF PRIVATE PROPERTY" UTILIZED IN SUCH EXERCISES ( SEE PUBLIC LAW 179 APPROVED OCTOBER 18, 1951, 65 STAT. 423), IT WOULD APPEAR THAT THE CONGRESS DID NOT INTEND THE EXPENDITURE OF FUNDS FOR SIMILAR USE AND OCCUPANCY OF PUBLIC PROPERTY.

ACCORDINGLY, ON THE PRESENT RECORD YOU ARE ADVISED THAT THE DEPARTMENT OF THE ARMY MAY NOT REIMBURSE THE DEPARTMENT OF AGRICULTURE FOR THE COST OF RESTORING NATIONAL FOREST LANDS TO THEIR FORMER CONDITION OR PRODUCTIVE ACTIVITY WHERE THE LANDS AND APPURTENANCES THERETO ARE DAMAGED BY ARMY PERSONNEL DURING MILITARY TRAINING OPERATIONS.