A-13912, APRIL 21, 1926, 5 COMP. GEN. 840

A-13912: Apr 21, 1926

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IS NOT AUTHORITY TO MAKE REFUND OF FEES DEPOSITED WITH APPLICATIONS FOR PRELIMINARY WATER-POWER PERMITS WITHIN THE APACHE NATIONAL FOREST AND THE FORT APACHE INDIAN RESERVATION WHEN SUCH FEES WERE NEITHER IN EXCESS OF THE AMOUNT DUE NOR WERE ERRONEOUSLY COLLECTED. EVEN THOUGH NO FINAL PERMITS WERE GRANTED. FOR DECISION WHETHER YOU ARE AUTHORIZED BY THE ACT OF MARCH 4. THE PURPOSE OF THE PRELIMINARY PERMIT WAS TO PRESERVE PRIORITY OF APPLICATION WHILE SECURING NECESSARY DATA FOR FINAL PERMIT AND TO ALLOW SUCH CONSTRUCTION WORK AS MIGHT BE NECESSARY TO PRESERVE WATER APPROPRIATIONS UNTIL THE FINAL PERMIT COULD BE SECURED. THE REGULATIONS PROVIDED THAT SUCH PRIORITY WOULD BE LOST (1) IN CASE INITIAL PAYMENT REQUIRED THEREUNDER WAS NOT MADE ON OR BEFORE THE DATE SPECIFIED IN THE LETTER TRANSMITTING THE REQUEST FOR PAYMENT.

A-13912, APRIL 21, 1926, 5 COMP. GEN. 840

NATIONAL FOREST SERVICE - REFUNDS OF FEES DEPOSITED UNDER PRELIMINARY WATER-POWER PERMITS THE ACT OF MARCH 4, 1907, 34 STAT. 1256, AS AMENDED BY THE ACT OF MARCH 4, 1911, 36 STAT. 1253, IS NOT AUTHORITY TO MAKE REFUND OF FEES DEPOSITED WITH APPLICATIONS FOR PRELIMINARY WATER-POWER PERMITS WITHIN THE APACHE NATIONAL FOREST AND THE FORT APACHE INDIAN RESERVATION WHEN SUCH FEES WERE NEITHER IN EXCESS OF THE AMOUNT DUE NOR WERE ERRONEOUSLY COLLECTED, EVEN THOUGH NO FINAL PERMITS WERE GRANTED.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF AGRICULTURE, APRIL 21, 1926:

THERE HAS BEEN RECEIVED YOUR REQUEST OF APRIL 9, 1926, FOR DECISION WHETHER YOU ARE AUTHORIZED BY THE ACT OF MARCH 4, 1907, 34 STAT. 1256, TO DIRECT REFUND OF $281.25 DEPOSITED AUGUST 15, 1916, AND $79.37, DEPOSITED JANUARY 2, 1917, BY F. G. BAUM WHEN HE MADE APPLICATION FOR WATER-POWER PERMIT WITHIN THE APACHE NATIONAL FOREST AND THE FORT APACHE INDIAN RESERVATION.

IT APPEARS THAT UNDER THE PROVISIONS OF THE ACT OF FEBRUARY 15, 1901, 31 STAT. 190, AS AMENDED AND EXTENDED BY THE ACTS OF FEBRUARY 1, 1905, 33 STAT. 628, AND MARCH 4, 1911, 36 STAT. 1253, AND THE REGULATIONS PRESCRIBED THEREUNDER BY THE SECRETARY OF AGRICULTURE, F. G. BAUM MADE APPLICATION ON NOVEMBER 18, 1914, FOR A PRELIMINARY POWER PERMIT COVERING CERTAIN LAND WITHIN THE APACHE NATIONAL FOREST AND THE FORT APACHE INDIAN RESERVATION, ALL WITHIN THE STATE OF ARIZONA. THE PURPOSE OF THE PRELIMINARY PERMIT WAS TO PRESERVE PRIORITY OF APPLICATION WHILE SECURING NECESSARY DATA FOR FINAL PERMIT AND TO ALLOW SUCH CONSTRUCTION WORK AS MIGHT BE NECESSARY TO PRESERVE WATER APPROPRIATIONS UNTIL THE FINAL PERMIT COULD BE SECURED. UPON THE GRANTING OF THE PRELIMINARY PERMIT, THE PRIORITY DATED FROM THE DATE OF APPLICATION THEREFOR, BUT THE REGULATIONS PROVIDED THAT SUCH PRIORITY WOULD BE LOST (1) IN CASE INITIAL PAYMENT REQUIRED THEREUNDER WAS NOT MADE ON OR BEFORE THE DATE SPECIFIED IN THE LETTER TRANSMITTING THE REQUEST FOR PAYMENT, OR (2) IN CASE THE APPLICATION FOR FINAL PERMIT WAS NOT FILED WITHIN THE TIME STIPULATED IN THE PRELIMINARY PERMIT OR AUTHORIZED EXTENSIONS THEREOF.

THE PAYMENTS, AGGREGATING $360.62, WERE MADE AND PRELIMINARY PERMIT WAS GRANTED. IT APPEARS THAT FURTHER PAYMENTS WERE NOT REQUESTED BECAUSE ACTION ON THE APPLICATION FOR FINAL PERMIT WAS DELAYED BY THE GOVERNMENT, FOR REASONS FOR WHICH MR. BAUM WAS NOT RESPONSIBLE. WHILE FURTHER ACTION WAS PENDING, THE FEDERAL POWER ACT OF JUNE 10, 1920, 41 STAT. 1063, DIVESTED THE SECRETARIES OF AGRICULTURE AND INTERIOR OF JURISDICTION IN THE PREMISES. THE TIME HAD BEEN EXTENDED AS PROVIDED IN THE PRELIMINARY PERMIT AND ON NOVEMBER 8, 1920, MR. BAUM REQUESTED THAT HIS APPLICATION BE CONSIDERED BY THE FEDERAL POWER COMMISSION, PREPARING AT THE REQUEST OF SAID COMMISSION A NEW PRELIMINARY PERMIT. VARIOUS PROTESTS WERE MADE BY RANCHERS AND OTHERS IN THE COMMUNITY AGAINST THE GRANTING OF A FINAL PERMIT, AND FINALLY, AS THE RESULT OF A HEARING OF REPRESENTATIVES OF THE SALT RIVER VALLEY WATER USERS' ASSOCIATION, THE COMMISSION REQUESTED MR. BAUM TO AGREE TO A STIPULATION FOR THE REPLACEMENT OF ANY LOSSES WHICH MIGHT BE SUSTAINED BY THE SALT RIVER PROJECT AS THE RESULT OF HIS OPERATIONS. HE DID NOT AGREE TO SUCH STIPULATION AND NO FINAL PERMIT APPEARS TO HAVE BEEN ISSUED.

ARTICLE 3 OF THE PRELIMINARY PERMIT GRANTED SEPTEMBER 20, 1916, REQUIRED AN ANNUAL PAYMENT OF 10 CENTS PER HORSEPOWER, CALCULATED UPON A RENTAL CAPACITY OF 3,750 HORSEPOWER, AND ARTICLE 5 THEREOF PROVIDED THAT IF, AFTER THE FILING OF THE FINAL APPLICATION IN THE FORM AND MANNER PRESCRIBED NO FINAL PERMIT WAS GRANTED, ALL PAYMENTS MADE IN CONSIDERATION OF THE PRELIMINARY PERMIT WOULD BE RETURNED TO THE PERMITTEE. IT IS STATED THAT AN AGREEMENT TO REPLACE LOSSES OF WATER WAS NOT "SUCH AS ORDINARILY REQUIRED IN CONNECTION WITH POWER PERMITS" AND "BEING UNUSUAL COULD NOT REASONABLY HAVE BEEN ANTICIPATED AS A PROBABLE REQUIREMENT.' HOWEVER, THE PRELIMINARY PERMIT PROVIDED IN ARTICLE 1 THAT A FINAL PERMIT WOULD BE ISSUED "ONLY IF IT APPEARS THAT THE PROPOSED OCCUPANCY AND USE WILL BE IN GENERAL ACCORD WITH THE MOST BENEFICIAL UTILIZATION OF THE RESOURCES INVOLVED AND CONSISTENT WITH THE PUBLIC INTEREST; AND THAT NO FINAL POWER PERMIT WILL BE ISSUED IF THE WORKS TO BE CONSTRUCTED THEREUNDER WILL UNREASONABLY INTERFERE WITH THE CONSTRUCTION OR OPERATION OF WORKS AUTHORIZED BY EXISTING FINAL POWER PERMITS OR FOR THE CONSTRUCTION OF WORKS WITHIN THE AREA COVERED BY A PRIOR PRELIMINARY PERMIT UNTIL AFTER THE FILING OF FINAL APPLICATION OR THE LOSS OF PRIORITY BY THE PRIOR PRELIMINARY PERMITTEE.'

IT DOES NOT APPEAR THAT THE UNITED STATES REFUSED TO ISSUE A FINAL PERMIT TO MR. BAUM, BUT MERELY INSISTED ON STIPULATIONS "IN GENERAL ACCORD WITH THE MOST BENEFICIAL UTILIZATION OF THE RESOURCES INVOLVED AND CONSISTENT WITH THE PUBLIC INTEREST," WHICH HE REFUSED TO ENTER INTO. BUT, HOWEVER THIS MAY BE, THE PAYMENTS WERE NOT IN EXCESS OF THE AMOUNTS DUE NOR WERE THEY ERRONEOUSLY COLLECTED WITHIN THE MEANING AND REQUIREMENT OF THE ACT OF MARCH 4, 1907, 34 STAT. 1256, AS AMENDED BY THE ACT OF MARCH 4, 1911, 36 STAT. 1253.

IN A SIMILAR CASE DECIDED JULY 3, 1923, REVIEW NO. 3054, IT WAS HELD THERE WAS NO APPROPRIATION AVAILABLE FOR REFUNDING SUCH PAYMENTS, AND THERE APPEARS NO BASIS FOR A DIFFERENT CONCLUSION IN THE MATTER HERE PRESENTED. ACCORDINGLY, THE QUESTION SUBMITTED IS ANSWERED IN THE NEGATIVE.