A-93345, MARCH 29, 1938, 17 COMP. GEN. 791

A-93345: Mar 29, 1938

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LOCATED ON LAND WHICH WILL BE FLOODED BECAUSE OF THE DAM CONSTRUCTION. IS AS FOLLOWS: INCLOSED HEREWITH IS COPY OF A MEMORANDUM DATED NOVEMBER 13. WHICH WILL BE FLOODED BY THE POOL OF THE BONNEVILLE DAM. THE CASE IS FULLY SET FORTH IN THE MEMORANDUM OF THE JUDGE ADVOCATE GENERAL. IN THE FOLLOWING EXTRACT FROM A STATEMENT SUBMITTED BY THE CHIEF OF ENGINEERS IN RESPONSE THERETO: "IN RECOMMENDING THE PURCHASE OF LAND AND THE PAYMENT OF BILLS FOR THE REPLACEMENT OF THE FOREST SERVICE FACILITIES WHICH WILL BE FLOODED OUT AND DESTROYED BY THE POOL OF BONNEVILLE DAM. THE CONGRESS MUST HAVE BEEN AWARE OF THIS SITUATION WHEN IT ADOPTED AND AUTHORIZED THE BONNEVILLE DAM PROJECT. IN MAKING APPROPRIATIONS FOR THAT PROJECT OR IN SOME OTHER ACT IT COULD HAVE PROVIDED FOR THE REPLACEMENT UPON ANOTHER SITE OF THESE RANGER STATION FACILITIES.'.

A-93345, MARCH 29, 1938, 17 COMP. GEN. 791

APPROPRIATIONS - AVAILABILITY - ACQUISITION OF LAND AND RESTORATION OF FACILITIES OF ANOTHER DEPARTMENT DESTROYED IN CONSTRUCTION OF BONNEVILLE DAM THE WAR DEPARTMENT APPROPRIATION FOR THE CONSTRUCTION OF THE BONNEVILLE DAM MAY NOT BE USED FOR EXPENSES OF ACQUIRING LAND AND CONSTRUCTING IMPROVEMENTS THEREON TO REPLACE RANGER STATION FACILITIES OF THE FOREST SERVICE, DEPARTMENT OF AGRICULTURE, LOCATED ON LAND WHICH WILL BE FLOODED BECAUSE OF THE DAM CONSTRUCTION, SUCH RELOCATION UPON LANDS NOT NOW OWNED BY THE GOVERNMENT, NOT BEING A NECESSARY INCIDENT TO, OR REQUIRED FOR, THE COMPLETION OF THE DAM PROJECT. 7 COMP. GEN. 227, DISTINGUISHED.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF WAR, MARCH 29, 1938:

YOUR LETTER OF MARCH 9, 1938, IS AS FOLLOWS:

INCLOSED HEREWITH IS COPY OF A MEMORANDUM DATED NOVEMBER 13, 1937, BY THE JUDGE ADVOCATE GENERAL OF THIS DEPARTMENT, IN WHICH HE EXPRESSED THE OPINION THAT THE APPROPRIATIONS OF THIS DEPARTMENT AVAILABLE FOR THE CONSTRUCTION OF THE BONNEVILLE DAM IN THE COLUMBIA RIVER COULD NOT PROPERLY BE CHARGED WITH THE EXPENSE OF ACQUIRING LAND AND RECONSTRUCTING IMPROVEMENTS THEREON FOR THE USE OF THE FOREST SERVICE, DEPARTMENT OF AGRICULTURE, IN LIEU OF THE LAND AND FACILITIES NOW USED BY THAT SERVICE IN CONNECTION WITH ITS COLUMBIA GORGE RANGER STATION, WHICH WILL BE FLOODED BY THE POOL OF THE BONNEVILLE DAM.

THE CASE IS FULLY SET FORTH IN THE MEMORANDUM OF THE JUDGE ADVOCATE GENERAL, INCLOSED HEREWITH, AND IN THE FOLLOWING EXTRACT FROM A STATEMENT SUBMITTED BY THE CHIEF OF ENGINEERS IN RESPONSE THERETO:

"IN RECOMMENDING THE PURCHASE OF LAND AND THE PAYMENT OF BILLS FOR THE REPLACEMENT OF THE FOREST SERVICE FACILITIES WHICH WILL BE FLOODED OUT AND DESTROYED BY THE POOL OF BONNEVILLE DAM, THIS OFFICE TOOK INTO CONSIDERATION THE FACT THAT DESTRUCTION OF THESE FACILITIES WITHOUT REPLACEMENT WOULD RESULT IN THE INTERRUPTION OF AN IMPORTANT ACTIVITY OF AN EMERGENCY NATURE AT LEAST UNTIL SUCH TIME AS THE FOREST SERVICE COULD PRESENT THE MATTER TO CONGRESS AND SECURE A SPECIAL APPROPRIATION TO REPLACE THESE FACILITIES. THE MEMORANDUM OF THE JUDGE ADVOCATE GENERAL STATES:

" "THEORETICALLY, AT LEAST, THE CONGRESS MUST HAVE BEEN AWARE OF THIS SITUATION WHEN IT ADOPTED AND AUTHORIZED THE BONNEVILLE DAM PROJECT, AND IN MAKING APPROPRIATIONS FOR THAT PROJECT OR IN SOME OTHER ACT IT COULD HAVE PROVIDED FOR THE REPLACEMENT UPON ANOTHER SITE OF THESE RANGER STATION FACILITIES.' ACTUALLY, HOWEVER, CONGRESS DID NOT KNOW OF THIS SITUATION, AND IT WAS NOT KNOWN TO THIS DEPARTMENT UNTIL DISCLOSED BY THE DETAILED SURVEYS WHICH HAVE BEEN MADE WHILE THE PROJECT WAS UNDER CONSTRUCTION.

"BECAUSE OF THE EMERGENCY NATURE OF THE FOREST SERVICE ACTIVITY CONCERNED AND THE PRACTICAL NECESSITY OF CONTINUING SUCH ACTIVITY WITHOUT INTERRUPTION, THE CASE WAS CONSIDERED TO BE SIMILAR TO THE RELOCATION OF SEWERS AND WATER MAINS IN THE DISTRICT OF COLUMBIA, NECESSITATED BY THE CONSTRUCTION OF A PUBLIC BUILDING, WHICH RELOCATION WAS HELD BY THE COMPTROLLER GENERAL TO BE A PROPER CHARGE AGAINST THE APPROPRIATION FOR THE BUILDING, RATHER THAN APPROPRIATIONS UNDER CONTROL OF THE DISTRICT GOVERNMENT (7 COMPT. GEN. 227). THIS PRINCIPLE WAS ALSO APPROVED BY THE JUDGE ADVOCATE GENERAL IN AN OPINION OF NOVEMBER 13, 1928, HOLDING THAT RIVER AND HARBOR APPROPRIATIONS WERE CHARGEABLE WITH THE EXPENSE OF REMOVING AND RELAYING A MILITARY FIRE CONTROL CABLE ACROSS THE ENTRANCE TO GALVESTON HARBOR TO PREVENT THE DAMAGE OR DESTRUCTION OF SAID CABLE DURING DREDGING OPERATIONS FOR THE DEEPENING OF SAID CHANNEL.

"THIS OFFICE FEELS THAT THE ACTION RECOMMENDED IN ITS SECOND INDORSEMENT OF OCTOBER 29, 1937, IS UNQUESTIONABLY JUSTIFIED FROM THE EQUITABLE STANDPOINT AND, IN VIEW OF THE PRECEDENTS CITED IN THE FOREGOING PARAGRAPH, IT IS BELIEVED THAT THE ACTION IS ALSO LEGALLY WARRANTED.'

THE MATTER HAS BEEN THE SUBJECT OF CORRESPONDENCE WITH THE DEPARTMENT OF AGRICULTURE. THAT DEPARTMENT STATES THAT THERE IS URGENT NEED FOR EARLY PROVISION BEING MADE FOR RESTORING THE FACILITIES OF THE COLUMBIA GORGE RANGER STATION AND IT ACCORDINGLY SUGGESTS THAT THE QUESTION BE PRESENTED TO YOU FOR OPINION.

THIS DEPARTMENT IS WILLING TO PURCHASE THIS ADDITIONAL LAND AT A COST OF $1,500 AND EXPEND NOT TO EXCEED $1,200 ADDITIONAL FOR REPLACEMENT OF FOREST SERVICE FACILITIES WHICH WILL BE DESTROYED BY THE BONNEVILLE DAM, ALL AS RECOMMENDED BY THE CHIEF OF ENGINEERS, PROVIDED YOU FIND THAT SUCH EXPENDITURES WILL BE A PROPER CHARGE AGAINST THE APPROPRIATIONS AVAILABLE FOR THE CONSTRUCTION OF BONNEVILLE DAM. YOUR EARLY ADVICE IN THE MATTER WILL BE APPRECIATED.

SECTIONS 3736 AND 3678, REVISED STATUTES, PROVIDE:

NO LAND SHALL BE PURCHASED ON ACCOUNT OF THE UNITED STATES, EXCEPT UNDER A LAW AUTHORIZING SUCH PURCHASE.

ALL SUMS APPROPRIATED FOR THE VARIOUS BRANCHES OF EXPENDITURE IN THE PUBLIC SERVICE SHALL BE APPLIED SOLELY TO THE OBJECTS FOR WHICH THEY ARE RESPECTIVELY MADE, AND FOR NO OTHERS.

THE CONSTRUCTION OF THE BONNEVILLE DAM HAVING BEEN AUTHORIZED BY THE ACT OF AUGUST 30, 1935, 49 STAT. 1038, AND THE APPROPRIATIONS FOR RIVERS AND HARBORS SPECIFICALLY PROVIDING "FOR THE PROSECUTION OF SUCH PROJECTS HERETOFORE AUTHORIZED AS MAY BE MOST DESIRABLE IN THE INTERESTS OF COMMERCE AND NAVIGATION" APPEAR AVAILABLE FOR ALL EXPENSES DIRECTLY CONNECTED WITH AND NECESSARY FOR THE PROSECUTION OF THAT PROJECT INCLUDING THE ACQUISITION OF LANDS INCIDENT TO ITS COMPLETION.

IN DECISION IN 7 COMP. GEN. 227, REFERRED TO IN YOUR SUBMISSION, IT WAS HELD:

* * * THE QUESTION INVOLVED IS DIFFERENT FROM THAT CONSIDERED IN DECISION OF JANUARY 24, 1927, A-17034, HOLDING THAT THE APPROPRIATION UNDER THE ACT OF JULY 3, 1926, SUPRA, TOWARD THE CONSTRUCTION OF THE INTERNAL REVENUE BUILDING COULD NOT BE USED FOR REERECTING ON ANOTHER SITE THE MARKET SHEDS NECESSARY TO BE REMOVED FROM THE SITE OF THE PROPOSED BUILDING. THE REMOVAL OF THE MARKET SHEDS WAS NOT DEPENDENT ON THEIR REERECTION ELSEWHERE, AND IT FOLLOWED THAT THE COST OF SUCH REERECTION WAS NOT A NECESSARY INCIDENT TO THE CONSTRUCTION OF THE NEW BUILDING. HERE PROVISION MUST BE MADE FOR DIVERTING OR RELOCATING THE SEWERS AND WATER MAINS BEFORE THEY CAN BE REMOVED FROM THEIR PRESENT LOCATION, AND CONSEQUENTLY THE COST OF SUCH WORK IS DIRECTLY TRACEABLE TO AND IS A NECESSARY PART OF SUCH REMOVAL. THE DIVERSION OR RELOCATION OF THE SEWERS AND THE MAINS IS NOT REQUIRED BY THE DISTRICT OF COLUMBIA NOR WILL SUCH DIVERSION OR RELOCATION BE OF ANY APPARENT BENEFIT TO EXISTING SERVICE MAINTAINED UNDER DISTRICT OF COLUMBIA APPROPRIATIONS. ACCORDINGLY, THERE APPEARS NO BASIS FOR CHARGING THE COST OF WORK NECESSARY IN THE CONSTRUCTION OF FEDERAL BUILDINGS TO ANY DISTRICT OF COLUMBIA APPROPRIATIONS. * * *

WHILE IT MAY BE NECESSARY AS REPRESENTED FOR THE FOREST SERVICE TO RESTORE THE FACILITIES OF THE COLUMBIA GORGE RANGER STATION, THE RELOCATION UPON LANDS NOT NOW OWNED BY THE GOVERNMENT IS APPARENTLY NOT REQUIRED FOR THE COMPLETION OF THE BONNEVILLE DAM PROJECT, AND ACCORDINGLY, THE AUTHORITY AND APPROPRIATION UNDER WHICH THE PROSECUTION FOR THE BONNEVILLE PROJECT IS AUTHORIZED MAY NOT BE CONSTRUED AS AUTHORIZING ALSO THE PURCHASE OF LAND NOT REQUIRED FOR THAT PROJECT BUT REQUIRED FOR AN ACTIVITY OF ANOTHER GOVERNMENT AGENCY. A-17034, JANUARY 24, 1927.

ACCORDINGLY, IT MUST BE HELD THAT THE APPROPRIATION AVAILABLE FOR THE CONSTRUCTION OF THE BONNEVILLE DAM MAY NOT BE USED FOR THE EXPENSES OF ACQUIRING LAND AND RECONSTRUCTING IMPROVEMENTS THEREON FOR THE USE OF THE FOREST SERVICE.