B-105245, OCT. 3, 1961

B-105245, OCT. 3, 1961

TO CHAIRMAN, UNITED STATES ATOMIC ENERGY COMMISSION:

BY LETTER OF SEPTEMBER 18, 1961, THE ASSISTANT GENERAL MANAGER REQUESTED OUR OPINION AS TO WHETHER CERTAIN FEES MAY BE PAID TO THE CITY OF RICHLAND, WASHINGTON, IN CONNECTION WITH DESIGNATION BY THE CITY OF CERTAIN AREAS OF ITS PUBLIC STREETS AS BUS STOPS FOR USE BY ATOMIC ENERGY COMMISSION BUSES. FROM INFORMATION CONTAINED IN THE ASSISTANT GENERAL MANAGER'S LETTER, THE FACTS IN THE MATTER MAY BE SUMMARIZED AS FOLLOWS:

THE GENERAL ELECTRIC COMPANY, UNDER A COST-PLUS-FIXED-FEE CONTRACT, OPERATES THE COMMISSION'S HANFORD WORKS AT RICHLAND. THERE IS NO PUBLIC BUS SYSTEM IN RICHLAND BUT GENERAL ELECTRIC OPERATES GOVERNMENT OWNED AND LICENSED BUSES FOR COMPANY EMPLOYEES TRAVELING FROM THE CITY TO OUTLYING HANFORD PLANT AREAS. OPERATION OF THIS BUS SYSTEM ENTAILS TRAVEL OVER PUBLIC STREETS WITHIN THE CITY OF RICHLAND; APPROXIMATELY 2,500 PASSENGERS ARE PICKED UP AND DELIVERED EACH DAY AT 100 BUS STOP LOCATIONS IN THE CITY.

THE COMMISSION HAS REQUESTED THE CITY TO DESIGNATE BUS STOPS IN RICHLAND FOR THE PURPOSE OF FACILITATING OPERATION OF THE GOVERNMENT OWNED BUSES. THE CITY MANAGER ADVISED THAT UNDER SECTIONS 9.17 AND 9.18 OF ORDINANCE NO. 22 PASSED BY THE RICHLAND CITY COUNCIL ON MARCH 4, 1959, HE IS AUTHORIZED TO DESIGNATE CURB LOADING ZONES FOR EITHER PASSENGER OR FREIGHT LOADING UPON PAYMENT OF A $50 ANNUAL FEE FOR EACH LOADING ZONE AND THAT IN VIEW OF THIS ORDINANCE, HE WOULD BE GLAD TO OFFICIALLY DESIGNATE THE BUS STOPS UPON PAYMENT OF THE REQUIRED FEE.

THREE SPECIFIC QUESTIONS ARE PRESENTED IN THE ASSISTANT GENERAL MANAGER'S REQUEST FOR OUR OPINION:

"1. MAY AEC PAY THE CITY THE $50.00 PER YEAR FEE FOR THE CITY'S OFFICIALLY DESIGNATING PASSENGER LOADING ZONES FOR USE BY GOVERNMENT OWNED BUSES?

"2. IF SO, MAY SUCH PAYMENT BE MADE AT THE TIME OF APPLICATION FOR SUCH PERMIT AND IN ADVANCE OF THE CITY'S DESIGNATION?

"3. IF THE ANSWER TO THE FIRST QUESTION IS IN THE NEGATIVE, MAY GENERAL ELECTRIC COMPANY MAKE THE PAYMENT AS AN ALLOWABLE COST UNDER THE AEC COST- TYPE CONTRACT AS A NECESSARY OR INCIDENTAL EXPENSE IN CONNECTION WITH THE SAFE OPERATION OF THE BUS SYSTEM?

AS NOTED IN THE ASSISTANT GENERAL MANAGER'S REQUEST, THE COMMUNITY OF RICHLAND HAD BEEN OWNED BY THE UNITED STATES AND OPERATED FOR MANY YEARS BY THE ATOMIC ENERGY COMMISSION THROUGH THE GENERAL ELECTRIC COMPANY. 1955 THE ATOMIC ENERGY COMMUNITY ACT, PUBLIC LAW 84-221, 42 U.S.C. 2301, ET SEQ., WAS ENACTED PROVIDING FOR PLATTING AND DISPOSAL OF THE COMMUNITY. THE STREETS IN THE COMMUNITY WERE DEDICATED TO THE PUBLIC BUT AN EASEMENT WAS RESERVED TO THE UNITED STATES AND ITS ASSIGNS, LICENSEES, OR PERMITTEES TO OPERATE, MAINTAIN, REPAIR, REPLACE, RELOCATE, AND REMOVE EXISTING AND ADDITIONAL PUBLIC UTILITY-TYPE FACILITIES, PROVIDED THE EXISTENCE OF SUCH FACILITIES WOULD NOT PROHIBIT THE USE OF THE DEDICATED WAYS BY THE PUBLIC. SUBSEQUENTLY, THE CITY OF RICHLAND BECAME INCORPORATED AND OBTAINED JURISDICTION OVER THE DEDICATED WAYS. ON AUGUST 2, 1960, THE COMMISSION, PURSUANT TO CHAPTER 8 OF THE COMMUNITY ACT, TRANSFERRED TO THE CITY THE EASEMENTS RESERVED FROM THE DEDICATED WAYS BUT THERE WAS THIS TIME RESERVED TO THE GOVERNMENT---

"* * * "THE EASEMENT AND RIGHT TO OPERATE, MAINTAIN, REPAIR, REPLACE, RELOCATE, AND REMOVE A BUS SYSTEM, INCLUDING, BUT NOT LIMITED TO, THE RIGHT TO DRIVE, PARK, STAND, AND STOP BUSES, TO PICK UP, TRANSPORT, AND DISCHARGE PASSENGERS, AND, WITH THE APPROVAL OF GRANTEE (WHICH APPROVAL SHALL NOT BE UNREASONABLY WITHHELD), TO DESIGNATE BY BUS STOP SIGNS, OR OTHERWISE, SPECIFIC LOCATIONS AND AREAS AT WHICH SAID BUSES MAY STOP, PARK, AND STAND FOR THE SPECIFIC PURPOSE OF PICKING UP AND DISCHARGING PASSENGERS. NOTWITHSTANDING ANY OTHER PROVISION OF THIS DEED, THIS EASEMENT SHALL BE LIMITED TO USE BY VEHICLES OWNED BY THE GRANTOR.' * *

IN VIEW OF THE LANGUAGE QUOTED, IT IS DIFFICULT TO PERCEIVE ANY NECESSITY FOR REQUESTING THE CITY OF RICHLAND TO DESIGNATE BUS STOPS. THE REASON FOR SO DOING IS SET FORTH IN THE ASSISTANT GENERAL MANAGER'SLETTER AS BEING THAT ALTHOUGH THE GOVERNMENT COULD CLAIM A PROPERTY RIGHT AS ITS BASIS FOR MAINTAINING BUS LOADING ZONES, IT COULD NOT CLAIM EXCLUSIVE USE OF THE ZONES, AND ENFORCEMENT OF THE PROPERTY RIGHT THROUGH NORMAL CIVIL PROCEDURES COULD NOT PREVENT OTHERS FROM PARKING IN THE BUS ZONES. THEREFORE, IT APPEARED NECESSARY TO HAVE THE RICHLAND CITY POLICE AUTHORIZED TO ISSUE TRAFFIC CITATIONS TO UNAUTHORIZED VEHICLES PARKING IN BUS ZONES.

WE DO NOT HAVE AVAILABLE THE COMPLETE TEXT OF ORDINANCES OF THE CITY OF RICHLAND OR THE DOCUMENTS UNDER WHICH THE GOVERNMENT'S PROPERTY WAS TRANSFERRED TO THE CITY; BUT FROM THE INFORMATION PRESENTED IN THE REQUEST FOR OPINION, IT SEEMS CLEAR THAT THE CITY IS REQUIRED TO POLICE THE BUS STOPS DESIGNATED BY THE COMMISSION UNDER ITS EASEMENT AND APPROVED BY THE CITY AT LEAST TO THE SAME EXTENT AS BUS STOPS DESIGNATED BY THE CITY UPON PAYMENT OF REQUIRED FEES UNDER ITS ORDINANCES. UNDER THE EASEMENT RESERVED FROM THE WAYS DEDICATED BY THE GOVERNMENT TO THE CITY OF RICHLAND, THE CITY HAS NO RIGHT TO DENY THE COMMISSION THE USE OF DESIGNATED AND APPROVED BUS STOPS; AND IT IS CLEARLY INCUMBENT UPON THE CITY TO TAKE WHATEVER STEPS ARE NECESSARY TO ASSURE THE COMMISSION THE UNFETTERED ENJOYMENT OF ITS RIGHTS UNDER THE EASEMENT RESERVED TO IT. ANY USE OF THE STREETS OF RICHLAND BY THE PUBLIC ARE BY THE TERMS OF THE EASEMENT SUBJECT TO THE PRIOR RIGHTS OF THE GOVERNMENT SO FAR AS CONCERNS THE BUS SYSTEM. AND IF THE EASEMENT IS TO HAVE ANY VALUE WHATEVER, THE POLICE POWERS OF THE CITY MUST BE INVOKED TO PROTECT IT.

ACCORDINGLY, IN THE ABSENCE OF ANY SHOWING THAT THE CITY OF RICHLAND IS NOT BOUND TO EXERCISE ITS POLICE POWERS FOR THE PROTECTION OF THE GOVERNMENT'S EASEMENT TO OPERATE A BUS SYSTEM, THE FIRST AND THIRD QUESTIONS PRESENTED ARE ANSWERED IN THE NEGATIVE, ANSWER TO THE SECOND NOT BEING REQUIRED.