B-120930, AUGUST 13, 1954, 34 COMP. GEN. 67

B-120930: Aug 13, 1954

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APPROPRIATIONS - OBLIGATION AND PAYMENT AVAILABILITY - LAND ACQUISITION BY CONDEMNATION PROCEEDINGS AN APPROPRIATION FOR LAND ACQUISITION BECOMES OBLIGATED AT THE TIME ATTORNEY GENERAL IS REQUESTED TO INSTITUTE CONDEMNATION PROCEEDINGS RATHER THAN BY THE ACTUAL INSTITUTION OF SUCH PROCEEDINGS SO THAT A DECLARATION OF TAKING FILED ON JUNE 14. OBLIGATED THE EMERGENCY CONSERVATION FUND WHICH AUTHORIZED ACQUISITION OF THE LAND EVEN THOUGH THE FUND WAS NOT AVAILABLE FOR OBLIGATION AFTER MARCH 31. JUDGMENTS RENDERED IN A SUIT BROUGHT BY LANDHOLDERS CONTESTING THE CONDEMNATION PROCEEDINGS IS MERELY A FINAL ADJUDICATION OF THE RIGHTS OF THE PARTIES AND DOES NOT CREATE A NEW OBLIGATION. 1954: REFERENCE IS MADE TO LETTER OF AUGUST 4.

B-120930, AUGUST 13, 1954, 34 COMP. GEN. 67

APPROPRIATIONS - OBLIGATION AND PAYMENT AVAILABILITY - LAND ACQUISITION BY CONDEMNATION PROCEEDINGS AN APPROPRIATION FOR LAND ACQUISITION BECOMES OBLIGATED AT THE TIME ATTORNEY GENERAL IS REQUESTED TO INSTITUTE CONDEMNATION PROCEEDINGS RATHER THAN BY THE ACTUAL INSTITUTION OF SUCH PROCEEDINGS SO THAT A DECLARATION OF TAKING FILED ON JUNE 14, 1935, PURSUANT TO A REQUEST OF THE ATTORNEY GENERAL ON MARCH 27, 1935, OBLIGATED THE EMERGENCY CONSERVATION FUND WHICH AUTHORIZED ACQUISITION OF THE LAND EVEN THOUGH THE FUND WAS NOT AVAILABLE FOR OBLIGATION AFTER MARCH 31, 1935, AND JUDGMENTS RENDERED IN A SUIT BROUGHT BY LANDHOLDERS CONTESTING THE CONDEMNATION PROCEEDINGS IS MERELY A FINAL ADJUDICATION OF THE RIGHTS OF THE PARTIES AND DOES NOT CREATE A NEW OBLIGATION.

ACTING COMPTROLLER GENERAL WEITZEL TO THE SECRETARY OF THE INTERIOR, AUGUST 13, 1954:

REFERENCE IS MADE TO LETTER OF AUGUST 4, 1954, FROM THE ADMINISTRATIVE SECRETARY OF INTERIOR, REQUESTING TO BE ADVISED WHETHER FUNDS IN THE APPROPRIATION "14X1953 MIGRATORY BIRD CONSERVATION ACCOUNT, FISH AND WILDLIFE SERVICE" ARE AVAILABLE FOR THE PAYMENT OF $107,533.14, PLUS INTEREST, SUCH AMOUNT REPRESENTING AN AWARD BY THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON UNDER A PRELIMINARY JUDGMENT IN CONDEMNATION DATED MAY 26, 1954.

IT IS EXPLAINED THAT THE LANDS INVOLVED ARE NOW A PART OF THE MALHEUR NATIONAL WILDLIFE REFUGE WHICH WAS ESTABLISHED BY EXECUTIVE ORDER NO. 929 ON AUGUST 18, 1908. IT IS STATED FURTHER THAT WHILE THE APPARENT INTENTION OF THE EXECUTIVE ORDER WAS TO INCLUDE IN THE REFUGE ALL OF THE LAKEBED AND ALL OF THE UNPATENTED LANDS BORDERING UPON THE NEAL MEANDER LINE OF LAKE MALHEUR, EFFECTIVE ADMINISTRATION OF THE REFUGE WAS IMPOSSIBLE BECAUSE OF THE MANY PRIVATELY-OWNED TRACTS BORDERING UPON THE MEANDER LINE OF THE LAKE AND THE MORE OR LESS INTERMITTENT OCCUPATION OF THE LARGE PART OF THE LAKEBED BY RIPARIAN OWNERS AND SQUATTERS.

BECAUSE OF THIS SITUATION, THE CONGRESS APPROPRIATED $50,000 IN THE SECOND DEFICIENCY ACT, FISCAL YEAR 1931, 46 STAT. 1562, FOR USE IN DETERMINING THE RIGHTS OF THE UNITED STATES. PURSUANT TO PROCEEDINGS INSTITUTED SHORTLY THEREAFTER, THE UNITED STATES SUPREME COURT DETERMINED THAT, AS BETWEEN THE UNITED STATES AND THE STATE OF OREGON, PRIMARY JURISDICTION IN THE LAKEBED WAS IN THE UNITED STATES. SEE OREGON, UNITED STATES V. 295 U.S. 1; ID. 701. FOLLOWING SUCH ACTION AND IN ORDER TO REMOVE UNCERTAINTIES OF OWNERSHIP, THE UNITED STATES UNDERTOOK TO PURCHASE THE PRIVATELY OWNED LANDS BORDERING ON THE NEAL MEANDER LINE WITH FUNDS TRANSFERRED TO THE DEPARTMENT OF AGRICULTURE UNDER THE APPROPRIATION TRANSFER ACCOUNT "3-8-03/5815 EMERGENCY CONSERVATION FUND ( TRANSFERRED FROM WAR TO AGRICULTURE, ACT OF MARCH 31, 1933).'

SUBSEQUENTLY, ON JUNE 14, 1935, A DECLARATION OF TAKING WAS FILED IN THE DISTRICT COURT, VESTING TITLE IN THE UNITED STATES TO 2,719.11 ACRES OF PRIVATELY-OWNED SURVEYED LANDS AND ALL RIGHT, TITLE, AND INTEREST, IF ANY, IN RELICTION LANDS ATTACHED THERETO. AT SUCH TIME, TITLE TO THE LAKEBED LANDS WAS CLAIMED BY THE UNITED STATES. NINE OF THE FORMER OWNERS INVOLVED PETITIONED THE COURT FOR THE MONEY ON DEPOSIT WITH THE COURT BUT FOUR OF THE FORMER OWNERS REQUESTED A HEARING CONCERNING THE GOVERNMENT'S APPRAISAL OF THEIR PROPERTY.

BEFORE SUCH HEARING WAS HELD, HOWEVER, THE UNITED STATES, ON DECEMBER 17, 1936, INSTITUTED ACTION AGAINST THE RIPARIAN OWNERS TO QUIET TITLE TO THE LAKEBED LANDS AND ON OCTOBER 2, 1944, A JUDGMENT WAS ENTERED BY WHICH THE LAKEBED WAS DIVIDED AND AS A RESULT THEREOF IT WAS FOUND THAT OF THE 47,843.10 ACRES IN THE LAKEBED, TITLE TO 23,949 ACRES WAS VESTED IN THE PRIVATE RIPARIAN OWNERS AND ADVERSE CLAIMANTS. BECAUSE OF THIS ACTION TO QUIET TITLE TO THE LAKEBED LANDS, AND FOR OTHER REASONS, IT WAS NOT UNTIL 1946 THAT A HEARING CONCERNING THE VALUE OF THE LAND IN THE FOUR CONTESTED CASES MENTIONED ABOVE WAS HELD AND A JUDGMENT RENDERED, IN WHICH THE COURT DETERMINED THE VALUE OF THE SURVEYED LANDS AND THE LAKEBED LANDS APPURTENANT THERETO. ALSO, WHILE THE FISH AND WILDLIFE SERVICE HAD THOUGHT THE RIGHTS OF THE OTHER NINE OWNERS INVOLVED IN THE 1935 DECLARATION OF TAKING HAD BEEN SETTLED, THE COURT INDICATED THAT THEY WERE ENTITLED TO COMPENSATION FOR 5,889 ACRES OF LAKEBED PROPERTY APPURTENANT TO THEIR LAND. THE JUDGMENT OF MAY 26, 1954, REPRESENTS A COMPROMISE SETTLEMENT EFFECTED BY THE DEPARTMENT OF JUSTICE AS TO THESE NINE OWNERS FOR THE VALUE OF THIS LAKEBED PROPERTY CONSISTING OF 5,889 ACRES.

SINCE THE LAND HERE INVOLVED IS PART OF THE SAME LAND INVOLVED IN THE DECLARATION OF TAKING FILED IN 1935 AND THE JUDGMENT OF MAY 26, 1954, IS MERELY A FINAL ADJUDICATION OF THE RIGHTS OF THE PARTIES TO SUCH PROCEEDINGS, I FIND NO BASIS FOR THE VIEW THAT THIS JUDGMENT CREATES A NEW OBLIGATION SO AS TO BE PAYABLE FROM THE APPROPRIATION "14X1953 MIGRATORY BIRD CONSERVATION ACCOUNT, FISH AND WILDLIFE SERVICE.' INSOFAR AS CONDEMNATION PROCEEDINGS ARE CONCERNED, THE RULE IS WELL ESTABLISHED THAT AN APPROPRIATION BECOMES OBLIGATED AT THE TIME THE ATTORNEY GENERAL IS REQUESTED TO INSTITUTE SUCH PROCEEDINGS RATHER THAN BY THE ACTUAL INSTITUTION THEREOF. SEE 17 COMP. GEN. 664. IN THIS CONNECTION AND WHILE UNDER SECTION 6 OF THE ACT OF MARCH 31, 1933, 48 STAT. 22, THE EMERGENCY CONSERVATION FUND WAS NOT AVAILABLE FOR OBLIGATION AFTER MARCH 31, 1953, THIS OFFICE HAS BEEN ADVISED INFORMALLY THAT THE DECLARATION OF TAKING FILED ON JUNE 14, 1935, WAS FILED PURSUANT TO A REQUEST MADE OF THE ATTORNEY GENERAL ON MARCH 27, 1935.

CONSEQUENTLY, PROVIDED SUFFICIENT FUNDS LAPSED AND WERE CARRIED TO THE SURPLUS FUND THROUGH THE USUAL CHANNELS, IT APPEARS THAT THE JUDGMENT IN QUESTION PROPERLY IS PAYABLE FROM THE APPROPRIATION " PAYMENT OF CERTIFIED CLAIMS" PURSUANT TO THE ACT OF JULY 6, 1949, 63 STAT. 407.