B-127767, JUN. 5, 1956

B-127767, JUN. 5, 1956

TO THE SECRETARY OF THE INTERIOR:

REFERENCE IS MADE TO LETTER DATED APRIL 30, 1956, FROM THE ADMINISTRATIVE ASSISTANT SECRETARY OF THE INTERIOR, REQUESTING ADVICE AS TO WHETHER WE WOULD FEEL COMPELLED TO RAISE ANY QUESTION WITH RESPECT TO THE RECEIPT AND EXPENDITURE OR TRANSFER BY YOUR DEPARTMENT OF FUNDS FURNISHED BY THE IDAHO POWER COMPANY OF BOISE, IDAHO, IN ACCORDANCE WITH THE PROVISIONS OF AN ARTICLE INCORPORATED AT THE SUGGESTION OF YOUR DEPARTMENT IN THE LICENSE ISSUED TO THAT COMPANY BY THE FEDERAL POWER COMMISSION FOR PROJECTS NOS. 1971, 2132, AND 2133 ON THE SNAKE RIVER.

IT APPEARS THAT, PURSUANT TO AUTHORITY VESTED IN THE FEDERAL POWER COMMISSION BY 16 U.S.C. 803, TO MODIFY PLANS FOR PROPOSED POWER PROJECTS SO THAT THE PROJECT SHOULD BE SUCH AS IN ITS JUDGMENT WILL BE BEST ADAPTED TO A COMPREHENSIVE PLAN FOR IMPROVING A WATERWAY FOR THE USE OF COMMERCE, FOR THE IMPROVEMENTS AND UTILIZATION OF WATER-POWER DEVELOPMENT "AND FOR OTHER BENEFICIAL PUBLIC S," AND UNDER ITS AUTHORITY UNDER 16 U.S.C. 799 TO ISSUE LICENSES CONDITIONED UPON THE ACCEPTANCE OF THE LICENSES OF TERMS AND CONDITIONS AS IT SHALL PRESCRIBE, THE COMMISSION INCORPORATED INTO THE LICENSE GRANTED TO THE IDAHO POWER COMPANY THE ARTICLE IN QUESTION. SUCH ARTICLE WAS SUGGESTED BY YOUR DEPARTMENT IN CARRYING OUT ITS RESPONSIBILITIES UNDER THE ACT OF MARCH 10, 1934, 48 STAT. 401, AS AMENDED, 16 U.S.C. 662, PROVIDING GENERALLY THAT AGENCIES OF THE UNITED STATES OR PRIVATE AGENCIES OPERATING UNDER FEDERAL PERMITS IMPOUNDING OR CONTROLLING ANY STREAM OR BODY OF WATER SHALL CONSULT WITH THE FISH AND WILDLIFE SERVICE AND THE STATE CONSERVATION AUTHORITIES IN THE STATE AFFECTED WITH A VIEW OF PREVENTING LOSS OR DAMAGE TO WILDLIFE RESOURCES AND MAKING THE MEANS OF PREVENTING SUCH LOSSES AN INTEGRAL PART OF THE COST OF THE PROJECT.

THE ARTICLE IS AS FOLLOWS:

"ARTICLE 34. THE LICENSEE SHALL MAKE AVAILABLE TO THE SECRETARY OF THE INTERIOR, UPON HIS REQUEST AND FURTHER ORDER OF THE COMMISSION, A SUM UP TO $250.000 FOR USE BY THE FISH AND WILDLIFE SERVICE TO CARRY OUT DETAILED STUDIES OF THE EXTENT AND CHARACTER OF THE FISHERY RESOURCE OF THE PROJECT AREAS AND TO DEVISE MEANS AND MEASURES FOR MITIGATING LOSSES TO THAT RESOURCE.'

IN GENERAL, ANY GOVERNMENT AGENCY RECEIVING FUNDS FOR THE USE OF THE UNITED STATES OTHER THAN BY AN APPROPRIATION FROM THE CONGRESS IS REQUIRED TO DEPOSIT THE SAME INTO THE TREASURY AS MISCELLANEOUS RECEIPTS IN THE ABSENCE OF SPECIFIC LEGISLATIVE AUTHORIZATION TO THE CONTRARY. 31 U.S.C. 484 AND 487. THE USE OF SUCH FUNDS WITHOUT SPECIFIC AUTHORITY WOULD CONSTITUTE AN UNLAWFUL AUGMENTATION OF THE AGENCY'S APPROPRIATIONS. HOWEVER, SECTION 1 OF THE ACT OF MARCH 10, 1934, 48 STAT. 401, AS AMENDED, 16 U.S.C. 661, AUTHORIZES THE SECRETARY OF THE INTERIOR, THROUGH THE FISH AND WILDLIFE SERVICE,"TO PROVIDE ASSISTANCE TO, AND COOPERATE WITH, FEDERAL, STATE, AND PUBLIC OR PRIVATE AGENCIES AND ORGANIZATIONS IN THE DEVELOPMENT, PROTECTION, REARING, AND STOCKING OF ALL SPECIES OF WILDLIFE, RESOURCES THEREOF, AND THEIR HABITAT, IN CONTROLLING LOSSES OF THE SAME FROM DISEASE OR OTHER CAUSES, IN MINIMIZING DAMAGES FROM OVERABUNDANT SPECIES, IN PROVIDING PUBLIC SHOOTING AREAS" AND IN CARRYING OUT OTHER MEASURES NECESSARY TO EFFECTUATE THE PURPOSES OF THE ACT. ALSO, THE ACT OF JULY 24, 1919, 41 STAT. 270, 5 U,S.C. 563 AND 564, WHICH PROVIDES THAT MONEYS CONTRIBUTED BY OUTSIDE SOURCES, INCLUDING BUSINESS ORGANIZATIONS, IN CONNECTION WITH COOPERATIVE ACTIVITIES OF THE DEPARTMENT OF AGRICULTURE SHALL BE PAID ONLY THROUGH THE SECRETARY OR COOPERATING ORGANIZATIONS, AUTHORIZES THE PAYMENT OF SALARIES OF OFFICIALS AND EMPLOYEES OF THE DEPARTMENT ENGAGED IN SUCH COOPERATIVE ACTIVITIES, IN WHOLE OR IN PART OUT OF SUCH CONTRIBUTED FUNDS. THE INTERIOR DEPARTMENT APPROPRIATION ACT, 1943, 56 STAT. 558, RENDERED THE PROVISIONS OF THE ACT OF JULY 24, 1919, SPECIFICALLY APPLICABLE TO "COOPERATIVE WORK CONDUCTED BY THE FISH AND WILDLIFE SERVICE.' THUS, THE SECRETARY OF THE INTERIOR, THROUGH THE FISH AND WILDLIFE SERVICE, IS AUTHORIZED TO "COOPERATE" WITH "PUBLIC OR PRIVATE ORGANIZATIONS" AND "BUSINESS ORGANIZATIONS" IN THE DEVELOPMENT AND PROTECTION OF FISH AND WILDLIFE AND RESOURCES THEREOF, AND IN CONNECTION WITH SUCH "COOPERATION" TO ACCEPT AND DISBURSE CONTRIBUTIONS OF MONEY FROM THE "COOPERATING" PARTY.

THE IDAHO POWER COMPANY WOULD APPEAR TO CONSTITUTE A PRIVATE OR BUSINESS ORGANIZATION AND THE PROPOSED CONTRIBUTION IS STATED TO BE FOR THE PURPOSE OF DEVELOPING AND PROTECTING WILDLIFE RESOURCES. INFORMAL ADVICE HAS BEEN RECEIVED FROM YOUR DEPARTMENT THAT THE FISH AND WILDLIFE SERVICE WILL FURNISH IN ADDITION TO THE WORK TO BE PERFORMED WITH THE FUNDS FROM THE POWER COMPANY, CERTAIN OF ITS EMPLOYEES WHO WILL WORK UNDER ITS OWN SUPERVISION AND CONTROL AND BE PAID FROM ITS OWN APPROPRIATED FUNDS. WERE FURTHER ADVISED THAT THE MAJOR PORTION OF THE COMPANY'S CONTRIBUTION WILL BE TRANSFERRED TO AND EXPENDED BY THE AFFECTED CONSERVATION AGENCIES OF OREGON, IDAHO AND WASHINGTON, AND THAT THE ENTIRE AMOUNT WILL BE INCLUDED IN YOUR BUDGET PRESENTATION TO THE CONGRESS.

ACCORDINGLY AND IN VIEW OF THE INFORMATION THAT THE SERVICE, THE AFFECTED STATE CONSERVATION AGENCIES AND THE POWER COMPANY HAVE JOINTLY AGREED ON THE NECESSARY PROGRAM OF INVESTIGATION, WE WILL NOT BE REQUIRED TO RAISE ANY QUESTION WITH RESPECT TO THE AUTHORITY OF YOUR DEPARTMENT TO RECEIVE AND TO MAKE PROPER EXPENDITURES FROM, OR TRANSFERS OF, THE FUNDS PROVIDED BY THE IDAHO POWER COMPANY.