B-130831, MAY 16, 1974, 53 COMP GEN 872

B-130831: May 16, 1974

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WHICH COSTS HERETOFORE HAVE BEEN PAID FROM APPROPRIATED FUNDS. THE PROPOSED REQUIREMENT WHICH WOULD BE SET FORTH AS A PROVISION IN THE TIMBER SALE CONTRACT WITH THE COST TO THE TIMBER PURCHASER BEING OFFSET BY AN ALLOWANCE IN THE TIMBER APPRAISAL IS DESCRIBED IN THE FOLLOWING MANNER: ANY SURVEY REQUIREMENT IMPOSED UPON TIMBER PURCHASERS WOULD BE LIMITED TO LOCATING AND MARKING PROPERTY LINES BETWEEN ESTABLISHED CORNERS. MISSING CORNERS WOULD HAVE TO BE RE ESTABLISHED BEFORE ANY PROPERTY LINES CONTROLLED BY THOSE CORNERS WERE ELIGIBLE FOR TIMBER PURCHASER PARTICIPATION. AFTER THE SALE WAS SOLD. THE SURVEYING WOULD HAVE TO BE DONE BY LICENSED CADASTRAL SURVEYORS. THE ASSISTANT SECRETARY EXPLAINS THE NEED FOR REQUIRING TIMBER PURCHASERS TO CONDUCT THESE PROPERTY LINE SURVEYS AS FOLLOWS: LACK OF PROPERLY MARKED LANDLINES IS IMPEDING THE ORDERLY HARVEST AND MANAGEMENT OF TIMBER.

B-130831, MAY 16, 1974, 53 COMP GEN 872

TIMBER SALES - CONTRACTS - SURVEYS - COST RECOVERY PROPOSAL THAT FOREST SERVICE TIMBER SALE CONTRACTS REQUIRE TIMBER SALE PURCHASERS TO MAKE PROPERTY LINE SURVEYS TO ESTABLISH BOUNDARIES OF SALE, WITH COST THEREOF TO BE RECOVERED THROUGH REDUCED SALES PRICES, WHICH COSTS HERETOFORE HAVE BEEN PAID FROM APPROPRIATED FUNDS, WOULD, IN EFFECT, IMPROPERLY AUGMENT APPROPRIATED FUNDS BY USE OF TIMBER SALE RECEIPTS AND WOULD BE CONTRARY TO INTENT OF 16 U.S.C. 500 WHICH PROVIDES FOR PAYMENT TO STATES OF 25 PERCENT OF NATIONAL FOREST RECEIPTS DERIVED FROM SALES OF TIMBER WITHIN STATE BOUNDARIES.

IN THE MATTER OF THE ESTABLISHMENT OF SALE BOUNDARIES BY PURCHASER OF NATIONAL FOREST TIMBER, MAY 16, 1974:

THIS DECISION TO THE SECRETARY OF AGRICULTURE RESULTS FROM A REQUEST BY THE ASSISTANT SECRETARY FOR CONSERVATION, RESEARCH AND EDUCATION, DEPARTMENT OF AGRICULTURE, FOR OUR DECISION AS TO "WHETHER OR NOT THE FOREST SERVICE CAN REQUIRE TIMBER SALE PURCHASERS TO MAKE *** PROPERTY LINE SURVEYS" - BETWEEN CORNERS ESTABLISHED BY THE DEPARTMENT IN ORDER TO ESTABLISH THE BOUNDARIES OF THE PARTICULAR SALE. THE PROPOSED REQUIREMENT WHICH WOULD BE SET FORTH AS A PROVISION IN THE TIMBER SALE CONTRACT WITH THE COST TO THE TIMBER PURCHASER BEING OFFSET BY AN ALLOWANCE IN THE TIMBER APPRAISAL IS DESCRIBED IN THE FOLLOWING MANNER:

ANY SURVEY REQUIREMENT IMPOSED UPON TIMBER PURCHASERS WOULD BE LIMITED TO LOCATING AND MARKING PROPERTY LINES BETWEEN ESTABLISHED CORNERS. AS PART OF TIMBER SALE PREPARATION, THE FOREST SERVICE WOULD MAKE A SEARCH TO DETERMINE THE CONDITION OF CORNERS IN THE SALE AREA NEEDED TO ESTABLISH SALE BOUNDARIES. EXISTING CORNERS WOULD BE REMONUMENTED AS NECESSARY. MISSING CORNERS WOULD HAVE TO BE RE ESTABLISHED BEFORE ANY PROPERTY LINES CONTROLLED BY THOSE CORNERS WERE ELIGIBLE FOR TIMBER PURCHASER PARTICIPATION.

THE CORNER SEARCH WOULD PROVIDE THE BASIS FOR MAKING AN ACCURATE ESTIMATE OF THE COST OF SURVEYING AND MARKING WORK NECESSARY IN CONNECTION WITH PROPERTY BOUNDARY LOCATION ON THAT PARTICULAR TIMBER SALE. THROUGH USE OF PHOTOGRAMMETRY, LOCATION OF THE TENTATIVE BOUNDARY COULD BE LOCATED ON PHOTOGRAPHS, AND ON THE GROUND ACCURATELY ENOUGH TO PROCEED WITH CRUISING, OTHER SALE PREPARATION WORK, AND ADVERTISEMENT OF THE SALE. AFTER THE SALE WAS SOLD, THE TIMBER PURCHASER WOULD BE REQUIRED TO SURVEY AND MARK THE NEEDED LINES. THE SURVEYING WOULD HAVE TO BE DONE BY LICENSED CADASTRAL SURVEYORS. INSPECTION AND ACCEPTANCE OF THE SURVEYING AND MARKING OF THE LINES WOULD BE BY THE FOREST SERVICE. UPON COMPLETION OF THE SURVEY THE SALE VOLUME WOULD BE ADJUSTED ACCORDINGLY.

THE ASSISTANT SECRETARY EXPLAINS THE NEED FOR REQUIRING TIMBER PURCHASERS TO CONDUCT THESE PROPERTY LINE SURVEYS AS FOLLOWS:

LACK OF PROPERLY MARKED LANDLINES IS IMPEDING THE ORDERLY HARVEST AND MANAGEMENT OF TIMBER.

APPROPRIATIONS FOR LANDLINE LOCATION HAVE NOT BEEN SUFFICIENT TO KEEP CORNER SEARCH, LINE SURVEY AND MARKING ON PACE WITH RESOURCE ACTIVITIES.

DIVERSION OF OTHER RESOURCE FUNDS TO DO THE LANDLINE LOCATION JOB OFFERS ONLY A PARTIAL ANSWER. TIMBER FUNDS USED FOR THIS WORK REDUCE THE AMOUNT AVAILABLE FOR PREPARATION OF ADDITIONAL TIMBER SALES. TO DO A QUALITY JOB ON ALL SALES OTHER MEANS MUST BE EXPLORED. WE NEED TO CONSIDER WHETHER THE TIMBER SALE PURCHASER CAN ASSIST OUR LIMITED MANPOWER AND FUNDS TO ACCOMPLISH THE OBJECTIVE OF OFFERING MORE TIMBER.

IN FURTHER SUPPORT OF HIS PROPOSAL THE ASSISTANT SECRETARY ANALOGIZED THE REQUIREMENT THAT TIMBER PURCHASERS SURVEY AND MARK THE PROPERTY LINES NEEDED TO ESTABLISH THE BOUNDARIES OF A PARTICULAR SALE TO THE REQUIREMENT THAT TIMBER PURCHASERS CONSTRUCT THOSE ROADS NECESSARY TO SERVE THE PARTICULAR TIMBER SALE. THE ASSISTANT SECRETARY NOTED THAT PRIOR TO THE PASSAGE OF PUBLIC LAW 88-657 APPROVED OCTOBER 13, 1964, 78 STAT. 1089, 16 U.S.C. 532-536, SPECIFICALLY AUTHORIZING SUCH A REQUIREMENT AS TO CONSTRUCTION OF NECESSARY ROADS, THIS WAS LONG RECOGNIZED AS BEING A PROPER REQUIREMENT IN A TIMBER SALES CONTRACT. IN THIS CONNECTION TWO FORMER DECISIONS OF OUR OFFICE WERE CITED, B 65972, MAY 19, 1947, AND B- 130831, FEBRUARY 7, 1958.

THE BASIC STATUTORY AUTHORITY FOR THE SALE OF NATIONAL FOREST TIMBER IS CONTAINED IN THE ACT OF JUNE 4, 1897, 30 STAT. 35, AS AMENDED, 16 U.S.C. 476, WHICH PROVIDES IN PERTINENT PART AS FOLLOWS:

FOR THE PURPOSE OF PRESERVING THE LIVING AND GROWING TIMBER AND PROMOTING THE YOUNGER GROWTH ON NATIONAL FORESTS, THE SECRETARY OF AGRICULTURE, UNDER SUCH RULES AND REGULATIONS AS HE SHALL PRESCRIBE, MAY CAUSE TO BE DESIGNATED AND APPRAISED SO MUCH OF THE DEAD, MATURED, OR LARGE GROWTH OF TREES FOUND UPON SUCH NATIONAL FORESTS AS MAY BE COMPATIBLE WITH THE UTILIZATION OF THE FORESTS THEREON, AND MAY SELL THE SAME FOR NOT LESS THAN THE APPRAISED VALUE IN SUCH QUANTITIES TO EACH PURCHASER AS HE SHALL PRESCRIBE. ***PAYMENTS FOR SUCH TIMBER TO BE MADE TO THE RECEIVER OF THE LOCAL LAND OFFICE OF THE DISTRICT WHEREIN SAID TIMBER MAY BE SOLD, *** AND THE MONEYS ARISING THEREFROM SHALL BE ACCOUNTED FOR BY THE RECEIVER OF SUCH LAND OFFICE TO THE SECRETARY OF AGRICULTURE, IN A SEPARATE ACCOUNT, AND SHALL BE COVERED INTO THE TREASURY. ***

WHILE WE DID NOT QUESTION ROAD CONSTRUCTION NECESSARY FOR TIMBER PURCHASERS TO GET TIMBER OUT, EACH OF THE DECISIONS REFERRED TO BY THE ASSISTANT SECRETARY CONCERNED THE CONSTRUCTION OF ACCESS ROADS TO STANDARDS HIGHER THAN THOSE NECESSARY TO SERVE THE PARTICULAR TIMBER SALE. WE CONCLUDED THAT THE ADDITIONAL COST OF CONSTRUCTING ROADS TO HIGHER STANDARDS COULD NOT BE FINANCED THROUGH A REDUCTION IN TIMBER SALE RECEIPTS.

IN ANY EVENT WHILE IT IS TRUE THAT STATUTORY AUTHORITY WAS NOT PROVIDED FOR ROAD CONSTRUCTION BY TIMBER PURCHASERS UNTIL ENACTMENT OF PUBLIC LAW 88-657, SUCH FUNDING PRACTICE HAD BEEN RECOGNIZED BY THE CONGRESS AND SUCH MATTER APPARENTLY HAD BEEN TAKEN INTO CONSIDERATION IN DETERMINING THE ANNUAL APPROPRIATIONS NEEDED TO ADMINISTER THE NATIONAL FORESTS. HOWEVER, WITH REGARD TO SURVEYS NEEDED TO DETERMINE TIMBER SALE BOUNDARIES, IT APPEARS THAT SUCH SURVEYS HERETOFORE HAVE BEEN FINANCED SOLELY FROM APPROPRIATIONS MADE THEREFOR. CONSEQUENTLY, TO NOW FINANCE SUCH COSTS THROUGH REDUCTIONS IN THE PRICE OF THE TIMBER SALE WOULD IMPROPERLY AUGMENT SUCH APPROPRIATIONS AND WOULD, IN EFFECT, CIRCUMVENT THE REQUIREMENT OF 16 U.S.C. 476 THAT PAYMENTS FOR THE TIMBER BE DEPOSITED INTO THE TREASURY.

FURTHERMORE, ALTHOUGH PUBLIC LAW 88-657 AUTHORIZED CONSTRUCTION OF MAXIMUM ECONOMY ROADS THAT COULD BE USED FOR PURPOSES OTHER THAN THE INITIAL TIMBER SALE, SUCH ADDITIONAL COSTS WERE TO BE BORNE FROM APPROPRIATED FUNDS IN THAT IT SPECIFICALLY PROVIDES THAT - "*** WHERE ROADS OF A HIGHER STANDARD THAN THAT NEEDED IN THE HARVESTING AND REMOVAL OF THE TIMBER AND OTHER PRODUCTS COVERED BY THE PARTICULAR SALE ARE TO BE CONSTRUCTED, THE PURCHASER OF THE NATIONAL FOREST TIMBER AND OTHER PRODUCTS SHALL NOT BE REQUIRED TO BEAR THAT PART OF THE COSTS NECESSARY TO MEET SUCH HIGHER STANDARD AND THE SECRETARY IS AUTHORIZED TO MAKE SUCH ARRANGEMENTS TO THIS END AS MAY BE APPROPRIATE." SEE 16 U.S.C. 535.

THE PURPOSE OF THE ABOVE LANGUAGE IS EXPLAINED ON PAGE 6 OF HOUSE REPORT NO. 1920, 88TH CONGRESS, AS FOLLOWS:

THERE IS A PROVISO IN THE SECTION THAT IF A ROAD IS TO BE BUILT TO A STANDARD HIGHER THAN THAT NEEDED FOR REMOVAL OF TIMBER OR OTHER PRODUCTS FROM A PARTICULAR SALE, THAT NEITHER THE TIMBER NOR OTHER PRODUCTS SHALL BEAR ANY OF THE COSTS ATTRIBUTABLE TO THE HIGHER STANDARD.

(IT) ALSO MAKES IT CLEAR THAT SUCH REQUIREMENTS WILL NOT HAVE THE EFFECT OF REDUCING THE 25 PERCENT OF NATIONAL FOREST RECEIPTS PAID ANNUALLY TO THE STATES TO BE EXPENDED FOR ROADS AND SCHOOLS FOR THE BENEFIT OF THE COUNTIES IN WHICH THE NATIONAL FORESTS ARE LOCATED.

THE REQUIREMENT THAT A PORTION OF SALES RECEIPTS BE PAID TO THE STATES, REFERRED TO ABOVE, IS CONTAINED IN THE ACT OF MAY 23, 1908, 35 STAT. 260, AS AMENDED, 16 U.S.C. 500, WHICH PROVIDES IN PERTINENT PART THAT -

TWENTY-FIVE PER CENTUM OF ALL MONEYS RECEIVED DURING ANY FISCAL YEAR FROM EACH NATIONAL FOREST SHALL BE PAID, AT THE END OF SUCH YEAR, BY THE SECRETARY OF THE TREASURY TO THE STATE IN WHICH SUCH NATIONAL FOREST IS SITUATED, TO BE EXPENDED AS THE STATE LEGISLATURE MAY PRESCRIBE FOR THE BENEFIT OF THE PUBLIC SCHOOLS AND PUBLIC ROADS OF THE COUNTY OR COUNTIES IN WHICH SUCH NATIONAL FORESTS IS SITUATED ***.

CONSEQUENTLY, AND IN ADDITION TO THE OBJECTION PREVIOUSLY STATED, THE LANGUAGE OF 16 U.S.C. 500, AS WELL AS THE CLEARLY EXPRESSED INTENT TO PRESERVE MAXIMUM MONETARY RETURN TO THE STATES IN ACCORDANCE WITH THE PROVISIONS OF THAT SECTION FURTHER INDICATE THAT THE PROPOSED CONTRACT REQUIREMENT WOULD BE IMPROPER.

ACCORDINGLY, WE MUST CONCLUDE THAT UNDER EXISTING LAW THERE EXISTS NO AUTHORITY FOR FINANCING THE COST OF PROPERTY LINE SURVEYS - BETWEEN ESTABLISHED CORNERS - NEEDED TO ESTABLISH THE BOUNDARIES OF TIMBER SALES THROUGH A REDUCTION IN THE APPRAISED VALUE OF THE TIMBER.