B-133846, JANUARY 16, 1958, 37 COMP. GEN. 472

B-133846, JANUARY 16, 1958, 37 COMP. GEN. 472

APPROPRIATIONS - AVAILABILITY - OBJECTS OTHER THAN AS SPECIFIED - PARTICULAR APPROPRIATION NOT DESIGNATED THE USE OF FOREST ROADS AND TRAILS APPROPRIATIONS FOR CONSTRUCTION AND MAINTENANCE OF AIRCRAFT LANDING FIELDS FOR NATIONAL FOREST PURPOSES RATHER THAN FOR ROADS AND TRAILS PURPOSES IN AN AMOUNT AUTHORIZED UNDER SECTION 201 OF THE DEPARTMENT OF THE INTERIOR AND RELATED AGENCIES APPROPRIATION ACT, 1958, FOR EXPENDITURE FROM APPROPRIATIONS AVAILABLE TO THE FOREST SERVICE, WOULD BE LEGALLY OBJECTIONABLE AS THE USE OF APPROPRIATIONS FOR AN OBJECT OTHER THAN FOR WHICH THE APPROPRIATION WAS MADE, AND THE MERE FACT THAT THERE WAS DISCLOSED AT CONGRESSIONAL HEARINGS AN ADMINISTRATIVE INTENT TO USE ROADS AND TRAILS FUNDS RATHER THAN FOREST SERVICE OR FOREST SERVICE PROTECTION FUNDS DOES NOT, IN THE ABSENCE OF SPECIFIC AUTHORITY, ESTABLISH CONGRESSIONAL SANCTION FOR THE USE OF SUCH FUNDS.

TO THE SECRETARY OF AGRICULTURE, JANUARY 16, 1958:

ON SEPTEMBER 18, 1957, THE ACTING SECRETARY OF AGRICULTURE REQUESTED OUR DECISION ON THE DEPARTMENT'S PROPOSAL TO USE THE APPROPRIATION FOR THE FOREST SERVICE FOR " FOREST ROADS AND ILS," CONTAINED IN TITLE II OF THE DEPARTMENT OF THE INTERIOR AND RELATED AGENCIES APPROPRIATION ACT, 1958, PUBLIC LAW 85-77, APPROVED JULY 1, 1957, 71 STAT. 268, FOR THE CONSTRUCTION AND MAINTENANCE OF ANY AIRCRAFT LANDING FIELD IN, OR ADJACENT TO, THE NATIONAL FORESTS IN AN AMOUNT NOT TO EXCEED $250,000, IN VIEW OF THE PROVISIONS OF SECTION 201 OF THE ACT. THAT ACT PROVIDES IN PERTINENT PART, AS FOLLOWS:

SEC. 201. APPROPRIATIONS AVAILABLE TO THE FOREST SERVICE FOR THE CURRENT FISCAL YEAR SHALL BE AVAILABLE FOR: * * * (C) MAINTENANCE, IMPROVEMENT, AND CONSTRUCTION OF AIRCRAFT LANDING FIELDS IN, OR ADJACENT TO, THE NATIONAL FORESTS, IN AN AMOUNT NOT TO EXCEED $250,000 * * *.

THE ACTING SECRETARY OF AGRICULTURE CITES ANOTHER APPROPRIATION FOR THE FOREST SERVICE CONTAINED IN THE REFERRED-TO APPROPRIATION ACT, NAMELY," FOREST PROTECTION AND UTILIZATION.' HE SAYS THAT WHILE THE DEPARTMENT CONSIDERS BOTH OF THESE APPROPRIATIONS TO BE AVAILABLE FOR CONSTRUCTION OF AIRFIELDS, SUBJECT TO THE $250,000 EXPENDITURE CEILING THEREON, IT IS AUTHORIZED TO EXPEND THE ENTIRE SUM FROM THE " FOREST ROADS AND TRAILS" APPROPRIATION FOR THE CONSTRUCTION AND MAINTENANCE OF ANY AIRCRAFT LANDING FIELD WITHOUT REGARD TO THE FOREST SERVICE PROGRAMS PROVIDED FOR UNDER THE RESPECTIVE APPROPRIATIONS.

IN SUPPORT OF THAT VIEW HE REFERS TO THE DEPARTMENT OF AGRICULTURE APPROPRIATION ACT, 1954, 67 STAT. 205, WHEREIN AT PAGE 212 LANGUAGE SUBSTANTIALLY THE SAME AS THE ABOVE-QUOTED PROVISION FIRST APPEARED UNDER THE APPROPRIATION " SALARIES AND EXPENSES, FOREST SERVICE.' WITH REFERENCE THERETO THE LETTER QUOTES CERTAIN STATEMENTS MADE BY THE DEPARTMENT, DURING THE HEARINGS HELD BY THE CONGRESSIONAL SUBCOMMITTEES ON AGRICULTURE APPROPRIATIONS ( HOUSE HEARINGS PAGES 2145-2146; SENATE HEARINGS PAGE 937), IN EXPLANATION OF THE INCLUSION OF THE APPROPRIATION LANGUAGE, AS FOLLOWS:

THE LAST THREE LINES OF THE NEW PROVISION ON PAGE 71 PROPOSE LANGUAGE TO PERMIT THE FOREST SERVICE TO TAKE ESSENTIAL ACTION TO MAINTAIN, IMPROVE, AND CONSTRUCT AIRPLANE LANDING FIELDS. THE FOREST SERVICE HAS 112 SMALL AIRPLANE LANDING STRIPS. . . . SINCE THEIR CONSTRUCTION, AIRSTRIPS HAVE BECOME INCREASINGLY IMPORTANT, ESPECIALLY FOR FIRE PROTECTION, AND FOR THIS PURPOSE ARE A VITAL PART OF THE BASIC TRANSPORTATION SYSTEM OF THE FOREST SERVICE.

. . . THUS TO PROTECT LIFE, TO PROVIDE FOR EFFICIENT PROTECTION OF ADJACENT TIMBERLANDS FROM FIRE . . . IT IS ESSENTIAL THAT AUTHORIZATION BE PROVIDED FOR MAINTENANCE, IMPROVEMENT, AND CONSTRUCTION OF AIRSTRIPS.

IT IS IMPORTANT THAT LANDING FIELDS, WHICH ARE BUT ANOTHER TYPE OF TRANSPORTATION FACILITY, BE ESTABLISHED AT STRATEGIC LOCATIONS TO FURNISH EFFECTIVE PROTECTION TO INACCESSIBLE REMOTE AREAS. SINCE THE USE OF LANDING FIELDS IS IN LIEU OF OTHER MEANS OF TRANSPORTATION, THE MAJOR PORTION OF THE OBLIGATIONS UNDER THIS AUTHORITY WOULD BE FROM THE " FOREST ROADS AND TRAILS" APPROPRIATION. THERE ARE OTHER SO CALLED WILDERNESS AREAS IN WHICH ROADS WILL NEVER BE BUILT. WHEN FOREST FIRES OCCUR IN SUCH AREAS, IT IS OFTEN NECESSARY TO WALK FIREFIGHTERS FROM TEN TO THIRTY-FIVE MILES OVER STEEP TRAILS TO REACH THE LOCATION OF THE FIRES. UNDER SUCH CONDITIONS OF DELAYED ATTACK, FIRES GROW LARGE AND THE COST OF SUPPRESSION IS EXTREMELY HIGH. LANDING FIELDS IN SUCH AREAS MAKE IT POSSIBLE TO SPEED UP CREW TRAVEL, THUS APPRECIABLY REDUCING THE COST OF FIRE SUPPRESSION. ITALICS SUPPLIED.)

THE DOUBT AS TO THE PROPRIETY OF THE PROPOSED USE OF THE " FOREST ROADS AND TRAILS" APPROPRIATION IS SAID TO ARISE BY REASON OF THE LANGUAGE IN SECTION 23 AND 23 (A) OF THE FEDERAL HIGHWAY ACT APPROVED NOVEMBER 9, 1921, AS AMENDED, 23 U.S.C. 23, 23 (A) "FOR THE SURVEY, CONSTRUCTION, RECONSTRUCTION, AND MAINTENANCE OF FOREST ROADS AND TRAILS," WHICH LANGUAGE IS INCLUDED IN AND CONSTITUTES THE STATUTORY BASIS FOR THE APPROPRIATION UNDER CONSIDERATION. THIS PROVISION, IT IS SUGGESTED, MIGHT BE CONSTRUED AS AUTHORIZING THE USE OF ROADS AND TRAILS FUNDS ONLY FOR CONSTRUCTION OF LANDING FIELDS FOR USE IN CONSTRUCTING AND MAINTAINING ROADS AND TRAILS. THAT IS TO SAY, IT WOULD BE PROPER TO USE ROADS AND TRAILS FUNDS FOR CONSTRUCTION OF AN AIRSTRIP IF AIR TRANSPORTATION APPEARED TO BE THE MOST ECONOMICAL MEANS OF SUPPLYING LAB SUPPLIES, AND MATERIALS TO A ROAD CONSTRUCTION PROJECT IN AN ISOLATED SECTION, BUT NOT OTHERWISE. AS OPPOSED TO THAT VIEW, YOUR DEPARTMENT TAKES THE POSITION THAT THE QUOTED PROVISION OF SECTION 201 HAS THE EFFECT OF CHANGING THE TERMS OF AVAILABILITY OF THE APPROPRIATION FOR ROADS AND TRAILS AS AUTHORIZED BY THE BASIC ACT. ALSO, THAT THE LITERAL IMPORT OF THE PROVISION IS NOT LIMITED IN ITS APPLICATION; AND THAT ITS REFERRED-TO LEGISLATIVE HISTORY MAKES IT CLEAR THAT IT WAS THE DEPARTMENT'S INTENTION TO USE ROADS AND TRAILS FUNDS FOR THE CONSTRUCTION OF AIRFIELDS WITHOUT REGARD TO THE FOREST SERVICE PROGRAM IN CONNECTION WITH WHICH THE AIRFIELDS ARE TO BE USED.

IT IS FUNDAMENTAL THAT THE APPROPRIATIONS PROVIDED BY THE CONGRESS TO THE FEDERAL AGENCIES TO CARRY OUT THEIR STATUTORY DUTIES AND RESPONSIBILITIES MAY BE USED ONLY FOR THE OBJECTS FOR WHICH THEY ARE APPROPRIATED AND FOR NO OTHERS. SECTION 3678, REVISED STATUTES, 31 U.S.C. 628. THE PURPOSES FOR WHICH " FOREST ROADS AND TRAILS" FUNDS MAY BE USED ARE SET FORTH IN DETAIL IN THE CITED DEPARTMENT OF THE INTERIOR AND RELATED AGENCIES APPROPRIATION ACT, 1958, AS FOLLOWS:

FOR EXPENSES NECESSARY FOR CARRYING OUT THE PROVISIONS OF SECTION 23 OF THE FEDERAL HIGHWAY ACT APPROVED NOVEMBER 9, 1921, AS AMENDED (23 U.S.C. 23, 23A), RELATING TO FOREST DEVELOPMENT ROADS AND TRAILS, INCLUDING THE CONSTRUCTION, RECONSTRUCTION, AND MAINTENANCE OF ROADS AND TRAILS ON EXPERIMENTAL AREAS UNDER FOREST SERVICE ADMINISTRATION, $24,336,000, TO REMAIN AVAILABLE UNTIL EXPENDED: PROVIDED, THAT FUNDS AVAILABLE UNDER THE ACT OF MARCH 4, 1913 (16 U.S.C. 501), SHALL BE MERGED WITH AND MADE A PART OF THIS APPROPRIATION: PROVIDED FURTHER, THAT NOT LESS THAN THE AMOUNT MADE AVAILABLE UNDER THE PROVISIONS OF THE ACT OF MARCH 4, 1913, SHALL BE EXPENDED UNDER THE PROVISIONS OF SUCH ACT.

NO PROVISION APPEARS IN THE VARIOUS AUTHORIZATIONS UNDER THIS APPROPRIATION OR IN SECTION 201 QUOTED ABOVE, WHICH EITHER EXPRESSLY OR BY REASONABLE IMPLICATION AUTHORIZES THE USE OF SUCH FUNDS FOR THE MAINTENANCE, IMPROVEMENT, AND CONSTRUCTION OF AIRCRAFT LANDING FIELDS THAT ARE NOT DIRECTLY CONNECTED WITH AND NECESSARY TO THE EFFECTIVE ACCOMPLISHMENT OF THE PURPOSES FOR WHICH THE ROADS AND TRAILS FUNDS ARE PROVIDED. CONSEQUENTLY, THE USE OF THE FUNDS ON ACTIVITIES BEYOND THE SCOPE OF ITS INTENDED PURPOSES, IN THE ABSENCE OF SPECIFIC AUTHORITY THEREFOR, CLEARLY WOULD BE CONTRARY TO LAW.

WE HAVE CAREFULLY CONSIDERED, IN THIS CONNECTION, THE BELIEF EXPRESSED IN THE LETTER TO THE EFFECT THAT THERE IS STATUTORY AUTHORITY FOR USING ROADS AND TRAILS FUNDS TO MAINTAIN AND CONSTRUCT AIRFIELDS THAT ARE NECESSARY TO THE PROPER PERFORMANCE OF ACTIVITIES PROVIDED FOR UNDER THE APPROPRIATION " FOREST PROTECTION AND UTILIZATION.' HOWEVER, THE MERE FACT THAT THERE HAS BEEN DISCLOSED TO THE CONGRESSIONAL SUBCOMMITTEES ON AGRICULTURE APPROPRIATIONS AN ADMINISTRATIVE INTENT TO OBLIGATE THE MAJOR PORTION OF THE FOREST SERVICE FUNDS AUTHORIZED TO BE EXPENDED FOR AIRFIELD PURPOSES FROM THE ROADS AND TRAILS APPROPRIATION, AND THAT IT HAS NOT BEEN OBJECTED TO, DOES NOT NECESSARILY REQUIRE THE CONCLUSION THAT SUCH ACTION HAS BEEN AUTHORIZED AND APPROVED BY THE CONGRESS OR THAT THIS APPROPRIATION HAS BEEN MADE ON THAT BASIS. ESPECIALLY IS THIS SO WHERE, AS HERE, IT APPEARS FROM THE PRINTED CONGRESSIONAL HEARINGS AND DEBATES THAT NO MEMBER OF THE SUBCOMMITTEES ON AGRICULTURE APPROPRIATIONS COMMENTED UPON SUCH USE OF THE ROADS AND TRAILS FUNDS.

THE QUOTED SECTION 201--- BY ITS SPECIFIC TERMS--- AUTHORIZES PROPER EXPENDITURES LIMITED TO $250,000 FOR MAINTENANCE, IMPROVEMENT, AND CONSTRUCTION OF AIRCRAFT LANDING FIELDS IN, OR ADJACENT TO, THE NATIONAL FORESTS. WHILE IT OPERATES UPON ALL "APPROPRIATIONS AVAILABLE TO THE FOREST SERVICE" ITS APPLICATION MUST BE LIMITED TO THE EXTENT THAT SUCH EXPENDITURES ARE REASONABLY CONNECTED WITH AND INCIDENT TO THE ACCOMPLISHMENT OF THE PURPOSES FOR WHICH THE INDIVIDUAL APPROPRIATIONS WERE MADE.

WE OBSERVE THAT IN ACCORDANCE WITH THE TERMS OF 5 U.S.C. 78 (D), THE BUDGET FOR THE FISCAL YEAR 1958, AT PAGE 416, SETS FORTH A STATEMENT OF PROPOSED OBLIGATIONS TO BE INCURRED BY THE FOREST SERVICE FOR THE PURCHASE, MAINTENANCE AND OPERATION OF AIRCRAFT, AND THAT IT WAS REPRESENTED THAT ALL SUCH EXPENDITURES WOULD BE MADE FROM THE APPROPRIATION " FOREST PROTECTION AND UTILIZATION.' IT REASONABLY FOLLOWS THAT THE CONGRESS, IN PROVIDING FUNDS FOR SUCH OBJECTS OF EXPENDITURE UNDER THE FOREST PROTECTION AND UTILIZATION APPROPRIATION, CONTEMPLATED THAT EXPENDITURES FOR MAINTENANCE AND CONSTRUCTION OF AIRFIELDS IDENTIFIED WITH THE USE OF AIRCRAFT IN CARRYING OUT THE PROGRAMS FUNDED UNDER THIS APPROPRIATION WOULD ALSO BE CHARGED THERETO. TO JUSTIFY THE CONCLUSION THAT FOREST ROADS AND TRAILS FUNDS ARE AVAILABLE FOR USE IN CONNECTION WITH THE CONSTRUCTION OF AIRFIELDS PERTAINING TO THE ACTIVITIES OF THE FOREST PROTECTION AND UTILIZATION APPROPRIATION, WE BELIEVE THAT THE INTENTION OF THE CONGRESS TO PROVIDE THEREFOR SHOULD BE CLEARLY EXPRESSED.

FOR THE FOREGOING REASONS, WE CONCLUDE THAT THE PROPOSED USE OF THE APPROPRIATION " FOREST ROADS AND TRAILS" AS OUTLINED ABOVE IS LEGALLY OBJECTIONABLE AND, THEREFORE, MAY NOT BE APPROVED.