B-136065, SEPTEMBER 3, 1958, 38 COMP. GEN. 178

B-136065: Sep 3, 1958

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DUE TO THE DIFFERENCE IN THE FINANCIAL BENEFITS ACCORDED UNDER THE ACTS TO THE RESPECTIVE COUNTIES IN WHICH THE LANDS ARE LOCATED. IN THE ABSENCE OF ANY AUTHORITY IN TITLE III OF THE BANKHEAD-JONES FARM TENANT ACT FOR THE USE OF GRAZING FEES FOR RANGE IMPROVEMENTS AS IS CONTAINED IN THE TAYLOR GRAZING ACT. IT IS STATED THAT THE LANDS ARE LOCATED IN CALIFORNIA (4. IT IS SAID. HAS SUGGESTED AND BOTH DEPARTMENTS ARE IN AGREEMENT THAT THE TRANSFER OF THESE LANDS TO THE DEPARTMENT OF THE INTERIOR FOR ADMINISTRATION WOULD BE IN THE PUBLIC INTEREST. IT IS FURTHER STATED THAT: THE PROPOSED DRAFT ORDER WOULD TRANSFER THE LU PROJECT LANDS TO THE DEPARTMENT OF THE INTERIOR . IT IS THE PRESENT INTENT OF THIS DEPARTMENT THAT THE MAJOR PORTION OF THE TRANSFERRED LANDS LOCATED WITHIN OR ADJACENT TO BUREAU OF LAND MANAGEMENT GRAZING DISTRICTS IN MONTANA AND NEW MEXICO SHALL BE ADMINISTERED IN ACCORDANCE WITH SECTION 3 OF THE TAYLOR GRAZING ACT.

B-136065, SEPTEMBER 3, 1958, 38 COMP. GEN. 178

PUBLIC LANDS - TRANSFER - BETWEEN DEPARTMENTS - GRAZING FEE USE - AUTHORITY PUBLIC LANDS ACQUIRED UNDER TITLE III OF THE BANKHEAD-JONES FARM TENANT ACT, 7 U.S.C. 1010, AND ADMINISTERED BY THE SECRETARY OF AGRICULTURE MAY, PURSUANT TO THE EXPRESS AUTHORITY IN SECTION 32 (C) OF THE ACT, 7 U.S.C. 1011C, BE TRANSFERRED TO THE DEPARTMENT OF INTERIOR FOR USE AND ADMINISTRATION UNDER THE TAYLOR GRAZING ACT, 43 U.S.C. 315, OR OTHER LAND MANAGEMENT STATUTES, BUT, DUE TO THE DIFFERENCE IN THE FINANCIAL BENEFITS ACCORDED UNDER THE ACTS TO THE RESPECTIVE COUNTIES IN WHICH THE LANDS ARE LOCATED, THE REVENUE DISTRIBUTION PROVISIONS OF THE BANKHEAD-JONES FARM TENANT ACT SHOULD BE RETAINED. IN THE ABSENCE OF ANY AUTHORITY IN TITLE III OF THE BANKHEAD-JONES FARM TENANT ACT FOR THE USE OF GRAZING FEES FOR RANGE IMPROVEMENTS AS IS CONTAINED IN THE TAYLOR GRAZING ACT, THE TRANSFER OF TITLE III BANKHEAD- JONES FARM TENANT ACT LANDS TO THE DEPARTMENT OF INTERIOR FOR ADMINISTRATION UNDER THE TAYLOR GRAZING ACT DOES NOT PERMIT THE USE OF GRAZING FEES FOR RANGE IMPROVEMENTS.

TO THE SECRETARY OF THE INTERIOR, SEPTEMBER 3, 1958:

THE LETTER OF MAY 6, 1958, FROM THE ACTING SECRETARY OF THE INTERIOR, REQUESTS A DECISION CONCERNING THE PROPOSED TRANSFER BY EXECUTIVE ORDER FROM THE DEPARTMENT OF AGRICULTURE TO YOUR DEPARTMENT, UNDER THE CIRCUMSTANCES DESCRIBED HEREINAFTER, OF JURISDICTION OVER 2,186,890 ACRES OF LAND MAINLY ACQUIRED UNDER TITLE III OF THE BANKHEAD JONES FARM TENANT ACT, 50 STAT. 525, AS AMENDED, 7 U.S.C. 1010.

IT IS STATED THAT THE LANDS ARE LOCATED IN CALIFORNIA (4,357 ACRES), MONTANA (1,935,853 ACRES), NEW MEXICO (239,003 ACRES), AND TEXAS (7,677 ACRES). THE BULK OF THE LANDS IN MONTANA AND NEW MEXICO AR GRAZING LANDS INTERSPERSED WITH OR IN CLOSE PROXIMITY TO THE PUBLIC LANDS ADMINISTERED BY THE BUREAU OF LAND MANAGEMENT, DEPARTMENT OF THE INTERIOR, UNDER THE PROVISIONS OF THE TAYLOR GRAZING ACT, 48 STAT. 1269, AS AMENDED, 43 U.S.C. 315, ET SEQ. THE BUREAU OF THE BUDGET, IT IS SAID, HAS SUGGESTED AND BOTH DEPARTMENTS ARE IN AGREEMENT THAT THE TRANSFER OF THESE LANDS TO THE DEPARTMENT OF THE INTERIOR FOR ADMINISTRATION WOULD BE IN THE PUBLIC INTEREST. AND, IN THAT CONNECTION, IT IS FURTHER STATED THAT:

THE PROPOSED DRAFT ORDER WOULD TRANSFER THE LU PROJECT LANDS TO THE DEPARTMENT OF THE INTERIOR ,FOR USE, ADMINISTRATION OR EXCHANGE UNDER THE APPLICABLE PROVISIONS OF THE TAYLOR GRAZING ACT (48 STAT. 1269; 43 U.S.X. 315, ET SEQ.) AS AMENDED, THE COORDINATION AND CONSERVATION ACT OF MARCH 10, 1934 (48 STAT. 401; 16 U.S.C. 661), AS AMENDED, THE MIGRATORY BIRD CONSERVATION ACT (45 STAT. 1222; 16 U.S.C. 715), AS AMENDED, OR UNDER THE GENERAL LAND MANAGEMENT AUTHORITY OF THE SECRETARY OF THE INTERIOR AS THE SAID SECRETARY SHALL DETERMINE * * *. IT IS THE PRESENT INTENT OF THIS DEPARTMENT THAT THE MAJOR PORTION OF THE TRANSFERRED LANDS LOCATED WITHIN OR ADJACENT TO BUREAU OF LAND MANAGEMENT GRAZING DISTRICTS IN MONTANA AND NEW MEXICO SHALL BE ADMINISTERED IN ACCORDANCE WITH SECTION 3 OF THE TAYLOR GRAZING ACT; OTHER GRAZING LAND IN ACCORDANCE WITH SECTION 15; CERTAIN SMALL AREAS AS YET UNDESIGNATED, IN TEXAS AND CALIFORNIA, NEEDED BY THE FISH AND WILDLIFE SERVICE WOULD BE ADMINISTERED UNDER THE APPROPRIATE ACTS, AND OTHER AREAS NOT GENERALLY SUITABLE FOR GRAZING WOULD BE UTILIZED TO THE BEST ADVANTAGE, UNDER THE GENERAL AUTHORITY OF THE SECRETARY, IN HIS DISCRETION.

THE PROPOSED DRAFT ORDER WOULD FURTHER PROVIDE THAT 25 PERCENT OF THE NET REVENUES RECEIVED BY THE SECRETARY OF THE INTERIOR FROM GRAZING AND OTHER USES OF THE TRANSFERRED LANDS SHALL CONTINUE TO BE PAID TO THE COUNTIES IN WHICH SUCH LANDS ARE LOCATED, AS PROVIDED IN SECTION 33 OF THE BANKHEAD- JONES ACT (7 U.S.C. 1012) SUPRA, IN LIEU OF ANY PAYMENTS TO THE STATES OR COUNTIES SPECIFIED IN SECTION 10 OF THE TAYLOR GRAZING ACT (43 U.S.C. 315I) OR IN ANY OTHER ACT UNDER WHICH THE TRANSFERRED LANDS WILL BE USED AND ADMINISTERED UNDER THE PROPOSED ORDER. * * *

THE ABOVE PROVISION IS BASED ON THE MUTUAL INTENT AND DESIRE OF THE SECRETARY OF AGRICULTURE AND THE SECRETARY OF THE INTERIOR THAT THE PROPOSED TRANSFER SHOULD HAVE A MINIMUM ADVERSE EFFECT UPON PRESENT USERS OF THE LAND, AND LIKEWISE THAT THE PRESENT FINANCIAL BENEFITS TO THE RESPECTIVE COUNTIES UNDER SECTION 33 SHOULD NOT BE DISTURBED. * * *

THE SPECIFIC QUESTION ON WHICH OUR DECISION IS REQUESTED IS STATED IN THE LETTER AS FOLLOWS:

WOULD YOUR OFFICE HAVE ANY OBJECTION TO THE PROPOSED TRANSFER OF LU PROJECT LANDS FROM THE DEPARTMENT OF AGRICULTURE TO THE DEPARTMENT OF THE INTERIOR PRINCIPALLY FOR USE, ADMINISTRATION, AND EXCHANGE UNDER APPLICABLE PROVISIONS OF THE TAYLOR GRAZING ACT (43 U.S.C. 315, ET SEQ.), AS AMENDED, BUT SPECIFICALLY RETAINING THE REVENUE DISTRIBUTION PROVISIONS OF SECTION 33, BANKHEAD-JONES FARM TENANT ACT (7 U.S.C. 1012), IN LIEU OF THE PROVISIONS OF SECTION 10, TAYLOR GRAZING ACT (43 U.S.C. 315I), OR IN ANY OTHER ACT UNDER WHICH THE TRANSFERRED LANDSWILL BE USED AND ADMINISTERED UNDER THE PROPOSED TRANSFER?

THE DOUBT IN THE MATTER APPARENTLY ARISES BY REASON OF THE FACT THAT THE FINANCIAL BENEFITS ACCORDED THE RESPECTIVE COUNTIES FROM REVENUE DERIVED, UNDER TITLE III OF THE BANKHEAD-JONES FARM TENANT ACT, DIFFER FROM THOSE PERMITTED TO BE PAID TO THE STATES OR COUNTIES UNDER THE LAND MANAGEMENT ACTIVITIES ADMINISTERED BY THE DEPARTMENT OF THE INTERIOR.

SECTION 32 OF THE BANKHEAD-JONES FARM TENANT ACT, AS AMENDED, 7 U.S.C. 1011, AUTHORIZES THE SECRETARY OF AGRICULTURE TO ACQUIRE LANDS IN DEVELOPING THE LAND CONSERVATION AND UTILIZATION PROGRAM PROVIDED FOR IN SECTION 31 THEREOF, 7 U.S.C. 1010. SUBSECTION 32 (F), 7 U.S.C. 1011 (F), AUTHORIZES THE SECRETARY TO MAKE SUCH RULES AND REGULATIONS AS HE DEEMS NECESSARY TO REGULATE THE USE AND OCCUPANCY OF SAID LANDS. THE SECRETARY IS REQUIRED BY SECTION 33 OF THE ACT, 7 U.S.C. 1012, TO PAY 25 PERCENT OF THE NET REVENUES RECEIVED FROM THE USE OF THE LAND DURING EACH CALENDAR YEAR TO THE COUNTY IN WHICH THE LAND IS SITUATED.

THE AUTHORITY FOR THE TRANSFER OF THESE LANDS TO THE DEPARTMENT OF THE INTERIOR IS SUBSECTION 32 (C) OF THE ACT, 7 U.S.C. 1011 (C), WHICH IS CITED IN THE LETTER AND PROVIDES:

* * * THE SECRETARY MAY RECOMMEND TO THE PRESIDENT OTHER FEDERAL * * * AGENCIES TO ADMINISTER SUCH PROPERTY, TOGETHER WITH THE CONDITIONS OF USE AND ADMINISTRATION WHICH WILL BEST SERVE THE PURPOSE OF A LAND CONSERVATION AND LAND-UTILIZATION PROGRAM, AND THE PRESIDENT IS AUTHORIZED TO TRANSFER SUCH PROPERTY TO SUCH AGENCIES.

IN VIEW OF THIS EXPRESS STATUTORY AUTHORITY, THERE CAN BE NO DOUBT OF THE LEGAL AUTHORITY OF THE DEPARTMENT OF THE INTERIOR TO USE AND ADMINISTER THE TRANSFERRED LANDS ON THE BASIS AND UNDER THE CONDITIONS SET FORTH IN THE LETTER. ACCORDINGLY, YOU ARE ADVISED THAT WE WILL NOT BE REQUIRED TO OBJECT TO THE TRANSFER OF THE LANDS IN QUESTION TO YOUR DEPARTMENT, UPON RECOMMENDATION OF THE SECRETARY OF AGRICULTURE AND APPROVAL OF THE PRESIDENT, FOR USE AND ADMINISTRATION UNDER THE PROVISIONS OF THE TAYLOR GRAZING ACT, AS AMENDED, OR OTHER LAND MANAGEMENT STATUTES, BUT RETAINING THE REVENUE DISTRIBUTION PROVISIONS OF SECTION 33 OF THE BANKHEAD-JONES FARM TENANT ACT.

THE ACTING SECRETARY ALSO MENTIONS A COLLATERAL PROBLEM THAT CONFRONTS THE DEPARTMENT, IF THE LANDS INVOLVED ARE TRANSFERRED AND ADMINISTERED UNDER THE CITED TAYLOR GRAZING ACT, AS AMENDED. UNDER SECTION 3 OF THE ACT, 43 U.S.C. 315B, THE DEPARTMENT COLLECTS FEES FOR THE USE OF THE RANGE AND A RANGE IMPROVEMENT FEE, THE LATTER FEE, WHEN APPROPRIATED BY THE CONGRESS, BEING AVAILABLE UNTIL EXPENDED FOR EXPENDITURE ON RANGE IMPROVEMENTS. THE PRESENT FEE GENERALLY APPLICABLE ON SUCH GRAZING DISTRICT RANGE LANDS ADMINISTERED BY THE DEPARTMENT OF THE INTERIOR IS 19 CENTS PER ANIMAL UNIT MONTH OF WHICH 25 PERCENT HAS BEEN ESTABLISHED BY ADMINISTRATIVE ORDER AS A RANGE IMPROVEMENT FEE.

HE POINTS OUT THAT THE GRAZING FEES CHARGED BY THE DEPARTMENT OF AGRICULTURE COVERING TITLE III LANDS ARE APPROXIMATELY 40 CENTS PER ANIMAL UNIT MONTH, AND THAT NO PART THEREOF IS AVAILABLE FOR EXPENDITURE FOR RANGE IMPROVEMENT PURPOSES. THE DEPARTMENT OF THE INTERIOR INTENDS TO RETAIN THIS GRAZING FEE RATE AND, SUBJECT TO OUR APPROVAL, DESIGNATE A PORTION THEREOF AS A GRAZING FEE AND THE REMAINDER AS A RANGE IMPROVEMENT FEE, SIMILARLY AS PROVIDED IN SECTION 3 OF THE TAYLOR GRAZING ACT, AS AMENDED, WITHOUT AFFECTING DISTRIBUTION TO THE COUNTIES OF THEIR 25 PERCENT OF THE NET REVENUE FROM THE OVERALL FEE. HE EXPLAINS THAT, IN THE DEPARTMENT'S APPROPRIATION REQUEST TO THE CONGRESS FOR FISCAL YEAR 1960 AND THEREAFTER, IT IS PROPOSED TO INCLUDE AN AMOUNT EQUAL TO THE TOTAL OF THE FEES COLLECTED AND DESIGNATED AS RANGE IMPROVEMENT FEES DURING THE PRECEDING YEAR FOR EXPENDITURE ON RANGE IMPROVEMENTS COVERING TITLE III LANDS, AND CONCURRENTLY WITH THE APPROPRIATION DEPOSIT SAID FEES INTO THE TREASURY AS MISCELLANEOUS RECEIPTS.

AS INDICATED IN THE LETTER, THERE IS NOTHING IN TITLE III OF THE BANKHEAD -JONES FARM TENANT ACT THAT AUTHORIZES PAYMENTS FROM FEES COLLECTED UNDER GRAZING PERMITS FOR RANGE IMPROVEMENT PURPOSES. THAT BEING THE CASE, IT FOLLOWS THAT THE TRANSFER OF TITLE III LANDS FOR ADMINISTRATION BY YOUR DEPARTMENT DOES NOT PERMIT SUCH USE TO BE MADE OF THE FEES IN THE ABSENCE OF SPECIFIC LEGISLATIVE AUTHORITY THEREFOR.

ON THE BASIS OF THE REPRESENTATIONS THAT THE PORTION OF THE GRAZING FEES COLLECTED BY THE DEPARTMENT OF THE INTERIOR, IN THE ADMINISTRATION OF THE TRANSFERRED LANDS, AND DESIGNATED AS A RANGE IMPROVEMENT FEE WILL BE SEPARATELY ACCOUNTED FOR IN AN APPROPRIATE ACCOUNT, AND THAT THE CONGRESS WILL BE FULLY INFORMED AS TO ITS NATURE, SOURCE AND INTENDED APPLICATION THEREOF ON RANGE IMPROVEMENTS IN THE DEPARTMENT'S APPROPRIATION REQUEST FOR FISCAL YEAR 1960, WE WILL NOT OBJECT TO THE PROPOSED HANDLING OF SUCH FEES WITH THE UNDERSTANDING THAT IN THE EVENT THE CONGRESS FAILS TO EXPRESSLY PROVIDED AN APPROPRIATION THEREFOR THE AMOUNT OF SAID FEES WILL PROMPTLY BE TRANSFERRED TO THE GENERAL FUND OF THE TREASURY.