B-137960, APR. 26, 1962

B-137960, APR. 26, 1962

TO EDWARD BLUMSTEIN, ESQUIRE:

YOUR LETTER OF APRIL 3, 1962, INQUIRES AS TO WHEN YOUR CLIENT, CHESS BROS., PHILADELPHIA, PENNSYLVANIA, MAY EXPECT PAYMENT OF THEIR CLAIM FOR REIMBURSEMENT UNDER THE ACT OF MAY 29, 1958, 72 STAT. 152, PUBLIC LAW 85- 433, FOR EXPENSES INCURRED IN MOVING TO VACATE PREMISES ACQUIRED BY THE UNITED STATES FOR THE PURPOSES OF THE INDEPENDENCE NATIONAL HISTORICAL PARK. YOU STATE THAT YOU HAVE BEEN ADVISED BY THE NATIONAL PARK SERVICE THAT THEY CANNOT PAY YOUR CLIENT'S CLAIM BECAUSE OF TWO DECISIONS OF OUR OFFICE.

THE PERTINENT PORTIONS OF PUBLIC LAW 85-433, SECTIONS 1 AND 4, PROVIDE AS FOLLOWS:

"THAT THE SECRETARY OF THE INTERIOR IS AUTHORIZED TO THE EXTENT ADMINISTRATIVELY DETERMINED BY HIM TO BE FAIR AND REASONABLE, TO REIMBURSE THE OWNERS AND TENANTS OF LANDS ACQUIRED FOR THE CONSTRUCTION, OPERATION, OR MAINTENANCE OF DEVELOPMENTS UNDER HIS JURISDICTION FOR EXPENSES AND OTHER LOSSES AND DAMAGES INCURRED BY THEM IN THE PROCESS AND AS A DIRECT RESULT OF SUCH MOVING OF THEMSELVES, THEIR FAMILIES, AND THEIR POSSESSIONS AS IS OCCASIONED BY SAID ACQUISITION, WHICH REIMBURSEMENT SHALL BE IN ADDITION TO, BUT NOT IN DUPLICATION OF, ANY PAYMENTS THAT MAY OTHERWISE BE AUTHORIZED BY LAW: PROVIDED, THAT THE TOTAL OF SUCH REIMBURSEMENT TO THE OWNERS AND TENANTS OF ANY PARCEL OF LAND SHALL IN NO EVENT EXCEED 25 PERCENTUM OF ITS FAIR VALUE, AS DETERMINED BY THE SECRETARY. * * *

"SEC. 4. FUNDS APPROPRIATED FOR THE CONSTRUCTION, OPERATION, OR MAINTENANCE OF DEVELOPMENTS UNDER THE JURISDICTION OF THE SECRETARY SHALL ALSO BE AVAILABLE FOR CARRYING OUT THE PROVISIONS OF THIS ACT.'

ON NOVEMBER 17, 1958, THE ACTING SECRETARY OF THE INTERIOR REQUESTED OUR DECISION WHETHER LANDS ACQUIRED BY THE DEPARTMENT FOR INCLUSION IN THE NATIONAL PARK SYSTEM ARE WITHIN THE PURVIEW OF PUBLIC LAW 85-433 SO AS TO AUTHORIZE PAYMENT OF THE MOVING EXPENSES OF THE OWNERS AND TENANTS OF SUCH LANDS FROM THE FUNDS AVAILABLE FOR THE ACQUISITION OF THE LANDS. BY OUR DECISION OF DECEMBER 18, 1958, B-137960, COPY ATTACHED, WE ADVISED THE SECRETARY OF THE INTERIOR THAT THE APPLICATION OF SAID LAW TO LANDS ACQUIRED BY THE NATIONAL PARK SERVICE WAS SO DOUBTFUL THAT THE BEST INTERESTS OF THE UNITED STATES WOULD BE SERVED BY DEFERRING PAYMENT OF THE MOVING EXPENSES OF OWNERS AND TENANTS OF SUCH LANDS UNTIL SUCH TIME AS THE MATTER MAY BE PRESENTED TO THE CONGRESS FOR CLARIFICATION.

UNDER DATE OF JANUARY 27, 1959, THE UNDER SECRETARY OF THE INTERIOR AGAIN PRESENTED THE MATTER TO US FOR DECISION, SPECIFICALLY ASKING WHETHER WE WOULD BE REQUIRED TO TAKE EXCEPTION TO A PAYMENT, MADE PRIOR TO A CLARIFICATION BY THE CONGRESS, IN SETTLEMENT OF A CLAIM FOR MOVING EXPENSES UNDER THE ACT IN ITS PRESENT FORM WITH RESPECT TO LANDS ACQUIRED BY THE NATIONAL PARK SERVICE. OUR DECISION OF FEBRUARY 19, 1959, B- 137960, TO THE SECRETARY OF THE INTERIOR, COPY ALSO ATTACHED, REITERATED OUR DOUBT AS TO THE APPLICABILITY OF PUBLIC LAW 85-433 TO LANDS ACQUIRED BY THE NATIONAL PARK SERVICE, AND STATED THAT WE WOULD BE REQUIRED TO STATE AN EXCEPTION AGAINST THE PAYMENT OF A CLAIM RESPECTING SUCH LANDS PRIOR TO CLARIFICATION BY THE CONGRESS. IN OTHER WORDS, WE COULD NOT CONSTRUE THE EXISTING LAW AS AUTHORIZING PAYMENT OF THE CLAIM.

HENCE, IN THE ABSENCE OF CLARIFYING ACTION ON THE PART OF THE CONGRESS, NO PAYMENT WILL BE MADE ON CLAIMS UNDER PUBLIC LAW 85-433 FOR REIMBURSEMENT OF MOVING EXPENSES INCURRED IN CONNECTION WITH THE LANDS ACQUIRED FOR THE PURPOSES OF THE INDEPENDENCE NATIONAL HISTORICAL PARK.