B-143256, SEPTEMBER 6, 1960, 40 COMP. GEN. 153

B-143256: Sep 6, 1960

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WHEN CERTAIN REQUIREMENTS AND CONDITIONS ARE MET. WILL BE REGARDED AS AN OPINION IN FAVOR OF THE VALIDITY OF TITLE WITHIN THE MEANING OF SECTION 6 OF THE MIGRATORY BIRD CONSERVATION ACT. PROVIDED THAT THE CONDITIONS AND REQUIREMENTS INVOLVE ONLY MATTERS OF FACT AS DISTINGUISHED FROM MATTERS OF LAW AND THAT NO PAYMENT WILL BE MADE UNTIL THE FINAL APPROVAL OF TITLE IF THERE IS ANY QUESTION AS TO WHETHER THE CONDITIONS HAVE BEEN PROPERLY SATISFIED. 1960: REFERENCE IS MADE TO LETTER OF JUNE 17. THE QUESTION IS SAID TO ARISE IN VIEW OF THE PROHIBITION IN SECTION 6 OF THE ACT. IS EXPLAINED IN THE LETTER AS FOLLOWS: PRESENT PRACTICE IS TO OBTAIN A PRELIMINARY TITLE OPINION FROM THE ATTORNEY GENERAL PRIOR TO TAKING A DEED FOR THE PROPERTY.

B-143256, SEPTEMBER 6, 1960, 40 COMP. GEN. 153

REAL PROPERTY - ACQUISITION - TITLE - PRELIMINARY TITLE OPINION BY ATTORNEY GENERAL A PRELIMINARY TITLE OPINION BY THE ATTORNEY GENERAL, WHICH PROVIDES FOR FINAL APPROVAL OF TITLE TO LAND ACQUIRED UNDER AUTHORITY OF THE MIGRATORY BIRD CONSERVATION ACT, 16 U.S.C. 715 ET SEQ., WHEN CERTAIN REQUIREMENTS AND CONDITIONS ARE MET, WILL BE REGARDED AS AN OPINION IN FAVOR OF THE VALIDITY OF TITLE WITHIN THE MEANING OF SECTION 6 OF THE MIGRATORY BIRD CONSERVATION ACT, 16 U.S.C. 715E, AND SECTION 355, REVISED STATUTES, 40 U.S.C. 255, SO THAT PAYMENT MAY BE MADE TO THE LANDOWNERS ON THE BASIS OF THE PRELIMINARY TITLE OPINION, PROVIDED THAT THE CONDITIONS AND REQUIREMENTS INVOLVE ONLY MATTERS OF FACT AS DISTINGUISHED FROM MATTERS OF LAW AND THAT NO PAYMENT WILL BE MADE UNTIL THE FINAL APPROVAL OF TITLE IF THERE IS ANY QUESTION AS TO WHETHER THE CONDITIONS HAVE BEEN PROPERLY SATISFIED.

TO THE SECRETARY OF THE INTERIOR, SEPTEMBER 6, 1960:

REFERENCE IS MADE TO LETTER OF JUNE 17, 1960, WITH ENCLOSURES, FROM THE ADMINISTRATIVE ASSISTANT SECRETARY OF THE INTERIOR, REQUESTING OUR OPINION AS TO THE PROPERTY OF MAKING PAYMENT TO LANDOWNERS FOR LAND TO BE PURCHASED BY THE BUREAU OF SPORT FISHERIES AND WILDLIFE FOR MIGRATORY BIRD REFUGES, UNDER AUTHORITY OF THE MIGRATORY BIRD CONSERVATION ACT OF FEBRUARY 18, 1929, AS AMENDED AND SUPPLEMENTED, 16 U.S.C. 715 ET SEQ., PRIOR TO RECEIPT OF THE ATTORNEY GENERAL'S FINAL TITLE OPINION. THE QUESTION IS SAID TO ARISE IN VIEW OF THE PROHIBITION IN SECTION 6 OF THE ACT, 16 U.S.C. 715E, THAT "* * * NO PAYMENT SHALL BE MADE FOR ANY SUCH AREAS UNTIL THE TITLE THERETO SHALL BE SATISFACTORY TO THE ATTORNEY GENERAL. * * *"

THE PRESENT PRACTICE FOLLOWED BY THE BUREAU OF SPORT FISHERIES AND WILDLIFE, IN CONNECTION WITH MAKING PAYMENT FOR SUCH LAND PURCHASES, IS EXPLAINED IN THE LETTER AS FOLLOWS:

PRESENT PRACTICE IS TO OBTAIN A PRELIMINARY TITLE OPINION FROM THE ATTORNEY GENERAL PRIOR TO TAKING A DEED FOR THE PROPERTY. THE OPINION STATES THAT TITLE WILL BE APPROVED WHEN THE OBJECTIONS AND REQUIREMENTS OF THAT OPINION HAVE BEEN MET, A DEED TO THE UNITED STATES RECORDED, AND THE ABSTRACT OF TITLE CONTINUED AND CERTIFIED TO A DATE SUBSEQUENT TO THE RECORDATION OF THE DEED. WHEN THE ABOVE STEPS HAVE BEEN TAKEN, THE TITLE PAPERS ARE RESUBMITTED TO THE DEPARTMENT OF JUSTICE FOR FINAL REVIEW. PAYMENT OF THE PURCHASE CONSIDERATION IS WITHHELD PENDING RECEIPT OF THE FINAL TITLE OPINION. THE FINAL CURATIVE WORK AND PAYMENT ARE HANDLED BY THE BUREAU AND THE TRANSMITTAL OF TITLE PAPERS TO THE DEPARTMENT OF JUSTICE, THEIR REVIEW IN JUSTICE, THE PREPARATION OF A FINAL OPINION, AND ITS RETURN TO THE BUREAU INVOLVE CONSIDERABLE TIME. THE DELAYS OFTEN CAUSE DISSATISFACTION TO VENDORS WHO FEEL THEY SHOULD BE PAID AS SOON AS THEY HAVE CONVEYED THEIR PROPERTIES, AND RESULT IN MAKING NEGOTIATIONS FOR OTHER LANDS IN THE VICINITY MORE DIFFICULT.

THE ADMINISTRATIVE ASSISTANT SECRETARY STATES THAT, WITH THE VIEW OF ALLEVIATING THE DELAY IN PAYMENT FOR LAND ACQUIRED BY THE BUREAU, YOUR DEPARTMENT HAS DISCUSSED WITH THE DEPARTMENT OF JUSTICE THE MATTER OF REGARDING THE PRELIMINARY TITLE OPINION AS CONSTITUTING THE ATTORNEY GENERAL'S APPROVAL OF TITLE UPON COMPLIANCE BY THE BUREAU WITH THE REQUIREMENTS THEREOF, SO THAT PAYMENT OF THE PURCHASE PRICE COULD BE MADE TO THE VENDORS WITHOUT AWAITING THE RECEIPT OF HIS FINAL OPINION OF TITLE. THE DEPARTMENT OF JUSTICE, HE SAYS, HAS AGREED TO REVISE THE FORM OF PRELIMINARY OPINION TO STATE THAT A VALID TITLE TO THE LAND WILL VEST IN THE UNITED STATES WHEN THE REQUIREMENTS AND OBJECTIONS ENUMERATED THEREIN HAVE BEEN MET, A DEED TO THE UNITED STATES RECORDED, AND THE ABSTRACT OF TITLE CONTINUED AND CERTIFIED TO A DATE SUBSEQUENT TO RECORDATION OF THE DEED. TO ILLUSTRATE THIS ARRANGEMENT THERE WAS TRANSMITTED WITH THE LETTER OF JUNE 17, COPIES OF LETTERS BETWEEN YOUR DEPARTMENT AND THE ATTORNEY GENERAL RELATIVE TO THE APPROVAL OF TITLE TO CERTAIN LAND ACQUIRED FOR ADDITION TO THE OAK ORCHARD NATIONAL WILDLIFE REFUGE.

THE ADMINISTRATIVE ASSISTANT SECRETARY REQUESTS TO BE ADVISED WHETHER WE WOULD HAVE ANY OBJECTION TO THE BUREAU OF SPORT FISHERIES AND WILDLIFE MAKING PAYMENT TO VENDORS FOR LAND, AFTER SATISFYING THE CONDITIONS SET FORTH IN THE PRELIMINARY TITLE OPINION OF THE ATTORNEY GENERAL, BUT PRIOR TO OBTAINING HIS FINAL OPINION AS TO VALIDITY OF TITLE.

IN ADDITION TO THE REQUIREMENT QUOTED ABOVE, FOR THE OPINION OF THE ATTORNEY GENERAL AS TO VESTING OF TITLE BEFORE MONEY MAY BE SPENT FOR PURCHASES OF LANDS FOR MIGRATORY BIRD REFUGES, THERE IS ALSO FOR APPLICATION HERE SECTION 355, REVISED STATUTES, AS AMENDED, 40 U.S.C. 255, WHICH PROVIDES IN PERTINENT PART THAT---

NO PUBLIC MONEY SHALL BE EXPENDED UPON ANY SITE OR LAND PURCHASED BY THE UNITED STATES FOR THE PURPOSES, OF ERECTING THEREON ANY ARMORY, ARSENAL, FORT, FORTIFICATION, NAVY YARD, CUSTOMHOUSE, LIGHTHOUSE, OR OTHER PUBLIC BUILDING OF ANY KIND WHATEVER, UNTIL THE WRITTEN OPINION OF THE ATTORNEY GENERAL SHALL BE HAD IN FAVOR OF THE VALIDITY OF THE TITLE.

IT IS CLEAR THAT IN THE ABSENCE OF A SHOWING THAT TITLE TO THE LAND IN QUESTION IS "SATISFACTORY TO THE ATTORNEY GENERAL" PAYMENT OF PUBLIC FUNDS FOR THE PURCHASE THEREOF IS NOT AUTHORIZED. AND, IN 39 OP. ATTY. GEN. 73, CITED IN THE LETTER, THE ATTORNEY GENERAL CONCLUDED THAT APPROVAL OF TITLE BY HIM IS A PREREQUISITE TO PAYMENT OF THE PURCHASE PRICE FOR LAND UNDER THE SEVERAL ACTS OF CONGRESS DEALING WITH PROTECTION OF MIGRATORY BIRDS AS WELL AS SECTION 355 OF THE REVISED STATUTES. ALSO, SEE 16 COMP. GEN. 856; 18 ID. 727.

THE CONGRESS HAS PLACED UPON THE ATTORNEY GENERAL THE DUTY AND RESPONSIBILITY WITH REFERENCE TO THE APPROVAL OF TITLE TO LANDS PURCHASED FOR THE GOVERNMENT, BEFORE PAYMENT OF THE PURCHASE PRICE IS MADE, AND WE HAVE INFORMALLY LEARNED THAT THE DEPARTMENT OF JUSTICE CONSIDERS THE SO- CALLED REVISED FORM OF PRELIMINARY TITLE OPINION WHICH PROVIDES FOR FINAL APPROVAL OF TITLE, SUBJECT TO SATISFACTION OF THE CONDITIONS SET FORTH THEREIN, AS AN OPINION IN FAVOR OF THE VALIDITY OF TITLE WITHIN THE MEANING OF THE STATUTES QUOTED ABOVE, THERE BEING NO QUESTION OF LAW INVOLVED IN THE SAID CONDITIONS.

ACCORDINGLY, YOU ARE ADVISED THAT THE GENERAL ACCOUNTING OFFICE WILL NOT OBJECT TO PAYMENTS FOR THE PURCHASE OF LANDS BY THE BUREAU OF SPORT FISHERIES AND WILDLIFE, ON THE BASIS OF THE ATTORNEY GENERAL'S PRELIMINARY TITLE OPINION AND COMPLIANCE WITH THE REQUIREMENTS THEREOF, PRIOR TO OBTAINING HIS FINAL OPINION AS TO VALIDITY OF TITLE, IF THE PAYMENTS ARE OTHERWISE PROPER, IN THE INSTANT CASE AS WELL AS FUTURE SIMILAR CASES WHERE THE REQUIREMENTS AND OBJECTIONS CONTAINED IN THE PRELIMINARY TITLE OPINION INVOLVE ONLY ROUTINE QUESTIONS OF FACT AS DISTINGUISHED FROM QUESTIONS OF LAW. IT IS TO BE UNDERSTOOD, AS STATED BY THE ADMINISTRATIVE ASSISTANT SECRETARY, THAT NO PAYMENT WILL BE MADE PRIOR TO OBTAINING THE ATTORNEY GENERAL'S FINAL APPROVAL OF TITLE IF THERE BE ANY QUESTION IN A PARTICULAR CASE AS TO WHETHER THE REQUIREMENTS AND CONDITIONS IN THE PRELIMINARY TITLE OPINION IN FAVOR OF THE VALIDITY OF TITLE HAVE PROPERLY BEEN SATISFIED.