B-145085, MAY 5, 1961, 40 COMP. GEN. 615

B-145085: May 5, 1961

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ARE NOT AVAILABLE FOR PAYMENTS TO THE STATES IN SATISFACTION OF OBLIGATIONS OR EXPENDITURES MADE BY THE STATES FOR LAND PURCHASES FOR RESTORATION PROJECTS. 1961: REFERENCE IS MADE TO LETTER OF FEBRUARY 13. ARE AUTHORIZED TO BE APPORTIONED FOR THE USE OF THE STATES ACCORDING TO THE FORMULA AND IN THE MANNER PRESCRIBED IN SECTIONS 4 AND 5. ARE AUTHORIZED TO BE APPORTIONED FOR THE USE OF THE STATES ACCORDING TO THE FORMULA AND IN THE MANNER PRESCRIBED IN SECTIONS 4 AND 5. PRESCRIBES THE CONDITIONS UNDER WHICH THE SECRETARY OF THE INTERIOR IS AUTHORIZED TO APPROVE FISH AND WILDLIFE RESTORATION PROJECTS. WHICH IS QUOTED IN THE LETTER. ESTIMATES THEREOF SHALL HAVE BEEN SUBMITTED TO AND APPROVED BY THE SECRETARY OF INTERIOR.

B-145085, MAY 5, 1961, 40 COMP. GEN. 615

FEDERAL AID PAYMENTS TO THE STATES - PRIOR TO AVAILABILITY IN THE ABSENCE OF EXPRESS AUTHORITY FOR THE USE OF FEDERAL AID FUNDS TO DISCHARGE RETROACTIVELY OBLIGATIONS INCURRED BY THE STATES FOR FISH AND WILDLIFE RESTORATION PROJECTS PRIOR TO THE AVAILABILITY OF SUCH FUNDS, FEDERAL AID FUNDS PROVIDED UNDER THE PITTMAN-1ROBERTSON AND DINGELL- 1JOHNSON ACTS, 16 U.S.C. 669-669I AND ID. 777-777K, ARE NOT AVAILABLE FOR PAYMENTS TO THE STATES IN SATISFACTION OF OBLIGATIONS OR EXPENDITURES MADE BY THE STATES FOR LAND PURCHASES FOR RESTORATION PROJECTS, PRIOR TO THE AVAILABILITY OF SUCH FUNDS, NOTWITHSTANDING THAT THE GOVERNMENT'S LIABILITY TO A STATE FOR REIMBURSEMENT WOULD BE CONTINGENT UPON THE FUTURE AVAILABILITY OF THE FUNDS.

TO THE SECRETARY OF THE INTERIOR, MAY 5, 1961:

REFERENCE IS MADE TO LETTER OF FEBRUARY 13, 1961, WITH ENCLOSURES, FROM THE ADMINISTRATIVE ASSISTANT SECRETARY OF THE INTERIOR, REQUESTING OUR DECISION AS TO THE USE OF FEDERAL AID FUNDS PROVIDED UNDER THE PITTMAN- 1ROBERTSON AND DINGELL-1JOHNSON ACTS TO SHARE IN THE COSTS OF PROJECT LANDS ACQUIRED BY THE STATES PRIOR TO THE AVAILABILITY OF THE FUNDS FOR THAT PURPOSE.

THE ACT OF SEPTEMBER 2, 1937, 50 STAT. 917, AS AMENDED, 16 U.S.C. 669- 669I, COMMONLY REFERRED TO AS THE PITTMAN-1ROBERTSON ACT, PROVIDES FOR FEDERAL AID TO STATES IN CONNECTION WITH WILDLIFE RESTORATION PROJECTS, BY THE USE OF FUNDS DERIVED FROM THE FEDERAL TAX ON FIREARMS, SHELLS AND CARTRIDGES. SECTION 3 OF THE ACT, 16 U.S.C. 669B, AUTHORIZED SETTING APART IN THE TREASURY, AS A SPECIAL FUND, THE REVENUES THUS DERIVED, AND MONEYS APPROPRIATED THEREFROM FOR SUCH PROPOSES BY THE PERMANENT INDEFINITE APPROPRIATION CONTAINED IN THE GENERAL APPROPRIATION ACT, 1951, 64 STAT. 595, 693, ARE AUTHORIZED TO BE APPORTIONED FOR THE USE OF THE STATES ACCORDING TO THE FORMULA AND IN THE MANNER PRESCRIBED IN SECTIONS 4 AND 5, 16 U.S.C. 669C AND D.

THE ACT OF AUGUST 9, 1950, 64 STAT. 430, 16 U.S.C. 777-777K, KNOWN AS THE DINGELL-1JOHNSON ACT, PROVIDES FOR FEDERAL AID TO STATES IN FISH RESTORATION AND MANAGEMENT PROJECTS THROUGH THE USE OF FUNDS DERIVED FROM THE FEDERAL TAX ON FISHING RODS, CREELS, REELS, ETC. SECTION 3 THEREOF, 16 U.S.C. 777B, AUTHORIZED TO BE APPROPRIATED AN AMOUNT EQUAL TO THE REVENUES THUS DERIVED, AND MONEYS APPROPRIATED FOR SUCH PURPOSES BY THE PERMANENT APPROPRIATION CONTAINED IN THE INTERIOR DEPARTMENT APPROPRIATION ACT, 1952, 65 STAT. 248, 262, ARE AUTHORIZED TO BE APPORTIONED FOR THE USE OF THE STATES ACCORDING TO THE FORMULA AND IN THE MANNER PRESCRIBED IN SECTIONS 4 AND 5, 16 U.S.C. 777C AND D.

SECTION 6 OF EACH ACT, 16 U.S.C. 669E AND 777E, PRESCRIBES THE CONDITIONS UNDER WHICH THE SECRETARY OF THE INTERIOR IS AUTHORIZED TO APPROVE FISH AND WILDLIFE RESTORATION PROJECTS, AND FOR MAKING PAYMENTS TO THE STATES OF THE AMOUNTS SET ASIDE THEREFOR. THE SECTION AS CONTAINED IN 50 STAT. 918, WHICH IS QUOTED IN THE LETTER, PROVIDES IN PERTINENT PART AS FOLLOWS:

ANY STATE DESIRING TO AVAIL ITSELF OF THE BENEFITS OF THIS ACT SHALL BY ITS STATE FISH AND GAME DEPARTMENT SUBMIT TO THE SECRETARY OF INTERIOR FULL AND DETAILED STATEMENTS OF ANY WILDLIFE-RESTORATION PROJECT PROPOSED FOR THAT STATE. IF THE SECRETARY OF INTERIOR FINDS THAT SUCH PROJECT MEETS WITH THE STANDARDS SET UP BY HIM AND APPROVES SAID PROJECT, THE STATE FISH AND GAME DEPARTMENT SHALL FURNISH TO HIM SUCH SURVEYS, PLANS, SPECIFICATIONS, AND ESTIMATES THEREFOR AS HE MAY REQUIRE: PROVIDED, HOWEVER, THAT THE SECRETARY OF INTERIOR SHALL APPROVE ONLY SUCH PROJECTS AS MAY BE SUBSTANTIAL IN CHARACTER AND DESIGN AND THE EXPENDITURE OF FUNDS HEREBY AUTHORIZED SHALL BE APPLIED ONLY TO SUCH APPROVED PROJECTS AND IF OTHERWISE APPLIED THEY SHALL BE REPLACED BY THE STATE BEFORE IT MAY PARTICIPATE IN ANY FURTHER APPORTIONMENT UNDER THIS ACT. * * * IF THE SECRETARY OF INTERIOR APPROVES THE PLANS, SPECIFICATIONS, AND ESTIMATES FOR THE PROJECT, HE SHALL NOTIFY THE STATE FISH AND GAME DEPARTMENT AND IMMEDIATELY CERTIFY THE FACT TO THE SECRETARY OF THE TREASURY. THE SECRETARY OF THE TREASURY SHALL THEREUPON SET ASIDE SO MUCH OF SAID FUND AS REPRESENTS THE SHARE OF THE UNITED STATES PAYABLE UNDER THIS ACT ON ACCOUNT OF SUCH PROJECT, WHICH SUM SO SET ASIDE SHALL NOT EXCEED 75 PERCENTUM OF THE TOTAL ESTIMATED COST THEREOF. NO PAYMENT OF ANY MONEY APPORTIONED UNDER THIS ACT SHALL BE MADE ON ANY PROJECT UNTIL SUCH STATEMENT OF THE PROJECT AND THE PLANS, SPECIFICATIONS, AND ESTIMATES THEREOF SHALL HAVE BEEN SUBMITTED TO AND APPROVED BY THE SECRETARY OF INTERIOR.

THE ADMINISTRATIVE ASSISTANT SECRETARY POINTS OUT THAT, SINCE THE INCEPTION OF BOTH FEDERAL AID PROGRAMS, ONE OF THE MOST IMPORTANT AND NECESSARY ACTIVITIES CARRIED ON BY THE COOPERATING STATES AND TERRITORIES HAS BEEN THE ACQUISITION OF LANDS. HE STATES THAT UNDER PRESENT DEPARTMENTAL POLICIES AND PROCEDURES A STATE MAY BE REIMBURSED FOR LANDS PURCHASED BY IT PRIOR TO THE DATE OF APPROVAL OF PLANS, SPECIFICATIONS, AND ESTIMATES, IF (1) THE LANDS ARE INCLUDED WITHIN THE AREA DESCRIBED IN A PREVIOUSLY APPROVED PRELIMINARY PROJECT STATEMENT; (2) THE PURCHASE PRICES ARE WITHIN THE APPRAISED VALUES ESTABLISHED BY THE DEPARTMENT; AND (3) THE STATE HAS SUFFICIENT UNOBLIGATED FEDERAL AID FUNDS TO COVER THE FEDERAL SHARE OF PROJECT COSTS AT THE TIME OF PURCHASE. THE PROBLEM IN CONNECTION WITH LAND ACQUISITIONS FOR RESTORATION PROJECTS IS SAID TO ARISE AS FOLLOWS:

MANY STATES ARE ENCOUNTERING DIFFICULTY IN ACQUIRING DESIRABLE LANDS WITHIN APPROVED PROJECT BOUNDARIES AT LOW COST TO THE PROGRAM. IN PART, AT LEAST, THIS HAS BEEN DUE TO THE REQUIREMENT THAT UNOBLIGATED FEDERAL AID FUNDS BE AVAILABLE TO THE STATES TO COVER THE FEDERAL SHARE AT THE TIME THE LANDS ARE ACQUIRED BY THE STATES WITH STATE FUNDS. FOR EXAMPLE, IN THE LAST QUARTER OF FISCAL YEAR 1960, 16 OF THE 50 STATES HAD EXHAUSTED THEIR FEDERAL AID IN WILDLIFE RESTORATION FUNDS. DURING THE SAME PERIOD, 15 STATES HAD EXHAUSTED THEIR FEDERAL AID IN FISH RESTORATION FUNDS AND A SIMILAR SITUATION WAS APPARENT IN THE LAST QUARTER OF FISCAL YEAR 1959. CONSEQUENTLY, UNDER OUR PRESENT PROCEDURES THESE STATES MUST SUSPEND THEIR LAND ACQUISITION PROGRAM, WITH THE RESULT IN SOME INSTANCES IN LOSS OF OPPORTUNITIES TO PURCHASE KEY TRACTS AT LOWER COSTS TO THE PROGRAMS THAN MIGHT OTHERWISE BE THE CASE. THE DEPARTMENT AND THE COOPERATING STATE FISH AND GAME AGENCIES CHARGED WITH THE TASK OF CONSERVING OUR FISH AND WILDLIFE RESOURCES BELIEVE THAT THE STATE SHOULD BE PERMITTED TO CONDUCT MORE ORDERLY LAND ACQUISITION ACTIVITIES THAN IS NOW POSSIBLE UNDER PRESENT PROCEDURES AND REQUIREMENTS.

TO OVERCOME THIS PROBLEM AND PERMIT MORE EFFICIENT UTILIZATION OF STATE AND FEDERAL FUNDS FOR LAND ACQUISITIONS, IT IS PROPOSED THAT THE DEPARTMENTAL PROCEDURES AND POLICIES BE REVISED TO AUTHORIZE REIMBURSEMENT, AT THE DISCRETION OF THE SECRETARY, TO A STATE FOR LANDS ACQUIRED PRIOR TO THE SUBMISSION OF PLANS, SPECIFICATIONS AND ESTIMATES BUT AFTER APPROVAL OF THE PRELIMINARY PROJECT STATEMENT SUBJECT TO THE CONDITIONS THAT (1) THE LANDS ARE WITHIN THE AREA DESCRIBED IN THE PREVIOUSLY APPROVED PRELIMINARY PROJECT STATEMENT; (2) THE ACQUISITION PRICES ARE WITHIN APPRAISED VALUES OR ARE OTHERWISE ACCEPTABLE TO THE DEPARTMENT; (3) THE PLANS, SPECIFICATIONS AND ESTIMATES COVERING THE ACQUIRED LANDS ARE RECEIVED BY THE DEPARTMENT WITHIN ONE FULL YEAR FROM THE DATE THE LANDS ARE ACQUIRED; AND (4) FEDERAL AID FUNDS BECOME AVAILABLE FOR REIMBURSEMENT AT DATE OF APPROVAL. THE ADMINISTRATIVE ASSISTANT SECRETARY EXPLAINS IT WOULD BE MADE CLEAR IN THE APPROPRIATE PROJECT DOCUMENTS THAT THE UNITED STATES WOULD BE UNDER NO OBLIGATION TO REIMBURSE THE STATE FOR LAND ACQUIRED PRIOR TO THE AVAILABILITY OF FEDERAL AID FUNDS, AND THAT ANY SUCH REIMBURSEMENT SHALL BE DISCRETIONARY WITH THE SECRETARY AND SUBJECT TO HIS DETERMINATION THAT THEY CAN BE USED FOR PROJECT PURPOSES.

THE EFFECT OF THE PROPOSED CHANGE IN PROCEDURES IS TO PERMIT PAYMENT FOR LAND ACQUIRED BY A STATE WITH ITS OWN FUNDS, IN CONNECTION WITH A RESTORATION PROJECT, IN ADVANCE OF AN APPORTIONMENT TO IT AND PRIOR TO FEDERAL FUNDS BECOMING AVAILABLE FOR SUCH PURPOSES. SUCH A PAYMENT WOULD DISCHARGE RETROACTIVELY AN OBLIGATION INCURRED BY THE STATE PRIOR TO THE AVAILABILITY AND OBLIGATION OF FEDERAL FUNDS THEREFOR.

BOTH OF THE ACTS UNDER CONSIDERATION SET FORTH IN DETAIL THE PROCEDURES TO BE FOLLOWED IN APPORTIONING FEDERAL FUNDS FOR THE USE OF THE STATES AND THE MANNER IN WHICH THEY MAY AVAIL THEMSELVES OF THE BENEFIT THEREOF. THAT IS, AFTER FUNDS HAVE BEEN APPORTIONED TO A STATE AND AFTER THE STATE HAS COMPLIED WITH THE TERMS AND CONDITIONS SPECIFIED IN THE ACT, THE APPROVAL BY THE SECRETARY OF THE INTERIOR OF THE PLANS, SPECIFICATIONS AND ESTIMATES OF A RESTORATION PROJECT OBLIGATES THE FUNDS SO APPORTIONED, AND SUCH FUNDS REMAIN AVAILABLE UNTIL EXPENDED FOR PAYMENT TO THE STATE IN SATISFACTION OF THE GOVERNMENT'S AGREEMENT TO BEAR A SHARE, AS SPECIFIED IN THE ACT, OF THE TOTAL COST OF THE PROJECT.

IN THESE CIRCUMSTANCES, IT REASONABLY APPEARS THAT THE CONGRESS DID NOT INTEND OR CONTEMPLATE THAT THE FEDERAL AID FUNDS WOULD BE APPLIED TO RESTORATION PROJECTS OTHER THAN THOSE INITIATED BY THE STATES WITH APPROVAL OF THE SECRETARY OF THE INTERIOR UNDER AN APPORTIONMENT FOR USE PROSPECTIVELY. AND THE FACT THAT IT IS PROPOSED, UNDER THE REVISED PROCEDURES, TO CONDITION THE GOVERNMENT'S LIABILITY TO A STATE FOR REIMBURSEMENT OF LAND PURCHASES CONTINGENT ON THE FUTURE AVAILABILITY OF FUNDS THEREFOR MAY NOT BE CONSIDERED AS LEGAL JUSTIFICATION TO WARRANT ADOPTION OF SUCH PROCEDURES.

ACCORDINGLY, WE CONCLUDE THAT, IN THE ABSENCE OF EXPRESS AUTHORITY OF LAW, FEDERAL AID FUNDS PROVIDED UNDER THE PITTMAN-1ROBERTSON AND DINGELL- 1JOHNSON ACTS ARE NOT AVAILABLE FOR PAYMENTS TO THE STATES IN SATISFACTION OF OBLIGATIONS OR EXPENDITURES MADE BY THE STATES FOR LAND PURCHASES, INCIDENT TO FISH AND WILDLIFE RESTORATION PROJECTS, PRIOR TO THE AVAILABILITY OF SUCH FUNDS.