B-150239, APRIL 24, 1963, 42 COMP. GEN. 590

B-150239: Apr 24, 1963

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WHICH PURSUANT TO 23 U.S.C. 205 ARE INTENDED FOR THE PROTECTION. CONGRESSIONAL INTENT INDICATING THE ROADS ARE TO BE DEVELOPED UNDER COOPERATIVE ARRANGEMENTS BETWEEN THE FOREST SERVICE AND STATES. OR RECONSTRUCTION OF STATE- OR COUNTY CONTROLLED PUBLIC ROADS UNLESS SPECIFICALLY AUTHORIZED IS NOT FOR APPLICATION. UPON DETERMINATION THAT THE STATE- OR COUNTY-OWNED ROADS WITHIN OR SERVING THE NATIONAL FORESTS ARE ESSENTIAL TO THE PURPOSE OF SECTION 205. THE USE OF THE PROPOSED COOPERATIVE AGREEMENT FORM WILL PROTECT THE INTERESTS OF THE UNITED STATES. PROVIDED CONTROL OF THE ROADS IS PLACED IN THE FOREST SERVICE. 1963: REFERENCE IS MADE TO YOUR LETTER OF JANUARY 4. YOUR DEPARTMENT IS CONSTRUCTING AND IMPROVING ROAD SYSTEMS TO AFFORD ACCESS TO THE NATIONAL FORESTS.

B-150239, APRIL 24, 1963, 42 COMP. GEN. 590

HIGHWAYS - FOREST - STATE, ETC., ROADS IN NATIONAL FORESTS - COOPERATIVE AGREEMENTS ALTHOUGH THE APPROPRIATIONS FOR THE CONSTRUCTION AND MAINTENANCE OF FOREST DEVELOPMENT ROADS AND TRAILS, WHICH PURSUANT TO 23 U.S.C. 205 ARE INTENDED FOR THE PROTECTION, ADMINISTRATION, AND UTILIZATION OF THE NATIONAL FORESTS, CONTAIN NO SPECIFIC PROVISION FOR THE CONSTRUCTION OR THE MAINTENANCE OF EXISTING STATE- OR COUNTY-OWNED OR CONTROLLED ROADS IN THE FOREST DEVELOPMENT ROAD SYSTEM, CONGRESSIONAL INTENT INDICATING THE ROADS ARE TO BE DEVELOPED UNDER COOPERATIVE ARRANGEMENTS BETWEEN THE FOREST SERVICE AND STATES, COUNTIES, OR OTHER AGENCIES OF THE STATES, THE GENERAL RULE THAT APPROPRIATED FUNDS MAY NOT BE USED FOR THE REPAIR, IMPROVEMENT, OR RECONSTRUCTION OF STATE- OR COUNTY CONTROLLED PUBLIC ROADS UNLESS SPECIFICALLY AUTHORIZED IS NOT FOR APPLICATION, AND UPON DETERMINATION THAT THE STATE- OR COUNTY-OWNED ROADS WITHIN OR SERVING THE NATIONAL FORESTS ARE ESSENTIAL TO THE PURPOSE OF SECTION 205, THE USE OF THE PROPOSED COOPERATIVE AGREEMENT FORM WILL PROTECT THE INTERESTS OF THE UNITED STATES, PROVIDED CONTROL OF THE ROADS IS PLACED IN THE FOREST SERVICE.

TO THE SECRETARY OF AGRICULTURE, APRIL 24, 1963:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 4, 1963, WITH ENCLOSURE, REQUESTING A DECISION AS TO THE ADEQUACY OF A PROPOSED FORM OF FOREST DEVELOPMENT ROAD COOPERATIVE AGREEMENT UNDER WHICH APPROPRIATIONS PROVIDED FOR FOREST DEVELOPMENT ROADS AND TRAILS WOULD BE EXPENDED, PURSUANT TO THE TERMS OF 23 U.S.C. 205, FOR ROAD CONSTRUCTION AND IMPROVEMENT ON RIGHTS-OF -WAY IN THE NAME OF THE STATE, COUNTY, OR OTHER LOCAL SUBDIVISION, SUCH ROADS BEING WITHIN OR SERVING THE NATIONAL FORESTS.

YOU SAY THAT IN THE ADMINISTRATION OF THE NATIONAL FORESTS, YOUR DEPARTMENT IS CONSTRUCTING AND IMPROVING ROAD SYSTEMS TO AFFORD ACCESS TO THE NATIONAL FORESTS. SOME OF THE ROADS WILL BE CONSTRUCTED ON FEDERAL LAND. WHERE PRIVATE LAND IS INVOLVED IN SUCH ROAD CONSTRUCTION EASEMENT DEEDS ARE OBTAINED IN ACCORDANCE WITH THE TITLE REQUIREMENTS OF 40 U.S.C. 255, AND WHERE THE SITE OF THE ROAD IS ON STATE OR COUNTY LAND, OR WHERE RIGHTS-OF-WAY IN THE NAME OF THE STATE OR COUNTY ARE USED, AN AGREEMENT FOR CONSTRUCTION OF THE ROAD IS ENTERED INTO WITH THE NON-FEDERAL PUBLIC AGENCY.

YOU FURTHER STATE THAT THE ROADS NEEDED FOR THE ADMINISTRATION OF NATIONAL FORESTS AND THE UTILIZATION OF ITS RESOURCES ALSO SERVE THE NEEDS OF THE PUBLIC AND OTHER LANDOWNERS IN AND ADJACENT TO THE NATIONAL FORESTS; THAT PUBLIC ROADS CONSTRUCTED OR MAINTAINED BY AGENCIES OF THE STATES ALSO PASS THROUGH AND SERVE THE NATIONAL FORESTS; AND THAT THERE ARE NOW OVER 40,000 MILES OF EXISTING ROADS OF THE FOREST DEVELOPMENT ROAD SYSTEM WHICH ARE ALSO ON STATE OR COUNTY SYSTEMS.

YOU POINT OUT THAT THE COUNTIES OFTEN ARE IN POSSESSION OF RIGHTS-OF WAY CONSIDERED ADEQUATE FOR THE CONTINUING USE OF EXISTING ROADS; AND THAT THEY ARE IN A BETTER POSITION THAN THE UNITED STATES TO SECURE MORE EASILY AND AT LESS COST RIGHT-OF-WAY CONSIDERED ADEQUATE FOR THE CONTINUING USE OF SUCH ROADS WHICH ARE IN THE ROAD SYSTEM BUT FOR WHICH THE STATUS OF THE RIGHTS-OF-WAY IS UNCERTAIN. ALSO, THAT THE COUNTIES ARE IN A GOOD POSITION TO SECURE RIGHTS-OF-WAY FOR ADDITIONAL ROADS.

IN CONNECTION THEREWITH, YOU STATE THAT WHERE THE COUNTIES HAVE BORNE OR WILL BEAR ALL OR A PART OF THE INITIAL COSTS OF ACQUIRING SUCH RIGHTS-OF- WAY, THEY ARE NOT WILLING AND, IN MANY CASES, ARE WITHOUT AUTHORITY TO GRANT PERMANENT EASEMENTS TO THE UNITED STATES FOR IMPROVEMENT OF EXISTING ROADS OR CONSTRUCTION OF NEW ROADS; YET FREQUENTLY THE IMPROVEMENT OF SUCH A ROAD MAY BE ESSENTIAL FOR THE UTILIZATION OF NATIONAL FOREST RESOURCES. YOU SUGGEST THAT IF CONTINUED USE OF THE ROAD IS ASSURED THROUGH COOPERATIVE AGREEMENTS FOR THE PURPOSES FOR WHICH ANY UNITED STATES FUNDS ARE EXPENDED ON SUCH RIGHTS-OF-WAY, THE INTERESTS OF THE UNITED STATES WOULD APPEAR TO BE ADEQUATELY PROTECTED IN SUCH CASES.

YOU EXPLAIN THAT THE INCREASE IN THE PROPOSED ROAD PROGRAM AND THE EXTENT OF INTERRELATIONSHIP WITH THE STATE AND COUNTY SYSTEMS ON A NATIONWIDE BASIS REQUIRES MORE UNIFORMITY IN AND BETTER DOCUMENTATION OF THE TERMS OF COOPERATION WITH LOCAL PUBLIC AGENCIES. TO THAT END, THERE HAS BEEN PREPARED A PROPOSED FORM OF COOPERATIVE AGREEMENT, COPY OF WHICH ACCOMPANIED YOUR LETTER, UNDER WHICH FUNDS PROVIDED FOR FOREST DEVELOPMENT ROADS AND TRAILS WOULD BE EXPENDED FOR ROAD CONSTRUCTION AND IMPROVEMENT ON RIGHTS-OF-WAY WHICH ARE PARTS OF A SYSTEM OF STATE, COUNTY, OR OTHER LOCAL SUBDIVISION ROAD SYSTEM AND YOU REQUEST OUR DECISION AS TO THE ADEQUACY OF SUCH AGREEMENT.

UNDER THE TERMS OF 23 U.S.C. 205 (A) (SUPP. III), THE SECRETARY OF AGRICULTURE IS AUTHORIZED TO CONSTRUCT AND MAINTAIN FOREST DEVELOPMENT ROADS AND TRAILS, WITHIN THE LIMITS OF AVAILABLE FUNDS, AND IN CONNECTION THEREWITH HE MAY ENTER INTO CONTRACTS WITH A STATE OR CIVIL SUBDIVISION THEREOF, AND ISSUE SUCH REGULATIONS AS HE DEEMS ADVISABLE. SECTION 205 (B) PROVIDES THAT COOPERATION OF STATES, COUNTIES, OR OTHER LOCAL SUBDIVISIONS MAY BE ACCEPTED BUT SHALL NOT BE REQUIRED BY THE SECRETARY OF AGRICULTURE.

FOREST DEVELOPMENT ROADS AND TRAILS ARE DEFINED IN 23 U.S.C. 101 (A) TO MEAN "THOSE FOREST ROADS OR TRAILS OF PRIMARY IMPORTANCE FOR THE PROTECTION, ADMINISTRATION, AND UTILIZATION OF THE NATIONAL FORESTS, OR WHERE NECESSARY, FOR THE USE AND DEVELOPMENT OF THE RESOURCES UPON WHICH COMMUNITIES WITHIN OR ADJACENT TO THE NATIONAL FORESTS ARE DEPENDENT.'

THE APPROPRIATION FOR FOREST DEVELOPMENT ROADS AND TRAILS FOR THE FISCAL YEAR 1963, IS CONTAINED IN TITLE II OF THE DEPARTMENT OF THE INTERIOR AND RELATED AGENCIES APPROPRIATION ACT, 1963, PUBLIC LAW 87 578, APPROVED AUGUST 9, 1962, 76 STAT. 347, AS FOLLOWS:

FOR EXPENSES NECESSARY FOR CARRYING OUT THE PROVISIONS OF TITLE 23, U.S.C. SECTION 203 AND 205, RELATING TO THE CONSTRUCTION AND MAINTENANCE OF FOREST DEVELOPMENT ROADS AND TRAILS, $37,500,000, TO REMAIN AVAILABLE UNTIL EXPENDED, FOR LIQUIDATION OF OBLIGATIONS INCURRED PURSUANT TO AUTHORITY CONTAINED IN TITLE 23, UNITED STATES CODE, SECTION 203; 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.

THE ACT OF MARCH 4, 1913, AS CODIFIED IN 16 U.S.C. 501, REFERRED TO IN THE APPROPRIATION QUOTED ABOVE PROVIDES, IN PERTINENT PART:

TEN PERCENTUM OF ALL MONEYS RECEIVED FROM THE NATIONAL FORESTS DURING EACH FISCAL YEAR SHALL BE AVAILABLE AT THE END THEREOF, TO BE EXPENDED BY THE SECRETARY OF AGRICULTURE FOR THE CONSTRUCTION AND MAINTENANCE OF ROADS AND TRAILS WITHIN THE NATIONAL FORESTS IN THE STATES FROM WHICH SUCH PROCEEDS ARE DERIVED; BUT THE SECRETARY OF AGRICULTURE MAY, WHENEVER PRACTICABLE, IN THE CONSTRUCTION AND MAINTENANCE OF SUCH ROADS, SECURE THE COOPERATION OR AID OF THE PROPER STATE OR TERRITORIAL AUTHORITIES IN THE FURTHERANCE OF ANY SYSTEM OF HIGHWAYS OF WHICH SUCH ROADS MAY BE MADE A PART. * * *

IT IS THE GENERAL RULE THAT APPROPRIATED FUNDS MAY NOT BE USED FOR THE REPAIR, IMPROVEMENT, OR RECONSTRUCTION OF STATE-CONTROLLED OR COUNTY- CONTROLLED PUBLIC ROADS, UNLESS SPECIFICALLY AUTHORIZED BY LAW. SEE 39 COMP. GEN. 388 AND DECISIONS CITED THEREIN. WHILE THE APPROPRIATIONS QUOTED ABOVE CONTAIN NO SPECIFIC PROVISION FOR CONSTRUCTION OR MAINTENANCE OF EXISTING STATE- OR COUNTY-OWNED OR CONTROLLED ROADS IN THE FOREST DEVELOPMENT ROAD SYSTEM, IT CLEARLY APPEARS FROM THE LANGUAGE THEREOF, AND THE RELATED SUBSTANTIVE STATUTES AND FROM THEIR LEGISLATIVE HISTORIES, AS INDICATED IN YOUR LETTER AND FURTHER SUPPLEMENTED BY REPRESENTATIVES OF YOUR DEPARTMENT, THAT THE CONGRESS CONTEMPLATED THAT FOREST DEVELOPMENT ROADS AND TRAILS WOULD BE DEVELOPED UNDER COOPERATIVE ARRANGEMENTS BETWEEN THE FOREST SERVICE AND STATES, COUNTIES OR OTHER AGENCIES OF THE STATES AND, THEREFORE, THE CITED GENERAL RULE IS NOT FOR APPLICATION IN THIS SITUATION.

IN VIEW THEREOF, THE ABOVE-QUOTED APPROPRIATIONS MAY BE USED BY THE FOREST SERVICE UNDER COOPERATIVE ARRANGEMENTS WITH THE STATES, COUNTIES, OR OTHER LOCAL SUBDIVISIONS TO CONSTRUCT AND MAINTAIN ROADS ON RIGHTS-OF- WAY HELD IN THE NAME OF THE STATE, COUNTY, OR OTHER LOCAL SUBDIVISION, WHERE IT IS DETERMINED THAT SUCH CONSTRUCTION OR MAINTENANCE, ON ROADS WITHIN THE NATIONAL FORESTS OR SERVING THE NATIONAL FORESTS, IS ESSENTIAL FOR THE PROTECTION, ADMINISTRATION, AND UTILIZATION OF THE NATIONAL FORESTS; AND PROVIDED THAT PROPER JURISDICTION OVER THE CONTROL OR USE OF SUCH RIGHTS-OF-WAY FOR FOREST DEVELOPMENT ROAD PURPOSES IS PLACED IN THE FOREST SERVICE. IN THIS LATTER RESPECT, THE PROPOSED COOPERATIVE AGREEMENT APPEARS TO ADEQUATELY PROTECT THE INTERESTS OF THE UNITED STATES AND, THEREFORE, WE SEE NO OBJECTION TO THE AGREEMENT.