B-154279, SEP. 27, 1965

B-154279, SEP. 27, 1965

TO MR. STERLING F. BLACK:

YOUR LETTER OF SEPTEMBER 3, 1965, REFERS TO OUR LETTER OF JULY 29, 1965, TO THE MOUNTAIN STATES TELEPHONE AND TELEGRAPH COMPANY AND REQUESTS CLARIFICATION OF THE LAST SENTENCE OF THE LAST PARAGRAPH, PAGE ONE, THEREIN AS FOLLOWS:

" * * * IT IS OUR VIEW THAT HAVING PAID FOR THE COST OF REMOVAL, THE GOVERNMENT IS ENTITLED EITHER TO REMOVAL OF THE PLANT UPON TERMINATION OF THE AGREEMENT OR AN APPROPRIATE MONETARY ADJUSTMENT.'

YOU REFER TO LETTER OF JULY 14, 1965, FROM MR. J. H. SHEPHERD AS ATTORNEY FOR THE MOUNTAIN STATES TELEPHONE AND TELEGRAPH COMPANY (MOUNTAIN) AND STATE THAT HIS CLIENT MAINTAINS THAT UPON TERMINATION OF THE CONTRACTUAL RELATIONSHIP BETWEEN THE ATOMIC ENERGY COMMISSION (AEC) AND HIS CLIENT THE LATTER WILL HAVE THE OPTION OF EITHER REMOVING THE OUTSIDE CABLE PLANT OR ALLOWING IT TO REMAIN IN PLACE ON AEC PROPERTY AND THAT MR. SHEPHERD'S CONTENTION, IN EFFECT, IS THAT MOUNTAIN HAS RECEIVED A PERPETUAL EASEMENT BY VIRTUE OF ITS HAVING ENTERED INTO AN ARRANGEMENT ON THE INSTALLATION PLUS CARRYING CHARGE BASIS. WHILE YOU EXPRESS THE VIEW THAT THE ABOVE- QUOTED LANGUAGE WAS NOT INTENDED TO CONFIRM MOUNTAIN'S CONTENTION OF A PERPETUAL EASEMENT OVER THE GOVERNMENT'S LAND IN LOS ALAMOS COUNTY, YOU STATE THAT YOU ARE AFRAID THAT MOUNTAIN WILL BE ABLE TO USE THE ABOVE- QUOTED LANGUAGE AS RATHER PERSUASIVE EVIDENCE THAT IT HAS A PERPETUAL RIGHT TO REMAIN UPON THE GOVERNMENT'S LAND IN LOS ALAMOS COUNTY. THEREFORE, YOU REQUEST CLARIFICATION OF THE ABOVE-QUOTED STATEMENT.

OUR OFFICE, OF COURSE, IS NOT RESPONSIBLE FOR ANY INTERPRETATION THAT MAY HAVE BEEN PLACED BY MOUNTAIN UPON OUR LETTER TO IT OF JULY 29, 1965, OR UPON ANY STATEMENT MADE IN OUR DECISION OF JULY 7, 1965, TO THE CHAIRMAN, UNITED STATES ATOMIC ENERGY COMMISSION. IT MAY BE STATED, HOWEVER, THAT THE ABOVE-QUOTED LANGUAGE WAS NOT INTENDED AS CONFIRMING ANY CONTENTION OR REFERENCE ON THE PART OF MOUNTAIN IN ITS LETTER OF JULY 14, 1965, TO OUR OFFICE THAT IT HAS, IN EFFECT, A PERPETUAL EASEMENT OVER THE GOVERNMENT'S LAND IN LOS ALAMOS COUNTY.

AS POINTED OUT IN YOUR LETTER SUCH CONTENTION IS CONTRARY TO THE POSITION INDICATED BY AEC TO THE EFFECT THAT SINCE THE GOVERNMENT PAID FOR THE COST OF REMOVAL OF THE OUTSIDE CABLE PLANT MOUNTAIN, IF ORDERED BY AEC TO REMOVE SAME, WOULD BE OBLIGATED TO DO SO AT NO ADDITIONAL EXPENSE TO THE GOVERNMENT. LIKEWISE SUCH CONTENTION HAS BEEN REPORTED AS CONTRARY TO THE LONG ESTABLISHED POLICY OF THE ARMY. SEE IN THIS REGARD, PARAGRAPH 18 OF THE CONTRACT IN USE IN THE LATE 1920'S BY THE SIGNAL CORPS, UNITED STATES ARMY AND MARINE CORPS, AS FOLLOWS:

"EIGHTEENTH: ON THE TERMINATION OF THIS CONTRACT AND THE SERVICES HEREIN PROVIDED FOR, THE TELEPHONE COMPANY SHALL, WITHIN A REASONABLE TIME AND AT ITS OWN EXPENSE, AND AT SUCH TIME AND IN SUCH ORDER AS THE SIGNAL OFFICER OR HIS DULY AUTHORIZED REPRESENTATIVE MAY REASONABLY SPECIFY, REMOVE FROM SAID PREMISES ALL OF THE TELEPHONE PLANT, MATERIAL AND EQUIPMENT, EXCEPT POLES AND CONDUITS, FURNISHED BY IT AT ANY TIME HEREUNDER OR IN CONNECTION THEREWITH. NO PLANT OR PARTS OF PLANT ON SAID PREMISES, THE USE OF WHICH HAS BEEN DISCONTINUED BY THE GOVERNMENT AND FOR THE USE OF WHICH THE GOVERNMENT HAS PAID ON ANY ONE OF THE BASES HEREIN PROVIDED, SHALL BE DISMANTLED PRIOR TO THE TERMINATION OF THIS CONTRACT WITHOUT THE APPROVAL OF THE SIGNAL OFFICER OR HIS DULY AUTHORIZED REPRESENTATIVE.'

SINCE AS POINTED OUT ON PAGE 6 OF OUR DECISION OF JULY 7, 1965, CONTRACT NO. W911-ENG.-1173, UNDER WHICH THE LOS ALAMOS TELEPHONE SYSTEM WAS TO BE CONSTRUCTED IS MISSING AND NOT AVAILABLE FOR EXAMINATION, WE ARE UNABLE TO SAY WHETHER A SIMILAR PROVISION TO THE EIGHTEENTH PARAGRAPH QUOTED ABOVE WAS INCLUDED IN CONTRACT NO. W911 ENG.-1173.