B-172174, MAY 12, 1971, 50 COMP GEN 794

B-172174: May 12, 1971

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TO PAY 100 PERCENT OF THE COST OF HIGHWAYS LOCATED WITHIN NATIONAL PARKS AND MONUMENTS UNDER THE JURISDICTION OF THE NATIONAL PARK SERVICE (NPS) DOES NOT PERMIT THE FINANCING OF THE ENTIRE COST ATTENDANT TO THE CONSTRUCTION OF THE THEODORE ROOSEVELT BRIDGE OVER THE POTOMAC RIVER AND LITTLE RIVER CROSSING AS THESE AREAS ALTHOUGH WITHIN NPS JURISDICTION ARE NOT PART OF THE NATIONAL PARK SYSTEM FOR THE PURPOSES OF 23 U.S.C. 120(G). ON THE BASIS THAT THE AFORESAID AREAS ARE INCLUDED WITHIN THE TERM "NATIONAL PARKS AND MONUMENTS UNDER THE JURISDICTION OF THE DEPARTMENT OF THE INTERIOR" AS THAT TERM IS USED IN 23 U.S.C. 120(G). THE REQUEST FOR 100 PERCENT FEDERAL FINANCING COMES FROM THE DISTRICT OF COLUMBIA WHICH IS CURRENTLY OBLIGATED TO PAY 10 PERCENT OF THE CONSTRUCTION COSTS.

B-172174, MAY 12, 1971, 50 COMP GEN 794

HIGHWAYS - CONSTRUCTION - FEDERAL AID HIGHWAY PROGRAMS - NATIONAL PARK SYSTEM - PERCENTAGE OF PARTICIPATION THE AUTHORITY IN THE FEDERAL-AID HIGHWAY ACT OF 1950, 23 U.S.C. 120(G), TO PAY 100 PERCENT OF THE COST OF HIGHWAYS LOCATED WITHIN NATIONAL PARKS AND MONUMENTS UNDER THE JURISDICTION OF THE NATIONAL PARK SERVICE (NPS) DOES NOT PERMIT THE FINANCING OF THE ENTIRE COST ATTENDANT TO THE CONSTRUCTION OF THE THEODORE ROOSEVELT BRIDGE OVER THE POTOMAC RIVER AND LITTLE RIVER CROSSING AS THESE AREAS ALTHOUGH WITHIN NPS JURISDICTION ARE NOT PART OF THE NATIONAL PARK SYSTEM FOR THE PURPOSES OF 23 U.S.C. 120(G), WHICH AUTHORIZES THE SECRETARY OF TRANSPORTATION TO CONSTRUCT ROADS THROUGH NATIONAL PARKS AND MONUMENTS AND RELATES ONLY INCIDENTALLY TO THE ADMINISTRATION AND PROTECTION OF PARKS AND MONUMENTS AS CONTEMPLATED BY THE ACT OF AUGUST 8, 1953, AS AMENDED. THEREFORE, THE 90-10 INTERSTATE PROJECT AGREEMENT WITH THE DISTRICT OF COLUMBIA MAY NOT BE AMENDED, NOR MAY 100 PERCENT PARTICIPATION FUNDS BE MADE AVAILABLE TO CONSTRUCT OTHER BRIDGES OVER LANDS MENTIONED IN THE ACT OF JUNE 4, 1934.

TO THE SECRETARY OF TRANSPORTATION, MAY 12, 1971:

YOUR LETTER OF MARCH 10, 1971, REQUESTS OUR OPINION AS TO WHETHER FEDERAL -AID HIGHWAY FUNDS MAY BE USED TO FINANCE 100 PERCENT OF THE COSTS ATTENDANT TO CONSTRUCTION OF THE THEODORE ROOSEVELT BRIDGE OVER THE POTOMAC RIVER AND THE LITTLE RIVER CROSSING, BOTH AREAS UNDER THE JURISDICTION OF THE NATIONAL PARK SERVICE, DEPARTMENT OF THE INTERIOR, ON THE BASIS THAT THE AFORESAID AREAS ARE INCLUDED WITHIN THE TERM "NATIONAL PARKS AND MONUMENTS UNDER THE JURISDICTION OF THE DEPARTMENT OF THE INTERIOR" AS THAT TERM IS USED IN 23 U.S.C. 120(G). THE REQUEST FOR 100 PERCENT FEDERAL FINANCING COMES FROM THE DISTRICT OF COLUMBIA WHICH IS CURRENTLY OBLIGATED TO PAY 10 PERCENT OF THE CONSTRUCTION COSTS. YOU FURTHER ASK, IF WE DECIDE THAT THE TERM "NATIONAL PARKS AND MONUMENTS" IN 23 U.S.C. 120(G) IS BROAD ENOUGH TO INCLUDE THE AREA OVER WHICH THE THEODORE ROOSEVELT BRIDGE IS CONSTRUCTED, WHETHER THE FEDERAL AID INTERSTATE PROJECT AGREEMENTS FOR THE BRIDGE, WHICH WERE ORIGINALLY AUTHORIZED ON A 90-10 PARTICIPATION BASIS, MAY NOW BE AMENDED TO PERMIT 100 PERCENT PARTICIPATION WITH FEDERAL-AID HIGHWAY FUNDS. WE NOTE FROM YOUR LETTER THAT WHILE THE QUESTIONS ARE RAISED IN RELATIONSHIP TO THE THEODORE ROOSEVELT BRIDGE, YOU ANTICIPATE THAT YOU MAY RECEIVE SIMILAR REQUESTS FROM THE DISTRICT OF COLUMBIA FOR 100 PERCENT FEDERAL PARTICIPATION IN OTHER BRIDGES CONSTRUCTED OR TO BE CONSTRUCTED ACROSS THE POTOMAC AND ANACOSTIA RIVERS.

THE AUTHORITY FOR THE USE OF FEDERAL-AID HIGHWAY FUNDS TO PAY THE ENTIRE COST OF THE CONSTRUCTION OF FEDERAL-AID HIGHWAYS LOCATED WITHIN "NATIONAL PARKS AND MONUMENTS UNDER THE JURISDICTION OF THE DEPARTMENT OF THE INTERIOR" WAS ORIGINALLY ENACTED INTO LAW IN SECTION 8 OF THE FEDERAL-AID HIGHWAY ACT OF 1950, 64 STAT. 785, AND IS NOW CODIFIED IN 23 U.S.C. 120(G), WHICH PROVIDES:

THE SECRETARY IS AUTHORIZED TO COOPERATE WITH THE STATE HIGHWAY DEPARTMENTS AND WITH THE DEPARTMENT OF THE INTERIOR IN THE CONSTRUCTION OF FEDERAL-AID HIGHWAYS WITHIN INDIAN RESERVATIONS AND NATIONAL PARKS AND MONUMENTS UNDER THE JURISDICTION OF THE DEPARTMENT OF THE INTERIOR AND TO PAY THE AMOUNT ASSUMED THEREFOR FROM THE FUNDS APPORTIONED IN ACCORDANCE WITH SECTION 104 OF THIS TITLE TO THE STATE WHEREIN THE RESERVATIONS AND NATIONAL PARKS AND MONUMENTS ARE LOCATED.

IN YOUR LETTER YOU DISCUSS THE ACT OF JUNE 4, 1934, 48 STAT. 836, WHICH WAS ENACTED FOR THE PURPOSE OF ESTABLISHING AND MAKING CLEAR THE TITLE OF THE UNITED STATES IN AND TO ANY PART OR PARCEL OF LAND OR WATER IN, UNDER, AND ADJACENT TO THE POTOMAC RIVER, AND OTHER BODIES OF WATER, INCLUDING SUBMERGED OR ADJACENT LANDS; THE OPINION DATED AUGUST 22, 1969, BY THE ASSOCIATE SOLICITOR, PARKS AND RECREATION, DEPARTMENT OF THE INTERIOR THAT THE NATIONAL PARK SERVICE MAY ISSUE PERMITS INVOLVING THE BED OF THE POTOMAC RIVER; AND CONVERSATIONS HELD BETWEEN MEMBERS OF YOUR STAFF AND THE ASSOCIATE SOLICITOR, PARKS AND RECREATION, DEPARTMENT OF THE INTERIOR. WE UNDERSTAND FROM THIS DISCUSSION AND FROM CONVERSATIONS WITH A MEMBER OF YOUR STAFF THAT ALL PARTIES CONCERNED AGREE THAT THE AREA CROSSED BY THE BRIDGE IS WITHIN THE JURISDICTION OF THE NATIONAL PARK SERVICE.

IT APPEARS FROM YOUR LETTER THAT IT IS THE DISTRICT'S CONTENTION THAT SINCE THE AREA OVER WHICH THE BRIDGE IS CONSTRUCTED IS WITHIN NATIONAL PARK SERVICE JURISDICTION, IT IS A NATIONAL PARK WITHIN THE MEANING OF 23 U.S.C. 120(G). FOR THE REASONS SET FORTH BELOW, WE CANNOT AGREE.

AS INDICATED ABOVE, THE PHRASE "NATIONAL PARKS AND MONUMENTS UNDER THE JURISDICTION OF THE DEPARTMENT OF THE INTERIOR" WAS FIRST ENACTED INTO THE LAW AS PART OF SECTION 8 OF THE FEDERAL-AID HIGHWAY ACT OF 1950. SECTION 4(A) OF THE SAME ACT, APPROPRIATIONS ARE AUTHORIZED FOR "THE CONSTRUCTION, RECONSTRUCTION, IMPROVEMENT, AND MAINTENANCE OF ROADS AND TRAILS *** IN NATIONAL PARKS, MONUMENTS, AND OTHER AREAS ADMINISTERED BY THE NATIONAL PARK SERVICE." IT WOULD APPEAR THAT IF THE CONGRESS HAD INTENDED THE PROVISIONS OF SECTION 8 TO BE CONSTRUED BROADLY ENOUGH TO ENCOMPASS ALL AREAS UNDER THE JURISDICTION OF THE NATIONAL PARK SERVICE, IT WOULD HAVE USED LANGUAGE SUBSTANTIALLY SIMILAR TO THAT USED IN SECTION 4(A) OF THE SAME ACT. COMPARE ALSO SECTION 4(B) OF THE LAST CITED ACT.

MOREOVER, IN CONNECTION WITH THE MATTER, WE HAVE CONSIDERED THE APPLICABILITY OF SECTION 2(B) OF PUBLIC LAW 91-383, 84 STAT. 826, WHICH AMENDED SECTION 2 OF THE ACT OF AUGUST 8, 1953, 67 STAT. 496, 16 U.S.C. 1C, IN ORDER TO UPDATE, MAKE UNIFORM, AND CLARIFY THE LAW WITH RESPECT TO THE ADMINISTRATION OF THE VARIOUS UNITS OF THE NATIONAL PARK SYSTEM. SECTION 2 OF THE 1953 ACT, AS AMENDED BY PUBLIC LAW 91-383, 16 U.S.C. 1C, READS, IN PERTINENT PART, AS FOLLOWS:

THE "NATIONAL PARK SYSTEM" SHALL INCLUDE ANY AREA OF LAND AND WATER NOW OR HEREAFTER ADMINISTERED BY THE SECRETARY OF THE INTERIOR, THROUGH THE NATIONAL PARK SERVICE FOR PARK, MONUMENT, HISTORIC, PARKWAY, RECREATIONAL, OR OTHER PURPOSES.

(B) EACH AREA WITHIN THE NATIONAL PARK SYSTEM SHALL BE ADMINISTERED IN ACCORDANCE WITH THE PROVISIONS OF ANY STATUTE MADE SPECIFICALLY APPLICABLE TO THAT AREA. IN ADDITION, THE PROVISIONS OF THIS ACT, AND THE VARIOUS AUTHORITIES RELATING TO THE ADMINISTRATION AND PROTECTION OF AREAS UNDER THE ADMINISTRATION OF THE SECRETARY OF THE INTERIOR THROUGH THE NATIONAL PARK SERVICE, INCLUDING BUT NOT LIMITED TO *** SHALL, TO THE EXTENT SUCH PROVISIONS ARE NOT IN CONFLICT WITH ANY SUCH SPECIFIC PROVISION, BE APPLICABLE TO ALL AREAS WITHIN THE NATIONAL PARKS, MONUMENTS, RECREATION AREAS, HISTORIC MONUMENTS, OR PARKWAYS SHALL HEREINAFTER NOT BE CONSTRUED AS LIMITING SUCH ACTS TO THOSE AREAS.

IT IS OUR VIEW THAT THE MEANING OF THE TERM "NATIONAL PARKS AND MONUMENTS" IN 23 U.S.C. 120(G) IS NOT AFFECTED BY THE AFOREMENTIONED PROVISIONS OF PUBLIC LAW 91-383, SINCE 23 U.S.C. 120(G) IS NOT AN AUTHORITY "RELATING TO THE ADMINISTRATION AND PROTECTION OF AREAS UNDER THE ADMINISTRATION OF THE" NATIONAL PARK SERVICE. RATHER, SECTION 8 OF THE FEDERAL-AID HIGHWAY ACT OF 1950, NOW CODIFIED AS 23 U.S.C. 120(G), WAS ENACTED PRIMARILY TO GIVE AUTHORITY TO THE SECRETARY OF TRANSPORTATION TO COOPERATE IN THE CONSTRUCTION OF FEDERAL-AID HIGHWAYS THROUGH NATIONAL PARKS AND MONUMENTS AND ONLY INCIDENTALLY RELATES TO THE ADMINISTRATION OF AREAS UNDER THE JURISDICTION OF THE NATIONAL PARK SERVICE. CONSEQUENTLY, WE HAVE CONCLUDED THAT THE PROVISIONS OF 23 U.S.C. 120(G) APPLY ONLY TO HIGHWAYS TO BE CONSTRUCTED WITHIN NATIONAL PARKS AND MONUMENTS, I.E., AREAS ADMINISTERED BY THE NATIONAL PARK SERVICE FOR NATIONAL PARK AND MONUMENT PURPOSES.

IN REGARD TO WHETHER THE AREA CROSSED BY THE BRIDGE MAY BE CONSIDERED WITHIN A NATIONAL PARK OR MONUMENT, AS INDICATED IN YOUR LETTERS, THE DEFINITIONS IN SECTION 2 OF THE ACT OF AUGUST 8, 1953, 67 STAT. 496, DISTINGUISHED BETWEEN LANDS IN THE "NATIONAL PARK SYSTEM" AND "MISCELLANEOUS AREAS" ADMINISTERED OR SUPERVISED BY THE NATIONAL PARK SERVICE AND SECTION 2(B) OF PUBLIC LAW 91-383, QUOTED ABOVE, SIMPLIFIED THE DEFINITIONS IN THE 1953 ACT BY INCLUDING AS PART OF THE "NATIONAL PARK SYSTEM" NOT ONLY LAND ADMINISTERED BY THE SECRETARY FOR PARK, MONUMENT, HISTORIC, PARKWAY OR RECREATIONAL PURPOSES BUT ALSO LAND ADMINISTERED BY THE SECRETARY FOR "OTHER PURPOSES." YOU STATE IN YOUR LETTER THAT IT IS YOUR UNDERSTANDING FROM INFORMAL DISCUSSIONS WITH THE ASSOCIATE SOLICITOR, PARKS AND RECREATION, DEPARTMENT OF THE INTERIOR THAT "THE ONLY LANDS IDENTIFIABLE AS 'MISCELLANEOUS AREAS,' UNDER THE 1953 ACT, AND AS AREAS ADMINISTERED FOR 'OTHER PURPOSES,' WITHIN THE DEFINITION IN THE 1970 ACT, ARE THE AREAS IDENTIFIED IN THE ACT OF JUNE 4, 1934, REFERRED TO ABOVE." IN OTHER WORDS, IT APPEARS THAT THE DEPARTMENT OF THE INTERIOR HAS NEVER CONSIDERED THE AREA SPANNED BY THE THEODORE ROOSEVELT BRIDGE AS A NATIONAL PARK OR MONUMENT OR A PART THEREOF. THUS WHILE THE LANDS INVOLVED HERE MAY BE PART OF THE NATIONAL PARK SYSTEM SUCH LANDS ARE NOT NATIONAL PARKS OR MONUMENTS.

IN LIGHT OF THE FOREGOING, IT IS OUR VIEW THAT FEDERAL-AID HIGHWAY FUNDS MAY NOT PARTICIPATE, UNDER THE AUTHORITY OF 23 U.S.C. 120(G), IN 100 PERCENT OF THE COSTS ATTENDANT TO THE CONSTRUCTION OF THE THEODORE ROOSEVELT BRIDGE OR OTHER BRIDGES CONSTRUCTED OR TO BE CONSTRUCTED OVER THE LANDS MENTIONED IN THE ACT OF JUNE 4, 1934, 48 STAT. 836. CONSEQUENTLY, YOUR QUESTION AS TO WHETHER THE EXISTING PROJECT AGREEMENTS MAY BE AMENDED TO PERMIT 100 PERCENT PARTICIPATION WITH FEDERAL-AID FUNDS IN THE COSTS ATTENDANT TO CONSTRUCTION OF THE BRIDGE IS MOOT AND NEED NOT BE ANSWERED.