B-30418, DECEMBER 21, 1942, 22 COMP. GEN. 563

B-30418: Dec 21, 1942

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THE HEAD OF AN EXECUTIVE DEPARTMENT OF THE GOVERNMENT IS WITHOUT AUTHORITY TO DISPOSE OF LAND OR OTHER PROPERTY OF THE UNITED STATES. IS NOT IN DEROGATION OF ARTICLE IV. THERE IS NO LEGAL OBJECTION TO THE EXECUTION OF SUCH A CONTRACT. AS FOLLOWS: YOUR OPINION IS REQUESTED AS TO WHETHER THIS COMMISSION CAN ENTER INTO AGREEMENTS WHEREBY LAND UPON WHICH ITS RADIO MONITORING STATIONS ARE LOCATED MAY BE CULTIVATED BY NEIGHBORING FARMERS. THE PRIMARY PURPOSE OF THE AGREEMENTS WILL BE TO ELIMINATE OR REDUCE FIRE AND WIND HAZARDS BUT THEY WILL ALSO HAVE THE EFFECT OF MAKING LAND AVAILABLE FOR THE PRODUCTION OF FOOD AND PRODUCING REVENUE FOR THE UNITED STATES TREASURY. WE ARE PARTICULARLY INTERESTED IN ENTERING INTO AN AGREEMENT COVERING LAND AT SANTA ANA.

B-30418, DECEMBER 21, 1942, 22 COMP. GEN. 563

PUBLIC PROPERTY - ADMINISTRATIVE AUTHORITY TO DISPOSE OF IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY THEREFOR, THE HEAD OF AN EXECUTIVE DEPARTMENT OF THE GOVERNMENT IS WITHOUT AUTHORITY TO DISPOSE OF LAND OR OTHER PROPERTY OF THE UNITED STATES. A CONTRACT BY THE FEDERAL COMMUNICATIONS COMMISSION, GRANTING AN INDIVIDUAL A REVOCABLE LICENSE OR PERMIT--- AS DISTINGUISHED FROM A VESTED PROPERTY RIGHT--- TO CULTIVATE GOVERNMENT-OWNED LAND UNDER THE COMMISSION'S CONTROL FOR THE PURPOSE OF ELIMINATING OR REDUCING FIRE AND WIND HAZARDS TO RADIO MONITORING STATIONS LOCATED ON THE LAND, IS NOT IN DEROGATION OF ARTICLE IV, SECTION 3, CLAUSE 2 OF THE CONSTITUTION OF THE UNITED STATES, RESERVING TO THE CONGRESS THE POWER TO DISPOSE OF FEDERAL PROPERTY, AND, THEREFORE, THERE IS NO LEGAL OBJECTION TO THE EXECUTION OF SUCH A CONTRACT.

COMPTROLLER GENERAL WARREN TO THE CHAIRMAN, FEDERAL COMMUNICATIONS COMMISSION, DECEMBER 21, 942:

THERE HAS BEEN CONSIDERED YOUR LETTER OF NOVEMBER 17, 1942, AS FOLLOWS:

YOUR OPINION IS REQUESTED AS TO WHETHER THIS COMMISSION CAN ENTER INTO AGREEMENTS WHEREBY LAND UPON WHICH ITS RADIO MONITORING STATIONS ARE LOCATED MAY BE CULTIVATED BY NEIGHBORING FARMERS. THE PRIMARY PURPOSE OF THE AGREEMENTS WILL BE TO ELIMINATE OR REDUCE FIRE AND WIND HAZARDS BUT THEY WILL ALSO HAVE THE EFFECT OF MAKING LAND AVAILABLE FOR THE PRODUCTION OF FOOD AND PRODUCING REVENUE FOR THE UNITED STATES TREASURY.

WE ARE PARTICULARLY INTERESTED IN ENTERING INTO AN AGREEMENT COVERING LAND AT SANTA ANA, CALIFORNIA. THIS TRACT OF 110 ACRES WAS PURCHASED ON JUNE 6, 1941, PURSUANT TO AUTHORITY CONTAINED IN THE FIRST SUPPLEMENTAL CIVIL FUNCTIONS APPROPRIATION ACT, 1941 ( PUB. NO. 812, 76TH CONGRESS.) MONITORING STATION HAS BEEN CONSTRUCTED AND IS IN OPERATION, AND ANTENNAS HAVE BEEN ERECTED UTILIZING THE FULL LENGTH AND WIDTH OF THE TRACT. HOWEVER, LARGE PORTIONS OF THE SURFACE OF THE TRACT ARE NOT IN USE AND THE GROWTH OF GRASS AND WEEDS CONSTITUTES A SERIOUS FIRE HAZARD. A STUDY HAS BEEN MADE OF THE SOIL BY THE SOIL CONSERVATION SERVICE OF THE DEPARTMENT OF AGRICULTURE AND IT HAS RECOMMENDED A LAND UTILIZATION PROGRAM. NEIGHBORING FARMER HAS ASKED TO CARRY OUT THIS PROGRAM AND HAS SUBMITTED A WRITTEN PROPOSAL, A COPY OF WHICH IS ATTACHED FOR YOUR INFORMATION.

YOUR EARLY REPLY WILL BE APPRECIATED.

THE ATTACHED COPY OF THE WRITTEN PROPOSAL SUBMITTED BY STEPHEN GRISET, BRISTOL STREET, SANTA ANA, CALIFORNIA, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

I WILL AGREE TO PLACE THE ABOVE MENTIONED LAND UNDER CULTIVATION IN A WINTER HAY CROP SUCH AS OATS, WHEAT, BARLEY OR RYE GRASS, THE COST OF ALL SEED AND LABOR TO BE BORNE BY ME AND INVOLVING NO COST WHATEVER TO THE GOVERNMENT. THE HAY WILL BE CUT AND REMOVED FROM THE PROPERTY WHILE STILL IN A GREEN AND UNMATURED CONDITION IN ORDER THAT NO FIRE HAZARD WILL BE PRESENTED BY ITS PRESENCE, SAID CROP TO BELONG ENTIRELY TO ME. I AGREE THAT THE GROUND WILL BE CLEARED BUT LEFT BARE AND UNPLANTED AROUND CERTAIN AREAS, WHICH AREAS WILL BE MADE KNOWN TO ME BY THE RADIO INSPECTOR IN CHARGE OF THE MONITORING STATION OR SOME HIGHER GOVERNMENT AUTHORITY.

WITHIN TWO WEEKS OF THE REMOVAL OF THE ABOVE MENTIONED CROP I WILL CULTIVATE THE GROUND SUFFICIENTLY TO REMOVE ANY FIRE HAZARD WHICH MIGHT BE PRESENTED BY THE REMAINING STALKS AND STUBBLE. IN ADDITION, IF THE GROWTH OF GRASS AND WEEDS ON THE LAND BECOMES A SERIOUS FIRE HAZARD BETWEEN THE TIME OF HARVESTING THE CROP IN THE SPRING AND THE TIME OF SOIL PREPARATION FOR THE NEXT FALL PLANTING I WILL AGREE TO DISC OR CULTIVATE THE LAND IN SUCH A MANNER AS TO REMOVE THIS HAZARD WITHOUT COST TO THE GOVERNMENT.

THIS AGREEMENT IS PROPOSED IN ORDER THAT I MAY OBTAIN GREEN HAY FOR USE IN FEEDING THE 100 HEAD OF DAIRY CATTLE OWNED BY ME.

I WOULD PREFER TO OBTAIN PERMISSION TO OPERATE UNDER THE ABOVE CONDITIONS FOR A PERIOD OF FIVE YEARS BUT IF NECESSARY WILL ACCEPT THE USUAL GOVERNMENT CONTRACT TERM OF ONE YEAR, THE TERMS OF THE AGREEMENT TO CONTINUE AFTER THAT PERIOD UNTIL REVOKED BY EITHER PARTY. I AGREE THAT THIS CONTRACT MAY BE CANCELLED BY EITHER PARTY UPON THIRTY DAYS NOTICE.

IN CONSIDERATION OF THE ABOVE CONDITIONS I WILL AGREE TO PAY THE UNITED STATES GOVERNMENT THE SUM OF TWO DOLLARS ($2.00) PER ACRE FOR THE APPROXIMATELY 105 ACRES WHICH WILL BE AVAILABLE FOR CULTIVATION, OR A TOTAL OF TWO HUNDRED TEN DOLLARS ($210.00) WHICH SUM IS TO BE PAID WITHIN TWO WEEKS AFTER REMOVAL OF THE ABOVE MENTIONED GREEN HAY CROP.

ARTICLE IV, SECTION 3, CLAUSE 2 OF THE CONSTITUTION OF THE UNITED STATES PROVIDES THAT:

THE CONGRESS SHALL HAVE POWER TO DISPOSE OF AND MAKE ALL NEEDFUL RULES AND REGULATIONS RESPECTING THE TERRITORY OR OTHER PROPERTY BELONGING TO THE UNITED STATES * * *.

THE COURTS UNIFORMLY HAVE HELD THAT SUCH PROVISION CONFERS ON CONGRESS EXCLUSIVE JURISDICTION TO DISPOSE OF THE LAND OR OTHER PROPERTY OF THE UNITED STATES AND THAT THERE IS NO POWER IN THE HEAD OF AN EXECUTIVE DEPARTMENT OF THE GOVERNMENT TO TAKE SUCH ACTION WITHOUT SPECIFIC LEGISLATIVE AUTHORITY THEREFOR. UNITED STATES V. NICOLL, 1 PAINE ( U.S.) 646 ( FED. CASE 15879); IRVINE V. MARSHALL, 20 HOWARD 558; WISCONSIN R. CO. V. PRICE COUNTY, 133 U.S. 496; LIGHT V. UNITED STATES, 220 U.S. 523; UNITED STATES V. FORBES, 259 F. 385. TO THE SAME EFFECT ARE THE DECISIONS OF THIS OFFICE, SEE 14 COMP. GEN. 169; 15 ID. 96.

THERE HAS BEEN FOUND NO PROVISION IN THE COMMUNICATIONS ACT OF 1934 (48 STAT. 1064) OR IN ANY OTHER LAW AUTHORIZING THE COMMISSION TO DISPOSE OF ANY OF THE PROPERTY OF THE UNITED STATES UNDER ITS CONTROL. HENCE, IF THE GRANT TO BE EFFECTED BY THE PROPOSED AGREEMENT CONSTITUTES A DISPOSAL OF PROPERTY WITHIN THE MEANING OF THE CLAUSE OF THE CONSTITUTION ABOVE QUOTED, IT WOULD SEEM NECESSARILY TO FOLLOW THAT THE EXECUTION OF SUCH AGREEMENTS BY YOUR COMMISSION WOULD BE AN UNLAWFUL EXERCISE OF AUTHORITY.

THE PRESENT CHIEF JUSTICE OF THE UNITED STATES, WHILE SERVING AS ATTORNEY GENERAL, RENDERED AN OPINION (34 OP. ATTY. GEN. 320) IN WHICH HE STATED, WITH RESPECT TO SAID PROVISION:

IT IS PLAIN THAT THE INTENT OF THE CONSTITUTIONAL PROVISION WAS TO PREVENT ALIENATION OF THE TITLE, OWNERSHIP, OR CONTROL OF GOVERNMENT PROPERTY, WHETHER REAL OR PERSONAL, WITHOUT CONGRESSIONAL SANCTION. THAT IS THE EVIL WHICH WAS INTENDED TO BE AVOIDED, AND NO CONSTRUCTION BEYOND THAT INTENT SHOULD BE IMPOSED ON THE PROHIBITION UNLESS CLEARLY IMPLIED, ESPECIALLY WHEN IT WOULD LEAD TO UNREASONABLE AND UNFORESEEN RESULTS. ITALICS SUPPLIED.) THAT OPINION HAD REFERENCE TO THE AUTHORITY OF THE SECRETARY OF THE NAVY TO GIVE A REVOCABLE LICENSE TO USE A PATENT WHICH HAD BEEN ACQUIRED BY HIM FOR THE GOVERNMENT. IT WAS CONCLUDED THAT SINCE NO INTEREST OR TITLE IN THE PATENT WOULD BE OBTAINED THEREUNDER--- AS IN THE CASE OF A SALE, LEASE, OR EASEMENT--- IT WAS WITHIN THE POWER OF THE SECRETARY TO GRANT SUCH LICENSE. ALTHOUGH SAID OPINION CONTAINS, PERHAPS, THE MOST COMPREHENSIVE DISCUSSION OF THE EXTENT OF THE CONSTITUTIONAL LIMITATION ON THE POWER OF THE EXECUTIVE BRANCH OF THE GOVERNMENT WITH RESPECT TO PROPERTY OF THE UNITED STATES, IT APPEARS THAT SUCH VIEW OF THE LAW UNIFORMLY HAS BEEN MAINTAINED BY THE VARIOUS ATTORNEYS GENERAL.

THUS, IN 19 OP. ATTY. GEN. 628, WHEREIN THERE WAS CONSIDERED THE AUTHORITY OF THE SECRETARY OF WAR TO GRANT A LICENSE TO A PRIVATE PARTY TO CONSTRUCT AND MAINTAIN AN IRRIGATING DITCH THROUGH A MILITARY RESERVATION, FROM WHICH THE LICENSEE WAS TO FURNISH FREE TO THE UNITED STATES ALL WATER REQUIRED BY THE POST FOR MILITARY PURPOSES, IT WAS STATED:

IT HAS BEEN THE PRACTICE FOR MANY YEARS FOR THE SECRETARY OF WAR, AND SOMETIMES THE PRESIDENT, AS THE FILES OF YOUR DEPARTMENT WILL NO DOUBT SHOW, TO GRANT REVOCABLE LICENSES TO INDIVIDUALS TO ENTER UPON MILITARY RESERVATIONS AND PROSECUTE UNDERTAKINGS THERE WHICH MAY BE BENEFICIAL TO THE MILITARY BRANCH OF THE PUBLIC SERVICE AS WELL AS ADVANTAGEOUS TO THE LICENSEES.

IN THIS CASE THE LICENSE APPLIED FOR RELATES TO A MILITARY RESERVATION SITUATED IN AN ARID REGION, AND THEREFORE, IN VIEW OF THE ADVANTAGE TO FORT SELDEN OF THE USE OF THIS WATER, AND IN VIEW OF THE FREQUENT EXERCISE OF A SIMILAR POWER BY GRANTING SUCH LICENSES AS OCCASIONS HAVE ARISEN THROUGH SO MANY YEARS, IT SEEMS CLEAR THAT SUCH LICENSE MAY BE GRANTED, THE SAME TO BE UNDER WELL CONSIDERED RESTRICTIONS AND REVOCABLE AT THE WILL AND PLEASURE OF THE SECRETARY OF WAR.

AGAIN, IN 20 OP. ATTY. GEN. 93, INVOLVING THE AUTHORITY OF THE SECRETARY OF WAR TO GRANT TO A BOARD OF PORTAGE COMMISSIONERS APPOINTED BY THE STATE OF OREGON THE RIGHT TO OPERATE A RAILROAD OVER GOVERNMENT LAND, THE ATTORNEY GENERAL SAID:

IT WILL BE OBSERVED THAT THE PROPOSITION IS NOT TO GIVE THE BOARD OF PORTAGE COMMISSIONERS A LICENSE TO USE THE CONTEMPLATED RAILWAY WHICH SHALL BE REVOCABLE AT THE PLEASURE OF THE UNITED STATES. THE STATE IS TO RENDER A VALUABLE CONSIDERATION FOR THE USE OF THE RAILWAY, AND IT IS NOT REASONABLE TO SUPPOSE THAT IT WAS INTENDED THAT THE STATE SHOULD HOLD ITS RIGHTS AT THE MERE SUFFERANCE OF THE UNITED STATES. THE EFFECT THEN, OF THE ARRANGEMENT WOULD BE TO GIVE THE STATE A VESTED RIGHT TO OPERATE THE RAILWAY, AND WITH IT THE RIGHT TO DERIVE REVENUE BY TAKING FEES AND TOLLS FOR THE TRANSPORTATION OF PERSONS AND MERCHANDISE. ACCORDINGLY, IT WAS HELD THAT SUCH A GRANT WAS UNAUTHORIZED.

AND, IN 20 OP. ATTY. GEN. 527, AS TO THE AUTHORITY OF THE SECRETARY OF THE TREASURY TO GIVE A RAILROAD COMPANY THE RIGHT TO USE A STRIP OF GOVERNMENT LAND AT AN ANNUAL RENTAL, IT WAS HELD:

* * * I AM OF OPINION THAT THE INSTRUMENT CALLED A "LEASE" ONLY OPERATED AS A REVOCABLE LICENSE, IF IT HAD ANY LEGAL EFFECT, AND DID NOT CONVEY ANY ESTATE IN THE STRIP OF LAND NOW OCCUPIED BY THE DELAWARE BAY AND CAPE MAY RAILROAD COMPANY, AND THAT THE SECRETARY OF THE TREASURY HAS POWER TO REVOKE THE LICENSE AT PLEASURE, AND TO REMOVE THE PROPERTY OF THE COMPANY FROM THE RESERVATION UPON ITS FAILURE TO DO SO, AFTER REASONABLE NOTICE *

IN 21 OP. ATTY. GEN. 476, THERE WAS CONSIDERED THE RIGHT OF THE SECRETARY OF THE TREASURY TO LEASE OR LICENSE, FOR A TERM OF YEARS, THE USE OF A PORTION OF ELLIS ISLAND, NEW YORK, FOR THE PURPOSE OF ERECTING AND MAINTAINING AN EXHIBITION HALL AND CONDUCTING A LAND AND LABOR BUREAU, AS RECOMMENDED IN A REPORT OF THE IMMIGRATION AND INVESTIGATION COMMITTEE. THE SOLICITOR OF THE TREASURY PREVIOUSLY HAD RENDERED AN OPINION TO THE EFFECT THAT IT WAS LAWFUL TO GRANT A LICENSE FOR SUCH PURPOSES. IN THIS, THE ATTORNEY GENERAL PREVIOUSLY HAD CONCURRED. IN AMPLIFICATION OF SUCH OPINION HE STATES:

I PURPOSELY LED THE EXPRESSION OF MY OPINION TO THE MATTER OF LICENSE, BECAUSE THE OPINION OF THE SOLICITOR OF THE TREASURY WENT NO FURTHER, AND BECAUSE THE LANGUAGE OF YOUR ENDORSEMENT SEEMED NECESSARILY TO CONTEMPLATE A LICENSE, ALTHOUGH THE WORD "LEASED" WAS USED. IT SPEAKS OF THE RIGHT "TO LEASE OR LICENSE FOR A TERM OF YEARS THE USE OF A PORTION OF ELLIS ISLAND.'

THERE CAN NOT STRICTLY BE THE LEASE OF A USE.

THE SECRETARY OF THE TREASURY HAS NOT THE POWER TO LEASE FOR A TERM OF YEARS, OR FOR ANY LENGTH OF TIME, THE PROPERTY OF THE GOVERNMENT PLACED IN HIS CHARGE WITHOUT EXPRESS AUTHORITY OF LAW THEREFOR; AND NO SUCH AUTHORITY EXISTS UNDER WHICH HE CAN LEASE ANY PART OF ELLIS ISLAND.

IN 22 OP. ATTY. GEN. 240, THE ATTORNEY GENERAL STATED:

THE RIGHT OF AN EXECUTIVE DEPARTMENT OF THE GOVERNMENT TO GRANT PERMISSION FOR THE USE OF ANY PART OF THE GOVERNMENT LANDS, EXCEPT FOR GOVERNMENT PURPOSES, HAS BEEN SEVERAL TIMES CONSIDERED BY THE ATTORNEY GENERAL (16 OPIN., 206; 19 OPIN., 628; 20 OPIN., 93; 21 OPIN., 537). NO INSTANCE THAT I KNOW OF HAS ANY DEPARTMENT ASSUMED TO GRANT ANYTHING MORE THAN A MERE REVOCABLE LICENSE, SUBJECT TO TERMINATION AT ANY TIME AT THE WILL OF THE GOVERNMENT. THAT SUCH LICENSE CONFERRED NO CONTRACTUAL RIGHT UPON THE LICENSEE HAS BEEN UNIVERSALLY ASSERTED BY EVERY ATTORNEY- GENERAL WHO HAS HAD OCCASION TO PASS UPON SUCH CONCESSIONS.

LONG-CONTINUED EXERCISE OF A POWER OF THIS KIND BY THE SECRETARY OF WAR, AND THE OPEN AND NOTORIOUS USE OF GOVERNMENT RESERVATIONS BY SUCH LICENSEES WITHOUT LEGISLATIVE OBJECTION FROM CONGRESS AND WITHOUT THE ADOPTION OF ANY LEGISLATIVE RULE UPON THE SUBJECT, IMPLIES THE TACIT ASSENT OF CONGRESS TO THIS CUSTOM. AT THE SAME TIME, I DEEM IT PROPER TO CALL YOUR ATTENTION TO THE FACT THAT THIS CUSTOM CAN NOT BE MAINTAINED UPON ANY GROUND EXCEPT BENEFIT TO THE PUBLIC INTERESTS, EITHER DIRECTLY OR INDIRECTLY.

AND, IN 22 OP. ATTY. GEN. 544, WITH RESPECT TO THE CONSTRUCTION BY A PRIVATE CONCERN OF A WHARF OR PIER ON LAND OF THE UNITED STATES IN PORTO RICO, IT WAS SAID:

* * * I DO NOT KNOW OF ANY RIGHT OR POWER WHICH THE SECRETARY OF WAR OR THE PRESIDENT HAS TO ALIENATE IN PERPETUITY ANY OF THE PUBLIC DOMAIN OF THE UNITED STATES, EXCEPT IN ACCORDANCE WITH ACTS OF CONGRESS DULY PASSED WITH REFERENCE THERETO.

UNDOUBTEDLY IT WILL BE WITHIN YOUR LAWFUL POWER TO MAKE TEMPORARY USE OF THE GOVERNMENT DOMAIN IN PORTO RICO DURING THE PERIOD OF OCCUPANCY BY THE MILITARY FORCES OF THE UNITED STATES, AND, IF IT CONSERVES THE INTERESTS OF THE GOVERNMENT AND ITS ADMINISTRATION OF AFFAIRS IN THE ISLAND, TO GRANT LEAVE OR LICENSE TO AN INDIVIDUAL TO MAKE TEMPORARY USE OF PORTIONS OF THE PUBLIC DOMAIN; BUT ANY PRIVILEGE OF THIS KIND SHOULD BE LIMITED IN ITS EXTENT TO THE PERIOD OF MILITARY OCCUPATION, AND SHOULD NOT BE EXTENDED SO AS TO CONTINUE AS A VESTED RIGHT AGAINST THE UNITED STATES WHEN CONGRESS SHALL HAVE IMPOSED SOME OTHER FORM OF GOVERNMENT UPON THE ISLAND. DO THE AGREEMENTS WHICH YOUR COMMISSION PROPOSES TO EXECUTE ALIENATE THE TITLE, OWNERSHIP OR CONTROL OF GOVERNMENT PROPERTY? IT IS STATED IN YOUR LETTER THAT ON THE TRACT OF LAND AT SANTA ANA, CALIFORNIA, TO WHICH THE ENCLOSED PROPOSAL HAS REFERENCE,"A MONITORING STATION HAS BEEN CONSTRUCTED AND IS IN OPERATION, AND ANTENNAS HAVE BEEN ERECTED UTILIZING THE FULL LENGTH AND WIDTH OF THE TRACT.' ( ITALICS SUPPLIED.) AND THE PROPOSAL, QUOTED IN PART ABOVE, RECITES THAT "THE GROUND WILL BE CLEARED BUT LEFT BARE AND UNPLANTED AROUND CERTAIN AREAS, WHICH AREAS WILL BE MADE KNOWN TO ME BY THE RADIO INSPECTOR IN CHARGE OF THE MONITORING STATION OR SOME HIGHER GOVERNMENT AUTHORITY.' THE CONTINUED OCCUPANCY OF THE WHOLE TRACT OF LAND BY THE COMMISSION AND THE LIMITED EXTENT TO WHICH THE GRANTEE IS TO BE ENTITLED TO USE SUCH LAND WOULD SEEM ADEQUATE TO NEGATIVE THE EXISTENCE IN THE GRANTEE OF ANY VESTED PROPERTY RIGHT IN THE LAND UNDER THE AGREEMENT. SEE TIPS ET AL. V. UNITED STATES, 70 F. (2D) 525; SMITH V. ROYAL GAS CO., 5 F.1SUPP. 435.

IN OTHER WORDS, A CONTRACT OF THE TYPE PROPOSED WOULD APPEAR TO CONSTITUTE NOTHING MORE THAN A LICENSE TO ENTER UPON THE PREMISES AND DO THAT WHICH IF DONE WITHOUT SUCH PERMISSION WOULD BE A TRESPASS. SEE, GENERALLY, STANDHOLM V. BARBEY ET AL., 26 P. (2D) 46. IT APPEARS THAT SUCH ARRANGEMENT COULD BE TERMINATED AT THE WILL OF EITHER PARTY UPON THIRTY DAYS' NOTICE. FURTHERMORE, WHILE THE DESIGNATION OF AN INSTRUMENT AS A "LEASE" BY THE PARTIES THERETO DOES NOT MAKE SUCH INSTRUMENT A LEASE, SINCE ITS NATURE IS TO BE DETERMINED FROM A STUDY OF THE INSTRUMENT AS A WHOLE ( IN RE OWL DRUG., 12 F.1SUPP. 439), THE ABSENCE OF THE TERM "LEASE" IN THE INSTRUMENT IS AT LEAST SOME INDICATION THAT THE CONTRACT IS NOT SO CONSIDERED BY THE PARTIES. AND, IN THIS CONNECTION, IT IS NOTED THAT THE PROPOSAL OF MR. GRISET--- PRESUMABLY A SAMPLE OF THE TYPE OF AGREEMENT CONTEMPLATED WITH RESPECT TO OTHER LANDS UNDER THE CONTROL OF THE COMMISSION--- USES THE RDS,"AGREEMENT" AND "CONTRACT," BUT NOT "LEASE.'

SECTION 161, REVISED STATUTES, 5 U.S.C. 22, PROVIDES:

THE HEAD OF EACH DEPARTMENT IS AUTHORIZED TO PRESCRIBE REGULATIONS, NOT INCONSISTENT WITH LAW, FOR THE GOVERNMENT OF HIS DEPARTMENT, THE CONDUCT OF ITS OFFICERS AND CLERKS, THE DISTRIBUTION AND PERFORMANCE OF ITS BUSINESS, AND THE CUSTODY, USE, AND PRESERVATION OF THE RECORDS, PAPERS, AND PROPERTY APPERTAINING TO IT. ( ITALICS SUPPLIED.)

THUS, TO A DEGREE AT LEAST, THE HEAD OF AN EXECUTIVE DEPARTMENT IS AUTHORIZED BY AN ACT OF CONGRESS TO TAKE STEPS TO PROTECT THE PROPERTY UNDER HIS JURISDICTION. SEE 34 OP. ATTY. GEN. 320, 326.

IN THIS CONNECTION, ATTORNEY GENERAL JACKSON HELD IN AN OPINION DATED APRIL 2, 1941 ( VOL. 40, OPINION NO. 7):

IT IS MY OPINION THAT THE AUTHORITY TO TAKE THE PROTECTIVE ACTION (TO CONSERVE OIL ON PUBLIC LANDS WHERE IT APPEARS THE OIL IS BEING DRAINED BY ADJOINING OWNERS) IS VESTED IN THE DEPARTMENT OR AGENCY CHARGED WITH JURISDICTION OVER THE LAND INVOLVED, AND INCLUDES THE MAKING OF ANY NECESSARY CONTRACTS.

IT IS STATED IN YOUR LETTER THAT THE PRIMARY PURPOSE OF THE PROPOSED CONTRACTS WILL BE "TO ELIMINATE OR REDUCE FIRE AND WIND HAZARDS.' THUS, THE GRANT WILL RESULT IN A DIRECT BENEFIT TO THE UNITED STATES--- ASIDE FROM THE REVENUE RECEIVED THEREUNDER--- FOR WHICH NO APPROPRIATED FUNDS WILL HAVE TO BE EXPENDED. ACCORDINGLY, PROVIDED EACH SUCH CONTRACT IS SO DRAWN AS TO CONSTITUTE ONLY A LICENSE OR PERMIT FOR A LIMITED USE OF THE LAND UNDER THE JURISDICTION AND CONTROL OF YOUR COMMISSION, THERE WOULD APPEAR TO BE NO LEGAL OBJECTION TO THE EXECUTION OF SUCH CONTRACTS. HOWEVER, IT IS SUGGESTED THAT THERE BE CONSIDERED THE ADVISABILITY, FROM THE STANDPOINT OF PUBLIC POLICY, OF MAKING KNOWN TO ALL NEIGHBORING FARMERS THE FACT THAT SUCH CONTRACTS ARE TO BE LET, THUS AFFORDING THEM AN EQUAL OPPORTUNITY TO QUALIFY AND COMPETE FOR SUCH WORK.