B-106776, MAY 7, 1965, 44 COMP. GEN. 693

B-106776, MAY 7, 1965, 44 COMP. GEN. 693

PUBLIC LANDS - INTERAGENCY LOANS, TRANSFERS, ETC. - DAMAGES, RESTORATION, ETC. - AUTHORITY DAMAGES TO ROADS IN A NATIONAL PARK RECREATION AREA RESULTING FROM USE BY THE DEPARTMENT OF THE ARMY FOR MILITARY MANEUVERS COME WITHIN THE PRINCIPLE THAT ONE EXECUTIVE DEPARTMENT MAY NOT BE REIMBURSED FOR THE USE OF REAL PROPERTY USED OR DAMAGED BY ANOTHER DEPARTMENT, AND, EVEN THOUGH THE USE PERMITS REQUIRE RESTORATION OF THE PROPERTY OR PAYMENT OF DAMAGES, THE AUTHORITY VESTED IN THE SECRETARY OF THE INTERIOR TO ADMINISTER THE NATIONAL PARKS DOES NOT AUTHORIZE THE IMPOSITION OF CONDITIONS CONTRARY TO THE PRINCIPLE GOVERNING THE USE OF THE PROPERTY BY ANOTHER DEPARTMENT, AND, THEREFORE, THE DEPARTMENT OF THE ARMY MAY NOT REIMBURSE THE DEPARTMENT OF THE INTERIOR FOR THE DAMAGES NOR RESTORE THE ROADS AT ITS EXPENSE.

TO THE SECRETARY OF THE ARMY, MAY 7, 1965:

LETTER DATED APRIL 1, 1965, FROM THE DEPUTY ASSISTANT SECRETARY OF THE ARMY (I AND L) (INSTALLATIONS), REQUESTS A DECISION AS TO WHETHER THE DEPARTMENT OF THE ARMY (ARMY), MAY REIMBURSE THE NATIONAL PARK SERVICE, DEPARTMENT OF THE INTERIOR, IN THE PROPOSED AMOUNT OF $20,000 FOR DAMAGES TO PARK ROADS IN THE LAKE MEAD NATIONAL PARK RECREATIONAL AREA, OR RESTORE SUCH ROADS AT ITS OWN EXPENSE WITHOUT TRANSFER OF FUNDS. THE DAMAGES WERE CAUSED BY MILITARY MANEUVERS CONDUCTED THERE FROM MAY 15 TO 31, 1964, UNDER WRITTEN PERMIT WHICH PROVIDED FOR PAYMENT OF DAMAGES OR RESTORATION.

THE AUTHORITY OF YOUR DEPARTMENT TO MAKE THE TRANSFER OF FUNDS HAS BEEN QUESTIONED IN VIEW OF OUR DECISION OF JANUARY 24, 1952, 31 COMP. GEN. 329, WHICH WAS SUSTAINED ON RECONSIDERATION (OCTOBER 10, 1952), IN 32 COMP. GEN. 179.

THE DEPUTY ASSISTANT SECRETARY EXPRESSES THE VIEW THAT THE USE OF THE LAKE MEAD RECREATION AREA CAN BE DISTINGUISHED FROM THE USE INVOLVED IN OUR DECISION CITED ABOVE. HE STATES THAT IN THAT CASE WE HELD THAT THE APPROPRIATION ACT INVOLVED (65 STAT. 426), WHICH SPECIFICALLY INCLUDED AUTHORITY TO MAKE PAYMENT FOR USE OR REPAIR OF PRIVATE PROPERTY, INDICATED AN INTENT OF CONGRESS NOT TO INCLUDE PUBLIC PROPERTY BUT POINTS OUT THAT IN THE PRESENT CASE THE APPLICABLE APPROPRIATION ACT (77 STAT. 256) CONTAINS NO SUCH "LIMITATION.' HE FURTHER STATES THAT IN THE FORMER CASE THE ONLY AGREEMENT FOR PAYMENT APPEARS TO HAVE CONSISTED OF A PROVISION IN AN INTERDEPARTMENTAL POLICY AGREEMENT THAT THE ARMY WOULD BUDGET FOR RESTORATION MONEY. HOWEVER, HE NOTES THAT IN THE PRESENT CASE, THE SPECIAL USE PERMIT, IN THE FORM OF A CONTRACT ON THE SAME STANDARD FORM USED FOR PERMITS TO PRIVATE PERSONS, WAS SIGNED BY THE SUPERINTENDENT OF THE RECREATION AREA AS ISSUER AND BY AN AUTHORIZED REPRESENTATIVE OF THE ARMY AS PERMITTEE AND THAT THE PERMIT WAS EXPRESSLY SUBJECT TO A PROVISION FOR PAYMENT OF DAMAGES AND A PROVISION FOR RESTORATION OF ANY PROPERTY WHICH IT DAMAGED OR DESTROYED.

WE ARE INFORMED BY THE DEPUTY ASSISTANT SECRETARY THAT IT WOULD BE BOTH DIFFICULT AND EXPENSIVE TO OBTAIN SUFFICIENT LANDS TO CONDUCT A LARGE SCALE MILITARY MANEUVER IF LANDS UNDER THE CONTROL OF OTHER DEPARTMENTS PARTICULARLY PUBLIC DOMAIN LANDS, NATIONAL PARKS LANDS AND NATIONAL FOREST LANDS ARE NOT MADE AVAILABLE FOR MILITARY USE. HE STATES THAT THE ARMY IS CURRENTLY USING EXTENSIVE AREAS OF SUCH LANDS UNDER PERMITS REQUIRING RESTORATION OR PAYMENT OF DAMAGES; AND THAT CONTINUED OR FUTURE PERMISSION TO USE SUCH GOVERNMENT LANDS FOR DEFENSE PURPOSES WILL WITHOUT DOUBT BE SERIOUSLY RESTRICTED IF SUCH CONDITIONS CANNOT BE LEGALLY PERFORMED.

IN 31 COMP. GEN. 329, WE HELD--- QUOTING FROM THE SYLLABUS--- THAT:

"WHILE RULE PROHIBITING REPLACEMENTS OR REPAIRS TO PROPERTY GENERALLY NO LONGER APPLIES TO PERSONAL PROPERTY LOANS BETWEEN GOVERNMENT AGENCIES UNDER CERTAIN CONDITIONS, WHEN LOANS ARE MADE PURSUANT TO 31 U.S.C. 686 AUTHORIZING AND REQUIRING PAYMENT FOR PERSONAL PROPERTY TRANSFERRED FROM ONE AGENCY TO ANOTHER, NO SUCH AUTHORITY EXISTS AUTHORIZING SIMILAR ACTION WITH RESPECT TO REAL PROPERTY, SO THAT THE DEPARTMENT OF THE ARMY MAY NOT REIMBURSE THE DEPARTMENT OF AGRICULTURE FOR THE COST OF RESTORING NATIONAL FOREST LANDS DAMAGED BY ARMY PERSONNEL DURING MILITARY OPERATIONS.'

WE DO NOT AGREE THAT THE USE OF THE LAKE MEAD RECREATION AREA CAN BE DISTINGUISHED FROM THE USE INVOLVED IN THE ABOVE-CITED DECISION. IT WAS MENTIONED IN THE CITED DECISION THAT SINCE THERE WAS SPECIFIC AUTHORITY CONTAINED IN THE APPROPRIATION INVOLVED FOR THE ARMY TO MAKE PAYMENTS FOR THE ,USE AND REPAIR OF PRIVATE PROPERTY UTILIZED IN SUCH (FIELD) EXERCISES," IT WOULD APPEAR THAT THE CONGRESS DID NOT INTEND THE EXPENDITURES OF FUNDS FOR SIMILAR USE AND OCCUPANCY OF PUBLIC PROPERTY. HOWEVER, THAT STATEMENT WAS MADE IMMEDIATELY FOLLOWING OUR STATEMENT THEREIN TO THE EFFECT THAT NO APPROPRIATION OF THE ARMY HAD BEEN CITED OR FOUND THAT MIGHT BE CONSIDERED AS AVAILABLE FOR EXPENDITURES FOR THE PURPOSE IN QUESTION. WE DID NOT SUGGEST HOWEVER, OR INTEND TO IMPLY THAT THE SPECIFIC AUTHORITY TO MAKE PAYMENTS FOR THE REPAIR OF PRIVATE PROPERTY WAS--- AS INDICATED IN THE DEPUTY ASSISTANT SECRETARY'S LETTER--- A LIMITATION, AND THAT HAD THE APPROPRIATION INVOLVED NOT SPECIFICALLY SO PROVIDED IT COULD HAVE BEEN USED TO PAY FOR REPAIR OF PUBLIC PROPERTY UNDER THE CONTROL OF ANOTHER GOVERNMENT AGENCY. IN OTHER WORDS, THE FACT THAT AN APPROPRIATION DOES NOT SPECIFICALLY PROVIDE THAT THE FUNDS MADE AVAILABLE THEREIN MAY BE USED TO PAY FOR REPAIRS TO PRIVATE PROPERTY DOES NOT, IN AND OF ITSELF, MAKE THE APPROPRIATION AVAILABLE TO REPAIR OR RESTORE PUBLIC PROPERTY UNDER THE CONTROL OF ANOTHER GOVERNMENT AGENCY.

CONCERNING THE CONDITIONS IMPOSED ON THE ARMY BY THE SPECIAL USE PERMIT ISSUED BY THE PARK SERVICE REQUIRING PAYMENT OF DAMAGES OR RESTORATION OF THE PROPERTY, IN THE ABOVE-CITED DECISION OF OCTOBER 10, 1952, 32 COMP. GEN. 179, WE HELD THAT--- QUOTING FROM THE SYLLABUS --

"THE LAWS GOVERNING THE ESTABLISHMENT AND ADMINISTRATION OF NATIONAL FORESTS WHICH AUTHORIZE AND REQUIRE THE SECRETARY OF AGRICULTURE TO PROTECT AND PRESERVE SUCH RESOURCES DO NOT PERMIT THE SECRETARY TO IMPOSE CONDITIONS UPON THE USE OF FOREST LANDS BY FEDERAL AGENCIES WHICH ARE CONTRARY TO THE ESTABLISHED PRINCIPLE THAT AN EXECUTIVE DEPARTMENT MAY NOT BE REIMBURSED FOR THE USE OR DEPRECIATION OF REAL PROPERTY LOANED, USED, OR DAMAGED BY ANOTHER DEPARTMENT, AND THEREFORE, THE DEPARTMENT OF AGRICULTURE MAY NOT CHARGE THE DEPARTMENT OF THE ARMY FOR THE USE OF OR FOR THE RESTORATION COSTS OF NATIONAL FOREST LANDS DAMAGED DURING MILITARY TRAINING OPERATIONS.'

WHAT WAS SAID IN 32 COMP. GEN. 179 WOULD BE FOR APPLICATION IN THE INSTANT CASE. THAT IS TO SAY WHILE THE SECRETARY OF THE INTERIOR IS CHARGED WITH THE DUTY OF ADMINISTERING NATIONAL PARKS (16 U.S.C. 1) AND IS AUTHORIZED TO ISSUE PERMITS FOR THE USE OF LAND FOR THE ACCOMMODATION OF VISITORS (16 U.S.C. 3), THESE PROVISIONS OF LAW DO NOT AUTHORIZE OR PERMIT THE SECRETARY TO IMPOSE CONDITIONS WHICH ARE CONTRARY TO THE ESTABLISHED PRINCIPLE THAN AN EXECUTIVE DEPARTMENT MAY NOT BE REIMBURSED FOR THE USE OR DEPRECIATION OF REAL PROPERTY LOANED, USED OR DAMAGED BY ANOTHER DEPARTMENT. SEE 10 COMP. GEN. 288.

IN VIEW OF THE FOREGOING, YOU ARE ADVISED THAT THE DEPARTMENT OF THE ARMY MAY NOT REIMBURSE THE NATIONAL PARK SERVICE FOR DAMAGES TO PARK ROADS IN THE LAKE MEAD NATIONAL RECREATIONAL AREA CAUSED BY MILITARY MANEUVERS OR RESTORE SUCH ROADS AT ITS OWN EXPENSE WITHOUT TRANSFER OF FUNDS.