B-211306, JUN 6, 1983

B-211306, JUN 6, 1983

DIGEST: PUBLIC LAW 97-466, JANUARY 13, 1983, REQUIRES INTERIOR SECRETARY TO DETERMINE FAIR MARKET VALUE OF PRIVATE MINERAL INTERESTS IN CRANBERRY WILDERNESS AREA, WEST VIRGINIA, WITHIN 1 YEAR OF DATE OF ENACTMENT AND TO INITIATE NEGOTIATIONS WITH THE OWNER OF SUCH INTERESTS FOR THEIR ACQUISITION WITHIN 3 MONTHS OF THE DATE OF ENACTMENT. APPROPRIATIONS FOR THESE PURPOSES AND FOR ACQUISITION OF MINERAL INTERESTS ARE AUTHORIZED BEGINNING OCTOBER 1, 1983 (FISCAL YEAR 1984), SUBJECT TO THE LIMITATION THAT "PAYMENTS" MUST BE PROVIDED FOR IN ADVANCE IN APPROPRIATION ACTS. THIS LIMITATION APPLIES ONLY TO PAYMENTS FOR ACQUISITION OF MINERAL INTERESTS AND NOT TO EXPENDITURES RELATED TO FAIR MARKET VALUE DETERMINATION OR NEGOTIATION. THEREFORE, UNOBLIGATED AMOUNTS IN BLM'S FISCAL YEAR 1983 "MANAGEMENT OF LAND AND RESOURCES" APPROPRIATION MAY BE USED FOR NON-ACQUISITION PURPOSES AUTHORIZED BY PUBLIC LAW 97-466. SEE CASES CITED.

AVAILABILITY OF FISCAL YEAR 1983 FUNDS FOR FAIR MARKET VALUE

DETERMINATIONS OF PRIVATE INTERESTS IN CRANBERRY WILDERNESS AREA, WEST VIRGINIA, UNDER PUBLIC LAW 97-466:

WE HAVE RECEIVED A REQUEST FROM THE DEPUTY DIRECTOR OF THE BUREAU OF LAND MANAGEMENT (BLM) OF THE DEPARTMENT OF THE INTERIOR (INTERIOR) FOR AN ADVANCE DECISION REGARDING SEEMINGLY CONFLICTING REQUIREMENTS OF PUBLIC LAW 97-466, 96 STAT. 2538, ENACTED ON JANUARY 13, 1983, KNOWN AS THE CRANBERRY WILDERNESS ACT. THE ACT PROVIDES FOR THE ACQUISITION OF PRIVATE MINERAL INTERESTS BY THE UNITED STATES. IN EXCHANGE FOR THEM, THE OWNERS ARE TO RECEIVE "MONETARY CREDITS" TO OFFSET CERTAIN PAYMENTS DUE TO THE FEDERAL GOVERNMENT. IN LIEU OF THE CREDITS, THE SECRETARY OF THE INTERIOR MAY PURCHASE THE MINERAL INTERESTS.

IT IS EXPLAINED THAT SECTION 4(C)(2) OF THE ACT REQUIRES THE SECRETARY TO DETERMINE THE FAIR MARKET VALUE OF COAL DEPOSITS AND MINERAL INTERESTS AND RIGHTS WITHIN 1 YEAR OF THE DATE OF THE LAW'S ENACTMENT. HOWEVER, SECTION 4(E) AUTHORIZES APPROPRIATIONS NEEDED FOR DETERMINING FAIR MARKET VALUE, EFFECTIVE OCTOBER 1, 1983. IN THIS CIRCUMSTANCE THE DEPUTY DIRECTOR STATES AS FOLLOWS:

"GIVEN THE TIME REQUIRED FOR THE PASSAGE OF AN FY 1984 APPROPRIATION ACT TO CONFORM WITH THE OCTOBER 1, 1983, AUTHORIZATION EFFECTIVE DATE AND THE LEAD TIME REQUIRED FOR THE APPROPRIATE STUDIES TO BE MADE FOR DETERMINATION OF FAIR MARKET VALUE OF THE MINERAL INTERESTS, WE CONCLUDE THAT IT IS IMPOSSIBLE TO COMPLY WITH THE REQUIREMENTS OF SECTION 4(C)(2) OF THE ACT IF NO EXPENDITURES OF FUNDS CAN BE MADE FOR THIS PURPOSE FROM AVAILABLE FY 1983 BLM APPROPRIATIONS. THIS IS TRUE EVEN IF THE DEPARTMENT CAN CONTRACT WITH THE OWNER TO PERFORM DRILLING OR OTHER EVALUATION WORK TO BE PAID FOR BY MONETARY CREDIT AS ALLOWED BY SECTION 4(C)(1) OF THE ACT. THERE WOULD STILL BE ADMINISTRATIVE COSTS ON THE PART OF BLM TO ENTER INTO AND ADMINISTER SUCH A CONTRACT."

THE SPECIFIC QUESTION PRESENTED IS WHETHER SECTION 4(E) OF THE CRANBERRY WILDERNESS ACT PRECLUDES BLM FROM REDIRECTING EXISTING FUNDS IN THE FISCAL YEAR 1983 "MANAGEMENT OF LANDS AND RESOURCES" APPROPRIATION FOR THE PURPOSE OF MEETING THE REQUIREMENTS OF SECTION 4(C)(2) OF THE ACT.

IN OUR OPINION, FOR THE REASONS STATED BELOW, UNOBLIGATED AMOUNTS IN BLM'S FISCAL YEAR 1983 "MANAGEMENT OF LAND AND RESOURCES" APPROPRIATION MAY BE UTILIZED FOR THE NECESSARY COSTS OF DETERMINING THE FAIR MARKET VALUE OF COAL DEPOSITS AND MINERAL INTERESTS AND RIGHTS IN THE CRANBERRY WILDERNESS AREA.

STATUTORY BACKGROUND

PUBLIC LAW 97-466 DESIGNATED CERTAIN LANDS IN THE MONONGAHELA NATIONAL FOREST, WEST VIRGINIA, AS WILDERNESS, ESTABLISHING THE CRANBERRY WILDERNESS AS WELL AS THE LAUREL FORK NORTH WILDERNESS AND THE LAUREL FORK SOUTH WILDERNESS. UNDER SECTION 4(A), THE SECRETARY "SHALL ACQUIRE" ALL NONFEDERALLY OWNED COAL DEPOSITS AND OTHER MINERAL INTERESTS AND RIGHTS WITHIN THE BOUNDARIES OF THE CRANBERRY WILDERNESS AS WELL AS CERTAIN OTHER INTERESTS AND RIGHTS OUTSIDE THE WILDERNESS. SECTION 4(B) PROVIDES THAT NOT LATER THAN 3 MONTHS AFTER THE DATE OF ENACTMENT OF THE ACT, THE SECRETARY SHALL INITIATE NEGOTIATIONS WITH THE OWNER OF THE DEPOSITS, INTERESTS AND RIGHTS WITHIN THE CRANBERRY WILDERNESS.

SECTION 4(C)(1) REQUIRES THE SECRETARY TO CONDUCT COAL AND MINERAL EVALUATIONS NECESSARY TO DETERMINE FAIR MARKET VALUE OF THE DEPOSITS, INTERESTS AND RIGHTS WHICH ARE TO BE ACQUIRED. THE SECRETARY IS AUTHORIZED TO CONTRACT WITH THE OWNER TO PERFORM ANY NECESSARY DRILLING OR OTHER EVALUATION WORK FOR WHICH THE OWNER MAY BE PAID MONEY OR AN ADDITIONAL MONETARY CREDIT (THE PRINCIPAL MEANS OF REIMBURSING THE OWNER FOR THE ACQUISITION).

SECTION 4(C)(2) STATES THAT, "WITHIN ONE YEAR OF THE DATE OF ENACTMENT OF THIS ACT, THE SECRETARY, IN CONSULTATION WITH THE OWNER SHALL DETERMINE THE PRESENT FAIR MARKET VALUE OF COAL DEPOSITS AND MINERAL INTERESTS AND RIGHTS."

SECTION 4(E) PROVIDES AS FOLLOWS:

"EFFECTIVE OCTOBER 1, 1983, THERE ARE HEREBY AUTHORIZED TO BE APPROPRIATED SUCH SUMS AS MAY BE NECESSARY TO ESTABLISH THE VALUE OF THE NONFEDERALLY OWNED MINERAL INTERESTS OR RIGHTS LYING WITHIN THE CRANBERRY WILDERNESS AREA. EFFECTIVE OCTOBER 1, 1983, THERE ARE HEREBY AUTHORIZED TO BE APPROPRIATED SUCH SUMS AS ARE NECESSARY TO CARRY OUT THE OTHER PROVISIONS OF THIS ACT: PROVIDED, THAT NO PAYMENT SHALL BE EFFECTIVE EXCEPT TO THE EXTENT OR IN SUCH AMOUNTS AS ARE PROVIDED IN ADVANCE IN APPROPRIATION ACTS."

PUBLIC LAW 97-394, 96 STAT. 1966, DECEMBER 30, 1982, MADE APPROPRIATIONS FOR THE DEPARTMENT OF THE INTERIOR AND RELATED AGENCIES FOR THE FISCAL YEAR ENDING SEPTEMBER 30, 1983. UNDER TITLE I OF THE ACT, BLM WAS PROVIDED FUNDS FOR THE "MANAGEMENT OF LANDS AND RESOURCES" AS FOLLOWS:

"FOR EXPENSES NECESSARY FOR PROTECTION, USE, IMPROVEMENT, DEVELOPMENT, DISPOSAL, CADASTRAL SURVEYING, CLASSIFICATION, AND PERFORMANCE OF OTHER FUNCTIONS, *** AS AUTHORIZED BY LAW, IN THE MANAGEMENT OF LANDS AND RESOURCES UNDER THE JURISDICTION OF THE BUREAU OF LAND MANAGEMENT ***."

ANALYSIS

H.R. 5161 WAS ENACTED AS PUBLIC LAW 97-466, THE CRANBERRY WILDERNESS ACT. ON MAY 17, 1982, IT WAS FAVORABLY REPORTED ON BY THE HOUSE COMMITTEE ON INTERIOR AND INSULAR AFFAIRS (H.R.REP. NO. 97-561, PART 1, 97TH CONG., 2D SESS.) CERTAIN AMENDMENTS. THE FIRST SENTENCE OF SECTION 4(E) WAS CHANGED TO PROVIDE THAT THE AUTHORIZATION OF APPROPRIATIONS NECESSARY TO ESTABLISH THE VALUE OF THE MINERAL INTERESTS OR RIGHTS WOULD BE EFFECTIVE ON OCTOBER 1, 1982. PREVIOUSLY, THERE WAS NO EFFECTIVE DATE FOR THE AUTHORIZATION. THE SECOND SENTENCE RELATING TO SUMS NECESSARY TO CARRY OUT OTHER PROVISIONS OF THE ACT, WHICH ALREADY HAD AN OCTOBER 1, 1982, EFFECTIVE DATE, WAS AMENDED SO THAT "NO PAYMENT SHALL BE EFFECTIVE EXCEPT TO THE EXTENT OR IN SUCH AMOUNTS AS ARE PROVIDED IN ADVANCE IN APPROPRIATION ACTS." THERE WAS NO EXPLANATION IN THE REPORT FOR EITHER OF THE CHANGES.

THE COMMITTEE ON ENERGY AND NATURAL RESOURCES OF THE SENATE, IN LIEU OF A FORMAL REPORT ON H.R. 5161, SUBMITTED AN EXPLANATORY STATEMENT (128 CONG.REC. S14456 (DAILY ED. DECEMBER 13, 1982)). THE COMMITTEE REPORTED FAVORABLY ON A SUBSTITUTE BILL. SECTION 4(E) OF THE SUBSTITUTE CHANGED THE EFFECTIVE DATE OF AUTHORIZATION OF APPROPRIATIONS BOTH FOR FUNDS FOR ESTABLISHING THE VALUE OF THE NONFEDERALLY OWNED MINERAL INTERESTS OR RIGHTS AND FOR FUNDS NECESSARY TO CARRY OUT THE OTHER PROVISIONS OF THE ACT. ACCORDING TO THE EXPLANATORY STATEMENT (PAGE S14463) THE CHANGE IN THE DATE OF AUTHORIZATION FROM OCTOBER 1, 1982, TO OCTOBER 1, 1983, WAS "TO COMPLY WITH THE BUDGET ACT." H.R. 5161, AS ENACTED, INCLUDED THIS CHANGE.

THE CHANGE OF THE APPROPRIATIONS AUTHORIZATION DATE FROM OCTOBER 1, 1982, TO OCTOBER 1, 1983, BY THE COGNIZANT SENATE COMMITTEE DOES NOT INDICATE AN INTENTION TO DELAY THE AVAILABILITY OF ALL FUNDING, HOWEVER. AS STATED ABOVE, THE COMMITTEE'S EXPLANATORY STATEMENT ON DECEMBER 13, 1982, INDICATED THAT THIS WAS DONE TO COMPLY WITH THE BUDGET ACT (APPARENTLY SECTION 311 OF THE CONGRESSIONAL BUDGET ACT OF 1974, CURRENTLY 2 U.S.C. SEC. 642). THIS APPEARS TO HAVE BEEN NECESSARY BECAUSE THE OMNIBUS RECONCILIATION ACT OF 1982, FOR FISCAL YEAR 1983 (PUBLIC LAW 97-253, SEPTEMBER 8, 1982) HAD ALREADY BEEN ENACTED. THEREFORE, BUDGET AUTHORITY LIMITS FOR FISCAL YEAR 1983 WERE ALREADY ESTABLISHED SO THAT ADDITIONAL BUDGET AUTHORITY COULD NOT BE PROVIDED.

AS PREVIOUSLY NOTED, INTERIOR'S FISCAL YEAR 1983 APPROPRIATION PROVIDES FUNDS FOR FUNCTIONS RELATED TO LAND AND RESOURCE MANAGEMENT "AS AUTHORIZED BY LAW." IN 61 COMP.GEN. 532 (1982), WE CONSIDERED THE MEANING OF THE PHRASE "AS AUTHORIZED BY LAW," IN AN APPROPRIATION FOR INTERIOR'S BUREAU OF RECLAMATION. IN THAT DECISION WE SAID THAT "AS AUTHORIZED BY LAW" LIMITS THE USE OF THESE FUNDS TO THAT WHICH IS PERMITTED BY AUTHORIZING STATUTES. "IN OTHER WORDS, FOR EACH AUTHORIZED PROJECT, FUNDS CAN ONLY BE OBLIGATED IN ACCORD WITH THE AUTHORIZATION ACT FOR THAT PROJECT."

THE CRANBERRY WILDERNESS ACT DID NOT AUTHORIZE ADDITIONAL BUDGET AUTHORITY FOR FISCAL YEAR 1983. HOWEVER, IT DID NOT PROHIBIT THE USE OF PREVIOUSLY APPROPRIATED FUNDS FOR FAIR MARKET VALUE DETERMINATION OR FOR ANY EXPENSES RELATED TO NEGOTIATING IF OTHERWISE PROPER.

EXISTING DEPARTMENT AND AGENCY APPROPRIATIONS WHICH GENERALLY COVER THE TYPE OF EXPENDITURES INVOLVED ARE AVAILABLE TO DEFRAY THE EXPENSES OF ADDITIONAL DUTIES IMPOSED BY PROPER LEGAL AUTHORITY. THE TEST FOR AVAILABILITY IS WHETHER THE DUTIES IMPOSED BY THE NEW AUTHORITY BEAR A SUFFICIENT RELATIONSHIP TO THE PURPOSES FOR WHICH THE APPROPRIATION PREVIOUSLY ENACTED WAS MADE, SO AS TO JUSTIFY THE USE OF THAT APPROPRIATION FOR THE NEW DUTIES. B-195007, JULY 15, 1980; 46 COMP.GEN. 604 (1967).

PUBLIC LAW 97-466 ESTABLISHES THE SECRETARY'S DUTY TO DETERMINE THE FAIR MARKET VALUE OF MINERAL INTERESTS TO BE SECURED INCIDENT TO THE CREATION OF THE CRANBERRY WILDERNESS AREA AND TO COMMENCE NEGOTIATIONS WITH THE OWNER OF THE INTERESTS. THESE ADDITIONAL DUTIES ARE CLOSELY RELATED TO BLM'S EXISTING RESPONSIBILITIES OF MANAGING OF LANDS AND RESOURCES, INCLUDING THE "PERFORMANCE OF OTHER FUNCTIONS, *** AS AUTHORIZED BY LAW," AS PROVIDED IN THE FISCAL YEAR 1983 APPROPRIATION, QUOTED ABOVE, AND THEREFORE EXPENDITURES TO FULFILL THEM FROM THAT APPROPRIATION ARE AUTHORIZED BY PUBLIC LAW 97-466 IF OTHERWISE PROPER. (THE DEPUTY DIRECTOR OF BLM INDICATES THAT THERE ARE, IN FACT, FUNDS AVAILABLE IN THE "MANAGEMENT OF LANDS AND RESOURCES" APPROPRIATION FOR FISCAL YEAR 1983 WHICH MIGHT BE REDIRECTED TO BE USED FOR THE FAIR MARKET VALUE DETERMINATION.)

IN OUR VIEW, THE PROVISO THAT NO PAYMENTS SHALL BE MADE EXCEPT WHERE THE FUNDS ARE PROVIDED IN ADVANCE IN APPROPRIATION ACTS DOES NOT PRECLUDE THE USE OF THE FISCAL YEAR 1983 APPROPRIATION FOR FAIR MARKET VALUE DETERMINATION AND/OR NEGOTIATION PURPOSES. RATHER, THE PROVISO LIMITATION SHOULD BE READ AS PRECLUDING ONLY PAYMENTS FOR THE ACQUISITION OF THE MINERAL INTERESTS WHICH ARE THE SUBJECT OF THE CRANBERRY WILDERNESS ACT. A PURCHASE OF THIS MAGNITUDE WOULD REQUIRE A PRIOR SPECIFIC APPROPRIATION IN ORDER TO COMPLY WITH THE AUTHORIZING LANGUAGE. HOWEVER, PAYMENTS NEEDED FOR THE DETERMINATION OF THE MARKET VALUE OF THE MINERAL INTERESTS, OR INCIDENTAL PAYMENTS SUCH AS THOSE NECESSARY TO SUPPORT NEGOTIATIONS BETWEEN THE FEDERAL GOVERNMENT AND THE OWNER, ARE, IN OUR OPINION, NOT WITHIN THE AMBIT OF THE PROVISO. THIS VIEW IS CONSISTENT WITH THE ACT'S REQUIREMENT THAT NEGOTIATIONS BEGIN WITHIN 3 MONTHS OF ENACTMENT, AND THE MANDATE THAT THE SECRETARY DETERMINE FAIR MARKET VALUE, A DIFFICULT AND COMPLEX TASK, WITHIN 1 YEAR OF THE ACT'S SIGNING. IN FACT, A CONTRARY INTERPRETATION WOULD NULLIFY THESE REQUIREMENTS. THE STATEMENT OF THE SENATE COMMITTEE ON ENERGY AND NATURAL RESOURCES (PAGE S14463) SUPPORTS THIS INTERPRETATION AS FOLLOWS:

"THE SECRETARY IS REQUIRED TO BEGIN NEGOTIATIONS WITH THE OWNERS WITHIN THREE MONTHS OF THE DATE OF ENACTMENT OF THIS ACT. THE COMMITTEE NOTES THAT ANY EVALUATION AND FIELD WORK DONE UNDER SECTION 4(C)(2) IN THE FIRST THREE MONTHS COULD FACILITATE NEGOTIATIONS REQUIRED IN SECTION 4(B)."

THEREFORE, SECTION 4(E), WHILE PROVIDING AUTHORITY FOR NEW APPROPRIATIONS TO BE USED FOR FAIR MARKET VALUE DETERMINATION AND OTHER ACTIONS PRELIMINARY TO PAYMENT FOR THE ACQUISITION OF THE MINERAL INTERESTS IN QUESTION FOR FISCAL YEAR 1984, DOES NOT IMPOSE A RESTRICTION ON THE USE OF FUNDS PRESENTLY AVAILABLE UNDER CURRENT APPROPRIATIONS FOR SUCH PURPOSES.

CLEARLY, THE COMMENCEMENT OF FAIR MARKET VALUE EVALUATION UPON THE SIGNING OF THE BILL INTO LAW, AS WELL AS OTHER ACTIVITIES PRELIMINARY TO THE ACQUISITION OF THE MINERAL RIGHTS IN QUESTION, WOULD DEPEND UPON THE USE OF APPROPRIATIONS AVAILABLE PRIOR TO THE ENACTMENT OF APPROPRIATIONS LEGISLATION FOR FISCAL YEAR 1984.

CONCLUSION

ACCORDINGLY, IT IS OUR OPINION THAT UNOBLIGATED AMOUNTS IN BLM'S FISCAL YEAR 1983 "MANAGEMENT OF LAND AND RESOURCES" APPROPRIATION MAY BE UTILIZED FOR DETERMINING THE FAIR MARKET VALUE OF COAL DEPOSITS AND MINERAL INTERESTS AND RIGHTS INCIDENT TO THE ESTABLISHMENT OF THE CRANBERRY WILDERNESS AREA PURSUANT TO PUBLIC LAW 97-466, AS WELL AS FOR ANY COSTS INCIDENT TO THE CONDUCT OF NEGOTIATIONS WITH THE OWNER OF THE COAL DEPOSITS AND MINERAL INTERESTS.