B-160573, JAN. 17, 1967

B-160573, JAN. 17, 1967

TO EXECUTIVE OFFICE OF THE PRESIDENT:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 16, 1966, AND ENCLOSURES, REQUESTING OUR OPINION WHETHER, UNDER THE CIRCUMSTANCES DESCRIBED THEREIN, THE CITY OF WINONA, MINNESOTA, MAY BE REIMBURSED FROM FUNDS APPROPRIATED PURSUANT TO THE ACT OF SEPTEMBER 30, 1950, 64 STAT. 1109, AS AMENDED, 42 U.S.C. 1855 ET SEQ., KNOWN AS THE FEDERAL DISASTER ACT, FOR EXPENSES INCURRED IN REPAIRING DAMAGED TRACKS BELONGING TO THE CHICAGO AND NORTHWESTERN RAILWAY COMPANY.

IT IS EXPLAINED THAT ON APRIL 11, 1965, THE PRESIDENT DECLARED MINNESOTA TO BE A MAJOR DISASTER AREA AS A RESULT OF DAMAGES OCCASIONED BY TORNADOES, SEVERE STORMS AND FLOODING. FOLLOWING SUCH DECLARATION, THE CITY OF WINONA SUBMITTED A PROJECT APPLICATION FOR DISASTER RELIEF ASSISTANCE. THE APPLICATION WAS APPROVED BY THE REGIONAL DIRECTOR, OFFICE OF EMERGENCY PLANNING, IN THE AMOUNT OF $1,896,192 AND COVERED SUCH ITEMS AS FLOOD PROTECTIVE MEASURES, DEBRIS CLEARANCE, AND REPAIRS TO ESSENTIAL PUBLIC FACILITIES. THE APPLICATION ALSO INCLUDED A $52,500 ITEM FOR RESTORING THE DAMAGED RAILROAD TRACKS, REFERRED TO ABOVE, WHICH WERE DAMAGED BY WINONA CITY WORK FORCES WHILE ENGAGED IN FLOOD FIGHTING ACTIVITY.

REGARDING THIS LAST ITEM, IT IS STATED THAT AS AN INTEGRAL PART OF THE FLOOD PROTECTIVE MEASURES, THE CITY OFFICIALS DETERMINED THAT IT WAS NECESSARY TO RAISE THE CITY DIKING SYSTEM BY MEANS OF ADDITIONAL EARTH FILL. IT WAS FURTHER DETERMINED THAT IN SOME AREAS, THE MOST EXPEDITIOUS METHOD OF TRANSPORTING EARTH FILL TO THE DIKES WOULD BE TO BROACH THE RAILWAY TRACKS TO PERMIT THE PASSAGE OF HEAVY EARTH-MOVING EQUIPMENT TO AND FROM THE DIKING AREA.

AFTER THE FLOOD CRISIS WAS OVER, THE RAILWAY COMPANY REPAIRED ITS DAMAGED TRACKS AT A COST OF $52,500 AND SUBSEQUENTLY WAS REIMBURSED BY THE CITY OF WINONA.

IN A LETTER DATED APRIL 13, 1966, THE MAYOR OF WINONA, IN SUPPORT OF THE ACTION TAKEN BY THE CITY OFFICIALS TO REMOVE THE TRACKAGE HERE INVOLVED, STATED THAT---

"AT THE TIME OF DECISION FOR THE BUILDING OF THE DIKE FOR THE 1965 FLOOD, THE CITY OFFICIALS WERE INFORMED THAT THE FLOOD WOULD EXCEED ANYTHING EXPERIENCED BEFORE. NEARLY TOTAL FLOODING OF THE CITY WAS ANTICIPATED UNLESS THE DIKING SYSTEM WAS RAISED. THIS INVOLVED SOME SIX MILES OF DIKING. AS A RESULT THE CITY OFFICIALS CALLED FOR ALL AVAILABLE HELP FROM CONTRACTORS, AND SEVERAL HUNDRED ITEMS OF EARTH MOVING EQUIPMENT WERE MOVED INTO THE CITY. THIS INCLUDED CARRYALLS OF SEVERAL SIZES. THESE CARRYALLS COULD NOT WORK OVER CITY STREETS AND SO WERE PLACED WHERE THEY COULD WORK, NAMELY ON THE PRAIRIE ISLAND AND CROOKED SLOUGH LEVEES. WITHOUT THESE CARRYALLS, NEITHER DIKE COULD HAVE BEEN BUILT. TO MAKE IT POSSIBLE FOR THESE CARRYALLS TO WORK, THE CITY OFFICIALS HAD TO DECIDE ON A SOURCE FOR THE FILL WHICH THEY WOULD MOVE ONTO BOTH DIKES. THE DECISION WAS MADE TO SECURE THE FILL FROM THE RAILROAD YARDS. THIS WAS DONE. BUT TO GET THE FILL, IT WAS NECESSARY TO PROMPTLY MOVE THE TRACKAGE IN THE OLD ROUNDHOUSE AREA AND OTHER AREAS IN THE RAILROAD YARDS. THE TRACKAGE WAS REMOVED AND THIS INVOLVED MOVING TIES AND BALLAST AS WELL AS TRACKAGE. AFTER THE FLOOD THE RAILROAD DID ITS OWN REPAIRING AND BILLED THE CITY. THE CITY PAID THE BILL AND NOW MAKES CLAIM UNDER PUBLIC LAW 875.

"IT IS THUS APPARENT TO THE CITY OFFICIALS THAT THE DECISION TO REMOVE THE OBSTRUCTIONS IN THE RAILROAD YARD WAS A NECESSARY ONE WHICH RESULTED IN NOT ONLY ENABLING THE CONSTRUCTION OF THE TWO DIKES, BUT PROBABLY RESULTED IN LESS OVERALL EXPENSE BECAUSE OF THE LENGTH OF HAUL OTHERWISE REQUIRED WHICH WOULD HAVE RUN UP THE COST OF THE MACHINERY USE AND WOULD HAVE RESULTED IN WHOLESALE DESTRUCTION OF STREETS WHICH COULD NOT BEAR THE WEIGHT OF THE CARRYALLS. AND THE ACTION NECESSARILY HELPED PREVENT TRAFFIC JAMS FROM BECOMING INTOLERABLE AT THE JUNCTION OF CROOKED SLOUGH AND PRAIRIE ISLAND DIKES DURING THE CRITICAL PERIOD.

"THE CROOKED SLOUGH DIKE AT THE OUTSET WAS, AS HAS BEEN SAID, MOST CRITICAL BECAUSE THE WATERS WOULD HAVE HAD A STRAIGHT SHOT INTO A HIGHLY URBANIZED PART OF THE CITY. THERE CAME A TIME WHEN IT WAS NOT THE MOST CRITICAL, BUT THIS WAS BECAUSE OF THE INITIAL DECISION OF THE CITY OFFICIALS TO USE THE RAILROAD YARDS FOR FILL, THUS ENABLING THE CONTRACTORS TO BUILD THE DIKE WITH A MINIMUM OF DELAY. THUS ALSO WAS THE PRAIRIE ISLAND DIKE REINFORCED EVEN AFTER IT HAD BEEN BUILT, BECAUSE THE SITUATION ON CROOKED SLOUGH BECAME LESS CRITICAL, ALLOWING SHIFTING OF FILL AND MACHINERY TO THE FORMER DIKE AREA.'

IT IS OUR UNDERSTANDING THAT YOUR AGENCY HAS NO QUARREL WITH THE ACTION TAKEN BY THE OFFICIALS OF WINONA WITH REGARD TO THE TRACKAGE, BUT THAT REQUESTS BY THE CITY TO NOW BE REIMBURSED FROM FEDERAL DISASTER FUNDS FOR THE EXPENSE OF REPAIRING THE TRACKAGE HAVE BEEN DENIED BY OEP ON THE BASIS THAT NO PROVISION IS CONTAINED IN THE FEDERAL DISASTER ACT FOR RESTORATION OF PRIVATE PROPERTY. ALSO, IT IS REPORTED THAT IN THE ADMINISTRATION OF THE DISASTER PROGRAM, OEP CONSISTENTLY HAS DECLINED TO APPROVE CLAIMS FOR SUCH WORK.

THE FEDERAL DISASTER ACT, INSOFAR AS HERE PERTINENT, PROVIDES AS FOLLOWS:

"IT IS THE INTENT OF CONGRESS TO PROVIDE AN ORDERLY AND CONTINUING MEANS OF ASSISTANCE BY THE FEDERAL GOVERNMENT TO STATES AND LOCAL GOVERNMENTS IN CARRYING OUT THEIR RESPONSIBILITIES TO ALLEVIATE SUFFERING AND DAMAGE RESULTING FROM MAJOR DISASTERS, TO REPAIR ESSENTIAL PUBLIC FACILITIES IN MAJOR DISASTERS, AND TO FOSTER THE DEVELOPMENT OF SUCH STATE AND LOCAL ORGANIZATIONS AND PLANS TO COPE WITH MAJOR DISASTERS AS MAY BE NECESSARY.' 42 U.S.C. 1855.

"SEC. 3. IN ANY MAJOR DISASTER, FEDERAL AGENCIES ARE AUTHORIZED WHEN DIRECTED BY THE PRESIDENT TO PROVIDE ASSISTANCE * * * (C) BY DONATING OR LENDING EQUIPMENT AND SUPPLIES, DETERMINED UNDER THE EXISTING LAW TO BE SURPLUS TO THE NEEDS AND RESPONSIBILITIES OF THE FEDERAL GOVERNMENT, TO STATES FOR USE OR DISTRIBUTION BY THEM FOR THE PURPOSES OF THIS CHAPTER INCLUDING THE RESTORATION OF PUBLIC FACILITIES DAMAGED OR DESTROYED IN SUCH MAJOR DISASTER AND ESSENTIAL REHABILITATION OF INDIVIDUALS IN NEED AS THE RESULT OF SUCH MAJOR DISASTER; (D) BY PERFORMING ON PUBLIC OR PRIVATE LANDS PROTECTIVE AND OTHER WORK ESSENTIAL FOR THE PRESERVATION OF LIFE AND PROPERTY, CLEARING DEBRIS AND WRECKAGE, MAKING EMERGENCY REPAIRS TO AND TEMPORARY REPLACEMENTS OF PUBLIC FACILITIES OF STATES AND LOCAL GOVERNMENTS DAMAGED OR DESTROYED IN SUCH MAJOR DISASTER, PROVIDING TEMPORARY HOUSING OR OTHER EMERGENCY SHELTER FOR FAMILIES WHO, AS A RESULT OF SUCH MAJOR DISASTER, REQUIRE TEMPORARY HOUSING OR OTHER EMERGENCY SHELTER, AND MAKING CONTRIBUTIONS TO STATES AND LOCAL GOVERNMENTS FOR PURPOSES STATED IN THIS SUBDIVISION. * * *" 42 U.S.C. 1855B.

WHILE THE ACT THUS PROVIDES FOR EMERGENCY REPAIRS AND TEMPORARY REPLACEMENTS OF ESSENTIAL PUBLIC FACILITIES AND FOR TEMPORARY HOUSING OR OTHER EMERGENCY SHELTER, IT MAKES NO EXPRESS PROVISION FOR THE REPAIR OF PRIVATE FACILITIES. IT COULD BE ARGUED, HOWEVER, THAT SINCE THE DAMAGE TO THE RAILROAD TRACKS WAS DIRECTLY RELATED TO THE PERFORMANCE OF ELIGIBLE PROTECTIVE WORK, THE COST OF RESTORING SUCH TRACKS SHOULD ALSO BE CONSIDERED AS PART OF THE COST OF THE PROTECTIVE WORK. WE ARE INCLINED, HOWEVER, TO AGREE THAT SUCH ARGUMENT CANNOT BE SUSTAINED UNDER THE TERMS OF THE ACT NOR DOES AN EXAMINATION OF ITS LEGISLATIVE HISTORY FURNISH ANY SUPPORT FOR SUCH ARGUMENT.

THE PRIMARY PURPOSE OF THE ACT IS TO PROVIDE THAT RELIEF WHICH IS ESSENTIAL TO THE HEALTH AND WELL-BEING OF THE RESIDENTS OF MAJOR DISASTER AREAS. IT WAS THE INTENT THAT SUCH RELIEF WOULD BE UPON AN EMERGENCY BASIS ONLY WITH ONLY TEMPORARY REPAIR OR MAJOR REPLACEMENT OF PUBLIC FACILITIES TO BE MADE DURING AND IMMEDIATELY AFTER DISASTERS. THE ACT DOES NOT CONTEMPLATE THE FINANCING OF PERMANENT REPAIRS OR REHABILITATION BUT RATHER IS DESIGNED TOWARD ALLEVIATING THE IMMEDIATE EFFECTS OF DISASTERS. AFTER SUCH FEDERAL ASSISTANCE, IT WAS CONSIDERED THAT THE RESTORATION, REPLACEMENT, OR PERMANENT IMPROVEMENT OF PUBLIC FACILITIES WAS A RESPONSIBILITY OF THE LOCAL GOVERNMENTS. THE ENTIRE TENOR OF THE ACT IS TO ASSIST LOCAL GOVERNMENTS WITH RESPECT TO THEIR OBLIGATIONS IN MEETING THE IMMEDIATE NEEDS OF LOCAL CITIZENS FOLLOWING MAJOR DISASTERS. SEE HOUSE OF REPRESENTATIVES REPORT NO. 2727, DATED JULY 25, 1950.

ACCORDINGLY, WHILE UNDER SECTION 3 (C) OF THE ACT FEDERAL EQUIPMENT AND SUPPLIES MAY BE FURNISHED TO STATES FOR USE IN RESTORING PUBLIC FACILITIES, FINANCIAL ASSISTANCE UNDER SUBSECTION (D) MAY BE FURNISHED ONLY TO MAKE EMERGENCY REPAIRS TO AND TEMPORARY REPLACEMENTS OF PUBLIC FACILITIES AND TO PROVIDE TEMPORARY HOUSING OR EMERGENCY SHELTER. CONSEQUENTLY, WERE A PUBLIC FACILITY TO BE DAMAGED OR DESTROYED IN CONNECTION WITH THE PERFORMANCE OF AN ELIGIBLE PROTECTIVE WORK, IT DOES NOT APPEAR THAT THE COST OF RESTORING SUCH PUBLIC FACILITY COULD BE BORNE OR SHARED BY THE FEDERAL GOVERNMENT UNLESS IT QUALIFIED AS AN ESSENTIAL PUBLIC FACILITY. SEE 42 COMP. GEN. 6 AND 45 ID. 409. IF THE COST OF RESTORING OR REPAIRING A NONESSENTIAL PUBLIC FACILITY MAY NOT BE SHARED BY THE GOVERNMENT WE THINK SUCH PROHIBITION ON THE USE OF FEDERAL FUNDS APPLIES EVEN MORE CLEARLY WITH RESPECT TO THE RESTORATION OF PRIVATE PROPERTY.

FURTHERMORE, EVEN ASSUMING THAT THE ACT IS SUSCEPTIBLE TO THE VIEW THAT THE COST OF REPAIRING THE TRACKAGE MAY BE REIMBURSED BECAUSE IT WAS DIRECTLY RELATED TO THE COST OF CONSTRUCTING THE PROTECTIVE WORK, IT IS A WELL-ESTABLISHED RULE OF STATUTORY CONSTRUCTION THAT WHEN A STATUTE IS FAIRLY SUSCEPTIBLE OF DIFFERENT CONSTRUCTIONS, THE CONSTRUCTION GIVEN IT BY THOSE CHARGED WITH ITS ADMINISTRATION IS ALWAYS ENTITLED TO THE HIGHEST RESPECT AND, THOUGH NOT CONTROLLING, IF ACTED UPON FOR A NUMBER OF YEARS WILL NOT BE DISTURBED EXCEPT FOR THE MOST COGENT REASONS AND UNLESS CLEARLY ERRONEOUS. SEE 42 COMP. GEN. 467 AND CASES CITED THEREIN.

IN VIEW OF WHAT WE HAVE STATED ABOVE, WE BELIEVE THAT THE ACTION OF OEP IN CONSISTENTLY DENYING CLAIMS SUCH AS THE ONE NOW UNDER CONSIDERATION WAS PROPER UNDER THE TERMS OF THE ACT. IN ANY EVENT, WE ARE QUITE CERTAIN THAT THE DENIAL OF SUCH CLAIMS IS NOT SO CLEARLY ERRONEOUS AS TO NOW REQUIRE OR PERMIT THE PAYMENT OF SUCH CLAIMS WITHOUT A CLEAR MANDATE FROM THE CONGRESS TO SUCH EFFECT.