B-113276, JANUARY 27, 1953, 32 COMP. GEN. 337

B-113276, JANUARY 27, 1953, 32 COMP. GEN. 337

PUBLIC LANDS - SALES - REGULATIONS - RETROACTIVE AMENDMENTS INTERIOR DEPARTMENT REGULATIONS, GOVERNING SALE AT AUCTION OF PUBLIC LANDS WHICH REQUIRE APPLICANTS TO PUBLISH NOTICE OF SALE AT THEIR OWN EXPENSE AND WHICH PERMIT THE UNITED STATES TO VACATE THE SALES WITHOUT LIABILITY FOR THE MONEY SPENT FOR ADVERTISING, MAY NOT BE AMENDED RETROACTIVELY BY A PROVISION AUTHORIZING REIMBURSEMENT TO APPLICANTS FOR THE COST OF ADVERTISING THE SALE OF LANDS WITHDRAWN FROM SALE; HOWEVER, THE REGULATIONS MAY BE AMENDED PROSPECTIVELY TO PROVIDE FOR ALLOWANCE OF SUCH EXPENSES FROM AND AFTER THE EFFECTIVE DATE OF THE AMENDMENT. UNDER INTERIOR DEPARTMENT REGULATIONS, GOVERNING THE SALE OF PUBLIC LANDS PROSPECTIVE PURCHASERS NOT ONLY ARE CHARGED WITH NOTICE THAT THE LANDS MIGHT SUBSEQUENTLY BE WITHDRAWN FROM SALE BUT ARE EXPRESSLY ADVISED THAT SUCH WITHDRAWAL WOULD GIVEN THEM NO RIGHT OR CLAIM AGAINST THE UNITED STATES, AND THEREFORE, AN APPLICANT WHO INCURRED EXPENSES INCIDENT TO SALE OF PUBLIC LANDS SUBSEQUENTLY VACATED BY THE UNITED STATES DOES NOT HAVE A CLAIM CONTAINING SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS WOULD JUSTIFY THE GENERAL ACCOUNTING OFFICE IN MAKING A REPORT THEREOF TO THE CONGRESS UNDER THE ACT OF APRIL 10, 1928.

ACTING COMPTROLLER GENERAL FISHER TO THE SECRETARY OF THE INTERIOR, JANUARY 27, 1953:

REFERENCE IS MADE TO LETTER OF DECEMBER 23, 1952, FROM THE ADMINISTRATIVE ASSISTANT SECRETARY, CONCERNING A PROPOSED AMENDMENT TO THE REGULATIONS OF THE DEPARTMENT OF THE INTERIOR APPEARING IN 43 CFR 250.9 RELATIVE TO THE SALE AT PUBLIC AUCTION OF CERTAIN PUBLIC LANDS AS AUTHORIZED BY THE PROVISIONS OF 43 U.S.C. 1171 AND ISSUED PURSUANT TO THE AUTHORITY CONTAINED IN 43 U.S.C. 1201.

THE BUREAU OF LAND MANAGEMENT IS AUTHORIZED BY THE PROVISIONS OF 43 U.S.C. 1171, REFERRED TO ABOVE, TO SELL AT PUBLIC AUCTION CERTAIN TRACTS OF THE PUBLIC DOMAIN. QUALIFIED PERSONS MAY REQUEST THAT SUCH LANDS BE SOLD AND IF THE REQUEST IS APPROVED THE APPLICABLE REGULATIONS REQUIRE THE APPLICANT TO PUBLISH NOTICE OF THE SALE AT HIS OWN EXPENSE IN THE MANNER AND IN THE NEWSPAPER DESIGNATED BY THE BUREAU.

IT IS EXPLAINED IN THE LETTER OF DECEMBER 23, HOWEVER, THAT CASES HAVE ARISEN WHERE, AFTER NOTICE OF THE SALE HAS BEEN PUBLISHED, THE BUREAU HAS SUBSEQUENTLY DETERMINED THAT RETENTION OF THE LAND WOULD BE IN THE PUBLIC INTEREST AND HAS VACATED THE SALE. THE PROPOSED AMENDMENT TO THE REGULATIONS WOULD AUTHORIZE REIMBURSEMENT TO BE MADE TO APPLICANTS UNDER SUCH CIRCUMSTANCES FOR THE COST OF ADVERTISING THE SALE. IT IS STATED THAT THE FIRST CASE OF THIS SORT TOOK PLACE ON SEPTEMBER 1, 1951 AND THAT THE TOTAL AMOUNT OF THESE EXPENDITURES DOES NOT EXCEED $800.

IN VIEW THEREOF YOU REQUEST TO BE ADVISED WHETHER THE GENERAL ACCOUNTING OFFICE WOULD OBJECT TO THE RETROACTIVE FEATURE OF SUCH OF SUCH PROPOSED REGULATION. YOU ALSO REQUEST TO BE ADVISED WHETHER, IN THE EVENT IT IS DETERMINED THAT REIMBURSEMENT UNDER SUCH CIRCUMSTANCES WOULD NOT BE LEGALLY PROPER, THIS OFFICE WOULD SUBMIT THE CLAIMS TO THE CONGRESS AS MERITORIOUS CLAIMS AGAINST THE UNITED STATES PURSUANT TO THE ACT OF APRIL 10, 1928, 31 U.S.C. 236.

AS A GENERAL RULE, STATUTORY REGULATIONS MAY NOT BE GIVEN A RETROACTIVE EFFECT, PARTICULARLY WHERE TO DO SO WOULD ENLARGE OR DIMINISH EXISTING RIGHTS OF THE PARTIES AFFECTED AND REQUIRE THE EXPENDITURE OF APPROPRIATED FUNDS NOT REQUIRED UNDER EXISTING REGULATIONS. SECTION 250.5, TITLE 43 CFR, OF THE REGULATIONS PERTAINING TO THE PUBLIC SALE OF LAND BY THE BUREAU OF LAND MANAGEMENT PROVIDES:

EFFECT OF APPLICATION. THE FILING OF AN APPLICATION IN CONFORMITY WITH THE REGULATIONS IN THIS PART WILL NOT SEGREGATE THE LANDS APPLIED FOR FROM OTHER APPLICATION UNDER THE PUBLIC LAND LAWS, OR DEFEAT A PRIOR VALID RIGHT INITIATED UNDER SUCH LAW. HOWEVER, UNTIL THE ISSUANCE OF A CASH CERTIFICATE, THE REGIONAL ADMINISTRATOR MAY AT ANY TIME DETERMINE THAT THE LANDS SHOULD NOT BE SOLD, THE APPLICANT OR ANY BIDDER HAS NO CONTRACTUAL OR OTHER RIGHTS AS AGAINST THE UNITED STATES, AND NO ACTION TAKEN WILL CREATE ANY CONTRACTUAL OR OTHER OBLIGATION OF THE UNITED STATES.

IT THUS IS CLEAR THAT, UNDER THE CIRCUMSTANCES DESCRIBED IN YOUR LETTER, THE APPLICANTS INVOLVED ASSUMED THE RISK THAT RETENTION OF THE LANDS MIGHT BE FOUND TO BE IN THE PUBLIC INTEREST AND THAT THE SALES THEREFORE MIGHT BE VACATED WITHOUT OBLIGATING THE UNITED STATES TO MAKE REIMBURSEMENT FOR THE MONEY SPENT FOR ADVERTISING. THE REGULATIONS INVOLVED HAVE THE FORCE AND EFFECT OF LAW AND, SINCE THEY MUST BE CONSTRUED AS PRECLUDING ANY RETROACTIVE EFFECT BEING GIVEN TO THE PROPOSED AMENDMENT THEREOF, THERE EXISTS NO LEGAL BASIS FOR SUCH AN AMENDMENT OR FOR THE ALLOWANCE OF CLAIMS COVERING THE COST OF ADVERTISEMENT PUBLISHED UNDER THE REGULATIONS AS THEY NOW STAND. CONSIDERING, HOWEVER, THAT THE SALES IN QUESTION WOULD BE VACATED IN THE INTEREST OF THE GOVERNMENT AND THAT FUNDS ARE AVAILABLE TO YOUR DEPARTMENT FOR EXPENSES NECESSARY FOR DISPOSAL AND OTHER FUNCTIONS AS AUTHORIZED BY LAW IN THE MANAGEMENT OF LAND AND THEIR RESOURCES UNDER THE JURISDICTION OF THE BUREAU OF LAND MANAGEMENT, THERE WOULD BE NO LEGAL OBJECTION TO AMENDING THE REGULATIONS PROSPECTIVELY TO PROVIDE FOR ALLOWANCE OF SUCH EXPENSES FROM AND AFTER THE EFFECTIVE DATE OF THE AMENDMENT.

YOU ARE ALSO ADVISED THAT, SINCE THE APPLICANTS UNDER THE EXISTING REGULATIONS NOT ONLY ARE CHARGED WITH NOTICE THAT THE LANDS MIGHT SUBSEQUENTLY BE WITHDRAWN FROM SALE BUT ARE EXPRESSLY ADVISED BY THE REGULATIONS THAT SUCH WITHDRAWAL WOULD GIVE THEM NO RIGHT OR CLAIM AGAINST THE UNITED STATES, I DO NOT FEEL THAT THE EQUITIES INVOLVED ARE SUCH AS TO WARRANT SUBMISSION OF THE CLAIMS UNDER THE ACT OF APRIL 10, 1928. SEE 17 COMP. GEN. 720, AND 14 ID. 324.