B-129637, DEC. 4, 1956

B-129637, DEC. 4, 1956

TO THE SECRETARY OF THE NAVY:

REFERENCE IS MADE TO LETTER OF OCTOBER 17, 1956 (RECEIVED HERE OCTOBER 26, 1956), FROM THE ASSISTANT SECRETARY OF THE NAVY (MATERIAL), CONCERNING YOUR DEPARTMENT'S AUTHORITY TO ENTER INTO A CONTRACT WITH THE JEFFERSON AND PLAQUEMINES DRAINAGE DISTRICT OF GRETNA, LOUISIANA, FOR FURNISHING DRAINAGE SERVICES TO THE JOINT AIR RESERVE TRAINING CENTER, ALVIN CALLENDER FIELD, NEW ORLEANS, LOUISIANA.

IT APPEARS THAT THE BUREAU OF YARDS AND DOCKS, DEPARTMENT OF THE NAVY, IS PRESENTLY CONSTRUCTING THE TRAINING CENTER AND THAT THE FIELD WILL BE ACTIVATED BY THE SPRING OF 1957. IT FURTHER APPEARS THAT TITLE TO THE LAND COMPRISING THE FIELD--- WHICH IS LOCATED WITHIN THE BOUNDARIES OF THE DRAINAGE DISTRICT--- WAS ACQUIRED BY THE FEDERAL GOVERNMENT BY CONDEMNATION, AND THAT NO STEPS HAVE BEEN TAKEN TO OBTAIN EXCLUSIVE FEDERAL JURISDICTION OVER THE AREA. IT IS REPORTED THAT PRIMARILY DUE TO THE PHYSICAL NATURE OF THE AREA WHERE THE FIELD IS LOCATED, IT IS ESSENTIAL THAT ADEQUATE STORM DRAINAGE FACILITIES BE AVAILABLE SO AS TO PROPERLY PROVIDE FOR THE RUN-OFF OF EXCESS QUANTITIES OF WATER WHICH WOULD OTHERWISE COLLECT AND SERIOUSLY IMPEDE THE CONTINUED OPERATION OF THE FIELD.

THE ASSISTANT SECRETARY'S LETTER IS, IN PART, AS FOLLOWS:

"* * * PRIOR TO DECEMBER 18, 1955 THE DISTRICT RENDERED TO ALL OF THE PROPERTY IN THE AREA, INCLUDING ALVIN CALLENDER FIELD, COMPLETE DRAINAGE SERVICES CONSISTING OF THE OPERATION AND MAINTENANCE OF CANALS, LEVEES, AND PUMPING PLANTS. THE LEVEES WHICH THE DISTRICT CONSTRUCTED AND MAINTAINS EFFECTIVELY RESTRAIN WATERS FROM OTHER AREAS FROM COMING ON TO THE PROPERTY IN THE DISTRICT AND AT THE SAME TIME CONTAIN THE WATERS WITHIN THE BOUNDARIES OF THE DISTRICT. THROUGH THE DISTRICT'S SYSTEM OF DRAINAGE DITCHES, THE WATERS ARE CHANNELED OFF INTO CANALS. NONE OF THE DISTRICT'S FACILITIES IS LOCATED ON THE PROPERTY COMPRISING ALVIN CALLENDER FIELD WITH THE EXCEPTION OF THE DISTRICT'S MAIN DRAINAGE CANAL WHICH CROSSES A SECTION OF THE FIELD. THIS CANAL AS WELL AS THE DISTRICT'S OTHER FACILITIES WERE CONSTRUCTED AND HAD BEEN OPERATED BY THE DISTRICT FOR A CONSIDERABLE PERIOD PRIOR TO THE GOVERNMENT'S ACQUISITION OF THE ALVIN CALLENDER FIELD PROPERTY. NONE OF THE DISTRICT'S FACILITIES WAS CONSTRUCTED OR IS OPERATED ESPECIALLY TO SERVE ALVIN CALLENDER FIELD AND THE BENEFITS WHICH ACCRUE TO THE FIELD FROM THE DISTRICT'S OPERATION OF ITS FACILITIES LIKEWISE ACCRUE TO ALL OF THE OTHER PROPERTY IN THE AREA COMPRISING THE DISTRICT.

"THE ARMY CORPS OF ENGINEERS AS PART OF AN OVER-ALL PLAN TO PROVIDE AN ALTERNATE NAVIGATION ROUTE FOR THE GULF INTRACOASTAL WATERWAY HAS CONSTRUCTED THE ALGIERS CANAL WHICH CROSSES THE DISTRICT. WHILE CONSTRUCTED PRIMARILY FOR NAVIGATION PURPOSES, THE CANAL, TOGETHER WITH A PUMPING PLANT CONSTRUCTED AND OPERATED BY THE ARMY, ALSO PROVIDES DRAINAGE SERVICE FOR THE AREA. THIS CANAL AND PUMPING PLANT ARE SUPPORTED AND MAINTAINED BY THE ARMY AND ARE NOT CONSIDERED AS PART OF THE SERVICES FURNISHED BY THE DISTRICT.'

IT IS REPORTED THAT SINCE THE OPENING OF THE ALGIERS CANAL ON DECEMBER 18, 1955, AND THE PLACING INTO OPERATION OF THE ARMY'S PUMPING PLANT, THE DISTRICT NO LONGER PROVIDES PUMPING SERVICES FOR ITS SOUTHEASTERN AREA WHICH INCLUDES ALVIN CALLENDER FIELD. HOWEVER, IT IS ALSO REPORTED THAT THE DISTRICT CONTINUES TO MAINTAIN AND OPERATE ITS LEVEES, DRAINAGE DITCHES AND CANALS SERVING THAT AREA AND THAT THE FIELD COMPRISES APPROXIMATELY ONE-THIRD OF THE AREA LYING SOUTHEAST OF THE ALGIERS CANAL.

APPARENTLY, THE JEFFERSON AND PLAQUEMINES DRAINAGE DISTRICT IS A POLITICAL SUBDIVISION OF THE STATE OF LOUISIANA AND WAS CREATED PURSUANT TO CHAPTER 6, TITLE 38 OF THE LOUISIANA REVISED STATUTES, SECTIONS 1601- 1707. UNDER THESE SECTIONS THE DISTRICT IS CONSTITUTED AS A BODY CORPORATE IN LAW WITH ALL THE POWERS OF A CORPORATION AND IS AUTHORIZED TO LEVY AND COLLECT TAXES AGAINST THE PROPERTY IN THE DISTRICT TO DEFRAY THE DISTRICT'S OPERATING AND MAINTENANCE COSTS. IT IS REPORTED IN THE LETTER THAT CURRENTLY THE TAX LEVIED BY THE DISTRICT IS COMPOSED OF AMOUNTS REFLECTING A FLAT RATE PER ACRE PLUS A RATE DETERMINED BY THE ASSESSED VALUATION OF THE INDIVIDUAL PROPERTIES.

IT IS REPORTED THAT THE DISTRICT HAS PROPOSED THAT THE FEDERAL GOVERNMENT ENTER INTO A CONTRACT FOR THE PROCUREMENT OF DRAINAGE SERVICES CONSISTING OF THE OPERATION OF ITS LEVEES, DRAINAGE DITCHES AND CANALS, PROVIDING FOR PAYMENTS BY THE GOVERNMENT CALCULATED, NOT ON THE BASIS OF THE ESTABLISHED TAX RATE, BUT, RATHER, ON A REASONABLE RATE FOR THE MEASURABLE AMOUNTS OF SUCH SERVICES ACTUALLY FURNISHED BY THE DISTRICT AND RECEIVED BY THE GOVERNMENT, TAKING ALL PERTINENT FACTORS IN TO CONSIDERATION, INCLUDING BENEFITS RECEIVED FROM THE OPERATION OF THE DRAINAGE FACILITIES WHICH HAVE BEEN CONSTRUCTED BY THE ARMY ENGINEERS IN THE AREA. IT IS STATED THAT THE DRAINAGE SERVICES WHICH WOULD BE COVERED BY THE PROPOSED CONTRACT ARE PRESENTLY BEING FURNISHED BY THE DISTRICT AND ARE BEING RECEIVED BY THE GOVERNMENT WITHOUT A CONTRACT. IT IS ALSO STATED THAT PRESUMABLY, ASSUMING THE DISTRICT CONTINUES TO OPERATE, AS IN THE PAST, TO DISCHARGE THE FUNCTIONS FOR WHICH IT WAS ORGANIZED, THESE SERVICES WOULD CONTINUE TO BE FURNISHED THE PROPERTY OWNERS WITHIN THE DISTRICT AND TO THE GOVERNMENT EVEN THOUGH NO CONTRACT IS ENTERED INTO BY THE GOVERNMENT. IT APPEARS, HOWEVER, AS INDICATED ABOVE, THAT IN THE EVENT THE DISTRICT FAILS TO CONTINUE TO MAINTAIN THE LEVEES AND OTHER FACILITIES IN THAT AREA THE DRAINAGE OF ALVIN CALLENDER FIELD WOULD BE INADEQUATE, AND, AS A CONSEQUENCE, ITS OPERATIONS WOULD BE SERIOUSLY IMPEDED. IT IS REPORTED THAT IT IS NOT ECONOMICALLY PRACTICABLE FOR THE GOVERNMENT TO CONSTRUCT SUBSTITUTE GOVERNMENT FACILITIES.

IN VIEW OF THE FOREGOING A DECISION IS REQUESTED AS TO YOUR DEPARTMENT'S AUTHORITY, IF ANY, TO ENTER INTO THE CONTRACT PROPOSED BY THE DISTRICT.

AS INDICATED IN THE ASSISTANT SECRETARY'S LETTER, IT IS WELL ESTABLISHED THAT AN ASSESSMENT LEVIED BY A STATE OR ANY POLITICAL SUBDIVISION OF A STATE AGAINST REAL PROPERTY TO COVER A BENEFIT ENURING TO SUCH LAND IN CONSEQUENCE OF A LOCAL IMPROVEMENT, IS AN INVOLUNTARY EXACTION AND, AS SUCH, IS A TAX WHICH THE UNITED STATES MAY NOT BE REQUIRED TO PAY. LEE V. OSCEOLA AND LITTLE RIVER ROAD IMPROVEMENT DISTRICT, 268 U.S. 643; MULLEN BENEVOLENT CORPORATION V. UNITED STATES, 290 U.S. 89; UNITED STATES V. ANDERSON COTTONWOOD IRRIGATION DISTRICT, 19 F.SUPP. 740 AND UNITED STATES V. CITY OF CHARLESTON, 93 F.SUPP. 748; 3 COMP. GEN. 416; 15 ID. 380; 18 ID. 562; 20 ID. 206; 27 ID. 20; AND 2O ID. 18. BUT IT IS EQUALLY WELL- SETTLED THAT A CHARGE BY A STATE OR A POLITICAL SUBDIVISION THEREOF FOR SERVICES RENDERED TO, OR CONVENIENCES PROVIDED FOR, THE FEDERAL GOVERNMENT IS, IN NO SENSE, A TAX. 20 COMP. GEN. 748; 29 ID. 120. ALSO, AS INDICATED IN THE LETTER, WE HAVE HELD THAT WHERE MUNICIPAL SERVICES SUCH AS WATER AND SEWAGE ARE REQUIRED BY THE GOVERNMENT AND ARE RECEIVED BY THE GOVERNMENT THROUGH INTERCONNECTION OF GOVERNMENT AND MUNICIPAL FACILITIES, THEN, EXCEPT WHERE THE SERVICES ARE RENDERED AS AN INCIDENCE OF TAXES FOR THE GENERAL EXPENSES OF THE MUNICIPALITY AND WITHOUT REGARD TO QUANTITY (31 COMP. GEN. 405), PAYMENTS HAVE BEEN REGARDED NOT AS TAXES BUT AS SERVICE OR RENTAL CHARGES WHICH GOVERNMENT AGENCIES ARE AUTHORIZED TO PAY. 9 COMP. GEN. 41; 20 ID. 206; ID. 748; 27 ID. 20; 29 ID. 120.

IT IS ASSUMED FROM THE ASSISTANT SECRETARY'S LETTER THAT THE GOVERNMENT HAS CONSTRUCTED DRAINAGE DITCHES AND STORM SEWERS ON ALVIN CALLENDER FIELD AND HAS CONNECTED SUCH DITCHES AND SEWERS WITH THE DISTRICT'S DRAINAGE DITCHES AND CANALS. IF THIS ASSUMPTION IS CORRECT, IT APPEARS THAT THE DRAINAGE DISTRICT IS ENTITLED TO BE PAID ON A QUANTUM MERUIT BASIS FOR THE DRAINAGE SERVICES FURNISHED THE FIELD SO LONG AS THE GOVERNMENT AVAILS ITSELF OF SUCH SERVICES. THERE WOULD APPEAR TO BE NO DIFFERENCE IN PRINCIPLE BETWEEN PAYING FOR THE PRIVILEGE OF CONNECTING THE SEWERS OF A GOVERNMENT BUILDING TO A CITY SEWAGE SYSTEM AS AUTHORIZED IN 9 COMP. GEN. 41 AND 29 ID. 120 AND PAYING FOR THE PRIVILEGE OF CONNECTING DRAINAGE DITCHES AND STORM SEWERS TO THE DRAINAGE SYSTEM OF A DRAINAGE DISTRICT. OBVIOUSLY, THE UNITED STATES IS UNDER NO COMPULSION TO CONNECT ITS DRAINAGE DITCHES AND STORM SEWERS TO THE DISTRICT'S DRAINAGE SYSTEM AND DOES SO ONLY BECAUSE IT REQUIRES SUCH SERVICES IN ORDER TO MAKE USE OF THE FIELD. WHILE IT MAY BE--- AS INDICATED IN YOUR DEPARTMENT'S LETTER--- THAT THE LEVEES ARE ANALOGOUS TO FIRE PROTECTION FACILITIES (GOVERNMENT AGENCIES GENERALLY NOT BEING AUTHORIZED TO PAY FOR FIRE PROTECTION FURNISHED THE PUBLIC BY A STATE OR POLITICAL SUBDIVISION THEREOF) IT APPEARS THAT THE LEVEES ARE AN INTEGRAL PART OF THE WHOLE DRAINAGE SYSTEM AND NOT A SEPARATE SERVICE.

IN VIEW OF THE FOREGOING, IF IT IS ADMINISTRATIVELY DETERMINED NECESSARY TO CONNECT THE DRAINAGE DITCHES AND STORM SEWERS OF ALVIN CALLENDER FIELD TO THE DISTRICT'S DRAINAGE SYSTEM IN ORDER TO USE THE FIELD, IT WOULD APPEAR THAT YOUR DEPARTMENT HAS THE AUTHORITY TO ENTER INTO A CONTRACT WITH THE DISTRICT FOR THE PROCUREMENT OF DRAINAGE SERVICES PROVIDING FOR PAYMENT (IF YOUR APPROPRIATIONS ARE OTHERWISE PROPERLY AVAILABLE) CALCULATED ON A REASONABLE RATE FOR THE MEASURABLE AMOUNT OF SUCH SERVICES ACTUALLY FURNISHED BY THE DISTRICT AND RECEIVED BY THE GOVERNMENT, TAKING ALL PERTINENT FACTORS INTO CONSIDERATION, INCLUDING BENEFITS RECEIVED FROM THE OPERATION OF DRAINAGE FACILITIES WHICH HAVE BEEN CONSTRUCTED BY THE ARMY CORPS OF ENGINEERS IN THE AREA.