In re Interdepartmental Waiver Doctrine, B-194861
| Decision Date | 22 April 1981 |
| Docket Number | B-194861 |
| Citation | 60 Comp.Gen. 406 |
| Parties | MATTER OF: INTERDEPARTMENTAL WAIVER DOCTRINE - WITHDRAWN LANDS |
| Court | Comptroller General of the United States |
Public lands - interagency loans, transfers, etc. - damages restoration, etc. - withdrawn lands - relinquishment - "interdepartmental waiver" doctrine inapplicability Dept. Of the interior requests gao's views on applicability of the "interdepartmental waiver" doctrine when an executive department relinquishes a withdrawn area under the federal land policy and management act of 1976 (ACT) (43 U.S.C. 1701 et seq. (1976)) and on proposed amendment to the public land regulations (43 C.F.R 2374.2(b)). Doctrine ordinarily requires that restoration costs for property of one department which has been used by another department be borne by the department retaining jurisdiction over the property since restoration would be for future use and benefit of loaning department. Interior does not benefit in the sense contemplated by the doctrine from restoration of public lands. Accordingly, doctrine does not apply to withdrawn property. Comp.Gen. 93(1979) is distinguished.
An executive department, using real property of another executive department, cannot pay either for the use of the property or, upon returning it, for its restoration to its original condition, unless authorized by statute. This is the so-called interdepartmental waiver doctrine. 59 Comp.Gen 93(1979); 44 Id. 693(1965); 32 Id 179(1952); 31 ID 329(1952); see 10 ID 288(1930). We conclude that the doctrine does not prohibit payment for restoration when a department uses lands withdrawn from the public domain by the department of the interior under the provisions of the federal land policy and management act of 1976, public law no. 94-579, 90 Stat. 2743(1976) ().
The department of the interior, which submitted this question does not believe that the doctrine should apply when an agency uses withdrawn public lands, builds improvements, and then, when its need for the land ends, gives notice of its intention to relinquish it. Citing the 1976 act (43 U.S.C 1701, 1712(c), and 1732(a)), the deputy assistant secretary for land and water resources says that united states policy favors retention of public lands for multiple use management. The doctrine, in interior's view, can sometimes result in the property being disposed of contrary to congressional intent, and the department would like to issue regulations which would prevent that.
The deputy assistant secretary cites the case of the lewistown air force station as an example of how the doctrine can prevent multiple land use and seemingly frustrate congressional policy favoring retention of public lands. Between 1958 and 1961, public domain land was withdrawn for use by the air force as an air station near lewistown, Montana. The air force built 67 buildings and used the station for about 10 years. In 1971, the air force notified the bureau of land management that it intended to relinquish the land. The improvements had to be removed for the land to be suitable for retention by the united states for multiple use management, and a dispute arose over which agency should provide the funds for removal. The station was situated within a block of bureau-managed land classified for retention and multiple use management in public ownership. The air force maintained that the doctrine precluded it from paying for the removal, and requested the bureau either to accept the property for return to the public domain with the improvements, or acknowledge that it was not acceptable so that it could be reported to the general services administration for disposal.
The doctrine frustrates the congressional policy favoring retention of public lands because, in interior's view, if the air force was not prevented by the doctrine from removing the improvements, the property could be made suitable for multiple use, and therefore, would not have to be disposed of. Interior believes that it would be more equitable for the withdrawing agency, and not the department, to be responsible for removing improvements constructed on public lands. Requiring the department to remove improvements from withdrawn public lands at the time of relinquishment May place a severe and unpredictable strain on its resources.
We understand that the lewistown matter has been resolved. (a private individual interested in acquiring the boilers in the buildings at lewistown agreed to remove all of the improvements at the air station as part of his bargain with the government.) However, because similar situations are likely to occur, the department plans to propose amendments to the public land regulations which would require an agency at the time a parcel of public land is withdrawn, to assure the department that it will remove...
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