Authority to Grant Conservation Easements Under 40 U.S.C. § 319

Opinion

Authority to Grant Conservation Easements Under 40 U.S.C. § 319

Federal agencies do not have authority to g ra n t conservation easem ents in federal property under 4 0 U .S C. § 319.

January 19, 1993

M em orandum O p in io n fo r t h e G en era l C o u nsel D epartm ent of C om m erce

You have requested the opinion o f the D epartm ent o f Justice on whether the Secretary o f Com m erce has authority under 40 U.S.C. § 319 to convey to the City o f Boulder, Colorado, a “conservation easem ent” in federal property under the control of the Departm ent of Com m erce.1 The grant of this property interest would guarantee “the perpetual preservation of open space . . . and maximum aesthetic and environm ental lim itations on future construction” on the site.2 W e understand that your O ffice has tentatively concluded that the Department of Commerce “may not possess such authority” and has notified the city attorney for Boulder o f that view.3 C onsistent with the tentative opinion of your office, we conclude that § 319 does not provide authority to grant a conservation easement. W e believe that § 3 1 9 authorizes only the conveyance o f property interests that were recognized by courts as valid and customary easements under the common law existing when the statute was enacted. Although the so-called scenic or conservation easement first developed as a land use device prior to enactm ent o f § 319, it was not then recog­ nized as a valid or custom ary easement in the vast majority of jurisdictions. In the absence of any indication that C ongress intended § 319 to include conservation easem ents, we conclude that the Departm ent o f Commerce is not authorized under § 319 to convey such an easement.

1 Letter for Barry M. Hartman, Acting Assistant Attorney General, Environment and Natural Resources Division, from Wendell L Willkie, II, General Counsel, Department of Commerce (Apr. 8, 1992). Mr. Hartman referred your request to us. The Environment and Natural Resources Division has reviewed this memorandum and concurs in its conclusions. 2 See M emorandum for Wendell L. Willkie, II, General Counsel, Department of Commerce, from Barbara S. Fredericks, Assistant General Counsel for Administration, Department of Commerce at 1 (Apr. 6, 1992) (“Fredericks M em orandum ”). 3 This issue arose out o f negotiations between officials o f the Department of Commerce and the City of Boulder concerning the future development o f 205 acres occupied by the Department’s National Institute of Standards and Technology The Department was considering entering into a contractual agreement that would limit future construction on the site and preserve some o f its open space See Fredericks Memoran­ dum at I. The city, however, wished to becom e the grantee of a '‘conservation easem ent'' under Colorado law. ld .\se e 16A Colo. Rev. Stat. § 38-30.5-102 (1982).

16 Authority to G rant Conservation E asem ents under 40 U .S.C § 319

Section 319 provides in part:

W henever a State or political subdivision or agency thereof or any person makes application for the grant of an easement in, over, or upon real property of the United States for a right-of-way or other purpose, the executive agency having control of such real property may grant to the applicant, on behalf of the United States, such easement as the head of such agency determines will not be adverse to the interests of the United States, subject to such reser­ vations, exceptions, limitations, benefits, burdens, terms, or condi­ tions . . . as the head of the agency deems necessary to protect the interests o f the United States. Such grant may be made without consideration, or with monetary or other consideration, including any interest in real property.

40 U.S.C. § 319. Section 319 speaks of “easem ent[s]. . . for a right o f way or other purpose,” but is silent as to what “other purpose[s]” are permitted. The stat­ ute is thus arguably ambiguous as to the meaning to be given “easem ent” : whether Congress intended that “easem ent” should be given its traditional, common-law meaning or be interpreted in light of continuing legal developments. W e believe, however, that Congress intended to incorporate the common-law definition of easement into the statute.4 W e reach this conclusion by employing the “traditional tools of statutory construction,” IN S v. Cardoza-Fonseca, 480 U.S. 421, 446 (1987), to determine the “meaning which fits most logically and com­ fortably into the body of both previously and subsequently enacted law.” West Virginia Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 100 (1991) (citing 2 J. Suther­ land, Statutory Construction § 5201 (3d Horack ed. 1943)); see also infra pp. 22- 23 and note 14. Section 319 was enacted in 1962. See Act o f Oct. 23, 1962, Pub. L. No. 87- 852, § 1, 76 Stat. 1129, 1129. The legislative history of § 319 dem onstrates that the General Services Administration (“GSA”) proposed the section to Congress because GSA had determined that the “[e]ffective and efficient administration of the real property of the United States require[d] that executive agencies have authority to grant easem ents.” H.R. Rep. No. 87-1044, at 2 (1961); see also S. Rep. No. 87-1364, at 2 (1962). GSA advised that the then-existing procedures for granting easements — which for most agencies required a determination that the property rights in question were both in excess o f the needs of the agency having control of the land and surplus to the needs o f the federal government — were “unsatisfactory and unnecessarily cum bersome” and needed to be “simplified.”

4 Accordingly, there is on this question no statutory ambiguity to be resolved by the administering agency, and any different interpretation of § 319 would fail at “step one’’ of the test established by Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984).

17 Opinions o f th e O ffice o f L eg a l C ounsel

S. Rep. No. 87-1364, at 2; see 108 Cong. Rec. 1591 (1962) (remarks of Rep. M cFall); H.R. Rep. No. 87-1044, at 2 .5 Section 319 was patterned after specific easem ent-granting authority that was already vested in the Attorney General, the Secretaries o f the military departments, and the head of the V eterans’ Administration. See S. Rep. No. 87-1364, at 2; H.R. Rep. No. 87-1044, at 2. The earliest o f those provisions gave the Attorney General pow er to convey “easem ents in and rights-of-way over” federal lands under his control, w henever “advantageous to the G overnm ent.” Act of May 9, 1941, ch. 94, 55 Stat. 183 (1941) (codified at 43 U .S.C. § 931a).6 The Attorney General sought this authority to address difficulties encountered in the development of sites for federal prisons. The Bureau of Prisons needed to restrict public access to certain local roads running through sites acquired for prisons, but some local officials would agree to such closures only if the federal government “grant[ed] an easement along the outside boundaries of the site[s] for the relocation of the roads.” H.R. Rep. No. 77-393, at 1-2 (1941); see 87 Cong. Rec. 3257 (1941) (remarks o f Rep. Sumners). The D irector o f the Bureau o f Prisons explained that it was necessary to “be able to grant such easements prom ptly in order to take advantage of agree­ ments made with State authorities. T he delay which would ensue should each case have to be subm itted to Congress for special authorization would jeopardize the interests o f the G overnm ent.” H.R. Rep. No. 77-393, at 2. Although § 319 gives agency heads broad discretion in certain areas, we do not believe that Congress intended it to be construed to allow an agency to expand or alter the legal concept o f “easement” as it was understood by Congress at the time of enactm ent. W e have previously opined that § 319 “must be interpreted as authorizing [agencies] to grant easem ents only for those purposes for which ease­ ments have been traditionally permitted at com m on law.” M emorandum for Allie B. Latim er, General Counsel, GSA, from Douglas W. Kmiec, Deputy Assistant Attorney General, Office o f Legal Counsel at 4 (June 19, 1986) (“Kmiec M em o­ randum ”). W e explained that:

section 319 was intended to em pow er all agencies to grant ease­ m ents over their property for any purpose for which easements

5 The Senate Committee on Public Works reported that § 319 would “improve the present Government procedures for granting of easements." S Rep. No 87-1364, at 3. The committee stated: At present these procedures are unrealistic and result in undue delay to both the Federal Gov­ ernm ent and those dealing with it Enactment of this bill will provide effective procedures in dealing with requests for easements, necessary to effective cooperation by the Federal Govern­ ment in a variety of local and Federal building programs. Id 6 See also Act o f Aug. 10, 1956, ch 1041, 70A Stat 1, 150-51 (1956) (codified as amended at 10 U.S.C. §§ 2668-2669) (if not “against the public interest,” Secretary of a military department may grant “easements for rights-of-way over, in, and upon public lands permanently withdrawn or reserved for the use of that de­ partment” for specifically enumerated purposes, including railroad tracks, pipelines, and roads), Act of Sept. 2, 1958, Pub. L. No 85-857, § 5014, 72 S tat. 1105, 1254 (codified as amended at 38 U S.C. §8124) (Secretary o f Veterans Affairs given authority sim ilar to Attorney General’s)

18 A u thority to G rant C onservation E asem ents under 40 U .S.C § 3 1 9

could be granted. W e do not believe, however, that either the stat­ ute or the legislative history can be read . . . as authorizing agencies to grant easements fo r any purpose whatsoever, even for purposes for which easements have never been recognized. In particular, nothing suggests that Congress intended to preempt and expand the common law of easements with the enactment of section 319.

Id. at 3-4 (footnote omitted). By “the common law of easements” we meant the American law of easements prevailing at the time of enactment of § 319. See id. at 4 & n.6 (listing the traditional common-law easements) (citing Restatem ent of Property § 450 (1944) (“Restatem ent”) and 3 Herbert T. Tiffany, The Law o f Real Property §§ 763-775, 839 (3d ed. 1939) (cataloguing the traditional easements)). In 1962, an easement had a particular common-law meaning that was well set­ tled. Because § 319 contains no alternative definition o f the term, firmly estab­ lished canons of construction compel the conclusion that Congress adopted the “established common law m eaning” o f the term easement recognized by courts at the time. Chapman v. United States, 500 U.S. 453, 462 (1991).7 Therefore, gov­ ernment agencies are not free to convey interests in federal property that go beyond the easements commonly recognized at common law in 1962. “An easement is an interest in land in the possession of another,” that, among other things, “entitles the ow ner of such interest to a limited use or enjoym ent of the land in which the interest exists.” Restatement § 450. In this case, it is helpful to distinguish between different types o f traditional easements. First, an easement may be “affirmative,” entitling the owner of the interest to enter upon and use the servient land (for example, a right-of-way), or “negative,” enabling the easement owner to prevent the possessor o f the land from doing acts upon the land that he would otherwise be privileged to do (such as obstructing the light available to the easement owner). Id. §§ 451-452; see 4 Richard R. Powell, The Law o f Real ■Property § 34.02[2][c], at 34-16 to 34-17 (rev. ed. 1997). Second, a traditional easem ent is either “appurtenant,” benefiting the owner of an adjacent parcel o f land

1 See also M olzof v United States, 502 U S . 301, 306-07 (1992) (construing term "punitive dam ages" according to its “widely accepted common-law meaning when the [statute] was drafted and enacted” based on “cardinal rule of statutory construction” that when Congress uses a legal term of art, it “ ‘presumably knows and adopts . . the meaning its use will convey to the judicial mind unless otherwise instructed’”) (quoting Morissette v United States, 342 U.S 246, 263 (1952)); Bowen v. M assachusetts, 487 U S . 879, 896-97 (1988) (applying “the well-settled presumption that Congress understands the state of existing law when it legislates" to give the statutory term “money damages” the meaning “used in the com ­ mon law for centuries”) (emphasis added), Edwards v. Aguillard, 482 U S. 578, 598 (1987) (“ ‘A fundam en­ tal canon of statutory construction is that, unless otherwise defined, words will be interpreted as taking their ordinary, contemporary’, common m eaning.” ’) (Powell, J., concurring) (emphasis added) (quoting Perrin v. United States, 444 U S. 37, 42 (1979), which examined “the ordinary meaning of the term ‘bribery’ at the time Congress enacted the statute [in question] in 1961”); Lukhard v Reed, 4 8 i U.S. 368, 386 (1987) (also quoting Perrin regarding the “fundamental canon of statutory construction . that, unless otherwise defined, words will be given their ordinary, contemporary, common meaning” in construing the word “incom e” in a statute).

19 O pinions o f the O ffice o f L e g a l C ounsel

(called the “dom inant tenem ent”), or “in gross,” benefiting another regardless of w hether he owns or possesses other land. Restatement §§ 453-454; 4 Powell, su­ pra, § 34.02[2][d], at 34-17 to 34-22. The “conservation easem ent” at issue is negative and in gross. Conservation easem ents are negative in character because they prevent the owner of the bur­ dened estate from developing the land, typically in any way that would alter its existing natural, open, scenic, or ecological condition. See Gerald Korngold, Pri­ vately H eld C onservation Servitudes: A Policy A nalysis in the Context o f in Gross Real C ovenants and Easements, 63 Texas L. Rev. 433, 435 (1984); Jeffrey A. Blackie, N ote, C onservation Easements and the Doctrine o f Changed Conditions, 40 H astings L.J. 1187, 1193 (1989). Often, the benefit o f the conservation ease­ ment will be in gross. See Restatement (Third) o f Property (Servitudes) § 2.6 re­ porter’s note, at 71 (Tentative D raft No. 1, 1989) (“Draft Restatement”). The property interest sought by the City o f Boulder is expressly defined under Colo­ rado statute as a “Conservation easem ent in gross.” 16A Colo. Rev. Stat. § 38- 30.5-102 (1982). Traditionally, courts recognized very few types of negative easements. See Unif. Conservation Easem ent Act § 4 cmt., 12 U.L.A. 70, 76 (Supp. 1992).8 Com m on law allowed only four: light, air, support o f buildings, and flow o f artifi­ cial stream s. D ukem inier & Krier, supra, at 964; John J. Costonis, The Chicago Plan: Incentive Zoning a nd the Preservation o f Urban Landmarks, 85 Harv. L. Rev. 574, 613 (1972). Prior to the enactm ent of § 319, American courts had added to this short list only expressly granted “easem ents of view,” which prevent a ser­ vient landow ner from obstructing th e view enjoyed by the owner of a dominant tenement. See, e.g., Petersen v. Friedman, 328 P.2d 264, 266 (Cal. Dist. Ct. App. 1958); N orthio Theatres Corp. v. 2 2 6 M ain St. H otel Corp., 231 S.W.2d 65, 67 (Ky. 1950); M cC arthy v. City o f M inneapolis, 281 N.W . 759, 761 (Minn. 1938); see also D ukem inier & Krier, supra, at 1003.9 M oreover, the benefit of a tradi­ tional negative easem ent could not be in gross. See 2 American Law o f Property § 8.12 (A. Jam es Casner ed., 1952); see also Costonis, 85 Harv. L. Rev. at 613- 14.10

8 Negative easements were traditionally disfavored because they restricted the free use and marketability o f land. See Jesse Dukeminier & James E Krier, Property 962 (1981), Note, 40 Hastings L J at 1199 9 A lthough we have not been asked to address whether the grant of an easement of view would be valid under § 319, we note that an easement of view is quite distinct from a conservation easement In those jurisdictions where an easement of view is valid, the limits on development that it imposes are quite similar to those imposed by an easement of light or air. Surface development and development of the servient tene­ m ent's natural resources are normally not restricted at all, because construction on the servient tenement is perm itted so long as it does not block the protected line of sight or view over the servient tenement from the dom inant tenem ent See, e g., Petersen, 328 P.2d at 265-66. The easement of view is commonly drafted as a building height lim it Id. In contrast to an easem ent of view, the so-called conservation easement at issue here would appear to prevent any development of the government land, including surface development, natural resources development, and all types o f construction. Fredericks Memorandum at 1 10 Rather than adding to the list of negative easements, American courts (following the lead of the Eng­ lish com m on law) achieved some of the purposes that might have been served through use of negative ease­

20 A u th o rity to G rant C onservation E asem ents under 4 0 U.S.C § 3 1 9

For these and other reasons, commentators have concluded that conservation easements do not fall within the sphere of traditional easements. As one com m en­ tator has explained:

Traditionally, the law of real covenants (enforced either as cove- nants-at-law or as equitable servitudes) has been seen as distinct from that o f easements. Courts have viewed easements as valuable and protected property rights, while treating real covenants with suspicion and subjecting them to greater barriers against enforce­ ment. . . . . . . [A]ssuming there is validity to the traditional dichotomy be­ tween real covenants and easements, conservation servitudes more closely resemble real covenants than easements and hence should not be labeled and treated as easements. Although conservation servitudes are negative restrictions, they do not resemble any of the four traditional types of negative easements. Like real covenants, conservation servitudes are “promises respecting the use of land.”

Korngold, 63 Texas L. Rev. at 436-37 (footnotes omitted); see also Note, Open Space Procurement Linder C olorado’s Scenic Easement Law, 60 U. Colo. L. Rev. 383, 395 (1989) (“Conservation easements, often held in gross by remote charita­ ble organizations, might receive little judicial protection under a common law that traditionally disfavors such restrictions on land use.”). Although the use of “scenic” or “conservation” servitudes to achieve open space or other land preservation goals first developed prior to the enactment of § 319," those innovative forms of servitudes had not gained wide acceptance in the courts by 1962, and certainly such interests were not considered “easem ents” in the tradi­ tional sense. See, e.g., Jan Z. Krasnowiecki & James C.N. Paul, The Preservation o f Open Space in M etropolitan Areas, 110 U. Pa. L. Rev. 179, 194 (1961) (“[T]he type of interest needed to accomplish open-space preservation is so unlike any easement and so like most restrictive covenants that one can expect the courts to treat them as covenants.”). Under the common law, these interests, if recognized as property interests at all, would most likely have been classified as servitudes or real covenants rather than negative easements. See Costonis, 85 Harv. L. Rev. at

ments by expanding the recognition of a different property interest, the “equitable servitude,” which is a promise respecting the use of land (similar to a real covenant) that is equitably enforceable. See Dukeminier & Kner, supra, at 964, 966-67, 1003 11 See William A. Whyte, Securing Open Space fo r Urban America: Conservation Easements 11-14 (Urban Land Inst. Bull No 36, 1959) In the 1950s and before, governments, including the federal govern­ ment, occasionally used their powers of eminent domain to acquire scenic “easements’* in property adjoining parklands or highways. See id., see also 4 Powell, supra, § 34.11(3], at 34-60 to 34-61. The first “Scenic Easement Deed Act,” enabling local governments to accept grants of scenic easements, was passed in C ali­ fornia in 1959 See Thomas S. Barrett & Putnam Livermore, The Conservation Easement m California 11 (1983)

21 Opinions o f th e Office o f L egal C ounsel

614-15 (“Characterizing a preservation restriction as an equitable servitude offers a more prom ising route [to recognition] than either [as a negative easement or real covenant]. Equitable servitudes are not restricted to four specific types of negative easem ents. . . . No privity o f estate other than that provided by the agreement need exist.” ); see also 4 Pow ell, supra, § 34.11 [3] at 34-158 (“Tulk v. M oxhay, [2. Phil. 774, 41 Eng. Rep. 1143 (Ch. 1848)] the case generally considered as establishing the doctrine o f equitable servitudes, really involved [what is now being referred to as] a scenic easem ent.”). Indeed, it was because o f the reluctance o f courts to recognize this new form of property interest that many states in the 1970s and 1980s adopted conservation easem ent statutes, including the C olorado statute that would govern the convey­ ance sought by the City o f Boulder.12 A lthough recent developments in the American law o f property tend to blur the distinctions between negative easements and other forms of servitudes such as re­ strictive covenants and equitable servitudes, see Draft Restatement, at xxv-xxvi, and suggest that benefits in gross m ay som eday be freely permitted for all servi­ tudes, see id. § 2.6 & cm t. d, the traditional distinctions were still much in force in 1962. A ccordingly, we conclude that by authorizing agencies in § 319 to convey only “easem entfs],” Congress did not intend to permit an agency to encumber fed­ eral property with a nontraditional form o f restrictive equitable servitude like a “conservation easem ent.” 13 As we stated earlier, the Supreme Court has instructed that we construe argua­ bly am biguous terms “to contain that permissible meaning which fits most logically

12 See 1976 Colo Sess Laws 750, § 1 (codified at 16A Colo. Rev. Stat §38-30.5-101 (1982)) ("The general assembly finds and declares that it is in the public interest to define conservation easements in gross, since such easem ents have not been defined by the judiciary.”), see also Umf. Conservation Easement Act § 4(3), 12 U L.A. 70, 76 (Supp 1992) (providing that a conservation easem ent will be valid under the uni­ form act even though “it is not of a character that has been recognized traditionally at common law”), supra, note 8. 13 Our conclusion would be the same even if we disregarded the “ fundamental canon of statutory con­ struction . . . that, unless otherwise defined, w ords will be interpreted as taking their ordinary, contemporary, common meaning,” Perrin v. United States, 444 U S 37, 42 (1979), and assumed that Congress intended the meaning of the term “easem ent” in § 319 to evolve with the common law The use of the word “ easement” in the term “conservation easem ent,” a term that does not occur in § 319, is of slight legal significance The relevant question in our analysis is whether the eventual recognition and enforcement of conservation ease­ ments — in states where they are recognized and enforced — were an outgrowth of the traditional law of easements or whether conservation easements developed independently o f the common law doctrine W e have already explained that a conservation easement is closer to a restrictive equitable servitude than any type o f com m on law easement. Even more important, however, conservation easements have come to be recognized in a body of statutory law that developed independently of the common law of easements. Thus, even if Congress intended for the meaning o f the term “ easement” in § 319 to evolve with the common law (and expressed such intent in the statute), there is still ample reason to conclude that a so-called “conservation easem ent” is not a development of the comm on law of easements This conclusion further supports our view that a conservation easement cannot properly be interpreted as an easement within the meaning o f § 319

22 A uthority’ to G rant Conservation E asem ents under 40 U.S C § 319

and comfortably into the body of both previously and subsequently enacted law.” 14 As the Court explained in United Sav. A s s ’n:

[V]iewed in the isolated context of [a particular section o f a statute], the phrase [at issue] could reasonably be given the meaning peti­ tioner asserts. Statutory construction, however, is a holistic en­ deavor. A provision that may seem ambiguous in isolation is often clarified by the remainder o f the statutory scheme .. . because only one of the permissible meanings produces a substantive effect that is compatible with the rest of the law.

484 U.S. at 371 (citations omitted). We therefore examine congressional intent as it is expressed in other statutes governing the management and disposal of excess federal property, see 40 U.S.C. §§ 483, 484, 488, 490, as well as in the other sub­ sections of 40 U.S.C. § 319. That examination provides further support for our conclusion that Congress did not intend § 319 to apply to the type of conservation easements at issue here. With few exceptions, the management and disposal of federal governm ent prop­ erty remains a m atter entrusted to the Adm inistrator of GSA by the Federal Prop­ erty and Administration Services Act of 1949, ch. 288, 63 Stat. 377 (1949) (codified as amended in scattered sections of Titles 40, 41, 44 & 50 o f the United States Code). The purpose o f the statute is to provide for the efficient operation of federal governm ent property, buildings and works. 40 U.S.C. §§ 471, 483. With respect to an agency’s surplus property, the Adm inistrator must follow certain pro­ cedures in the disposal or transfer o f such property to maximize the benefit to the federal governm ent as a whole. 40 U.S.C. §§ 483-490. Under these procedures, property must be reallocated within the federal government if possible prior to be­ ing transferred or conveyed to private parties. 40 U.S.C. § 483(a)(1). The Ad­ ministrator also has nearly exclusive control over the leasing of federal government property. 40 U.S.C. § 490(a)(l3). Absent independent authority, no agency may lease or otherwise encumber federal government property without GSA approval.15

14 West Virginia Umv Hasps , h it. v Ca.\ev, 499 U S 83, 100 (1991); see also Patterson v Shumate, 504 U S 753, 758, 762-63 (1992) (explaining that an ambiguous statutory term should be considered “together with the rest” o f the statute); K Mart Corp v Cartier, Inc , 486 U S 281, 291 (1988) (in discern­ ing the meaning of a statute, “the court must look to . . the language and design of the statute as a whole” ), United Sav A ss’n v Timbers o f Inwood Forest Assocs., 484 U.S 365, 371 (1988) (instructing that ambigu­ ous phrases should be examined in the context of “the remainder of the statutory scheme” ); cj. Chtsom v Roemer, 501 U.S 380, 417 (1991) (Scalia, J , dissenting) (“Our highest responsibility in the field of statutory construction is to read the laws \n a consistent way . ” ) 15 Id , see also Reorg. Plan No 18 of 1950, reprinted m 15 Fed. Reg 3177 (1950) ("All functions with respect to acquiring space in buildings by lease, and all functions with respect to assigning and reassigning space in buildings for use by agencies . are hereby transferred from the respective agencies in which such functions are now vested to the Administrator of General Services “).

23 O pinions o f the O ffice o f L egal C ounsel

In sum, the statutory schem e of 40 U.S.C. §§ 483-490 entrusts to the Adminis­ trator o f G SA authority over the use and disposition of surplus federal property, and the transfer o f substantial control over such property to private parties is disfa­ vored. A lthough § 319, as proposed by GSA, is an exception to the scheme out­ lined in 40 U.S.C. §§ 483-490, there is no reason to believe that GSA proposed or that Congress intended to undercut o r repeal by implication large portions o f the more general schem e.16 Section 319 was intended only as a limited exception to the existing law to expedite relatively limited types o f grants. See Kmiec M em o­ randum at 3-4.17 A ccording to its principal sponsor in the House of Representa­ tives, § 319 was proposed by GSA as “a simplified way” to grant easements over federal land without going through the “unnecessarily cumbersome” requirement of having the land declared surplus to the needs of the United States. 108 Cong. Rec. 1591 (statem ent of Rep. McFall). It was not intended to displace any other law. Id. It is true that § 319 is broader than the authority specifically given to the Secre­ taries o f the m ilitary departments, see 10 U.S.C. §§ 2668-2669, because the latter is limited to the granting o f easements for specifically enumerated rights-of-way, such as pipelines and roadways, whereas § 319 allows the conveyance of an ease­ ment for a right-of-w ay “or other purpose.” 40 U.S.C. § 319. See H.R. Rep. No. 87-1044, at 2; S. Rep. No. 87-1364, at 2 .18 However, this shows only that Con­ gress intended § 319 to authorize agencies to grant easements for purposes other than rights-of-w ay; it does not suggest that Congress intended to confer granting authority for interests other than easem ents (as the term was understood in 1962).19 Consistent with this interpretation, the only example of an easement specified in § 319 is a right-of-w ay over federal property. In fact, in a brief exchange between the principal floor sponsor in the H ouse, Representative McFall, and Representa­

16 Subsection 319c expressly provides that the authority to convey such easements created in § 319 is not conferred with respect to the vast majority o f federal land See 40 U S C. § 319c (excluding the public lands, including the national forests, fish and w ildlife preserves, and certain other land under the control of the Secretary of the Interior as well as certain Indian trust property from the definition of “real property of the United States” as used in § 319) 17 The Senate Committee on Public Works stated that “easements might be desired for power transmis­ sion lines, pipelines, water lines, roads, and o ther public utilities or public service facilities, which serve a highly useful purpose, and that if the head o f the executive agency determines that such easement is not adverse to the interests o f the United Slates, it should be granted ’* S Rep No 87-1364, at 3 18 See also Letter for Sam Rayburn, Speaker of the House of Representatives, from John L. Moore, Ad­ m inistrator o f GSA (June 12, 1961), reprinted in H R. Rep. No 87-1044, at 4 and Sen Rep No 87-1364, at 5 The letter explained the draft bill submitted by GSA Rather than limit the grant o f such easements to enumerated purposes, as is done in 10 U.S C 2668 and 2669, it is fell advisable to perm it the head of the executive agency having control of property to grant the easem ent for such purpose as he deems advisable so long as the interests of the United States will not be adversely affected. 19 In addition to nghts-of-way, other rights recognized as easements when § 319 was enacted include1 watercourses, percolating waters, spring waters, grants of water power, artificial watercourses, surface waters and drains, support of land and buildings, party walls, partition fences, pews, light and air, and burial rights. See 3 Tiffany, supra, at §§ 763-775

24 A u thority to Grant Conservation E asem ents under 40 U S C § 319

tive Gross on whether the original bill should be placed on the unanimous consent calender, Representative M cFall stated that he thought the bill was “confined to the granting of an easement fo r right-of-way purposes." 108 Cong. Rec. 1591 (emphasis added). W hen asked to provide examples o f the types of easem ents that could be conferred pursuant to the bill, Representative McFall only offered the example of a right-of-way over federal property and specifically rejected other interpretations of the bill. Id. Satisfied by Representative M cFall’s assurances that § 3 1 9 would not change existing laws governing the use and disposal of federal property except to allow the grant of relatively limited types o f easements, Repre­ sentative Gross withdrew his reservation to allow the bill to be placed on the unanimous consent calender. Id.20 Compared to easements that confer rights-of-way, it is obvious that the scope of private control over federal property made possible by the grant of a conservation “easem ent” would be much more extensive. We have previously opined that an agreement referred to as an “easement” that amounts in substance to a lease of fed­ eral property is beyond the scope of § 319. See Kmiec Memorandum at 5-9. We explained that traditional easements are characterized by the “'requirem ent that the easement involve only a limited use or enjoyment of the servient tenem ent.’” Id. at 5 (quoting 4 Powell, supra, § 34.02[1], at 34-10 (rev. ed. 1997)); see also R e­ statement § 471, cmts. d and e. For this reason, we concluded that the purported easement at issue in the Kmiec Memorandum was not valid. Kmiec M emorandum at 9. The type of conservation easement discussed in your request and the types of conservation easements authorized under the Colorado statute do not appear to be limited in scope or constrained by definition. The Colorado statute enforces the seemingly unlimited “right in the owner o f the easem ent to prohibit or require a limitation upon or an obligation to perform acts on or with respect to a land or wa­ ter area or air space above the land or water . . . appropriate to the retaining or maintaining of such land, water, or airspace . . . in a natural, scenic, or open condi­ tion.” 16A Colo. Rev. Stat. § 38-30.5-102 (1982). Thus, the scope of restrictions that may be placed on the agency’s use o f its land under the Colorado conservation easement statute are limited only by the im agina­ tion o f the drafters of the granting instrument, § 38-30.5-103(4), and the require­ ment that such use restrictions be “appropriate” to the preservation of land in “a natural, scenic, or open condition,” § 38-30.5-102. Moreover, the Colorado statute expressly provides that the remedies available for a breach of a conservation ease­ ment are not limited by traditional remedies at law or equity, but also include dam­ ages for “the loss of scenic, aesthetic, and environmental values.” § 38-30.5- 108(3). It is clear that many types of leases would involve fewer limitations on an

20 Although the text of § 319 plainly authorizes the grant of an easement for a right-of-way or "other purpose," the exchange between Representatives Gross and McFall is evidence that at least some members of Congress thought such other purposes were rather limited.

25 O pinions o f the O ffice o f Legal C ounsel

agency’s use of its surplus land than som e types of conservation easements.21 In short, we do not believe that the type o f conservation easem ent authorized by Colo­ rado law is the type o f limited easement that is covered by § 319. Finally, we have reconsidered the legislative history of § 319, and conclude that the purposes underlying the enactment o f § 319 seem to have significantly less force in the context o f open space preservation. As discussed above, the principal purpose behind § 319 was to promote the “effective administration” o f federal property by allow ing agencies to respond quickly to the demands of local interests that may present a relatively minor im pedim ent to the completion of a federal land developm ent project. W here, on the other hand, the local interest wishes to secure the perpetual preservation o f federal land by preventing further development, and the agency is willing to accommodate such a desire, there would ordinarily be little need for a quick conveyance of a conservation easement by the agency. If the agency determ ines that such preservation is consistent with the interests o f the United States, the agency may follow existing procedures for the disposal of excess property, see 40 U.S.C. §§ 483, 484, 488, 490, or may seek special legislative ap­ proval from Congress for such a conveyance.

DOUGLAS R. COX Principal Deputy Assistant Attorney General O ffice o f Legal Counsel

21 There are obviously many differences between a lease and a conservation easement, particularly with regard to the possessory interests involved, but there might be little difference with respect to the non- ow ner’s degree of control over the federal agency's use of the land that is subject to the lease or conservation easement We adhere to the view that Congress did not intend in the passage of § 319 to create a distinction between G S A ’s authority to direc' and supervise leases on federal property and its authority to supervise conveyances referred to as easemeiiis that amount to a significant relinquishment of federal control over such property.