Conveyance of Federal Lands for Airport Development

Opinion

February 16, 1979

79-15 MEMORANDUM OPINION FOR ASSISTANT ATTORNEY GENERAL, LANDS AND NATURAL RESOURCES DIVISION

Federal Aviation Administration—Federal Airport Act of 1946 (60 Stat. 170)—Airport and Airway Development Act of 1970 (49 U.S.C. §§ 1716, 1723)—Conveyance of Federal Lands for Airport Development

Mr. Harmon has asked me to respond to your memorandum requesting this Office to initiate action to reinstate the authority initially conferred by Executive Order No. 10536, but subsequently revoked by § 2 o f Executive Order No. 12079. For the reasons expressed herein, we do not believe it necessary to reinstate that authority. Rather, we conclude that the author­ ity conferred by § 1 o f Executive Order No. 12079 is sufficient to meet your concerns.

I. Background

You raise issues concerning the interrelationship of two separate but related pieces o f legislation and the orders issued thereunder. The perti­ nent portions o f the separate enactments relate both to the development of public airports and to Federal assistance to such projects. The first enact­ ment, the Federal Airport Act o f 1946, 60 Stat. 170 (hereinafter referred to as the 1946 Act), required that, as a condition o f receiving Federal grants, State and local public agencies submit airport development project appli­ cations to the A dm inistrator o f the Federal Aviation Adm inistration. § 9(a), 60 Stat. 174. The Adm inistrator, before entering into any grant agreement, was required to approve the project application. Numerous conditions were to be met before approval could be given; one condition was that No project shall be approved by the Adm inistrator with respect to any airport unless a public agency holds good title, satisfactory to the Adm inistrator, to the landing area o f such airport or the

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site therefor, or gives assurance satisfactory to the Adm inistrator that such title will be acquired. [Section 9(d), 60 Stat. 175.]

Another provision o f the same Act provided for the conveyance o f Federal lands when the Adm inistrator determined that this was “ reasonably neces­ sary for carrying out a project” under the Act. § 16(a), 60 Stat. 179. The procedure for carrying out such a conveyance was as follows:

Upon receipt o f a request from the Adm inistrator under this sec­ tion, the head o f the departm ent or agency having control o f the lands in question shall determine whether the requested convey­ ance is inconsistent with the needs o f the departm ent or agency, and shall notify the A dm inistrator o f his determ ination within a period o f four m onths after receipt o f the Adm inistrator’s re­ quest. If such departm ent or agency head determines that the re­ quested conveyance is not inconsistent with the needs o f that departm ent or agency, such departm ent or agency head is hereby authorized and directed, with the approval o f the President and the A ttorney General o f the United States, and without any ex­ pense to the United States, to perform any acts and to execute any instruments necessary to make the conveyance requested; but each such conveyance shall be made on the condition that the property interest conveyed shall automatically revert to the United States in the event that the lands in question are not developed, or cease to be used, for airport purposes. [Section 16(b), 60 Stat. 179.]

In Executive Order No. 10536 o f June 9, 1954, the President authorized the heads o f departm ents and agencies to execute conveyances under this provision without the approval o f the President.

The second pertinent piece o f legislation, the Airport and Airway Devel­ opm ent Act o f 1970, Pub. L. No. 91-258, 84 Stat. 219 (hereinafter re­ ferred to as the 1970 Act), repealed the 1946 Act, but it also enacted provi­ sions which, to a great extent, adhered to that A ct’s approach. As a condi­ tion o f receiving Federal grants, public agencies once again had to obtain approval o f project applications for airport development. 49 U.S.C. §§ 1716(a), 1719. The conditions o f approval were largely the same as in the 1946 Act, including that o f good title, 49 U .S.C . § 1716(c), but stricter environmental standards were to be applied. See 49 U .S.C . § 1716(c)(4), (d) and (e). A provision similar to that o f the 1946 Act was made for con­ veyances o f Federal lands, except that certain parklands were exempted. 49 U.S.C. § 1723. In Executive O rder No. 12079, 3 CFR 224 (1979), the President authorized the conveyances to be executed without his approval.

The repeal o f the 1946 Act soon gave rise to the question whether, where grant agreements had been finalized under the 1946 Act, conveyances of Federal land pursuant to those agreements might still be made and ap­ proved under the authority o f the 1946 Act. In our opinion o f January 19, 1971, this Office answered the question affirmatively. The opinion relied on § 52(c) o f the 1970 Act, 84 Stat. 219, 236, which explicitly continued in

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effect “ all orders, determ inations, rules, regulations, permits, contracts, certificates, licenses, grants, rights and privileges” which had taken effect under the 1946 Act. The opinion also reasoned that, since a conveyance of land was “ inextricably bound up with the grant agreem ent,” Congress must have intended that the savings clause permitted conveyancing in ac­ cordance with the 1946 Act.

Under this interpretation, conveyances continued to be made under the 1946 Act by reason o f Executive Order No. 10536, and were made without the approval o f the President. Despite the significant lapse o f time since the repeal o f the 1946 Act, it is our understanding that a num ber o f con­ veyances, which could be approved without Presidential approval under Executive Order No. 10536 and our previous opinion, have yet to be made. However, since Executive Order No. 10536 has been revoked by Ex­ ecutive Order No. 12079, the question is whether a new authorization must be obtained in order to execute these conveyances without the approval o f the President. As noted above, we do not believe this to be the case.

II. Discussion

Section 23 o f the 1970 Act, 49 U.S.C. § 1723, provides as follows:

(a) Requests for use.

Subject to the provisions o f subsection (c) o f this section, whenever the Secretary determines that use o f any lands owned or controlled by the United States is reasonably necessary for carrying out a project for airport development under this part, [part II], or for the operation o f any public airport, including lands reasonably necessary to meet future development o f an air­ port in accordance with the national airport system plan, he shall file with the head o f the departm ent or agency having control of the lands a request that the necessary property interests therein be conveyed to the public agency sponsoring the project in ques­ tion or owning or controlling the airport. The property interest may consist o f the title to, or any other interest in, land or any easement through or other interest in airspace. (b) Execution o f conveyances.

Upon receipt o f a request from the Secretary under this sec­ tion, the head o f the departm ent or agency having control o f the lands in question shall determine whether the requested convey­ ance is inconsistent with the needs o f the departm ent or agency, and shall notify the Secretary o f his determ ination within a period o f four m onths after receipt o f the Secretary’s request. If the departm ent or agency head determines that the requested conveyance is not inconsistent with the needs o f that departm ent or agency, the departm ent or agency head is hereby authorized and directed, with the approval o f the President and the Attorney General o f the United States, and without any expense to the United States, to perform any acts and to execute any

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instruments necessary to make the conveyance requested. A con­ veyance may be made only on the condition that, at the option of the Secretary, the property interest conveyed shall revert to the United States in the event that the lands in question are not developed for airport purposes or used in a m anner consistent with the terms o f the conveyance. If only a part o f the property interest conveyed is not developed for airport purposes, or used in a m anner consistent with the terms o f the conveyance, only that particular part shall at the option o f the Secretary, revert to the United States. (c) Exemptions o f certain lands.

Unless otherwise specifically provided by law, the provisions o f subsections (a) and (b) o f this section shall not apply with respect to lands owned or controlled by the United States within any national park, national m onum ent, national recreation area, or similar area under the adm inistration o f the National Park Service; within any unit o f the National Wildlife Refuge System or similar area under the jurisdiction o f the Bureau o f Sport Fisheries and Wildlife; or within any national forest or Indian reservation.

Except for the language “ under this p art” in subsection (a), there is noth­ ing in the section precluding its use in situations involving projects for air­ port development conducted under the authority o f the 1946 Act. Rather, the language o f the section is generally broad enough to encompass con­ veyances contem plated in grants under the 1946 Act.

O f course, the phrase “ under this part” could be read to restrict the ap­ plication o f § 23 to those airport development projects conducted under the authority o f part II o f the 1970 Act. We do not believe, however, that the phrase was meant to preclude the use o f § 23 in situations involving grants under the 1946 Act. Since § 23 largely restates the analogous provi­ sion o f the 1946 Act, Congress obviously wished to continue that A ct’s purpose o f allowing Federal lands to be conveyed for carrying out airport projects. This purpose would hardly be served by reading the language “ under this part” to preclude the use o f § 23 in projects conducted under the authority o f the 1946 Act. Rather, in light o f Congress’ purpose in en­ acting § 23, and because part II o f the 1970 Act is largely a reenactment of the 1946 Act, see H. Rept. 601, 91st Cong., 1st sess. 12-13 (1969), a more reasonable assessment o f Congress’ intent would be to interpret the term “ under this part” as including projects undertaken under the 1946 A c t.1

1 Indeed, the language “ under this p a rt” essentially tracks the language “ under this A ct” in the analogous provision o f the 1946 A ct. This would suggest that it was not intended to restrict § 23 with respect to the 1946 Act, but rather was simply a continuation o f the policy o f the 1946 Act to allow Federal conveyances only for purposes o f aiding airport develop­ ment projects.

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Another aspect o f the statute supports our conclusion. As noted above, § 52 o f the 1970 Act provides that grants in effect at the time of the effec­ tive date of the Act were to continue in effect. See 49 U .S.C . § 1701 note. Moreover, as we explained in our January 19, 1971 opinion, grant agree­ ments were inextricably bound up with conveyances o f Federal land. We cannot believe that Congress would, on the one hand; act to preserve grants under the 1946 Act that were dependent on such conveyances and, on the other hand, restrict § 23 to preclude conveyances with respect to these grants. Rather, since Congress wished to preserve existing grants, a more likely interpretation o f § 23 would be that its authority is available to effectuate those grants.2 The legislative history o f the 1970 Act supports this view. One com ­ mittee report states that land may be conveyed under § 23 “ for the pur­ pose of carrying out projects for airport developm ent.” H. Rept. 601, 91st Cong., 1st sess. 15 (1969). See also H. Rept. 1074, 91st Cong., 2d sess. 43 (1970). This general statement o f intent would appear to encompass p ro j­ ects conducted not only under the 1970 Act, but also under the 1946 Act. In addition, the Conference Report states that § 23 “ continues, with minor modifications, the policy contained in existing law.” H. Rept. 1074, 91st Cong., 2d sess. 44 (1970). Since the existing law had allowed for conveyances to aid projects under the 1946 Act, this statement would in­ dicate Congress’ intent to allow for the same result to occur under § 23.

We thus conclude that, where grant agreements had been finalized under the 1946 Act, conveyances o f land may be made pursuant to those agreements under the authority conferred by § 23 o f the 1970 Act. By reason o f Executive Order No. 12079, such conveyances may be made without Presidential approval: There is thus no need to initiate action forreinstatement o f the authority, contained in the revoked Executive Order No. 10536, in order to convey Federal lands without Presidential approval under the 1946 Act.

The fear has been expressed that, if conveyances are made under § 23 o f the 1970 Act, other requirements o f that Act would also have to be met. As we have already noted, however, Congress in the 1970 Act continued in force those grants under the 1946 Act that existed on the effective date o f the 1970 Act. Even though the provisions o f the 1970 Act may impose ad­ ditional or different requirements on grants, it seems clear to us that those provisions do not apply to grants finalized before the 1970 Act became ef­ fective. Moreover, we see no reason for § 23 to be deemed inapplicable to 1946 Act grants by requirements which, as Congress expressly provided,

2 We recognize that, in our January 19, 1971 opinion, we concluded that such conveyances could go forward under the authority o f the 1946 Act. T hat opinion, however, did not deal with the availability o f § 23 o f the 1970 Act; rather, it dealt only with the question whether conveyances could be made under the revoked 1946 Act. While we have no occasion to ques­ tion our prevous opinion's conclusion, we believe it more appropriate to proceed under the authority o f § 23—which we believe to be applicable to projects under the 1946 A ct— rather than under a provision in a repealed statute.

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were not to apply to such grants. We have found nothing in § 23 or its legislative history to suggest a contrary conclusion; rather, on the basis of o ur previous discussion, we think that the language and the legislative history o f § 23 indicate that Congress intended § 23 to permit conveyances pursuant to those grant agreements entered into under the 1946 Act.

L eon U lman

D eputy Assistant A ttorney General Office o f Legal Counsel