Obligation to Sell Governors Island ( 2001 )

Obligation to Sell Governors Island
The statutory requirement that the Administrator of General Services sell Governors Island at fair
market value continues to apply notwithstanding the President’s subsequent reservation of Gover-
nors Island as a national monument under the Antiquities Act.
April 24, 2001
MEMORANDUM OPINION FOR THE ACTING GENERAL COUNSEL
GENERAL SERVICES ADMINISTRATION
This memorandum confirms oral advice provided on January 19, 2001, in
connection with President Clinton’s designation of Governors Island, New York,
as a national monument, see Proclamation No. 7402, 66 Fed. Reg. 7855 (2001).
We were asked whether section 9101 of Public Law 105-33, 111 Stat. 251, 670
(1997), which requires the Administrator of General Services (“Administrator”) to
sell at fair market value “no earlier than fiscal year 2002 . . . all rights, title, and
interests of the United States in and to the land of, and improvements to, Gover-
nors Island, New York,” would continue to require the Administrator to sell the
property after the President’s designation of the property as a national monument
under section 2 of the Antiquities Act, 16 U.S.C. § 431 (1994). As we advised, we
believe that section 9101 would continue to require the sale. 1
The Antiquities Act authorizes the President to
declare by public proclamation historic landmarks, historic and pre-
historic structures, and other objects of historic or scientific interest
that are situated upon the lands owned or controlled by the Govern-
ment of the United States to be national monuments, and may
reserve as a part thereof parcels of land, the limits of which in all
cases shall be confined to the smallest area compatible with the
proper care and management of the objects to be protected.
16 U.S.C. § 431. The Antiquities Act thus confers upon the President the power to
take federal lands out of the public domain by reserving them as national monu-
ments in order to protect the objects of scientific and historic interest located on
those lands.
We have previously observed that, “[a]s a general rule, land that has been
withdrawn from the public domain is no longer subject to laws governing the
1
Our memorandum approving the form and legality of the proclamation designating the property as
a national monument indicated that the proclamation was subject to existing law, including section
9101. Memorandum from Randolph D. Moss, Assistant Attorney General, Office of Legal Counsel,
Re: Proposed Presidential Proclamation Entitled “Establishment of the Governors Island National
Monument” (Jan. 19, 2001).
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Obligation to Sell Governors Island
disposition or sale of public lands.” Federal “Non-Reserved” Water Rights, 6 Op.
O.L.C. 328, 340 (1982). For example, a general statute affecting public lands
enacted after the President’s reservation of lands for a federal purpose will not be
interpreted to apply to the reserved lands. See, e.g., United States v. Minnesota,
270 U.S. 181, 206 (1926) (noting the “familiar rule” that “lands which have been
appropriated or reserved for a lawful purpose are not public, and are to be regarded
as impliedly excepted from subsequent laws”). The general rule, however, is
subject to the exception that a particular area of reserved land will be governed by
a statute that specifically requires the disposition of that land. See, e.g., id. (noting
that the “familiar rule” only applies when the subsequent law “do[es] not specially
disclose a purpose to include [the reserved lands]”); Scott v. Carew, 196 U.S. 100,
109 (1905) (“[W]henever a statute is passed containing a general provision for the
disposal of public lands, it is, unless an intent to the contrary is clearly manifest by
its terms, to be held inapplicable to lands which for some special public purpose
have been in accordance with law taken full possession of by and are in the actual
occupation of the Government.”) (emphasis added); Missouri, K&T Ry. Co. v.
Roberts, 152 U.S. 114, 119 (1894) (“[A] tract lawfully appropriated to any
purpose becomes thereafter severed from the mass of public lands, and . . . no
subsequent law or proclamation will be construed to embrace or operate upon
it . . . . Congress cannot be supposed to grant [reserved lands] in a subsequent law,
general in its terms. Specific language, leaving no room for doubt as to the
legislative will, is required for such a purpose.”) (emphasis added) (internal
quotation marks omitted). Although here (unlike the situation in the cited cases)
the statute specifically requiring sale of the land was enacted before the Presi-
dent’s reservation of the land under a general reservation statute, we believe that
the principle of following the more specific statute still applies. A statute that
specifically requires the sale or some other disposition of a particular area of land
will continue to apply even if the land is later reserved under a general reservation
statute.
Section 9101, enacted in 1997, requires the Administrator to “dispose of by sale
at fair market value all rights, title, and interests of the United States in and to the
land of, and improvements to, Governors Island, New York.” Pub. L. No. 105-33,
§ 9101(a). The statute further provides that “[b]efore a sale is made under
subsection (a) to any other parties, the State of New York and the city of New
York shall be given the right of first offer to purchase all or part of Governors
Island at fair market value as determined by the Administrator . . . .” Id. § 9101(b).
Because section 9101 shows Congress’s intent to require the Administrator to sell
Governors Island, the statute applies, under the principle explained above, even
after the President’s reservation of the land under the Antiquities Act on January
20, 2001. If there were any doubt that the specific terms of section 9101 apply
regardless of the reservation of the land under the Antiquities Act, the first clause
of subsection (a) of section 9101, which requires the Administrator to sell the
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Opinions of the Office of Legal Counsel in Volume 25
property “[n]otwithstanding any other provision of law,” makes it clear that
section 9101’s requirements survive the designation of Governors Island as a
national monument.
The proclamation designating Governors Island as a national monument explic-
itly recognizes the Administrator’s continuing obligation to sell the land. The
paragraph providing for the withdrawal of federal lands from sale, leasing, or other
disposition under the public land laws begins with the proviso that such withdraw-
al is “[s]ubject to existing law, including Public Law No. 105-33, Title IX, section
9101(a), 111 Stat. 670 (Aug. 5, 1997).” 66 Fed. Reg. at 7856. This proviso tracks
what the law already requires—namely, that section 9101, because it specifically
mandates the sale of Governors Island, applies despite the President’s reservation
of that land as a monument under the Antiquities Act.
DANIEL L. KOFFSKY
Acting Assistant Attorney General
Office of Legal Counsel
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