Acquisition of Land by the Department of the Air Force ( 1982 )

Acquisition of Land by the Department of the Air Force
The requirem ent in 40 U .S .C . § 255 that the Attorney General review and approve the sufficiency of
title to land p rio r to its acquisition by the governm ent applies to all federal land acquisitions, except
those specifically exem pted from it, including the acquisition of land proposed by the Air Force in
this case. T he statutory provision which allows the A ir Force to begin construction on land before
its title is approved does not create an exception to the generally applicable requirem ent in 40
U .S .C . § 255, but is m erely intended to allow m ilitary construction projects to get underway
pending a determ ination on the validity o f title.
Under regulations prom ulgated by the A ttorney G eneral, which are binding on agencies to w hich he
had delegated his authority to approve title, less than fee sim ple title may not be approved for lands
on which the United States is placing perm anent im provem ents, except where Congress has
authorized a lesser estate. Even where Congress arguably authorized acquisition of a lesser e s ta te ,
the Attorney G eneral and his delegees are still responsible for determ ining w hether the title to be
acquired in a particular case is sufficient for the intended governm ent purposes.
The title proposed to be acquired from the C olorado State Board o f Land Com m issioners in this
case— a right-of-way subject to a reversion interest— is not sufficient under Colorado law to
protect the interests of the federal governm ent where the A ir Force intends to build a m ultim illion
dollar m ilitary com plex on the land.
June 28, 1982
MEMORANDUM FOR THE ASSISTANT ATTORNEY GENERAL,
LAND AND NATURAL RESOURCES DIVISION
This responds to your request for advice on several issues arising out of the
Department of the Air Force’s proposed acquisition of land in Colorado for
construction of a Consolidated Space Operations Center (CSOC). You have asked
whether the Attorney General must review the sufficiency of the title to the land
in Colorado on which the CSOC will be based. We agree with your determination
that the Attorney General must review the sufficiency of the title to the land, and
would further advise that the title is not sufficient for the purposes for which it is
being acquired.
We should state at the outset that the Land and Natural Resources Division has
been delegated the authority to exercise the Attorney General’s discretion in
matters of title approval. 28 C.F.R. § 0.66(1981). Our comments concerning the
exercise of that discretion should not be viewed in any sense as a preemption of
your duty to make the final decision.
431
I. Background
The CSOC is planned as a center for Air Force activities involving military
operations in space. The land in question consists of 640 acres in Colorado
presently owned by the State of Colorado. The Air Force plans to spend
approximately $150 million constructing the CSOC, as well as additional sums
over the years on maintenance and expansion. The deed between the state and the
Air Force, as presently drafted, would give the United States a “ right-of-way in
perpetuity” over the 640 acres.1 The right-of-way would revert to the state if it
were no longer used for governmental purposes. Draft Agreement, 1 7. Colora­
do would retain mineral and water rights, and the land would be subject to
existing easements and rights-of-way. Id., TH 5, 6, 9.
II. Sufficiency off the Title Moist Be Reviewed by
the Attorney Generali or His Designee
Since at least 1841,2one of the Attorney General’s formal functions has been to
examine and approve the sufficiency of land titles prior to federal land purchases.
The relevant statute presently provides:
Unless the Attorney General gives prior written approval of the
sufficiency of the title to land fo r the pu rp o se f o r which the
p ro p e rty is being acqu ired by the United States, public money
may not be expended for the purchase of the land or any interest
therein.
40 U.S.C. § 255 (emphasis added).3This approval requirement, see, e .g ., 6 Op.
1 The Draft Agreement states:
4. NOW, THEREFORE, THESE PRESENTS W ITNESSETH, that the said party of the first part, in
consideration of the premises, and in the further consideration of the sum of $48,000 lawful money of
the United States, by the second party to the first party in hand paid, the receipt whereof is hereby
confessed and acknowledged, has granted and by these presents does grant unto the party of the
second part, its successors and assigns, a right-of-way in perpetuity for the purpose of constructing,
reconstructing, operating and maintaining a Consolidated Space Operations Center and for other
governmental purposes, upon, over, under and across the surface of those certain portions of school
lands described as follows. All of Section 26, Township 14 South, Range 64 West of the Sixth
Principal M endian, El Paso County, Colorado. Containing 640.00 acres, more or less.
2 See 5 Stat 468 (1841). See also 39 Op. A tt’y Gen. 73 (1937); 39 Op. A tt'y Gen 56 (1937); 35 Op. A tt'y Gen.
183 (1927), 28 Op A tt’y Gen. 463 (1910), 28 Op. Att’yG en. 413 (1910); 10 Op. Att’yG en. 353 (1862); 10 Op
A tt’y Gen. 34 (1861); 9 Op. A tt’y Gen 100 (1857). The provision also appears at 33 U S.C. § 733 and 50 U .S.C
§ 175.
3 Attorney General Cushing outlined the policy reasons for requiring such title approval at some length:
I have acted, in all these references, under the conviction that the tenor of the law requires that ail
titles which the United States may take by purchase shall be perfect ones. The Government needs the
land for the purpose of the public buildings to be erected on it, and needs, therefore, to hold it against
all suit. Damages on a warranty will not suffice to indemnify the Government for the inconveniences
following ejectment, even if, which would rarely happen, such damages could be recovered. . .
A nd, in all these respects, the Government buys in order to own for the public service, not to hold
temporarily as a proprietor buying and selling for the chances of gam . and so taking the risk of any
defects o f title A private person may buy a piece of land of dubious title, and consider that in the
price Not so in the case of the U nited States.
In addition to all these considerations, leading to the same conclusion, is another one of
importance If there be a flaw in the title of a private person, he can defend it on equal terms with any
adverse claimant, and in due time obtain adjudication o f the matter in the courts of justice, with
C ontinued
432
Att’y Gen. 432 (1854), provides a decisionmaker who, applying uniform rules,
is responsible for ensuring that the United States’ interests are protected.
In 1970, the Department of Justice proposed that the authority to approve land
titles be given to the heads of all departments and agencies. 116 Cong. Rec.
10602 (1970). After study, the House rejected this approach and adopted a
revised version that retained primary responsibility in the Attorney General.4S ee
H.R. Rep. No. 970, 91st Cong., 2d Sess. (1970); S. Rep. No. 1111, 91st Cong.,
2d Sess. (1970). This version became the present law. 40 U.S.C. § 255. The
Attorney General was given the discretion to delegate the authority, and the
Attorney General has in fact delegated it to several agencies, including the Corps
of Engineers.5 The delegation is, however, subject to the Attorney General’s
general supervision and regulations, which are discussed infra.6
The Air Force has asked the Corps of Engineers to acquire the land in Colorado
without obtaining the Attorney General’s written approval based upon the belief
that the title need not be approved by anyone. The Air Force bases its argument
on language in the statute authorizing acquisition of the CSOC land.
The Secretary of each military department may proceed to estab­
lish or develop installations and facilities under this Act. . . . The
authority to place permanent or temporary improvements on land
includes authority for surveys, administration, overhead, plan­
ning, and supervision incident to construction. That authority
m ay b e exercised before title to the lan d is approved under section
355 c f the R evised Statutes (40 U .S .C . 255), and even though the
vindication of the title if it be a valid one, or compromise on fair conditions; and so the question ends.
But if there be any flaw in the title of property held by the Government, the most exaggerated
demands are made as the condition of release; the actual defects of title are magnified by ingenious
self-interest; the pretensions of the adverse claimant are plausibly brought before Congress, the
members o f which are surprised into erroneous views of the question by e xp a n e showings; favorable
reports o f committees are obtained, by local interest or the partiality of friends, in one House or the
other, and thus, even where the adverse claim is a bad one, enormous expense and trouble will come
to be devolved on the Government.
8 Op A tt’y Gen. 405, 406-07 (1857).
4 The committee concluded that the Attorney General as the chief law officer of the United States
should be charged with the primary responsibility for the approval of land titles. While it is clear
from the executive communication and the testimony produced at the hearings on both bills that this
authority can be properly exercised by other departments and agencies in many instances, the
committee felt that there should be a determination of whether an individual department or agency in
fact had the capability of exercising this authority or, has an actual need for such authority in terms of
its operation. Accordingly, instead of making the grant of this authority by legislative determination,
it was felt that the Attorney General would be in a better position to determine whether a delegation of
the authonty should be made. It was also felt that the Department of Justice would be in a better
position to supervise the exercise of the authority if it was clear that the primary responsibility was
lodged in the Attorney General.
116 Cong. Rec. 10602 (1970).
5 See Letter for Secretary of the Army Resor from Acting Assistant Attorney General Kiechel, Oct 14, 1970.
6 The Attorney General may delegate his responsibility under this section to other departments and
agencies, subject to his general supervision and in accordance with regulations promulgated by him.
Any Federal department or agency which has been delegated the responsibility to approve land
titles under this section may request the Attorney General to render his opinion as to the validity'of
the title to any real property or interest therein, or may request the advice or assistance of the
Attorney General in connection with determinations as to the sufficiency of titles.
40 U .S.C . § 255. See 28 C F R § 0 66 (1981) (Land and Natural Resources Division to pass on land titles and
exercise delegation authonty)
433
land is held temporarily. The authority to acquire real estate or
lands includes authority to make surveys and to acquire land and
interests in land (including temporary use), by gift, purchase,
exchange of Government-owned land, or otherwise.
Military Construction Authorization Act, § 701, Pub. L. No. 97-99, 95 Stat.
1359, 1375 (1981) (emphasis added). We concur with your judgment that this
language permits the Corps, on behalf of the Air Force, to begin work on the land
before title has been approved under 40 U.S.C. § 255. We also agree that § 701
does not remove the requirement that the Attorney General or his designee
approve the sufficiency of the title.
The language italicized above is not a complete exemption from 40 U.S.C.
§ 255— it is a descendant of statutes, dating back at least to World War II, that are
designed to give the military the flexibility to start work on a needed project
before every last step in the process of acquiring title has been formally approved.
There are only a few statutes that grant a complete exemption to 40 U.S.C.
§ 255,7 and their existence and language make clear that Congress knows how to
draft a statute providing a complete exemption.8 The Air Force’s statute is one of
a similarly small number of statutes, generally related to military operations,
which, in the interests of efficiency grant a limited exception to the requirement
that the review be done before work can be started.9 “ In the absence of emergen­
cies, the Congress has shown extreme reluctance, in the matter of land acquisi­
tions, to dispense with the opinion of the Attorney General upon the validity of
the title.” 39 Op. Att’y Gen. 73, 79-80 (1937).
Because of the Air Force’s concern with this issue, we have carefully reviewed
the material which it forwarded to you outlining the legislative history of similar
provisions found in earlier military construction statutes.10 The emphasis on
ensuring that urgent military projects can be started as soon as possible is a
repeated theme in that material, but there is nothing in it that casts doubt on the
continued applicability of 40 U .S.C . § 255.
Section [701] . . . in connection with the construction for the
special-weapons project, authorizes the commencement of con­
struction prior to approval of title to such lands by the Attorney
General as normally required by [40 U.S.C. § 255], These ex­
emptions . . . would where time factors dictated immediate ac­
tion, expedite the acquisition of land and commencement of
construction.
S. Rep. No. 923, 81st Cong., 1st Sess. 21-22 (1949). The same concerns were
echoed a few years later.
7 See 48 U .S.C . § 1409b, 42 U.S.C § 1502(b); 36 U .S.C . § 138b; 22 U .S.C § 1471(3) (Supp III 1979); 16
U .S .C § 571c; 16 U .S .C § 343b, 7 U S .C . § 2250a.
* S e e ,e .g , 48 U S.C . § 1409b (“Projects authorized by this subchapter may be constructed without regard to the
provisions of Section 255 o f title 40” ).
9 See 50 U .S .C . App § 2281(h); 50 U S .C . App. § 460(b)(9); 42 U.S C. § 2224, 42 U .S.C . § 1594a(d); 40
U .S .C . § 3 5 6 0 (1 ).
10 Letter from Assistant General Counsel Reynolds, Department of the A ir Force to Deputy Assistant Attorney
General Liotta, Land and Natural Resources Division, Mar. 3, 1982
434
Section [701] also softens the effect c f [4 0 U .S .C . § 2 5 5 ] when
military requirements call for immediate construction. It does not
avoid the requirement of the Revised Statutes that title to land be
approved by the Attorney General, but it does avoid the necessity
of condemning land and filing a declaration of taking, which of
itself may be time-consuming, in every case in which con­
struction is required on an urgent basis.
S. Rep. No. 1707, 83d Cong., 2d Sess. 13-14 (1954) (emphasis added)." Given
this legislative history, the traditional importance assigned to title approval under
40 U.S.C. § 255, and the fact that exceptions to the statute are clearly drafted,
see n.8, supra, we cannot agree with the Air Force that § 701 completely
exempts its projects from any review under 40 U.S.C. § 255.12 Rather, we concur
in your judgment that § 701 permits the military to begin construction on the land
prior to title approval— but still subjects it to the Attorney General’s final
determination as to the sufficiency of the title.13
III. The Effect of the Attorney General’s Regulations
The Attorney General has delegated to the Corps of Engineers his authority to
approve land titles.14This authority is “ subject to his general supervision and in
accordance with regulations promulgated by him.” 40 U.S.C. § 255. The
Attorney General has promulgated such regulations, which state clearly which
land titles may be approved. Regulations cfth e A ttorney G eneral P rom u lgated in
Accordance With the Provisions o f Public L aw 9 1 -3 9 3 , Oct. 2, 1970 (Regula­
tions). These Regulations state, in relevant part:
5. C h a r a c te r o f T it l e W h ic h M ay B e A p p r o v e d
(a) The agency must determine that the proposed interest in
property is in accord with the authorizing legislation and that such
interest is sufficient for the purposes for which the property is
being acquired— also that the purchase price is commensurate
with such interest.
(b) Frequently vendors desire to convey lands to the Govern-
11 See also Military and Naval Construction. H earingsonH R. 7130andH R 8240 Before the House Com m, on
Armed Services, 85th Cong., 1st Sess 2249 (1957) The Chairman of the Committee. Rep Vinson, questioning
whether a 99-year lease for a base had ever been approved, said, “ Of course, the policy of the committee and the
policy of the Congress has been not to make any permanent installations on land unless the fee is in the
Government ”
12 The GAO has also noted that the Attorney General's approval is necessary See GAO Final Report on CSOC
Acquisition, Ch 3, at 12 (“the Air Force must still obtain approval by the U S. Attorney General before funds can be
spent to acquire the right-of-way to use Colorado lands” ) See also 47 Comp Gen 61, 64 (1967).
13 If the Attorney General does find the title insufficient, and negotiations are inadequate tb acquire a better title,
the government’s interests can still be protected by its ultimate authonty to have the property condemned and taken
for a governmental purpose. See, e.g ., UnitedStates v South Dakota, 212 F.2d l4 (8 th C ir 1954) (Rapid C ity Air
Force Base) Of course, the government must have sufficient money appropriated to cover the cost of just
compensation
14 See n.5, supra
435
ment by deeds which contain provisions for the reversion of the
title when the property ceases to be used for a specified purpose.
Also there may be restrictive covenants or agreements in con­
veyances to prior owners under which the title might revert to the
grantors in such deeds upon the use of the property for an
unauthorized purpose or for other reasons. When perm anent type
im provem ents o r im provem ents c f substantial value are to be
erec ted on lan ds, a defeasible title to such lands is not acceptable
a n d m u st n ot b e approved, unless the esta te is clea rly authorized
by the C on gress.
(c) Other covenants and conditions in the deeds to the United
States or in prior deeds may limit the use of the property in a
manner which may prevent the sale and disposition of the proper­
ty under laws relating to the disposition of surplus property so as
to prevent the recovery o f a substantial portion of the Govern­
ment’s investment in the property. Titles are not acceptable which
are subject to such covenants and conditions in the absence of
clear authorizing legislation.
:j: ;fe ifc ♦ %
(f) A defeasible fee title to land may be acquired by purchase or
donation when no permanent improvements are to be created
thereon, provided that the statute authorizing the acquisition in
question does not preclude acquisition of title to the interest which
the agency intends to acquire, the interest intended to be acquired
is sufficient to permit the use of the land contemplated, and the
consideration for the land has been determined with reference to
the value of the limited interest that is acquired. In the event it is
d e c id e d a t som e future tim e to erect perm an en t im provem ents on
such land, the provision f o r defeasance m ust be elim inated.
E xceptions to the foregoin g restrictions an d requirem ents m ay be
m ade on ly by the Attorney G eneral, in in dividual instances when
w arran ted in the interests c f the U nited S ta tes .15
Regulations, 5(a)-(c), (f) (emphasis added).
Thus, unless the estate is “ clearly authorized by the Congress,” less than fee
simple titles for lands on which the United States is placing permanent improve­
ments may not be approved by the Corps of Engineers.
The Air Force argues that the estate— a right-of-way subject to a reversion
interest— has been “ clearly authorized” by § 701 of the Military Construction
Authorization Act, su pra. Section 701 permits the authority to place permanent
improvements on land to “be exercised before title to the land is approved under
[40 U .S.C . § 255], and even though the land is held temporarily.”
15 This last sentence was added in J974
436
The Air Force states that it forwarded “ DD Forms 1391” to its oversight
committees from 1969 to 1977, and that these forms contained lines indicating
that some of the land being used for air bases was under long lease. Letter from
Assistant General Counsel Reynolds, Department of the Air Force, to Deputy
Assistant Attorney General Liotta, Land and Natural Resources Division, March
3, 1982. The Air Force therefore concludes that, since the forms were printed in
the Committee hearings, this is “ powerful proof that the practice of construction
on land held in other than fee under appropriate circumstances is an approved
one.” Id. at 2. But see TVA v. H ill, 437 U.S. 153, 191-93 (1978); supra n. 11.
We disagree with the Air Force’s analysis. We believe that the phrase “ even
though the land is held temporarily,” read in context, permits the Secretary to
build on land held temporarily— e .g ., through a lease— while the Attorney
General scrutinizes the title. We have previously stated our belief that statutes
granting general authority to purchase lands and interests in lands are not enough
to constitute the clear authorization needed to overcome the Regulations.
“ [N]othing short of a direct and specific approval by Congress of a particular
acquisition will suffice whenever substantial improvements are to be made and
the acquisition of less than fee title is contemplated.” Memorandum for General
Counsel Coleman, Department of Energy, from Deputy Assistant Attorney
General Hammond, Office of Legal Counsel, August 28, 1979 at 8 (Energy
Memorandum) (rejecting servitude interest).16 Section 701 was not meant to
overrule the Attorney General’s outstanding regulations, regulations that reflect
an administrative practice dating back to the nineteenth century that insists that
the government obtain a fee title when making permanent improvements. There
is nothing in the legislative history of § 701 or its predecessors that indicates
Congress meant to reject this rule in favor of letting valuable military establish­
ments be placed on any kind of estate that the military happens to obtain. Rather,
the emphasis is on the need for speed and efficiency in beginning work on
military projects. The Air Force’s interpretation would encourage the military to
obtain the cheapest— and hence, often the weakest— land interests available, a
goal at odds with the Attorney General’s oversight role and Congress’ own
interest in ensuring that valuable improvements are not placed at risk.17 If a
temporary interest were sufficient for permanent improvements, there would
never be a need for the Attorney General to pass on the sufficiency of the title.
The issue need not be resolved, however, because the central issue in this
dispute is whether the Attorney General is willing to approve the title to this
land.18 Even if we found that § 701 “ clearly” authorized acquisition of less than
16 The statute in that case authonzed purchase of any possessory right, including easements, leaseholds, and
mineral rights. Id. at 2
17 We would note that this policy is already reflected in 10 U.S C § 9773(d) which deals with Air Force
acquisition of land for regular “ air bases and depots.” 10 U .S.C § 9773(a) When the Secretary of the Air Force
needs land, he may acquire “ title, in fee simple and free of encumbrance.” Id § 9773(d)
18 The Regulations mandate that the Attorney General’s opinion be requested by the agency lo which a delegation
has been made both when an exception is sought to the fee simple requirement, see Regulations, 5(0, and when the
land is subject to a reversionary interest Id. 5(g). “ When it is desired to accept the title to lands, subject to any rights
of reversion, the opinion o f the Attorney General must be requested and full supporting facts containing a reference
to any authorizing authonty must be submitted for consideration “ (Emphasis added ) See also Regulations, 5(h)
("Federal departments and agencies must exercise sound legal judgment in determining the validity of titles to lands
and, in case of doubt of such validity, the Attorney General must be requested to render his title opinion pursuant to
the above-mentioned Act prior to the payment of the purchase pnce ” )
437
fee interests, which we do not, the next step would still be an examination of
whether the Attorney General should approve the title. The next section sets forth
various reasons why we believe the Land and Natural Resources Division, acting
on behalf of the Attorney General, may wish to disapprove the title proffered for
the CSOC land.
IV. Tlhe Attorney General’s Broad Duty Under 40 U.S.C. § 255
“ These regulations recognize that Congress may authorize the acquisition of
a n y interest in real property . . . no matter how risky, but they also recognize that
‘it is very seldom that a particular interest is authorized by legislation.’ Regula­
tion 4(a).” Energy Memorandum, at 4. There is nothing in the language of 40
U .S.C . § 255 which requires that the Attorney General only approve fee simple
titles when permanent improvements are planned. Nevertheless, the Attorney
General has chosen to narrow his own discretion by issuing the Regulations
prescribing limits on the kind of title that may be approved when the government
wishes to erect permanent improvements. The Regulations bind both the Land
and Natural Resources Division, which is acting for the Attorney General, and
the agencies to whom approval authority has been delegated.
When Congress revised 40 U .S.C . § 255 in 1970, it discussed the factors to be
considered in evaluating whether a title is sufficient for the purpose for which the
property is being acquired. That evaluation involves more than determining that
there is no cloud on the title. As the House Report stated,
[Agencies already make] determinations [that] relate to the pro­
priety, timing and scope of acquisition, as well as the develop­
ment, use and disposition of such properties. W hether the interest
in lan d, that is the title being acquired, is sufficientf o r the pu rpose
c f a p ro g ra m o r presents unw arranted risks f o r the U nited States
involves a similar sort o f determination under current practices.
H.R. Rep. No. 970, supra, at 5 (emphasis added). S ee Regulations, 5(a), supra.
In order to provide you with some observations concerning the exercise of your
discretion regarding whether the proposed title is sufficient for government
purposes, we have done a brief review of applicable Colorado law. While we are
by no means experts on Colorado law, our review has raised issues for you to
consider. We concur with your tentative view that the right-of-way offered by
Colorado is not sufficient for the Air Force’s purposes for a variety of reasons.
There are persuasive arguments that a right-of-way subject to a reversion is not
adequate to protect the interests of the federal government. Moreover, there is a
risk that the Colorado State Board of Land Commissioners’ transfer of the land
via a deed to a right-of-way rather than by sale of the fee interest would be beyond
the scope of its powers under the Colorado Constitution and implementing
statutes.
The Board has limited authority, deriving its powers from the Colorado
Constitution, Colo. Const, art. IX, §§ 9, 10,19 and implementing statutes.
19 “ It shall be the duty o f the State board of land commissioners to provide for th e . . sale or other disposition of
all the lands in such manner as will secure the maximum possible amount therefor” Colo. C onst, art. IX, § 10.
438
Colorado jurisprudence has long held that, as a creature of limited authority, the
Board may not act beyond its authority, and that when it does, its actions are null
and void. For example, the Colorado Supreme Court, nullifying a land sale
because the Board had not properly advertised the land, has said:
Whatever power the board possesses to sell state lands o r any p a rt
thereof is derived from the Constitution, and the manner or
method to be pursued by it in selling or conveying the same is to
be in accordance with some legislative act prescribing or regulat­
ing the steps to be taken. Hence, when the board attempts to
dispose of the state lands under its lawful powers, a failu re on its
p a rt to substantially com ply with the requirem ents c f the leg is­
lative a ct concerning such disposition leaves the title unaffected,
and conveys no title in the land to the purchaser. Under such
circumstances the acts of the board, in executing or delivering any
deed or other muniment of title to the land, are ultra vires.
B riggs v. People, 121 P. 127, 128-129(Colo. 1912) (e n b a n c ) (emphasisadded).
See also D risco ll v. State B d. c fL a n d C om m ’rs, 23 F.2d 63, 64 (8th Cir. 1927),
cert, denied, 277 U.S. 586 (1928); Evans v. Sim pson, 547 P.2d 931, 934 (Colo.
1976) (en banc); W alpole v. State B d. c fL a n d C om m ’rs, 163 P. 848, 850, 851
(Colo. 1917).
The Board’s action may be open to challenge on the grounds that the transac­
tion is a “ sale,” governed by Colo. Rev. Stat. § 36-1-124, rather than the grant
of a right-of-way, id ., § 36-1-136 (1980 Cum. Supp.).20 A right-of-way may be
granted to the United States “ on any tracts of state land,” id ., while the Draft
Agreement would grant it “ upon, over, under and across the surface” of the land.
Draft Agreement, 11 4 .21 The Colorado Constitution requires that the “ sale or
other disposition” of state lands must “ secure the maximum possible amount
therefor.” Colo. Const, art. IX, § 10. Sales and leases are, therefore, publicly
advertised and auctioned, unlike this transaction. A disappointed land seeker
20 “ The state board of land com m issioners. . may grant rights-of-way on any tracts of state land to any public
agency or instrumentality of the United States . . for any public use or purpose.” (Emphasis added )
21 We are also concerned that the Board does not have the authonty to grant a nght-of-way that conveys such an
extensive interest. Even the Board’s more general authority is only to grant nghts-of-way “ across or upon” certain
tracts Colo. Rev Stat. § 3 6-1-136 (1980 Cum. S u p p ) The GAO’s analysis of this transaction expresses some
doubts as to its legality but concludes that there is no reaJ problem since the United States can always condemn the
property
The Air Force and State are evidently treating this transaction as a grant of right-of-way falling under
the statute rather than as a sale or other disposition falling under the constitutional provision
Whether this is correct is a question o f State law Generally, GAO will not question a State’s
interpretation of its own law. The Board’s counsel advised us that the Board does not believe the
constitutional provision applies and therefore that the Board is not required to secure the maximum
possible amount.
The possibility exists that the legality of the conveyance could be challenged in a lawsuit While
the possibility of litigation cannot be foreclosed, it is in our judgment not likely. Moreover, as
mentioned earlier, the United States may condemn without delay whatever interest in land it needs,
should any doubt later anse as to the legality of the conveyance by the State. With that option
available, and given the Board's view that it has legal authonty to convey the nght-of-way, we find no
legal reason for the Air Force not to go ahead with the acquisition as planned
GAO Op No B -205335, at 3, reprinted as Appendix IV to GAO Final Report on CSOC Acquisition Con­
demnation may provide a remedy when the title proves insufficient, but it does not answer the question of w hether a
title is in fact sufficient under 40 U S C § 255
439
might argue that, no matter how the Board denominates the transaction, it is
actually a sale, which must be advertised to produce the maximum return, Colo.
Rev. Stat. § 3 6 -1-124, oralease, id. § 3 6 -1 -1 18(l)(a), which can be for a term
of no more than ten years.22The land is presently being leased to a private user for
grazing purposes,23 and the lessee’s interests are being conveyed to the United
States for $1,950.24
Our second concern is that a right-of-way would appear to be insufficient for
the Air Force’s purpose. The section authorizing the Board to grant rights-of-way
“ shall not be construed to grant authority to said board to convey title to any such
land by a grant of right-of-way.” Id. § 36-1-136 (1980 Cum. Supp.). Under -
Colorado law, therefore, there is no “ title” conveyed to the United States that the
Attorney General can examine for sufficiency.
Even if we assume, however, that the meaning of “ title” in40U .S.C . § 255 is
broader than the “ title” under Colorado law, so that there is a “ title” to the right-
of-way that the Attorney General can examine, that “ title” would seem to be
entirely too precarious for the A ir Force’s purposes. First, rights-of-way and
easements belonging to the United States may be condemned in state court upon
the application of any corporation authorized under Colorado law to condemn
public lands. Colo. Rev. Stat. § 38-3-101.25 This would expose the United
States to the constant threat of new rights-of-way circumscribing the Air Force’s
use of parts of the tract as corporate pipelines, telephone wires and access roads
are erected, and to the need either to pay the corporations to choose some other
route, engage in litigation to forestall the condemnations, or, eventually, to
condemn the tract itself and pay the state for the taking.26
Second, all C olorado state institutions, departm ents, and agencies, id.
§ 24—82-201, as well as the Board, can grant easements or rights-of-way over
22 The Board hears claims on lands, Colo R ev Stat. § 36-1-131 (Cum. Supp. 1980), but its decisions may be
challenged by any interested party. See, e g.. Wilson v Collins, 165 P.2d 663 (Colo. 1946) (en banc) (taxpayers
could maintain mandamus action to force Board to collect rents owed on State land); People ex rel Stonebraker v.
Wood, 10 P. 2 d 331 (Colo 1932) The uncertainty inherent in state land law decisions is another reason that the
Attorney General has always insisted on an irreproachable title to land
But, if the question presented have not been so adjudged in the Slate, if it be a new point of
construction presented by the statutes o f a State,— the Attorney General would take upon himself
burdens of responsibility, not justified by any emergency in the mere matter of expediency of
selection between this or that site of a co u rt house or posl office, or of paying more or less money for a
site, if he should presume to warrant to the Government what will be the decision of the courts of the
particular Slate on the construction o f their own statutes, especially where the United States are
concerned.
8 Op. A tt’y Gen. 405, 408 (1857).
23 See Quitclaim Deed attached to Draft A greement
24 O ne o f the potential issues for litigation is the extent of the present lessee’s nghts, specifically reserved to him,
under the Uniform Relocation Assistance and R eal Property Acquisition Policies Act of 1970,42 U.S.C § 4601 et
seq. Quitclaim D eed, at 1.
“ The list o f corporations possessing the pow er of condem nation is fairly broad. See Colo Rev. Stat.
§§ 3 8 -2 -1 0 1 -1 0 5 .
26 In a recent decision, the Colorado Court o f Appeals upheld the Board’s grant of a nght-of-way for a railroad
over mining lands leased from the State, despite the lessee’s objections. Utah Int'l, Inc. v B d c f Land Comm'rs,
579 P.2d 96 (Colo 1978). The C ourt held that the lessee was not adversely affected because it had no immediate
plans to mine the coal under the proposed nght-of-way. If the railroad, once built, did interfere with the m ining, the
C ourt indicated that the remedy was a damage action, 579 P.2d at 97, not removal of the railroad Unless the Air
Force plans to build on all 640 acres immediately, pnvate parties could similarly narrow the government’s ability to
use the entire tract. See also B d c f Land C om m 'rs v. D istrict Court, 551 P.2d 700 (Colo. 1976) {en banc)
440
land owned by the state. We are not aware of anything in the Draft Agreement that
would preclude a state agency or the Board from granting another right-of-way
over part of the CSOC tract— which would still be owned by the state.
Third, the Attorney General has traditionally not approved titles to property
where there is a reversionary right.
Acceptance of such a title could result in the loss of extensive
investments made by the United States in improvements on the
property. There is no assurance that the Congress will continue to
appropriate funds for an intended use, thereby causing the title to
the lands and the improvements to revert to the [State]. Further­
more, provisions allowing the Government to remove the im­
provements in the event of such reversion are usually meaningless
since the cost of removing permanent expensive buildings is
generally greatly in excess of any sale of the salvage from the
building.
Memorandum for Director Zwick, Bureau of the Budget, from Deputy Attorney
General Christopher, Sept. 10, 1968, at 1. The Draft Agreement provides for
reversion whenever the land is not being used for a governmental purpose and
does not even include a right to salvage the permanent improvements. Rather, the
United States could either sell the improvements or abandon them—in which
case they revert to the state. Draft Agreement, 11 13.27
The lack of any “ title” under state law and the precarious nature of rights-of-
way under Colorado law are the very kinds of flaws that an Attorney General’s
review are meant to detect. 8 Op. Att’y Gen. 405, 407 (1857).28 The Attorney
General’s duty is to protect the federal government from the harassment and
possible financial loss that could result from a less than sufficient title. The
proffered “ title” to the right-of-way seems to be seriously insufficient for the site
of a multimillion dollar military complex. We are aware of nothing which would
prevent the Air Force from buying the land,29 and we recommend that course of
action.
V. Conclusion
We believe that the Land and Natural Resources Division has correctly
determined that the Attorney General must examine the title for the right-of-way
27 The right-of-way is also made subject to outstanding rights-of-way and easements Id. 1i 6. The Board has
assured the Air Force that none exists, but if any should come to light, their continued existence would raise the same
problems outlined above
28 A policy implication that may need further consideration is that the Draft Agreement reserves both m ineral and
water rights. Id. H1i 5. 9 The United States cannot even explore for water without the state’s permission Id H 9
Water nghts which may be sufficient now for the Air Force’s purposes may well be insufficient in a decade or so
when the CSOC is a center of activity with personnel and their families living on the tract Colorado is not a water-
nch state, and development of the CSOC may be severely curtailed if Colorado refuses to permit exploration, while
any water flowing through the tract may be appropriated by others in the interim In the same way, it would seem
wiser to acquire now the title to subsurface mineral interests, such as geothermal resources and oil, rather than wait
and pay an almost assuredly higher price to the state in a few years Moreover, their purchase would place control of
exploration and exploitation in the federal government, which could ensure that they did not conflict with the
CSOC’s mission.
29 See Colo Rev. Stat § 3 -1 -1 0 1 .
441
and that, acting on behalf of the Attorney General, it should advise the Corps of
Engineers that the interest conveyed by the Draft Agreement to a right-of-way in
the tract is not sufficient for the purpose for which the property is being acquired.
Robert B . S hanks
D eputy A ssista n t A ttorn ey G eneral
Office c f L eg a l Counsel
442