(Slip Opinion)
Paying for Removing Structures at the Treasure
Lake Civilian Conservation Center
The interdepartmental-waiver doctrine, under which one agency generally may not pay to
restore or repair property in the custody of another agency, prevents the Department of
Labor from paying to remove structures at a defunct Job Corps site that is located
within a wildlife refuge in the custody of the Department of Interior. No statutory au-
thority has displaced that doctrine’s applicability by authorizing the Department of
Labor to pay for removing the structures.
February 22, 2019
MEMORANDUM OPINION FOR THE SOLICITOR OF LABOR
Your office has asked us to resolve a dispute between the Department
of Labor (“Labor”) and the Department of the Interior (“Interior”) about
whether Labor may use its Job Corps appropriation to pay for removing
several structures at the defunct Treasure Lake Civilian Conservation
Center (“Treasure Lake”) in the Wichita Mountains Wildlife Refuge in
Indiahoma, Oklahoma. 1 Under the interdepartmental-waiver doctrine, one
agency generally may not pay to restore or repair property in the custody
of another agency. As different arms of a single government, federal
agencies typically cannot bring claims for repairs or restorations against
one another; instead, the interdepartmental-waiver doctrine provides the
long-standing default rule for allocating such costs. Because Interior has
custody of the land at Treasure Lake, Labor contends that the interde-
1 In considering this question, we requested and received the views of the Department
of Labor, the Department of Interior, and the Office of Management and Budget. See
Letter for Karl R. Thompson, Principal Deputy Assistant Attorney General, Office of
Legal Counsel, from M. Patricia Smith, Solicitor of Labor (Dec. 21, 2016) (“Labor
Letter”); Letter for Curtis E. Gannon, Acting Assistant Attorney General, Office of Legal
Counsel, from Daniel H. Jorjani, Principal Deputy Solicitor, Department of Interior, Re:
Removal of Treasure Lake Job Corps Facility Structures (June 30, 2017) (“Interior
Letter”); Letter for Curtis E. Gannon, Acting Assistant Attorney General, Office of Legal
Counsel, from Heather V. Walsh, Acting General Counsel, Office of Management and
Budget (July 7, 2017); Letter for Curtis E. Gannon, Acting Assistant Attorney General,
Office of Legal Counsel, from Nicholas C. Geale, Acting Solicitor of Labor (Aug. 1,
2017) (“Labor Reply Letter”); E-mail for Daniel L. Koffsky, Deputy Assistant Attorney
General, Office of Legal Counsel, from Heather V. Walsh, Acting General Counsel,
Office of Management and Budget (Aug. 30, 2017, 4:54 PM).
1
43 Op. O.L.C. __ (Feb. 22, 2019)
partmental-waiver doctrine requires Interior to restore the property. Inte-
rior argues that the doctrine should not apply to intentional alterations of
property and that Labor should rely upon its own appropriations to per-
form the restoration. We conclude that the interdepartmental-waiver
doctrine does apply here, and that Congress has not otherwise authorized
Labor to pay for removing the structures on land in Interior’s custody.
I.
The Wichita Mountains Wildlife Refuge is one of the Nation’s oldest
conservation areas, first established in 1905 by President Theodore Roo-
sevelt as a reserve for game animals and birds. See Interior Letter at 2;
Pub. L. No. 58-24, 33 Stat. 614 (1905) (codified as amended at 16 U.S.C.
§ 684); Proclamation of June 2, 1905, 34 Stat. 3062; Pub. L. No. 74-637,
tit. I, 49 Stat. 1421, 1446 (1936). Interior administers the wildlife refuge
with the aim of long-term conservation. See Interior Letter at 2; see gen-
erally 16 U.S.C. § 668dd.
In 1965, the Wichita Mountains Wildlife Refuge also became home to
Treasure Lake, a center run under the auspices of the Job Corps program.
See Labor Letter at 1; Economic Opportunity Act of 1964, Pub. L. No. 88-
452, § 102, 78 Stat. 508, 508 (establishing Job Corps). Since 1998, Labor
has overseen the Job Corps program, which is a primarily residential
program that offers education and vocational training to young men and
women. See 29 U.S.C. §§ 3191, 3194(a), 3197(c); Workforce Investment
Act of 1998, Pub. L. No. 105-220, § 143, 112 Stat. 936, 1007. The pro-
gram has more than 100 centers throughout the country. See Updated
Methodology for Selecting a Job Corps Center for Closure and Center
Proposed for Closure,
82 Fed. Reg. 44,842, 44,843 (Sept. 26, 2017). Most
Job Corps centers are operated by businesses, nonprofit organizations, or
tribes that have procurement contracts with Labor.
Id. But those, like
Treasure Lake, that are denominated “Civilian Conservation Centers” are
operated under interagency agreements between Labor and other federal
agencies. See 29 U.S.C. § 3197(d)(1); 20 C.F.R. § 670.310(e).
Under a series of such agreements, Labor paid for the buildings, struc-
tures, and operations at the Treasure Lake Job Corps site. See Labor
Letter at 2; Interagency Agreement Between the United States Department
2
Paying for Removing Structures at the Treasure Lake Civilian Conservation Center
of Labor and the United States Department of Agriculture Governing the
Funding, Establishment, and Operation of Job Corps Civilian Conserva-
tion Centers at 2–3 (March 10, 2008) (“Labor-Agriculture Agreement”).
Appropriations for the Job Corps provide Labor with funds for, among
other things, the “construction, alteration, and repairs of buildings and
other facilities” used in the Job Corps program. Department of Defense
and Labor, Health and Human Services, and Education Appropriations
Act, 2019 and Continuing Appropriations Act, 2019, Pub. L. No. 115-245,
div. B, tit. I, 2018 U.S.C.C.A.N. (132 Stat.) 2981, 3050 (“Labor FY 2019
Appropriations”); see also Consolidated Appropriations Act, 2017, Pub.
L. No. 115-31, div. H, tit. I, 131 Stat. 135, 504 (similar provision for prior
year). Meanwhile, the Fish and Wildlife Service (part of Interior) and the
Forest Service (part of the Department of Agriculture) at various points
conducted the day-to-day operations at Treasure Lake. See Labor Letter
at 2; Labor-Agriculture Agreement at 1–4.
During its time as a Civilian Conservation Center, Treasure Lake
evolved into a “26-building facility,” with “a heliport, fuel station, motor
pool, carpentry shop, brick masonry shop, library, cafeteria, gymnasium,
dormitories and numerous other features.” Interior Letter at 6. In 2014,
however, Labor selected Treasure Lake for closure based on performance-
related statutory criteria. See Final Methodology for Selecting a Job Corps
Center for Closure and Center Selected for Closure: Comments Request,
79 Fed. Reg. 51,198 (Aug. 27, 2014) (announcing initial closure deci-
sion); Final Notice of Job Corps Center for Closure,
79 Fed. Reg. 61,099
(Oct. 9, 2014) (announcing final decision). Treasure Lake closed in June
2015, and Interior regained complete custody of the land in December
2015. See Labor Letter at 3.
Interior now wants Labor to pay for the removal of the Treasure Lake
structures because Interior views them as “inconsisten[t] with the [Fish
and Wildlife Service’s] statutory mandate” to manage the Wichita Moun-
tains Wildlife Refuge. Interior Letter at 6. Specifically, Interior suggests
that the structures may have lead-based paint and asbestos that could
contaminate the refuge and that the structures “create a negative visual
impact to visitors at nearby scenic areas.”
Id. at 7. The costs of removal
may run between $7 million and $9.5 million. See
id. at 2.
3
43 Op. O.L.C. __ (Feb. 22, 2019)
II.
Labor identifies two primary reasons why it cannot pay to remove the
structures at Treasure Lake: (1) it contends that the interdepartmental-
waiver doctrine requires Interior, as the agency with custody of the land,
to bear the costs of restoring land that was temporarily used by another
agency; and (2) alternatively, it contends that specific appropriations
authorize Interior to pay to remove buildings on lands within national
wildlife refuges, implicitly preventing Labor from using a more-general
appropriation to do the same thing. See Labor Letter at 1–2.
Interior disagrees that the interdepartmental-waiver doctrine would bar
Labor from paying for remediation at Treasure Lake because, in its view,
that doctrine should be limited to circumstances where one agency unin-
tentionally damages another agency’s property—excluding those where,
as here, one agency intentionally alters real property. Interior invokes
another appropriations principle, the necessary-expense doctrine—which
permits an agency to make those expenditures reasonably necessary to
carry out the objects of an appropriation—and contends that Labor may
use its Job Corps appropriation to pay for removing the structures. See
Interior Letter at 5–11; see also 1 General Accounting Office, Principles
of Federal Appropriations Law 4-20 (3d ed. 2004) (“Federal Appropria-
tions Law”). Interior concludes that the structures’ removal “is more
central to” Labor’s Job Corps appropriation than it is to Interior’s con-
struction appropriation. Interior Letter at 9.
We conclude that the interdepartmental-waiver doctrine prevents La-
bor from paying to remove the structures at Treasure Lake. The doctrine
embodies a long-standing principle of appropriations law: The agency
with custody of property bears the costs of any repairs arising from
another agency’s temporary use of that property. While that default rule
may be overcome by a statute—or by an interagency agreement author-
ized by statute—no statute or agreement applies to overcome the doctrine
here. Nor does the necessary-expense doctrine suggest a different result.
Although the necessary-expense doctrine may expand the availability of
agency appropriations beyond what Congress has expressly specified, it
does not implicitly authorize interdepartmental reimbursements.
4
Paying for Removing Structures at the Treasure Lake Civilian Conservation Center
A.
The interdepartmental-waiver doctrine is a long-established piece of
federal appropriations law. The doctrine prescribes that, absent legislation
providing otherwise, one agency may not expend federal funds to restore
another agency’s property. See, e.g., 2 Federal Appropriations Law at
6-197 (3d ed. 2006) (“What happens when one federal agency damages
the property of another agency? Under the so-called ‘interdepartmental
waiver doctrine,’ the general rule is that funds available to the agency
causing the damage may not be used to pay claims for damages by the
agency whose property suffered the damage.”); Payment by National
Weather Service to Bonneville Power Administration for Use of Micro-
wave Radio Station Site,
71 Comp. Gen. 1, 2–3 (1991) (“National Weath-
er Service”) (explaining that the doctrine ordinarily “prohibits a federal
agency from paying for the use or repair of real property controlled by
another federal agency”).
The interdepartmental-waiver doctrine derives in significant part from
the idea that government property does not belong to any single agency,
but to the federal government as a whole. See 2 Federal Appropriations
Law at 6-197. Because the government cannot bring a damages claim
against itself, and because agencies are not free to redistribute the funds
that Congress has appropriated, default rules are needed for allocating
certain costs between agencies. The interdepartmental-waiver doctrine is
the rule that generally governs the repair and restoration of loaned proper-
ty. It provides that the agency with custody over the property should bear
the costs of any losses arising from its use by other agencies. See National
Weather Service, 71 Comp. Gen. at 2; Reimbursement by Navy to Federal
Aviation Administration for Damage to Instrument Landing System,
65
Comp. Gen. 464, 466, 468 (1986); Departments and Establishments—
Damage Claims—Reimbursement Prohibition,
41 Comp. Gen. 235, 237
(1961); Public Property—Loans Between Departments—Repairs and
Replacements,
10 Comp. Gen. 288, 289 (1930) (“Public Property”).
Absent a contrary statute, the agency with custody of the property may
not even charge rent to the agency using the property. See National
Weather Service, 71 Comp. Gen. at 2 (citing prior Comptroller General
decisions); Leases—Rent—Property Held by the Reconstruction Finance
Corporation,
20 Comp. Gen. 699, 701 (1941) (“[T]he general rule is that
5
43 Op. O.L.C. __ (Feb. 22, 2019)
payment of rent is unauthorized by one Government department or agency
for premises under the administrative control of another department or
agency.”). Some Comptroller General opinions have also reasoned that
the agency with ultimate custody of the property should pay for repairs
because those repairs are for its “future use and benefit.” Public Property,
10 Comp. Gen. at 289; see also, e.g., Use of One Agency’s Real Property
by Another—Liability for Damage,
59 Comp. Gen. 93, 95 (1979) (“Use of
One Agency’s Real Property”).
The doctrine predates the creation of the office of Comptroller General
and was first articulated by the Executive Branch in 1899, when the
Comptroller of the Treasury concluded that, after a vessel of the U.S.
Navy was damaged by a ship of the Revenue-Cutter Service, the costs of
repairs had to be paid from the Navy’s appropriations, reasoning that “the
injured vessel is a vessel of the Navy” and “the appropriation for expens-
es of the Revenue-Cutter Service, which is applicable to repairs of reve-
nue vessels only, is not applicable to repairs of vessels of the Navy .”
Damage to a Vessel of the Navy by Collision with a Revenue-Cutter
Vessel, 6 Comp. Dec. 74, 74–75 (1899) (“Damage to a Vessel ”); see
Attorney General—Opinions—Comptroller of the Treasury, 26 Op. Att’y
Gen. 609, 610 (1908) (explaining that the Comptroller of the Treasury’s
opinions were, by statute, generally binding within the Executive Branch).
By 1945, the Comptroller General could state that it had “been held
repeatedly that [a department’s or agency’s] funds are not available for
payment of claims for damages to the property of other Government
departments or agencies.” Government Corporation Vessels Damaged by
Naval Vessels—Appropriation Availability for Payment of Damage
Claims,
25 Comp. Gen. 49, 54 (1945). And in 1952, the Comptroller
General characterized the doctrine as “so firmly embedded in the substan-
tive law of the United States as to require specific statutory authority to
overcome the rule.” National Forest Lands—Interagency Use—Liability
for Damages, Restoration, Etc.,
32 Comp. Gen. 179, 180 (1952) (“Na-
tional Forest Lands”).2
2 As we have said before, “the opinions of the Comptroller General do not bind the
Executive Branch, but they may provide helpful guidance on appropriations matters and
related questions.” Applicability of the Miscellaneous Receipts Act to an Arbitral Award
of Legal Costs, 42 Op. O.L.C. __, at *3 n.2 (Mar. 6, 2018). That is especially so when, as
6
Paying for Removing Structures at the Treasure Lake Civilian Conservation Center
Because the interdepartmental-waiver doctrine reflects a background
principle of appropriations law, Congress may override it and has done so
in a number of instances. Most significantly, in the Economy Act of 1932,
Congress authorized an agency to “place an order with . . . another agency
for goods or services” and thereby impose conditions on the loan or use of
property. 31 U.S.C. § 1535. Shortly before the Economy Act, the Comp-
troller General had concluded that one agency could not pay to restore
another agency’s property even when such restoration was provided for in
an agreement between the agencies. See, e.g., Public Property, 10 Comp.
Gen. at 288 (holding that the interdepartmental-waiver doctrine applied
even though the loan at issue was made “with the understanding that the
articles were to be returned in good condition” and that the loaning agen-
cy “would be reimbursed for the cost of [restoring] the property”). Now,
however, the Economy Act “‘provide[s] the specific legislative authority
stated by the Comptroller General to be necessary by authorizing the
performance of work or services or furnishing of materials by one de-
partment or establishment to another without any limitation.’” Jack
Brooks, House of Representatives, B-197686,
1980 WL 14507, at *2
(Comp. Gen. Dec. 18, 1980) (quoting Interdepartmental Work: Hearings
on H.R. 10199 Before the H. Comm. on Expenditures in the Executive
Departments, 71st Cong. 4 (Apr. 10, 1930)); see 3 Federal Appropria-
tions Law at 12-22 (3d ed. 2008) (similar). If agencies satisfy the Econo-
my Act’s criteria for interagency agreements, then they may contract
around the doctrine. 3
explained below, Congress has effectively ratified the Comptroller General’s long -
established default rule by specifically overriding it in some, but not all, instances.
3 See, e.g., Department of the Air Force—Reimbursement of Industrial Fund Agency
for Damage to Vehicle,
65 Comp. Gen. 910, 911 (1986) (noting that a “major exception
[to the interdepartmental-waiver doctrine] is where reimbursement for damages has been
provided for in an agreement under the Economy Act”); Finance and Accounting Officer,
Department of the Army, B-146588,
1961 WL 2188, at *1 (Comp. Gen. Aug. 23, 1961)
(concluding that the Army and the Air Force had entered into a valid Economy Act
agreement under which the Army could reimburse the Air Force for damage to borrowed
planes); Public Property—Loans Between Departments, Etc.—Liability for Repairs,
30
Comp. Gen. 295, 296–97 (1951) (finding that the Economy Act modified the result in the
1930 Public Property opinion, such that the Bureau of Land Management could execute
an agreement requiring that its boat be returned in a condition as good as when it was
loaned).
7
43 Op. O.L.C. __ (Feb. 22, 2019)
In addition to the Economy Act, Congress has enacted other targeted
exceptions to the doctrine’s default rule. For example, when an agency
has received “an appropriation specifically for the purpose of removing
improvements on land withdrawn for its use,” that is understood as
supplying “the statutory authority . . . required” to displace the interde-
partmental-waiver doctrine. Interdepartmental Waiver Doctrine—With-
drawn Lands,
60 Comp. Gen. 406, 407–08 (1981) (“Withdrawn Lands”).
Thus, in 1984, Congress specifically authorized the military departments
to “remove improvements and take any other action necessary . . . to
restore land used” under a “permit from another military department or
Federal agency,” when the permit requires restoration. 10 U.S.C.
§ 2691(a). And, in 2017, Congress amended that section to allow the
Secretary of Defense to “restore” land under the administration of a
different federal agency when the land is “damaged as a result of a mishap
involving a vessel, aircraft, or vehicle of the Department of Defense.” Id.
§ 2691(e)(1) (Supp. V 2017). As the conference report explained, the
amendment as it was enacted supplied the same authority that the Senate
bill had expressly entitled an “[e]xception to the interdepartmental waiver
doctrine for cleanup of vehicle crashes.” H.R. Rep. No. 115-404, at 944
(2017) (Conf. Rep.). Congress has also given the General Services Ad-
ministration (“GSA”) the authority to recover from other agencies the
costs of operating and maintaining a motor pool, including “estimated
replacement cost.” 40 U.S.C. § 605(b)(2). Thus, when a vehicle in GSA’s
motor pool is damaged as a result of a driver’s “misconduct or improper
operation,” GSA is permitted to “charg[e] such losses directly to the
agency whose driver is responsible for the loss.” Interagency Property
Damage Liability,
59 Comp. Gen. 515, 517 (1980). 4
4 The Comptroller General has also recognized an exception to the interdepartmental-
waiver doctrine where an agency’s activities are supported by a revolving fund, a mecha-
nism that authorizes an agency to retain receipts and deposit them into the fund to finance
the fund’s operations. See National Weather Service, 71 Comp. Gen. at 3 (“[W]e have
recognized exceptions to the interdepartmental waiver doctrine where Congress has, by
statute, expressly required an interagency activity to operate on a self-sustaining basis by
recovering all costs from using agencies.”); Loan of Equipment Purchased from the
Reclamation Fund,
3 Comp. Gen. 74, 74–75 (1923) (explaining that the interdepart-
mental-waiver “rule is predicated on appropriations not reimbursable,” so another agen-
cy’s “use of equipment purchased [by an agency with a reimbursable fund] is on a some-
8
Paying for Removing Structures at the Treasure Lake Civilian Conservation Center
The Executive Branch has similarly applied the interdepartmental -
waiver doctrine since at least the Comptroller of the Treasury’s 1899
decision in Damage to a Vessel. See 6 Comp. Dec. at 74–75; see also
Replacing Property Borrowed from Another Department, 10 Comp. Dec.
222, 224–25 (1903); Ownership of Public Property, 22 Comp. Dec. 390,
390 (1916). Executive agencies have considered and applied the doctrine
when promulgating regulations, guidance, and legal opinions. See 32
C.F.R. § 536.27(g) (subsection of Department of the Army regulations
about claims against the United States, stating that “[n]either the U.S.
government nor any of its instrumentalities are proper claimants due to
the interdepartmental waiver rule”); U.S. Dep’t of Energy, DOE 4300.1C,
Real Property Management (June 28, 1992) (agency guidance noting that
“[t]he Interdepartmental Waiver Doctrine should be considered whenever
there is a possibility of outgranting property to other Federal agencies”);
Office of General Counsel, Immigration & Naturalization Service, U.S.
Dep’t of Justice, Missing GSA Painting, Op. No. 93-29 (May 5, 1993)
(describing the doctrine as “the substantive law of the United States”).
The interdepartmental-waiver doctrine thus establishes the general default
rule for allocating the costs of repairs among departments and agencies.
B.
Applying the foregoing principles, we conclude that the interdepart-
mental-waiver doctrine prohibits Labor from paying for the removal of
the Treasure Lake structures. Interior has custody over the Wichita
Mountains Wildlife Refuge, where the Treasure Lake structures are
located. The Comptroller General has previously (and, in our view,
correctly) concluded that other conservation sites are subject to the
interdepartmental-waiver doctrine, as is governmental property generally.
See Public Lands—Interagency Loans, Transfers, Etc.—Damages, Resto-
ration, Etc.—Authority,
44 Comp. Gen. 693, 695 (1965) (“Public Lands”)
(opining that the Army may not reimburse the National Park Service for
road repairs after military exercises because “an executive department
may not be reimbursed for the use or depreciation of real property loaned,
used or damaged by another department”); National Forest Lands, 32
what different basis, the equipment being an asset which should not be permitted to be
depreciated from use on other than objects for which the fund was created”).
9
43 Op. O.L.C. __ (Feb. 22, 2019)
Comp. Gen. at 180 (rejecting the argument that the interdepartmental-
waiver doctrine “should not apply to national forest lands since such lands
are analogous to property held in trust”). This result comports with the
notion that the interdepartmental-waiver doctrine allocates losses to the
agency that will benefit from the future use of the repaired property.
Because Labor is no longer using the Treasure Lake property, Labor will
receive no future benefit from removing the structures. To the contrary,
the benefits from restoration will flow to Interior, which seeks the struc-
tures’ removal to advance its statutory mission of managing a wildlife
refuge. See Withdrawn Lands, 60 Comp. Gen. at 408 (noting that a resto-
ration benefits the lending agency when the agency “would use the prop-
erty upon its return to carry out agency functions”). Absent a contrary
statute, the interdepartmental-waiver doctrine applies and makes Interior
responsible for the costs of restoration.
We do not believe that any statute displaces the general rule here. La-
bor’s Job Corps appropriations have not expressly provided for the re-
moval of structures at Treasure Lake. Nor have they otherwise authorized
Labor, more generally, to pay damages for its use of other agencies’
lands. See, e.g., Labor FY 2019 Appropriations, 2018 U.S.C.C.A.N. (132
Stat.) at 3050; see also Withdrawn Lands, 60 Comp. Gen. at 407–408
(noting that when an agency has an “appropriation specifically for the
purpose of removing improvements on land withdrawn for its use, this
constitutes the statutory authority . . . required” to overcome the interde-
partmental-waiver doctrine); Public Lands, 44 Comp. Gen. at 693, 695
(concluding that the Army could not reimburse Interior for property
damage, even though Army appropriations contained no limitations on
such expenditures). And Interior has no authorization to charge other
agencies for costs arising from their use of wildlife refuges. See Consoli-
dated Appropriations Act, 2019, Pub. L. No. 116-6, div. E, tit. I (making
appropriations for Interior, including the Fish and Wildlife Service, but
containing no such authority); Consolidated Appropriations Act, 2017,
131 Stat. at 436–68 (same); see also National Forest Lands, 32 Comp.
Gen. at 180–81 (concluding that the Secretary of Agriculture’s statutory
authority to protect and preserve national forests does not override the
interdepartmental-waiver doctrine).5
5 We thus reject the premise of Labor’s alternative argument that Interior’s purported-
ly-more-specific appropriation governs over what Labor describes as more-general
10
Paying for Removing Structures at the Treasure Lake Civilian Conservation Center
Furthermore, no other exception to the interdepartmental-waiver doc-
trine applies. Labor and Interior did not enter into any agreement under
the Economy Act or similar statutory authority under which Labor “as-
sume[d] responsibility for the removal of the structures or the restoration
of the wildlife refuge following the closure of the Center.” Labor Reply
Letter at 2.6 And Interior’s relevant appropriations are annual appropria-
tions, not revolving funds. See supra note 4.
C.
In reaching this conclusion, we have considered other points that Inte-
rior contends would, when taken in combination, support having Labor
pay to restore the Treasure Lake property.
First, Interior argues that the interdepartmental-waiver doctrine should
be limited to situations where an agency unforeseeably or accidentally
damages another agency’s property. In its view, where an agency’s activi-
ties foreseeably damage another agency’s property, the costs of restora-
tion are sufficiently predictable that they should be borne by the agency
responsible for the damage. See Interior Letter at 12–15. As Interior
acknowledges, however, several Comptroller General opinions go the
other way, see id. at 11, and we believe that those decisions correctly
interpret the doctrine.
The Comptroller General’s long-standing view is that the interdepart-
mental-waiver doctrine does not turn upon the cause of, or comparative
fault for, the property damage. See, e.g., National Forest Lands, 32 Comp.
Gen. at 180–81 (“The question is not how the damages were caused, but
language in its Job Corps appropriation. See Labor Letter at 1–3. The dispositive question
is not which agency’s appropriation contains more specific language, but whether Con-
gress has overridden the interdepartmental-waiver doctrine. Even if Interior’s appropria-
tion contained more-general language than Labor’s appropriation, it would be irrelevant
unless Labor’s appropriation (or some other statute) specified with sufficient clarity that,
notwithstanding the interdepartmental-waiver doctrine, Labor could bear the costs of
removing the Treasure Lake structures.
6 This opinion does not address whether an agreement concerning real property consti-
tutes an agreement “for goods or services” under the Economy Act, 31 U.S.C. § 1535(a),
or whether an agreement concerning services related to real property—such as the remov-
al or alteration of facilities like those at Treasure Lake—could have been reached under
the Economy Act or similar statutory authority.
11
43 Op. O.L.C. __ (Feb. 22, 2019)
to which agency has the Congress delegated the responsibility for admin-
istering and conserving the property and to which agency has it appropri-
ated funds for such repair and replacements as may be necessary.”);
Public Property, 10 Comp. Gen. at 289 (noting that the doctrine bars
interagency reimbursement not only for property loss or damage, but also
for property “use or depreciation”). That is also the Executive Branch’s
long-standing view. See Damage to a Vessel, 6 Comp. Dec. at 75 (“The
appropriation [of the custodial agency] . . . is applicable . . . without
regard to the origin of the injury necessitating the repairs, whether arising
from natural deterioration or wear and tear, or from an accident of any
kind, whether by the fault of the officers of the [custodial agency] or
others or otherwise.”). That view is consistent with the doctrine’s underly-
ing premise: Regardless of whether one agency has damaged another
agency’s property in a foreseeable or unforeseeable manner, the agency
with custody of the property does not make a claim for damage because
the property belongs to the government as a whole. Even if we were to
distinguish between the individual agencies’ interests in this context, the
same conclusion would follow, because the agency with custody of the
property will be the one that reaps the benefits of removing the structures
at Treasure Lake. See Public Property, 10 Comp. Gen. at 289.
Second, Interior contends that the interdepartmental-waiver doctrine
has generally been applied to personal property, and not to real property
like the buildings and other permanent improvements at Treasure Lake.
See Interior Letter at 9, 11, 15. Interior reads the Comptroller General’s
1981 opinion in Withdrawn Lands as “appear[ing] to narrow” the doc-
trine’s applicability in cases involving public lands. Id. at 11–12. We
disagree with Interior’s attempt to extend that opinion’s reasoning to
Treasure Lake. In Withdrawn Lands, the Comptroller General concluded
that the interdepartmental-waiver doctrine should not apply to public
lands managed by the Bureau of Land Management because those lands
were held in anticipation of future assignment. See 60 Comp. Gen. at
408–09. The opinion explained that the Bureau “does not benefit, in the
sense referred to in the [Comptroller General’s previous decisions], from
restoration by another agency” of its lands. Id. at 408. Significantly, the
Comptroller General contrasted the Bureau’s public lands with National
Forest lands administered by the Forest Service, reasoning that “restora-
tion of property within the Forest’s boundaries” would “clearly benefit[]
12
Paying for Removing Structures at the Treasure Lake Civilian Conservation Center
the Forest Service,” rather than the paying agency. Id. at 409. That same
distinction would also apply to repairs within wildlife refuges, which are
administered by Interior in a similar fashion, for long-term preservation
and public benefit. Compare, e.g., 16 U.S.C. § 742a (giving the Fish and
Wildlife Service the statutory goal of “maintaining and increasing the
public opportunities for recreational use of our fish and wildlife re-
sources”), with id. § 1609(a) (giving the National Forest System and
Forest Service the statutory mission of maintaining a system of forests
“dedicated to the long-term benefit for present and future generations”).
Furthermore, as Interior acknowledges, see Interior Letter at 11 & n.40,
a number of other Comptroller General opinions, before and after 1981,
have applied the interdepartmental-waiver doctrine to real property. See,
e.g., National Weather Service, 71 Comp. Gen. at 2 (reaffirming that the
“interdepartmental waiver doctrine prohibits a federal agency from paying
for the use or repair of real property controlled by another federal agen-
cy”); Use of One Agency’s Real Property, 59 Comp. Gen. at 93–95 (ap-
plying doctrine to Army’s damage to national forest lands); Public Lands,
44 Comp. Gen. at 695 (applying doctrine to Army’s damage to lands in
national recreation area); National Forest Lands, 32 Comp. Gen. at 179–
81 (applying doctrine to Army’s damage to national forest lands).
Finally, we disagree with Interior’s contention that the necessary-
expense doctrine would authorize Labor to pay for removing the Treasure
Lake structures. See Interior Letter at 9. This Office has explained that the
Comptroller General’s necessary-expense doctrine tracks our interpreta-
tion of the Purpose Act, 31 U.S.C. § 1301(a). See State and Local Deputa-
tion of Federal Law Enforcement Officers During Stafford Act Deploy-
ments,
36 Op. O.L.C. 77, 87–88 (2012). The basic principle is that a
federal agency may use its appropriations for purposes that Congress has
not expressly specified, so long as the “expenditure bears a logical rela-
tionship to the objectives of the general appropriation[] and will make a
direct contribution to the agency’s mission.”
Id. (internal quotation marks
omitted). But treating each agency as having an implicit authorization to
use its funds to pay other agencies would render the interdepartmental-
waiver doctrine superfluous. If agencies were already authorized to pay
for the repair or restoration of other agencies’ property whenever doing so
bore some relation to the objects of a general appropriation, then there
would never be a need to determine whether a specific appropriation
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43 Op. O.L.C. __ (Feb. 22, 2019)
authorized an agency using another agency’s property to bear the costs of
that use. Nor would there be any need for the Economy Act; agencies
would already be entitled to make such agreements whenever they are
“reasonably necessary” to achieve the goals of an appropriation. We
therefore think that a more-specific authorization is required to override
the interdepartmental-waiver doctrine’s default rule.
III.
Interior is the custodian of the land at Treasure Lake. Accordingly, we
conclude that, under the interdepartmental-waiver doctrine, Labor cannot
pay to remove the structures at Treasure Lake, and, further, that no statu-
tory authority has displaced that doctrine’s applicability in this instance.
CURTIS E. GANNON
Principal Deputy Assistant Attorney General
Office of Legal Counsel
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