   Bonneville Power Administration’s Claim for Reimbursement
                in Connection with Land Transfer

 U nder the Federal P roperty and A dm inistrative Services Act of 1949, the Bonneville Power Adm in­
    istration is entitled to be reim bursed the fair value o f certain property that it transferred to the
    Secretary o f the Interior for the use and benefit o f the Puyallup Indian Tribe, without regard to
    w hether said property is located w ithin the Puyallup Indian Reservation.

U nder the Federal P roperty and Adm inistrative Services A ct of 1949, fair value reim bursem ent to the
   transferor agency by the acquiring agency is m andatory in all cases where the property was
   acquired w ith funds from a revolving fund, 40 U .S .C . §§ 483(a)(1), 485(c). The General Services
   A dm inistration has no discretion to w aive such a repaym ent obligation by the acquinng agency,
   even w here, as is arguably the case h ere, the acquiring agency is under an independent statutory
   obligation to acquire the land.

                                                                                                      March 2, 1982

         MEMORANDUM OPINION FOR THE ASSISTANT GENERAL
               COUNSEL, DEPARTMENT OF ENERGY

   This responds to your request for our opinion on a matter in dispute between
the Bonneville Power Administration (Bonneville) and the General Services
Administration (GSA) relating to Bonneville’s claim for reimbursement in con­
nection with its transfer to the Secretary of the Interior of certain real property
under the Federal Property and Administrative Services Act of 1949, 40 U.S.C.
§ 471—75 (1976 & Supp. IV 1980) (the Act).1 At issue is whether Bonneville is
entitled to be reimbursed the fair value of the property which the Secretary of the
Interior has taken in trust for the Puyallup Tribe of Indians. We conclude that it is
so entitled.
   According to the information you provided us, the property in question
consists of 1.34 acres of land in Pierce County, Washington, purchased some
years ago for the United States by Bonneville from private parties with funds
appropriated from the Treasury. The Treasury has since been reimbursed the
purchase price from revenues generated by Bonneville’s sale of electric power. As
a practical matter, then, the land has been paid for by Bonneville’s customers.
Recently, Bonneville determined that it no longer had any need for the property,


   ] A s you know , we solicited th e views of b o th the D epartm ent o f th e Interior and the D epartm ent of Energy on the
q uestions p resen ted by B onneville. The form er agency was in substantial ag reem en t w ith G S A 's interpretation o f
the A ct. We also received an unsolicited subm ission from the attorney for the Puyallup N ation o f Indians discussing
a second issue raised by B onneville— the contin u in g existence o f the P uyallup Indian R eservation w ithin w hose
b oundaries the p ro p erty in question is purported to be located. See note 4 , infra.


                                                            172
and so reported to GSA.2 GSA then sought to ascertain, as required under
§ 483(a)(1) of the Act,3 whether any other federal entity was interested in
acquiring the property. Subsequently, at the request of the Puyallup Indian Tribe,
the Bureau of Indian Affairs of the Department of the Interior certified to GSA
that the property was located within the reservation boundaries of the Puyallup
Tribe, and requested that the land be transferred to the Secretary of the Interior to
be held in trust by him for the benefit and use of the tribe, as required by
§ 483(a)(2) of the Act.
   Bonneville takes the position that under §§ 483(a)( 1) and 485(c) of the Act it is
entitled to be reimbursed the fair value of the property. GSA does not dispute that
Bonneville would ordinarily be entitled to fair value reimbursement by an agency
acquiring the property under the above-mentioned provisions of the Act. Rather,
GSA contends that no reimbursement is required because the land is located
within an Indian reservation, is therefore subject to the terms of § 483(a)(2), and
consequently its transfer generates no proceeds from which reimbursement
would be possible. The Department of the Interior appears to be in essential
agreement with GSA on this point of statutory construction.4

                                                                I.

   Section 483(a)(1) of the Act provides for the transfer among federal agencies
of “ excess” property,5 and reads in pertinent part as follows:
              Subject to the provisions of paragraph (2) of this subsection, in
            order to minimize expenditures for property, the Administrator

    2 U nder 16 U .S C § 832a(e) (1976) B onneville w ould appear to have its ow n authority, in dependent of G S A , to
sell o r otherw ise dispose of real p roperty ow ned by it, provided that it obtains the p n o r approval o f the President for
the particular transaction It is not clear to us w hy Bonneville chose in this case to dispose o f the property th ro u g h
G S A , an d thereby necessarily in accordance w ith the procedures m andated by the A ct, rather than sim ply sell it on
the op en m arket. We note, however, that the decision to dispose o f the property through G SA facilitates its tra n sfer
into tru st for the P uyallup Tribe.
    3 R elevant sections o f the A ct w ill be identified in this opinion by citation to Title 4 0 o f the U n ited States C o d e.
T hus § 202(a)(1) o f the Act w ill be cited as § 483(a)(1), § 204(c) as § 485(c), etc
    4 B onneville argues in the alternative that the parcel of excess land in question is not currently located “ w ith in ” an
Indian reservation, and that its transfer is therefore not governed by § 483(a)(2) In support o f this p o sitio n ,
B onneville cites several recent S uprem e C ourt cases w hich, in its view, cast do u b t upon the co n tin u ed existence o f
the Puyallup R eservation G SA d efers to the determ ination of the Interior D epartm ent on the q u estio n o f the location
o f th e property w ithin an Lndian reservation, and its concom itant eligibility for tran sfer pursuant to § 483(a)(2) T h e
D epartm ent of the Interior urges that the holding o f the Court of A ppeals in United States v State c f Washington, 4 9 6
F 2 d 6 2 0 (9th Cir. 1974), cert, denied, 419 U S 1032 (1975) be considered conclusive o f the issue of the co n tin u ed
existence of the P uyallup Reservation.
    We ag ree with the D epartm ent o f the Interior that it w ould be inappropriate, in light o f the U nited States’ fiduciary
obligations as trustee for the Indians, to reopen th e question o f the reservation’s status in this context We are
m indful, in this reg ard , o f the governm ent’s longstanding litigating position on the issue See . e.g , City c f Tacoma
v Andrus, 457 F Supp. 342 (D D .C . 1978) (S ecretary of Interior acted w ithin his pow er under 25 U .S .C . § 4 6 5
(1976) in acquiring trust lands w ithin historic b oundanes of Puyallup R eservation) In any ev en t, because o u r
conclusion with respect to B onneville’s entitlem ent to reim bursem ent under th e A ct does not depend upon the
location o f the property, we need not address the considerations raised by B onneville with respect to the co n tin u ed
existence o f the reservation
    5 “ Excess p ro p erty ” is defined in § 472(e) o f the A ct of “ any property under the control o f any Federal ag en cy
which is not required for its needs and the discharge o f its responsibilities, as determ in ed by the head thereof.” It is
distinguished from " su rp lu s p ro p erty ,” w hich is defined in § 472(g) as "an y excess property not required for the
needs an d the discharge of the responsibilities o f all Federal agencies, as d eterm ined by the A dm inistrator [of
G S A l”


                                                              173
               shall prescribe policies and methods to promote the maximum
               utilization of excess property by executive agencies, and he shall
               provide for the transfer of excess property among Federal agen­
               cies and to the organizations specified in section 756(f) of this
               title. The Administrator, with the approval of the Director of the
               Office of Management and Budget, shall prescribe the extent of
               reimbursement for such transfers of excess property: Provided,
               That reimbursement shall be required cf the fair value, as deter­
               mined by the Administrator, cf any excess property transferred
               whenever net proceeds are requested pursuant to section 485(c) cf
               this title or whenever either the transferor or the transferee agency
               (or the organizational unit affected) is subject to the Government
               Corporation Control Act (59 Stat. 597; 31 U.S.C. 841) or is an
               organization specified in section 756(f) of this title . . . .

(Emphasis added.) By the terms of this section, the Administrator of General
Services has some discretion in determining the extent to which an agency
accepting transfer of excess property must “ reimburse” the Treasury for its
acquisition. However, “ fair value” reimbursement “ shall be required” from an
acquiring agency “ whenever net proceeds are requested pursuant to section
485(c) of this title.” This latter section deals with the situation in which excess
property was originally acquired by the transferor agency “ by the use of funds
either not appropriated from the general fund of the Treasury or appropriated
therefrom but by law reimbursable from assessment, tax, or other revenue or
receipts. . . .’’ In such a case, and upon the request of the transferor agency, the
proceeds of the transfer “ shall be credited to the reimbursable fund or appropria­
tion or paid to the Federal agency which determined such property to be
excess. . ;      In other words, “ fair value” reimbursement to the transferor
agency by the acquiring agency is mandatory under § 483(a)(1) whenever the
property was acquired by the transferor agency with funds from a so-called
“ revolving fund.” 6

    6 A s o rig in ally en a cted , § 483 of the A ct req u ired fair value reim b u rsem en t b y the acquiring agency in all excess
p ro p e rty tra n sfers See § 202(e) o f the A ct o f June 30, 1949, ch 28 8 , 63 Stat. 385 A m endm ents to the A ct in 1952
gave th e A dm inistrator o f G eneral Services discretion to w aive this reim bursem ent requirem ent in all but a few
s itu a tio n s. See A c t o f July 12, 1952, ch 70 3 , 66 Stat. 593 T he S enate R eport explained the need fo r the
am en d m en ts as follow s

              The pu rp o se of this provision o f th e bill . . is to p erm it better u tilizatio n o f excess property by
          o th e r F ederal agencies which have n ee d for such property. Experience h as clearly dem onstrated that
          a co n sid e rab le am ount o f excess p ro p erty w hich has b een reported to the G SA for red istribution to
          o th e r F ederal agencies cannot under existing authority b e transferred to the needing ag en cies, since
          reim b u rsem en t is req u ired under the “ fair value” provision o f section 202 o f the Federal Property
          and A dm inistrative S ervices Act of 1949, as am ended. T h e needing agencies contend that they have
          no fu n d s available fo r reimbursing the owning agency, and GSA does not have authority to transfer
          without reimbursement, and as a re su lt the best utilization o f excess p roperty is not attained. This
          am en d m en t to th e act w ould liberalize the effect of the statute and at th e sam e tim e provide a more
          flexible m ethod for tra n sfer so that g reater utilization o f excess p roperty could be attained, w hile at
          the sam e tim e retaining existing ex c ep tio n s specifically authorized by law.

S .R e p N o 2 0 7 5 ,82d C o n g ., 2d Sess 3 ( 1 9 5 2 )( e m p h a s is s u p p lie d ).O n e o f th e “ existin g ex cep tio n s” re fe rre d to in
th e above passage is the situation in w hich " n e t proceeds are requested p u rsu an t to § 485[c] ”


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   The regulations implementing GSA’s responsibilities under § 483(a)(1) are
found in Subpart 101-47.2 of Title 41 of the Code of Federal Regulations.
Reimbursement for transfers of excess real property is prescribed in 41 C.F.R.
101-47.203-7(f). Subsection (f)( 1) mandates fair value reimbursement where the
transferor agency requests the “ net proceeds” of a transfer under § 485(c) of the
Act; subsection (f)(2) prescribes in some detail procedures governing reimburse­
ment “ in all other transfers of excess real property.” Briefly, GSA may or may not
require reimbursement from an acquiring agency under (f)(2), depending upon
whether the agency has available appropriated funds to spend on the acquisition,
or whether Congress has specifically authorized the transfer without reimburse­
ment.7 In accordance with the mandate of the statute, the regulations embody no
analogous waiver authority where § 485(c) property is involved.

                                                            II.

   Bonneville contends, and GSA does not dispute, that the property in question
here falls within the scope of § 485(c). Although initially the funds used to
purchase the property were appropriated from the Treasury, the Treasury is being
reimbursed through revenues generated from the sale and transmission of electric
energy generated at the Bonneville project. See 16 U.S.C. § 832j. Bonneville
would therefore appear to be entitled to fair value reimbursement from the
agency to which its excess property is transferred, both under § 483(a)(1) of the
Act and under GSA’s implementing regulations.
   In this case, however, GSA argues that under 1975 amendments to the Act
dealing with excess property located within Indian reservations, Bonneville is
not entitled to reimbursement. These amendments make § 483(a)(1) expressly
“ subject to” a new § 483(a)(2), which requires GSA to transfer any excess
property located within an Indian reservation to the Secretary of the Interior to be
held in trust for the tribe. See Act of Jan. 2, 1975, Pub. L. No. 93-599, 88 Stat.
1954. The subsection reads in pertinent part as follows:
              The Administrator shall prescribe such procedures as may be
           necessary in order to transfer without compensation to the Secre­
           tary of the Interior excess real property located within the reserva­
           tion of any group, band, or tribe of Indians which is recognized as
           eligible for services by the Bureau of Indian Affairs. Such excess
           real property shall be held in trust by the Secretary for the benefit
           and use of the group, band, or tribe of Indians, within whose
           reservation such excess real property is located. . . . (Emphasis
           added.)

   7 Exam ples o f situations m w hich Congress has specifically authorized the transfer o f property w ith o u t reim b u rse­
m ent are found in 1 6 U .S C § 667b (transfer o f real p roperty for w ildlife conservation purposes to state agencies or
D epartm ent of the Interior), 50 U S .C A pp. § 1622(g) (conveyance of real property to state or local governm ent for
public airports); 4 0 U S .C . § 484(k)(3) (conveyance of real property to state o r local governm ents for use as historic
m onum ent). However, as we read G S A ’s regulations, the reim bursem ent obligation may be excused only in
situations w here § 4 8 5 (c) does not apply T hus the general obligation to reim burse a revolving fund un d er (f)( I ) will
always prevail over any defense to a reim bursem ent obligation set o u t in (0 (2 ).


                                                           175
   GSA’s position, with which Interior is in essential agreement, is based on a
reading of the above provision in which the phrase “ without compensation”
modifies the word “ transfer.” The transaction contemplated by (a)(2) is thus
characterized as a “ transfer without compensation.” From this characterization
GSA argues that a § 483(a)(2) transfer generates no proceeds which could be
credited to Bonneville’s revolving fund.
   If GSA’s reading of the language of subsection (a)(2) is correct, the fair value
reimbursement requirement contained in subsection (a)( 1) will never be realized
in a transfer of land located within an Indian reservation. Thus, subsection (a)(2)
would qualify subsection (a)(1) in not one but two respects: it would limit the
GSA Administrator’s discretion under (a)(1) with respect to which agency is
entitled to the excess property, and also impliedly repeal that section’s fair value
reimbursement requirement for self-financing agencies like Bonneville. We
hesitate to give the provision such a broad effect without the clearest expression
of congressional intent, particularly since in certain circumstances it could raise
constitutional issues. See note 10, infra. We look, therefore, to a possible
alternative reading of the language of subsection (a)(2): a transfer governed by
this section is to be effected “ without compensation to the Secretary of the
Interior.” Certainly, this is a reasonable alternative reading of somewhat ambigu­
ous phraseology— phraseology whose ambiguity is compounded by the use of
the word “ compensation” instead of the term generally used in this statute,
“ reimbursement.” 8
   Because the language which Congress chose admits of more than one reason­
able construction, we turn to the legislative history to ascertain what relationship
Congress intended the new section to have to other parts of the Act, and in
particular to § 483(a)(1) itself.9 There we find strong support for the alternative
reading we have suggested, and none for GSA’s.

                                                            III.

   Public Law No. 93-599 was enacted in 1975 principally to curtail the discre­
tion which both the Administrator of General Services and the Secretary of the
Interior then enjoyed under the Act in connection with the disposition of excess
property located within an Indian reservation. Under the law as it then existed, a
tribe’s ability to benefit from the use of excess federal property on its reservation
was entirely dependent upon the willingness of the Secretary of the Interior to

   8 H ad C o n g ress intended to preclude an o w n in g agency’s being reim bursed in any circum stances by the S ecretary
o f the Interior u n d er § 4 83(a)(2), it m ight have stated clearly that excess property located w ithin an Indian
reservation should be “ tra n sferre d to the S ecretary of the Interior w ithout com pensation to the owning agency
A lternatively, the statute could have referred to “ transfer w ithout reim bursem ent to the tra n sfero r’’ w h ich w ould
have been consistent w ith th e language and s tru ctu re of (a)(2). W hile speculation regarding w hat C ongress m ight
have said is not p articu larly u sefu l, its d ep a rtu re from the m ore obvious ch o ices leads o ne to an inquiry into the
legislative history to see if there is any exp lan atio n for the w ords it d id select.
   g R eferences to the legislative history may b e appropriate even w here a statu te's meaning appears plain on its face,
p articularly w here ap p a re n tly contradictory d ire ctiv es are given by m ore than o n e applicable provision o f law. See
Watt v. Alaska, 451 U .S . 2 5 9 (1981). See also Train v. Colorado Public Interest Research Group, Inc., 4 2 6 U S 1,
10 (1976)


                                                            176
apply to GSA for its transfer, and GSA’s willingness to choose Interior over some
other agency interested in acquiring the land. The 1975 amendments to the Act
were intended to make mandatory GSA’s transfer of excess property located
within a reservation to the Secretary of the Interior, to be held in trust “ for such
use as the Indian tribe located on the reservation believes best.” See H.R. Rep.
No. 1339,93d Cong., 2d Sess. 4 (1974) (House Report). Neither the terms of the
statute nor its legislative history suggest that Congress intended there to be any
exceptions to this requirement, or that any discretion was to remain in either GSA
or the Secretary once the land was determined to be located “ within [a]
reservation.”
   As originally introduced in the House, and reported out of Committee in the
Senate, the legislation authorized the Secretary of the Interior under certain
limited circumstances to require reimbursement from an Indian tribe when
excess property located within a reservation was transferred to Interior in trust for
the tribe. See House Report at 2; Disposal of Excess Property Located within
Indian Reservations: Hearing on H.R. 8958 Before a Subcomm. of the House
Comm, on Government Operations, 93d Cong., 2d Sess. 3 (1974). Specifically,
H.R. 8958, 93d Cong., 1st Sess. (1973) authorized the Secretary to require
reimbursement “ in the event that the group, band, or tribe of Indians receiving
excess property under this section was compensated for such real property when
title was acquired by the United States.” This limited authority was stricken by
the House Committee, however, with the following comments:

           Amendment two provides that excess property shall be trans­
        ferred to the Interior Department for the use [sic] by Indian tribes
        "without compensation.” Since the land in question will remain
        in Federal hands, it does not seem appropriate to exact a charge
       for its use from the tribes. The fact that many tribes have only
        limited financial resources also contributed to the committee’s
        belief that they should not be charged for land located within their
        own reservations. In some instances, at least, the exactment of a
        charge would prevent a tribe without adequate resources from
       obtaining needed property. This would clearly defeat efforts to
        institute self-sufficiency in Indian tribes.

House Report at 2 (emphasis added).
   As this passage makes clear, the addition of the phrase “ without compensa­
tion” in the first sentence of (a)(2) was intended to do no more than ensure that
Indian tribes were not “ charged for land, located within their own reservation,”
and preclude the Secretary’s exacting a charge from the tribes in connection with
his acquisition of the land for their benefit. There is no suggestion that the phrase
in (a)(2) was intended to change existing law on reimbursement in connection
with interagency transfers under (a)(1), or that the terms of a transfer transaction
under (a)(2) were not intended to be governed, at least as between the owning and
acquiring federal agencies, by the preceding section. And, as we have noted, the

                                        177
existing law would have required an agency acquiring excess § 485(c) property
to reimburse the owning agency its fair value.
   Moreover, the very use of the term “ reimbursement” to describe the Secre­
tary’s proposed authority to levy on the Indians in the original version of the bill
suggests that its drafters anticipated that the Secretary would at least in some
cases have to pay something to acquire the property. This may indicate that
Congress contemplated that the Secretary might have to expend funds in connec­
tion with accepting transfers under § 483(a)(2).10
   We conclude, therefore, that Bonneville’s entitlement to reimbursement under
§§ 483(a)( 1) and 485(c) of the Act is not affected by the passage of the 1975 law.
In reaching this conclusion we are mindful of the basic canon of statutory
interpretation that a statute “ ought to be so construed as to make it a consistent
w hole,” and that “ the construction that produces the greatest harmony and the
least inconsistency is that which ought to prevail.” 2A C. Sands, Sutherland’s
Statutory Construction § 46.05 at 57 (4th ed. 1973), citing Attorney General v.
Sillem, 159 Eng. Rep. 178(1863). Seealso Watt\. Alaska, 451 U.S. at2 6 7 (“ We
must read the statutes to give effect to each if we can do so while preserving their
sense and purpose.” ).
   The question of the Interior Department’s authority to expend appropriated
funds on the acquisition of the excess property in question for the use and benefit
of the Puyallup Tribe is not before us, although we note as possibly relevant in this
regard the general authority to expend funds for the benefit of the Indians set forth
in 25 U.S.C. § 13 and, more particularly, the authority to purchase land for the
use and benefit of the Indians contained in 25 U.S.C. § 465. In addition, because
we believe that § 483(a)(2) of the Act must be construed to leave Interior no
discretion to refuse to accept transfer of excess property located within a
reservation simply because the transferring agency must under § 483(a)(1) be
reimbursed for it, § 483(a)(2) itself may constitute an additional source of
authority to expend funds otherwise available for that purpose.'1 Cf. New York
Airways, Inc. v. United States, 369 F.2d 743, 748 (Ct. Cl. 1966) (Congress’
failure to appropriate funds to meet an agency’s statutory obligation does not
defeat that obligation). It may be, of course, that Interior simply does not have
sufficient funds to spare from its general appropriation, consistent with fulfilling
the other obligations which must be funded from this source. In this event, either

    10 T h e re is no indication in the legislative h isto ry o f the 1975 am endm ents that C ongress co nsidered the situation
in volving lands paid for not w ith public funds b u t w ith funds g enerated from assessm ents o f a particu lar g roup of
citiz en s. S tatem en ts in the legislative history suggest that it d id not. See, e.g , House R eport at 2 ( “ the land m
q u estio n w ill rem ain in F ederal han d s'1). T h is does n ot, howeveT, ca st doubt on o u r conclusion w ith respect to the
p urpose o f the " w ith o u t com pensation" la nguage in (a)(2). In d eed , it reinforces it O ne m ay well ask w hether
C o n g ress, if a sk ed , w ould have thought it fair o r appropriate that land in effect paid for by one gro u p o f citizen s, here
B o n n ev ille 's cu sto m ers, could be transferred to a federal agency w ithout com pensation
    11 It is a w ell settled p rinciple o f law that a lu m p sum appropriated fo r an ag en cy 's genera] pro g ram s and activities
m ay be used by th e agency for any otherwise authorized purpose. See, e.g , In re Newport News Shipbuilding and
D rydockC o., 55 C o m p G en . 81 2 , 819-21 (1 976). See also City o f Los Angeles v. Adams, 556 F.2d 4 0 ,4 9 - 5 0 (D C
Cir. 1977) (an agency head's discretion to rep ro g ram funds am on g authorized program s u n d er a lum p sum
ap p ro p riatio n is lim ited o n ly if a specific statu to ry directive requires the expenditure o r distrib u tio n o f funds in a
p articu lar m anner). T h u s In te n o r is not legally o b lig ed to seek a new appropriation to reim burse B onneville for the
land, as long as there are funds available from its unrestricted general appropriation w hich co u ld be allocated o r
rep ro g ram m ed fo r this purpose.


                                                                178
Interior or Bonneville could seek an additional supplemental appropriation for
that specific purpose.

                                           T heodore B. O   lson

                                        Assistant Attorney General
                                         Office cf Legal Counsel




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