TRANSFER OF NATIONAL MONUMENTS LOCATED IN NATIONAL

FORESTS

Opinion, October 24, 1933

NATIONAL MONUMENTS IN NATIONAL FORESTS-EXECUTIVE ORDER OF JUNE 10, 1933, UNDER ACT OF MARCH 3, 1933 WHEN TRANSFER EFFECTIVE— RESULTING Status.

Executive Order No. 6166 (dated June 10, 1933, effective 60 days later), issued under authority of the Act of March 3, 1933 (47 Stat. 1489), which, among other things, transferred administration of national monuments located in national forests from the Department of Agriculture to the Office of National Parks, Buildings and Reservations, contained the proviso, "except that where deemed desirable there may be excluded from this provision any reservation which is chiefly employed as a facility in the work of a particular agency." Held, That in the absence of any action taken regarding this proviso during the 60-day period following June 10, 1933, the order became effective on August 10, 1933, and the status of this agency and others within the scope of the order became crystallized, so that subsequent changes could be effected only through further action by the President or Congress.

MARGOLD, Solicitor:

You [the Secretary of the Interior] have asked for my opinion on the attached letter of September 29, 1933, from the Secretary of Agriculture, in which certain data are presented for your consideration in support of the request made therein that the fifteen national monuments located in national forest reserves and hitherto administered by the Agriculture Department be excluded from the operation of Section 2 of Executive Order No. 6166, dated June 10, 1933, which consolidates all functions of administration of national monuments in an Office of National Parks, Buildings and Reservations in the Department of the Interior.

The provision of the Executive Order on which the Agriculture Department relies and upon which it bases its request reads as follows:

except that where deemed desirable there may be excluded from this provision any public building or reservation which is chiefly employed as a facility in the work of a particular agency.

The language of this excepting provision does not of itself operate to exclude any particular building or reservation from the transfer and consolidation, and the only way this provision can become operative is by a mutual understanding by, or an agreement reached between, the departments involved, on a showing that a particular building or reservation is in fact chiefly employed as a facility of a particular agency. Therefore in the absence of any agreement in the matter prior to the effective date of the Executive Order, the status of these national monuments as of, and after, the effective date of the order must be that they were transferred as directed.

The Secretary of Agriculture submits various reasons why the administration of these national monuments should be continued under the Department of Agriculture. These are given in his letter as follows:

First, a change in the administrative status of these fifteen areas would not result in any saving of public funds but evidently would entail increased costs of administration.

Second, the change would not be productive of increased efficiency in the management of public properties or service to the public, but by substituting two administrative jurisdictions for one would create new complications of Federal administration.

Third, the lands embraced within the fifteen National Monuments involved are also under withdrawal for National Forest purposes, this duality of withdrawal being specifically recognized in the proclamations by which fourteen of the Monuments were created, and by long established legal and administrative interpretation in relation to the fifteenth Monument. The function of National Forest administration in relation to the fifteen areas is neither transferred nor abrogated by the Executive Order of June 10, 1933, hence remains vested in this Department.

He concludes by suggesting that—

The most practicable and satisfactory adjustment of this matter would be to recognize and classify the fifteen areas as facilities essential to the work of this Department, or to the redemption of the responsibilities imposed upon it by law; such action, under the provisions of Section 2 of the Executive Order, operating to exclude the areas from the general provisions of the Order. I recommend that course to your favorable consideration.

Whether or not these national monuments, due to their dual status as both national forests and national monuments, may be more efficiently administered under the jurisdiction of the Agriculture Department than by the Interior Department is not for legal determination, but should be considered administratively. Therefore, as to this phase of the presentation I do not intend to express an opinion herein. It appears clear, however, that the dual aspect of these reservations pointed out by the Secretary of Agriculture does not from the legal standpoint make their administration for national monument purposes by the Interior Department impossible or impracticable. In this connection I am advised informally by the Office of National Parks, Buildings and Reservations that the obstacles pointed out to satisfactory administration of these areas by an agency other than the Agriculture Department are not insurmountable from the administrative standpoint and that the same principle of separation of administration can be employed that has been followed in the case of the Bandelier National Monument in New Mexico, which was transferred from the Forest Service of the Department of Agriculture to the Office of National Parks of the Interior Department a little over a year ago. See Executive Proclamation No. 1991, dated February 25, 1932. More recently the same principle

of separation of administration has been employed under reorganization of Government agencies in connection with the Lee Mansion at Arlington, Virginia, which has been separated from the national cemetery, under the administration of the War Department, and placed under the jurisdiction of the Office of National Parks of the Interior Department on account of its unusual historical qualities. See Executive Order No. 6228 dated July 28, 1933, supplementing Executive Order No. 6166 dated June 10, 1933.

The Executive Order of June 10, 1933, by its terms did not go into effect until 60 days from its date, and in my opinion the President intended that any exceptions to be made under the excepting clause should be agreed to between the Departments involved within the 60-day period. After the effective date of the Executive order, the status of all agencies transferred or consolidated became crystalized, and changes can be effected only through further action by the President or Congress.

It is therefore my conclusion that these national monuments were transferred to the Office of National Parks, Buildings and Reservations, on August 10, the date on which the Executive order became effective, there having been no prior agreement between the two Departments which served to exempt these monuments from the scope of the order.

SALE OF ELECTRIC ENERGY FROM HETCH HETCHY POWER SITE, CALIFORNIA

Opinion, October 27, 1933

POWER SITE-HETCH HETCHY-SALE OF ELECTRIC ENERGY BY CITY AND COUNTY OF SAN FRANCISCO TO PRIVATELY OWNED UTILITY COMPANY. Electric energy produced by a power plant to be erected on the Hetch Hetchy site by the city and county of San Francisco may be legally sold by the municipality to a privately-owned electric utility company only upon condition that such power will be consumed by the company and not resold or redistributed, since the Act of Congress granting the site, etc. (38 Stat. 242), contains a prohibition against the grantees' selling or letting to any private corporation the right to sell or sublet the electric energy sold or given to it by said grantees.

MARGOLD Solicitor:

You [the Secretary of the Interior] have requested my opinion as to whether electric energy produced by a power plant to be erected on the Hetch Hetchy site by the city and county of San Francisco may legally be sold by the municipality to a privatelyowned electric utility company.

The rights and obligations of the city and county of San Francisco in this connection depend upon the Act of December 19, 1913

(38 Stat. 242), commonly known as the Raker Act. Section 1 of the act states that the grant to the city and county of San Francisco is made, among other purposes, "for the purpose of constructing, operating, and maintaining power and electric plants, poles, and lines for generation and sale and distribution of electric energy." Section 9 (1) of the act states that the grantee, after making provision for certain requirements of the Modesto and Turlock Irrigation Districts, and municipalities therein, may "dispose of any excess electrical energy for commercial purposes." Section 9 (m) further refers to the development of electric power for "commercial use." It is therefore reasonably clear that it was contemplated by Congress that under certain circumstances power developed at Hetch Hetchy should be sold to private companies.

Section 6 of the act, however, provides as follows:

That the grantee is prohibited from ever selling or letting to any corporation or individual, except a municipality or a municipal water district or irrigation district, the right to sell or sublet the water or the electric energy sold or given to it or him by the said grantee: Provided, That the rights hereby granted shall not be sold, assigned, or transferred to any private person, corporation, or association, and in case of any attempt to so sell, assign, transfer, or convey, this grant shall revert to the Government of the United States.

I wish particularly to emphasize the fact that this section prohibits, not only the transfer by the municipality of its right to sell the energy produced in its plant, but also its transfer of any right to resell or sublet any electric energy which it may sell to a private company.

Since the city and county of San Francisco may properly sell power so developed to a private company if the company is going to consume it, but since the sale would clearly not be proper if it expressly included any right in the purchaser to resell or sublet the power, it is my opinion that the municipality would violate the act if it were blindly to sell energy to a private company which notoriously uses electric power for resale rather than for consumption. I therefore suggest that Mr. Burkhardt be notified that the city and county of San Francisco may sell electric power developed at the Hetch Hetchy site to a privately-owned electric utility company only if the municipality first receives convincing assurance that all such power will be consumed by the company and will in no instance be resold or redistributed.

Approved:

OSCAR L. CHAPMAN,

Assistant Secretary.

COAL LAND REGULATIONS (CIRCULAR 679) AMENDED:
LIMITED LICENSES TO MINE COAL

REGULATIONS

[Circular No. 1314]'

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE, Washington, D.C., October 30, 1933.

REGISTERS, UNITED STATES LAND OFFICES:

Section 8 of the act of February 25, 1920 (41 Stat. 437) authorizes the Secretary of the Interior to issue under such regulations as he may prescribe in advance limited licenses to individuals and associations to mine and take coal from the public lands for their own use without payment of rents or royalties.

In order that the purpose of this provision may be made use of to the fullest extent during the national emergency and governmentowned coal made more easily available for relief, authority may be granted by the Secretary of the Interior to the recognized established relief agency of any State, upon its request, to take government-owned coal deposits within the State in localities where needed to supply families on the rolls of such agency who require coal for fuel for their homes and who are unable to pay for same.

The State agency may, directly or through its county branches, designate the lands to be mined in tracts of not more than 40 acres, by legal subdivisions if surveyed, of vacant public lands, or lands in which the coal deposits are owned by the United States, provided arrangements are made with the surface owner for protection from damage to his crops and improvements on the land. Such tracts shall be selected at points convenient to supply the families in the locality thereof, and each family shall be restricted to the amount of coal actually needed for its use, which in no case shall exceed 20 tons.

Coal may be taken from such tracts only by those given written authority by the relief agency, and all mining shall be done pursuant to permission and under the supervision of the county relief agency or such other agent as the State relief agency may provide, and all Federal and State laws and regulations for the safety of miners, prevention of fires and of waste, etc., shall be observed. The relief agency shall see that the premises are left in a safe condition for future mining operations.

The local relief agency may take coal from available land prior to issuance of license, but within 5 days after commencement of

1 See 47 L.D. 489, and Circulars 809, 922, and 1193.