Bonneville Power Administration’s Claim for Reimbursement

in Connection with Land Transfer

Under the Federal Property and Administrative Services Act of 1949, the Bonneville Power Administration is entitled to be reimbursed the fair value o f certain property that it transferred to the 

Secretary of the Interior for the use and benefit of the Puyallup Indian Tribe, without regard to 

whether said property is located within the Puyallup Indian Reservation.

Under the Federal Property and Administrative Services A ct of 1949, fair value reimbursement to the 

transferor agency by the acquiring agency is m andatory in all cases where the property was 

acquired with funds from a revolving fund, 40 U .S.C . §§ 483(a)(1), 485(c). The General Services 

Administration has no discretion to waive such a repaym ent obligation by the acquinng agency, 

even w here, as is arguably the case here, 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 connection 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,

] As you know, we solicited the views of both the D epartm ent o f the Interior and the D epartm ent of Energy on the 

questions presented by B onneville. The form er agency was in substantial agreem ent with G SA 's interpretation of 

the A ct. We also received an unsolicited subm ission from the attorney for the Puyallup Nation of Indians discussing 

a second issue raised by B onneville— the continuing existence o f the Puyallup Indian Reservation w ithin whose 

boundaries the property in question is purported to be located. See note 4 , infra.

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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) Bonneville would appear to have its own authority, independent of G S A , to 

sell or otherwise dispose of real property 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 why Bonneville chose in this case to dispose o f the property through 

G SA , and thereby necessarily in accordance with the procedures mandated by the A ct, rather than simply sell it on 

the open market. We note, however, that the decision to dispose of the property through GSA facilitates its transfer 

into trust for the Puyallup Tribe.

3 Relevant sections o f the Act w ill be identified in this opinion by citation to Title 40 of the U nited States C ode. 

Thus § 202(a)(1) o f the Act will be cited as § 483(a)(1), § 204(c) as § 485(c), etc

4 Bonneville argues in the alternative that the parcel of excess land in question is not currently located “ w ithin” an 

Indian reservation, and that its transfer is therefore not governed by § 483(a)(2) In support o f this position, 

Bonneville cites several recent Suprem e C ourt cases w hich, in its view, cast doubt upon the continued existence of 

the Puyallup Reservation GSA defers to the determ ination of the Interior D epartm ent on the question of the location 

of the property w ithin an Lndian reservation, and its concom itant eligibility for transfer pursuant to § 483(a)(2) The 

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 620 (9th Cir. 1974), cert, denied, 419 U S 1032 (1975) be considered conclusive of the issue of the continued 

existence of the Puyallup Reservation.

We agree with the D epartm ent o f the Interior that it would be inappropriate, in light o f the U nited States’ fiduciary 

obligations as trustee for the Indians, to reopen the question o f the reservation’s status in this context We are 

m indful, in this regard, 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) (Secretary of Interior acted w ithin his power under 25 U .S.C . § 465 

(1976) in acquiring trust lands w ithin historic boundanes of Puyallup Reservation) In any event, because o u r 

conclusion with respect to B onneville’s entitlem ent to reim bursem ent under the Act does not depend upon the 

location o f the property, we need not address the considerations raised by Bonneville with respect to the continued 

existence o f the reservation

5 “ Excess property” is defined in § 472(e) o f the A ct of “ any property under the control of any Federal agency 

which is not required for its needs and the discharge o f its responsibilities, as determ ined by the head thereof.” It is 

distinguished from "surplus property,” which is defined in § 472(g) as "any excess property not required for the 

needs and the discharge of the responsibilities o f all Federal agencies, as determ ined by the Adm inistrator [of 

G S A l”

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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 agencies 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 c f the fair value, as determined 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 appropriation 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 originally enacted, § 483 of the A ct required fair value reim bursem ent by the acquiring agency in all excess 

property transfers See § 202(e) o f the Act o f June 30, 1949, ch 288, 63 Stat. 385 A m endm ents to the Act in 1952 

gave the A dm inistrator o f G eneral Services discretion to w aive this reim bursem ent requirem ent in all but a few 

situations. See A ct o f July 12, 1952, ch 703, 66 Stat. 593 The Senate Report explained the need for the 

am endm ents as follow s

The purpose of this provision o f th e bill . . is to perm it better utilization o f excess property by 

o th er Federal agencies which have need for such property. Experience has clearly dem onstrated that 

a considerable am ount o f excess property which has been reported to the GSA for redistribution to 

other Federal agencies cannot under existing authority be transferred to the needing agencies, since 

reim bursem ent is required under the “ fair value” provision of section 202 of the Federal Property 

and A dm inistrative Services Act of 1949, as am ended. T h e needing agencies contend that they have

no funds available for reimbursing the owning agency, and GSA does not have authority to transfer

without reimbursement, and as a resu lt the best utilization o f excess property is not attained. This 

am endm ent to the act w ould liberalize the effect of the statute and at the same tim e provide a more 

flexible m ethod for transfer so that greater utilization o f excess property could be attained, while at 

the sam e tim e retaining existing exceptions 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 )(em p h a sissu p p lied ).O n eo fth e“ existingexceptions” referred to in 

the above passage is the situation in which " n e t proceeds are requested pursuant 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 reimbursement “ 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 reimbursement.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 Secretary of the Interior excess real property located within the reservation 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 Examples o f situations m which Congress has specifically authorized the transfer o f property w ithout reim bursement are found in 1 6 U .S C § 667b (transfer o f real property for wildlife conservation purposes to state agencies or 

Departm ent of the Interior), 50 U S.C App. § 1622(g) (conveyance of real property to state or local governm ent for 

public airports); 40 U S .C . § 484(k)(3) (conveyance of real property to state or local governm ents for use as historic 

monument). However, as we read G S A ’s regulations, the reim bursem ent obligation may be excused only in 

situations where § 485(c) does not apply Thus the general obligation to reim burse a revolving fund under (f)( I ) will 

always prevail over any defense to a reim bursem ent obligation set out in (0(2).

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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 ambiguous 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 reasonable 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 discretion 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 Had C ongress intended to preclude an ow n in g agency’s being reim bursed in any circum stances by the Secretary 

o f the Interior under § 483(a)(2), it might have stated clearly that excess property located w ithin an Indian 

reservation should be “ transferred to the S ecretary of the Interior w ithout com pensation to the owning agency

Alternatively, the statute could have referred to “ transfer w ithout reim bursem ent to the transferor’’ w hich would 

have been consistent w ith the language and structure of (a)(2). W hile speculation regarding what Congress might 

have said is not particularly useful, its departure from the m ore obvious choices leads one to an inquiry into the 

legislative history to see if there is any explanation for the words it did select.

g References to the legislative history may b e appropriate even w here a statute's meaning appears plain on its face, 

particularly w here apparently contradictory directives are given by more than one applicable provision o f law. See

Watt v. Alaska, 451 U .S . 259 (1981). See also Train v. Colorado Public Interest Research Group, Inc., 426 U S 1,

10 (1976)

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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 transferred 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 compensation” 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

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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 Secretary’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 connection 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 

whole,” 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. at267(“ 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 There is no indication in the legislative h istory o f the 1975 am endm ents that Congress considered the situation 

involving lands paid for not w ith public funds but with funds generated from assessm ents o f a particular group of 

citizens. S tatem ents in the legislative history suggest that it did not. See, e.g , House R eport at 2 (“ the land m 

question w ill rem ain in Federal hands'1). This does not, howeveT, cast doubt on our conclusion with respect to the 

purpose o f the "w ith o u t com pensation" language in (a)(2). Indeed, it reinforces it One may well ask whether 

C ongress, if asked, w ould have thought it fair o r appropriate that land in effect paid for by one group of citizens, here 

B onneville's custom ers, could be transferred to a federal agency without com pensation

11 It is a well settled principle o f law that a lu m p sum appropriated for an agency's genera] program s and activities 

m ay be used by the agency for any otherwise authorized purpose. See, e.g , In re Newport News Shipbuilding and

D rydockCo., 55 C om p G en. 812, 819-21 (1976). 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 reprogram funds am ong authorized program s under a lum p sum 

appropriation is lim ited only if a specific statutory directive requires the expenditure or distribution of funds in a 

p articular m anner). T hus In ten o r is not legally obliged to seek a new appropriation to reim burse Bonneville for the 

land, as long as there are funds available from its unrestricted general appropriation which could be allocated or 

reprogram m ed for this purpose.

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Interior or Bonneville could seek an additional supplemental appropriation for 

that specific purpose.

T h e o d o r e B . O l s o n

Assistant Attorney General

Office c f Legal Counsel

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