Acquisition of Land by the Department of the Air Force

The requirement in 40 U .S.C . § 255 that the Attorney General review and approve the sufficiency of 

title to land prior to its acquisition by the government applies to all federal land acquisitions, except 

those specifically exempted from it, including the acquisition of land proposed by the Air Force in 

this case. The statutory provision which allows the Air Force to begin construction on land before 

its title is approved does not create an exception to the generally applicable requirement in 40 

U .S.C . § 255, but is merely intended to allow military construction projects to get underway 

pending a determination on the validity of title.

Under regulations promulgated by the Attorney General, which are binding on agencies to w hich he 

had delegated his authority to approve title, less than fee simple title may not be approved for lands 

on which the United States is placing permanent improvements, except where Congress has 

authorized a lesser estate. Even where Congress arguably authorized acquisition of a lesser estate, 

the Attorney General and his delegees are still responsible for determining whether the title to be 

acquired in a particular case is sufficient for the intended government purposes.

The title proposed to be acquired from the Colorado State Board of Land Commissioners in this 

case— a right-of-way subject to a reversion interest— is not sufficient under Colorado law to 

protect the interests of the federal government where the Air Force intends to build a multimillion 

dollar military complex on the land.

June 28, 1982

MEMORANDUM FOR THE ASSISTANT ATTORNEY GENERAL, 

LAND AND NATURAL RESOURCES DIVISION

This responds to your request for advice on several issues arising out of the 

Department of the Air Force’s proposed acquisition of land in Colorado for 

construction of a Consolidated Space Operations Center (CSOC). You have asked 

whether the Attorney General must review the sufficiency of the title to the land 

in Colorado on which the CSOC will be based. We agree with your determination 

that the Attorney General must review the sufficiency of the title to the land, and 

would further advise that the title is not sufficient for the purposes for which it is 

being acquired.

We should state at the outset that the Land and Natural Resources Division has 

been delegated the authority to exercise the Attorney General’s discretion in 

matters of title approval. 28 C.F.R. § 0.66(1981). Our comments concerning the 

exercise of that discretion should not be viewed in any sense as a preemption of 

your duty to make the final decision.

431
I. Background

The CSOC is planned as a center for Air Force activities involving military 

operations in space. The land in question consists of 640 acres in Colorado 

presently owned by the State of Colorado. The Air Force plans to spend 

approximately $150 million constructing the CSOC, as well as additional sums 

over the years on maintenance and expansion. The deed between the state and the 

Air Force, as presently drafted, would give the United States a “right-of-way in 

perpetuity” over the 640 acres.1 The right-of-way would revert to the state if it 

were no longer used for governmental purposes. Draft Agreement, 1 7. Colorado would retain mineral and water rights, and the land would be subject to 

existing easements and rights-of-way. Id., TH 5, 6, 9.

II. Sufficiency off the Title Moist Be Reviewed by

the Attorney Generali or His Designee

Since at least 1841,2 one of the Attorney General’s formal functions has been to 

examine and approve the sufficiency of land titles prior to federal land purchases. 

The relevant statute presently provides:

Unless the Attorney General gives prior written approval of the 

sufficiency of the title to land fo r the purpose fo r which the

p ro p erty is being acquired by the United States, public money 

may not be expended for the purchase of the land or any interest 

therein.

40 U.S.C. § 255 (emphasis added).3 This approval requirement, see, e.g ., 6 Op.

1 The Draft Agreement states:

4. NOW, THEREFORE, THESE PRESENTS WITNESSETH, that the said party of the first part, in 

consideration of the premises, and in the further consideration of the sum of $48,000 lawful money of 

the United States, by the second party to the first party in hand paid, the receipt whereof is hereby 

confessed and acknowledged, has granted and by these presents does grant unto the party of the 

second part, its successors and assigns, a right-of-way in perpetuity for the purpose of constructing, 

reconstructing, operating and maintaining a Consolidated Space Operations Center and for other 

governmental purposes, upon, over, under and across the surface of those certain portions of school 

lands described as follows. All of Section 26, Township 14 South, Range 64 West of the Sixth 

Principal M endian, El Paso County, Colorado. Containing 640.00 acres, more or less.

2 See 5 Stat 468 (1841). See also 39 Op. A tt’y Gen. 73 (1937); 39 Op. A tt'y Gen 56 (1937); 35 Op. Att'y Gen. 

183 (1927), 28 Op Att’y Gen. 463 (1910), 28 Op. Att’yG en. 413 (1910); 10 Op. Att’yG en. 353 (1862); 10 Op 

Att’y Gen. 34 (1861); 9 Op. Att’y Gen 100 (1857). The provision also appears at 33 U S.C. § 733 and 50 U.S.C 

§ 175.

3 Attorney General Cushing outlined the policy reasons for requiring such title approval at some length:

I have acted, in all these references, under the conviction that the tenor of the law requires that ail 

titles which the United States may take by purchase shall be perfect ones. The Government needs the 

land for the purpose of the public buildings to be erected on it, and needs, therefore, to hold it against 

all suit. Damages on a warranty will not suffice to indemnify the Government for the inconveniences 

following ejectment, even if, which would rarely happen, such damages could be recovered. . .

And, in all these respects, the Government buys in order to own for the public service, not to hold 

temporarily as a proprietor buying and selling for the chances of gam. and so taking the risk of any 

defects of title A private person may buy a piece of land of dubious title, and consider that in the 

price Not so in the case of the United States.

In addition to all these considerations, leading to the same conclusion, is another one of 

importance If there be a flaw in the title of a private person, he can defend it on equal terms with any 

adverse claimant, and in due time obtain adjudication of the matter in the courts of justice, with

Continued

432
Att’y Gen. 432 (1854), provides a decisionmaker who, applying uniform rules, 

is responsible for ensuring that the United States’ interests are protected.

In 1970, the Department of Justice proposed that the authority to approve land 

titles be given to the heads of all departments and agencies. 116 Cong. Rec. 

10602 (1970). After study, the House rejected this approach and adopted a 

revised version that retained primary responsibility in the Attorney General.4 See

H.R. Rep. No. 970, 91st Cong., 2d Sess. (1970); S. Rep. No. 1111, 91st Cong., 

2d Sess. (1970). This version became the present law. 40 U.S.C. § 255. The 

Attorney General was given the discretion to delegate the authority, and the 

Attorney General has in fact delegated it to several agencies, including the Corps 

of Engineers.5 The delegation is, however, subject to the Attorney General’s 

general supervision and regulations, which are discussed infra.6

The Air Force has asked the Corps of Engineers to acquire the land in Colorado 

without obtaining the Attorney General’s written approval based upon the belief 

that the title need not be approved by anyone. The Air Force bases its argument 

on language in the statute authorizing acquisition of the CSOC land.

The Secretary of each military department may proceed to establish or develop installations and facilities under this Act. . . . The 

authority to place permanent or temporary improvements on land 

includes authority for surveys, administration, overhead, planning, and supervision incident to construction. That authority

may be exercised before title to the land is approved under section

355 c f the Revised Statutes (40 U .S.C . 255), and even though the

vindication of the title if it be a valid one, or compromise on fair conditions; and so the question ends.

But if there be any flaw in the title of property held by the Government, the most exaggerated 

demands are made as the condition of release; the actual defects of title are magnified by ingenious 

self-interest; the pretensions of the adverse claimant are plausibly brought before Congress, the 

members of which are surprised into erroneous views of the question by expane showings; favorable 

reports of committees are obtained, by local interest or the partiality of friends, in one House or the 

other, and thus, even where the adverse claim is a bad one, enormous expense and trouble will come 

to be devolved on the Government.

8 Op A tt’y Gen. 405, 406-07 (1857).

4 The committee concluded that the Attorney General as the chief law officer of the United States 

should be charged with the primary responsibility for the approval of land titles. While it is clear 

from the executive communication and the testimony produced at the hearings on both bills that this 

authority can be properly exercised by other departments and agencies in many instances, the 

committee felt that there should be a determination of whether an individual department or agency in 

fact had the capability of exercising this authority or, has an actual need for such authority in terms of 

its operation. Accordingly, instead of making the grant of this authority by legislative determination, 

it was felt that the Attorney General would be in a better position to determine whether a delegation of 

the authonty should be made. It was also felt that the Department of Justice would be in a better 

position to supervise the exercise of the authority if it was clear that the primary responsibility was 

lodged in the Attorney General.

116 Cong. Rec. 10602 (1970).

5 See Letter for Secretary of the Army Resor from Acting Assistant Attorney General Kiechel, Oct 14, 1970.

6 The Attorney General may delegate his responsibility under this section to other departments and 

agencies, subject to his general supervision and in accordance with regulations promulgated by him.

Any Federal department or agency which has been delegated the responsibility to approve land 

titles under this section may request the Attorney General to render his opinion as to the validity'of 

the title to any real property or interest therein, or may request the advice or assistance of the 

Attorney General in connection with determinations as to the sufficiency of titles.

40 U.S.C. § 255. See 28 C FR § 0 66 (1981) (Land and Natural Resources Division to pass on land titles and 

exercise delegation authonty)

433
land is held temporarily. The authority to acquire real estate or 

lands includes authority to make surveys and to acquire land and 

interests in land (including temporary use), by gift, purchase, 

exchange of Government-owned land, or otherwise.

Military Construction Authorization Act, § 701, Pub. L. No. 97-99, 95 Stat. 

1359, 1375 (1981) (emphasis added). We concur with your judgment that this 

language permits the Corps, on behalf of the Air Force, to begin work on the land 

before title has been approved under 40 U.S.C. § 255. We also agree that § 701 

does not remove the requirement that the Attorney General or his designee 

approve the sufficiency of the title.

The language italicized above is not a complete exemption from 40 U.S.C. 

§ 255— it is a descendant of statutes, dating back at least to World War II, that are 

designed to give the military the flexibility to start work on a needed project 

before every last step in the process of acquiring title has been formally approved. 

There are only a few statutes that grant a complete exemption to 40 U.S.C. 

§ 255,7 and their existence and language make clear that Congress knows how to 

draft a statute providing a complete exemption.8 The Air Force’s statute is one of 

a similarly small number of statutes, generally related to military operations, 

which, in the interests of efficiency grant a limited exception to the requirement 

that the review be done before work can be started.9 “In the absence of emergencies, the Congress has shown extreme reluctance, in the matter of land acquisitions, to dispense with the opinion of the Attorney General upon the validity of 

the title.” 39 Op. Att’y Gen. 73, 79-80 (1937).

Because of the Air Force’s concern with this issue, we have carefully reviewed 

the material which it forwarded to you outlining the legislative history of similar 

provisions found in earlier military construction statutes.10 The emphasis on 

ensuring that urgent military projects can be started as soon as possible is a 

repeated theme in that material, but there is nothing in it that casts doubt on the 

continued applicability of 40 U.S.C. § 255.

Section [701] . . . in connection with the construction for the 

special-weapons project, authorizes the commencement of construction prior to approval of title to such lands by the Attorney 

General as normally required by [40 U.S.C. § 255], These exemptions . . . would where time factors dictated immediate action, expedite the acquisition of land and commencement of 

construction.

S. Rep. No. 923, 81st Cong., 1st Sess. 21-22 (1949). The same concerns were 

echoed a few years later.

7 See 48 U.S.C. § 1409b, 42 U.S.C § 1502(b); 36 U.S.C. § 138b; 22 U.S.C § 1471(3) (Supp III 1979); 16 

U .S.C § 571c; 16 U.S.C § 343b, 7 U S.C . § 2250a.

* S e e,e .g , 48 U S.C. § 1409b (“Projects authorized by this subchapter may be constructed without regard to the 

provisions of Section 255 of title 40” ).

9 See 50 U.S.C. App § 2281(h); 50 U S.C . App. § 460(b)(9); 42 U.S C. § 2224, 42 U.S.C. § 1594a(d); 40 

U.S.C. § 3560(1).

10 Letter from Assistant General Counsel Reynolds, Department of the Air Force to Deputy Assistant Attorney 

General Liotta, Land and Natural Resources Division, Mar. 3, 1982

434
Section [701] also softens the effect c f [40 U .S.C . § 255] when 

military requirements call for immediate construction. It does not 

avoid the requirement of the Revised Statutes that title to land be 

approved by the Attorney General, but it does avoid the necessity 

of condemning land and filing a declaration of taking, which of 

itself may be time-consuming, in every case in which construction is required on an urgent basis.

S. Rep. No. 1707, 83d Cong., 2d Sess. 13-14 (1954) (emphasis added)." Given 

this legislative history, the traditional importance assigned to title approval under 

40 U.S.C. § 255, and the fact that exceptions to the statute are clearly drafted, 

see n.8, supra, we cannot agree with the Air Force that § 701 completely 

exempts its projects from any review under 40 U.S.C. § 255.12 Rather, we concur 

in your judgment that § 701 permits the military to begin construction on the land 

prior to title approval— but still subjects it to the Attorney General’s final 

determination as to the sufficiency of the title.13

III. The Effect of the Attorney General’s Regulations

The Attorney General has delegated to the Corps of Engineers his authority to 

approve land titles.14 This authority is “ subject to his general supervision and in 

accordance with regulations promulgated by him.” 40 U.S.C. § 255. The 

Attorney General has promulgated such regulations, which state clearly which 

land titles may be approved. Regulations cfth e Attorney G eneral Prom ulgated in

Accordance With the Provisions o f Public Law 91-393, Oct. 2, 1970 (Regulations). These Regulations state, in relevant part:

5. C h a r a c t e r o f T it l e W h ic h M ay B e A p p r o v e d

(a) The agency must determine that the proposed interest in 

property is in accord with the authorizing legislation and that such 

interest is sufficient for the purposes for which the property is 

being acquired— also that the purchase price is commensurate 

with such interest.

(b) Frequently vendors desire to convey lands to the Govern11 See also Military and Naval Construction. H earingsonH R. 7130andH R 8240 Before the House Comm, on

Armed Services, 85th Cong., 1st Sess 2249 (1957) The Chairman of the Committee. Rep Vinson, questioning 

whether a 99-year lease for a base had ever been approved, said, “ Of course, the policy of the committee and the 

policy of the Congress has been not to make any permanent installations on land unless the fee is in the 

Government ”

12 The GAO has also noted that the Attorney General's approval is necessary See GAO Final Report on CSOC 

Acquisition, Ch 3, at 12 (“the Air Force must still obtain approval by the U S. Attorney General before funds can be 

spent to acquire the right-of-way to use Colorado lands” ) See also 47 Comp Gen 61, 64 (1967).

13 If the Attorney General does find the title insufficient, and negotiations are inadequate tb acquire a better title, 

the government’s interests can still be protected by its ultimate authonty to have the property condemned and taken 

for a governmental purpose. See, e.g., UnitedStates v South Dakota, 212 F.2d l4(8thC ir 1954) (Rapid City Air 

Force Base) Of course, the government must have sufficient money appropriated to cover the cost of just 

compensation

14 See n.5, supra

435
ment by deeds which contain provisions for the reversion of the 

title when the property ceases to be used for a specified purpose.

Also there may be restrictive covenants or agreements in conveyances to prior owners under which the title might revert to the 

grantors in such deeds upon the use of the property for an 

unauthorized purpose or for other reasons. When perm anent type

im provem ents or improvements c f substantial value are to be

erected on lands, a defeasible title to such lands is not acceptable

an d m ust not be approved, unless the estate is clearly authorized

by the C ongress.

(c) Other covenants and conditions in the deeds to the United 

States or in prior deeds may limit the use of the property in a 

manner which may prevent the sale and disposition of the property under laws relating to the disposition of surplus property so as 

to prevent the recovery of a substantial portion of the Government’s investment in the property. Titles are not acceptable which 

are subject to such covenants and conditions in the absence of 

clear authorizing legislation.

:j: ;fe ifc ♦ %

(f) A defeasible fee title to land may be acquired by purchase or 

donation when no permanent improvements are to be created 

thereon, provided that the statute authorizing the acquisition in 

question does not preclude acquisition of title to the interest which 

the agency intends to acquire, the interest intended to be acquired 

is sufficient to permit the use of the land contemplated, and the 

consideration for the land has been determined with reference to 

the value of the limited interest that is acquired. In the event it is

decided at som e future tim e to erect perm anent improvements on

such land, the provision fo r defeasance must be eliminated.

Exceptions to the foregoing restrictions and requirements may be

m ade only by the Attorney G eneral, in individual instances when

warranted in the interests c f the U nited S tates.15

Regulations, 5(a)-(c), (f) (emphasis added).

Thus, unless the estate is “clearly authorized by the Congress,” less than fee 

simple titles for lands on which the United States is placing permanent improvements may not be approved by the Corps of Engineers.

The Air Force argues that the estate—a right-of-way subject to a reversion 

interest— has been “clearly authorized” by § 701 of the Military Construction 

Authorization Act, supra. Section 701 permits the authority to place permanent 

improvements on land to “be exercised before title to the land is approved under 

[40 U.S.C. § 255], and even though the land is held temporarily.”

15 This last sentence was added in J974

436
The Air Force states that it forwarded “ DD Forms 1391” to its oversight 

committees from 1969 to 1977, and that these forms contained lines indicating 

that some of the land being used for air bases was under long lease. Letter from 

Assistant General Counsel Reynolds, Department of the Air Force, to Deputy 

Assistant Attorney General Liotta, Land and Natural Resources Division, March 

3, 1982. The Air Force therefore concludes that, since the forms were printed in 

the Committee hearings, this is “ powerful proof that the practice of construction 

on land held in other than fee under appropriate circumstances is an approved 

one.” Id. at 2. But see TVA v. Hill, 437 U.S. 153, 191-93 (1978); supra n. 11.

We disagree with the Air Force’s analysis. We believe that the phrase “ even 

though the land is held temporarily,” read in context, permits the Secretary to 

build on land held temporarily—e.g ., through a lease— while the Attorney 

General scrutinizes the title. We have previously stated our belief that statutes 

granting general authority to purchase lands and interests in lands are not enough 

to constitute the clear authorization needed to overcome the Regulations. 

“ [N]othing short of a direct and specific approval by Congress of a particular 

acquisition will suffice whenever substantial improvements are to be made and 

the acquisition of less than fee title is contemplated.” Memorandum for General 

Counsel Coleman, Department of Energy, from Deputy Assistant Attorney 

General Hammond, Office of Legal Counsel, August 28, 1979 at 8 (Energy 

Memorandum) (rejecting servitude interest).16 Section 701 was not meant to 

overrule the Attorney General’s outstanding regulations, regulations that reflect 

an administrative practice dating back to the nineteenth century that insists that 

the government obtain a fee title when making permanent improvements. There 

is nothing in the legislative history of § 701 or its predecessors that indicates 

Congress meant to reject this rule in favor of letting valuable military establishments be placed on any kind of estate that the military happens to obtain. Rather, 

the emphasis is on the need for speed and efficiency in beginning work on 

military projects. The Air Force’s interpretation would encourage the military to 

obtain the cheapest— and hence, often the weakest— land interests available, a 

goal at odds with the Attorney General’s oversight role and Congress’ own 

interest in ensuring that valuable improvements are not placed at risk.17 If a 

temporary interest were sufficient for permanent improvements, there would 

never be a need for the Attorney General to pass on the sufficiency of the title.

The issue need not be resolved, however, because the central issue in this 

dispute is whether the Attorney General is willing to approve the title to this 

land.18 Even if we found that § 701 “ clearly” authorized acquisition of less than

16 The statute in that case authonzed purchase of any possessory right, including easements, leaseholds, and 

mineral rights. Id. at 2

17 We would note that this policy is already reflected in 10 U.S C § 9773(d) which deals with Air Force 

acquisition of land for regular “ air bases and depots.” 10 U.S.C § 9773(a) When the Secretary of the Air Force 

needs land, he may acquire “ title, in fee simple and free of encumbrance.” Id § 9773(d)

18 The Regulations mandate that the Attorney General’s opinion be requested by the agency lo which a delegation 

has been made both when an exception is sought to the fee simple requirement, see Regulations, 5(0, and when the 

land is subject to a reversionary interest Id. 5(g). “ When it is desired to accept the title to lands, subject to any rights 

of reversion, the opinion o f the Attorney General must be requested and full supporting facts containing a reference 

to any authorizing authonty must be submitted for consideration “ (Emphasis added ) See also Regulations, 5(h) 

("Federal departments and agencies must exercise sound legal judgment in determining the validity of titles to lands 

and, in case of doubt of such validity, the Attorney General must be requested to render his title opinion pursuant to 

the above-mentioned Act prior to the payment of the purchase pnce ” )

437
fee interests, which we do not, the next step would still be an examination of 

whether the Attorney General should approve the title. The next section sets forth 

various reasons why we believe the Land and Natural Resources Division, acting 

on behalf of the Attorney General, may wish to disapprove the title proffered for 

the CSOC land.

IV. Tlhe Attorney General’s Broad Duty Under 40 U.S.C. § 255

“ These regulations recognize that Congress may authorize the acquisition of 

any interest in real property . . . no matter how risky, but they also recognize that 

‘it is very seldom that a particular interest is authorized by legislation.’ Regulation 4(a).” Energy Memorandum, at 4. There is nothing in the language of 40 

U .S.C. § 255 which requires that the Attorney General only approve fee simple 

titles when permanent improvements are planned. Nevertheless, the Attorney 

General has chosen to narrow his own discretion by issuing the Regulations 

prescribing limits on the kind of title that may be approved when the government 

wishes to erect permanent improvements. The Regulations bind both the Land 

and Natural Resources Division, which is acting for the Attorney General, and 

the agencies to whom approval authority has been delegated.

When Congress revised 40 U.S.C. § 255 in 1970, it discussed the factors to be 

considered in evaluating whether a title is sufficient for the purpose for which the 

property is being acquired. That evaluation involves more than determining that 

there is no cloud on the title. As the House Report stated,

[Agencies already make] determinations [that] relate to the propriety, timing and scope of acquisition, as well as the development, use and disposition of such properties. Whether the interest

in land, that is the title being acquired, is sufficient fo r the purpose

c f a program or presents unwarranted risks fo r the United States

involves a similar sort of determination under current practices.

H.R. Rep. No. 970, supra, at 5 (emphasis added). See Regulations, 5(a), supra.

In order to provide you with some observations concerning the exercise of your 

discretion regarding whether the proposed title is sufficient for government 

purposes, we have done a brief review of applicable Colorado law. While we are 

by no means experts on Colorado law, our review has raised issues for you to 

consider. We concur with your tentative view that the right-of-way offered by 

Colorado is not sufficient for the Air Force’s purposes for a variety of reasons. 

There are persuasive arguments that a right-of-way subject to a reversion is not 

adequate to protect the interests of the federal government. Moreover, there is a 

risk that the Colorado State Board of Land Commissioners’ transfer of the land 

via a deed to a right-of-way rather than by sale of the fee interest would be beyond 

the scope of its powers under the Colorado Constitution and implementing 

statutes.

The Board has limited authority, deriving its powers from the Colorado 

Constitution, Colo. Const, art. IX, §§ 9, 10,19 and implementing statutes.

19 “ It shall be the duty of the State board of land commissioners to provide for th e . . sale or other disposition of 

all the lands in such manner as will secure the maximum possible amount therefor” Colo. Const, art. IX, § 10.

438
Colorado jurisprudence has long held that, as a creature of limited authority, the 

Board may not act beyond its authority, and that when it does, its actions are null 

and void. For example, the Colorado Supreme Court, nullifying a land sale 

because the Board had not properly advertised the land, has said:

Whatever power the board possesses to sell state lands or any part

thereof is derived from the Constitution, and the manner or 

method to be pursued by it in selling or conveying the same is to 

be in accordance with some legislative act prescribing or regulating the steps to be taken. Hence, when the board attempts to 

dispose of the state lands under its lawful powers, a failure on its

part to substantially com ply with the requirements cf the legislative act concerning such disposition leaves the title unaffected,

and conveys no title in the land to the purchaser. Under such 

circumstances the acts of the board, in executing or delivering any 

deed or other muniment of title to the land, are ultra vires.

Briggs v. People, 121 P. 127, 128-129(Colo. 1912)(en b a n c) (emphasisadded). 

See also D riscoll v. State Bd. cfL an d Com m ’rs, 23 F.2d 63, 64 (8th Cir. 1927), 

cert, denied, 277 U.S. 586 (1928); Evans v. Simpson, 547 P.2d 931, 934 (Colo. 

1976) (en banc); Walpole v. State Bd. cfL a n d Com m ’rs, 163 P. 848, 850, 851 

(Colo. 1917).

The Board’s action may be open to challenge on the grounds that the transaction is a “ sale,” governed by Colo. Rev. Stat. § 36-1-124, rather than the grant 

of a right-of-way, id., § 36-1-136 (1980 Cum. Supp.).20 A right-of-way may be 

granted to the United States “ on any tracts of state land,” id., while the Draft 

Agreement would grant it “ upon, over, under and across the surface” of the land. 

Draft Agreement, 11 4.21 The Colorado Constitution requires that the “ sale or 

other disposition” of state lands must “ secure the maximum possible amount 

therefor.” Colo. Const, art. IX, § 10. Sales and leases are, therefore, publicly 

advertised and auctioned, unlike this transaction. A disappointed land seeker

20 “ The state board of land commissioners. . may grant rights-of-way on any tracts of state land to any public 

agency or instrumentality of the United States . . for any public use or purpose.” (Emphasis added )

21 We are also concerned that the Board does not have the authonty to grant a nght-of-way that conveys such an 

extensive interest. Even the Board’s more general authority is only to grant nghts-of-way “ across or upon” certain 

tracts Colo. Rev Stat. § 36-1-136 (1980 Cum. S u p p ) The GAO’s analysis of this transaction expresses some 

doubts as to its legality but concludes that there is no reaJ problem since the United States can always condemn the 

property

The Air Force and State are evidently treating this transaction as a grant of right-of-way falling under 

the statute rather than as a sale or other disposition falling under the constitutional provision 

Whether this is correct is a question of State law Generally, GAO will not question a State’s 

interpretation of its own law. The Board’s counsel advised us that the Board does not believe the 

constitutional provision applies and therefore that the Board is not required to secure the maximum 

possible amount.

The possibility exists that the legality of the conveyance could be challenged in a lawsuit While 

the possibility of litigation cannot be foreclosed, it is in our judgment not likely. Moreover, as 

mentioned earlier, the United States may condemn without delay whatever interest in land it needs, 

should any doubt later anse as to the legality of the conveyance by the State. With that option 

available, and given the Board's view that it has legal authonty to convey the nght-of-way, we find no 

legal reason for the Air Force not to go ahead with the acquisition as planned 

GAO Op No B-205335, at 3, reprinted as Appendix IV to GAO Final Report on CSOC Acquisition Condemnation may provide a remedy when the title proves insufficient, but it does not answer the question of whether a 

title is in fact sufficient under 40 U S C § 255

439
might argue that, no matter how the Board denominates the transaction, it is 

actually a sale, which must be advertised to produce the maximum return, Colo. 

Rev. Stat. § 36-1-124, oralease, id. § 3 6 -1 -1 18(l)(a), which can be for a term 

of no more than ten years.22 The land is presently being leased to a private user for 

grazing purposes,23 and the lessee’s interests are being conveyed to the United 

States for $1,950.24

Our second concern is that a right-of-way would appear to be insufficient for 

the Air Force’s purpose. The section authorizing the Board to grant rights-of-way 

“ shall not be construed to grant authority to said board to convey title to any such 

land by a grant of right-of-way.” Id. § 36-1-136 (1980 Cum. Supp.). Under - 

Colorado law, therefore, there is no “ title” conveyed to the United States that the 

Attorney General can examine for sufficiency.

Even if we assume, however, that the meaning of “ title” in40U .S.C. § 255 is 

broader than the “ title” under Colorado law, so that there is a “ title” to the rightof-way that the Attorney General can examine, that “ title” would seem to be 

entirely too precarious for the Air Force’s purposes. First, rights-of-way and 

easements belonging to the United States may be condemned in state court upon 

the application of any corporation authorized under Colorado law to condemn 

public lands. Colo. Rev. Stat. § 38-3-101.25 This would expose the United 

States to the constant threat of new rights-of-way circumscribing the Air Force’s 

use of parts of the tract as corporate pipelines, telephone wires and access roads 

are erected, and to the need either to pay the corporations to choose some other 

route, engage in litigation to forestall the condemnations, or, eventually, to 

condemn the tract itself and pay the state for the taking.26

Second, all Colorado state institutions, departments, and agencies, id.

§ 24—82-201, as well as the Board, can grant easements or rights-of-way over

22 The Board hears claims on lands, Colo Rev Stat. § 36-1-131 (Cum. Supp. 1980), but its decisions may be 

challenged by any interested party. See, e g.. Wilson v Collins, 165 P2d 663 (Colo. 1946) (en banc) (taxpayers 

could maintain mandamus action to force Board to collect rents owed on State land); People ex rel Stonebraker v. 

Wood, 10 P 2d 331 (Colo 1932) The uncertainty inherent in state land law decisions is another reason that the 

Attorney General has always insisted on an irreproachable title to land

But, if the question presented have not been so adjudged in the Slate, if it be a new point of 

construction presented by the statutes o f a State,—the Attorney General would take upon himself 

burdens of responsibility, not justified by any emergency in the mere matter of expediency of 

selection between this or that site of a court house or posl office, or of paying more or less money for a 

site, if he should presume to warrant to the Government what will be the decision of the courts of the 

particular Slate on the construction of their own statutes, especially where the United States are 

concerned.

8 Op. Att’y Gen. 405, 408 (1857).

23 See Quitclaim Deed attached to Draft Agreement

24 One of the potential issues for litigation is the extent of the present lessee’s nghts, specifically reserved to him, 

under the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970,42 U.S.C § 4601 et

seq. Quitclaim Deed, at 1.

“ The list of corporations possessing the power of condemnation is fairly broad. See Colo Rev. Stat. 

§§ 38-2-101-105.

26 In a recent decision, the Colorado Court o f Appeals upheld the Board’s grant of a nght-of-way for a railroad 

over mining lands leased from the State, despite the lessee’s objections. Utah Int'l, Inc. v Bd c f Land Comm'rs,

579 P.2d 96 (Colo 1978). The Court held that the lessee was not adversely affected because it had no immediate 

plans to mine the coal under the proposed nght-of-way. If the railroad, once built, did interfere with the mining, the 

C ourt indicated that the remedy was a damage action, 579 P.2d at 97, not removal of the railroad Unless the Air 

Force plans to build on all 640 acres immediately, pnvate parties could similarly narrow the government’s ability to 

use the entire tract. See also Bd c f Land C om m'rs v. District Court, 551 P2d 700 (Colo. 1976) {en banc)

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land owned by the state. We are not aware of anything in the Draft Agreement that 

would preclude a state agency or the Board from granting another right-of-way 

over part of the CSOC tract—which would still be owned by the state.

Third, the Attorney General has traditionally not approved titles to property 

where there is a reversionary right.

Acceptance of such a title could result in the loss of extensive 

investments made by the United States in improvements on the 

property. There is no assurance that the Congress will continue to 

appropriate funds for an intended use, thereby causing the title to 

the lands and the improvements to revert to the [State]. Furthermore, provisions allowing the Government to remove the improvements in the event of such reversion are usually meaningless 

since the cost of removing permanent expensive buildings is 

generally greatly in excess of any sale of the salvage from the 

building.

Memorandum for Director Zwick, Bureau of the Budget, from Deputy Attorney 

General Christopher, Sept. 10, 1968, at 1. The Draft Agreement provides for 

reversion whenever the land is not being used for a governmental purpose and 

does not even include a right to salvage the permanent improvements. Rather, the 

United States could either sell the improvements or abandon them—in which 

case they revert to the state. Draft Agreement, 11 13.27

The lack of any “title” under state law and the precarious nature of rights-ofway under Colorado law are the very kinds of flaws that an Attorney General’s 

review are meant to detect. 8 Op. Att’y Gen. 405, 407 (1857).28 The Attorney 

General’s duty is to protect the federal government from the harassment and 

possible financial loss that could result from a less than sufficient title. The 

proffered “ title” to the right-of-way seems to be seriously insufficient for the site 

of a multimillion dollar military complex. We are aware of nothing which would 

prevent the Air Force from buying the land,29 and we recommend that course of 

action.

V. Conclusion

We believe that the Land and Natural Resources Division has correctly 

determined that the Attorney General must examine the title for the right-of-way

27 The right-of-way is also made subject to outstanding rights-of-way and easements Id. 1i 6. The Board has 

assured the Air Force that none exists, but if any should come to light, their continued existence would raise the same 

problems outlined above

28 A policy implication that may need further consideration is that the Draft Agreement reserves both mineral and 

water rights. Id. H1i 5. 9 The United States cannot even explore for water without the state’s permission Id H 9 

Water nghts which may be sufficient now for the Air Force’s purposes may well be insufficient in a decade or so 

when the CSOC is a center of activity with personnel and their families living on the tract Colorado is not a waternch state, and development of the CSOC may be severely curtailed if Colorado refuses to permit exploration, while 

any water flowing through the tract may be appropriated by others in the interim In the same way, it would seem 

wiser to acquire now the title to subsurface mineral interests, such as geothermal resources and oil, rather than wait 

and pay an almost assuredly higher price to the state in a few years Moreover, their purchase would place control of 

exploration and exploitation in the federal government, which could ensure that they did not conflict with the 

CSOC’s mission.

29 See Colo Rev. Stat § 3 -1 -1 0 1 .

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and that, acting on behalf of the Attorney General, it should advise the Corps of 

Engineers that the interest conveyed by the Draft Agreement to a right-of-way in 

the tract is not sufficient for the purpose for which the property is being acquired.

R o b e r t B . S h a n k s

D eputy A ssistant Attorney General

Office c f L egal Counsel

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