b'(Slip Opinion)\n\nPaying for Removing Structures at the Treasure\nLake Civilian Conservation Center\nThe interdepartmental-waiver doctrine, under which one agency generally may not pay to\nrestore or repair property in the custody of another agency, prevents the Department of\nLabor from paying to remove structures at a defunct Job Corps site that is located\nwithin a wildlife refuge in the custody of the Department of Interior. No statutory authority has displaced that doctrine\xe2\x80\x99s applicability by authorizing the Department of\nLabor to pay for removing the structures.\nFebruary 22, 2019\n\nMEMORANDUM OPINION FOR THE SOLICITOR OF LABOR\nYour office has asked us to resolve a dispute between the Department\nof Labor (\xe2\x80\x9cLabor\xe2\x80\x9d) and the Department of the Interior (\xe2\x80\x9cInterior\xe2\x80\x9d) about\nwhether Labor may use its Job Corps appropriation to pay for removing\nseveral structures at the defunct Treasure Lake Civilian Conservation\nCenter (\xe2\x80\x9cTreasure Lake\xe2\x80\x9d) in the Wichita Mountains Wildlife Refuge in\nIndiahoma, Oklahoma. 1 Under the interdepartmental-waiver doctrine, one\nagency generally may not pay to restore or repair property in the custody\nof another agency. As different arms of a single government, federal\nagencies typically cannot bring claims for repairs or restorations against\none another; instead, the interdepartmental-waiver doctrine provides the\nlong-standing default rule for allocating such costs. Because Interior has\ncustody of the land at Treasure Lake, Labor contends that the interde1 In considering this question, we requested and received the views of the Department\nof Labor, the Department of Interior, and the Office of Management and Budget. See\nLetter for Karl R. Thompson, Principal Deputy Assistant Attorney General, Office of\nLegal Counsel, from M. Patricia Smith, Solicitor of Labor (Dec. 21, 2016) (\xe2\x80\x9cLabor\nLetter\xe2\x80\x9d); Letter for Curtis E. Gannon, Acting Assistant Attorney General, Office of Legal\nCounsel, from Daniel H. Jorjani, Principal Deputy Solicitor, Department of Interior, Re:\nRemoval of Treasure Lake Job Corps Facility Structures (June 30, 2017) (\xe2\x80\x9cInterior\nLetter\xe2\x80\x9d); Letter for Curtis E. Gannon, Acting Assistant Attorney General, Office of Legal\nCounsel, from Heather V. Walsh, Acting General Counsel, Office of Management and\nBudget (July 7, 2017); Letter for Curtis E. Gannon, Acting Assistant Attorney General,\nOffice of Legal Counsel, from Nicholas C. Geale, Acting Solicitor of Labor (Aug. 1,\n2017) (\xe2\x80\x9cLabor Reply Letter\xe2\x80\x9d); E-mail for Daniel L. Koffsky, Deputy Assistant Attorney\nGeneral, Office of Legal Counsel, from Heather V. Walsh, Acting General Counsel,\nOffice of Management and Budget (Aug. 30, 2017, 4:54 PM).\n\n1\n\n\x0c43 Op. O.L.C. __ (Feb. 22, 2019)\n\npartmental-waiver doctrine requires Interior to restore the property. Interior argues that the doctrine should not apply to intentional alterations of\nproperty and that Labor should rely upon its own appropriations to perform the restoration. We conclude that the interdepartmental-waiver\ndoctrine does apply here, and that Congress has not otherwise authorized\nLabor to pay for removing the structures on land in Interior\xe2\x80\x99s custody.\nI.\nThe Wichita Mountains Wildlife Refuge is one of the Nation\xe2\x80\x99s oldest\nconservation areas, first established in 1905 by President Theodore Roosevelt as a reserve for game animals and birds. See Interior Letter at 2;\nPub. L. No. 58-24, 33 Stat. 614 (1905) (codified as amended at 16 U.S.C.\n\xc2\xa7 684); Proclamation of June 2, 1905, 34 Stat. 3062; Pub. L. No. 74-637,\ntit. I, 49 Stat. 1421, 1446 (1936). Interior administers the wildlife refuge\nwith the aim of long-term conservation. See Interior Letter at 2; see generally 16 U.S.C. \xc2\xa7 668dd.\nIn 1965, the Wichita Mountains Wildlife Refuge also became home to\nTreasure Lake, a center run under the auspices of the Job Corps program.\nSee Labor Letter at 1; Economic Opportunity Act of 1964, Pub. L. No. 88452, \xc2\xa7 102, 78 Stat. 508, 508 (establishing Job Corps). Since 1998, Labor\nhas overseen the Job Corps program, which is a primarily residential\nprogram that offers education and vocational training to young men and\nwomen. See 29 U.S.C. \xc2\xa7\xc2\xa7 3191, 3194(a), 3197(c); Workforce Investment\nAct of 1998, Pub. L. No. 105-220, \xc2\xa7 143, 112 Stat. 936, 1007. The program has more than 100 centers throughout the country. See Updated\nMethodology for Selecting a Job Corps Center for Closure and Center\nProposed for Closure, 82 Fed. Reg. 44,842, 44,843 (Sept. 26, 2017). Most\nJob Corps centers are operated by businesses, nonprofit organizations, or\ntribes that have procurement contracts with Labor. Id. But those, like\nTreasure Lake, that are denominated \xe2\x80\x9cCivilian Conservation Centers\xe2\x80\x9d are\noperated under interagency agreements between Labor and other federal\nagencies. See 29 U.S.C. \xc2\xa7 3197(d)(1); 20 C.F.R. \xc2\xa7 670.310(e).\nUnder a series of such agreements, Labor paid for the buildings, structures, and operations at the Treasure Lake Job Corps site. See Labor\nLetter at 2; Interagency Agreement Between the United States Department\n2\n\n\x0cPaying for Removing Structures at the Treasure Lake Civilian Conservation Center\n\nof Labor and the United States Department of Agriculture Governing the\nFunding, Establishment, and Operation of Job Corps Civilian Conservation Centers at 2\xe2\x80\x933 (March 10, 2008) (\xe2\x80\x9cLabor-Agriculture Agreement\xe2\x80\x9d).\nAppropriations for the Job Corps provide Labor with funds for, among\nother things, the \xe2\x80\x9cconstruction, alteration, and repairs of buildings and\nother facilities\xe2\x80\x9d used in the Job Corps program. Department of Defense\nand Labor, Health and Human Services, and Education Appropriations\nAct, 2019 and Continuing Appropriations Act, 2019, Pub. L. No. 115-245,\ndiv. B, tit. I, 2018 U.S.C.C.A.N. (132 Stat.) 2981, 3050 (\xe2\x80\x9cLabor FY 2019\nAppropriations\xe2\x80\x9d); see also Consolidated Appropriations Act, 2017, Pub.\nL. No. 115-31, div. H, tit. I, 131 Stat. 135, 504 (similar provision for prior\nyear). Meanwhile, the Fish and Wildlife Service (part of Interior) and the\nForest Service (part of the Department of Agriculture) at various points\nconducted the day-to-day operations at Treasure Lake. See Labor Letter\nat 2; Labor-Agriculture Agreement at 1\xe2\x80\x934.\nDuring its time as a Civilian Conservation Center, Treasure Lake\nevolved into a \xe2\x80\x9c26-building facility,\xe2\x80\x9d with \xe2\x80\x9ca heliport, fuel station, motor\npool, carpentry shop, brick masonry shop, library, cafeteria, gymnasium,\ndormitories and numerous other features.\xe2\x80\x9d Interior Letter at 6. In 2014,\nhowever, Labor selected Treasure Lake for closure based on performancerelated statutory criteria. See Final Methodology for Selecting a Job Corps\nCenter for Closure and Center Selected for Closure: Comments Request,\n79 Fed. Reg. 51,198 (Aug. 27, 2014) (announcing initial closure decision); Final Notice of Job Corps Center for Closure, 79 Fed. Reg. 61,099\n(Oct. 9, 2014) (announcing final decision). Treasure Lake closed in June\n2015, and Interior regained complete custody of the land in December\n2015. See Labor Letter at 3.\nInterior now wants Labor to pay for the removal of the Treasure Lake\nstructures because Interior views them as \xe2\x80\x9cinconsisten[t] with the [Fish\nand Wildlife Service\xe2\x80\x99s] statutory mandate\xe2\x80\x9d to manage the Wichita Mountains Wildlife Refuge. Interior Letter at 6. Specifically, Interior suggests\nthat the structures may have lead-based paint and asbestos that could\ncontaminate the refuge and that the structures \xe2\x80\x9ccreate a negative visual\nimpact to visitors at nearby scenic areas.\xe2\x80\x9d Id. at 7. The costs of removal\nmay run between $7 million and $9.5 million. See id. at 2.\n\n3\n\n\x0c43 Op. O.L.C. __ (Feb. 22, 2019)\n\nII.\nLabor identifies two primary reasons why it cannot pay to remove the\nstructures at Treasure Lake: (1) it contends that the interdepartmentalwaiver doctrine requires Interior, as the agency with custody of the land,\nto bear the costs of restoring land that was temporarily used by another\nagency; and (2) alternatively, it contends that specific appropriations\nauthorize Interior to pay to remove buildings on lands within national\nwildlife refuges, implicitly preventing Labor from using a more-general\nappropriation to do the same thing. See Labor Letter at 1\xe2\x80\x932.\nInterior disagrees that the interdepartmental-waiver doctrine would bar\nLabor from paying for remediation at Treasure Lake because, in its view,\nthat doctrine should be limited to circumstances where one agency unintentionally damages another agency\xe2\x80\x99s property\xe2\x80\x94excluding those where,\nas here, one agency intentionally alters real property. Interior invokes\nanother appropriations principle, the necessary-expense doctrine\xe2\x80\x94which\npermits an agency to make those expenditures reasonably necessary to\ncarry out the objects of an appropriation\xe2\x80\x94and contends that Labor may\nuse its Job Corps appropriation to pay for removing the structures. See\nInterior Letter at 5\xe2\x80\x9311; see also 1 General Accounting Office, Principles\nof Federal Appropriations Law 4-20 (3d ed. 2004) (\xe2\x80\x9cFederal Appropriations Law\xe2\x80\x9d). Interior concludes that the structures\xe2\x80\x99 removal \xe2\x80\x9cis more\ncentral to\xe2\x80\x9d Labor\xe2\x80\x99s Job Corps appropriation than it is to Interior\xe2\x80\x99s construction appropriation. Interior Letter at 9.\nWe conclude that the interdepartmental-waiver doctrine prevents Labor from paying to remove the structures at Treasure Lake. The doctrine\nembodies a long-standing principle of appropriations law: The agency\nwith custody of property bears the costs of any repairs arising from\nanother agency\xe2\x80\x99s temporary use of that property. While that default rule\nmay be overcome by a statute\xe2\x80\x94or by an interagency agreement authorized by statute\xe2\x80\x94no statute or agreement applies to overcome the doctrine\nhere. Nor does the necessary-expense doctrine suggest a different result.\nAlthough the necessary-expense doctrine may expand the availability of\nagency appropriations beyond what Congress has expressly specified, it\ndoes not implicitly authorize interdepartmental reimbursements.\n\n4\n\n\x0cPaying for Removing Structures at the Treasure Lake Civilian Conservation Center\n\nA.\nThe interdepartmental-waiver doctrine is a long-established piece of\nfederal appropriations law. The doctrine prescribes that, absent legislation\nproviding otherwise, one agency may not expend federal funds to restore\nanother agency\xe2\x80\x99s property. See, e.g., 2 Federal Appropriations Law at\n6-197 (3d ed. 2006) (\xe2\x80\x9cWhat happens when one federal agency damages\nthe property of another agency? Under the so-called \xe2\x80\x98interdepartmental\nwaiver doctrine,\xe2\x80\x99 the general rule is that funds available to the agency\ncausing the damage may not be used to pay claims for damages by the\nagency whose property suffered the damage.\xe2\x80\x9d); Payment by National\nWeather Service to Bonneville Power Administration for Use of Microwave Radio Station Site, 71 Comp. Gen. 1, 2\xe2\x80\x933 (1991) (\xe2\x80\x9cNational Weather Service\xe2\x80\x9d) (explaining that the doctrine ordinarily \xe2\x80\x9cprohibits a federal\nagency from paying for the use or repair of real property controlled by\nanother federal agency\xe2\x80\x9d).\nThe interdepartmental-waiver doctrine derives in significant part from\nthe idea that government property does not belong to any single agency,\nbut to the federal government as a whole. See 2 Federal Appropriations\nLaw at 6-197. Because the government cannot bring a damages claim\nagainst itself, and because agencies are not free to redistribute the funds\nthat Congress has appropriated, default rules are needed for allocating\ncertain costs between agencies. The interdepartmental-waiver doctrine is\nthe rule that generally governs the repair and restoration of loaned property. It provides that the agency with custody over the property should bear\nthe costs of any losses arising from its use by other agencies. See National\nWeather Service, 71 Comp. Gen. at 2; Reimbursement by Navy to Federal\nAviation Administration for Damage to Instrument Landing System, 65\nComp. Gen. 464, 466, 468 (1986); Departments and Establishments\xe2\x80\x94\nDamage Claims\xe2\x80\x94Reimbursement Prohibition, 41 Comp. Gen. 235, 237\n(1961); Public Property\xe2\x80\x94Loans Between Departments\xe2\x80\x94Repairs and\nReplacements, 10 Comp. Gen. 288, 289 (1930) (\xe2\x80\x9cPublic Property\xe2\x80\x9d).\nAbsent a contrary statute, the agency with custody of the property may\nnot even charge rent to the agency using the property. See National\nWeather Service, 71 Comp. Gen. at 2 (citing prior Comptroller General\ndecisions); Leases\xe2\x80\x94Rent\xe2\x80\x94Property Held by the Reconstruction Finance\nCorporation, 20 Comp. Gen. 699, 701 (1941) (\xe2\x80\x9c[T]he general rule is that\n5\n\n\x0c43 Op. O.L.C. __ (Feb. 22, 2019)\n\npayment of rent is unauthorized by one Government department or agency\nfor premises under the administrative control of another department or\nagency.\xe2\x80\x9d). Some Comptroller General opinions have also reasoned that\nthe agency with ultimate custody of the property should pay for repairs\nbecause those repairs are for its \xe2\x80\x9cfuture use and benefit.\xe2\x80\x9d Public Property,\n10 Comp. Gen. at 289; see also, e.g., Use of One Agency\xe2\x80\x99s Real Property\nby Another\xe2\x80\x94Liability for Damage, 59 Comp. Gen. 93, 95 (1979) (\xe2\x80\x9cUse of\nOne Agency\xe2\x80\x99s Real Property\xe2\x80\x9d).\nThe doctrine predates the creation of the office of Comptroller General\nand was first articulated by the Executive Branch in 1899, when the\nComptroller of the Treasury concluded that, after a vessel of the U.S.\nNavy was damaged by a ship of the Revenue-Cutter Service, the costs of\nrepairs had to be paid from the Navy\xe2\x80\x99s appropriations, reasoning that \xe2\x80\x9cthe\ninjured vessel is a vessel of the Navy\xe2\x80\x9d and \xe2\x80\x9cthe appropriation for expenses of the Revenue-Cutter Service, which is applicable to repairs of revenue vessels only, is not applicable to repairs of vessels of the Navy .\xe2\x80\x9d\nDamage to a Vessel of the Navy by Collision with a Revenue-Cutter\nVessel, 6 Comp. Dec. 74, 74\xe2\x80\x9375 (1899) (\xe2\x80\x9cDamage to a Vessel \xe2\x80\x9d); see\nAttorney General\xe2\x80\x94Opinions\xe2\x80\x94Comptroller of the Treasury, 26 Op. Att\xe2\x80\x99y\nGen. 609, 610 (1908) (explaining that the Comptroller of the Treasury\xe2\x80\x99s\nopinions were, by statute, generally binding within the Executive Branch).\nBy 1945, the Comptroller General could state that it had \xe2\x80\x9cbeen held\nrepeatedly that [a department\xe2\x80\x99s or agency\xe2\x80\x99s] funds are not available for\npayment of claims for damages to the property of other Government\ndepartments or agencies.\xe2\x80\x9d Government Corporation Vessels Damaged by\nNaval Vessels\xe2\x80\x94Appropriation Availability for Payment of Damage\nClaims, 25 Comp. Gen. 49, 54 (1945). And in 1952, the Comptroller\nGeneral characterized the doctrine as \xe2\x80\x9cso firmly embedded in the substantive law of the United States as to require specific statutory authority to\novercome the rule.\xe2\x80\x9d National Forest Lands\xe2\x80\x94Interagency Use\xe2\x80\x94Liability\nfor Damages, Restoration, Etc., 32 Comp. Gen. 179, 180 (1952) (\xe2\x80\x9cNational Forest Lands\xe2\x80\x9d).2\n\nAs we have said before, \xe2\x80\x9cthe opinions of the Comptroller General do not bind the\nExecutive Branch, but they may provide helpful guidance on appropriations matters and\nrelated questions.\xe2\x80\x9d Applicability of the Miscellaneous Receipts Act to an Arbitral Award\nof Legal Costs, 42 Op. O.L.C. __, at *3 n.2 (Mar. 6, 2018). That is especially so when, as\n2\n\n6\n\n\x0cPaying for Removing Structures at the Treasure Lake Civilian Conservation Center\n\nBecause the interdepartmental-waiver doctrine reflects a background\nprinciple of appropriations law, Congress may override it and has done so\nin a number of instances. Most significantly, in the Economy Act of 1932,\nCongress authorized an agency to \xe2\x80\x9cplace an order with . . . another agency\nfor goods or services\xe2\x80\x9d and thereby impose conditions on the loan or use of\nproperty. 31 U.S.C. \xc2\xa7 1535. Shortly before the Economy Act, the Comptroller General had concluded that one agency could not pay to restore\nanother agency\xe2\x80\x99s property even when such restoration was provided for in\nan agreement between the agencies. See, e.g., Public Property, 10 Comp.\nGen. at 288 (holding that the interdepartmental-waiver doctrine applied\neven though the loan at issue was made \xe2\x80\x9cwith the understanding that the\narticles were to be returned in good condition\xe2\x80\x9d and that the loaning agency \xe2\x80\x9cwould be reimbursed for the cost of [restoring] the property\xe2\x80\x9d). Now,\nhowever, the Economy Act \xe2\x80\x9c\xe2\x80\x98provide[s] the specific legislative authority\nstated by the Comptroller General to be necessary by authorizing the\nperformance of work or services or furnishing of materials by one department or establishment to another without any limitation.\xe2\x80\x99\xe2\x80\x9d Jack\nBrooks, House of Representatives, B-197686, 1980 WL 14507, at *2\n(Comp. Gen. Dec. 18, 1980) (quoting Interdepartmental Work: Hearings\non H.R. 10199 Before the H. Comm. on Expenditures in the Executive\nDepartments, 71st Cong. 4 (Apr. 10, 1930)); see 3 Federal Appropriations Law at 12-22 (3d ed. 2008) (similar). If agencies satisfy the Economy Act\xe2\x80\x99s criteria for interagency agreements, then they may contract\naround the doctrine. 3\n\nexplained below, Congress has effectively ratified the Comptroller General\xe2\x80\x99s long established default rule by specifically overriding it in some, but not all, instances.\n3 See, e.g., Department of the Air Force\xe2\x80\x94Reimbursement of Industrial Fund Agency\nfor Damage to Vehicle, 65 Comp. Gen. 910, 911 (1986) (noting that a \xe2\x80\x9cmajor exception\n[to the interdepartmental-waiver doctrine] is where reimbursement for damages has been\nprovided for in an agreement under the Economy Act\xe2\x80\x9d); Finance and Accounting Officer,\nDepartment of the Army, B-146588, 1961 WL 2188, at *1 (Comp. Gen. Aug. 23, 1961)\n(concluding that the Army and the Air Force had entered into a valid Economy Act\nagreement under which the Army could reimburse the Air Force for damage to borrowed\nplanes); Public Property\xe2\x80\x94Loans Between Departments, Etc.\xe2\x80\x94Liability for Repairs, 30\nComp. Gen. 295, 296\xe2\x80\x9397 (1951) (finding that the Economy Act modified the result in the\n1930 Public Property opinion, such that the Bureau of Land Management could execute\nan agreement requiring that its boat be returned in a condition as good as when it was\nloaned).\n\n7\n\n\x0c43 Op. O.L.C. __ (Feb. 22, 2019)\n\nIn addition to the Economy Act, Congress has enacted other targeted\nexceptions to the doctrine\xe2\x80\x99s default rule. For example, when an agency\nhas received \xe2\x80\x9can appropriation specifically for the purpose of removing\nimprovements on land withdrawn for its use,\xe2\x80\x9d that is understood as\nsupplying \xe2\x80\x9cthe statutory authority . . . required\xe2\x80\x9d to displace the interdepartmental-waiver doctrine. Interdepartmental Waiver Doctrine\xe2\x80\x94Withdrawn Lands, 60 Comp. Gen. 406, 407\xe2\x80\x9308 (1981) (\xe2\x80\x9cWithdrawn Lands\xe2\x80\x9d).\nThus, in 1984, Congress specifically authorized the military departments\nto \xe2\x80\x9cremove improvements and take any other action necessary . . . to\nrestore land used\xe2\x80\x9d under a \xe2\x80\x9cpermit from another military department or\nFederal agency,\xe2\x80\x9d when the permit requires restoration. 10 U.S.C.\n\xc2\xa7 2691(a). And, in 2017, Congress amended that section to allow the\nSecretary of Defense to \xe2\x80\x9crestore\xe2\x80\x9d land under the administration of a\ndifferent federal agency when the land is \xe2\x80\x9cdamaged as a result of a mishap\ninvolving a vessel, aircraft, or vehicle of the Department of Defense.\xe2\x80\x9d Id.\n\xc2\xa7 2691(e)(1) (Supp. V 2017). As the conference report explained, the\namendment as it was enacted supplied the same authority that the Senate\nbill had expressly entitled an \xe2\x80\x9c[e]xception to the interdepartmental waiver\ndoctrine for cleanup of vehicle crashes.\xe2\x80\x9d H.R. Rep. No. 115-404, at 944\n(2017) (Conf. Rep.). Congress has also given the General Services Administration (\xe2\x80\x9cGSA\xe2\x80\x9d) the authority to recover from other agencies the\ncosts of operating and maintaining a motor pool, including \xe2\x80\x9cestimated\nreplacement cost.\xe2\x80\x9d 40 U.S.C. \xc2\xa7 605(b)(2). Thus, when a vehicle in GSA\xe2\x80\x99s\nmotor pool is damaged as a result of a driver\xe2\x80\x99s \xe2\x80\x9cmisconduct or improper\noperation,\xe2\x80\x9d GSA is permitted to \xe2\x80\x9ccharg[e] such losses directly to the\nagency whose driver is responsible for the loss.\xe2\x80\x9d Interagency Property\nDamage Liability, 59 Comp. Gen. 515, 517 (1980). 4\n\n4 The Comptroller General has also recognized an exception to the interdepartmentalwaiver doctrine where an agency\xe2\x80\x99s activities are supported by a revolving fund, a mechanism that authorizes an agency to retain receipts and deposit them into the fund to finance\nthe fund\xe2\x80\x99s operations. See National Weather Service, 71 Comp. Gen. at 3 (\xe2\x80\x9c[W]e have\nrecognized exceptions to the interdepartmental waiver doctrine where Congress has, by\nstatute, expressly required an interagency activity to operate on a self-sustaining basis by\nrecovering all costs from using agencies.\xe2\x80\x9d); Loan of Equipment Purchased from the\nReclamation Fund, 3 Comp. Gen. 74, 74\xe2\x80\x9375 (1923) (explaining that the interdepartmental-waiver \xe2\x80\x9crule is predicated on appropriations not reimbursable,\xe2\x80\x9d so another agency\xe2\x80\x99s \xe2\x80\x9cuse of equipment purchased [by an agency with a reimbursable fund] is on a some-\n\n8\n\n\x0cPaying for Removing Structures at the Treasure Lake Civilian Conservation Center\n\nThe Executive Branch has similarly applied the interdepartmental waiver doctrine since at least the Comptroller of the Treasury\xe2\x80\x99s 1899\ndecision in Damage to a Vessel. See 6 Comp. Dec. at 74\xe2\x80\x9375; see also\nReplacing Property Borrowed from Another Department, 10 Comp. Dec.\n222, 224\xe2\x80\x9325 (1903); Ownership of Public Property, 22 Comp. Dec. 390,\n390 (1916). Executive agencies have considered and applied the doctrine\nwhen promulgating regulations, guidance, and legal opinions. See 32\nC.F.R. \xc2\xa7 536.27(g) (subsection of Department of the Army regulations\nabout claims against the United States, stating that \xe2\x80\x9c[n]either the U.S.\ngovernment nor any of its instrumentalities are proper claimants due to\nthe interdepartmental waiver rule\xe2\x80\x9d); U.S. Dep\xe2\x80\x99t of Energy, DOE 4300.1C,\nReal Property Management (June 28, 1992) (agency guidance noting that\n\xe2\x80\x9c[t]he Interdepartmental Waiver Doctrine should be considered whenever\nthere is a possibility of outgranting property to other Federal agencies\xe2\x80\x9d);\nOffice of General Counsel, Immigration & Naturalization Service, U.S.\nDep\xe2\x80\x99t of Justice, Missing GSA Painting, Op. No. 93-29 (May 5, 1993)\n(describing the doctrine as \xe2\x80\x9cthe substantive law of the United States\xe2\x80\x9d).\nThe interdepartmental-waiver doctrine thus establishes the general default\nrule for allocating the costs of repairs among departments and agencies.\nB.\nApplying the foregoing principles, we conclude that the interdepartmental-waiver doctrine prohibits Labor from paying for the removal of\nthe Treasure Lake structures. Interior has custody over the Wichita\nMountains Wildlife Refuge, where the Treasure Lake structures are\nlocated. The Comptroller General has previously (and, in our view,\ncorrectly) concluded that other conservation sites are subject to the\ninterdepartmental-waiver doctrine, as is governmental property generally.\nSee Public Lands\xe2\x80\x94Interagency Loans, Transfers, Etc.\xe2\x80\x94Damages, Restoration, Etc.\xe2\x80\x94Authority, 44 Comp. Gen. 693, 695 (1965) (\xe2\x80\x9cPublic Lands\xe2\x80\x9d)\n(opining that the Army may not reimburse the National Park Service for\nroad repairs after military exercises because \xe2\x80\x9can executive department\nmay not be reimbursed for the use or depreciation of real property loaned,\nused or damaged by another department\xe2\x80\x9d); National Forest Lands, 32\n\nwhat different basis, the equipment being an asset which should not be permitted to be\ndepreciated from use on other than objects for which the fund was created\xe2\x80\x9d).\n\n9\n\n\x0c43 Op. O.L.C. __ (Feb. 22, 2019)\n\nComp. Gen. at 180 (rejecting the argument that the interdepartmentalwaiver doctrine \xe2\x80\x9cshould not apply to national forest lands since such lands\nare analogous to property held in trust\xe2\x80\x9d). This result comports with the\nnotion that the interdepartmental-waiver doctrine allocates losses to the\nagency that will benefit from the future use of the repaired property.\nBecause Labor is no longer using the Treasure Lake property, Labor will\nreceive no future benefit from removing the structures. To the contrary,\nthe benefits from restoration will flow to Interior, which seeks the structures\xe2\x80\x99 removal to advance its statutory mission of managing a wildlife\nrefuge. See Withdrawn Lands, 60 Comp. Gen. at 408 (noting that a restoration benefits the lending agency when the agency \xe2\x80\x9cwould use the property upon its return to carry out agency functions\xe2\x80\x9d). Absent a contrary\nstatute, the interdepartmental-waiver doctrine applies and makes Interior\nresponsible for the costs of restoration.\nWe do not believe that any statute displaces the general rule here. Labor\xe2\x80\x99s Job Corps appropriations have not expressly provided for the removal of structures at Treasure Lake. Nor have they otherwise authorized\nLabor, more generally, to pay damages for its use of other agencies\xe2\x80\x99\nlands. See, e.g., Labor FY 2019 Appropriations, 2018 U.S.C.C.A.N. (132\nStat.) at 3050; see also Withdrawn Lands, 60 Comp. Gen. at 407\xe2\x80\x93408\n(noting that when an agency has an \xe2\x80\x9cappropriation specifically for the\npurpose of removing improvements on land withdrawn for its use, this\nconstitutes the statutory authority . . . required\xe2\x80\x9d to overcome the interdepartmental-waiver doctrine); Public Lands, 44 Comp. Gen. at 693, 695\n(concluding that the Army could not reimburse Interior for property\ndamage, even though Army appropriations contained no limitations on\nsuch expenditures). And Interior has no authorization to charge other\nagencies for costs arising from their use of wildlife refuges. See Consolidated Appropriations Act, 2019, Pub. L. No. 116-6, div. E, tit. I (making\nappropriations for Interior, including the Fish and Wildlife Service, but\ncontaining no such authority); Consolidated Appropriations Act, 2017,\n131 Stat. at 436\xe2\x80\x9368 (same); see also National Forest Lands, 32 Comp.\nGen. at 180\xe2\x80\x9381 (concluding that the Secretary of Agriculture\xe2\x80\x99s statutory\nauthority to protect and preserve national forests does not override the\ninterdepartmental-waiver doctrine).5\n5 We thus reject the premise of Labor\xe2\x80\x99s alternative argument that Interior\xe2\x80\x99s purportedly-more-specific appropriation governs over what Labor describes as more-general\n\n10\n\n\x0cPaying for Removing Structures at the Treasure Lake Civilian Conservation Center\n\nFurthermore, no other exception to the interdepartmental-waiver doctrine applies. Labor and Interior did not enter into any agreement under\nthe Economy Act or similar statutory authority under which Labor \xe2\x80\x9cassume[d] responsibility for the removal of the structures or the restoration\nof the wildlife refuge following the closure of the Center.\xe2\x80\x9d Labor Reply\nLetter at 2.6 And Interior\xe2\x80\x99s relevant appropriations are annual appropriations, not revolving funds. See supra note 4.\nC.\nIn reaching this conclusion, we have considered other points that Interior contends would, when taken in combination, support having Labor\npay to restore the Treasure Lake property.\nFirst, Interior argues that the interdepartmental-waiver doctrine should\nbe limited to situations where an agency unforeseeably or accidentally\ndamages another agency\xe2\x80\x99s property. In its view, where an agency\xe2\x80\x99s activities foreseeably damage another agency\xe2\x80\x99s property, the costs of restoration are sufficiently predictable that they should be borne by the agency\nresponsible for the damage. See Interior Letter at 12\xe2\x80\x9315. As Interior\nacknowledges, however, several Comptroller General opinions go the\nother way, see id. at 11, and we believe that those decisions correctly\ninterpret the doctrine.\nThe Comptroller General\xe2\x80\x99s long-standing view is that the interdepartmental-waiver doctrine does not turn upon the cause of, or comparative\nfault for, the property damage. See, e.g., National Forest Lands, 32 Comp.\nGen. at 180\xe2\x80\x9381 (\xe2\x80\x9cThe question is not how the damages were caused, but\n\nlanguage in its Job Corps appropriation. See Labor Letter at 1\xe2\x80\x933. The dispositive question\nis not which agency\xe2\x80\x99s appropriation contains more specific language, but whether Congress has overridden the interdepartmental-waiver doctrine. Even if Interior\xe2\x80\x99s appropriation contained more-general language than Labor\xe2\x80\x99s appropriation, it would be irrelevant\nunless Labor\xe2\x80\x99s appropriation (or some other statute) specified with sufficient clarity that,\nnotwithstanding the interdepartmental-waiver doctrine, Labor could bear the costs of\nremoving the Treasure Lake structures.\n6 This opinion does not address whether an agreement concerning real property constitutes an agreement \xe2\x80\x9cfor goods or services\xe2\x80\x9d under the Economy Act, 31 U.S.C. \xc2\xa7 1535(a),\nor whether an agreement concerning services related to real property\xe2\x80\x94such as the removal or alteration of facilities like those at Treasure Lake\xe2\x80\x94could have been reached under\nthe Economy Act or similar statutory authority.\n\n11\n\n\x0c43 Op. O.L.C. __ (Feb. 22, 2019)\n\nto which agency has the Congress delegated the responsibility for administering and conserving the property and to which agency has it appropriated funds for such repair and replacements as may be necessary.\xe2\x80\x9d);\nPublic Property, 10 Comp. Gen. at 289 (noting that the doctrine bars\ninteragency reimbursement not only for property loss or damage, but also\nfor property \xe2\x80\x9cuse or depreciation\xe2\x80\x9d). That is also the Executive Branch\xe2\x80\x99s\nlong-standing view. See Damage to a Vessel, 6 Comp. Dec. at 75 (\xe2\x80\x9cThe\nappropriation [of the custodial agency] . . . is applicable . . . without\nregard to the origin of the injury necessitating the repairs, whether arising\nfrom natural deterioration or wear and tear, or from an accident of any\nkind, whether by the fault of the officers of the [custodial agency] or\nothers or otherwise.\xe2\x80\x9d). That view is consistent with the doctrine\xe2\x80\x99s underlying premise: Regardless of whether one agency has damaged another\nagency\xe2\x80\x99s property in a foreseeable or unforeseeable manner, the agency\nwith custody of the property does not make a claim for damage because\nthe property belongs to the government as a whole. Even if we were to\ndistinguish between the individual agencies\xe2\x80\x99 interests in this context, the\nsame conclusion would follow, because the agency with custody of the\nproperty will be the one that reaps the benefits of removing the structures\nat Treasure Lake. See Public Property, 10 Comp. Gen. at 289.\nSecond, Interior contends that the interdepartmental-waiver doctrine\nhas generally been applied to personal property, and not to real property\nlike the buildings and other permanent improvements at Treasure Lake.\nSee Interior Letter at 9, 11, 15. Interior reads the Comptroller General\xe2\x80\x99s\n1981 opinion in Withdrawn Lands as \xe2\x80\x9cappear[ing] to narrow\xe2\x80\x9d the doctrine\xe2\x80\x99s applicability in cases involving public lands. Id. at 11\xe2\x80\x9312. We\ndisagree with Interior\xe2\x80\x99s attempt to extend that opinion\xe2\x80\x99s reasoning to\nTreasure Lake. In Withdrawn Lands, the Comptroller General concluded\nthat the interdepartmental-waiver doctrine should not apply to public\nlands managed by the Bureau of Land Management because those lands\nwere held in anticipation of future assignment. See 60 Comp. Gen. at\n408\xe2\x80\x9309. The opinion explained that the Bureau \xe2\x80\x9cdoes not benefit, in the\nsense referred to in the [Comptroller General\xe2\x80\x99s previous decisions], from\nrestoration by another agency\xe2\x80\x9d of its lands. Id. at 408. Significantly, the\nComptroller General contrasted the Bureau\xe2\x80\x99s public lands with National\nForest lands administered by the Forest Service, reasoning that \xe2\x80\x9crestoration of property within the Forest\xe2\x80\x99s boundaries\xe2\x80\x9d would \xe2\x80\x9cclearly benefit[]\n12\n\n\x0cPaying for Removing Structures at the Treasure Lake Civilian Conservation Center\n\nthe Forest Service,\xe2\x80\x9d rather than the paying agency. Id. at 409. That same\ndistinction would also apply to repairs within wildlife refuges, which are\nadministered by Interior in a similar fashion, for long-term preservation\nand public benefit. Compare, e.g., 16 U.S.C. \xc2\xa7 742a (giving the Fish and\nWildlife Service the statutory goal of \xe2\x80\x9cmaintaining and increasing the\npublic opportunities for recreational use of our fish and wildlife resources\xe2\x80\x9d), with id. \xc2\xa7 1609(a) (giving the National Forest System and\nForest Service the statutory mission of maintaining a system of forests\n\xe2\x80\x9cdedicated to the long-term benefit for present and future generations\xe2\x80\x9d).\nFurthermore, as Interior acknowledges, see Interior Letter at 11 & n.40,\na number of other Comptroller General opinions, before and after 1981,\nhave applied the interdepartmental-waiver doctrine to real property. See,\ne.g., National Weather Service, 71 Comp. Gen. at 2 (reaffirming that the\n\xe2\x80\x9cinterdepartmental waiver doctrine prohibits a federal agency from paying\nfor the use or repair of real property controlled by another federal agency\xe2\x80\x9d); Use of One Agency\xe2\x80\x99s Real Property, 59 Comp. Gen. at 93\xe2\x80\x9395 (applying doctrine to Army\xe2\x80\x99s damage to national forest lands); Public Lands,\n44 Comp. Gen. at 695 (applying doctrine to Army\xe2\x80\x99s damage to lands in\nnational recreation area); National Forest Lands, 32 Comp. Gen. at 179\xe2\x80\x93\n81 (applying doctrine to Army\xe2\x80\x99s damage to national forest lands).\nFinally, we disagree with Interior\xe2\x80\x99s contention that the necessaryexpense doctrine would authorize Labor to pay for removing the Treasure\nLake structures. See Interior Letter at 9. This Office has explained that the\nComptroller General\xe2\x80\x99s necessary-expense doctrine tracks our interpretation of the Purpose Act, 31 U.S.C. \xc2\xa7 1301(a). See State and Local Deputation of Federal Law Enforcement Officers During Stafford Act Deployments, 36 Op. O.L.C. 77, 87\xe2\x80\x9388 (2012). The basic principle is that a\nfederal agency may use its appropriations for purposes that Congress has\nnot expressly specified, so long as the \xe2\x80\x9cexpenditure bears a logical relationship to the objectives of the general appropriation[] and will make a\ndirect contribution to the agency\xe2\x80\x99s mission.\xe2\x80\x9d Id. (internal quotation marks\nomitted). But treating each agency as having an implicit authorization to\nuse its funds to pay other agencies would render the interdepartmentalwaiver doctrine superfluous. If agencies were already authorized to pay\nfor the repair or restoration of other agencies\xe2\x80\x99 property whenever doing so\nbore some relation to the objects of a general appropriation, then there\nwould never be a need to determine whether a specific appropriation\n13\n\n\x0c43 Op. O.L.C. __ (Feb. 22, 2019)\n\nauthorized an agency using another agency\xe2\x80\x99s property to bear the costs of\nthat use. Nor would there be any need for the Economy Act; agencies\nwould already be entitled to make such agreements whenever they are\n\xe2\x80\x9creasonably necessary\xe2\x80\x9d to achieve the goals of an appropriation. We\ntherefore think that a more-specific authorization is required to override\nthe interdepartmental-waiver doctrine\xe2\x80\x99s default rule.\nIII.\nInterior is the custodian of the land at Treasure Lake. Accordingly, we\nconclude that, under the interdepartmental-waiver doctrine, Labor cannot\npay to remove the structures at Treasure Lake, and, further, that no statutory authority has displaced that doctrine\xe2\x80\x99s applicability in this instance.\nCURTIS E. GANNON\nPrincipal Deputy Assistant Attorney General\nOffice of Legal Counsel\n\n14\n\n\x0c'


b'(Slip Opinion)\n\nMutual Consent Provisions in the\nProposed Guam Commonwealth Act\nSections of the proposed Guam Commonwealth Act requiring the mutual consent of the\nGovernment of the United States and the Government of Guam raise serious constitutional questions and are legally unenforceable.\nJuly 28, 1994\n\nMEMORANDUM OPINION FOR THE SPECIAL REPRESENTATIVE\nFOR THE GUAM COMMONWEALTH\nThe Guam Commonwealth Act, H.R. 1521, 103d Cong. (1993), contains two sections requiring the mutual consent of the Government of the\nUnited States and the Government of Guam. Section 103 provides that the\nCommonwealth Act can be amended only with mutual consent of the two\ngovernments. Section 202 provides that no federal laws, rules, and regulations passed after the enactment of the Commonwealth Act will apply to\nGuam without the mutual consent of the two governments. The Representatives of Guam insist that these two sections are crucial for the autonomy and economy of Guam. The former views of this Office on the validity or efficacy of mutual consent requirements included in legislation\ngoverning the relationship between the federal government and non-state\nareas\xe2\x80\x94i.e. areas under the sovereignty of the United States that are not\nStates 1\xe2\x80\x94have not been consistent. 2 We therefore have carefully reex-\n\nTerritories that have developed from the stage of a classical territory to that of a\ncommonwealth with a constitution of their own adoption and an elective governor resent\nbeing called territories and claim that that legal term and its implications are not applicable to them. We therefore shall refer to all territories and commonwealths as non-state\nareas under the sovereignty of the United States or briefly as non-state areas.\n2 To our knowledge the first consideration of the validity of mutual consent clauses\noccurred in 1959 in connection with proposals to amend the Puerto Rico Federal Relations Act. At that time the Department took the position that the answer to this question\nwas doubtful but that such clauses should not be opposed on the ground that they go\nbeyond the constitutional power of Congress. In 1963 the Department of Justice opined\nthat such clauses were legally effective because Congress could create vested rights in the\nstatus of a territory that could not be revoked unilaterally. The Department adhered to this\nposition in 1973 in connection with then-pending Micronesians-status negotiations in a\nmemorandum approved by then-Assistant Attorney General Rehnquist. On the basis of\n1\n\n1\n\n\x0c__ Op. O.L.C. Supp. __ (July 28, 1994)\n\namined this issue. Our conclusion is that these clauses raise serious constitutional issues and are legally unenforceable. 3\nIn our view, it is important that the text of the Guam Commonwealth\nAct not create any illusory expectations that might mislead the electorate\nof Guam about the consequences of the legislation. We must therefore\noppose the inclusion in the Act of any provisions, such as mutual consent\nclauses, that are legally unenforceable, unless their unenforceability (or\nprecatory nature) is clearly stated in the document itself.\nI.\nThe Power of Congress to Govern the Non-State\nAreas Under the Sovereignty of the United States\nIs Plenary Within Constitutional Limitations\nAll territory under the sovereignty of the United States falls into two\ngroups: the states and the areas that are not states. The latter, whether\ncalled territories, possessions, or commonwealths, are governed by and\nunder the authority of Congress. As to those areas, Congress exercises the\nthis advice, a mutual consent clause was inserted in section 105 of the Covenant with the\nNorthern Mariana Islands. The Department continued to support the validity of mutual\nconsent clauses in connection with the first 1989 task force report on the Guam Commonwealth bill. The Department revisited this issue in the early 1990s in connection with\nthe Puerto Rico status referendum bill in light of Bowen v. Agencies Opposed to Soc. Sec.\nEntrapment, 477 U.S. 41, 55 (1986), and concluded that there could not be an enforceable\nvested right in a political status; hence mutual consent clauses were ineffective because\nthey would not bind a subsequent Congress. We took the same position in the second\nGuam task force report issued during the last days of the Bush Administration in January\n1993.\n3 Mutual consent clauses are not a novel phenomenon; indeed they antedate the Constitution. Section 14 of the Northwest Ordinance contained six \xe2\x80\x9carticles of compact\nbetween the original States and the people and States in the said territory,\xe2\x80\x9d which shall\n\xe2\x80\x9cforever remain unalterable, unless by common consent.\xe2\x80\x9d These articles were incorporated either expressly or by reference into many early territorial organic acts. Clinton v.\nEnglebrecht, 80 U.S. (13 Wall.) 434, 442 (1872). The copious litigation under these\n\xe2\x80\x9cunalterable articles\xe2\x80\x9d focused largely on the question whether the territories\xe2\x80\x99 obligations\nunder them were superseded by the Constitution, or when the territory became a state, as\nthe result of the equal footing doctrine. We have, however, not found any cases dealing\nwith the question whether Congress had the power to modify any duty imposed on the\nUnited States by those articles.\n\n2\n\n\x0cMutual Consent Provisions in the Proposed Guam Commonwealth Act\n\ncombined powers of the federal and of a state government. These basic\nconsiderations were set out in the leading case of National Bank v. County\nof Yankton, 101 U.S. (11 Otto) 129 (1880). There the Court held:\nIt is certainly now too late to doubt the power of Congress to govern the Territories. There have been some differences of opinion as\nto the particular clause of the Constitution from which the power is\nderived, but that it exists has always been conceded. 4\n...\nAll territory within the jurisdiction of the United States not included in any State must necessarily be governed by or under the authority of Congress. The Territories are but political subdivisions of\nthe outlying dominion of the United States. Their relation to the general government is much the same as that which counties bear to the\nrespective States, and Congress may legislate for them as a State\ndoes for its municipal organizations. The organic law of a Territory\ntakes the place of a constitution as the fundamental law of the local\ngovernment. It is obligatory on and binds the territorial authorities;\nbut Congress is supreme, and for the purposes of this department of\nits governmental authority has all the powers of the people of the\nUnited States, except such as have been expressly or by implication\nreserved in the prohibitions of the Constitution.\nId. at 132\xe2\x80\x9333 (footnote added).\n\n4 Some derived that power from the authority of the United States to acquire territory,\nothers from the mere fact of sovereignty, others from the Territory Clause (U.S. Const.\nart. IV, \xc2\xa7 3, cl. 2) pursuant to which Congress has \xe2\x80\x9cPower to dispose of and make all\nneedful Rules and Regulations respecting the Territory or other Property belonging to the\nUnited States.\xe2\x80\x9d See, e.g., Am. Ins. Co. v. Canter, 26 U.S. (1 Pet.) 511, 542 (1828);\nMormon Church v. United States, 136 U.S. 1, 42\xe2\x80\x9344 (1890); Downes v. Bidwell, 182\nU.S. 244, 290 (1901).\nAt present, the Territory Clause is generally considered to be the source of the power\nof Congress to govern the non-state areas. Hooven & Allison Co. v. Evatt, 324 U.S. 652,\n673\xe2\x80\x9374 (1945); Examining Bd. of Eng\xe2\x80\x99rs, Architects & Surveyors v. Flores de Otero, 426\nU.S. 572, 586 (1976); Harris v. Rosario, 446 U.S. 651 (1980); see also Wabol v. Villacrusis, 958 F.2d 1450, 1459 (9th Cir. 1992).\n\n3\n\n\x0c__ Op. O.L.C. Supp. __ (July 28, 1994)\n\nCounty of Yankton was anticipated in Chief Justice Marshall\xe2\x80\x99s seminal opinion in American Insurance Co. v. Canter, 26 U.S. (1 Pet.) 511,\n542\xe2\x80\x9343, 546 (1828). The Chief Justice explained:\nIn the mean time [i.e., the interval between acquisition and statehood], Florida continues to be a territory of the United States; governed by virtue of that clause in the Constitution, which empowers\nCongress \xe2\x80\x9cto make all needful rules and regulations, respecting the\nterritory, or other property belonging to the United States.\xe2\x80\x9d\nPerhaps the power of governing a territory belonging to the United\nStates, which has not, by becoming a state, acquired the means of\nself-government, may result necessarily from the facts, that it is not\nwithin the jurisdiction of any particular state, and is within the power\nand jurisdiction of the United States.\n...\nIn legislating for them [the Territories], Congress exercises the\ncombined powers of the general, and of a state government.\nId. at 542\xe2\x80\x9343, 546.\nThe power of Congress to govern the non-state areas is plenary, like\nevery other legislative power of Congress, but it is nevertheless subject\nto the applicable provisions of the Constitution. As Chief Justice Marshall stated in Gibbons v. Ogden with respect to the Commerce Power:\n\xe2\x80\x9cThis power [the Commerce Power], like all others vested in Congress is\ncomplete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the constitution.\xe2\x80\x9d 22 U.S.\n(9 Wheat.) 1, 196 (1824) (emphasis added).\nThis limitation on the plenary legislative power of Congress is selfevident. It necessarily follows from the supremacy of the Constitution.\nSee, e.g., Hodel v. Va. Surface Mining & Reclamation Ass\xe2\x80\x99n, 452 U.S.\n264, 276 (1981). That the power of Congress under the Territory Clause is\nsubject to constitutional limitations has been recognized in County of\nYankton, 101 U.S. at 133; Downes v. Bidwell, 182 U.S. 244, 290\xe2\x80\x9391\n(1901); and District of Columbia v. Thompson Co., 346 U.S. 100, 109\n(1953).\n\n4\n\n\x0cMutual Consent Provisions in the Proposed Guam Commonwealth Act\n\nFinally, the power of Congress over the non-state areas persists \xe2\x80\x9cso\nlong as they remain in a territorial condition.\xe2\x80\x9d Shively v. Bowlby, 152\nU.S. 1, 48 (1894); see also Hooven & Allison Co. v. Evatt, 324 U.S. 652,\n675 (1945) (recognizing that, during the intermediary period between the\nestablishment of the Commonwealth of the Philippine Islands and the\nfinal withdrawal of United States sovereignty from those islands, \xe2\x80\x9cCongress retains plenary power over the territorial government\xe2\x80\x9d).\nThe plenary congressional authority over a non-state area thus lasts as\nlong as the area retains that status. It terminates when the area loses that\nstatus, either by virtue of its admission as a state, or by the termination of\nthe sovereignty of the United States over the area by the grant of independence or by its surrender to the sovereignty of another country.\nII.\nCongressional Legislation Relating to the Government\nof Non-State Areas Is Revocable\nWhile Congress has the power to govern the non-state areas, it need not\nexercise that power itself. Congress can delegate to the inhabitants of nonstate areas full powers of self-government and an autonomy similar to that\nof states, and has done so since the beginning of the Republic. Such\ndelegation, however, must be \xe2\x80\x9cconsistent with the supremacy and supervision of National authority.\xe2\x80\x9d Clinton v. Englebrecht, 80 U.S. (13 Wall.)\n434, 441 (1872); Puerto Rico v. Shell Co., 302 U.S. 253, 260, 261\xe2\x80\x9362\n(1937). The requirement that the delegation of governmental authority to\nthe non-state areas be subject to federal supremacy and federal supervision means that such delegation is necessarily subject to the right of\nCongress to revise, alter, or revoke the authority granted. Dist. of Columbia v. Thompson Co., 346 U.S. 100, 109 (1953) 5; see also United States v.\n5 Thompson dealt with the District of Columbia\xe2\x80\x99s government which is provided for\nby Article I, Section 8, Clause 17 of the Constitution, rather than with the non-state areas\nas to whom the congressional power is derived from the Territory Clause. The Court,\nhowever, held that in this area the rules relating to the congressional power to govern the\nDistrict of Columbia and the non-state areas are identical. Indeed, the Court relied on\ncases dealing with non-state areas\xe2\x80\x94e.g., Hornbuckle v. Toombs, 85 U.S. (18 Wall.) 648,\n655 (1874), and Christianson v. King County, 239 U.S. 365 (1915)\xe2\x80\x94where it held that\n\n5\n\n\x0c__ Op. O.L.C. Supp. __ (July 28, 1994)\n\nSharpnack, 355 U.S. 286, 296 (1958); Harris v. Boreham, 233 F.2d 110,\n113 (3d Cir. 1956); Firemen\xe2\x80\x99s Ins. Co. v. Washington, 483 F.2d 1323,\n1327 (D.C. Cir. 1973). The power of Congress to delegate governmental\npowers to non-state areas thus is contingent on the retention by Congress\nof its power to revise, alter, and revoke that legislation. 6 Congress therefore cannot subject the amendment or repeal of such legislation to the\nconsent of the non-state area.\nThis consideration also disposes of the argument that the power of\nCongress under the Territory Clause to give up its sovereignty over a nonstate area includes the power to make a partial disposition of that authority, hence Congress could give up its power to amend or repeal statutes\nrelating to the governance of non-state areas. As shown above, the retention of the power to amend or repeal legislation delegating governmental\npowers to a non-state area is an integral element of the delegation power.\nCongress therefore has no authority to enact legislation under the Territory Clause that would limit the unfettered exercise of its power to amend or\nrepeal.\nThe same result flows from the consideration that all non-state areas are\nsubject to the authority of Congress, which, as shown above, is plenary.\nThis basic rule does not permit the creation of non-state areas that are\nonly partially subject to congressional authority. The plenary power of\nCongress over a non-state area persists as long as the area remains in that\ncondition and terminates only when the area becomes a state or ceases to\nbe under United States sovereignty. There is no intermediary status as far\nas the congressional power is concerned.\n\nCongress can delegate its legislative authority under Article I, Section 8, Clause 17 to\nthe District, subject to the power of Congress at any time to revise, alter, or revoke that\nauthority.\n6 Congress has exercised this power with respect to the District of Columbia. The Act\nof February 21, 1871, ch. 62, 16 Stat. 419, gave the District of Columbia virtual territorial\nstatus, with a governor appointed by the President, a legislative assembly that included an\nelected house of delegates, and a delegate in Congress. The 1871 Act was repealed by the\nAct of June 20, 1874, ch. 337, 18 Stat. 116, which abrogated among others the provisions\nfor the legislative assembly and a delegate in Congress, and established a government by\na commission appointed by the President.\n\n6\n\n\x0cMutual Consent Provisions in the Proposed Guam Commonwealth Act\n\nThe two mutual consent clauses contained in the proposed Commonwealth Act therefore are subject to congressional modification and repeal.\nIII.\nThe Rule that Legislation Delegating Governmental Powers\nto a Non-State Area Must be Subject to Amendment and\nRepeal Is but a Manifestation of the General Rule That One\nCongress Cannot Bind a Subsequent Congress, Except\nWhere it Creates Vested Rights Enforceable Under the\nDue Process Clause of the Fifth Amendment\nThe rule that Congress cannot surrender its power to amend or repeal\nlegislation relating to the government of non-state areas is but a specific\napplication of the maxim that one Congress cannot bind a subsequent\nCongress and the case law developed under it.\nThe rationale underlying that principle is the consideration that if one\nCongress could prevent the subsequent amendment or repeal of legislation\nenacted by it, such legislation would be frozen permanently and would\nacquire virtually constitutional status. Justice Brennan expressed this\nthought in his dissenting opinion in United States Trust Co. v. New Jersey,\na case involving the Contracts Clause (U.S. Const. art. I, \xc2\xa7 10, cl. 1):\nOne of the fundamental premises of our popular democracy is that\neach generation of representatives can and will remain responsive to\nthe needs and desires of those whom they represent. Crucial to this\nend is the assurance that new legislators will not automatically be\nbound by the policies and undertakings of earlier days . . . . The\nFramers fully recognized that nothing would so jeopardize the legitimacy of a system of government that relies upon the ebbs and flows\nof politics to \xe2\x80\x9cclean out the rascals\xe2\x80\x9d than the possibility that those\nsame rascals might perpetuate their policies simply by locking them\ninto binding contracts.\n431 U.S. 1, 45 (1977).\nNonetheless, the maxim that one Congress cannot bind a future Congress, like every legal rule, has its limits. As early as 1810, Chief Justice\nMarshall explained in Fletcher v. Peck:\n7\n\n\x0c__ Op. O.L.C. Supp. __ (July 28, 1994)\n\nThe principle asserted is that one legislature is competent to repeal\nany act which a former legislature was competent to pass; and that\none legislature cannot abridge the powers of a succeeding legislature.\nThe correctness of this principle, so far as respects general legislation, can never be controverted. But, if an act be done under a law, a\nsucceeding legislature cannot undo it. The past cannot be recalled by\nthe most absolute power. Conveyances have been made, those conveyances have vested legal estates, and if those estates may be\nseized by the sovereign authority, still, that they originally vested is\na fact, and cannot cease to be a fact.\nWhen, then, a law is in its nature a contract, when absolute rights\nhave vested under that contract, a repeal of the law cannot devest\n[sic] those rights.\n10 U.S. (6 Cranch) 87, 115 (1810).\nThe powers of one legislature to repeal or amend the acts of the preceding one are limited in the case of states by the Contracts Clause and the\nDue Process Clause of the Fourteenth Amendment, and in the case of\ncongressional legislation by the Due Process Clause of the Fifth Amendment. This principle was recognized in the Sinking-Fund Cases:\nThe United States cannot any more than a State interfere with private rights, except for legitimate governmental purposes. They are\nnot included within the constitutional prohibition which prevents\nStates from passing laws impairing the obligation of contracts, but\nequally with the States they are prohibited from depriving persons or\ncorporations of property without due process of law. They cannot\nlegislate back to themselves, without making compensation, the\nlands they have given this corporation to aid in the construction of\nits railroad. Neither can they by legislation compel the corporation to\ndischarge its obligations in respect to the subsidy bonds otherwise\nthan according to the terms of the contract already made in that connection. The United States are as much bound by their contracts as\nare individuals.\n99 U.S. (9 Otto) 700, 718\xe2\x80\x9319(1879) (emphasis added); see also Bowen v.\nAgencies Opposed to Soc. Sec. Entrapment, 477 U.S. 41, 54\xe2\x80\x9356 (1986).\n8\n\n\x0cMutual Consent Provisions in the Proposed Guam Commonwealth Act\n\nIV.\nThe Due Process Clause Does Not Preclude Congress from\nAmending or Repealing the Two Mutual Consent Clauses\nThe question therefore is whether the Due Process Clause of the Fifth\nAmendment precludes a subsequent Congress from repealing legislation\nfor the governance of non-state areas enacted by an earlier Congress\nunder the Territory Clause. This question must be answered in the negative.\nThe Due Process Clause of the Fifth Amendment provides: \xe2\x80\x9cNo person\nshall . . . be deprived of life, liberty, or property without due process of\nlaw.\xe2\x80\x9d (Emphasis added.) This Clause is inapplicable to the repeal or\namendment of the two mutual consent clauses here involved for two\nreasons. First, a non-state area is not a \xe2\x80\x9cperson\xe2\x80\x9d within the meaning of the\nFifth Amendment, and, second, such repeal or amendment would not\ndeprive the non-state area of a property right within the meaning of the\nFifth Amendment.\nA.\nA Non-State Area Is Not a Person in the Meaning of\nthe Due Process Clause of the Fifth Amendment\nIn South Carolina v. Katzenbach, the Court held that a state is not a\nperson within the meaning of the Due Process Clause of the Fifth\nAmendment. 383 U.S. 301, 323\xe2\x80\x9324 (1966); see also Alabama v. EPA,\n871 F.2d 1548, 1554 (11th Cir.) (\xe2\x80\x9cThe State of Alabama is not included\namong the entities protected by the due process clause of the fifth\namendment\xe2\x80\x9d); State of Oklahoma v. FERC, 494 F. Supp. 636, 661 (W.D.\nOkla. 1980), aff\xe2\x80\x99d, 661 F.2d 832 (10th Cir. 1981).\nSimilarly it has been held that creatures or instrumentalities of a state,\nsuch as cities or water improvement districts, are not persons within the\nmeaning of the Due Process Clause of the Fifth Amendment. City of\nSault Ste. Marie v. Andrus, 532 F. Supp. 157, 167 (D.D.C. 1980); El\nPaso County Water Improv. Dist. No. 1 v. Int\xe2\x80\x99l Boundary & Water\nComm\xe2\x80\x99n, 701 F. Supp. 121, 123\xe2\x80\x9324 (W.D. Tex 1988).\n9\n\n\x0c__ Op. O.L.C. Supp. __ (July 28, 1994)\n\nThe non-state areas, concededly, are not states or instrumentalities of\nstates, and we have not found any case holding directly that they are not\npersons within the meaning of the Due Process Clause of the Fifth\nAmendment. They are, however, governmental bodies, and the rationale\nof South Carolina v. Katzenbach, 383 U.S. at 301, appears to be that such\nbodies are not protected by the Due Process Clause of the Fifth Amendment. Moreover, it is well established that the political subdivisions of a\nstate are not considered persons protected as against the state by the\nprovisions of the Fourteenth Amendment. See, e.g., Newark v. New Jersey, 262 U.S. 192, 196 (1923); Williams v. Mayor of Baltimore, 289 U.S.\n36, 40 (1933); S. Macomb Disposal Auth. v. Twp. of Washington, 790\nF.2d 500, 505, 507 (6th Cir. 1986), and the authorities there cited. The\nrelationship of the non-state areas to the federal government has been\nanalogized to that of a city or county to a state. As stated, the Court held\nin County of Yankton: \xe2\x80\x9cThe territories are but political subdivisions of the\noutlying dominion of the United States. Their relation to the general\ngovernment is much the same as that which counties bear to the respective\nStates[.]\xe2\x80\x9d 101 U.S. at 133.\nMore recently, the Court explained that a non-state area is entirely the\ncreation of Congress and compared the relationship between the Nation\nand a non-state area to that between a state and a city. United States v.\nWheeler, 435 U.S. 313, 321 (1978). It follows that, since states are not\npersons within the meaning of the Fifth Amendment and since the political subdivisions of states are not persons within the meaning of the Fourteenth Amendment, the non-state areas are not persons within the meaning\nof the Due Process Clause of the Fifth Amendment.\nB.\nLegislation Relating to the Governance of Non-State Areas Does\nNot Create Any Rights or Status Protected by the Due Process Clause\nRegarding Repeal or Amendment by Subsequent Legislation\nAs explained earlier, a subsequent Congress cannot amend or repeal\nearlier legislation if such repeal or amendment would violate the Due\nProcess Clause of the Fifth Amendment\xe2\x80\x94i.e., if such amending or repealing legislation would deprive a person of property without due process of\n10\n\n\x0cMutual Consent Provisions in the Proposed Guam Commonwealth Act\n\nlaw. It has been shown in the preceding part of this memorandum that a\nnon-state area is not a person within the meaning of the Due Process\nClause. Here it will be shown that mutual consent provisions in legislation, such as the ones envisaged in the Guam Commonwealth Act, would\nnot create property rights within the meaning of that Clause.\nLegislation concerning the governance of a non-state area, whether\ncalled organic act, federal relations act, or commonwealth act, that does\nnot contain a mutual consent clause is clearly subject to amendment or\nrepeal by subsequent legislation. A non-state area does not acquire a\nvested interest in a particular stage of self-government that subsequent\nlegislation could not diminish or abrogate. While such legislation has not\nbeen frequent, it has occurred in connection with the District of Columbia.\nSee Dist. of Columbia v. Thompson Co., 346 U.S. 100, 104\xe2\x80\x9305 (1953);\nsupra note 6. Hence, in the absence of a mutual consent clause, legislation\nconcerning the government of a non-state area is subject to amendment or\nrepeal by subsequent legislation.\nThis leads to the question whether the addition of a mutual consent\nclause\xe2\x80\x94i.e., of a provision that the legislation shall not be modified or\nrepealed without the consent of the Government of the United States and\nthe government of the non-state area\xe2\x80\x94has the effect of creating in the\nnon-state areas a specific status amounting to a property right within the\nmeaning of the Due Process Clause. It is our conclusion that this question\nmust be answered in the negative because (1) sovereign governmental\npowers cannot be contracted away, and (2) a specific political relationship\ndoes not constitute \xe2\x80\x9cproperty\xe2\x80\x9d within the meaning of the Fifth Amendment.\nAs a body politic the Government of the United States has the general\ncapacity to enter into contracts. United States v. Tingey, 30 U.S. (5 Pet.)\n115, 128 (1831). This power, however, is generally limited to those types\nof contracts in which private persons or corporations can engage. By\ncontrast, sovereign \xe2\x80\x9cgovernmental powers cannot be contracted away,\xe2\x80\x9d\nN. Am. Commercial Co. v. United States, 171 U.S. 110, 137 (1898). More\nrecently, the Supreme Court held in connection with legislation arising\nunder the Contracts Clause that \xe2\x80\x9cthe Contract[s] Clause does not require a\nState to adhere to a contract that surrenders an essential attribute of its\nsovereignty.\xe2\x80\x9d U.S. Trust Co. of N.Y. v. New Jersey, 431 U.S. 1, 23\n11\n\n\x0c__ Op. O.L.C. Supp. __ (July 28, 1994)\n\n(1977). 7 In a similar context Mr. Justice Holmes stated: \xe2\x80\x9cOne whose\nrights, such as they are, are subject to state restriction, cannot remove\nthem from the power of the State by making a contract about them.\xe2\x80\x9d\nHudson Water Co. v. McCarter, 209 U.S. 349, 357 (1908). 8\nAgreements or compacts to the effect that the Congress may not amend\nlegislation relating to the government of a non-state area without the\nconsent of the latter, or that federal legislation shall not apply to Guam\nunless consented to by the Government of Guam, would unquestionably\npurport to surrender essential powers of the federal government. They are\ntherefore not binding on the United States and cannot confer a property\ninterest protected by the Fifth Amendment. 9\nMore generally, the Supreme Court held in Bowen v. Agencies Opposed\nto Soc. Sec. Entrapment, 477 U.S. 41 (1986), that the contractual property\nrights protected by the Due Process Clause of the Fifth Amendment are\nthe traditional private contractual rights, such as those arising from bonds\nor insurance contracts, but not arrangements that are part of a regulatory\n7 Cases arising under the Contracts Clause holding that a state cannot contract away a\nsovereign power are also applicable to the contracts made by the federal government,\nbecause the Contracts Clause imposes more rigorous restrictions on the states than the\nFifth Amendment imposes on the federal government. Pension Benefit Guar. Corp. v.\nR.A. Gray Co., 467 U.S. 717, 733 (1984); Nat\xe2\x80\x99l R.R. Passenger Corp. v. Atchison, Topeka\n& Santa Fe Ry. Co., 470 U.S. 451, 472\xe2\x80\x9373 n.25 (1985). Hence, when state legislation\ndoes not violate the Contracts Clause, analogous federal legislation is all the more permissible under the Due Process Clause of the Fifth Amendment.\n8 Cited with approval with respect to federal legislation in Norman v. Balt. & Ohio\nR.R. Co., 294 U.S. 240, 308 (1935).\n9 Cases such as Lynch v. United States, 292 U.S. 571 (1934), and Perry v. United\nStates, 294 U.S. 330 (1935), are not contrary to this conclusion. Both cases involved\ncommercial agreements: Lynch, insurance; Perry, government bonds. In Lynch, the Court\nheld that Congress could not amend the contract merely to save money \xe2\x80\x9cunless, indeed the\naction falls within the federal police power or some other paramount power.\xe2\x80\x9d 292 U.S. at\n579. Perry involved bonds issued by the United States under the authority of Article I,\nSection 8, Clause 2 of the Constitution to borrow money on the credit of the United\nStates. The Court held that Congress did not have the power to destroy the credit of the\nUnited States or to render it illusory by unilaterally abrogating one of the pivotal terms of\nthe bonds to save money. While the Court held that the United States had broken the\nagreement, it nevertheless held that plaintiff could not recover because, as the result of\nregulations validly issued by the United States, he had not suffered any monetary damages.\n\n12\n\n\x0cMutual Consent Provisions in the Proposed Guam Commonwealth Act\n\nprogram such as a state\xe2\x80\x99s privilege to withdraw its participation in the\nSocial Security system with respect to its employees. Specifically, the\nCourt stated:\nBut the \xe2\x80\x9ccontractual right\xe2\x80\x9d at issue in this case bears little, if any,\nresemblance to rights held to constitute \xe2\x80\x9cproperty\xe2\x80\x9d within the meaning of the Fifth Amendment. The termination provision in the\nAgreement exactly tracked the language of the statute, conferring no\nright on the State beyond that contained in \xc2\xa7 418 itself. The provision constituted neither a debt of the United States, see Perry v.\nUnited States, supra, nor an obligation of the United States to provide benefits under a contract for which the obligee paid a monetary\npremium, see Lynch v. United States, supra. The termination clause\nwas not unique to this Agreement; nor was it a term over which the\nstate had any bargaining power or for which the State provided independent consideration. Rather, the provision simply was part of a\nregulatory program over which Congress retained authority to amend\nin the exercise of its power to provide for the general welfare.\nId. at 55. Agreements that the Guam Commonwealth Act may not be\namended without the consent of the Government of Guam, or that future\nfederal statutes and regulations shall not apply to Guam without the\nconsent of the Government of Guam clearly do not constitute conventional private contracts; they are elements of a regulatory system.\nThe Department of Justice has at times concluded that a non-state area\nmay have a vested interest in a specific status which would be immune\nfrom unilateral congressional amendment or repeal. 10 We cannot continue\nto adhere to that position in view of the rulings of the Supreme Court that\nlegislation concerning the governance of a non-state area is necessarily\nsubject to congressional amendment and repeal, that governmental bodies\nare not persons within the meaning of the Due Process Clause, and that\ngovernmental powers cannot be contracted away; and especially of the\nexposition in the recent Bowen case that the property rights protected by\n\n10\n\nCf. note 2.\n\n13\n\n\x0c__ Op. O.L.C. Supp. __ (July 28, 1994)\n\nthe Due Process Clause are those arising from private law or commercial\ncontracts and not those arising from governmental relations. 11\nSections 103 and 202 therefore do not create vested property rights protected by the Due Process Clause of the Fifth Amendment. 12 Congress\nthus retains the power to amend the Guam Commonwealth Act unilaterally or to provide that its legislation shall apply to Guam without the consent of the government of the Commonwealth. The inclusion of such\nprovisions, therefore, in the Commonwealth Act would be misleading.\nHonesty and fair dealing forbid the inclusion of such illusory and deceptive provisions in the Guam Commonwealth Act. 13\nFinally, the Department of Justice has indicated that it would honor\npast commitments with respect to the mutual consent issue, such as section 105 of the Covenant with the Northern Mariana Islands, in spite of its\nreevaluation of this problem. The question whether the 1989 Task Force\nproposal to amend section 103 of the Guam Commonwealth Act so as to\nlimit the mutual consent requirement to sections 101, 103, 201, and 301\n11 It is significant that the circumstances in which Congress can effectively agree not to\nrepeal or amend legislation were discussed in the context of commercial contracts. Bowen,\n477 U.S. at 52.\n12 Bowen, it is true, dealt with legislation that expressly reserved the right of Congress\nto amend, while the proposed Guam Commonwealth Act would expressly preclude the\nright of Congress to amend without the consent of the Government of Guam. The underlying agreements, however, are not of a private contractual nature, and, hence, are not\nproperty within the meaning of the Due Process Clause. We cannot perceive how they can\nbe converted into \xe2\x80\x9cproperty\xe2\x80\x9d by the addition of a provision that Congress foregoes the\nright of amendment.\n13 The conclusion that section 202 of the Guam Commonwealth Act (inapplicability of\nfuture federal legislation to Guam without the consent of Guam) would not bind a future\nCongress obviates the need to examine the constitutionality of section 202. In Currin v.\nWallace, 306 U.S. 1, 15\xe2\x80\x9316 (1939), and United States v. Rock Royal Co-op., Inc., 307\nU.S. 533, 577\xe2\x80\x9378 (1939), the Court upheld legislation that made the effectiveness of\nregulations dependent on the approval of tobacco farmers or milk producers affected by\nthem. The Court held that this approval was a legitimate condition for making the legislation applicable. Similarly, it could be argued that the approval of federal legislation by the\nGovernment of Guam is a legitimate condition for making that legislation applicable to\nGuam. Since, as stated above, a future Congress would not be bound by section 202, we\nneed not decide the question whether the requirement of approval by the Government of\nGuam for every future federal statute and regulation is excessive and inconsistent with the\nfederal sovereignty over Guam.\n\n14\n\n\x0cMutual Consent Provisions in the Proposed Guam Commonwealth Act\n\nconstitutes such prior commitment appears to have been rendered moot by\nthe rejection of that proposal by the Guam Commission.\nTERESA WYNN ROSEBOROUGH\nDeputy Assistant Attorney General\nOffice of Legal Counsel\n\n15\n\n\x0c'