U.S. Department of Transportation
Federal Highway Administration
Subject: Ft. Ord Federal Land Transfers
Date: November 7, 1997
From: Acting Chief Counsel
Reply to Attn. of: HCC-31
To: Ms. Sara M. Purcell Deputy Regional Counsel
San Francisco, CA (HRC-09)
This is in response to your questions concerning the deeds for transfer of land at Ft. Ord to various grantees for highway and highway-related purposes.
Issues
l) What is a purpose eligible for transfer under 23 U.S.C. Section 317 and 23 C.F.R. Part 712, Subpart E? 2) Can a parcel be transferred if there is no current, future or past Federal-aid project number associated with the transfer? 3) How specific should such language in the deed be in describing the intermodal use of the parcel? 4) Can the 10-year time period in the regulations be waived? 5) What interim uses of the property can occur before the property is utilized for transportation purposes?
Response
Discussion
Transfers Eligible Under 23 U.S.C. § 317
The authority of Section 317 extends only to Federal-aid projects. Subsection (d) states that the provisions of Section 317 apply only to "projects constructed on a Federal-aid system" or under the provisions of chapter 2 of title 23. 23 U.S.C. § 317(d) (1990). Chapter 2 of title 23 provides for the direct Federal program. When a transfer does not involve the direct Federal program, the transfer must be for a project constructed on a Federal-aid system. i.e., under Chapter l of Title 23.
The meaning of the term "Federal-aid system," however, must be interpreted in light of the Intermodal Surface Transportation Efficiency Act of 1991 (ISTEA), Pub. L. No. 102-240. Prior to ISTEA, four Federal-aid systems existed: The primary system, the urban system, the secondary system, and the Interstate system. 23 U.S.C. § 103 (1990). Federal-aid projects were limited to these systems. ISTEA changed this situation. Only the Interstate System and the National Highway System are delineated as Federal-aid systems. 23 U.S.C. § 103 (Supp. 1996). Federal funding is no longer confined to Federal-aid systems. Section 1007 of ISTEA created a Surface Transportation Program (STP) now codified at 23 U.S.C. § 133 (Supp. 1996). STP projects do not need to be on a Federal-aid system, unless the road involved is functionally classified as a local or rural minor collector 23 U.S.C. § 133{c) (Supp. l996).
An examination of the statutory language would seem to argue for the interpretation that only projects on the National Highway System and Interstate System are eligible for application of Section 317. If unambiguous, the language of the statute is ordinarily to be regarded by courts as conclusive absent clearly expressed legislative intent to the contrary. See Chevron U.S.A., Inc. v. Natural Resources Defense Council. Inc. 467 U.S. 837, 842-43 (1984) (stating that "if the intent of Congress is clear, that is the end of the matter, for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress"). See also Sutherland Stat, Const. § 46.01 (5th Ed). Subsection 3-17(d) limits applicability to projects constructed on a Federal-aid system. Both before and after ISTEA, Section 101 defined a Federal-aid system as "any one of the Federal-aid highway systems described in Section 103 of title '.B." 23 U.S.C. § 101 (1990 & Supp. 1996). As explained above, under the current Section 103 of title 23, only the National Highway System and the Interstate System are described. If the meaning of the statute is clear, then no further analysis is necessary, and projects are limited to the National Highway and Interstate systems.
Use of the plain meaning rule in this instance would be inappropriate, as it would ignore past FHWA interpretations of Section 317. If Congress has not directly addressed the precise question at issue, interpretation is necessary. If the statute is silent or ambiguous with respect to the specific issue, the question is whether the agency's answer is based on a permissible construction of the statute. Chevron U.S.A. 467 U.S. at 843. Prior to ISTEA, the wording of subsection 317(d) merely limited application to Federal-aid projects. Enacted into law in I 958, Section 317 was drafted at a time when projects which were not on a Federal-aid system were not eligible for Federal funding and only projects which were on a Federal-aid system were eligible for funding. The determination to be made by the Secretary under Section 317 has been described by the Federal Highway Administration (FHWA) as a determination "that the land or interest in land is reasonably necessary for a Federal-aid highway project." Attorney's Manual for Condemnation and Public Land Transfers, Third Edition (1989) at Appendix 11. By thus equating the term "project on a Federal-aid system"' in subsection 3l7(d) with Federal-aid highway projects, FHWA determined that the purpose of specifying that the projects must be on a Federal-aid system was to limit the applicability of Section 317 to Federal-aid projects.
As was the case with other provisions discussing Federal-aid systems. Section 317 was not amended by ISTEA. A strict interpretation of the term "Federal-aid system" would have rendered many of the title 23 provisions meaningless, or led to absurd results. The term "Federal-aid system" in Section 317 must be interpreted in accordance with past agency practice and the overall statutory intent of ISTEA. The overall statutory intent of ISTEA was to develop a national intermodal transportation system consisting of all forms of transportation in a unified, interconnected manner. ISTEA, Pub. L. No. 102-240, § 2. Elimination of Federal-aid system definitions fit within the intent to develop an intermodal transportation system because it was coupled with expanding project eligibility to include STP projects. For example, the definition of Federal-aid highways was changed. Prior to ISTEA, the term Federal-aid highways was defined as "highways located on one of the Federal-aid systems described in Section l01 of Title 23."
23 U.S.C. § 101 (1990). This definition was changed by ISTEA to be "highways eligible for assistance under this chapter other than highways classified as local roads or rural minor collectors." 23 U.S.C. § 101 (Supp. 1996). In light of the legislative intent to expand eligibility to new types of intermodal projects, FHWA should be reluctant to reinterpret Section 317 in a newly restrictive manner which defeats this goal. The term "Federal-aid system" in Section 317 ought therefore to be interpreted in light of the overall statutory intent of ISTEA.
To be consistent with the legislative intent, and with past agency interpretation, the phrase "projects: constructed on a Federal-aid system" in subsection 317(d) should be read as "projects constructed on a Federal-aid system or projects receiving funding under tide 23." A purpose eligible for transfer under Section 317 is therefore a transfer for a Federal-aid project, including Federal-aid projects which are not located on the National Highway or Interstate systems.
Federal-aid Number
A parcel cannot be transferred if there is no current, future or past Federal-aid project number associated with the transfer. Section 317 is for transfer of land in conjunction with Federal-aid projects. All Federal-aid projects have project numbers. If there is no Federal-aid project connected to the land transfer, the transfer is not eligible under Section 317. In order to exercise our authority, a Federal-aid project number is therefore needed in order to document a connection to the agency's mandates.
Specificity of Deed Language
Language in the deed describing the use for which the parcel is transferred must be specific enough that use is limited to Federal-aid eligible activities. For a transfer to occur under Section 317, it must be determined that the lands are reasonably necessary for the right-of-way of any highway, or as a source of materials for the construction or maintenance of any such highway adjacent to such lands or interests in lands. 23 U.S.C § 317(a)(1990). The granting document should therefore provide the identity of the Federal-aid or Interstate highway project involved and a determination that the lands or interests in lands described in the granting document are reasonably necessary for the project. See Attorney's Manual for Condemnation and Public Land Transfers. Third Edition (1989) at l.9(B). The deed must also specify that the lands revert to the control of the Department from which they had been appropriated when the purpose no longer exists. 23 U.S.C. § 317(c)(l990).
The meaning of highway right-of-way has been broadly construed, and the lands need not be contiguous with the Federal-aid project. The clause "for the right-of-way of any highway" in Section 317(a) is interpreted to mean "with respect to" or "in connection with" or "with regard to" a highway. Lands required as a maintenance site, stockpiles site, or for scenic purposes or for other construction projects and highway maintenance after the completion of the project have been found eligible for transfer under Section 3l7(a). Attorney's Manual for Condemnation and Public Land Transfers. Third Edition (1989) at L 13(c). Such a project need not be contiguous with the land transferred as the meaning of "adjacent" is given a broad interpretation. Id. A materials site ten miles from construction has been found to be adjacent. Southern Idaho Conference Twenty Seventh Day Adventists v. United States, 418 F.2d 411,416 (9th Cir. 1969). This broad interpretation has been in place for a long time. 11/06/75 Legal Opinion of Staff Attorney Arthur Goldstein, Problem Involving the Transfer of Maintenance Sites Pursuant to 23 U.S.C. § 317 for Presentation at AASHTO'' (citing l00.14(c) of the then-current: version of the Attorneys Manual for Condemnation and Public Land Transfers, which is identical to the 1989 text).
Considering this interpretation in light of the revisions to title 23 made by ISTEA, a land transfer which is in connection with a STP or other Federal-aid project would fall within the definition of "for the right-of-way of any highway." The term "roadway" includes roads, streets and parkways, rights-of-way, bridges, railroad-highway crossings, tunnels, drainage structures, signs, guardrails. and protective structures in connection with highways. 23 U;S.C. § l01(a)(Supp. 1996). The term "including" is not one of all-embracing definition, but connotes simply an illustrative application of the general principle. Federal Land Barne v. Bismarck Co., 314 U.S. 95, 99-100 (1941). When a statute uses the: word "includes" rather than "means" in defining a term, it does not imply that items not listed fall outside the definition. Highway & City Freight Drivers v. Gordon Transports. Inc, 576 F.2.d 1285; 1289 (8th Cir. 1978), cert. denied. 439 U.S. l 002 (1978) (citing Pfizer. Inc. v. Government of India 434 U.S. 308, 312 n. 9 (1978) and Helvering v. Morgan's, Inc., 293 U.S. 121, 125 n.l (1934)). See also Sutherland Stat. Constr. § 47.07 (5th Ed). Although it deals with acquisition of rights-of-way from non-Federal sources, Section 108 shows that an expansive reading is warranted. Section l08(a) speaks of acquisition of rights-of-way on any Federal-aid highway, and Section 108(d)(1)(a) explicitly states that the funding provisions apply to rights-of-way which are subsequently incorporated into a project eligible for surface transportation funds. 23 U.S.C. § 108 (Supp. 1996). Projects eligible for surface transportation funds include transportation enhancement activities, carpool projects, fringe and corridor parking facilities, and bicycle transportation and pedestrian walkways. 23 U.S.C. § 133 (Supp. 1996). Interpreting the term "highway'' in light of Section 108, Section 317 could thus be utilized for Federal-aid projects eligible for STP funding. These uses must, however, be specified in the deed.
In addition, language must be specific enough to allow a determination that lands are no longer needed. Section 317(d) states that the state highway department is to notify the Secretary if the need for the lands no longer exists. 23 U.S C. § 317(d). The description in the deed you sent, marked "Deed #2," is not specific enough to clearly delineate when the State highway department should perform this notification function. Deed #2 states that the use of the property is limited for highway uses and for related purposes Deed #2 further states:
For purposes of this deed, the term highway uses or related purposes includes, but is not limited to, use as a public intermodal transportation center, park and ride facility, arid such other ancillary uses in support of the provision of governmental services by the Grantee.
Under this broad granting language, it would be extremely difficult to ascertain when the land ceases to be utilized for an acceptable highway use. At a minimum, the deed should specify that the State highway department must notify the Secretary if the use of the lands by the grantee could not qualify as part of a Federal-aid eligible project activity. The deed should also identify the Federal-aid project involved and state that a determination has been made that the lands are reasonably necessary for the project.
Time Limit Under 23 C.F.R. Part 712. Subpart E
The ten-year requirement cannot simply be ignored. Item (I)(e) of the Appendix to 23 C.F.R. Part 712, Subpart E requires a commitment to construct the highway on the lands to be transferred within a period of not more than 10 years following the transfer of the lands to the State. Although no explanation for this provision is given in the Federal Register notice. 39 Fed. Reg. 32,604 (1974), the ten-year limit seems to have been chosen so that these regulations would be in agreement with Section 108, concerning the advance acquisition of rights-of-way. Prior to ISTEA, Section 108 had a ten-year limit for the advance acquisition of rights-of-way. 23 U.S.C. § l08(a) and (c)(3)(1990). It should be noted, however, that Section 1017 of ISTEA changed this time limit to twenty years. 23 U.S.C §§ 108(a) and 108(c)(3)(Supp. 1996). If consistency with Section 108 is in fact the goal, the current regulation is outdated, and should be revised.
Agencies must follow their own regulations, even when the regulations are more restrictive than the underlying statutory authority. Agencies are required to follow their own regulations. United States v. Nixon. 418 U.S. 683, 694-96 (I 974). So long as this regulation is extant, it has the force of law. (d. The regulations were published in the Code of Federal Regulations, but under an exception to the APA notice and comment requirements. Cf. Miler v. Henman, 804 F.2d 42l (7th Cir I986) cert. denied, 484 U.S. 844 (1987) (holding no enforceable entitlements when manual was neither promulgated under the Administrative Procedure Act nor published in the Code of Federal Regulations). Agencies may, of course, amend regulations to change the interpretation. See Bernard Schwartz, Administrative Law (1991) § 4.9. FHWA has acknowledged that a comprehensive review is needed of all regulations that effect right-of-way program administration and property management issues. An advance notice of proposed rulemaking has been issued 60 Fed. Reg. 56004, (1995). Based on the responses to this notice, and other factors. FHWA has concluded that a comprehensive revision of the Right-of-Way related regulations is required. 61 Fed. Reg. 18246 (1996) FHWA is currently considering changes to these regulations, although no action concerning the ten-year limitation has yet been taken.
In anticipation of a revision in the regulation, the ten-year limit could be modified in a Memorandum of Understanding (MOU) with the Department of the Army. Currently, FHWA is negotiating a MOU with another Federal agency which will contain a twenty-year time period.
This MOU will bring the covered Section 317 land transfers back into accord with the time period specified in Section 108. When the regulations are revised, the MOU will accord with them. A Memorandum of Understanding with the Army might be particularly useful in the case of base closures. In additional to comprehensively defining the procedures and responsibilities for Section 317 transfers done in the context of base closures. The appropriate time limitation when dealing with base closures be different from other types of Federal land transfers.
Interim Use of Property
Interim use of property acquired in connection with Federal-aid highway projects is regulated under 23 C.F.R. Part 713 subpart A. Property may be leased for temporary use until it is needed for highway purposes. 23 C.F.R. § 713.103(h)(1997). Property management activities are to be handled in a manner consistent with the public interest and designed to reflect the maximum long-range public benefit. 23 C.F.R. § 713. l03(c).
Conclusion
A purpose eligible for transfer under 23 U.S.C. Section 317 and 23 C.F.R. Part 712, subpart E is a transfer for a Federal-aid project. A parcel cannot be transferred if there is no current, future or past Federal-aid project number associated with the transfer. Language in the deed must be specific in describing the use of the parcel, in that the use must qualify as a Federal-aid project use. The granting document should identify the Federal-aid or Interstate highway project involved and a determination that the lands or interests in lands described in the granting document are reasonably necessary for the project. The 10-year time period in the regulations cannot be arbitrarily waived, absent some sort of directive from the Office of Real Estate Services. Interim use of the property is regulated under 23 C.F.R. Section 713 subpart A.
If the state and the local governments desire more flexibility, we recommend that they support legislation which would grant additional base closure authority. Section 317 requires the Federal Government to retain a reverter, and limits use of the land to Federal-aid eligible activities. If the desired outcome for the local governments is fee simple title to future rights-of-way, legislation granting additional authority to transfer fee simple title for rights-of-way and allowing more freedom with respect to use of the property might best serve the needs of communities facing base closure situations.
