Exchange Authority for Kaloko Honokohau National Historical Park

Exchange Authority for Kaloko Honokohau
National Historical Park

T he Departm ent o f the Interior is authorized to acquire privately held land for the K aloko Honokohau
National H istorical f t r k by exchanging it for surplus federal land of equivalent value w ithin the
State of Hawaii. Its exchange authority does not, however, extend to excess as well as surplus
federal land, nor to land outside the State of Hawaii.

T he power to d ispose o f property of the United States is com m itted under the C onstitution to
C ongress, and the E x ecutive’s disposition of federal land in any particular case m ust be undertaken
in accordance w ith w hatever rules C ongress has established for this purpose. In this ca se , the
D epartm ent o f the Interior’s specific exchange authority in connection with the Park is pre­
sum ptively lim ited by the otherwise applicable general legal restrictions on federal land exchange
transactions.

May 20, 1982

MEMORANDUM OPINION FOR THE
UNDERSECRETARY OF THE INTERIOR

This responds to your request for the Department’s legal opinion on two issues
relating to your authority to acquire land for the Kaloko Honokohau National
Historical Park in Hawaii. Both issues involve Interior’s authority under the 1980
provision in its appropriations act to acquire what is now privately owned land by
exchanging it for federal land of equivalent value. The first question is whether
both “ surplus” and “ excess” federal real properties are available for such an
exchange under the 1980 law. The second question is whether federal land in
other states may be exchanged for the privately held Hawaiian land in question.
The General Services Administration (GSA), in an opinion of its General
Counsel dated August 25, 1981, takes the position that only intrastate exchanges
of surplus real property are authorized. The Assistant Solicitor of the Interior and
counsel for the private property owners disagree, taking the position that the
1980 law authorizes interstate exchanges of both surplus and excess property.1
For reasons stated below, we believe that the result reached by the GSA is correct,

1 See A ug. 14, 1981, M em orandum to the A ssistant S ecretary for Fish and W ildlife and f c r k s , and the letter of
S ept. 14, 1981, from C arla A H ills to Stephen Thayer, A ssistant to the A dm inistrator o f G SA T h e legal opin io n s
cited are confined to the issue raised by the proposed exchange of land in differen t states, and d o not d iscu ss the
question w hether both “ surplus” and “ excess” property m ay be exchanged. We gather that d isag reem en t with
respect to the latter question arose som etim e after these opinions were w ritten, and we have not been made aw are of
the argum ents advanced in support of either position

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and that the only land authorized for exchange by the 1980 law is federal surplus
land within the State of Hawaii.

I. Legislative Background

The Kaloko Honokohau National Historical Park was established by the
National Kirks and Recreation Act of 1978 (1978 Act), Pub. L. No. 95-625, 92
Stat. 3499, “ to provide a center for the preservation, interpretation, and per­
petuation of traditional native Hawaiian activities and culture . . . .” See
§ 505(a) of the 1978 Act, 16 U .S.C . § 396d(a) (Supp. II 1978). Authority to
acquire land for the Park was given to the Secretary of the Interior in § 505(b) of
the 1978 Act:
Except for any lands owned by the State of Hawaii or its
subdivisions, which may be acquired only by donation, the Secre­
tary is authorized to acquire the lands described above by dona­
tion, exchange, or purchase through the use of donated or appro­
priated funds, notwithstanding any prior restriction of law.
16 U.S.C. § 396d(b) (Supp. II 1978).
Since the Park’s establishment, Congress has failed to appropriate any funds to
acquire privately held land for the Park. Nor, apparently, has it been possible
otherwise to acquire the particular property in question.
In 1980, additional legislation was passed to augment the Secretary’s authority
to acquire land under the 1978 Act. This legislation, enacted as a floor amend­
ment to your Department’s appropriation act for fiscal 1981, Pub. L. No.
96-514, 94 Stat. 2960, reads in its entirety as follows:
Notwithstanding any other provision of law, the Secretary is
authorized and shall seek to acquire the lands described in Section
505(a) of the Act of November 10, 1978 (92 Stat. 3467) by first
acquiring Federal surplus lands of equivalent value from the
General Services Administration and then exchanging such sur­
plus lands for the lands described in Section 505(a) of that Act
with the land owners. Exchanges shall be on the basis of equal
value, and any party to the exchange may pay or accept cash in
order to equalize the value of the property exchanged.

II. Whether Excess Property as Well as Surplus
Property Is Available for Exchange

With respect to your first question, we find no support in the terms of the 1980
appropriation act or its legislative history for an argument that “ excess” as well
as “ surplus” real property should be available for an exchange transaction. By its
terms, the 1980 provision refers only to “ federal surplus lands” held by the
General Services Administration. Under the Federal Property and Administrative
Services Act of 1949, 40 U .S.C . §§ 471-514, the law pursuant to which the

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GSA holds and administers federal property, the terms “ surplus” and “ excess”
denote two quite distinct categories of property.2 Property determined by one
agency to be in “ excess” of its needs can be sold or otherwise disposed of outside
the federal government as “ surplus” only when and if the Administrator of
General Services determines that no other executive agency needs it. See 40
U.S.C. § 483(a)(1) and 41 C.F.R. § 101^7.201-1.
When the 1980 legislation speaks of the acquisition of “ surplus” property
from the GSA, we believe it reasonable to assume that Congress intended that
term to have its ordinary meaning under the Property Act. See 2A Sutherland
Statutes and Statutory Construction § 47.27 (4th ed. 1973). See also Watt v.
Alaska, 451 U.S. 259, 267 (1981) (two statutes dealing with the same subject
must be read to give effect to each other if possible “ while preserving their sense
and purpose” ). This assumption is confirmed by the legislative history of the
1980 provision. In explaining the legislation he had introduced, Senator Hatfield
stated that “ [a]ll this does is to give, in effect, authorization to the GSA and the
Forest Service [sic] under existing rules, regulations, and laws” to attempt to
acquire the private property through an exchange transaction. 126 Cong. Rec.
29665 (1980).3

III. Whether Interstate Land Exchanges Are Authorized
by the 1980 Provision

As a general matter, the power to dispose of property of the United States is
committed to Congress by Article IV, section 3, clause 2 of the Constitution. This
power of Congress is “ exclusive,” and “ only through its exercise in some form
can rights in lands belonging to the United States be acquired.” Utah Power and
Light Co. v. United States, 243 U.S. 389, 404—05 (1917). It follows that
Congress may “ prescribe the conditions upon which others may obtain rights in
them.” Id. at 505. Accordingly, the Secretary’s authority under both the 1978 and
1980 statutes to dispose of federal lands by exchanging them for privately owned
lands for the Park must be exercised in accordance with whatever particular rules
Congress has established. One set of rules applicable generally to land exchange
transactions in the National Park System is set forth in 16 U.S.C. § 460/-22(b):
The Secretary of the Interior is authorized to accept title to any
non-Federal property or interest therein within a unit of the
National Park System or miscellaneous area under his administra­
tion, and in exchange therefor he may convey to the grantor of

2 “ Excess p ro p erty ” is defined in § 3(e) of the P roperty Act as “ any property un d er the control o f any F ederal
agency w hich is not required for its needs and th e discharge o f its responsibilities, as d eterm ined by the head
th e re o f” 40 U S C . § 47 2 (e) “ S urplus p ro p erty ” is defined in § 3(g) as “ any excess property not required fo r the
needs and the discharge o f the responsibilities of all Federal agencies, as d eterm ined by the A dm inistrator [of
G eneral S ervices]." 40 U S C § 472(g) (em phasis added).
3 W hen C ongress has m ade an exception to general practice under the P roperty A ct w ith respect to the
adm inistration and disp o sitio n of excess property, it has been explicit See, e g , 4Q\J S .C . § 48 3 (a)(2 ) (GSA m u st
transfer to the S ecretary o f the Interior any excess real property located w ithin an Indian reservation, to be h eld in
trust for the use and benefit o f the tribe, w ithout regard to w hether any other Federal agency needs o r w ants to acq u ire
it for its ow n use).

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 such property or interest any Federally owned property or interest
therein under his jurisdiction which he determines is suitable for
exchange or other disposal and which is located in the same State
as the non-Federal property to be acquired . . . . The values of
the properties so exchanged either shall be approximately equal,
or if they are not approximately equal, the values shall be equal­
ized by the payment of cash to the grantor from funds appropri­
ated for the acquisition o f land for the area, or to the Secretary as
the circumstances require. (Emphasis supplied.)

Section 460/-22(b) was enacted as § 5(b) of the Land and Water Conservation
Fund Amendments of 1968, Pub. L. No. 90-401, 82 Stat. 356. By its terms, it
applies to all land exchange transactions in “ the National Park System or
miscellaneous area[s] under [the Secretary’s] jurisdiction.” Its legislative history
indicates that Congress intended to impose “ consistent” limiting conditions on
the Secretary’s authority to acquire private land for national parks by exchange,
confining the land available for such exchanges to “ federally owned tracts under
the jurisdiction of the Department of the Interior in the same State, or States, as
the national park unit.” S. Rep. No. 1071, 90th Cong., 2d Sess. 8-9 (1968). In
1970 the general applicability of § 460/-22(b) to all land exchange transactions
in the National Park System (unless “ in conflict with any . . . specific provi­
sion” ) was affirmed by § 2(b) of Pub. L. No. 91-383,84 Stat. 826, codified at 16
U .S.C . § lc(b). See H.R. Rep. No. 1265, 91st Cong., 2d Sess. 8 (1970) (letter
from Secretary of the Interior Hickel).4
Your Department does not contend, nor do we think it reasonably could, that
the general limitations on the Secretary’s land exchange authority contained in
§ 460/-22(b) are not applicable to exchanges under § 505(b) of the 1978 Act. We
agree, then, that under the 1978 Act standing alone the Secretary would have
been authorized to acquire privately owned land for the Park by exchange only
when the federal property to be exchanged is (1) “ under his jurisdiction” and (2)
“ located in the same State as the non-Federal property to be acquired.” The
question thus arises whether the 1980 enactment modified the Secretary’s ex­
change authority under the 1978 Act.
Your Department interprets the 1980 enactment to authorize the Secretary to
acquire from GSA federally owned land in other states in order to exchange it for
the privately owned land in Hawaii. That is, you believe the 1980 provision
carves out an exception to the intrastate restriction which otherwise governs all
land exchanges transactions in the national park system. Your position in this
regard appears to be based on a broad reading of the 1980 provision’s

4 W hen C o n g ress has m ade an exception to th e intrastate restrictio n of § 4 6 0 /-2 2 (b ), it has been quite specific
See. e .g ., 16 U S .C § 4 5 9 c -2 (c ) (S ecretary m ay acquire land for Point R eyes National S eashore by exchanging
p ro p erty u n d er his ju risd ic tio n “ within C a lifo rn ia and adjacent States” ); 16 U .S C . § 4 5 9 /- l( b ) (A ssateague
N ational S eashore; land in M aryland or V irginia m ay be exchanged); 16 U .S C . § 4 6 0 o - l( a ) (D elaw are Water G ap
N ational R ecreation A rea; o n ly land in P ennsylvania, New Jersey or New York may be exchanged), 16 U .S .C .
§ 4 6 0 /- l ( a ) (B ig h o m C anyon National R ecreation Area; land in M ontana o r W yom ing m ay be exchanged); 16
U .S .C § 4 6 0 w -l(a ) (In d ian a Dunes N ational Seashore, land in Indiana o r Illinois may be exchanged)

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introductory phrase, “ [notwithstanding any other provision of law.” See Assist­
ant Solicitor Watts’ memorandum of Aug. 14, 1981. We cannot agree that the
phrase accomplishes so much.
At the outset, it is not clear from the text of the 1980 provision whether the
introductory “ notwithstanding” phrase modifies the specific directive in this
provision to acquire surplus land from GSA for the purpose of exchange, or
whether it modifies the Secretary’s statutory exchange authority itself. If the
former reading were correct, the phrase would not supersede more generally
applicable legal conditions governing an exchange transaction, such as
§ 460/-22(b). If the latter reading were correct, then the introductory phrase
would have to be read to repeal every statutory restriction on or regulation of the
Secretary’s power to acquire the land in question. See, e .g ., 40 U.S.C. § 255 or
42 U.S.C. § 4651. This latter reading would, in rendering all such restrictions
and regulations legally ineffective, repeal by implication all such restrictions and
regulations.
Repeals by implication are not favored, see Watt v. Alaska, supra, 451 U.S. at
267. We would be, therefore, reluctant to give such a broad reach to this
ambiguous provision in the 1980 enactment without clearer textual expression of
legislative intent. See also TVA v. Hill, 437 U.S. 153,189-90 (1978) (exceptions
to a generally applicable statute will not be implied from subsequent legislation,
particularly where the subsequent legislation is an appropriations act). In addi­
tion, as pointed out in notes 3 and 4 supra, this particular problem of statutory
construction arises in a context in which Congress has historically legislated with
care and specificity when authorizing exceptions to the general congressionally
established rules governing acquisition and disposal of property by the Ex­
ecutive. Accordingly, we would normally give the “ notwithstanding” phrase the
narrower of the two readings absent other persuasive evidence of congressional
intent to the contrary.
The brief legislative history of the 1980 law, found at 126 Cong. Rec. 29665
(1980), confirms, rather than contradicts, our reading of the 1980 enactment.
Senator Hatfield described the difficulty created by Congress’ failure to appropri­
ate funds to purchase the privately held Hawaiian land for the Park, and explained
his proposed legislative solution in the following terms:

Mr. President, this is one of those very interesting situations
where we are trying to correct an inequity that exists at this time.
The Congress of the United States authorized the establishment of
a park in Hawaii and this park was to be developed out of a large
parcel of private ownership. The only problem is that the Govern­
ment has not had the appropriations to make this purchase, and it
has now been appraised at about $60 million.
The owners of this property are people of modest income, of
increasing age. In fact, I believe the owner is now near 70.
They realize that, for the first time, if they should die their heirs
would be thrust into a very untenable position of having to pay

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 inheritance tax on estate ownership, including this $60 million
appraised value land.
They have asked for relief in this situation. The GSA and the
Forest Service [sic] have agreed that there is land in Hawaii that
they could easily exchange and thereby create a fluid landholding
as against this one buyer market situation they face.
All this does is to give, in effect, authorization to the GSA and
the Forest Service [sic] under existing rules, regulations, and laws
to proceed to redress this particular hardship that has been placed
upon these innocent people.
This passage reveals no intention to remove the otherwise applicable intrastate
restriction of 16 U .S.C . § 460/—22(b). Indeed, Senator Hatfield seems to have
assumed that the transaction to be facilitated by his legislation would involve only
federal surplus land located in Hawaii (“The GSA and the Forest Service [sic]
have agreed that there is land in Hawaii that they could easily exchange. . . .”).
This, coupled with his final reference to “ existing rules, regulations, and laws”
which we have already quoted above, convinces us that the 1980 legislation was
not intended to carve out an exception to § 460/-22(b) so as to permit intrastate
land exchanges.
The most plausible explanation for the introductory “ notwithstanding” phrase
is found in what has been described to us by the Assistant Solicitor as the GSA’s
pre-1980 reluctance to make available surplus property for the purposes of
exchange except in accordance with the strict conditions imposed by its own
regulations.5 The 1980 legislation was, we conclude, intended to encourage the
GSA to make available surplus property for the exchange by providing the
specific legal authority which the GSA apparently felt was insufficient under the
1978 law. It was not, however, intended to remove legal restrictions which would
otherwise be applicable to the exchange itself.

T h eo d o r e B . O lso n
Assistant Attorney General
Office c f Legal Counsel

5 See 41 C .F R . § 101—47 301—1(c) (“surplus real property shall be disp o sed o f by exchange for privately ow ned
p ro p erty o n ly fo r p roperty m anagem ent co n sid eratio n s such as boundary realignm ent o r provision of access o r in
th o se situ atio n s in w hich the acquisition is a u th o rized by law, the requesting Federal agency has received approval
fro m the O ffice o f M an ag em en t an d Budget a n d clearance from its congressio n al oversight com m ittees to acquire by
e x c h an g e, an d th e transaction offers substantial econom ic o r unique program advantages n ot otherw ise obtainable
by any o th e r m ethod o f acquisition.’').

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