David J. Gilmartin, Esq. County of Suffolk
You inquire how counties should distribute payments from the United States Secretary of the Interior in lieu of taxes on land managed by the United States Fish and Wildlife Service and located in the county. State law has not been amended to reflect changes in Federal law, resulting in statutory differences in the formulas for distribution of the payments and the purposes for which the payments may be used.
Under 16 USCA § 715s counties in which wildlife refuge land is located receive the payments from the Secretary of the Interior. The payments are to be distributed under guidelines established by the Secretary to those units of local government which have incurred the loss of or a reduction in real property tax revenues by reason of the existence of a wlidlife refuge area. Payments received by local governments may be used for any governmental purpose (16 USCA § 715sc [5] [A]). Under the guidelines, the funds are to be distributed in proportion to their tax loss to cities, towns, townships, school districts and counties which levy and collect real property taxes in the wildlife refuge area (for specifics, see 50 C.F.R. § 34.5 [c]).
Section 550 (5) of the County Law implements the Federal law by authorizing counties to distribute the funds. However, section 550 (5) has not been amended to reflect a 1978 amendment of the Federal law (Public Law, 95-469, § 1 [a]). Section 550 (5) follows the former Federal law which directed the distribution to towns, villages and school districts based on valuation of land in the wildlife refuge area and restricted use of the money to town and village highway and public school purposes.
The State of New York and its political subdivisions are required to follow the Federal law (United States Constitution, Art VI, § 2, supremacy clause). Fortunately, the Federal regulations provide that in the event a county cannot make the required distribution because of state or local law or for other reasons, the United States Fish and Wildlife Service will make the payments directly to local governments upon return of the check with information as to how the payments should be made to the local governments (50 C.F.R. § 34.5 [c]). We recommend that the county inform the Service of the county's inability to make the required distribution because of the outdated State law and return to the Service the funds received with information on how to distribute the funds under the current Federal laws and regulations. Under the Federal regulations the Service should then make the distribution and recipients may utilize funds for the purposes stated in the Federal law.
We recommend that section 550 (5) of the County Law be amended to provide simply that the county treasurer is directed to distribute funds in the manner that the United States requires (cf. section 554 of the General Municipal Law).
We conclude that until section 550 (5) of the County Law is amended, counties should return to the United States Fish and Wildlife Service funds received in lieu of taxes for distribution to eligible municipalities.