LEGALITY AND EFFECT OF TRANSFERRING CERTAIN REAL PROPERTY PRESENTLY HELD BY AGENCIES OF THE FEDERAL GOVERNMENT TO THE POSTAL SERVICE

Sections 401 (5) and 2002 (c) of the Postal Reorganization Act (P.L. 91-375, August 12, 1970, revising and reenacting Title 39, United States Code) authorize transfers of real property to the Postal Service by interagency agreement rather than by deed. Transfers effected in this manner will give the Postal Service full power to convey or grant security interests in such property. The legislative history of the Postal Reorganization Act indicates that the word "pledge" used in section 2005 (b) was intended to be used in a nontechnical sense to mean any security arrangement, including a mortgage of real property, rather than the narrower technical meaning, which pertains to the bailment of personalty as security.

THE POSTMASTER GENERAL.

MARCH 25, 1971.

MY DEAR MR. POSTMASTER GENERAL: I have your letter requesting my advice concerning the legality of transferring certain real property presently held by agencies of the Federal Government to the new Postal Service by interagency agreements rather than by federal recorded deeds. You also inquire whether transfers effected in this manner would, in accordance with the Postal Reorganization Act (P.L. 91-375, August 12, 1970, revising and reenacting Title 39 of the United States Code), give the Postal Service complete power of disposition and control with respect to the property, including the power to sell, lease or mortgage.

Your letter is accompanied by an opinion of your General Counsel. I believe the conclusions reached in the opinion are correct and that the proposed transfer agreements are both authorized and will vest the new Postal Service with power “*** to hold, maintain, sell, lease, or otherwise dispose of such property of any interest therein ***" as provided by 39 U.S.C. § 401(5), including the power to mortgage, pledge,

or otherwise utilize such property as security, in connection with the borrowing activities of the Postal Service authorized by 39 U.S.C. § 2005.

Section 2002 (c) provides for the transfer of certain properties from the various agencies of the Government to the new Postal Service, with the approval of the Director of the Office of Management and Budget. There is no mention of the manner in which the transfer of real property is to be made, but I am informed that it is customary to effect such transfers through the use of interagency agreements. Nowhere in the statute is there any evidence that Congress intended to require conveyance by deed.

Section 401 (5) confers upon the Postal Service the power "to acquire property in any lawful manner" and "to hold, maintain, sell, lease, or otherwise dispose of such property or any interest therein." It is my opinion that the words "acquire property in any lawful manner" are sufficiently comprehensive so as to authorize transfers effected by interagency agreements as well as formal conveyance of title.1

It is my further opinion that the words "sell, lease, or otherwise dispose of such property or any interest therein" are also sufficiently comprehensive so as to authorize the conveyance or granting of any kind of security interest in the property acquired, including the mortgaging or pledging of such property.

The power to mortgage, pledge, or otherwise utilize the real or other property of the Postal Service as security is confirmed by other provisions of Title 39 and their legislative history. Section 2005 (a) thereof provides that, "The Postal Service is authorized to borrow money and to issue and sell such obligations as it determines necessary ***." The word "obligations" as used therein includes "mortgages" and "any other evidence of indebtedness." Id. 2001 (2). In addition,

1 At least one case has held with respect to another statute that it was the intent of Congress to authorize an agency to transfer the full control of Government real property to another agency without requiring a formal conveyance by deed. The court stated: "Congress did not require that such a transfer to the Navy should be recorded among the land records of the State ***.” Gibbs v. United States, 150 F. 2d 504, 508 (4th Cir. 1945), cert. denied, 326 U.S. 771.

Section 2005 (b) expressly authorizes the Postal Service to "pledge" its "assets." These "assets" will include those transferred to it by interagency agreement. Id. 2002 (c), second sentence. They will consist of both real and personal property. The legislative record is clear that the word "pledge," as employed in Section 2005 (b) and as discussed during extended hearings, was used in a nontechnical sense to mean any security arrangement, including "a mortgage," rather than being confined to its restrictive technical meaning of a bailment of personalty as security.2

On the basis of the above, it is my opinion that real property may be transferred to the new Postal Service by the use of interagency agreements approved by the Director of the Office of Management and Budget. Such transfers will vest the Postal Service with full power of disposition and control over the transferred property, including the right to sell, lease, or mortgage it. Sincerely,

JOHN N. MITCHELL.

'H.R. Rep. No. 1104, 91st Cong., 1st Sess. 20 (1970); Hearings on Various Proposals to Reform the Postal Establishment Before the House Committee on Post Office and Civil Service, 91st Cong., 1st Sess. 335, 1174-1175 (1969); Hearings on Reorganization of the Postal Establishment to Provide for Efficient and Economical Postal Service Before the Senate Committee on Post Office and Civil Service, 91st Cong., 1st Sess. 270-385 (1969).

INDIAN TREATY RESERVATION LANDS-AUTHORITY OF THE PRESIDENT TO RETURN POSSESSION OF LANDS PLACED IN NATIONAL FORESTS AND EXCLUDED FROM RESERVATIONS AS A RESULT OF ERRONEOUS SURVEYS

The treaty of 1855 vested in the Yakima Tribe of Indians a property right in their reservation lands which is protected by the Fifth Amendment to the Constitution.

Save in exceptional circumstances not present here, the physical appropriation of private property by the federal government does not result in a Fifth Amendment "taking" for which the United States is liable, unless the action is authorized by Congress, or an originally unauthorized action is subsequently ratified by Congress.

The good faith but erroneous exclusion of some 21,000 acres of land from the Yakima Indian Reservation by the proclamation of 1907 was not authorized by 16 U.S.C. 471 and related statutory provisions, and Congress has never ratified that erroneous action. The President has authority under 16 U.S.C. 473 to return the land to the Yakima Indian Reservation.

THE PRESIDENT.

JANUARY 18, 1972.

MY DEAR MR. PRESIDENT: You have asked for my opinion regarding the legal question whether some 21,000 acres of land in the State of Washington, which were originally intended to be included within a reservation established by an 1855 treaty with the Yakima Tribe of Indians, but which have been administered by the Forest Service as part of a national forest since 1907, have been "taken" from the Tribe by the United States within the meaning of the Fifth Amendment to the Constitution. The General Counsel of the Department of Agriculture, representing the Forest Service, has concluded that the land in question has been "taken" and that at least as to a portion of the lands now designated a wilderness area, legislation would be necessary to restore the land to the Tribe. The General Counsel of the Department of the Interior, representing the Tribe's interests, is of the view that no