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Professor BICKEL. Thank you.
Professor MILLER. Into the contract, you mean, the escalation clause?
Mr. Wisby. Into the act of authorization, which then would enable our money to keep pace with escalation of costs.
Professor BICKEL. What I am driving at, of course, which is not a conclusionary statement from these facts, is that, especially in construction contracts, an impoundment for a period of years, like this, amounts pretty well to saying that that project is dead.
Mr. WISBY. I think that has happened.
Professor STOLZ. So at least in theory the building can be built tomorrow, or at least you think it can, assuming it can be built for that cost?
Mr. W'Isby. A building, if not the building originally planned.
Professor STOLZ. This morning, I think it was Mr. Cohn, who was with Mr. Weinberger-first used the phrase that the project had been terminated. You used the phrase "terminated.” Is that just your gloss on what has happened ?
Mr. W'Isly. No; we have been instructed to cease planning for the National Fisheries Center and Aquarium and to terminate the operation in 1972; beginning now and finishing in 1972.
Professor BICKEL. What is meant by "terminating” in those terms? Mr. WISBY. Simply that the project will not be constructed.
Professor BICKEL. Why would you need so much leadtime in order to terminate it? Why is it not terminated, as of this minute? What do you have to do to terminate it?
Mr. Wisby. I do not know why that language was used. We have equipment on hand which will have to be disposed of. There are certain kinds of things that will have to be done in order to unwind an ongoing machine.
Professor STOLZ. That is presumably what you were spending the money on that you did spend in 1969, 1970, and 1971.
Mr. Wisby. In building that machinery.
Professor MILLER. The order, then was not just to impound, but
Professor BICKEL. How do you understand the time lapse that is put in there? Why do they say: "Let us terminate this as of 1972" ? Why not now?
Mr. Wisby. I think the project is effectively terminated as of now. I think the time lapse is there in order to dispose of the properties that have been accumulated, in order to turn laboratories into other functions, and in order to dismantle a planning and research team.
Mr. Wisby. Yes, we have started that.
Professor JOHNSON. Have you had experience with impoundment before?
Professor BICKEL. Which you are now in the process of doing!
Mr. Wisby. No; I have had experience with water impoundment, but not this.
Professor BICKEL. Perhaps fish out of water might be a good analogy.
Mr. EDMISTEN. I am sure that Mr. Coulter has had experience with it, but he is not up here for that particular subject. But in the Interior Department, National Park construction, as of February 23, 1971, there was $71 million impounded; Indian Affairs road construction; $84 million; under the reclamation loan program, there was $18 million impounded. And other Interior, current: $33 million and permanent: $56 million. So I would assume that Interior has had some experience with impoundment.
Mr. COULTER. Yes, sir. We have had some experience with impoundment.
Senator ERVIN. Are there any further questions?
To your knowledge, either of you gentlemen, have you ever seen a termination notice or whatever it is, like this, in any other relationship? I am interested because I think it goes beyond mere impoundment. What they are doing is cutting off the whole program; not just deferring or reserving funds for a while, but they are stopping the whole thing: in effect, repealing an act of Congress. But I do not say "you." I would say the Executive is doing it.
Do you know of any other instances where termination has taken place in this similar fashion? Mr. COULTER. Not in this similar circumstance; no.
Professor MILLER. A remarkable instance, I think, Senator, that goes far beyond impoundment.
Senator ERVIN. In other words, as I understand it, this was a specific authorization for a specific project and then a specific appropriation to carry out the project, and the executive not only withheld the funds, but ordered the project terminated.
Professor MILLER. Yes.
Professor BICKEL. They did it in stages. First they withheld; then they went into reserve before the contract was ready. First the reserve within the terms of the Anti-deficiency Act; then they impounded; then they terminated. Mr. EDMISTEN. Over the phone, too.
Professor STOLZ. The statement was made that there was a specific appropriation for this particular item; is that true? Was this not part of the Interior's general appropriation ?
Mr. Wisby. I believe the $9,240,000 was part of a supplemental appropriation in 1966 for the aquarium.
Professor Stolz. It specifically referred to this item?
Senator ERVIN. I want to thank you gentlemen for your appearance and for the aid you have given the subcommittee in its study of this very important question.
Mr. EDMISTEN. The chairman would like to insert this in the record at this point.
(The documents referred to follow:)
NATIONAL FISHERIES CENTER AND AQUARIUM
AUTHORIZATION (FEBRUARY 10, 1971) 87th Congress, 1st Session:
House: H.R. 8181 passed August 28, 1961. Yeas: 208, Nays: 135; Not voting:
96. 87th Congress, 2d Session:
Senate: H.R. 8181 w/amendments passed Sept. 21, 1962. Yeas: 42; Nays:
20; Not voting: 38. House: H.R. 8181 w/Senate amendments passed October 2, 1962. Yeas: 244;
Nays: 104; Not voting; 88.
$260, 000 1965...
9, 240, 000 Total authorized..
10, 000, 000
PLANNING-SEQUENCE OF EVENTS 1964June 4, architect contract (Becket). 1966-Jan. 18, Fine Arts Commission rejects design. March 16, architect contract
terminated. June 28, new architect, contract (Roche). 1967-Feb. 12, FAC approves design. May 4, National Capital Planning Com
mission approves. 1969-Jan. 20, final plans and specifications received. Feb. 7, plans approved
(GSA & NFC&A). April 21, construction funds placed in reserve. 1971-Feb., funds remain in reserve and Administration recommends termination
Operation and Maintenance funds have been utilized for staff planning, operational research, exhibit design contracts and operation of the existing National Aquarium in the Commerce Building.
In accordance with the decision to terminate this project all activities and contracts to further the project are being discontinued.
A total of $3,201,000 has been expended on this project.
NATIONAL FISHERIES CENTER AND AQUARIUM
FACT SHEET (MARCH 24, 1971) 1. Authorization. Authorized on October 9, 1962, by P. L. 87-758 (76 Stat.
lion dollars authorized for construction of the building. Con: strr
be repaid in 30 years, and operating costs also are to be Rdmission fees.
2. Site. The location of the Fisheries Center is on Golf Course F in East Potomac Park. Site approved by Secretary of the Interior, Commission of Fine Arts, National Capital Planning Commission, Federal City Council, and the Subcommittee on Interior and Related Agencies of the House and Senate Committees on Appropriations.
3. Appropriations (in thousands).
5. Status of designs. Plans and specifications were completed in March 1969. The concept and preliminary and final designs were approved by the Commission of Fine Arts and the National Capital Planning Commission. Design is complete and all necessary design and site approvals have been obtained. Plans and specifications were ready for issuing to bidders in 1969. Of the amount appropriated for construction, $9,100,000 has been placed in budgetary reserve by the Office of Management and Budget and is therefore unavailable for use.
Mr. EDMISTEN. Mr. Chairman, our next witness and I have already apologized for the delay—is Mr. Karl S. Landstrom, Colonel, U.S. Army, retired; former Director of the Bureau of Land Management and formerly Assistant to the Secretary for Land Utilization, Department of the Interior.
Senator ERVIN. Colonel, I am obliged to welcome you to the subcommittee, and I wish to express our appreciation for your willingness to appear and to assist us in this very important study.
STATEMENT OF KARL S. LANDSTROM, COLONEL, AUS RETIRED;
FORMERLY DIRECTOR OF THE BUREAU OF LAND MANAGEMENT; AND FORMERLY ASSISTANT TO THE SECRETARY FOR LAND UTILIZATION, DEPARTMENT OF INTERIOR
Mr. LANDSTROM. Thank you, Mr. Chairman. I may say I am very pleased by the quality of talent you have amassed for these hearings. I think it is very worthwhile. I hope I can make a slight contribution to your inquiry.
With your permission, I would like to not read the first several introductory paragraphs of my statement.
Senator ERVIN. That will be all right. You can take your own course in making your own presentation, but the subcommittee will have your entire statement printed in the record at the conclusion of your remarks.
Mr. LANDSTROM. Thank you.
With all respect to you, Mr. Chairman, I shall begin by criticizing your own opening statement. Your statement reads in part as follows:
Impoundment unfortunately occurs under circumstances when the Executive Branch, for reasons of its own, wishes to avoid expending sums which the Congress has explicitly directed to be spent for some particular purpose. It is this situation which poses a threat to our system of government and which so patently violates the separation of powers principle.
Taking your statement literally, and I see no reason to do otherwise, it would appear that you hold that in most or all situations involving projects or programs which have been authorized by statute, for which the appropriation of funds has been authorized by statute, and for which funds have been appropriated by statute, the Congress "has explicitly directed” that the funds be spent. This is not my understanding. It certainly is not the case in the bulk of statutes which govern the programs with which I am familiar. In almost all instances, the authorizing statutes used a term such as "the Secretary is authorized to," or "the Secretary, in his discretion, may." And the appropriation statutes follow the traditional language. which reads about as follows:
Be it enacted by the Senate and the House of Representatives, in Congress assembled, That the following sums are appropriated, for the Department of * * * and related agencies, for the fiscal year ending * * * and for other purposes, namely: * * *
The terms “directs” or “is hereby directed” or similar mandatory language do not appear in the traditional appropriations act language. Consequently, my impression is that the Congress has not ordinarily “directed” that the funds be spent. It rather has "authorized” that the work be accomplished, and "appropriated" funds from which the expenses may be paid, if and as the work proceeds. There are exceptions from this ordinary situation, of course, as in the case of so-called self-operating statutes, in which unilateral offers are extended to private parties who, upon qualifying under them, have a contractual right to be reimbursed by the Government.
Let us look for a moment at the situation complained of yesterday by Mayor Alioto of San Francisco. I sympathize with the mavor's disappointment under the situation he described, but I doubt if his analysis of the legal aspects can be properly supported.
Note that the mayor said approximately that the Congress, after extensive hearings, had “decided” that certain urban renewal and public housing funds shall be spent. He reported that the funds had not been released, and alleged that such nonexpenditure of appropriated funds raises "a grave constitutional question."
One would think, again taking the testimony literally, that the Congress had taken some legally binding means by which its so-called decision had been impressed within the law of the land. The fact is, however, that the urban renewal statute is not couched in mandatory terms, but rather in the following language: In regard to local community loans, the statute reads: “The Secretary may make temporary and definitive loans ***.” (42 U.S.C. 1452(a)). In regard to urban renewal grants, the statute reads:
“The Secretary of Housing and Urban Development is authorized to make grants * * *" (42 U.S.C. 1452a (a)). And although the statute contains certain appropriation authorization ceilings and