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United States Regulations
33 CFR PART 211—REAL ESTATE ACTIVITIES OF THE CORPS OF ENGINEERS IN CONNECTION WITH CIVIL WORKS PROJECTS
Title 33: Navigation and Navigable Waters
PART 211—REAL ESTATE ACTIVITIES OF THE CORPS OF ENGINEERS IN CONNECTION WITH CIVIL WORKS PROJECTS
Authority: Sections 211.1 through 211.4 issued under 5 U.S.C. 301, unless otherwise noted.
Source: 13 FR 8747, Dec. 30, 1948, unless otherwise noted.
Real Estate; General
§ 211.1 Real estate defined.
The term real estate as used in this part includes land; buildings; piers and wharves; office and storage space; rights-of-way or easements, whether temporary or permanent; and any interests which may be acquired or held therein for the use or benefit of the United States by the Department of the Army or any branch thereof.
§ 211.2 Authority to acquire real estate.
(a) Congressional authority necessary. No land shall be acquired on account of the United States except under a law authorizing such acquisition. (See R. S. 3736; 41 U. S. C. 14.)
(b) Authority of the Secretary. The authority of the Secretary of the Army to acquire real estate for river and harbor improvements, flood control projects and allied purposes, is based upon enactments of the Congress authorizing the particular projects and appropriating funds therefor. These enactments are generally termed Flood Control Acts and are passed following the submission by the Secretary of the Army of preliminary plans and surveys to the Congress for consideration and approval.
(c) Local cooperation. As a general rule in river and harbor and flood control projects, except channel improvements, channel rectifications, dam and reservoir, and certain other types of projects, local interests are required to provide without cost to the United States, all lands, easements and rights-of-way necessary for the construction of the projects.
§ 211.3 Function of Chief of Engineers.
(a) The Chief of Engineers, under the authority of the Secretary of the Army, is charged with the responsibility for the acquisition, management and disposal of all real estate or interests therein required for use by the Department of the Army for river and harbor, flood control and allied purposes.
§ 211.4 Acquisition of land.
(a) Real property and interests therein may be acquired by the Department of the Army by:
(3) Transfer from other Government departments and agencies.
(4) Lease or similar instrument.
(5) Donation or gift.
(b) Methods of acquisition—(1) Purchase. It is the policy of the Department of the Army to secure title to lands, or the desired interest therein, by direct negotiation and purchase, where possible. Each tract of land to be acquired is approved by qualified appraisers for the purpose of determining the market value. Options for the purchase of land will not be negotiated containing reservations or exceptions by landowners or subject to outstanding rights in third parties which may interfere with the use of the land for which it is being acquired. In no case will an option be negotiated in which a vendor excepts or reserves the right to repurchase the property, or undertakes to convey subject to rights in a third party. Generally, landowners or tenants are authorized to reserve, or except from the sale, crops, timber, buildings and improvements with the right to remove same within a specified period, provided such buildings, etc., are not required for use by the Department of the Army. Land is acquired subject to public highways, roads, railroads, pipelines, and other utilities, and if it is determined that they interfere with the Government's use of the property, will be relocated or extinguished by contract between the Government and State, county or utility involved. If at any time in the course of acquisition by direct purchase, it becomes apparent that acquisition by such means will involve substantial delay or cannot be accomplished because of title defects which cannot be eliminated within a reasonable time, or because of failure to agree on the price to be paid, action is taken to acquire the land by condemnation.
(2) Condemnation. Condemnation of land is accomplished by the Secretary of the Army requesting the Attorney General to file a condemnation petition and procure an order from the court in the Federal Judicial District where the land is located, granting to the United States the right of immediate possession. The declaration of taking act (40 U.S.C. 258a–d) permits the Government to file a declaration of taking in conjunction with the condemnations proceedings, and provides that title to the property described therein vests immediately upon filing of the declaration in court and deposit of the Government's estimate of compensation, named in the declaration, in the registry of the court. The court may enter orders directing that all or part of the money deposited by the Government be paid to the owner of the land or other persons having an interest therein. This payment is without prejudice to the landowner's right to seek a higher value for his land in the trial of the case before the court. Pending or during the trial under condemnation proceedings, negotiations may still be conducted with the landowner for the direct purchase of his property, and in the event an agreement is reached, action is taken to dismiss the land in question from the condemnation proceedings.
(3) Transfer of land. Transfer of land from other Government agencies to the Department of the army is generally accomplished by obtaining a use permit, or if the land is desired permanently, then by transfer under applicable legislative authority. In the absence of such authority, a permit is obtained pending enactment of special legislation by the Congress. Public domain land under the Department of the Interior may be withdrawn and set aside for the use of the Department of the Army by Executive order or a Public Land Order.
(4) Lease. The negotiation of leases for river and harbor and flood control purposes must be approved by the Chief of Engineers or his duly authorized representative.
Temporary Use by Others of Civil Works Real Estate
Authority: Sections 211.5 through 211.9 issued under R.S. 161; 5 U.S.C. 301.
Source: 13 FR 8748, Dec. 30, 1948, unless otherwise noted.
§ 211.5 Temporary use; how granted.
There are three methods by which the temporary use of real estate under the control of the Department of the Army may be granted: Lease, easement and licenses, or permit.
§ 211.6 Rights which may be granted by the Secretary of the Army in river and harbor and flood control property.
(a) Leases. (1) The Secretary of the Army is authorized, whenever he shall deem it to be advantageous to the Government, to lease such real property under the control of his Department as is not surplus to the needs of the Department within the meaning of the act of October 3, 1944 (58 Stat. 765), and is not for the time required for public use, to such lessee or lessees and upon such terms and conditions as in his judgment will promote the national defense or will be in the public interest. Each such lease shall be for a period not exceeding five years unless the Secretary of the Army shall determine that a longer period will promote the national defense or will be in the public interest. The Secretary of the Army may include, among other terms and conditions in the lease, a right of first refusal in the lessee to purchase the property in the event of the revocation of the lease in order to permit sale thereof by the Government, but this shall not be construed as authorizing the sale of any property unless the sale thereof is otherwise authorized by law. Each such lease shall contain a provision permitting the Secretary of the Army to revoke the lease at any time, unless he shall determine that the omission of such provision from the lease will promote the national defense or will be in the public interest. In any event each such lease shall be revocable by the Secretary of the Army during a national emergency declared by the President. Notwithstanding section 321 of the act of June 30, 1932 (47 Stat. 412; 40 U.S.C. 303b), or any other provision of law, any such lease may provide for the maintenance, protection, repair, or restoration by the lessee, of the property leased or of the entire unit or installation where a substantial part thereof is leased, as a part or all of the consideration for the lease of such property. In the event utilities or services shall be furnished by the Department of the Army to the lessee in connection with any lease, payments for utilities or services so furnished may be covered into the Treasury to the credit of the appropriation or appropriations from which the costs of furnishing any such utilities or services to the lessee was paid. Except as otherwise provided in this paragraph, any money rentals received by the Government directly under any such lease shall be deposited and covered into the Treasury as miscellaneous receipts. The authority granted in this section shall not apply to oil, mineral, or phosphate lands (10 U.S.C. 2667).
(2) The Chief of Engineers, under the supervision of the Secretary of the Army, is authorized to construct, maintain, and operate public park and recreational facilities in reservoir areas under the control of the Department of the Army and to permit the construction, maintenance, and operation of such facilities. The Secretary of the Army is authorized to grant leases of lands, including structures or facilities thereon, in reservoir areas for such periods and upon such terms as he may deem reasonable: Provided, That leases to non-profit organizations may be granted at reduced or nominal rentals in recognition of the public service to be rendered in utilizing the leased premises: Provided further, That preference shall be given to Federal, State, or local governmental agencies, and licenses may be granted without monetary considerations to such agencies for the use of all or any portion of a reservoir area, when the Secretary of the Army determines such actions to be in the public interest, and for such periods of time and upon such conditions as he may find advisable. The water areas of all such reservoirs shall be open to the public use generally, without charge, for boating, swimming, bathing, fishing, and other recreational purposes, and ready access to and exit from such water areas along the shores of such reservoirs shall be maintained for general public use, when such use is determined by the Secretary of the Army not to be contrary to the public interest, all under such rules and regulations as the Secretary of the Army may deem necessary. No use of any area to which this section applies shall be permitted which is inconsistent with the laws for the protection of fish and game of the State in which such area is situated. All moneys received for leases or privileges shall be deposited in the Treasury of the United States as miscellaneous receipts. (Sec. 4, act of December 22, 1944, 58 Stat. 887, 889, as amended by sec. 4, act of July 24, 1946, 60 Stat. 641, as amended by Sec. 209, act of Sept. 3, 1954, 68 Stat. 1266.)
(b) Easements. (1) The Secretary of the Army is authorized to grant easements for rights-of-way across real estate acquired for civil purposes as follows:
(i) Poles and wires. The Secretary of the Army may grant easements for rights-of-way, for periods not exceeding 50 years, for poles and lines for the transmission and distribution of electrical power, and for poles and lines for telephone and telegraph purposes, over lands under his jurisdiction, upon a finding that the same is not incompatible with the public interest (see act of March 4, 1911; 36 Stat. 1253, as amended by the act of May 27, 1952, 66 Stat. 95; 43 U.S.C. 961). Form of easement is ENG Form 1360.
(ii) Pipelines. The Secretary of the Army may grant easements for rights-of-ways for gas, water, and sewer pipelines across lands under his control provided that such grants will be in the public interest and will not substantially injure the interest of the United States in the property affected thereby (10 U.S.C. 2669). Form of easement is ENG Form 1361.
(iii) Other easements. The Secretary of the Army is authorized and empowered, under such terms and conditions as are deemed advisable by him, to grant easements for rights-of-way over, across, in and upon acquired lands under his jurisdiction and control, and public lands permanently withdrawn or reserved for the use of the Department of the Army, to any State, political subdivision thereof, or municipality, or to any individual, partnership, or corporation of any State, Territory, or possession of the United States, for:
(A) Railroad tracks;
(B) Oil pipelines;
(C) Substations for electric power transmission lines, telephone lines, and telegraph lines, and pumping stations for gas, water, sewer, and oil pipelines;
(H) Dams and reservoirs in connection with fish and wildlife programs, fish hatcheries, and other fish-cultural improvements;
(I) Roads and streets;
(2) Provided, That:
(i) Such rights-of-way shall be granted only upon a finding by the Secretary of the Army that the same will not be incompatible with the public interest.
(ii) Such rights-of-way shall not include any more land than is reasonably necessary for the purpose for which granted.
(iii) All or any part of such rights-of-way may be annulled and forfeited by the Secretary of the Army for failure to comply with the terms and conditions of the grant or for the nonuse for a period of two consecutive years or abandonment of rights granted (10 U.S.C. 2668).
§ 211.7 Rights which may be granted by Division and District Engineers.
(a) Authority of Division and District Engineers. Division Engineers, the President of the Mississippi River Commission, and District Engineers of districts to which real estate functions have been or may be assigned are authorized to lease, in the name of and by authority of the Secretary of the Army, lands of the United States and improvements thereon, acquired for reservoirs for navigation and flood control, subject to the prior approval of the Chief of Engineers. Recommendations of District Engineers will be considered by Division Engineers and the President of the Mississippi River Commission in granting leases and District Engineers will administer the provisions of the leases, including the collection and deposit of payments.
§ 211.8 Limitations on rights which may be granted.
(a) Advertising. It is the policy to grant leases to the highest responsible bidders after advertising, where competition is practicable. Advertising consists of the circularization of notices among former owners of the land, owners of adjacent lands, and others known to be interested and by the posting of notices in public places, and publication of notices in newspapers where such publication is deemed advisable. Exceptions have been made to this policy in favor of former owners in granting leases for agricultural and grazing purposes in reservoir areas.
(b) Consideration. Title 10 U.S.C. 2667 provides that notwithstanding section 321 of the act of June 30, 1932 (47 Stat 412; 40 U.S.C. 303b) or any other provision of law, any such lease may provide for the maintenance, protection, repair, or restoration by the lessee, of the property leased or of the entire unit or installation where a substantial part thereof is leased, as a part or all of the consideration for the lease of such property. The consideration will be adequate but may consist of money and/or maintenance, protection, repair, or restoration by the lessee, of the property leased.
(c) Consideration in easements and licenses. In order to fully protect the interests of the United States, the Secretary of the Army will not, without substantial compensation grant to non-government agencies, for the purpose of private profit, valuable rights in Government property. A fair charge will be made for such privileges, the amount to be determined by all the circumstances surrounding the case, including an estimate as to what private interest in the vicinity would charge for a similar privilege.
§ 211.9 Applications for leases, easements, licenses, and permits.
Applications for use of Civil Works property should be made to the District Engineer of the district within the boundaries of which the real estate is located. The District Engineer will determine whether the property will be required for public use during the period of the contemplated grant and whether the requested grant will interfere with any operations of the United States.
Disposal of Real Estate Acquired for Civil Works Purposes
Authority: Sections 211.10 through 211.13 issued under R.S. 161; 5 U.S.C. 301.
Source: 13 FR 8749, Dec. 30, 1948, unless otherwise noted.
§ 211.10 Disposition of lands.
(a) Acts authorizing the Secretary of the Army to dispose of land acquired for the improvements of canals, rivers and harbors, or for flood control purposes are as follows:
(1) Section 7 of the act of Congress approved August 30, 1935 (49 Stat. 1048; 33 U.S.C. 558a) as extended by section 6 of the act approved August 18, 1941 (55 Stat. 650; 33 U.S.C. 701c–2, 77th Congress) authorizing sale of lands no longer needed for the purpose for which acquired.
§ 211.11 Sale or salvage of buildings, improvements, or crops.
(a) Authority of law. When any property (except land) which has been heretofore or may be hereafter purchased or acquired for the improvement of rivers and harbors or for flood control work is no longer needed, or is no longer serviceable, it may be sold in such manner as the Secretary of the Army may direct and the proceeds credited to the appropriation for the work for which it was purchased or acquired. (Section 5, act of June 13, 1902 (32 Stat. 373; 33 U.S.C. 558), as extended by section 3, act of March 1, 1917 (39 Stat. 450; 33 U.S.C. 701).)
(b) Division Engineers. Sales are conducted by the Division Engineers, Corps of Engineers.
(c) Removal of buildings, improvements, or crops other than by sale. If the buildings, improvements, or crops cannot be sold, they may be salvaged or razed as a part of the work under the project if they are in the way of new construction or interfere with the efficient operation of the project.
§ 211.12 Exchange of lands.
The Secretary of the Army is authorized to exchange lands acquired for river and harbor and flood control projects for privately owned lands required for such purposes. (Sec. 2 of the act of June 20, 1938 (52 Stat. 804; 33 U.S.C. 558b) as extended by sec. 3 of the act of August 11, 1939 (53 Stat. 1414, 33 U.S.C. 558b–1).)
§ 211.13 Approval of the Office of the Chief of Engineers.
In any case in which it may be necessary or advisable in the execution of an authorized project to exchange real property of the Government for real property required for such project, the Chief of Engineers receives a directive from the Secretary of the Army, and effects the exchange through the Division Engineers, Corps of Engineers.
Real Estate Claims
Authority: Sections 211.14 through 211.24 issued under R.S. 161; 5 U.S.C. 301.
Source: 13 FR 8749, Dec. 30, 1948, unless otherwise noted.
§ 211.14 Definition.
The term real estate claims refers to those demands for payment submitted by individuals, partnerships, associations or corporations, including States, territories, and political subdivisions thereof, for rent, damages, utilities, out-of-pocket expenses and other payments, arising under the terms and conditions, whether express or implied, of leases or other contracts for the use and occupancy of real estate by the Department of the Army or the Army, including right of entry permits, options to purchase, and other instruments sufficient to support a contractual relationship between the United States and property owner, or arising from the use and occupancy of real estate by the Department of the Army or the Army with the express or implied consent of the owner thereof in the absence of any formal lease or other contract therefor.
§ 211.15 Statutory provisions.
(a) All claims and demands whatever against the Government, unless there is some special authority for the settlement thereof by the department concerned, shall be settled and adjusted in the General Accounting Office (see R.S., sec. 236, as amended by act of June 10, 1921, 42 Stat. 24; 31 U.S.C. 71).
(b) Meritorious Claims Act. When there is filed in the General Accounting Office a claim or demand against the United States that may not lawfully be adjusted by the use of an appropriation theretofore made, but which claim or demand in the judgment of the Comptroller General of the United States contains such elements of legal liability or equity as to be deserving of the consideration of the Congress, he shall submit the same to the Congress, by a special report containing the material facts and his recommendations thereon (act of April 10, 1928; c. 334, 45 Stat. 413; 31 U.S.C. 236).
(c) Limitations of time on claims and demands under (a) and (b) of this section. The act of October 9, 1940 (54 Stat. 1061; 31 U.S.C. 71a) provides that every claim or demand (except a claim or demand by any State, Territory, possession or the District of Columbia) against the United States cognizable by the General Accounting Office under the act of June 10, 1921, and the act of April 10, 1928, will be forever barred unless such claim, bearing the signature and address of the claimant or of an authorized agent or attorney, will be received in said office within ten full years after the date such claim first accrued: Provided, however, That when such a claim of any person serving in the military or naval forces of the United States accrues in time of war, or when war intervenes within five years after its accrual, such claim may be presented within five years after peace is established. The act further provides that whenever any claim barred by the preceding provision will be received in the General Accounting Office, it will be returned to the claimant, with a copy of this act (act of October 9, 1940) and such action will be a complete response without further communication.
(d) Domestic Claims Act. The act of July 3, 1943 (57 Stat. 372; 31 U.S.C. 223b, 223c) as amended by the act of May 29, 1945 (Pub. L. 67, 79th Congress) and as further amended by the act of June 28, 1946 (Pub. L. 466, 79th Congress), provides for the payment of claims arising on or after May 27, 1941, for damage to or loss or destruction of property, real or personal, caused by military personnel or civilian employees of the Department of the Army or of the Army while acting within the scope of their employment or otherwise incident to noncombat activities of the Department of the Army or of the Army, including claims for damages to real property incident to the use and occupation thereof, whether under a lease, express or implied, or otherwise, and including claims of the foregoing categories arising out of civil works, provided they do not exceed $1,000. The act further provides that the damage to or loss or destruction of property shall not have been caused in whole or in part by any negligence or wrongful act on the part of the claimant, his agent or employee; that no claim shall be settled under the act unless presented in writing within one year after the incident out of which such claim arises shall have occurred except that if the incident occurs in time of war, or if war intervenes within one year after its occurrence, any claim may, on good cause shown, be presented within one year after peace is established. The Secretary of the Army is authorized to report such claims as exceed $1,000 to Congress for its consideration.
§ 211.16 Scope and application of Army Regulations.
(a) AR (Army Regulations) 25–25 has been issued in furtherance of the act of July 3, 1943. The regulations in this part, in keeping with the terms of the act, apply to claims for damages only. Paragraph 7 of AR 25–25 provides that claims for damages to real property incident to the use and occupancy thereof by the government under a lease express or implied, or otherwise, are payable under this section even though legally enforceable against the Government as contract claims. However, if deemed preferable in the best interest of the Government claims payable under paragraph 7 may be processed to the General Accounting Office for direct settlement under sec. 236, Revised Statutes. Claims for rent of real property are not payable under AR 25–25.
(b) AR 100–64 has been issued in furtherance of Section 236, Revised Statutes, as amended by the act of June 10, 1921; 42 Stat. 24, 31 U.S.C. 71. These regulations provide exclusive authority for the consideration and settlement of claims for rent and other payments of an express or implied contractual nature, and optional authority with AR 25–25 for settlement of damages, in excess of $1,000 arising out of the use and occupancy of real estate by the Department of the Army or the Army under an agreement expressed or implied. AR 100–64 applies to all claims for rent regardless of amount and for other payments of a contractual nature, for example, claims for electricity, heat, light, water, and other out-of-pocket expenses, repairs, etc., where such expenses are not included in the lease as a part of the rental consideration.
§ 211.17 Authority of Division Engineers, Corps of Engineers to settle claims.
(a) Authority has been delegated to Division Engineers, within the geographical limits of their respective jurisdictions, to approve or disapprove, in amounts not exceeding $1,000, any claim within the purview of the act of July 3, 1943, as amended. Insofar as real estate claims are concerned this delegation of authority applies only to claims for damages incident to the use and occupancy of real property by the Department of the Army or the Army.
(b) Division Engineers have no authority to settle and make payment of claims for damages in excess of $1,000 or for rents or other payments of a contractual nature regardless of amount arising out of the use and occupation of real estate under an agreement, express or implied, or otherwise.
§ 211.18 Action by claimant.
Real estate claims may be presented by the owner of the property or his duly authorized agent or legal representative. The word “owner”, as so used, includes lessees, mortgagors, and conditional vendees, but does not include mortgagees, conditional vendors, and others having title for purposes of security only. The claim, if filed by an agent or legal representative, should show the title of the person signing and be accompanied by evidence of the appointment of such person as agent, executor, administrator, guardian, or other fiduciary.
§ 211.19 Place of filing claims.
All real estate claims should be submitted to the United States Division Engineer in whose jurisdiction the claim arises.
§ 211.20 Form of claim.
Claims should be submitted by presenting in triplicate a signed statement, giving the claimant's address, setting forth the amount of the claim, and, so far as possible, the detailed facts and circumstances giving rise to the claim, indicating and describing the property involved, the date or dates, and the nature and extent of the damage, loss or destruction claimed, and the agency or branch of the Department of the Army or Army using the property. Upon receipt of such a claim the Division Engineer will, where practicable or necessary, furnish the claimant with Department of the Army forms for a more formal presentation of his claim including instructions as to their use.
§ 211.21 Evidence to be submitted by claimant.
(a) All claims must be substantiated by competent evidence. If the claim is for rent or other payment the claimant should furnish evidence as to the value of the property, income from the property if previously rented, or rental value of similar property in the vicinity. If the property is under a formal lease to the Government, the claimant should identify the lease and state the covenants of the lease upon which he predicates his claim. Where the claim is for damage to the property which has been or can be economically repaired the claimant should submit in triplicate an itemized signed statement or estimate of the cost of repairs and copies of itemized receipts, evidencing payment for any expenditures made in relation to the property for which reimbursement is claimed.
(b) In support of claims for damage to crops the claimant should submit a statement showing the number of acres, or other unit measure of crops damaged, the normal yield per unit, the gross amount which would have been realized from normal yield, and an estimate of the further cost of cultivation, harvesting and marketing; if the crops are one which need not be planted each year, the diminution in value of the land beyond the damage to the current year's crop should also be stated. All such statements or estimates should, if possible, be by disinterested competent witnesses, preferably responsible dealers of the type of property damaged.
§ 211.22 Real estate Claims Officers.
In each Division Office the Division Engineer has appointed a Claims Officer or Assistant Claims Officers who have the duty and responsibility under the direction of the Division Real Estate Officer, to investigate all real estate claims. The activities and responsibilities of these Claims Officers are described more fully under §211.23.
§ 211.23 Procedure.
Upon the receipt of any real estate claim it is submitted to a Claims Officer who investigates the matter and secures all evidence necessary for a full consideration of the claim and upon which a determination can be made as to the liability of the Government. For this purpose the Claims Officer is authorized and charged with the duty of securing sufficient evidence to establish with certainty the following general points:
(a) The nature of the claim.
(b) The interest of the claimant in the property and the interest that others may have in the property.
(c) Date and circumstances under which occupation of premises occurred and date of vacation. If under a lease, the lease number and date of lease.
(d) Inspection of the premises and determination of the amount of damages.
(e) If claim is for rental without formal lease or agreement, data as to the market and rental value of the property.
(f) Any other pertinent evidence the particular facts of the case require.
The above obligations of the Claims Officer does not relieve the claimant from the burden of proving his claim and it is the duty and obligation of the claimant to furnish such evidence within his particular knowledge as the Claims Officer may require.
Upon completion of his investigation the Claims Officer prepares a report setting forth completely but briefly the nature and amount of the claim, all pertinent facts necessary to determine the rights and liabilities of the claimant and the Government, and the Claims Officer's conclusions and recommendations as to allowance or disallowance of the claim in whole or in part and reasons therefor, including citations to any laws, statutes, or other decisions which it is believed will substantiate his recommendation.
§ 211.24 Disposition of claims.
(a) Real estate claims for damages. Real estate claims for damages not exceeding $1,000 may be settled by the Division Engineer. If the Division Engineer allows the claim in toto it is transmitted to the local Disbursing Officer who transmits a check to claimant in payment of the claim. Where the claim is disallowed by the Division Engineer, in whole or in part, the claimant is so advised and in the event that he is unwilling to accept the decision of the Division Engineer, he may appeal within 30 days after receipt of such notice, through the Division Engineer's Office, to the Secretary of the Army. This appeal should state in full reasons for not accepting the Division Engineer's award.
(b) Claims for damages in excess of $1,000. Claims for damages in excess of $1,000 arising out of the use and occupancy of real estate under an agreement, express or implied, or otherwise, are forwarded to the General Accounting Office for settlement.
(c) Claims for rent or other payments. Claims for rent or other payments of a contractual nature regardless of amount arising out of the use and occupancy of real estate under an agreement, express or implied, or otherwise, are forwarded to the General Accounting Office.
(d) Mixed claims for rental and damages. When a claim arising from the use and occupancy of real estate has been received, the elements of the claim are first determined. If the claim is for damages not in excess of $1,000 and rental, these elements are if practicable, separated and the damages settled under AR 25–25, otherwise the claims are forwarded to the General Accounting Office for direct settlement.
Federal Jurisdiction Over Real Estate
Authority: Sections 211.25 through 211.28 issued under R.S. 161; 5 U.S.C. 301.
Source: 13 FR 8751, Dec. 30, 1948, unless otherwise noted.
§ 211.25 General considerations in the acquiring of Federal jurisdiction.
(a) Laws governing the acquisition of Federal jurisdiction—(1) Constitution of the United States. By Article 1, Section 8, Clause 17, of the Constitution, Congress has the power to exercise exclusive legislation in all cases in the District of Columbia and to exercise like authority over all land acquired by the United States with the consent of the legislature of the State in which the land is located for the erection of forts, magazines, arsenals, dockyards, and other needful buildings.
(2) Section 355, Revised Statutes of the United States. Under this section as amended by the acts of Congress approved February 1, 1940 (54 Stat. 19) and October 9, 1940 (54 Stat. 1083; 40 U.S.C. 255), jurisdiction over lands acquired by the Department of the Army does not vest until the Secretary of the Army has indicated acceptance of such jurisdiction by filing a notice of acceptance with the Governor of the State or in such manner as may be prescribed by the laws of the State where the land is situated.
(3) State laws. The laws of the various States indicate the type of jurisdiction ceded or to be ceded, and prescribe the requirements, if any, to be complied with prior to the vesting of jurisdiction in the United States.
§ 211.26 Functions in acquiring Federal jurisdiction.
(a) The Division Engineer. Upon determination that Federal jurisdiction is desired over a Civil Works Project, the Office of the Division Engineer concerned prepares such maps and descriptions of the lands involved as may be required and forwards them to the Office of the Chief of Engineers with any further information called for by the laws of the State where the lands are located.
(b) Chief of Engineers. All letters and other papers required to procure cessions of jurisdiction and all notices of acceptance are prepared in the Office of the Chief of Engineers.
§ 211.27 Method of acquiring Federal jurisdiction.
Jurisdiction is acquired in accordance with the laws of the various States.
§ 211.28 Acceptance of jurisdiction.
The jurisdiction ceded by the State laws, by deeds of cession and by the enactment of special legislation shall be accepted in accordance with section 355, Revised Statutes, as amended, in order to establish Federal jurisdiction. This is accomplished by a letter from the Secretary of the Army addressed to the Governor of the State concerned or by an indorsement on the deed of cession giving notice of such acceptance.
Sale of Lands in Reservoir Areas Under Jurisdiction of Department of the Army for Cottage Site Development and Use
Authority: Sections 211.71 through 211.81 issued under sec. 2, 70 Stat. 1065; 16 U.S.C. 460f.
Source: 28 FR 3450, Apr. 9, 1963, unless otherwise noted.
§ 211.71 Statutory provisions.
The Act of Congress approved August 6, 1956 (70 Stat. 1065).
§ 211.72 Definitions.
(a) The Act. The Act of Congress approved 6 August 1956 (70 Stat. 1065; Pub. L. 999, 84th Congress).
(b) Cottage site. Cottage site as used in §§211.71 through 211.80, includes:
(1) Individual cottage site. A parcel of land developed or to be developed by the construction of a private cottage thereon and used, or to be used, for private recreational purposes.
(2) Group cottage site. A parcel of land containing multiple cottage sites developed or to be developed individually by members of an organization to which the land is currently leased by the construction on each site of a private cottage owned individually and used, or to be used, for private recreational purposes.
(3) Colony cottage site. A parcel of land containing (i) multiple cottage sites developed or to be developed individually by members of an organization to which the land is currently leased by the construction on each site of a private cottage owned individually and used or to be used for private recreational purposes, and (ii) a site or sites developed or to be developed by the lessee by construction of community recreational facilities for joint use by all members of the lessee organization incident to occupancy of their privately owned cottages on the leased premises and/or an area of land to be preserved in an undeveloped state for such joint use by all members of the lessee organization.
§ 211.73 Determination of land available for sale.
The Chief of Engineers or the Director of Civil Works (Assistant to the Chief of Engineers for Civil Works) is hereby delegated authority to determine that lands in reservoir areas under the jurisdiction of the Department of the Army, other than lands withdrawn or reserved from the public domain, (a) are not required for project purposes or for public recreational use, and (b) are being used for or are available for cottage site development and use, and to determine that such lands are available for sale for cottage site development and use. The Chief of Engineers or the Director of Civil Works (Assistant to the Chief of Engineers for Civil Works) is authorized to withdraw any lands determined available for sale for cottage site development and use at any time prior to the execution of a contract of sale for such lands, provided, he determines that such withdrawal will facilitate the administration of the reservoir area or will otherwise be in the public interest.
§ 211.74 Public notice of the availability of land for sale.
Upon determination in accordance with §§211.71 through 211.80 that land is available for sale for cottage site development and use, the appropriate District Engineer, U.S. Army Engineer District (hereinafter referred to as the District Engineer) will give public notice of the availability of such land for sale, subject to such conditions, reservations and restrictions as are required by the Act and such other conditions, reservations and restrictions as the Chief of Engineers or the Director of Civil Works (Assistant to the Chief of Engineers for Civil Works) may determine to be necessary for the management and operation of the project, or for the protection of lessees or owners of cottage sites within the area. Public notice of the availability of such land for sale will be by: (a) Publication at least twice, at no less than 15 day intervals, in two newspapers having general circulation in the vicinity in which the land is located; (b) written notification to any persons or organizations known to be interested in acquiring a cottage site in the area; (c) posting of notices in public places; and (d) in addition, where any site on which a lease for cottage site purposes existed on August 6, 1956, is available, notice will be given by registered letter to the lessee at his last known address.
§ 211.75 Price.
The Chief of Engineers, or his designee, is authorized to determine the fair market value of any site determined available for sale for cottage site development and use based on an appraisal thereof by a qualified appraiser. Sale of a cottage site to a lessee holding a lease on the date of the Act will be made for a price equal to the fair market value of the site at the time of the sale.
§ 211.76 Costs of surveys.
The costs of any surveys or the relocation of boundary markers deemed necessary by the District Engineer as an incident of the conveyance of lands under §§211.71 through 211.80 shall be borne by the grantee.
§ 211.77 Sale procedure.
Any individual cottage site offered for sale generally will not contain more than approximately one acre. Such sites shall not be subdivided but shall remain intact as single units, and no more than one cottage may be constructed on each site. Not more than one site at any one reservoir will be sold to any person or organization. Sales to lessees of lands determined available for sale for cottage site development and use, who have a priority to purchase under the provisions of the Act, will be accomplished by negotiation. Sales to lessees who do not have a priority to purchase under the provisions of the Act may be accomplished by negotiation in the discretion of the Chief of Engineers or the Director of Real Estate (Assistant to the Chief of Engineers for Real Estate). Sales to persons other than lessees will be accomplished by public auction, or sealed bids, in accordance with procedure prescribed by the Chief of Engineers. If no acceptable bid or offer is received as a result of a public auction or solicitation for sealed bids, sale may be accomplished by negotiation in accordance with procedure prescribed by the Chief of Engineers.
§ 211.78 Maintenance and conveyance of access roads.
The Government will not construct any roads for the sole purpose of providing access to lands sold or to be sold for cottage site development and use. The Government shall be under no obligation to service or maintain existing roads used primarily for access to lands sold for cottage site development and use. Any lands determined by the Chief of Engineers or the Director of Civil Works (Assistant to the Chief of Engineers for Civil Works) as being used or to be used for roads primarily to serve any cottage site area sold under the authority of the Act may be offered by the District Engineer for transfer to the State, any political subdivision thereof, or organization in accordance with the provisions of the Act.
§ 211.79 Contract of sale.
The agreement between the purchaser and the Government will be evidenced by a contract of sale. Authority is hereby delegated to the Chief of Engineers or the District Engineer to accept any offer which meets the requirements of the Act and §§211.71 through 211.80 and to execute the contract of sale on behalf of the United States of America.
§ 211.80 Conveyance.
(a) Authority to execute quitclaim deeds conveying land for cottage site development and use or for access roads is delegated to the Chief of Engineers, with authority to redelegate to Division and/or District Engineers.
(b) The authority delegated to the Chief of Engineers in paragraph (a) of this section to execute quitclaim deeds conveying land for cottage site development and use or for access roads has been redelegated by the Chief of Engineers to the Division Engineer, U.S. Army Engineer Division, New England, and to District Engineers having responsibility for real estate activities.
§ 211.81 Reservoir areas.
Delegations, rules and regulations in §§211.71 to 211.80 are applicable to:
(a) Fort Gibson Reservoir Area, Oklahoma.
(b) Lake Texoma and the Denison Reservoir Area, Oklahoma and Texas.
(c) Tenkiller Ferry Reservoir Area, Oklahoma.
(d) Harlan County Reservoir Area, Nebraska.
(e) Fort Randall Reservoir Area, South Dakota.
(f) Garrison Reservoir Area, North Dakota.
(g) Kanopolis Reservoir Area, Kansas.
(h) Arkabutla Reservoir Area, Mississippi.
(i) Enid Reservoir Area, Mississippi.
(j) Sardis Reservoir Area, Mississippi.
(k) Narrows Reservoir Area, Arkansas.
(l) Wappapello Reservoir Area, Missouri.
(m) Norfork Reservoir Area, Arkansas and Missouri.
(n) Clark Hill Reservoir Area, Georgia and South Carolina.
(o) Alatoona Reservoir Area, Georgia.
(p) Center Hill Reservoir Area, Tennessee.
(q) Dale Hollow Reservoir Area, Tennessee.
(r) Lake Cumberland, Kentucky.
(s) Fort Supply Reservoir, Oklahoma.
[28 FR 4357, May 2, 1963, as amended at 30 FR 4475, Apr. 7, 1965]
Reconveyance of Land or Interests Therein Acquired for Grapevine, Garza-Little Elm, Benbrook, Belton, and Whitney Reservoir Projects in Texas and also for the Verdigris River Portion of the McClellan-Kerr Navigation Project in Oklahoma, to Former Owners
Authority: Secs. 211.101 to 211.111 issued under sec. 205, 72 Stat. 316.
§ 211.101 Statutory provisions.
Section 205 of the Act of Congress approved July 3, 1958 (72 Stat. 316) and section 11 of the Act of Congress approved December 23, 1971 (85 Stat. 800).
[23 FR 7348, Sept. 28, 1958, as amended at 37 FR 15371, Aug. 1, 1972]
§ 211.102 Definitions.
(a) General. Any term used in §§211.101 to 211.111 which is defined in section 205 of the Act of Congress approved July 3, 1958 (72 Stat. 316) or in section 11 of the Act of Congress approved December 23, 1971 (85 Stat. 800), shall have the meaning given to it in said act.
(b) Land. Any land or interest in land acquired by the United States for the Grapevine, Garza-Little Elm, Benbrook, Belton, and Whitney Reservoir projects, Texas, or for the Verdigris River portion of the McClellan-Kerr Navigation Project Oklahoma.
(c) The Act. The term “the act” when used in §§211.101 to 211.111 shall mean either section 205 of the Act of Congress approved July 3, 1958 (72 Stat. 316), or section 11 of the Act of Congress approved December 23, 1971 (85 Stat. 800).
(d) District Engineer. The term “District Engineer” when used in §§211.101 to 211.111 shall mean the District Engineer, U.S. Army Engineer District, Fort Worth, at Fort Worth, Tex., or the District Engineer, U.S. Army Engineer District, Tulsa, at Tulsa, Okla.
(e) Director of Civil Works. The term “Director of Civil Works” when used herein shall mean the Director of Civil Works, Office, Chief of Engineers or the Assistant Chief of Engineers for Civil Works.
[23 FR 7348, Sept. 28, 1958, as amended at 37 FR 15371, Aug. 1, 1972]
§ 211.103 Determination of whether land is required for public purposes, including public recreational use.
The Chief of Engineers and the Director of Public Works are hereby delegated authority to determine which lands are not required for public purposes, including public recreational use, and to determine the exceptions, restrictions and reservations, as are in the public interest, to be included in any reconveyance, including the reservation of such mineral rights as are determined necessary for the efficient operation of the project. This delegation of authority shall not apply to lands below the level of 529 feet in the Garza-Little Elm Reservoir project and below 560 feet in the Grapevine Reservoir project as the lands below these levels will not be available for reconveyance pursuant to the act.
[23 FR 7348, Sept. 28, 1958, as amended at 37 FR 15371, Aug. 1, 1972]
§ 211.104 Notice to former owners of availability of land for reconveyance.
Upon determination in accordance with §§211.101 to 211.111 that land is not required for public purposes, including public recreational use, the appropriate District Engineer shall give notice to the former owners thereof (a) by registered letter, addressed to the last known address of the former owner; and (b) by publication at least twice at not less than 15-day intervals in two newspapers having general circulation in the vicinity in which the land is located.
[37 FR 15371, Aug. 1, 1972]
§ 211.105 Filing of application.
Application for reconveyance of land shall be filed with the appropriate District Engineer. Said application shall be in writing, dated and signed by the former owner, or by his attorney in fact, and shall identify the land for which he is making application for reconveyance. Any such application will be considered as filed timely when mailed to or delivered to the appropriate District Engineer within ninety (90) days from the date of the last publication of availability of the land for reconveyance to said former owners. The appropriate District Engineer may extend said ninety (90) day period for a good cause. Any application may be withdrawn by written notice, executed by the former owner, or by his attorney in fact, to the appropriate District Engineer at any time prior to the execution of the contract of sale.
[37 FR 15371, Aug. 1, 1972]
§ 211.106 Filing of objection by abutting owner.
An objection by an abutting owner to reconveyance of land to a former owner shall be filed with the appropriate District Engineer. Such objection shall be in writing, dated and signed by the abutting owner, or his attorney in fact, and shall include identification of the land to which the objection pertains, the name of the former owner, the reasons for the objection, and a reference to the land records where the ownership of the abutting owner is recorded. A copy of the letter addressed to the former owner objecting to the reconveyance shall be attached to the letter addressed to the appropriate District Engineer, or other evidence of such notice of objection shall be furnished to the appropriate District Engineer. No objection will be considered valid unless the party or individual making the objection is the record owner of land abutting or adjoining the land to which the objection pertains. (continued)
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