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MIGRATORY BIRDS AT GRAYS LAKE, IDAHO

August 10, 1964 tection of public lands, 74 Stat. 506 (1960); 43 U.S.C. sec. 1363 (supp. 1959–62). You advise that it also is contemplated that a public land withdrawal will be effected with respect to the interest of the United States in the 13,000 plus acres that are to be included in the wildlife refuge and for certain public lands which are outside the meander line established for Gray's Lake and have frontage upon said meander line. This withdrawal will be secondary to previous withdrawals for the Bureau of Indian Affairs and will be subject to all prior existing rights, including those of owners of land adjoining the Gray's Lake meander line.

In our opinion of December 19, 1963, we advised that in certain circumstances titles to tracts of land should be submitted to the Attorney General for his opinion with reference to the validity of the titles. Under the proposal which is outlined above, no payment is to be made to the landowners for their assent to utilization by the United States of the 13,000 plus acres. Thus, a long-standing controversy with respect to this land will be settled on a favorable basis so as to allow its use for an extremely valuable departmental objective. It is our opinion that there is now no necessity to obtain opinions by the Attorney General as to the title of the 13,000 plus acres within the meander line that will be developed for refuge use. This opinion is founded on the theory that the Department will be proceeding under its own claim of right to the lands and also will be safeguarded by the "use agreement" with the owners of lands around the perimeter of the lake, against claims to the lake area that will be within the refuge boundaries. The agreement should be recordable and care should be taken in obtaining accurate ownership data as to these bordering lands to assure that agreements are made with all necessary parties.

Section 6 of the Migratory Bird Conservation Act, 45 Stat. 1223 (1929), as amended, 16 U.S.C. 715e (1958), requires approval of title by the Attorney General when conveyances of interests in property require the passing of a monetary consideration. The act states, “no payment shall be made for any such area until title thereto shall be satisfactory to the Attorney General, * **." We read this section of the act as only requiring title approval by the Attorney General where there is “payment” for an interest in land with a monetary consideration. Such is not the case for the proposed use agreement. Section 355 of the Revised Statutes, 40 U.S.C. 255 (1958), likewise has no application in regard to the proposals which you have set out. Since there is no monetary consideration passing, there is not a "purchase” of land as contemplated by the Statute; thus, an opinion of the Attorney General is not required. 28 Op. A.G. 413.

Accordingly, we see no legal obstacles to the establishment of a refuge at Gray's Lake, Idaho, through the use of the agreement which your office has described. In addition, there is no need to send files to the Attorney General for title opinions on the land which is to be used for the refuge.

EDWARD WEINBERG,

Acting Solicitor.

August 14, 1964

The Honorable
The Secretary of the Interior
Washington 25, D.C.

My Dear Mr. Secretary:

This is in response to the Acting Secretary's letter of July 20, 1964, asking for the Opinion of the Attorney General as to the authority of the United States to enter into certain agreements for exchanges of electrical capacity and energy. The letter states that the agreements will be executed in substantially the form of the Canadian Entitlement Exchange Agreement, Draft No. 6, July 2, 1964, of which the letter attaches a copy. The United States would be a party thereto through the Bonneville Power Administrator, who would be acting both in his capacity as such Administrator and as a representative of the United States entity designated under the Treaty with Canada relating to international cooperation in water resource development of the Columbia River Basin, signed on January 17, 1961.7

The Acting Secretary's letter enclosed a memorandum of your Solicitor explaining the purpose and effect of the Canadian Entitlement Exchange Agreements and the obligations of the United States thereunder. The memorandum analyzes the scope of the statutory authority of the Secretary to enter into exchange agreements and points out that his authority with respect to the Columbia River Power System has been delegated to the Administrator. Your Solicitor also states that he assumes that the United States entity, when it is designated pursuant to the Treaty, will authorize the Administrator to act for it with respect to the performance of its obligations under the Canadian Entitlement Exchange Agreements.

1 For the Treaty, see 107 Cong. Rec. 4131 (1961) et seq. For the exchange of notes on sale of the Canadian entitlement, see 50 Dep't State Bull, 203-206 (1964),

July 20, 1964 Upon the basis of the above-mentioned analysis and of the stated assumption, your law officer concludes that in his opinion

each of the Canadian Entitlement Exchange Agreements, if executed by the Administrator in the form referred to above, and when delivered will be a valid and binding agreement of the United States enforceable in accordance with its terms.

Subject to the same assumption, I concur in that conclusion.

Sincerely,

ROBERT F. KENNEDY,

Attorney General.

CANADIAN ENTITLEMENT EXCHANGE AGREEMENTS

Power: Generally

An agreement providing for the delivery by one party of a quantity of power

which cannot, with certainty, be determined in return for the delivery by the other party of stated amounts of power over the same period constitutes a power-for-power exchange agreement.

The advantages at federal hydroelectric projects to be realized from imple

menting the "Treaty between Canada and the United States of America relating to cooperative development of the water resources of the Columbia River basin,” through the execution of exchange agreements support, as a matter of law, the Bonneville Power Administrator's determination of "economical operation" as required by Section 14 of the Reclamation Project Act of 1939 (53 Stat. 1197, 43 U.S.C. 389) and Section 5(b) of the Bonneville

Project Act (50 Stat. 734, 16 U.S.C. 832d (b)). Contracts: Authority to Make Section 14 of the Reclamation Project Act of 1939 (53 Stat. 1197; 43 U.S.C.

389) and section 5(b) of the Bonneville Project Act (50 Stat. 734, 16 U.S.C. 832d (b)) authorize the Bonneville Power Administrator to enter into exchange agreements, subject only to his determination that such agreements

are in the interest of the United States and economical operation. Contracts: Comptroller General The opinion of the Comptroller General (Dec. Comp. Gen. B-149016, B-149083,

July 16, 1962) affirming the authority of the Administrator to execute exchange agreements pertaining to the output of the generation to be constructed in connection with the Hanford NPR is applicable as affirmation of such authority to execute Canadian Entitlement Exchange Agreements.

Statutory Construction: Legislative History
The legislative history of section 2(f) of the Bonneville Project Act as

amended on October 23, 1945 (59 Stat. 546; 16 U.S.C. 832a (f)), expresses an intent on the part of Congress to authorize the Bonneville Power Administrator to conduct his affairs in a manner which equates his authority

with that of private business enterprises. Water Compacts and Treaties The Bonneville Power Administrator, acting for and on behalf of the United

States Entity designated pursuant to the Canadian Treaty, is carrying out the directives of Article VIII of the Treaty and the Exchange of Notes made pursuant thereto in executing the Canadian Entitlement Exchange Agreements.

Bonneville Power Administration
The Bonneville Power Administrator, acting as such and for an on behalf of

the United States Entity designated pursuant to the Canadian Treaty, is authorized to execute appropriate exchange agreements to effect the unconditional assurance of the delivery of power agreed to be equivalent to Canada's entitlement to downstream power benefits in order to implement the exchange of ratifications of the Canadian Treaty and thereby acquire

for the benefit of the United States the advantages flowing therefrom. See Attorney General Opinion August 14, 1964, p. 314.

M-36669

July 20, 1964 To: THE SECRETARY OF THE INTERIOR Subject: CANADIAN ENTITLEMENT EXCHANGE AGREEMENTS

You have furnished me with a form (Draft No. 6, dated July 2, 1961) of the Canadian Entitlement Exchange Agreements and requested my opinion regarding the authority of the Administrator of the Bonneville Power Administration to execute such agreements on behalf of the United States.

It is proposed that the Administrator would execute the agreements in his capacity as Administrator and for and on behalf of the United States Entity designated pursuant to the Treaty between the United States of America and Canada relating to the cooperative development of water resources of the Columbia River Basin (the “Treaty”), signed at Washington, D.C., January 17, 1961. The other parties to each of the agreements are to be Columbia Storage Power Exchange (“CSPE"), a nonprofit corporation organized in the State of Washington, and one of the many publicly and privately owned utilities of the Pacific Northwest participating with CSPE in the purchase and disposition in the United States of the downstream power benefits to which Canada is entitled pursuant to the Treaty.

July 20, 1964

Background of Treaty Negotiations Upon its entry into force, the Treaty will represent the culmination of more than 20 years of effort on the part of the United States and Canada to arrive at a basis for joint development of the water of the Columbia River Basin to their mutual advantage.

In March of 1944, the governments of the United States and Canada referred to the International Joint Commission the problem of determining if a greater use of the Columbia River would be feasible and advantageous to the two countries. The International Joint Commission established the International Columbia River Engineering Board to assist in carrying out this responsibility, and extensive studies and analyses of the problems of development of the river basin and the sharing of resulting benefits were made. Following completion of these studies, the two countries appointed negotiating teams to work out the terms of a Treaty. The negotiators 3 first met on February 11, 1960. Following almost a year of intensive negotiations, the Treaty was signed on January 17, 1961, by President Eisenhower for the United States and by Prime Minister Diefenbaker for Canada. (See: Executive C, 87th Cong., 1st Sess.)

The Columbia River

The Columbia River has its origin at Lake Columbia in British Columbia and flows some 480 miles in Canada-northerly for slightly less than 200 miles then turning sharply and flowing southerly approximtely 300 miles—before crossing the international border into the United States. It then continues for about 740 miles to the Pacific Ocean. The river falls 2,650 feet; 1,360 feet being on the Canadian

1 The International Joint Commission was established in accordance with Article VII of the Boundary Waters Treaty of 1909 between the United States and Canada. The Commission, among other things, is authorized "to examine into and report upon the facts and circumstances of the particular questions and matters referred" and to make reports to both Governments.

? See “Principles for Determining and Apportioning Benefits from Cooperative Use of Storage of Waters and Electrical Interconnection within the Columbia River System” submitted to the United States and Canada by the International Joint Commission on December 30, 1959.

3 The Canadian negotiators were :
Hon. E. D. Fulton, M.P., P.C., Q.C., Minister of Justice, Chairman ;

Mr. Gordon Robertson, Deputy Minister, Department of Northern Affairs and Natural Resources ;

Mr. A. E. Ritchie, Assistant Under Secretary, Department of External Affairs; and
Mr. E. W. Bassett, Deputy Minister of Lands and Forests, Province of British Columbia.
The United States negotiators were:
Mr. E. F. Bennett, Under Secretary of the Interior, Chairman ;
Lt. Gen. E. C. Itschner, Chief, United States Army Corps of Engineers; and
Mr. I. B. White, Deputy Assistant Secretary, Department of State.

746-471-64

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