[Code of Federal Regulations]
[Title 32, Volume 4]
[Revised as of July 1, 2002]
From the U.S. Government Printing Office via GPO Access
[CITE: 32CFR644.88]

[Page 181-184]
 
                       TITLE 32--NATIONAL DEFENSE
 
              CHAPTER V--DEPARTMENT OF THE ARMY (CONTINUED)
 
PART 644--REAL ESTATE HANDBOOK--Table of Contents
 
                         Subpart C--Acquisition
 
Sec. 644.88  Other acquisition.

    (a) Acquisition From Other Federal Departments and Agencies--(1) 
Transfers. Transfers will be obtained from other Government agencies 
after issuance of real estate directives. Muniments of title will be 
obtained from the transferring agency, if possible, and be forwarded to 
HQDA (DAEN-REP) WASH DC 20314, with the original transfer letter or 
document. Title 10 U.S.C. 2571 authorizes transfer of real property 
within the Department of Defense (10 U.S.C. 2662).
    (2) Permits. Upon receipt of a proper request from an authorized 
command, service or agency, Division or District Engineers and the 
Chiefs of the Real Estate Divisions are authorized to obtain, accept, 
and renew permits from other Government departments or agencies for the 
temporary (five years) use of land (except public domain for Air Force) 
and buildings. The use of over 500 acres of public domain land

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must have prior approval by the Assistant Secretary of Defense (MRA&L) 
pursuant to Department of Defense Directive 4165.12.
    (b) Withdrawal of Public Domain Lands and Right-of-Entry Permits for 
Temporary Use. (1) Withdrawal of public domain lands will be necessary 
if a site is selected for construction and/or there is a continuing 
military use. Except in time of war, withdrawals in excess of 5,000 
acres for military use must be by authority of an Act of Congress (Pub. 
L. 85-337, 43 U.S.C. 156).
    (2) Requests for withdrawal of public domain land will be made to 
the appropriate State or Regional Supervisor of the Bureau of Land 
Management (BLM), Department of the Interior, by the Division or 
District Engineer, pursuant to 43 CFR part 295, as soon as a real estate 
directive is issued.
    (i) If use the of land is needed promptly to meet a construction 
deadline or for other use, the request for withdrawal will contain this 
information, and the BLM supervisor will be requested to expedite 
submission of his report to BLM in Washington, and to publish the 
proposed withdrawal in the Federal Register as soon as possible.
    (ii) A copy of the request will be forwarded to HQDA (DAEN-REA) WASH 
DC 20314 (with a copy to HQ, USAF (PRER), WASH DC 20330, on Air Force 
projects), with request for assistance in obtaining issuance of the 
Public Land Order in time to meet construction or military use deadline.
    (3) Pursuant to authority of 43 U.S.C. 416, requests for withdrawal 
of public domain lands may also be made to the appropriate State or 
Regional BLM Supervisor by the Division or District Engineer for the 
reservation of those public domain lands which will eventually be 
required for authorized Civil Works projects, in order to proceed with 
planning phase work and to prevent adverse private entry thereon. Such 
action will permit administrative jurisdiction to remain with the 
present Government agency for continued utilization not in conflict with 
the eventual purpose of the project. A copy of the request will be 
furnished to DAEN-REA.
    (4) If a withdrawal is requested, the BLM supervisor cannot grant a 
permit to use the area; however, permits can be obtained for survey and 
exploration purposes, since these do not involve construction or 
military use of the land.
    (5) Necessary rights-of-way will be obtained under the authority of 
section 507, Pub. L. 94-579, approved October 21, 1976.
    (c) Acquisition of Outstanding Rights on Public Domain--(1) 
Acquisition of Possessory Rights to Mining Claims. (i) Upon issuance of 
a real estate directive to extinguish outstanding mining interests in 
the public domain, and notification that the Bureau of Reclamation (BLM) 
has withdrawn the public domain from appropriation under the public land 
laws and the public mining and leasing laws, the Division or District 
Engineer will, if necessary to obtain possession for construction or 
other project purposes, recommend to the Chief of Engineers the filing 
of a complaint in an eminent domain proceeding, based on a perimeter 
description of the project, and the obtaining of an order of immediate 
possession. Thereafter, the Division or District Engineer will promptly 
determine the possessory mining claims within the area withdrawn, and he 
is authorized to acquire such claims for either a nominal sum or an 
amount not to exceed the combined estimated costs of obtaining a 
detailed appraisal report and having the validity of the claim 
investigated by the BLM. This authority is limited to $1,000 per claim.
    (ii) If an offer to settle is made on the basis provided in 
paragraph (c)(1)(i) of this section, and is not satisfactory to the 
possessory mineral owner, the Division or District Engineer will request 
the BLM to investigate the validity of the claim. In such case, under 
Comptroller General Decision B-143921, the District Engineer is 
authorized to make an agreement with the BLM for reimbursement of the 
following:
    (A) Examination of the claim itself and assembling of the evidence 
to support the claim of invalidity.
    (B) The presentation of the evidence, the cross-examination of 
witnesses for the mining claimant and other related expenses (subpart 
A).
    (iii) The Corps of Engineers is not authorized to reimburse the BLM 
for

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hearing of the evidence and the rendering of the decision as to the 
validity of the mining claim.
    (iv) If determined to be valid, claims will be appraised and an 
offer will be made to the owner at the approved appraised value. BLM is 
authorized to determine value of the claims and the Division or District 
Engineer may wish to arrange with BLM to perform this service on a 
reimbursable basis. In the event the offer based on the approved 
appraisal is not acceptable to the owner, and a reasonable settlement 
cannot be effected by negotiation, the Division or District Engineer 
will forward a report to HQDA (DAEN-REA) WASH DC 20314 with 
recommendation as to whether the claim should be acquired by declaration 
of taking or be left outstanding. Those cases in which occupants were 
dispossessed under the order of immediate possession, referred to in 
paragraph (c)(1)(i) of this section, will be given priority attention in 
all phases of the procedure set out herein, including preparation and 
submission of declaration of taking assemblies in appropriate instances.
    (2) Acquisition of Grazing Rights. (i) Grazing rights in the public 
domain are granted pursuant to the provisions of a series of 
Congressional acts commonly referred to as the Taylor Grazing Act, 43 
U.S.C. 315 et seq. Section 315q of this Act provides as follows:

    Whenever use for war or national defense purposes of the public 
domain or other property owned by or under the control of the United 
States prevents its use for grazing, persons holding grazing permits or 
licenses and persons whose grazing permits or licenses have been or will 
be cancelled because of such use shall be paid out of the funds 
appropriated or allocated for such project such amounts as the head of 
the department or agency so using the lands shall determine to be fair 
and reasonable for the losses suffered by such persons as a result of 
the use of such lands for war or national defense purposes. Such 
payments shall be deemed payment in full for such losses. Nothing 
contained in this section shall be construed to create any liability not 
now existing against the United States.


It is emphasized that payments under this section are administrative; 
further that this section applies only to military projects.
    (ii) Upon issuance of a real estate directive to acquire or 
terminate grazing rights in the public domain or other property owned or 
controlled by the United States and notification that the Government 
department controlling such lands has granted a right-of-entry or 
transferred the lands to the Departments of Army or Air Force, the 
Division or District Engineer will initiate action to acquire or 
terminate such grazing rights as authorized by the real estate 
directive.
    (iii) Appraisals will be prepared in accordance with subpart B and 
the guidelines set forth in Comptroller General Decision No. B-132774, 
dated October 9, 1957.
    (iv) Discussions with landowners concerning acquisition of a ranch 
unit will be conducted in accordance with the procedures for fee 
acquisition.
    (v) Offers will be prepared, accepted, and distributed as provided 
in Sec. 644.87.
    (vi) Title procurement and title clearance relating to the 
acquisition of title to any fee lands within the ranch unit will be the 
same as in any other fee acquisition. In preparing title evidence 
covering leasehold interests, a search of the records will be made by 
the Division or District Engineer Office and ENG Form 909, Attorney's 
Preliminary Certificate of Title, will be prepared. In connection with 
the search of the records, it should be noted that Federal grazing 
privileges may be pledged or encumbered with mortgages.
    (d) Acquisitions Under Provisions of Relocation Contracts. (1) When 
land or interests therein, including subordination of minerals, required 
for project purposes are acquired under the provisions of relocation 
agreements negotiated in accord with Section 73, ER 1180-1-1, it will be 
necessary to procure title evidence covering such land and interests. If 
the value of interests so acquired is not otherwise determinable for 
compliance with Sec. 664.84, said value will be determined by the 
Division or District Engineer by means of a memorandum appraisal to be 
retained in the tract file. While this type of acquisition does not 
involve the closing procedure set forth in Sec. 644.70, so much of the 
title assembly described as is applicable, plus an executed or certified 
true copy of the relocation contract, will be

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used in the examination and approval of the title. The disposition of 
final title assemblies will be governed by Sec. 644.71.
    (2) The procedures described in Secs. 644.81 through 644.88 do not 
apply to the extinguishment of outstanding rights, including 
subordination of easements and similar interests, under the provisions 
of relocation contracts, as differentiated from the acquisition of land 
or easements, or the subordination of oil, gas, and other mineral 
rights, to be utilized for project purposes.
    (e) Acquisition By Exchange--(1) Military. The authority to acquire 
land by exchange for military projects is provided in 10 U.S.C. 2672, 
and in the Military Construction Authorization Act passed each year. As 
an example sections 601 and 702, Pub. L. 95-82, August 1, 1977, the 
Military Construction Authorization Act, 1978, provides in part, that 
``the authority to acquire real estate or land includes authority to 
make surveys and to acquire land, and interests in land (including 
temporary use), by gift, purchase, exchange of Government-owned land, or 
otherwise.'' Title 10 U.S.C. 2662a-4 provides that a transfer of real 
property owned by the United States to another Federal agency or another 
military department or to a state must be reported to the Committees on 
Armed Services if the estimated value of the property is more than 
$50,000. A prerequisite to any acquisition by exchange is authority for 
the acquisition.
    (2) Civil Works. The authority to exchange land or other Government 
property for private lands or property in execution of an authorized 
river and harbor or flood control work or improvement is found in 33 
U.S.C. 558b and 558b-1.
    (3) Coordination with the Office of Managment and Budget (OMB). OMB 
requests that each proposal to use Government-owned property in a land 
acquisition exchange be cleared with the appropriate Associate Director 
of OMB. Disposal actions where exchange through the authority of the 
General Services Administration or specific legislation is envisioned 
will be cleared with OMB prior to filing a disposal report pursuant to 
10 U.S.C. 2662. A draft letter to the Associate Director, Office of 
Management and Budget will be submitted to HQDA (DAEN-REA) WASH DC 20314 
stating the requirement for the new acquisition, the description of the 
property to be excessed, its estimated fair market value, and a 
justification for the exchange of that property as constituting its 
highest and best use. OMB clearance will be required before disposal 
reports outlining exchange proposals are filed with the Congress.

              Involuntary Acquisition by the United States