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Acquisition of Land by the Department of the Air Force

Date of Issuance:

The requirement in 40 U.S.C. § 255 that the Attorney General review and approve the sufficiency of title to land prior to its acquisition by the government applies to all federal land acquisitions, except those specifically exempted from it, including the acquisition of land proposed by the Air Force in this case. The statutory provision which allows the Air Force to begin construction on land before its title is approved does not create an exception to the generally applicable requirement in 40 U.S.C. § 255, but is merely intended to allow military construction projects to get underway pending a determination on the validity of title.

Under regulations promulgated by the Attorney General, which are binding on agencies to which he had delegated his authority to approve title, less than fee simple title may not be approved for lands on which the United States is placing permanent improvements, except where Congress has authorized a lesser estate. Even where Congress arguably authorized acquisition of a lesser estate, the Attorney General and his delegees are still responsible for determining whether the title to be acquired in a particular case is sufficient for the intended government purposes.

The title proposed to be acquired from the Colorado State Board of Land Commissioners in this case—a right-of-way subject to a reversion interest—is not sufficient under Colorado law to protect the interests of the federal government where the Air Force intends to build a multimillion dollar military complex on the land.

Updated July 9, 2014