A Department of the Interior plan for keeping U.S. national parks open during the record-long 35-day partial government shutdown earlier this year may have broken the law, furthering disagreements over how to manage access to public lands when the executive and legislative branches fail to approve budgets by their deadlines.
A Sept. 5 opinion from the nonpartisan federal watchdog Government Accountability Office (GAO) says Trump administration officials broke the law by diverting funds previously approved by Congress for other uses under the Federal Lands Recreation Enhancement Act (FLREA). The law allows parks to collect entrance fees for a dedicated fund to add and enhance the park’s amenities, but per the GAO, the Trump administration stretched its interpretation beyond the limits of the law.
In a tweet dated the same day, the DOI Press Secretary Twitter account stated the opinion was “blatantly false,” setting up a possible showdown with Congress, where the land and resource management agency’s budget requests for 2020 could face greater scrutiny from lawmakers.
“The administration should now immediately report this violation and take corrective actions as required by law,” U.S. Rep. Betty McCollum, D-Minn., chairwoman of the House Appropriations subcommittee that oversees the department, said in prepared remarks Sept 6. “This should put the administration on notice that their illegal actions will not be tolerated.”
Penalties for violations of the Antideficiency Act include a fine of $5,000 or up to two years in prison. The law is intended to keep federal agencies from incurring financial obligations outside of what is approved by Congress, but the GAO says that’s exactly what the Interior Department did when it dipped into user-fee funds for custodial and other day-to-day services.
Still, it’s not within the GAO’s powers to bring those charges. That power lies with the Department of Justice, according to GAO spokesman Chuck Young.
“Of course, Congress could also take legislative action,” Young said in an email.
That action could range from putting budget constraints on department leaders to passing additional laws or new penalties for future violations of the Antideficiency Act.
Previous shutdowns have led presidential administrations to close national parks when there was no funding to staff them. Since 2018, there have been four instances of partial government shutdowns, varied in length. During the shutdown in question, which lasted from December 2018 to January 2019, the Trump administration chose to leave several of the most popular parks and other federal public lands open to the public.
Some parks had their operations funded by state agencies or nonprofit foundations during the shutdown, but many did not. The result was widespread reports of vandalism, looting and trash heaps on lands the Department of Interior is obligated to preserve.
“The issue is they never should have left parks open,” said Kristen Brengel, vice president of government affairs for the nonprofit National Parks Conservation Association. “They couldn’t meet their mission of preserving these areas.”
According to an internal Interior Department letter obtained by The Hill, in January, then acting Interior Secretary David Bernhardt approved up to $250 million in funds collected under the Federal Lands Recreation Enhancement Act to be put to use “immediately” for security and cleanup that couldn’t be financed through the normal funding source for such day-to-day operations.
Also in January, congressional Democrats began investigating the decision, asking for justifications from interior officials. Democrats argue the FLREA funds were specifically authorized by Congress for major investments in amenities on public lands, noting the National Park Service alone has a list of deferred maintenance projects pushing $12 billion in needs.
In a letter to members of Congress dated Jan. 9, Bernhardt told lawmakers the decision was essential to meeting the agency’s “mandate” that the public be able to enjoy the parks despite the shutdown. Approved uses of the entrance fee funds include projects for health, safety, maintenance, access and repair, Bernhardt wrote.
“There is no limitation in this statute or any other statute that prohibits an expenditure for the purposes stated above, even if we previously received some general appropriations for that identical purpose,” Bernhardt wrote.
In a prepared statement issued Sept. 5, Sen. Tom Udall, D-N.M., accused the administration of misappropriating the funds to avoid a public relations disaster associated with the shutdown.
“The American people pay these park fees to make improvements at our national parks—but instead the Trump administration illegally diverted them to limit the public relations fallout from its costly and unnecessary government shutdown,” he said.
But the Trump administration maintains it didn’t break the law.
“This was not only within our lawful authority it was our responsibility,” a tweet from the National Park Service Press account countered on Sept. 6.
Interior’s decision “tears at the very fabric of Congress’s constitutional power of the purse,” wrote GAO General Counsel Thomas H. Armstrong in the Sept. 5 opinion. “Instead of carrying out the law, Interior improperly imposed its own will.”
GAO spokesman Young said staff would continue to monitor whether the Department of the Interior has taken any action to correct and prevent the violation from happening again “and will report to appropriate congressional committees if deemed necessary.”
If Trump administration officials choose to improperly use these funds again, it will be considered a “knowing and willful violation” of the law, Young said. The opinion also notes interior officials were given a June deadline to respond to the office’s investigation and did not.
In Bernhardt’s Jan. 9 letter, he acknowledged the administration of former President Barack Obama chose instead to close parks during a prolonged government shutdown in 2013. The Obama administration decision at that time angered some members of Congress representing districts with national parks lands and residents concerned about the loss of tourism revenue.
That 2013 disagreement led to the Obama administration approving national park partnerships with state agencies and nonprofit organizations to fund services to keep certain parks open during the shutdown.
Bernhardt said initial plans for the shutdown that began in December were similar, but that he personally made the decision to use entrance fee funds for day-to-day services for custodial and safety needs.
“After I saw problems with the 2018 plan, I made a different policy choice, which I believe is a better choice,” Bernhardt wrote.
The Department of the Interior replenished the entrance fee fund with appropriations for custodial services after Jan. 25, when a compromise between the president and Congress ended the shutdown.
Brengel, with the National Parks Conservation Association, maintained that practice threatens the long-term viability and enhancement of public lands for recreation.
“People pay fees to keep parks in great shape. They pay the fees to have programs to maintain trails and roads,” she said. “They don’t pay fees to help cover up a bad political decision the administration makes.”