Government Shutdown Closes Some Concessions While Others Stay Open

Your Government counsel.™

The recent federal government shutdown resulted in some concession operations being closed, while others remained open.  This disparity was due to a variety of factors.  The factors included agreements which had been previously set up by local areas allowing them to fund the federal area and a less aggressive interpretation by the federal government of what areas needed to be closed.  If your operations were closed, you may want to inquire with the agencies or your local government if and how you can avoid that outcome in the event of any future government shutdowns.

Areas that have discrete and limited entrances were usually closed due to the lack of federal employees to staff the entrances.  Some areas, however, such as Grand Canyon National Park, Rocky Mountain National Park and the Statue of Liberty, remained opened.  These areas were able to remain open pursuant to agreements the local areas or states had reached with the federal government.  Those agreements allowed the local authority to provide funding to the federal government to pay for the staffing required in the area.  In those areas which were not formally closed, often the agencies allowed concession operations to continue based on the view that the concession did not need federal funding to operate.  Some of these areas were in a “soft shutdown” which meant the federally staffed facilities, such as visitor centers, were closed but the areas were not formally closed and recreation operations that did not rely on federal funds could continue.

In fact, the Forest Service issued written guidance on continuing permitted public services during any government shutdown.  In that guidance, the agency noted that concession services “are critical to local economies and especially rural communities.”  The agency stated that concession operations which do not require day-to-day Forest Service administration should continue operating pursuant to their existing operating plans.  These areas include ski areas, resorts, concession campgrounds, outfitting and guiding, recreation events, utilities and communication sites.  Notably, the guidance closely resembled the points made by concessioners in a prior lawsuit challenging the agency’s closures during the 2013 government shutdown.

The National Park Service also has limited guidance regarding government closures set out in its 2006 Management Policies, which states:

10.2.6.5 Closure of Commercial Operations during Government Shutdown.   The Anti-Deficiency Act requires federal agencies to suspend all nonessential activities whenever there is a failure to enact an appropriations bill or adopt a continuing resolution.  All concessioner-operated programs and services must cease, and visitors must be asked to leave within 48 hours.  All commercial facilities and services in a park will be closed to protect the safety of visitors and the integrity of park resources.  Exceptions to this policy include concessions that are required for health and safety purposes or protection of the environment, or that are necessary to support park operations that are deemed essential, such as law enforcement.  Commercial facilities located on through-roads (roads or public highways that begin and end outside of a park, plus parkways) and public highways may remain open if doing so does not result in additional costs to the park (for example, the staffing of entrance stations).  These commercial facilities may include operations such as service stations, food services, stores, and lodging, or portions of such operations.  The commercial facility in question should have access directly from the road or highway and not require the reopening of park roads having other destinations.  More specific aspects of closures may be guided by a Service-wide shutdown plan.

 

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