The Government Accountability Office (GAO), which is an arm of Congress, recently issued a report finding that NPS violated the law when NPS used FLREA funds to keep National Parks open during the recent government shutdown in late 2018/early 2019.
GAO noted that Congress typically provided NPS with an annual Operation of the National Park System (ONPS) appropriation “[f]or expenses necessary for the management, operation, and maintenance of areas and facilities administered by [NPS].” Appropriated funds can only be used for those purposes authorized by Congress. 31 USC § 1301(a). Congress also enacted FLREA which provides NPS with funds for the “repair, maintenance, and facility enhancement related directly to visitor enjoyment, visitor access, and health and safety.” 16 USC 6807(a)(3)(A). Rep. at 7. GAO apparently took the view the FLREA funds are also appropriated funds.
In response to the government shutdown in late 2018/early 2019 and the lapse in its annual appropriations, NPS obligated FLREA funds for purposes such as trash collection and maintenance of restrooms in National Parks. While GAO noted that FLREA funds “could potentially encompass a range of activities,” it found that NPS had not previously used FLREA funds for basic custodial services and it only decided to do so in response to the fact that its appropriated funding had been lost. NPS also moved the obligations assigned to the FLREA funds back to its ONPS account after the shutdown when funding resumed. Based on these facts, GAO concluded that NPS had violated the law by using FLREA funds for purposes not authorized by Congress in order to “circumvent the effect of a lapse in ONPS appropriations.”
GAO noted that Congress’ ability to control the funding of an agency, its “power of the purse,” is critical to its relationship with and control over executive agencies. GAO found that NPS essentially eliminated Congress’ authority over it by using FLREA funds for purposes typically paid for by annual appropriations. As GAO bluntly stated, “Interior improperly imposed its own will” by abusing “the trust Congress placed in Interior with the enactment of FLREA.” GAO warned that any future use of FLREA funds for this purpose could result in jail time for the responsible government officials.