NPS Defends Its Decision To Keep Parks Open During 2018/2019 Shutdown, And Says It Will Do It Again

Your Government counsel.™

The National Park Service (NPS) responded to and strongly disagreed with a recent decision by the Government Accountability Office (GAO) in which GAO asserted that NPS violated the law when it used certain funds it had to keep parks open during the last government shutdown.  NPS insisted that its decision to use funds it obtained pursuant to the Federal Lands Recreation Enhancement Act (FLREA) was “fully compliant with existing law” as well as “long-standing practice regarding the use of such fees.”

NPS relies on funds for its operations annually provided by Congress through the appropriation process (appropriated funds).  NPS receives FLREA funds not from Congress but pursuant to a statute which allows it to retain certain fees charged at NPS sites.  As a result, Congress controls appropriated funds and this control (referred to as the ‘power of the purse’) provides it with the ability to exert control over NPS.  Congress, however, does not control FLREA funds.  GAO’s decision was based in part on its conclusion that NPS had not consistently used FLREA funds for regular maintenance in the past.  Therefore, GAO concluded, NPS should use appropriated funds and only appropriated funds for those activities, and any future use of FLREA funds for regular maintenance efforts could result in jail time for department officials.

NPS insisted, however, that it has been using FLREA funds for the custodial services needed to keep parks open “on dozens of occasions, spanning years.”  NPS also asserted that GAO knew NPS was preparing a response to GAO’s inquiries, but GAO issued its decision before receiving that report, which cause “profound disappointment” to NPS.

Consistent with this position, NPS’ acting Director Danny Smith penned an op-ed piece in which he strongly indicated that NPS will, if necessary, use FLREA funds again to keep parks open during any future government shutdowns.  Smith noted a 2006 GAO report in which GAO stated that “in times of budget constraints, recreation fees may provide an important source of additional funding needed to sustain agency operations.”

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