Groups Request Investigation Into Legality Of Keeping National Parks Open

During the ongoing partial government shutdown national park resources have been damaged by illegal camping and vandalism/NPS photo of out-of-bounds campsite at Joshua Tree National Park

The Interior Department's Office of Inspector General was asked Friday to launch an investigation into the legality of keeping the National Park System open during the partial government shutdown with limited staff and resources.

"The Department of the Interior recklessly ignored laws put in place to protect our public lands and wildlife and continues to pressure park staff to keep their gates open without adequate staff," said Theresa Pierno, president and CEO of the National Parks Conservation Association. "Acting Interior Secretary (David) Bernhardt is violating the law, and we implore the Inspector General to investigate this matter before our parks, visitors, local communities and wildlife suffer any longer."

Joining NPCA in the call for an investigation was Democracy Forward, a Washington, D.C.-based non-partisan legal services and public policy research organization that works to expose government corruption and wrongdoing.

On Sunday, acting Interior Secretary David Bernhardt directed the National Park Service to tap Federal Land Recreation Enhancement Act funds to pay for daily maintenance and custodial work. Democrats in the U.S. House of Representatives plan to hold hearings into the legality of the move, while park superintendents and friends groups are concerned because those funds are counted on to enhance the visitor experience, not meet the daily needs of operating a park.

Using FLREA revenues in this fashion also undermines the intent of the program, and sets a precedent for how those dollars are spent. As FLREA was envisioned and set up, the revenues from entrance fees and other approved programs were to go to enhance the visitor experience. That could be through better facilities, more interpretive programs, or restored habitat.

NPCA and Democracy Forward claim that a handful of laws have been broken by Interior's effort to keep the parks open during the ongoing budget stalemate:

* The Antideficiency Act, which specifies that federal agencies are barred from obligating funds in the absence of an appropriation by Congress except in rare circumstances in which such obligation is necessary to prevent an imminent threat to human life or property; 

* The National Environmental Policy Act, which requires an environmental impact statement for “major federal actions significantly affecting the quality of the human environment”; 

* The Endangered Species Act, requiring that DOI ensure its actions are “not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species;” 

* The Federal Lands Recreation Enhancement Act, which only permits the use of visitor fee funds for six enumerated purposes related to improving visitor experiences—not as a general purpose operating fund.

“During the government shutdown, we’ve seen terrible and sometimes irreversible damage to our national parks, including cut down trees, stolen artifacts, overflowing trash and human waste and illegal off-roading on fragile wilderness areas," Pierno said. "Gates to parks have been open while thousands of park rangers have been sidelined. And the few rangers who are on duty are not enough to safeguard visitors and park resources the way they deserve to be protected and, in fact, the way they’re legally mandated to be protected."

Questioning the basis for the complaints was Shawn Regan, a research fellow at the Property and Environment Research Center in Montana.

"The Federal Lands Recreation Enhancement Act gives the National Park Service broad discretion in the use of fee revenues, which do not require appropriation from Congress in order to be spent to enhance visitor services in parks," he said. "The act states that such funds can be used for 'repair, maintenance, and facility enhancement related directly to visitor enjoyment, visitor access, and health and safety.' It's hard to see why it would be contrary to the law for the agency to use those funds in ways that will enhance visitor access, enjoyment, and health and safety.

"The fact that the National Park Service has traditionally not used its fee revenues to support basic operations and maintenance — which is true — does not mean doing so would be a violation of FLREA, which it isn't," Regan added. "In fact, the U.S. Forest Service handles its FLREA revenues differently than the Park Service, allowing the funds to be spent to keep national forest campgrounds and other recreation sites operating and in safe condition, even during the government shutdown."

Meanwhile, CEOs of 11 environmental organizations earlier Friday sent a letter to congressional leaders asking that they pass legislation to fully fund the Interior Department.

"As the government shutdown extends into its third week, we are writing to express our deep concern over the unacceptable situation unfolding on our public lands and particularly at our national parks. While some parks are closed to the public, many more remain open but operating without the staff and resources needed to protect park resources from lasting, irreparable damage and the public from harm," they wrote.

"The only real solution to protecting our parks from further irreversible damage is to reopen the government to fund them. We urge you to act now to protect the health and safety of visitors and to protect park resources by approving H.R. 266, the FY 19 Interior and Environment appropriations bill that will allow all parks to reopen and operate safely," the letter went on. "... The federal government also has an obligation to steward the national parks so they are available to our children and grandchildren. Allowing access to our parks without ensuring that stewardship is negligent."

The letter was signed by Diane Regas, president and CEO of The Trust for Public Land; NPCA's Theresa Pierno; Jamie Williams, president of The Wilderness Society; Wm. Robert Irvin, president and CEO of American Rivers; Jamie Clark, president and CEO of Defenders of Wildlife; Abigail Dillen, president of Earthjustice; Erich Pica, president of Friends of the Earth; Mark Margaña, founding president and CEO of GreenLatinos; Gene Karpinski, president of the League of Conservation Voters; Amy Roberts, executive director of the Outdoor Industry Association, and Ben Gregg, executive director of the South Carolina Wildlife Federation.