The Government Accountability Office on Thursday ruled Interior Secretary Bernhardt broke the law by shifting FLREA funds to pay for park operations during the partial government shutdown/Rebecca Latson file

Interior Secretary David Bernhardt twice broke the law when he directed de facto National Park Service Director P. Daniel Smith to shift Federal Lands Recreation Enhancement Act funds to pay for maintenance and custodial work during the partial government shutdown early this year, the U.S. Government Accountability Office said Thursday.

Bernhardt directed the funding shift early in January as garbage was piling up in national parks and restrooms were becoming disgusting without daily cleaning. He gave Smith permission to use nearly $253 million in FLREA funds to bring back park maintenance staff and additional support to clean up and protect the parks during the 35-day shutdown.

At the time of the shift, Democrats in Congress and conservation groups sharply criticized the move and questioned its propriety. 

While the GAO sought an explanation from Interior on its view of the law regarding the funding shift, Interior did not respond, the report noted. "We take our responsibility to Congress seriously, and will not allow an agency’s lack of cooperation to interfere with Congress’s oversight of executive spending," the report's authors said in defending their decision to move forward with issuing an opinion in the matter.

In that ruling (attached below), which was requested by some members of Congress, the GAO said Thursday that Interior violated both the FLREA statute by using its revenues for a purpose other than the act directed, and the Antideficiency Act by spending funds "in excess or in advance of available appropriations, unless otherwise authorized by law."

In other words, while Interior expected Congress to replace the FLREA funds in the Park Service's operations budget once the shutdown ended, which indeed Congress did after the budget impasse with President Trump was resolved, GAO nevertheless said the dollars couldn't be spent on daily operations during the partial shutdown unless OKed by Congress because the Park Service did not have an appropriation for operations at the time. 

"If a program has no available appropriations, and no exception to the Antideficiency Act applies, the agency must commence an orderly shutdown and suspend its normal operations," the 17-page report said. "The agency may only resume its activities once Congress has enacted an appropriation."

At the National Parks Conservation Association, which had called for an investigation into the funding shift, President Theresa Pierno said Thursday evening that during the shutdown "the administration played a shell game with national park money in order to keep parks open. This jeopardized the parks themselves, and all who visited them. Today, after a months-long investigation, the Government Accountability Office agreed with NPCA and found that the Department of the Interior misused funds, breaking federal law. The Department of Interior must right this wrong and put guidelines in place to ensure this never happens again. Our national parks, and all who visit them, deserve nothing less.”

Using FLREA revenues for maintenance and custodial work during the partial government shutdown undermined the intent of the FLREA program, which specifies that revenues from entrance fees and other approved programs go to enhance the visitor experience. That could be through better facilities, more interpretive programs, or restored habitat.

The GAO agreed with that interpretation, pointing out that "FLREA authorizes NPS to use fees for 'repair, maintenance, and facility enhancement related directly to visitor enjoyment, visitor access, and health and safety.'"

"The statute as a whole contemplates that fees would be established in consideration of the benefit being provided to the visitor and that the site collecting the fee would retain the majority of collections for use at the site, such that visitors are contributing to their enhanced experience," the report's authors wrote.

Maintenance and custodial work, it went on, are to be charged against the Park Service's operations budget, and that's what the agency does when it presents its budget request to Congress, the GAO said.

"... even if we were to view both FLREA fees and (operations) appropriations legally as equally available for basic custodial services, here, because NPS has historically charged the (operations) appropriation for such expenses, and clearly elected to continue to charge the (operations) appropriation for such expenses in fiscal year 2019, as reflected in its congressional budget justification for fiscal year 2019, the (operations) appropriation was the only appropriation available for this purpose in fiscal year," the report said.

GAO said Bernhardt's order to redirect FLREA funds to pay for maintenance and custodial work during the partial shutdown "demonstrates a misunderstanding and misapplication of both the purpose statute, and the Antideficiency Act, and it tears at the very fabric of Congress’s constitutional power of the purse. We will consider any future application of this ... (approach) to be a knowing and willful violation of the Act, subjecting Interior officials to penalties."