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."
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Yes hauling trash and cleaning restrooms are visitor services. But as noted in the GAO report, not all visitor services can be paid out of FLREA:
Amounts collected are available until expended, in relevant part, for "repair, maintenance, and facility enhancement related directly to visitor enjoyment, visitor access, and health and safety." 16 U.S.C. SSSS 6806(b), 6807(a)(3)(A)
It is the first half that was violated: trash & restrooms aren't repair, mainenance, or enhancement, and "repair, maintenance, and facility enhancement" is in the test of the law authorizong FLREA.
Further, the law establishing FLREA explicitly required agencies to develop policies for FLREA and report those policies to Congress (DO-22), as well as reports every 3 years. This reporting of policy matters, and the binding nature of the policies reported to Congress matters. In the first few years of Rec Fee (possibly into FLREA), parks would save up FLREA funds to have enough to fund higher priority projects that cost more than a single year of FLREA revenue. But Congressional staffers squawked about why were parks still charging entrance fees when they weren't spending them, and pointed out that the unspent accumulation was more than an entire year's revenue for NPS? In order to mollify Congress, NPS instituted a policy rule in response that no more than 20% of a park's 80% could be carried over annually. No more FLREA funding of replacement VCs in large parks, or restrooms in small parks. The GAO report states that because of the wording of the FLREA law, those policies reported to Congress (DO 22 and others) were binding.
Another part of violations identified by the GAO is that FLREA can only be spent on things not otherwise appropriated for. Every annual NPS budget request & resulting appropriation or continuing resolution includes funding for those (trash & restrooms) operations. Beyond that, the GAO report notes that the Feb 6 letter from the Acting Secretary to Congress that retroactively switched the costs back to the new appropriation to back-fill FLREA explicitly stated as much: "... where such obligations would have ordinarily been charged").
Note that the anonymous in the other thread did not state that NPS had dumped several years of FLREA accounting to the public, he or she said they dumped it to Congress. While the Senate appropriations subcommittee for interior had asked for such information with regard to the shutdown, anonymous said it was in response to the 4th of July Trumpfest, which strongly suggests Raul Grijalva's House committee. If your local Congressinal representative is on that committee, ask their office for a copy. Otherwise, either ask the committee for a copy, or perhaps first ask the committee to confirm if they received FLREA information from NPS, then ask for a copy, then FOI it based on their first answer about whether they received it. Note that the FLREA law requires NPS to report annually all capital expenses (perhaps over a cutoff size) from FLREA: those projects are listed as an appendix in each year's NPS budget request (aka green book), so you can inspect at least the last 10 years of capital projects. The green book does not list any of the small projects like developing a new interp program or VC exhibit, which would have been in PMIS (at least a paragraph abstract, maybe not the full project proposal) and thus in the dump to Congress.
You and the GAO totally ignore part B which specifically allows spending for "interpretation, visitor information, visitor service, visitor needs assessments, and signs;". Further they rely on custom rather than law to seperate operations from facilities maintenance. There is nothing in the act the precludes spending on operations. As to funds can't be spent for things appropriated that argument makes no sense. First, there were no funds already appropriated. That is what caused the problem in the first place. And if funds can't be spent for activities already appropriated, how can FLREA be used for maintenance and repair of facilities? Doesn't Congress appropriate funds for those activities? Interior and the NPS made adjustments to keep the parks open, safe and healthy. There is nothing illegal about that and it is what most park visitors wanted.
No - you're ignoring that the authority to use these funds for any purpose must be done in an orderly fashion. Using them as a discretionary fund to make up for lack of appropriations during a shutdown is not acceptable.
"not acceptable."
Not acceptable to who? The fact you don't accept it doesn't make it illegal. There is nothing in the legislation or federal code that makes it illegal.
Certainly seems arbitrary and capricious, if not downright outside any notion of due process ...kind of like a president telling federal officials to alter their scientifically derived advice on climate change or perhaps hurricane paths in order to fit a political party line or perhaps a president telling the pentagon to stopover and refuel their supply flights at an airport near his golf resort.
OK, folks, we've gone past the subtantive comments and are circling back around, so we're going to shut this one down.