A complaint filed Monday with Interior Department's Office of Inspector General contends that Daniel Smith was illegally appointed acting director of the National Park Service and that none of his decisions are binding or enforceable.

In its claim, Public Employees for Environmental Responsibility contends that Mr. Smith's appointment was in violation of the Federal Vacancies Reform Act. "The way the Trump administration has filled agency leadership slots with temporary or acting directors violates a law enacted to prevent a president from circumventing the U.S. Senate’s constitutional advice and consent power," the group said Monday morning in a release. "... The acting directors of the National Park Service, Bureau of Land Management, and U.S. Fish & Wildlife Service are in blatant violation of the Federal Vacancies Reform Act. Under that act, any action taken by a noncompliant official 'shall have no force or effect' nor may it be later 'ratified.'”

Mr. Smith, who nearly two decades ago was found to have ignored Park Service regulations and pushed through a permit to allow the owner of the Washington Redskins to cut down trees in a scenic easement along Chesapeake and Ohio Canal National Historical Park, early in January was appointed by Interior Secretary Ryan Zinke as a deputy director to the Park Service. Late last month, Mr. Smith was named acting director when Mike Reynolds, a deputy director given the powers of director, was transferred to Yosemite National Park to serve as superintendent.

PEER Executive Director Jeff Ruch said Monday morning that the Vacancies Reform Act "prevents a president from installing acting directors for long periods and completely bypassing Senate confirmation.” Mr. Ruch noted that President Trump has not nominated or even announced an intention to nominate, persons to fill the NPS, BLM, or FWS vacancies. “Federal agencies are not supposed to be run like a temp service.”

The PEER complaint argues that Mr. Smith could not legally be appointed acting director of the Park Service because he did not serve in a senior position in the agency for 90 days during 2017. Indeed, Mr. Smith retired from the Park Service in 2015, ending his career as superintendent of Colonial National Historical Park.

Section 3345 (a)(3) provides that the person must have “served in a position in such agency for not less than 90 days” during “the 365-day period preceding the date “ the vacancy was created” at a salary “equal to or greater than the minimum rate of pay payable for a position at GS–15 of the General Schedule.”

Mr. Smith had been back at NPS for approximately 15 days. He would not be eligible to serve as acting NPS director until at least April 9, 2018 – 90 days after he was brought out of retirement.

The group's complaint also questioned Mr. Reynolds' long-serving role at the top of the Park Service under the Trump administration, noting that he was de facto acting director for 386 days and so some of his decisions might have no legal standing.

The time limitations of the Act stipulate that a person may serve as acting director “for no longer than 210 days beginning on the date the vacancy occurs.” This period can be extended an additional 90 days after a “transitional inauguration day.” The maximum tenure of an acting director, therefore, is 300 days. 

Thus, by operation of law, for approximately the past three months any action Mr. Reynolds has taken as acting NPS director “shall have no force or effect.”

“Trump’s dereliction of duty has created the anomaly of acting directors unable to act,” said Mr. Ruch, noting that some previous Trump acting directors in these agencies also remained in acting director positions too long. “This chronic leadership failure casts a deep, murky legal shadow across a wide range of Interior decisions that may be legal nullities.”

The group's letter to OIG Deputy Inspector General Mary L. Kendall asks that her office review all actions taken by Mr. Reynolds and Mr. Smith and "(C)atalog all of the agency actions taken when out of compliance with the Act."