The government shutdown, now running just under two weeks, has created an unusual casualty: national parks. The shutdown forced the Department of Interior to close 401 national parks and to furlough more than 20,000 Park Service employees. Supporting local tourism and a $646 billion/year outdoor recreation industry, national parks have been critical to the economies of many regions, including those close to eastern population centers, such as Washington, DC, North Carolina, and Tennessee. In western states, where federal lands often constitute over 50% of state land, the effects have been even worse. In Colorado, for example, the shutdown has amplified the devastating effects of recent wildfires and a historic flood on communities heavily dependent on Rocky Mountain National Park. Likewise, as California attempts to rebound from recent wildfires near Yosemite National Park, the state suffers from the highest state financial impact of national park closures, losing $8.5 million/day.
In response to the economic effects, many state governors have called upon lawmakers to reopen the parks or to allow states to pay, and the White House has responded by agreeing to the latter. While the exact terms of each agreement are not yet public, states that opt-in will be permitted to pay the Park Service for operating costs for up to ten days. If the shutdown ends prior to those ten days, states will be refunded for the remaining balance.
Enter the Anti-Deficiency Act (“ADA”), legislation dating to the late 1800s. Congress originally passed the ADA in response to agencies obligating more funds than appropriated from Congress, creating “coercive deficiencies” that the Congress felt compelled to pay. The ADA provides that during a fiscal year, agencies may not obligate more funds than previously provided by Congress, which includes contracts obligating future payment of money in excess of current appropriations. The premise of the ADA is to prevent the agencies from creating a “coercive deficiency,” meaning a reliance-backed expectation for repayment of services rendered.
Consistent with this theory, during a lapse of appropriations, government employees may not work unless they are considered “essential” under one of three exceptions: (1) they prevent or respond to “emergencies involving the safety of human life or the protection of property” (e.g. meat inspectors, federal air traffic controllers); (2) their duties are constitutionally-mandated (e.g. the judiciary will continue to hear criminal, but not civil cases); or (3) their duties operate on the basis of user fees or similar receipts from outside the government (e.g. the Patent and Trademark Office, The Grain Inspection, Packers and Stockyards Administration). The federal government scrupulously honors the ADA; for example, the White House budget office instructed furloughed employees that they may not use their government-issued mobile devices, or even use personal computers to access work emails because any such action would create a debt against the federal government for future repayment.
While Secretary of the Interior Jewell has expressed to governors that she cannot obligate the federal government for reimbursement to the states, presumably under ADA concerns, the Department of Interior’s actions nevertheless create the exact “coercive deficiency” that ADA drafters originally envisaged. Such agreements, despite allegedly stipulating that repayment will be possible only with congressional approval, are being executed outside of congressionally-delegated authority and could create an arguable cause of action against the United States. More gravely, some governors have openly defied federal orders to close state parks that receive federal funding. Such actions lack at least the exculpatory clause that Secretary Jewell’s agreements contain, thus limiting a potential defense against litigation – litigation that could be a realistic course of action for financially distressed states or for governors who might seek to score political points against the federal government and/or current administration.
Perhaps as early as next week, lawmakers may debate the implications of the ADA on state-sponsored National Park openings, as the House Natural Resources Committee and the House Oversight and Governmental Affairs Committee hold a joint oversight hearing entitled “As Difficult As Possible: The National Park Service’s Implementation of the Government Shutdown.” In the meantime, however, without affirmative appropriation or delegation of authority to execute such agreements, the Department of Interior may continue to accrue financial liability.