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National Park Service and Interior Dept. sued under FOIA over shutdown documents

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On Tuesday night, I filed a lawsuit in D.C.'s U.S. District Court against the Interior Department and the National Park Service for failing to produce documents in response to two pairs of Freedom of Information Act requests. Those requests, sent on October 9 by the Competitive Enterprise Institute (CEI), dealt with these agencies’ closures of private businesses and privately-run tourist attractions in the 2013 federal government shutdown, and also with their closures of public monuments and spaces (which were closed down, even though they often are open to the public even when no federal employee is on the premises).

The agencies have neither produced documents, nor set an estimated date for when they will be produced, nor indicated how many documents they might produce, even though FOIA contains a 20-day deadline for an agency to comply with a FOIA request. They have not provided the basic information that FOIA requires within that deadline, such as saying how many documents they expect to produce (or, if the documents are exempt from disclosure, how many they will withhold), even though that information is required under the D.C. Circuit Court of Appeals' recent ruling in C.R.E.W. v. F.E.C. (2013).

During the shutdown last October, these agencies closed down, or blocked access to, many private businesses that had apparently been allowed to operate in earlier shutdowns under prior Presidents (even as politically-connected businesses were allowed to remain open). After lawyers and legal commentators suggested that these closures of private businesses were illegal departures from past agency practice, I filed FOIA requests here in Washington seeking to find out which officials were responsible for these improper closures, and how the decision to close them was made. Of all the agencies involved, the National Park Service was probably the worst offender, according to Congressional testimony by CEI’s Myron Ebell. Judges later ruled against the National Park Service’s closure of a northern Virginia state park used by children, and against the U.S. Forest Service’s suspension of timber operations.

The Obama administration’s behavior during the shutdown was controversial, to say the least. As part of the so-called “shutdown” (which did not actually shut down most of the government – most federal workers kept working), it shut down tourist attractions — even when doing so cost the government more money than leaving them open. It rented costly barricades to keep people out of open-air outdoor monuments that don’t need to be manned, and are typically open even when unstaffed (like the World War II Memorial).

And it sent Park Police to drive people out of privately-run tourist attractions on public land, like the Claude Moore Colonial Farm, endangering tourism-related jobs in the process. On October 2, PJ Media’s Bryan Preston reported that the federal government was “ordering hundreds of privately run, private funded parks to close,” using the government shutdown as an excuse.

The federal government’s barricading and forced closure of private-funded and operated Claude Moore Colonial Farm did not save the government a penny, Preston noted. He quoted from an email sent by the Farm’s Managing Director, Anna Eberly:

“For the first time in 40 years, the National Park Service (NPS) has finally succeeded in closing the Farm down to the public. In previous budget dramas, the Farm has always been exempted since the NPS provides no staff or resources to operate the Farm.”

The Claude Moore Colonial Farm, Eberly says, has thrived even as the federal government has treated it with “benign neglect” for decades. That benign neglect would serve it better than the barricades now surrounding it.

Eberly writes that the NPS has already gone out of its way to disrupt an event at the farm:

“The first casualty of this arbitrary action was the McLean Chamber of Commerce who were having a large annual event at the Pavilion on Tuesday evening. The NPS sent the Park Police over to remove the Pavilion’s staff and Chamber volunteers from the property while they were trying to set up for their event. Fortunately, the Chamber has friends and they were able to move to another location and salvage what was left of their party. You do have to wonder about the wisdom of an organization that would use staff they don’t have the money to pay to evict visitors from a park site that operates without costing them any money.”

The Obama administration’s actions drew criticism from lawmakers of both parties. House Natural Resources Committee Chairman Doc Hastings (WA-04) sent letters to the U.S. Fish and Wildlife Service Director Dan Ashe and U.S. Forest Service Chief Tom Tidwell regarding the Obama Administration’s actions to unnecessarily and arbitrarily restrict public access to wildlife refuges and Forest Service lands during the government shutdown (see Chairman Hastings Seeks Answers Over Shutdown Closures in National Forests and Wildlife Refuges, State News Service, Oct. 11, 2013):

“Just as we have seen in the National Parks across the county, the Obama Administration is arbitrarily and inconsistently barricading open spaces, restricting access to privately operated facilities within the forests, and wildlife refuges, and hurting small businesses that do not rely on federal funds to operate. Again, many of these places were not barricaded during the last government shutdown 17 years ago. The Obama Administration is taking advantage of every opportunity to make this shutdown as painful as possible,” said House Natural Resources Chairman Doc Hastings (WA-04). . .

Activities such as hunting and fishing, which are managed by the states, ranching and other recreational uses are being blocked from these sites, many of which are usually unfenced and intermittently staffed or patrolled by Interior or Forest Service personnel. The closure of these wildlife refuges and National Forest lands further illustrates the inconsistent and arbitrary actions of the Department of the Interior and the Forest Service during the government shutdown. . . the Committee will continue oversight into the inconsistent and arbitrary closures of privately funded business that happen to be on federal lands. .

An October 9, 2013 letter from Congresswoman Carol Shea-Porter (D-N.H.) to the chief of the Forest Service also raised this subject (see Robert Blechl, White Mountain National Forest: Private Campgrounds To Stay Closed In N.H. National Forest Trails Remain Open, St. Johnsbury Caledonian-Record, Oct. 12, 2013, at A3).

On Wednesday, Shea-Porter wrote a letter to U.S. Forest Service Chief Tom Tidwell urging him to reopen the 22 privately run campgrounds in the White Mountain National Forest.

“There is no reason to close these campgrounds down,” she wrote to Tidwell. “No federal money is spent to run these locations, as the private operators pay for maintenance upkeep and insurance.”

Shea-Porter said, “This closing, which the agency has justified as part of the government shutdown, does not make sense from a financial perspective for the government and will inflict undue economic hardship on local campground operators.”

Warren Meyer of Arizona-based Recreation Resource Management, Inc. said the “marching orders” to shut down his business came “straight from the White House.” His company employs more than 400 camp workers on national park campgrounds and other sites. Previous government shutdowns closed none of the parks RRM operates, but this time, the firm was ordered to close — even though its campgrounds are self-sufficient and receive no federal funds. Indeed, they pay rent to the government out of their revenue.

Meyer told PJ Media that not only is his business losing money due to the closures, but the government is making it buy the very barricades being used to shut it down.

“We are like prisoners of war who have to pay for our prison,” he said.

The government also shut down restaurants and hotels on government-owned land, causing thousands of dollars in losses, and erected costly barricades to shut down parking lots around privately-owned attractions like Mount Vernon. It also apparently closed Philadelphia’s City Tavern, which was adjacent to (and reachable from) a public, city-owned street.

These closings were part of the Obama administration’s strategy of making the government shutdown as painful as possible to provoke a political backlash against the GOP, which it blames for the shutdown. It was political theater, but with real victims.

While closing these private operations, the government selectively left open some government-run sites, while closing others. It has closed the most popular tourist destinations, such as the World War II Memorial and the National Mall, while keeping open other, less-visited public sites.

These closures of private tourist attractions struck some former government lawyers as illegal. Former Justice Department lawyer Hans Von Spakovsky, now employed by the Heritage Foundation, said that those affected “should immediately file a lawsuit and seek a temporary injunction against the government” to stop the illegal closings.

The federal government had no excuse for harassing private tenants whose operations cost it nothing, and fill, rather than deplete, the government’s coffers by generating valuable tax revenue. If there were any legal basis for closing them, it would have been invoked by President Clinton during the last shutdown, since Clinton, too, sought to make government shutdowns as painful as possible to win the PR war with his GOP rivals.

As Case Western Reserve University Law Professor Jonathan Adler noted at the time, these forced closures of private businesses and facilities raised obvious legal red flags:

[S]imilar closures were not ordered during prior shutdowns, so they would not seem to be required. So, for instance, the National Park Service ordered Philadelphia’s City Tavern closed, even though it was not closed during prior government shutdowns. . . .The fact that some facilities are being closed now when they were not closed during prior shutdowns suggests these are discretionary choices. These closures also raise some interesting legal questions. For instance, one what authority can the NPS or another federal agency order the closure of a facility run by a private concessionaire or tenant? Do the relevant lease or concession agreements provide for this? And if there is not clear authority for ordering a closure in this sort of instance, might the federal government be liable for the subsequent losses?

I understand the “Washington Monument strategy.” President Clinton used it quite effectively. But it seems to me there’s a difference between focusing cuts where they will be the most visible (or inflict the most pain) and ordering costly actions to create the appearance of cuts where no cuts are required. So, for instance, the NPS Park Police were apparently ordered to erect barriers across the entrances to various parks that cost nothing to keep open, such as the WWII memorial and overlooks on the GW parkway. But any such orders should be justified by the need to conserve funds. Closures that are not legally required and that cost the government money would seem to exceed the executive’s prerogative.

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