Judge Rules Federal Government Cannot Close County Park in Shutdown

Earlier, I wrote about the federal government’s use of the federal government shutdown as an excuse to close many private businesses. Those were businesses that lease federal land, operate on it, or are surrounded by it. They were shut down by the government even though such businesses were not closed in previous government shutdowns (and even though many federal civilian employees are still on the job), suggesting that such closures were likely illegal. A federal judge in Virginia ruled on October 9 that the federal government could not close a county park that it did not even run. That ruling involved a county-managed park, not a privately managed park, but as a Washington Post story notes, “it might inspire similar legal actions” to reopen other facilities closed by the federal government. There does not appear to be any legal requirement for the government to force the closure of parks just because they operate on federal land. Indeed, such privately managed parks were left open in past government shutdowns. Even if the government had the authority to close them, the fact that the government has closed some private businesses while allowing others to continue operating (ones that are operated by larger, more politically influential businesses), and kept some closed while reopening surrounding government operations (or even reopening the property on which they operate to the public, while barring the business from it, and thus leaving the premises unsupervised and insecure), could not be justified by the Anti-Deficiency Act or reconciled with the Administrative Procedure Act’s requirement that agencies act in an internally consistent, non-arbitrary way.
As Case Western Reserve University law professor Jonathan Adler notes, the federal government recently allowed some national parks to reopen — and allowed states to pay the federal government to reopen them. But the federal government has refused to allow private parks and campgrounds to reopen, even when the private operators offered to pay the federal government to reopen them (and when operating such private facilities requires no federal employees on site because the private operator provides maintenance and security). As Warren Meyer of Recreation Resource Management, Inc., notes, the closures in many cases do not save a dime (but rather cost taxpayers money, including incurring more federal staff time), are at odds with past agency practice, and are based on internally inconsistent rationales. That suggests a violation of the Administrative Procedure Act and a lack of any justification under the Anti-Deficiency Act...more