National Park Service Accused of Illegal Appointment

Washington, DC April 17, 2019  Today Public Employees for Environmental Responsibility (PEER) filed a complaint with the Department of the Interior’s Inspector General (IG) accusing the National Park Service (NPS) of illegally naming one of its key leaders. On April 15, 2019, the NPS installed David Vela as its “Acting” Deputy Director of Operations. This happened through the April 12 appointment made by another NPS Deputy Director, P. Daniel Smith.

However, Deputy Director Smith lacks the legal authority to appoint Mr. Vela into that position according to PEER’s complaint. Under the Park Service’s foundational statute, only a Senate-confirmed Director can appoint the Deputy Director of Operations position (54 U.S. Code § 100302). In an all-employee email announcing the Vela appointment, Deputy Director Smith said in making the appointment he was “exercising the authority of the Director.” Yet, Mr. Smith has never himself been appointed as the Director – whether “acting” or otherwise – and President Trump has not named a permanent nominee for that prominent position.

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Deputy Director Smith cannot unilaterally assume the “authority of the Director” to make such an appointment and he cannot put “Acting” in front of David Vela’s title to circumvent the law’s requirements. A January 29, 2019, Order, “Temporary Redelegation of Authority” from then Acting Secretary of the Interior David Bernhardt, allows lesser political appointees such as Mr. Smith to occupy higher jobs, but Section 4 of that Order specifically delegates “only those functions or duties that are not required by statute or regulation to be performed only by the Senate-confirmed official occupying the position.”

“Put simply, one Deputy Director cannot appoint another Deputy Director,” said Peter Jenkins, PEER’s senior counsel. “Mr. Smith cannot simply put the word ‘acting’ in front of David Vela’s title to evade the law.” Jenkins notes that there is no legal precedent for a political appointee like Mr. Smith, who has never been properly named into the Director position under the Vacancies Reform Act, to use word games like ‘exercising the authority of the Director’ to claim a power he does not have.

With Mr. Vela’s appointment the Park Service is now, more than halfway through President Trump’s term, run by three Deputy Directors — one of them (Mr. Vela) “acting” — but no Director to whom they are deputies. This is the latest in a long line of violations of the Federal Vacancies Reform Act (FVRA) by the Department of the Interior (DOI). In a report PEER issued last month, Bernhardt’s Bad Actors, PEER charged then-Acting Secretary David Bernhardt with undermining the constitutional advice and consent power of the U.S. Senate by using similar word games to appoint Mr. Smith and seven other chief officials within his sprawling Department.

“Interior now has the dubious title of leader of the Federal agencies in circumventing the law in appointing bureau chiefs,” Jenkins continued. “PEER is calling on the IG to finally put a halt to the word games and reject David Vela’s illegal appointment.”

The DOI now has eight quasi-acting officials in charge of most of its major bureaus. PEER’s complaint asks the IG to examine their legality as well. These unconfirmed political appointees manage more than 450 million acres of the public’s frequently-visited national parks, wildlife refuges, monuments, and rangelands, covering almost one-fifth of the nation’s land area. The eight DOI political appointees are in violation of FVRA, which allows for “acting” officials, but only under limited conditions, generally for a maximum of 210 days. None of the DOI officials comply. The result has been extensive evasion of the requirement for Senate advice and consent before filling those positions, all of which require Senate confirmation under the law.

See PEER’s complaint to Interior’s Inspector General

See the letter from Smith naming Vela as Acting Deputy Director

See the order Bernhardt signed

See 54 U.S.C § 100302 on the NPS Director’s appointment power for Deputy Directors

Read PEER “Bernhardt’s Bad Actors” report

Look at the legal cloud over illegal Interior appointees