Illegal, unconfirmed acting official charade has consequences.
Monday, October 19, 2020
Late last Friday, federal district judge Brian Morris ruled William Perry Pendley’s decisions as acting Bureau of Land Management director in Montana were invalid. Pendley has served unlawfully as the acting BLM director for 424 days despite him and the rest of the Department of Interior knowing his succession was illegal.
Morris unraveled the work of former Bureau of Land Management (BLM) acting Director William Perry Pendley, throwing out land management plans in Montana in a case that could jeopardize the agency’s work elsewhere across the country.
It’s the second major decision in the case after Morris last month determined Pendley had violated federal vacancy laws by “serv[ing] unlawfully … for 424 days” through a series of temporary orders. He gave the Department of the Interior 10 days to justify why it shouldn’t throw out many of the decisions Pendley has made during his tenure.
The decision holds promise for environmental groups, who have a list of at least 30 land management plans overseen by Pendley they’d like to see reversed, many of which limit the scope of national monuments or open up significant portions of federal lands to oil and gas drilling.
Pendley, a controversial figure due to his history of opposing federal ownership of public lands, remains with the agency in a deputy role after his nomination to lead the BLM was withdrawn from the Senate this summer.
Pendley “had not been properly appointed to the position, and instead had exercised authority as acting BLM director through a series of unlawful delegations,” Morris wrote in reference to the maneuvers that kept him in the acting director role for over a year.
“Any exclusive function of the BLM director performed by Pendley is invalid.”
Morris’s decision invalidates three land management plans Pendley supervised in Montana, including one that would open 95 percent of 650,000 acres of BLM land to resource extraction like mining and drilling.
“Despite Federal Defendants’ disagreement with the exercise and apparent refusal to engage in such a search in good faith, it remains probable that there are additional actions taken by Pendley that should be set aside as unlawful,” Morris wrote.
Environmental groups are likely to accept Morris’s invitation.
“The Interior Department has done this all over the West. They have opened up everything to oil and gas drilling so now that these illegal actions have been spelled out by the judge, I’d imagine you’re going to see similar lawsuits across the county,” said Aaron Weiss, deputy director of the Center for Western Priorities, a public lands watchdog group, adding that Morris “has laid out a very strong case for why everything Pendley has done has been illegal.”
Interior had argued that Pendley took “no relevant acts … within the director’s exclusive authority.”
“These new arguments based on new legal arguments and new records similarly fail,” Morris wrote, as he has already determined that Pendley lacked the authority to serve as the acting director.
Some observers were surprised by Interior’s legal strategy, which has been complicated by a series of interviews Pendley has done with Wyoming media outlets claiming that the decision has had little impact on his role within BLM.
“The Trump Administration wants to have it both ways – to get credit from rightwing libertarians that Pendley’s in charge, while telling the court, not true, he’s just a figurehead and the decisions are being made elsewhere. Judges are human, and they don’t like to feel they are being played,” said John D. Leshy, a law professor who served as Interior solicitor under the Clinton administration.
“They’re doubling down on the strategy that lost them the case so far as far,” Weiss said.
Steve Ellis, who held the highest-ranking career position in BLM under the Obama administration, called the ruling “a self-inflicted event.”
Vacancy laws and the Federal Land Management and Policy Act require BLM to have a Senate-confirmed director, something Ellis said attorneys like Pendley and Interior Secretary David Bernhardt should know.
“They made their own mess here. They didn’t have a Senate-confirmed director, and then they were extending his acting under various documents including one naming himself director that he signed it himself, so they were on thin ice,” he said, referring to succession orders leaving Pendley in his role.
If Interior chooses to appeal, the case would head to the 9th Circuit Court of Appeals.
“Now they’re on federal appeals court time, which runs slowly–there’s no way this gets resolved before Jan. 21,” Weiss said, referring to inauguration day.
“So the outcome of the election will have a huge effect on the outcome of this case.”
In response to this ruling, Western Values Project Director Jayson O’Neill issued the following statement:
“The Trump administration’s temporary illegal land manager’s charade to curry favors for special interests is rightfully coming to a halt. The judge’s ruling proved, once again, that extremist, anti-public lands zealot William Pendley’s reign was both outside of the law and a violation of the U.S. Constitution. It’s long past time for Trump’s corrupt Interior Department to fire Pendley and stop wasting tax dollars with futile appeals and illegal actions. There should be no room in federal government for corrupt and conflicted racists who openly act in industries’ interest over the American people.”
The Pendley Saga Timeline:
- July 29, 2019: William Perry Pendley is delegated authority as de facto director of the Bureau of Land Management.
- May 5, 2020: Pendley’s last delegation of authority.
- May 11, 2020: PEER and Western Watershed suit challenged the order.
- May 22, 2020: Interior officials allow Pendley to craft and sign his own succession order.
- June 26, 2020: Trump announces intent to nominate Pendley to lead the Bureau.
- July 20, 2020: Montana Governor Bullock sues Pendley for unlawfully serving.
- August 15, 2020: White House announces intent to withdrawal Pendley’s nomination.
- September 25, 2020: A District Judge strikes Pendley’s authority and his last 424 days as de facto director citing a GAO investigation into then acting DHS director Chad Wolf.
- September 29, 2020: Interior needlessly appeals the clear rebuke.
- October 2, 2020: Bernhardt claims he will crush the hopes and dreams of those challenging the Trump administration’s illegal charade.
- October 2, 2020: Bernhardt says, “I am exercising all the authority of the director [of the BLM] and I will continue to do that.”
- October 8, 2020: Pendley says, “I’m still running the bureau… I have always been from day one.”
- October 13, 2020: Pendley’s westward public relations tour included ignoring the ruling, insulting editors and the news media, and claiming not to be putting any pen to paper.
- October 16, 2020: A District Judge strikes three industry-favored, illegal Resource
- Management Plans in Montana and affirms advocates’ right to challenge other decisions made under Pendley’s de facto authority.