U.S. Interior Department Bureau of Land Management acting director William Perry Pendley served unlawfully for 424 days without being confirmed to the post by the Senate as required under the Constitution, U.S. District Judge Brian Morris determined.
The ruling came after Montana’s Democratic governor in July sued to remove Pendley, saying the former oil industry attorney was illegally overseeing an agency that manages almost a quarter-billion acres of land, primarily in the U.S. West.
“Today’s ruling is a win for the Constitution, the rule of law and our public lands,” Gov. Steve Bullock said Friday. Environmental groups and Democratic lawmakers from Western states also cheered the judge’s move after urging for months that Pendley be removed.
The ruling will be immediately appealed, said Interior Department spokesman Conner Swanson. He called it “an outrageous decision that is well outside the bounds of the law,” and he said the Obama administration had similarly filled key posts at the agency with temporary authorizations.
It was not immediately clear if the administration will try to keep Pendley atop the bureau pending the appeal.
The land bureau regulates activities ranging from mining and oil extraction to livestock grazing and recreation. Under Trump, it has been at the forefront in the administration’s drive to loosen environmental restrictions for oil and gas drilling and other development on public lands.
Pendley was appointed to the role of acting director of the BLM in July 2019 by Interior Secretary David Bernhardt. President Donald Trump nominated him to officially lead the public lands agency in July 2020. His nomination was withdrawn Sept. 8 after an outcry from legislators and environmentalists because of his past legal work seeking to open public lands for development.
Environmentalists have criticized the lack of an appointment, saying that by not officially nominating candidates, the administration is subverting governmental checks and balances.
“It’s allowed the administration to bring forth people that would quite likely not pass through hearings in the Senate,” said Jimbo Buickerood with the San Juan Citizens Alliance, a Durango-based environmental advocacy group.
Although the Trump administration did not give an official reason for the withdrawal of Pendley’s nomination, it came after doubts were raised whether Pendley would survive the nomination process. Pendley once argued in favor of the federal government selling off public lands, and as president of the Mountain States Legal Foundation had sued the Department of Interior to open public lands for development.
Sen. Cory Gardner, R-Colo., who sits on the Senate Committee on Energy and Natural Resources that would have led Pendley’s confirmation hearing, had said Pendley would face a “very, very difficult confirmation process,” although Gardner did not say whether he planned to support the nomination. He has not made a statement about Pendley’s role since the nomination was withdrawn.
Although it is difficult to know what decisions from the BLM are made by which levels of the agency’s leadership, Buickerood said that the agency has been negating community input in its decisions.
“It doesn’t matter what the local expertise is, or the field manager or the state director. ... They’re making the decisions in D.C., and as much as they talk about local input ... they’re not taking it in.”
Recently, the agency’s headquarters was officially moved from the nation’s capital to Grand Junction because the administration said it wanted the agency to be headquartered closer to the actual lands it manages; however, concerns remain about the BLM’s procedures.
Buickerood pointed to a resource management plan that the BLM released this year through its Uncompahgre Field Office as a sign of the negation of local input. The original plan introduced in 2019 was met with resistance as it expanded potential for oil and gas development in the region. Locals were concerned it would negatively affect the area’s agricultural and outdoor recreation prospects.
Colorado BLM leadership drafted an alternative plan intended to take the local communities’ concerns into consideration; however, most of the recommendations in the alternative plan were not incorporated into the final plan presented by the agency’s higher-ups.
Buickerood acknowledged that because of the bureaucracy within the BLM, there is no way of knowing exactly how much of a role Pendley or anyone else had in finalizing the resource plan, but he said the lack of acknowledgment of the local concerns is a reflection of issues present in the agency, both since Pendley’s appointment and in general since a Senate-confirmed director led the agency.
Pendley has been one of several senior officials in the Trump administration running federal agencies and departments despite not having gone before the Senate for the confirmation hearings that are required for top posts.
Last month, the Government Accountability Office, a bipartisan congressional watchdog, said acting Department of Homeland Security Secretary Chad Wolf and his acting deputy, Ken Cuccinelli, were improperly serving and ineligible to run the agency under the Vacancy Reform Act. The two have been at the forefront of administration initiatives on immigration and law enforcement.
Trump agencies have defended the skipped deadlines for Senate hearings for administration nominees, saying that the senior officials involved were carrying out the duties of their acting position but were not actually filling that position, and thus did not require a hearing and votes before the Senate.
Pendley continued to hang on to the post under an arrangement that Pendley himself set up months ago. In a May 22 order, Pendley made his own position, deputy director, the bureau’s top post while the director’s office is vacant.
After establishing that succession order, Pendley’s actions included approval of two sweeping land resource management plans in Montana that would open 95% of federal land in the state to oil and gas development, attorneys for Bullock contended in court filings.
Administration officials had insisted in public statements and court filings that Pendley was not in fact the acting director, but rather “exercising the authority of the director.”
Morris rejected the administration’s argument saying they were “evasive and undermine the constitutional system of checks and balances.”
“Under the federal defendant’s theory, a president could ignore their constitutional appointment responsibility indefinitely and instead delegate authority directly or through cabinet secretaries to unconfirmed appointed officials. Such an arrangement could last for an entire presidential administration. In fact, the case before the Court presents that scenario,” he wrote.
The bureau’s holdings are sweeping, with nearly 1 out of every 10 acres nationally under its dominion, mostly across the U.S. West.
Pendley was a longtime industry attorney and property rights advocate from Wyoming who had called for the government to sell its public lands before joining the Trump administration.
After joining the government, he declared that his past support for selling public lands was irrelevant because his boss, Bernhardt, opposes the wholesale sale of public lands.
Trump’s actions to bypass the confirmation process has raised serious questions about the legitimacy of people in acting roles.
The GOP-led Senate typically is falling short of the votes needed from its ranks to confirm some of Trump’s choices. But as Trump bypassed the chamber, chipping away at its advise-and-consent role, the Republican leadership has also allowed the acting positions to stand.
Shortly after the GAO questioned the DHS officials, Trump formally nominated Wolf to the secretary post. A hearing was held last week in the Senate on his nomination, but it’s unlikely Wolf will be confirmed before the election.
Associated Press writers Ellen Knickmeyer contributed from Oklahoma City and Lisa Mascaro from Washington.
John Purcell, an intern for The Durango Herald and The Journal in Cortez and a student at American University in Washington, D.C., contributed to this report.
