(EnviroNews Montana) — On Sep. 25, Chief Judge Brian Morris of the Montana District Court barred William Perry Pendley from serving as the head of the U.S. Bureau of Land Management (BLM). The lawsuit brought against Secretary of the Interior David Bernhardt is a win for Governor Steve Bullock (D-MT), who filed the suit on July 20, 2020. Bullock’s court battle was watched closely by conservation organization Western Watersheds Project (WWP) and Public Employees for Environmental Responsibility (PEER). These organizations filed a similar lawsuit against Pendley and Acting Director Margaret Everson of the National Park Service (NPS), seeking the immediate removal of both officials.
Judge Morris wrote in the court order that moves made by the BLM during Pendley’s tenure “would have no force and effect and must be set aside as arbitrary and capricious.” The ruling also stated Pendley “served unlawfully as the Acting BLM Director for 424 days.”
According to the Hill, Pendley maintained his role, at first, through secretarial orders from Bernhardt and later, through “succession orders,” wherein Pendley gave himself the power to remain the BLM’s acting director. These maneuvers, Morris wrote, “represent unlawful attempts to avoid the constitutional requirements of the Appointments Clause and the statutory requirements of the [Federal Vacancies Reform Act].”
“This is an outrageous decision that is well outside the bounds of the law,” said Department of the Interior (DOI) spokesman Conner Swanson in an email to the Hill. “It betrays long-standing [practices] of the Department going back several administrations. Unfortunately, it appears the bias against this Administration was just too great to overcome.”
Pendley continues to work at the agency as the Deputy Director for Programs and Policy, and according to a tweet by conservation NGO WildEarth Guardians (Guardians), “is STILL influencing public land and #wildlife policies.” Initially, the DOI said Pendley would maintain his authority at the agency. However, Swanson later clarified that the agency would follow the court order unless it gets overturned by a higher appellate court.
Activists and environmentalists are skeptical that if Pendley remains at the agency in an official capacity he will continue to pull the strings on controversial public lands decisions including more mining, drilling and fracking permits, and more grazing allotments in ecologically sensitive terrains.
“The fact that Pendley hasn’t been shown the door, and remains in a senior leadership position with the BLM means that his role in BLM decision-making is murky at best,” Erik Molvar, Executive Director of WWP, told EnviroNews in an email. “It seems clear that this administration has a certain contempt for the rule of law, and we are assuming that Pendley will continue to peddle as much influence as he can inside the BLM until he leaves the agency.”
In July 2019, Bernhardt appointed Pendley to run the BLM. Gov. Bullock, who is running for Senate, sued alleging that Pendley’s occupation of the position in the BLM was unconstitutional and in direct conflict with the Federal Vacancies Reform Act (FVRA), which requires an agency head to be appointed by the president and confirmed by the senate. Under the Act, a person may serve temporarily for up to 210 days without senate confirmation.
President Trump officially nominated Pendley for the position in June 2020 but later withdrew the nomination after bipartisan pressure surfaced against him. In spite of Trump’s withdrawal of support, Pendley continued to head the BLM while maintaining his title of Deputy Director for Programs and Policy until the court ruling required him to step down as acting director. Bullock’s suit alleges that these actions make Pendley’s position “illegal in a new way.” The FVRA prohibits nominees from running their agencies, in many cases, while their nominations are awaiting Senate confirmation.
“We’re gratified with William Pendley’s removal, but the Trump Administration has been engaging in a pattern of illegal appointments as a means to dodge the transparency and accountability of the Senate confirmation process,” said Molvar in a press release. “It is critical that appointees are able to pass the test of Senate scrutiny before they are put in charge of important federal agencies.”
Molvar continued to EnviroNews in an email interview, asserting, “Governor Bullock can haul the BLM back into court, using contempt proceedings, in the event that Pendley acts in capacities that are legally reserved for the director of the agency.”
Pendley authored the book on Ronald Reagan’s battle against conservation groups: Sagebrush Rebel: Reagan’s Battle with Environmental Extremists and Why It Matters Today. His Twitter is @sagebrush_rebel; he last tweeted he was taking a break on July 9, 2019. According to CNN, Pendley has denied climate change, claimed falsely there was no hole in the ozone, blamed undocumented immigrants for causing diseases and called them “a cancer,” and claimed Islam was at war with the U.S.
Pendley isn’t the only “acting” head of an agency that hasn’t faced senate confirmation during Trump’s term – a pattern of policy that activists call an all-out power-grab. Other Trump Administration officials have also been under fire for their tenures. “Acting” Department of Homeland Security (DHS) Deputy Secretary Ken Cuccinelli and “acting” DHS Secretary Chad Wolf have had their actions invalidated in Maryland and Washington, DC.
“[The Trump Administration is] just freewheeling around the Constitution and allowing these lower level political appointees to be running the show,” Peter Jenkins, Senior Counsel at PEER, told NPR.
With Bullock’s win in court, PEER and WWP are willing to defer to Morris’ decision on Pendley as long as the ruling stands. However, they are still targeting NPS’ Margaret Everson.
“Everson is the latest in a carousel of illegal appointees to be shuffled through the Department of the Interior,” stated Tim Whitehouse, Executive Director of PEER. “We are asking the Federal court to stand up to Secretary Bernhardt’s self-serving word games and show Everson the door.”
According to a WWP press release, Everson claims that she only exercises the Director’s power while also keeping her “day job” as counselor to the secretary (Bernhardt). Nevertheless, the lawsuit still takes aim at the “illegally” serving NPS head.
RELATED REPORTING FROM ENVIRONEWS