Federal judge removes acting Bureau of Land Management director after finding he has served unlawfully for 424 days

Breaking news from Friday evening: William Perry Pendley, a self-described Sage Brush Rebel who questions the very existence of federal public lands, has unlawfully overseen the management of 250 million acres of federal public lands for over 400 days, according to Chief District Judge Brian Morris of the US District Court of Montana.

Federal judge removes acting Bureau of Land Management director after finding he has served unlawfully for 424 days

Washington (CNN)—A federal judge on Friday ordered acting Bureau of Land Management Director William Perry Pendley to step aside, blocking him from exercising any more authority after finding that he has served unlawfully for more than 400 days.

Chief District Judge Brian Morris of the US District Court of Montana ruled that Pendley has served unlawfully for 424 days, in response to a lawsuit brought by Democratic Montana Gov. Steve Bullock and the Montana Department of Natural Resources and Conservation. Morris additionally ruled Secretary of the Interior David Bernhardt cannot pick another person to run the Bureau of Land Management as its acting head because that person must be appointed by the President and Senate-confirmed.

The judge gave both sides of the case 10 days to file briefs about which of Pendley’s orders must be vacated.

“Pendley has served and continues to serve unlawfully as the Acting BLM Director,” Morris wrote in his opinion. “His ascent to Acting BLM Director did not follow any of the permissible paths set forth by the U.S. Constitution or the (Federal Vacancies Reform Act). Pendley has not been nominated by the President and has not been confirmed by the Senate to serve as BLM Director.”

He added, “Secretary Bernhardt lacked the authority to appoint Pendley as an Acting BLM Director under the FVRA. Pendley unlawfully took the temporary position beyond the 210-day maximum allowed by the FVRA. Pendley unlawfully served as Acting BLM Director after the President submitted his permanent appointment to the Senate for confirmation — another violation of the FVRA. And Pendley unlawfully serves as Acting BLM Director today, under color of the Succession Memo.”

Read the full article from CNN here.

12 thoughts on “Federal judge removes acting Bureau of Land Management director after finding he has served unlawfully for 424 days”

  1. I’m looking forward to “which of Pendley’s orders must be vacated.” (This was specifically about resource management plan decisions to allow oil and gas leasing in sage grouse habitat on BLM lands in Montana.)

    It also raises questions about whether they can make any new decisions until there is a confirmed appointee (including during the likely stay of Pendley’s eviction pending appeal to the 9th Circuit). Recall that Pendley’s nomination was recently withdrawn …

  2. Hmmm… I recall that Mike Dombeck served as “acting” BLM Director for several YEARS. Because Congress refused to hold a confirmation hearing.

    • True, however the Mike Dombeck was nominated and the Senate took some time to schedule the nomination hearing. Regarding William Pendley, he was nominated, then the nomination was withdrawn. Compounding the nominate/withdraw/name as acting, Pendley signed letter delegating authority to himself “in the absence” of a permanent BLM director, the deputy director of policy and programs”. This letter “delegated the authority to perform all duties and responsibilities of the Director when required to ensure continued, uninterrupted direction and supervision to perform essential functions and activities of the office.”

      Maybe that is all just fine, but the logic of self delegation does seem to have a bit of circularity.

      • Leslie, couldn’t the Secretary just appoint someone to be acting BLM director? Is there a time limit on “actings?” as Jim says it seems like you can have a nominated acting for some time. It seems like you could also appoint a career person as acting.

        • The same thing is happening in the Department of Homeland Security. I think in both cases the problem is the lack of a valid “succession order” (or the “succession memo” mentioned above) naming the acting and signed by someone with authority to do so. They may have followed a “permissible path” (quoting Judge Morris) in Dombeck’s case.

        • Sharon, that is a good question. If the Senate is slow in scheduling hearings, the need for agency directors doesn’t dissipate. I do think it would be helpful to have a career person appointed to server as the acting authority. I think my preference would be to have career people be the agency leads. Perhaps instead of administrations developing folders of people to lead the agency, the agencies were authorized to provide the administration with a selection of career staff to choose from.

          • Leslie, that’s always been a difference between the FS and the BLM, the pros and cons have been much discussed. With the FS, the agency lead (the Chief) is theoretically not a political appointee but is preferred by the admin and gotten rid of if they think they can’t work with them. Or the admin can (apparently to an outsider) make their job so difficult a reasonable person would want to retire.
            I’ve heard Interior folks say their system is cleaner; politicals are political and there are not “quasi-politicals.”

            The risk of the FS approach is that it could infect upper level career folks with the disease of partisanship, causing potentially even more mistrust and bad vibes than natural competitiveness, disagreements, and buddy systems among career folks.

            • Sharon – those are good points and having worked with both agencies, I am not sure there is ever a perfect system. It often does appear that although the FS Chief is not appointed by the administration, their position is not immune to each administration’s influence.
              Isn’t there a risk from both approaches for decisions to be made that are addressing a political position rather than resource conditions? The geographic structure of BLM and the FS are different and that may be one of the underlying factors in the process.
              All organizations it seems are vulnerable to your point on the disease of partisanship. Perhaps the counter to this is the durability of decision in terms of meeting legal challenges, resource goals, and sustainability. Perhaps that could be a better measure than how closely a decision aligns with an administration philosophies.

              Just like there are no perfect people, there are no perfect systems.

              • We’re talking about the “deep state” here aren’t we. I have never been gladder that we have that to provide professional resistance to politicians, especially for natural resource management agencies that should be making long-term decisions that shouldn’t be continually changed. That being said, there are many strategic decisions about resource conditions on public lands that are mostly political. I’m afraid the best we can hope for is honesty and transparency from whomever the decisionmaker is (and about whom the decisionmaker is).

              • I’d only say that the durability of decisions legally, in my experience, has something to do with “how passionately interest groups fight against the decision vis a vis hiring lawyers and pursuing appeals” and “how good the DOJ attorneys are on this specific case” and “random judges decisions.” Since interest groups hire attorneys, while you may not call those decisions “political” they are certainly based on values. And it happens that many of the same groups also make political contributions.

                I think what you are saying is that there is “bad political intervention” as opposed to “the career folks doing their duty to follow the path of duly elected officials”. I think we may agree on whether a specific act is egregious but it seems to me it depends on the specific action.

                For example, being told that the agency must make a decision that X environmental group supports or Y ranchers. Or that the Forest Service shouldn’t/should do a fuel treatment in that area because an administration buddy/donor does/doesn’t like it. Or that retardant drops should be ordered because Joe CongressBuddy asked for it.

                I’d think most actions don’t raise that level of attention/interference but some do. It would be interesting to look at a variety of them.

  3. I have no doubt the administration figured out a way to screw up something they have total control over. par for the course


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