Under William Perry Pendley’s interim leadership over the past year, the Bureau of Land Management has finalized decisions affecting coal mining, oil and gas development, wild horse management, national monument planning and numerous other public land issues important to Utah.
Now a federal court ruling out of Montana could upend many of those actions after a judge determined that Pendley’s prolonged tenure at the BLM’s helm violated the Constitution and federal law. The Sept. 25 ruling by U.S. District Judge Brian Morris put an end to Pendley’s status as the BLM’s acting director, although he remains the agency’s deputy director for policy and programs, a post that does not require Senate confirmation.
But the harder question remains: How to rectify what transpired during his 424 days of unlawful authority over an agency that oversees 245 million acres of federal land. In the balance are numerous actions taken by the BLM on Pendley’s watch, including many in Utah, which may now be vulnerable to legal attack.
“This is a crisis of the [Trump] administration’s making. We are almost four years into this administration and they have yet to nominate a permanent BLM director,” said University of Utah law professor John Ruple. “This administration has flouted that requirement and that decision is coming home to roost. ... The potential implications of this are huge."
In supplemental papers filed in court this week, Montana Gov. Steve Bullock, who filed the initial lawsuit, asked the judge to vacate revisions to three resource management plans the BLM undertook under Pendley’s watch. He argued these Montana plans should he reconsidered under new leadership, but Bullock’s filing suggests this logic should be applied far more broadly, covering virtually all BLM actions bearing Pendley’s fingerprints.
Bullock is a Democrat seeking to unseat Republican Sen. Steve Daines in a tightly contested race, which could help shift the balance of power in the Senate if Bullock wins.
In their supplemental brief, Interior lawyers reaffirmed arguments that the judge has already rejected, arguing Pendley had delegated his authority to others in the disputed plan revisions and Montana has not been injured.
“This Court should not invalidate any of Mr. Pendley’s acts,” they wrote. “The Court’s conclusion that Mr. Pendley improperly served as Acting Director of BLM does not open the door to providing relief beyond the scope of [Montana’s] alleged harms.”
Still, dozens of environmental groups are now itching to see the Interior Department set aside BLM’s recent policy changes and land-use decisions, which heavily favor extractive industries under Trump’s “energy dominance” agenda.
“Pragmatism, much less the law, suggests that if [Pendley] were serving and acting illegally in Montana decisions, he was doing so across the nation," said Tracy Stone-Manning, executive director of the National Wildlife Federation. “We thought Perry Pendley from the very beginning was the wrong guy for the job, but now a judge has said he has served illegally, was illegally installed into that job.”
In his September ruling, Judge Morris concluded the Trump administration flouted the Constitution, which obligates presidents to win Senate confirmation before seating permanent heads of certain executive branch agencies. The Federal Vacancies Reform Act allows for unconfirmed directors to lead agencies in an acting capacity for up 210 days, a limit Pendley exceeded by 214 days before the judge stopped it.
Meanwhile, Pendley as recently as Tuesday told an audience in Cody, Wyo., that the ruling is essentially meaningless.
“I’m still here, I’m still running the bureau,” Pendley said, according to the Powell Tribune. Judge Morris' decision “has no impact, no impact whatsoever.”
Pendley is a controversial property-rights lawyer from Colorado who had previously spent years suing federal agencies on behalf of public lands users and advocating for transferring these lands to the states. Last year, Interior Secretary David Bernhardt hired Pendley as the BLM’s deputy director and named him acting director July 29, 2019. Since President Donald Trump took office, Pendley is the fifth person to serve as acting head of the BLM, which has not had a permanent director. The National Park Service, likewise, has not had a permanent director since President Barack Obama left office.
Citing the ruling in the Montana case, 58 groups marshaled by the National Wildlife Federation sent a joint letter to Bernhardt on Tuesday, insisting he “review and restart” most actions taken by the BLM during the 14 months Pendley led the agency.
“Ultimately, BLM bears the burden of justifying any decision it makes to preserve final actions taken by the agency during Mr. Pendley’s illegal tenure,” the letter states. During this time, he approved, implemented or reviewed numerous departmental policies, guidelines, regulations and programs.
“Some of these policies were signed by Mr. Pendley and are therefore unlawful on their face and must be set aside,” the letter states. “Others were not signed by Mr. Pendley but issued under his direction and approval, and so must be set aside absent any additional showing on the part of BLM that they are lawful.”
But Ruple contends each case should be evaluated to determine the extent to which Pendley influenced it and that might have to be sorted out by the courts.
“Does this mean every decision the BLM made during those 424 days is invalid? My gut tells me no,” Ruple said. “There were other other acting directors, [Brian] Steed and [Casey] Hammond, before Pendley. Decisions they made are presumably valid, but you have that larger deeper, more profound question about taking an end run around the Constitution by not taking someone forward for confirmation someone to fill this job.”
On Pendley’s watch, the BLM has released vast acreage for oil and gas leasing in Utah, stepped up removal of wild horses and burros, finalized plans for the reduced Bears Ears and Grand Staircase-Escalante national monuments and for the lands removed from the Grand Staircase, initiated plans for stripping pinyon and juniper from the range, reduced protections for sage grouse and appointed Greg Sheehan as Utah state director.
While Pendley did not sign the decisions authorizing the new monument plans, both were subject to protests that were resolved by unsigned decisions.
“We don’t know who resolved it. We are going to have to figure out whether Pendley was the deciding official on those,” Ruple said. If that was the case, the validity of the monument plans could be legally suspect, he added.
In other words, the Montana ruling, which Interior said it would appeal, could wind up launching fresh lawsuits. If successful, these challenges could result in effectively dismantling Trump’s public lands legacy.
