At what point does the symbolic nature of defying an enemy’s victory begin to compromise the goals you’re actually trying to achieve? That’s a question members of the Trump administration must be asking themselves right now, because the continued presence of William Perry Pendley at the Bureau of Land Management increasingly looks like it might undo much of their work to benefit the oil and gas industries.
Pendley is the face of those industries’ attempts to steal public land from the American people. He’s also the author of a plethora of racist, homophobic, and xenophobic op-eds. If you don’t think that sounds like the kind of character that could pass a Senate confirmation vote, then you’re not alone. Pendley’s boss, interior secretary David Bernhardt, must agree, as he engaged in a scheme that had Pendley reauthorized as acting director of the BLM over and over, in what a federal court ended up ruling was an illegal attempt to avoid those confirmation hearings.
The decision, written by federal judge Brian Morris reads:
Pendley has served and continues to serve unlawfully as the Acting BLM Director. 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. Pendley is not a member of the permitted category of individuals who can serve in an acting capacity in a [Presidential appointment and Senate confirmation position] under the FVRA. 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.
That ruling came after Montana’s Democratic governor (and Senate candidate) Steve Bullock brought a suit arguing that Pendley’s authority at the agency was illegal and that land-management decisions created under his leadership were invalid as a result.
That was three weeks ago. Since that time, Pendley has defied the court ruling ordering him to stand down, and that court has again ruled in favor of Bullock’s suit, this time invalidating several BLM actions in Montana. And that decision looks like it has opened the door to further lawsuits, potentially undoing anything the BLM has accomplished since Pendley first ascended to acting director in July 2019.
Confused? Me, too. Let’s unpack this.
“I have not been ousted,” Pendley told Wyoming’s Casper Star-Tribune a week after the federal court ruled that he had “served unlawfully as the Acting BLM director for 424 days.”
“We are going to recognize that authority of the court and will obey it,” Pendley said, seeming to contradict himself.
The BLM is one of 11 agencies managed by the Department of the Interior. The DOI’s leader, the secretary of the interior, is a cabinet-level position within the executive branch and requires confirmation by the Senate, as do the leaders of each of those 11 agencies. Like other federal departments and agencies, including the Department of Homeland Security, the Trump administration has attempted to avoid congressional oversight by using temporary “acting” directors rather than putting those political appointees up for a confirmation vote.
What Pendley and Bernhardt appear to be doing is taking a very narrow interpretation of the court’s ruling that, to most people, seemed to remove him. The decision ordered that Pendley’s authority as acting director be revoked; however, it didn’t state that he couldn’t continue other work at the agency. The order also removed Bernhardt’s authority to appoint anyone else to run the BLM, either in acting or confirmed capacity. Pendley’s actual title is deputy director of policy and programs, so he’s carried on in that role, while Bernhardt (who has passed a Senate confirmation) has simply taken over the duties of acting BLM director.
It gets more complicated: in an October 13 press release issued by the BLM, Pendley argues he’s “never been acting director [of the BLM]. I have been Deputy Director of Policy and Programs.”
The press release continues: “Pendley said that the Secretary of the Interior had given him the authority to exercise the delegable, non-exclusive duties and functions of the Director.”
But in a press release from June 26, the DOI contradicts that claim, stating, “Mr. Pendley currently serves as the Bureau of Land Management’s Deputy Director for Policy and Programs, exercising the authority of the director.”
Now, following the ruling, it appears as if Bernhardt and Pendley are attempting to continue their arrangement, with Bernhardt signing anything that requires director-level authorization and delegating any other authority at the BLM to Pendley.
“I’m still Deputy Director for Policy and Programs doing what the Deputy Director for Policy and Programs does,” said Pendley in the October press release. “And that’s: provide leadership in managing the Bureau of Land Management, consistent with the directives I get from the Secretary. But… if there’s something that needs action by the director of the Bureau of Land Management, I won’t be doing that. The judge said I can’t do that. And so, I won’t be doing that.”
The BLM and DOI have not responded to multiple requests for comment from Outside.
Meanwhile, the federal court in Montana reconvened last week and ruled that the BLM’s three management actions in Montana (one of which would have opened up 650,000 acres in the state to drilling with virtually no regulation) were, as Governor Bullock argued, illegal since they’d been created under Pendley’s leadership. As part of that hearing, the judge ordered the BLM to provide a nationwide list of actions taken during Pendley’s tenure, but the agency refused to comply.
“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,” Judge Morris wrote in the decision.
His decision could open the door for further challenges to BLM actions taken since last July. Sixty conservation organizations already sent an open letter to Bernhardt on October 6 detailing 30 projects they intend to fight; these include everything from management plans for lands formerly contained within Utah’s Bears Ears National Monument to ongoing attempts to open up the coastal plain of the Arctic National Wildlife Refuge to oil drilling. The letter reads like a list of virtually every attempt the Trump administration has made to benefit of the oil and gas industries over the past 15 months. It also challenges the BLM’s controversial relocation of its headquarters from Washington, D.C., to an office building shared with oil companies in Grand Junction, Colorado. And by keeping Pendley in his role, Bernhardt will likely open the door for those organizations to challenge any actions the agency may take in the future, too.
Both the DOI and BLM plan to appeal Judge Morris’s rulings, but no date has been set for that hearing. It’s unlikely the appeal will reach court before the new year. The ruling on the appeal will undoubtedly provide clarification on whether the BLM’s actions under Pendley will need to be challenged all at once or individually. So, until then, this whole thing is in a holding pattern. The results of the upcoming election will determine if Pendley and Bernhardt get to continue their scheme past January 20.
Despite the delay, public-lands advocates remain extremely optimistic about the outcome of these challenges. That includes the chairperson of the House Natural Resources Committee, Raúl Grijalva. While he plans to wait for the appeal hearing before bringing the matter before Congress, he also believes that Judge Morris’s ruling is clear.
“Our understanding of the ruling is that nobody needs to pick and choose which actions should be reversed, because none of his actions were legitimate in the first place,” Grijalva told Outside. “The administration needs to drop its delaying tactics in court, escort William Pendley out of the building, and start the long process of restoring public faith in BLM’s legitimacy.”
Update: October 23, 3 P.M.: Today, Grijalva's office sent the following letter to Secretary Bernhardt.
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