Appointments signal political shift for in-house judges

By Jennifer Yachnin | 05/01/2020 01:24 PM EDT

Interior Secretary David Bernhardt this week quietly rolled out the hiring of a half-dozen in-house adjudicators, including a pair of appointments that suggest a new focus on political ideology.

Interior Secretary David Bernhardt's appointments to the Interior Board of Land Appeals signal a shift from career posts to political positions.

Interior Secretary David Bernhardt's appointments to the Interior Board of Land Appeals signal a shift from career posts to political positions. Francis Chung/E&E News

This story was updated at 2:40 p.m. EST.

Interior Secretary David Bernhardt this week quietly rolled out the hiring of a half-dozen in-house adjudicators, including a pair of appointments that suggest a new focus on political ideology.

Bernhardt on Sunday made the appointments to Interior’s Office of Hearings and Appeals, including two notable additions: Steven Lechner, former chief legal officer at the Mountain States Legal Foundation, and Christopher Prandoni, a onetime aide to Sen. Mike Lee (R-Utah) who has held multiple posts in the Trump administration.


Lechner is now the deputy chief administrative judge at the Interior Board of Land Appeals, and Prandoni is an administrative law judge in the Departmental Cases Hearings Division.

Bernhardt’s appointments also include new IBLA Chief Administrative Judge Jason Hill.

Hill most recently served as deputy solicitor for energy and mineral resources. He has also worked as a senior counselor at the Bureau of Land Management and spent a decade as a trial attorney for the Natural Resources Section’s Environment & Natural Resources Division at the Justice Department.

Legal observers familiar with Interior’s in-house judicial processes expressed surprise at the appointments this week. Several experts suggest the additions represent a seismic shift for an agency that has long relied on career employees to fill such posts.

"Ideology seems to have played a pretty strong role. These results tell you that the process has radically changed from what it used to be," said former Interior Department Deputy Solicitor for Land Resources Justin Pidot.

Like other federal agencies that use in-house judges, Interior faced a shift in selection procedures following the Supreme Court’s 2018 ruling in Lucia v. Securities and Exchange Commission.

In that case, the court found that the SEC’s administrative law judges must be selected under the terms of the Constitution’s appointments clause, which requires the posts to be chosen by agency leaders, the president or a court rather than being hired as traditional employees (Greenwire, June 21, 2018).

Although the case applies solely to administrative law judges, former Interior Secretary Ryan Zinke announced in October 2018 that he would ratify the selection of previously hired ALJs, as well as administrative judges and American Indian probate judges.

Bernhardt’s new appointments appear to follow that application and include a mix of administrative law judges and administrative judges.

"The Judges appointed by Secretary Bernhardt bring additional diversity of experience that will go a long way in our continued efforts to improve the efficiency and effectiveness of administrative hearings and appeals in the Department," said the Office of Hearings and Appeals’ director, Shayla Freeman Simmons, in a statement provided to E&E News.

In a statement, an Interior spokesman asserted the agency conducted a "robust recruitment process" for OHA positions in the wake of Lucia.

That process included applications from both internal and external candidates, and independent reviews by both OHA’s director and the solicitor’s offices for "minimum qualification and the licensure requirement[s]." The review also included the candidates’ "work ethic, judgment, and ability to meet the particular needs of the agency."

Pidot, who is now co-director of the environmental program at the University of Arizona’s James E. Rogers College of Law, acknowledged that political preferences can play a role even in career positions within the federal government but said the most recent additions appear to be more significant.

"On a very general level, administrations often have some influence on the selection of career hires at the highest levels — the Senior Executive Service, administrative law judges — my sense is it’s more on the back end," Pidot said. "This suggests much more active intervention or really active control than we have seen before."

Traditionally, positions at OHA, including administrative judges on the Interior Board of Land Appeals, do not turn over with changes in administration.

"It’s important to remember that IBLA decisions have always been subject to being overruled by the secretary," Pidot noted. "People in these positions are not somehow a deep state that limit what the political people can do."

Converting administrative judges into de facto political appointments could trigger questions about how such arbitrators may be removed from office, Pidot added.

Nada Culver, vice president of public lands and senior policy counsel for the National Audubon Society, similarly expressed concern that political appointments to traditionally career positions could undermine the credibility of the IBLA and other quasi-judicial boards.

"While [the IBLA is] obscure for some people, it serves a really important role for a body that is supposed to be a board of appeals, similar to a court system," Culver said, referring to the board that can review disputes ranging from seismic cases to cultural issues to grazing disputes.

She added: "It’s a quasi-judicial body. It should be treated that way. People should have confidence in what the IBLA says and decides."

Culver pointed to an IBLA decision related to a BLM project near what is now the Prehistoric Trackways National Monument in New Mexico. The IBLA agreed to stay permits that would have allowed blasting in the area.

"It can tell BLM to go back to the drawing board and fix something," Culver said.

Before the most recent appointments, hires at IBLA often included career employees from the Office of the Solicitor or other agencies.

"They were career people who knew the department and knew the law that applied to the department," Culver said. "You might not get up and cheer for every single one of them, but you never felt there was anyone who justified a Sunday night appointment."

‘Golden parachute’

Center for Biological Diversity Government Affairs Director Brett Hartl was among several individuals who questioned Prandoni’s appointment, given his relatively light experience in the legal field.

"This is the golden-parachute-type reward for loyal service," Hartl said.

Prandoni, who received his law degree from American University in 2017, has never tried a case, Hartl noted.

His resume includes a stint at the White House Council on Environmental Quality as associate director for natural resources. He also identified himself as a counselor to Bernhardt in an interview with E&E News earlier this year.

"He has been a licensed attorney for less than two years. That is not the kind of person I would think you would expect to find being appointed to an administrative law judge position," said Southern Utah Wilderness Alliance Legal Director Stephen Bloch, who added that he does not know Prandoni personally.

Hartl said he is concerned a shift within OHA could neuter the in-house dispute process, which is intended to reduce pressure on federal courts to handle such cases.

"If you appoint people who aren’t going to be fair and neutral arbiters … then you’re actually making it more likely that there’s going to be more lawsuits and more problems," Hartl said, "because you’re basically sabotaging the effectiveness of the IBLA."

Bernhardt’s other additions include Kenneth Dalton, who will leave the Solicitor’s Office, where he is director of the Indian Trust Litigation Division, to become an administrative judge on the Interior Board of Indian Appeals.

Veronica Larvie also migrates form her long tenure at the Solicitor’s Office to become an administrative law judge in the Departmental Cases Hearings Division.

The secretary also tapped John Payne to become the chief administrative law judge for the Probate Hearings Division, which serves as the administrative court for Indian probate cases.

Payne leaves his post as a supervisory Indian probate judge in the Sacramento field office. He also served as acting supervisor of the Albuquerque field office.