President-elect Joe Biden’s victory will soon end William Perry Pendley’s controversial tenure at the Bureau of Land Management.
But it likely won’t stop the legal battle over a federal judge’s orders barring Pendley from performing the duties of BLM director and invalidating three large land use plans in Montana.
A handful of legal experts say they expect the Justice Department to move forward with an appeal of Montana District Chief Judge Brian Morris’ rulings against Pendley, even though an appeal would not be decided until long after President Trump leaves office in January.
Carl Tobias, a University of Richmond law professor, said the Trump administration "will appeal on principle and to make a point," particularly after Interior Solicitor Daniel Jorjani blasted Morris’ interpretation of the law and vowed to file a challenge that would likely go to the 9th U.S. Circuit Court of Appeals.
Morris, an Obama appointee, ruled in September that Pendley had "unlawfully" served as BLM’s de facto acting director for more than a year and barred him from continuing to do so (Greenwire, Sept. 25).
Based on that ruling, Morris issued a second order last month invalidating three revised land use plans in Montana because Pendley took actions on each that he was not authorized to perform (Greenwire, Oct. 17).
"It’s very common for DOJ to file a notice of appeal as a placeholder," regardless of whether it follows through on the challenge, John Leshy, a distinguished professor emeritus at the University of California, Hastings, College of the Law, wrote in an email.
Leshy, former Interior solicitor during the Clinton administration, agreed with Tobias that the Trump administration "would not want to appear to be throwing in the towel on this before they leave."
DOJ has until Nov. 24 to file a notice of appeal. It had not done so as of publication of this story.
Representatives with the Interior Department did not respond to E&E News’ requests for comment.
Things could get complicated after a notice of appeal is filed, experts say.
Tom Sansonetti, former Interior solicitor during the George H.W. Bush administration, said filing a notice of appeal buys DOJ and the Interior Department time to explore their legal options and possible administrative remedies.
The big concern for Interior is Morris’ second order that tossed out the three land use plans in Montana. In that order, Morris wrote that there could be many other BLM actions overseen by Pendley that could now be challenged in court based on his ruling that Pendley was not authorized to perform the duties of director.
In the case of the Montana land use plans, Pendley signed or delegated the authority to others to sign protest resolutions involving challenges to the plans, Morris ruled.
"Conservation Groups remain free to file suit in the appropriate federal district court to challenge land management decisions they have identified as potentially unlawful," Morris wrote.
So far, only one such lawsuit has been filed.
A coalition of environmental groups last month filed an amended lawsuit challenging an updated BLM resource management plan in Colorado on the grounds that Pendley resolved protests to the plan (Greenwire, Oct. 27).
"The real potential damage here is whether, as a result of Judge Morris’ decision, all of the records of decision signed by William Perry Pendley are in effect or not in effect. Because you want those decisions to hold up," said Sansonetti, now a partner at Holland & Hart LLP, based in Denver.
One possible solution to this legal problem is to identify any decision documents that Pendley signed under the authority given to him by Interior Secretary David Bernhardt and simply amend the documents to have Bernhardt sign them.
"The key to all this is that Secretary Bernhardt wants to make sure that the decisions made on his policies, made for him on his behalf by William Perry Pendley, are upheld," Sansonetti said.
"Is there a way to make those decisions good? Is there a way to cure any potential defect of Pendley’s signature on any of the decision documents because Judge Morris says [Pendley] was not authorized to sign them? I believe the answer is yes," Sansonetti added.
It’s widely assumed that Biden "would pull the plug on any appeal DOJ might be weighing," said Pat Parenteau, a law professor and senior counsel for the Vermont Law School’s Environmental Advocacy Clinic.
"With Trump on the way out DOJ must consider its reputation and not file spiteful appeals that waste the court’s time," Parenteau said in an email.
But Sansonetti said that’s not necessarily the case.
There would be value in having the appeals court render a decision on the Trump administration’s use of designated leaders in Senate-confirmed positions.
Morris wrote in his September order that Bernhardt was trying to circumvent the Senate approval process by delegating "exercising the authority of director" of BLM to Pendley’s current title of deputy director of policy and programs.
Morris determined that this violated, among others laws, the Federal Vacancies Reform Act, which caps the time an acting director can remain in place at 210 days. Pendley led BLM for 424 days.
Whether Morris’ order is upheld or not, an appeals court ruling could guide the Biden administration on similar issues, Sansonetti said.
"That decision will be helpful not only to Biden but to all who come after," he said.