Post-court order: New title for Pendley, questions for BLM

By Scott Streater | 09/28/2020 01:21 PM EDT

When William Perry Pendley started work today, he did so as something other than the Bureau of Land Management’s leader for the first time in 427 days.

Wiliiam Perry Pendley had been acting as the de facto head of the Bureau of Land Management for 14 months.

Wiliiam Perry Pendley had been acting as the de facto head of the Bureau of Land Management for 14 months. Francis Chung/E&E News

This story was updated at 7:30 p.m. EDT

When William Perry Pendley started work today, he did so as something other than the Bureau of Land Management’s leader for the first time in 427 days.

That’s because Chief Judge Brian Morris of the U.S. District Court for the District of Montana issued a scathing order late Friday that concludes Pendley has been illegally performing the duties of BLM’s director for more than a year and bars him from continuing to do so (Greenwire, Sept. 25).


What happens next could have profound impacts not only on BLM’s leadership, but also on signature Trump administration initiatives like the relocation of the bureau’s headquarters to Grand Junction, Colo., and land-use plan amendments in Montana that could increase oil and gas leasing.

But make no mistake: Pendley remains BLM’s deputy director of policy and programs, a position that ranks among the bureau’s senior leaders and affords him the opportunity to continue wielding significant influence over the federal government’s largest landowner.

Interior Secretary David Bernhardt appointed Pendley as deputy director of policy and programs in July 2019, and two weeks later added "exercising the authority of director" to his title.

Interior Solicitor Dan Jorjani said in an emailed statement to E&E News today that Bernhardt followed the letter of the law regarding Pendley’s appointment and reiterated the agency’s earlier vow to challenge Morris’ order to the 9th U.S. Circuit Court of Appeals.

"The Department of the Interior believes this ruling is erroneous, fundamentally misinterprets the law and unreasonably attempts to up-end decades of practice spanning multiple presidential administrations from both parties," Jorjani said. "Nevertheless, the Department will comply with the Court’s Order, while we move forward with an appeal and review all other legal options."

Along those lines, BLM today removed "exercising the authority of director" from Pendley’s title on the bureau’s online organization chart.

"Secretary Bernhardt will continue to lead the Department and all of its bureaus, including the Bureau of Land Management," Jorjani added.

And in doing so, Bernhardt "will continue to rely on the Bureau of Land Management’s superior management team, specifically Deputy Director for Policy and Programs William Perry Pendley."

Bob Abbey, who served as BLM director during President Obama’s first term, said Pendley is not going anywhere.

"Unless Pendley quits or is removed by Secretary Bernhardt, he can remain as deputy director for policy and programs or be placed in a different position within the Department," Abbey said in an email.

Meanwhile, Interior is almost certain to file a motion to Morris as early as today requesting the judge suspend his order until the appeals court has decided the merits of the case — likely next year.

Interior will also almost certainly file a notice with the court that it plans to appeal the order to the 9th Circuit appeals court, as early as today.

If Morris, an Obama appointee, rejects Interior’s motion to stay his order — as a number of legal scholars who reviewed the order agree is likely — Interior could then file a second motion to stay Morris’ order to the 9th Circuit. A panel made up of three judges from the appeals court that rotate monthly would decide that request.

The 9th Circuit panel would be more likely than Morris to grant a stay, but there’s no guarantee either way, several legal experts told E&E News. Interior would need to show the court that its appeal is likely to succeed.

"I’m dubious that the Interior Department is going to persuade the panel that they’re ultimately going to prevail" based on the merits of their case, said Carl Tobias, a University of Richmond law professor.

"I think Judge Morris is very careful, and I think the judges on the 9th Circuit panel respect him," Tobias added.

If a stay is granted, it’s not clear what role Pendley would have within BLM in the interim. Morris or the appeals court would likely set limits on Pendley’s actions while the appeal is decided.

As for the appeal itself, it will be difficult for Interior to convince the court to overturn Morris’ order, said John Leshy, who served as Interior’s top lawyer during the Clinton administration.

"I could not find any obvious flaws in Judge Morris’ opinion," said Leshy, a distinguished professor emeritus at the University of California Hastings College of the Law.

"Morris’ opinion methodically demolishes the house of cards the Trump Interior Department constructed to install Pendley as leader of the BLM," he added. "It reveals what can best be described as a rather bizarre and confusing layering of several somewhat inconsistent orders from Secretary Bernhardt and his underlings, including some from Pendley himself."

Morris’ order states that the designation of "exercising the authority of director" was an attempt "to evade" the requirements of succession outlined in the Federal Vacancies Reform Act, which among other things caps the duration an acting appointee can serve at 210 days.

Pendley had been "unlawfully" performing the duties of BLM director under Bernhardt’s designation for 424 days, the order says.

Bernhardt continued Pendley’s term leading BLM through four separate secretarial orders, before President Trump formally nominated Pendley in June for the Senate-confirmed post.

Trump formally withdrew the nomination earlier this month after a fierce backlash against Pendley. But Pendley had continued "exercising the authority of director" based on a succession order Pendley signed without public notice on May 22 that could have allowed him to lead BLM indefinitely.

"The courts have not had many occasions to deal with the Vacancies Reform Act, so I cannot say there is no chance [Morris] could be reversed on appeal," Leshy said. "But the facts as he carefully lays them out are quite damning, and his analysis of the law is very credible."

New ‘acting’ director?

Morris’ order is in response to a formal motion that’s part of a lawsuit Montana Gov. Steve Bullock (D) filed in July challenging the legality of Pendley’s authority to lead BLM.

Bullock’s motion, filed last month, asked Morris "to issue an order and judgment declaring William Perry Pendley’s continued service as acting director of the Bureau of Land Management to be unconstitutional" (E&E News PM, Aug. 20).

Morris agreed, and his order is almost certain to alter BLM’s leadership structure, which is already in flux with the headquarters move this summer to Colorado, and the bureau scurrying to fill many vacancies.

The order directs that until Bernhardt appoints a formal acting director, only Bernhardt himself "can perform functions or duties of the BLM Director."

Abbey and Interior sources who spoke to E&E News on condition they not be named said Bernhardt as early as this week could appoint Mike Nedd, BLM’s deputy director of operations, as the formal acting director of the bureau.

Nedd, a career employee with more than 30 years at the bureau, served as acting BLM director between March and November 2017. Former Interior Secretary Ryan Zinke appointed him acting director.

"Since Mike Nedd has done everything the Department has directed him to do, he will likely continue to do so should he be named acting" director, Abbey said. "In essence, there is no difference between Mike Nedd and Pendley except that Mike Nedd will have the legal standing to serve as the acting director."

Morris’ order also sets up a legal battle over whether BLM decisions signed, or orchestrated, by Pendley during his 424 days as de facto acting director are now invalid and must be thrown out.

Because Pendley was serving as a kind of acting director illegally, Morris wrote that any "function or duty" of BLM director performed by Pendley since July 2019 would, in essence, "have no force and effect and must be set aside as arbitrary and capricious."

It’s not clear how many actions this would apply to since Pendley took the helm of BLM last year.

BLM does have a list of such actions, according to Pendley’s succession order in May. It states, "Individuals exercising the authority of the Director will keep a record of important actions taken and the period during which the authority was exercised."

Interior and BLM have declined requests by E&E News and other media outlets to provide a copy of that list of actions.

Assessing ‘acts of Pendley’

Morris gave Interior and the plaintiffs in the case 10 days from the order to submit briefs to the court that "address what acts of Pendley" "should be set aside" as a result of his order.

Some have interpreted this to include potentially dozens of actions overseen by Pendley on federal lands nationwide.

That could include personnel decisions Pendley made involving dozens of Washington-based employees who were moved this summer to BLM’s new headquarters in Grand Junction. Specifically, any orders Pendley signed directing specific D.C.-based staffers to move to the new location, or to other state offices in the West.

"Judge Morris said [Pendley] was unlawfully in that position for 424 days," Tobias said. "So wouldn’t every action he was responsible for over that time be subject to being invalidated because he didn’t have the authority to take that action? That’s what it seems like to me."

Morris’ order is unclear on that point. He wrote that if Bernhardt assigned the "functions and duties of BLM Director" to an "improperly appointed" acting director, that would "render any decisions issued by that Acting BLM Director arbitrary and capricious as not issued ‘in accordance with law.’"

But other legal scholars who have read Morris’ ruling caution that this portion of the order may be limited to actions in Montana. Bullock and the Montana Department of Natural Resources and Conservation filed the lawsuit.

Indeed, Morris points to only two specific BLM actions as subject to dismissal, and both are in Montana.

These involve separate amendments to the Lewistown resource management plan in central Montana and the Missoula resource management plan on the state’s northwest side.

BLM in July finalized both amended RMPs covering the management of more than 800,000 acres (Greenwire, July 30).

The RMP amendments were controversial, with critics noting they open more federal lands in both regions to additional oil and gas leasing. Indeed, the state argued the amendments "would reduce protections for fish and wildlife habitat, cultural resources, and recreational uses on federal lands in Montana," according to the order.

The state of Montana was among those filing a total of 150 protest letters.

"BLM approved the RMPs following review by ‘the BLM Director’ as well as resolution of protest letters by the ‘BLM Director,’" Morris wrote, in reference to Pendley.

That has cast doubt on the fate of the two amended land-use plans.

"Montana sought adequate and lawful consideration of its views as required by statute and regulation," Morris wrote. "Montana did not receive such consideration if Pendley unlawfully was exercising the authority of the BLM Director."

But does that indicate that all of Pendley’s actions are now subject to review? Morris hints in his order that the duties "performed by Pendley" that would now be invalid "appear to include, but not be limited to, the Missoula RMP and the Lewistown RMP."

He directed Interior and the state of Montana "to provide further briefing on these actions and any other BLM Director exclusive functions or duties that Pendley may have performed."

The situation, as it stands, is "a mess the administration has made" for itself, Leshy said.

Tobias said it should never have gotten to this point.

"The thing that really is troubling to me here is Bernhardt," he said. "Bernhardt’s a lawyer. A lawyer can’t say, ‘I don’t know what the procedures are.’ He’s got to know. And if he doesn’t know, he has lawyers who do."