The fallout from a federal judge’s ruling last month that William Perry Pendley illegally performed the duties of Bureau of Land Management director for more than a year has taken another notable turn.
The Trump administration, in a supplemental brief it filed late yesterday with the U.S. District Court for the District of Montana, argues Pendley performed "no relevant acts" while "exercising the authority of director" that should now be thrown out as a result of the judge’s order.
That argument differs from the Interior Department’s vigorous defense over the past year of Pendley and his authority to perform the duties of BLM acting director.
The filing offers valuable insight into how Interior plans to challenge last month’s ruling by Chief Judge Brian Morris that Pendley’s 424-day tenure leading BLM violated federal laws (Greenwire, Sept. 25). Interior has vowed to fight the ruling with the 9th U.S. Circuit Court of Appeals.
As part of Morris’ order, which was sparked by a lawsuit from Montana Gov. Steve Bullock (D), the judge directed the state and the Interior Department to file briefs addressing specific actions that Pendley may have taken that could be tossed out as a result of the ruling.
Interior’s brief suggests it plans to follow the same legal argument — already rejected by Morris in his order — that Pendley took no actions that could have inflicted a "particular injury" to Bullock or the state. Thus, Montana and its governor had no legal standing to file the lawsuit in the first place.
"This Court has directed the parties to identify which ‘acts of [William Perry] Pendley’ should be set aside under the Federal Vacancies Reform Act and the Administrative Procedure Act. The answer is none," the brief says.
It adds: "More fundamentally, this review emphasizes not just the lack of any specific acts to be remedied, but the lack of subject-matter jurisdiction over Plaintiffs’ claims entirely. Thus, if this Court can set aside any action by Mr. Pendley on grounds that his exercise of the BLM Director’s functions and duties was impermissible, it must be an action that Plaintiffs have identified as causing them injury."
The government brief says: "There is none here."
In its own supplemental brief, also filed late yesterday, Montana asked Morris to throw out three amended land use plans that it argues are invalid.
The request targeting only three Montana-specific BLM actions under Pendley is significant, as legal experts, congressional Democrats and environmental advocacy groups have asserted that all BLM actions since July 2019 — when Interior Secretary David Bernhardt added "exercising the authority of director" to Pendley’s title — should be ruled invalid.
But attorneys for Bullock and his co-plaintiff — the Montana Department of Natural Resources and Conservation — asked the judge to keep open the possibility that many more BLM actions authorized by Pendley could later be found to be invalid.
Bullock and the state "believe that many other Bureau actions are likely subject to invalidation, because they result from Pendley’s unlawful performance of the duties and functions exclusively assigned to the Bureau’s Director."
The state brief says, "At the same time, the plaintiffs lack critical information about Pendley’s role in producing these actions."
Montana argues that the amended Lewistown and Missoula resource management plans (RMPs) in the central and northwest parts of the state, respectively, should be thrown out because Pendley was not authorized to perform the duties of the BLM director.
The Lewistown and Missoula RMPs, which in total cover about 800,000 acres, were finalized and approved in July.
Morris, in his order last month, already addressed both amended RMPs, because Bullock and the state had objected to the revisions, claiming they would open the two areas up to more oil and gas drilling and weaken natural resource projections.
The state, in its brief, also asks Morris to toss out the Miles City RMP amendment in eastern Montana, approved by BLM in November 2019, which addresses the management of 12 million acres of subsurface mineral estate. All three RMPs would open more federal lands to oil and gas drilling, the state and other critics say.
The state points to the three amended RMPs as invalid for one simple reason: Pendley signed protest resolutions rejecting the arguments against the revised plans by the governor and the state.
All three amended plans "are clearly invalid under this Court’s order on summary judgment" last month, the state’s brief says.
The issue, according to the state’s brief, is that Pendley rejected protests to the amended plans, which was "a necessary precondition for the plans’ approval."
"Because Pendley lacked the authority to resolve these protests, the Lewistown and Missoula plans must be set aside," the state says in its brief. "For the same reasons, this Court should set aside the Miles City Field Office Resource Management Plan Amendment."
Morris, in his order last month, appeared to side with Bullock and the state on this point.
"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."
Was Mont. harmed by Pendley?
But Interior says in its brief that Pendley was not responsible for resolving the more than 150 protest letters against the revised Lewistown RMP and 72 filed against the Missoula amended plan.
While Interior says Bullock did file "Governor’s Consistency Review recommendations on those RMPs," it also says, "Plaintiffs never filed protests on the RMPs" in question.
"And even if Bureau action on other parties’ protests could have injured Plaintiffs, it was not Mr. Pendley who took any such action; rather, as Defendants showed, they were resolved by a BLM Assistant Director who has been delegated the authority to do so under longstanding BLM policy."
The federal government’s brief later identifies Brian St. George, BLM’s acting assistant director, as resolving the protests.
Morris, however, wrote in his order last month, "Pendley, acting as BLM Director, reviewed and resolved protests received in the development of the RMPs" when he did not have the legal authority to do so.
As for Bullock’s consistency review recommendations, Interior says in its brief that those "were reviewed and responded to by BLM Montana/Dakotas State Director John Mehlhoff, not Mr. Pendley."
The administration’s brief focuses most of its attention over the issue of whether Bullock and the state suffered any "injuries-in-fact" that are necessary prerequisites to have legal standing to file the lawsuit.
Interior clearly asserts that they did not. Morris’ "jurisdiction here is thus limited to redressing the injuries-in-fact" that are claimed by the state, says the federal brief.
Since Bullock and the state "have identified no cognizable injury-in-fact to remedy that is supported by the record," there are "no acts taken by Mr. Pendley while exercising the duties of BLM Director that should be set aside," it says.
But Morris already addressed the issue over whether Bullock and the state had legal standing to file the lawsuit in great detail in his order.
Montana, as a sovereign state, holds a legally definable "special position of interest," Morris wrote.
He added, "A court must give ‘considerable relevance that the party seeking review here is a sovereign State and not … a private individual,’" citing case law.
"When Montana acts in that capacity, it ‘has an interest independent of and behind the titles of its citizens[.]’" he wrote. "Application of these standing principles to Plaintiffs’ claims under this standard removes any doubt as to Montana’s right to bring these claims."