Wave of lawsuits coming over Pendley’s BLM decisions

By Scott Streater | 10/19/2020 01:31 PM EDT

The latest court order against William Perry Pendley's leadership activities at BLM could spark litigation targeting the actions he took while serving as the de facto leader of the agency.

The latest court order against William Perry Pendley's leadership activities at BLM could spark litigation targeting the actions he took while serving as the de facto leader of the agency. Francis Chung/E&E News

A federal judge’s order invalidating three land use plans approved by the Bureau of Land Management during William Perry Pendley’s "unlawful" tenure could spark a wave of litigation challenging oversight of millions of acres.

That’s according to legal experts and Montana District Chief Judge Brian Morris, who wrote in his order issued late Friday that it is "probable" there are "additional actions taken by Pendley that should be set aside as unlawful" across the West.

"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.


They’re planning to do so.

"We’ll go to court to make sure Pendley’s illegal decisions end up in the dumpster where they belong," said Taylor McKinnon, a senior campaigner at the Center for Biological Diversity.

The center and other groups have already put Interior Secretary David Bernhardt on notice in a letter that detailed dozens of amended land use plans and other BLM policy decisions that may now be invalid (E&E News PM, Oct. 6).

They include numerous "rulemakings, guidelines, programs and internal memorandum" issued since July 2019, when Bernhardt delegated "exercising the authority of director" to Pendley.

Morris’ latest order is the second in less than a month. The judge ruled last month that Pendley had illegally performed the duties of BLM’s director for more than a year, and barred him from continuing to do so (Greenwire, Sept. 25).

BLM has since removed "exercising the authority of director" from his formal title of deputy director of policy and programs.

Specifically, Morris’ latest order tossed aside the amended Lewistown, Missoula and Miles City resource management plans (RMPs) because, the judge wrote, Pendley lacked the authority to resolve dozens of protests that were filed against the amended plans.

Montana Gov. Steve Bullock (D) and the state — which filed the original lawsuit against Pendley that led to Morris’ September order — asked the judge to throw out the three RMPs covering about 800,000 surface acres and 12 million acres of subsurface mineral estate.

The Interior Department, which has vowed to appeal, has labeled Morris’ orders "outrageous," and it maintains that Pendley did not sign the protest resolutions at issue.

But legal scholars who have read Morris’ latest order say BLM is now exposed to legal challenges that could undermine numerous other RMPs and planning documents approved during Pendley’s tenure as de facto acting director.

It’s likely that "other judges could rule similarly to Morris and possibly upset a number of plans," said Carl Tobias, a University of Richmond law professor who has followed the Pendley case closely.

They note that Morris’ order suggests that potentially dozens of other major BLM actions could be subject to legal scrutiny.

"It’s open season on anything [Pendley] touched that involved the ‘exclusive authority’ of the director," Pat Parenteau, a law professor and senior counsel for the Vermont Law School’s Environmental Advocacy Clinic, wrote in an email.

That could include dozens of reassignment orders, if signed by Pendley, that directed BLM’s Washington staffers to move to the bureau’s new headquarters in Grand Junction, Colo., and to other BLM state offices in the West, sources said.

It won’t be easy, Tobias said.

"It will also be expensive to file suit in many other federal courts and to assemble all of the relevant data, especially about other decisions in which Pendley was involved," he said, "because he and BLM have not been forthcoming with information related to his role and participation in many decisions."

‘Illegal directors make illegal decisions’

Conservation groups formally requested that Morris allow them to share information on other potentially invalid decisions, in the apparent hope that he would broaden his ruling on Friday to include numerous other RMPs in the West.

A coalition of groups filed a motion with the court that would have allowed the Center for Biological Diversity, the Western Watersheds Project and WildEarth Guardians to submit a friend-of-the-court brief that could have expanded upon Bullock’s request to throw out the three amended RMPs in Montana.

But Morris, as part of his order Friday, denied the request. He wrote that his jurisdiction in the case is limited to what the plaintiffs — in this case, Bullock and the state — requested.

"What Judge Morris did here is show normal (and wise) judicial prudence," John Leshy, a distinguished professor emeritus at the University of California, Hastings College of the Law, wrote in an email.

"Governor Bullock is the plaintiff, and his interest (and his complaint) are confined to Montana public lands," added Leshy, who served as Interior’s top lawyer during the Clinton administration. "So there’s no need to go beyond that."

But Morris, an Obama appointee, suggested in his order that other Pendley actions probably warrant legal scrutiny.

So did Bullock and the state of Montana in a supplemental brief filed this month. In it, they write 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 environmental groups plan to test that theory.

"Illegal directors make illegal decisions — it’s that simple," said Nada Culver, vice president for public lands and senior policy counsel at the National Audubon Society.

Judge growing ‘irritated’

Legal observers say Morris appears to be growing tired of the Trump administration’s actions in the case.

Indeed, a sizable portion of Morris’ order Friday involved the judge criticizing a supplemental brief Interior filed with the court this month that introduced reams of new documents and information arguing that Pendley did not sign the protest resolutions or other documents associated with the three Montana RMPs the judge ultimately threw out.

Morris chastised Interior for introducing "for the first time" court filings contending Pendley "performed no action in connection with the Lewistown and Missoula" RMPs, "but rather those duties were ‘delegated to another BLM Official.’"

Morris wrote, "These novel and last-ditch legal arguments go beyond the scope of the remedy phase and introduce hundreds of pages of new factual records that could have — and should have — been introduced at the summary judgment stage."

Morris later chastised Interior, noting the brief was supposed to address specific actions that Pendley may have taken that could be tossed out as a result of the September ruling that Pendley could not perform the duties of BLM director.

"Despite Federal Defendants’ disagreement with the exercise and apparent refusal to engage in such a search in good faith, it remains probable that additional actions taken by Pendley … should be set aside as unlawful," he wrote.

Leshy noted Morris is "becoming quite irritated with the U.S.’s shifting positions" on Pendley’s role at BLM.

"In my words, not his, the Trump administration wants to have it both ways — to get credit from right-wing libertarians that Pendley’s in charge, while telling the court … he’s just a figurehead and the decisions are being made elsewhere," Leshy said.

He added, "Judges are human and they don’t like to feel they are being played."