The Interior Department has tapped Wyoming attorney Karen Budd-Falen for a key, behind-the-scenes legal position with considerable sway over parks and wildlife policies.
As deputy solicitor for Fish, Wildlife and Parks, Budd-Falen will render legal opinions that can either bind or unleash Interior officials. And though her appointment alarms some Westerners and environmentalists, allies see in her a strong property rights proponent.
Budd-Falen, in a brief interview today with E&E News from her private law office in Cheyenne, Wyo., acknowledged that her appointment is likely to spark criticism.
"I know that there are people that are going to be very happy that I'm going back there, and there are going to be people that are very unhappy that I am going to go back there," she said.
Budd-Falen's selection for the deputy solicitor's job marks a notable career shift for the graduate of the University of Wyoming and its law school. It was first reported online last Friday by The Fence Post, a Greeley, Colo.-based Western and agricultural news organization.
"I think that the deputy solicitor role is a wholly different animal than what I've been doing the last 30 years," Budd-Falen told E&E News. "I've had clients, and I've advocated for clients, and that was my job description. That advocacy has not endeared me to certain segments."
But she added: "I think that being at Interior is different than advocacy. I actually welcome hearing the discussion on both sides of the issue. I think it's kind of sad now that nationally, it seems like having a fair debate where you discuss the issues on both sides seems to be not how Washington works, but it's going to be how I work."
Interior said in a statement today, "Karen Budd-Falen brings extensive industry experience to the department, and we are excited to have her on our team."
She said she will start at Interior on Nov. 1.
Budd-Falen worked on the Trump administration's Interior transition team in early 2017. For over a year, her name circulated as a front-running contender for the job of Bureau of Land Management director. The BLM post requires Senate confirmation, unlike the deputy solicitor's job, and Democrats could have held up her potential nomination as they have stymied other Interior nominees.
Interior sources said the agency and the White House decided against nominating Budd-Falen for BLM because she has had numerous legal clashes with the agency over the years and was unlikely to be confirmed.
Her potential nomination to lead the bureau was a major source of consternation among BLM employees, several sources said.
One former senior BLM official referenced a landmark case in which she attempted to sue individual BLM employees under the Racketeer Influenced and Corrupt Organizations Act, or RICO (Greenwire, June 16, 2017).
The Supreme Court rejected that challenge.
Budd-Falen told E&E News last year that those legal challenges are water under the bridge and that if she were confirmed as BLM director, her tenure would be guided by Interior Secretary Ryan Zinke's vision for the agency (Greenwire, Oct. 6, 2017).
BLM employees "were much relieved she will not become the director of BLM," a former senior bureau official said.
Budd-Falen told E&E News today that she decided against the further pursuit of the BLM director position after White House ethics officials told her she would have to sell her fifth-generation family ranch in Big Piney, Wyo., because, she said, it would be viewed as a potential conflict of interest if she made any decision, even general ones, that benefited ranchers.
She said she and her husband, Frank Falen, also a lawyer, were "willing to make lots of changes" to their law practice in order for her to become BLM director. But selling her ranch, she said, "was a ridiculous bridge too far."
The Senate-confirmed post of Interior solicitor remains vacant, following the withdrawal of nominee Ryan Nelson last May and his nomination to the 9th U.S. Circuit Court of Appeals (Greenwire, May 10).
The Senate confirmed Nelson to the appellate judge position last Friday.
In the absence of a confirmed solicitor, deputies are making the kind of legal calls that underscore the power of Interior lawyers to shape outcomes.
Last December, for instance, Interior's Office of the Solicitor issued a new legal opinion that shields from prosecution energy companies and others that unintentionally take migratory birds.
In the legal reversal, Interior's top attorneys reinterpreted the Migratory Bird Treaty Act as covering only the intentional taking of a bird. That interpretation is narrower than the Obama administration's reading, which extended coverage to incidental results, and is now being challenged in court (Greenwire, Sept. 6).
Budd-Falen told E&E News that she will draw on her 30 years of legal experience, but will not be "creating policy."
"What I'm doing is going to say, 'Here's the case law; here are the statutes for the policymakers to consider,'" she said.
Budd-Falen served three years in the Reagan administration's Interior Department as a special assistant to the assistant secretary for land and minerals management. She also worked as an attorney at the Mountain States Legal Foundation, a conservative public interest group in Denver.
As Budd-Falen said, that history has earned her lots of critics.
A senior Interior Department official who asked not to be identified was "disappointed but not surprised" by Budd-Falen's appointment.
"I was just shocked that she was being considered at all for anything," the source said. "I've just not heard anything good about her."
Conservation groups bashed the appointment, noting her legal record.
Nada Culver, a senior counsel and director of the Wilderness Society's BLM Action Center in Denver, said Budd-Falen's "attempt to place an exaggerated version of private property rights over the public interest and her support of anti-public-lands extremists like the Bundys ... calls into serious question whether she can be trusted to apply the law on behalf of the Department of the Interior."
Critics often associate Budd-Falen with Cliven Bundy, the Nevada rancher whose more than $1 million in unpaid livestock grazing fees prompted an armed standoff in 2014 with federal agents.
But she said in the E&E News interview last year that the only time she had any interaction with Bundy was in the late 1980s, when she represented a group of ranchers, including Bundy, that appealed a federal decision to remove them from grazing allotments after the Mojave desert tortoise was designated as an endangered species.
"I have not talked to him since," she said.
She was, however, critical of the federal government's 2014 decision to send armed federal agents to seize Bundy's cattle and remove them from federal lands.
"The Cliven Bundy situation goes to show how American citizens react when a government has so expanded that it believes that the citizens are subservient to political power," Budd-Falen told the conservative website The Daily Caller in a 2014 interview.
But there are those who defend her, saying critics have mischaracterized her and her views on public lands.
"I've worked with Karen and found her to be a sharp, thoughtful advocate that knows firsthand how federal overreach and abusive environmental litigation impacts farmers, ranchers and rural communities," said Kent Holsinger, a Denver natural resources attorney who has represented the energy and agricultural industries in litigation involving the greater sage grouse and other species.
"Coming from a Wyoming ranching family, she'll no doubt be a zealous advocate for good stewardship and environmental protection to the letter of the law," he added.