William Perry Pendley signed a succession order months ago that will keep him indefinitely at the helm of the Bureau of Land Management.
Pendley's order states that "in the absence" of a permanent BLM director, the deputy director of policy and programs — in this case Pendley himself — shall be "delegated the authority to perform all duties and responsibilities of the Director when required to ensure continued, uninterrupted direction and supervision to perform essential functions and activities of the office."
Pendley signed the succession order and sent it to Casey Hammond, the Interior Department's principal deputy assistant secretary for land and minerals management. Both Pendley and Hammond signed it on May 22 — just days before Interior Secretary David Bernhardt announced the department's order of succession allows Pendley to remain in charge of BLM indefinitely (E&E News PM, June 5).
The order — which was not made public until now — was signed a little more than a month before President Trump nominated Pendley for the Senate-confirmed BLM director's position (E&E News PM, June 26).
Succession orders like the one Pendley signed "have existed and been updated throughout this administration and many prior administrations" and comply with federal law, Interior said today in an emailed statement.
Pendley's order does nothing more than "provide the same legal standing as prior actions and ensure the smooth continuity of operations for leadership positions," the department said.
But the order — obtained by E&E News and first reported by the Associated Press — drew immediate condemnation from congressional leaders, current and former Interior and BLM officials, and attorneys involved in litigation challenging Pendley's authority to serve as a de facto acting director.
"Writing a memo installing yourself as acting director of a federal agency is grade-A baloney," said Montana Sen. Jon Tester (D), who has demanded Pendley be removed as de facto BLM acting director.
News of the succession order comes just days after the White House confirmed that Trump is withdrawing the Pendley nomination (Greenwire, Aug. 15).
Pendley has been a lighting rod for controversy over his past work as a lawyer challenging federal land management policies, as well as his past statements supporting the sale of government land.
Pendley was Trump's only nominee for BLM director in nearly four years in office.
"That the White House withdrew Pendley's nomination shows they know he is unfit to oversee the public lands he has spent his career working to undermine and that he would be rejected overwhelmingly by the Senate," Tester said in his statement. "I continue to stand with the thousands of Montanans who oppose any role for Pendley at BLM, and I will keep pushing until he [is] shown the door for good."
'A good legal question'
Pendley cites the Federal Vacancies Reform Act as justification for his succession order. The law is typically employed by new and incoming administrations to fill vacancies and ensure continuity of operations, and it caps the time a temporary agency director can remain in place at 210 days.
But his directive includes no cap on the time an individual can perform the duties of an acting director — meaning Pendley has put himself atop BLM indefinitely.
Bernhardt appointed Pendley deputy director of policy and programs in July 2019 and two weeks later added "exercising the authority of director" to his title.
After Pendley, the "order of succession" outlined in the document states that the deputy director of operations — currently Mike Nedd — would assume the temporary director's spot if the deputy director of policy and programs position is vacant or the individual holding that title is unable to perform the director's duties.
The next three, in order:
- Nicholas Douglas, the assistant director of energy, minerals and realty management.
- John Ruhs, Idaho state director.
- Raymond Suazo, Arizona state director.
It's not clear why these three are listed as next in line after the two deputy directors.
It's not unusual for BLM or other federal agencies to have written designations outlining the succession order in the event a director leaves, a former senior BLM official who reviewed the document said.
"It's called continuity of operations," the former official said.
"What is unique here is that this could be interpreted as Pendley citing the [Federal Vacancies Reform Act] as authority to place himself in the role to 'succeed the director in the absence of the incumbent,'" the official said.
They added, "It's a good legal question that I am sure some others will look at."
Indeed, Peter Jenkins, senior counsel for Public Employees for Environmental Responsibility, said the Pendley order does not comply with the Federal Vacancies Reform Act.
PEER and the Western Watersheds Project in May filed a federal lawsuit challenging the legality of Pendley's designation by Bernhardt as BLM's de facto acting director (Greenwire, May 11).
"Pendley pretends to be able to designate himself as the successor to the vacant director spot. But the spot has been vacant for four years," Jenkins said. "Pendley cannot by his fiat contravene the more specific requirements of [the Federal Vacancies Reform Act] and 'automatically succeed the director of BLM in the absence of the incumbent.'"
Pendley appears comfortable with leading BLM in his current capacity as exercising the authority of director.
He told Nevada's Elko Daily Free Press in an interview published yesterday that he "will be running the bureau as long as President Trump and Secretary of the Interior David Bernhardt want me to."
Reporter Jennifer Yachnin contributed.