A federal judge in Montana has handed the Trump administration a stunning rebuke, ruling today that William Perry Pendley is illegally heading the Bureau of Land Management.
The order by Chief Judge Brian Morris of the U.S. District Court for the District of Montana bars Pendley from continuing to perform the duties of the BLM director. Unless President Trump designates a formal acting BLM director, Morris wrote, only Interior Secretary David Bernhardt "can perform functions or duties of the BLM Director."
Any "function or duty" of BLM director performed by Pendley since July 2019, when Bernhardt added "exercising the authority of director," would in essence "have no force and effect and must be set aside as arbitrary and capricious," the order said.
Morris gave Interior 10 days from the order to submit a brief to the court "to address what acts of Pendley" that "should be set aside" as a result of the order.
The Interior Department issued a statement blasting the order.
"This is an outrageous decision that is well outside the bounds of the law. It betrays long-standing practice of the Department going back several administrations," it said.
"We will be appealing this decision immediately."
But the order is an enormous black eye for the Trump administration.
The 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).
"Today's ruling is a win for the Constitution, the rule of law, and our public lands," Bullock said in a statement. "Montanans can rest easy knowing that National Public Lands Day will begin with William Perry Pendley packing his desk and vacating the Director's Office at the Bureau of Land Management."
Morris' order is a blow to the Trump administration practice of avoiding the Senate confirmation process, saying that allowing Pendley to lead BLM under the designation of "exercising the authority of director" was an attempt "to evade" the requirements of succession outlined in the Federal Vacancies Reform Act.
Trump nominated Pendley in June for the Senate-confirmed post but withdrew the nomination after a fierce backlash against Pendley, a conservative lawyer who has advocated selling federal lands and made disparaging comments some have interpreted as racist against Native Americans and African Americans.
"The President cannot shelter unconstitutional 'temporary' appointments for the duration of his presidency through a matryoshka doll of delegated authorities," Morris wrote.
BLM and the Interior Department had argued that Bernhardt's designation of Pendley as "exercising the authority of director" of the bureau is legal, and conforms with the department's succession orders.
Pendley has been performing the duties of BLM director since July 2019.
Bernhardt, until June, kept Pendley atop BLM in this manner through a series of secretarial orders granting Pendley the authority to perform the duties of the director.
"Federal Defendants' argument attempting to distinguish an 'Acting Director' from an 'official performing the Director's duties under the Secretary's delegation' represents a distinction without a difference. Such arguments prove evasive and undermine the constitutional system of checks and balances," Morris wrote.
Morris blasted both Pendley's succession order and Bernhardt's secretarial orders, saying they "represent unlawful attempts to avoid the constitutional requirements of the Appointments Clause" of the U.S. Constitution "and the statutory requirements" of the Federal Vacancies Reform Act.
"Each delegation improperly empowered Pendley as the Acting BLM Director," he added, noting that Bernhardt's secretarial orders were "carefully crafted ... to avoid designation of Pendley as 'Acting BLM Director'" in an attempt to avoid requirements of federal law.
Critics of Pendley, especially congressional Democrats who objected to Pendley continuing to lead BLM despite his nomination being withdrawn, celebrated the court order.
"Finally, Americans throughout the West and throughout the country can look forward to this anti-public lands, anti-Native zealot being shown the door," New Mexico Sen. Tom Udall (D) said in a statement.
"This ruling is a win for all who value the rule of law, Tribal sovereignty, and conservation," Udall said. "Any decision Pendley has made in this capacity must now be subject to legal scrutiny as well."