INTERIOR

Judge invalidates Pendley's BLM decisions

This story was updated at 10:28 a.m.

A federal judge in Montana has once again handed the Bureau of Land Management and its embattled former de facto acting chief, William Perry Pendley, another major legal defeat.

Chief Judge Brian Morris of the U.S. District Court for the District of Montana late yesterday issued an order invalidating three major land-use plan revisions in Montana as a result of Pendley "unlawfully" leading BLM for more than a year.

BLM issued a statement this morning blasting Morris' order.

"The court's erroneous ruling continues to disregard basic facts and misapprehend how authority is delegated within federal agencies," it said.

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But Morris also issued what appeared to be a warning to Pendley and the Interior Department that they better abide by his previous order from last month barring Pendley from performing the duties of BLM director (Greenwire, Sept. 25).

Pendley has made numerous public statements in the past week to various news media outlets saying that he's essentially still in charge of the bureau.

"The Court emphasizes again the injunctive relief currently in place against Federal Defendants," Morris wrote, referencing September's order.

He noted yesterday that Interior Solicitor Daniel Jorjani has stated publicly that Interior will comply with the court order that Pendley cannot lead BLM.

"Other officials, including Pendley, appear more reticent in their acknowledgment of the effect of the Court's September Order," Morris wrote. "The Court emphasizes again its previous finding: Only the Secretary of the Interior can perform functions or duties of the BLM Director."

Invalid

Morris' latest order issued last night takes his initial finding from September a step further, ruling the amended Lewistown and Missoula resource management plans (RMPs) in the central and northwest parts of the state, respectively, are now invalid because Pendley was not authorized to perform the duties of the BLM director.

The amended Lewistown and Missoula RMPs, finalized in July, cover in total about 800,000 acres.

Morris' order also dismisses the Miles City RMP amendment in eastern Montana, approved by BLM last year. It 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.

As part of Morris' September ruling, 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.

Montana Gov. Steve Bullock (D) — whose lawsuit in July sparked Morris' order — asked in a supplemental brief to the court that all three amended RMPs to be thrown out because Pendley resolved protests to the amended plans when he was not authorized to perform the duties of BLM director.

"The Court agrees with this conclusion," Morris wrote.

Interior argued in its own supplemental brief to the court that 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 (Greenwire, Oct. 6).

Interior also argued 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. That authority was delegated to another senior official.

"The record fails to support this argument," Morris wrote in yesterday's order.

BLM said in its statement this morning that it strongly disagrees with Morris.

"Deputy Director Pendley did not take the actions attributed to him by the court with respect to the RMPs," the statement said.

BLM also defended the amended Lewistown and Missoula RMPs, which include more than 100,000 acres of what BLM calls "backcountry conservation areas." These areas, according to BLM, are designed to "promote public access" that supports "hunting opportunities and facilitate[s] the long-term maintenance of big game wildlife populations," as well as other multiple-use activities.

"Governor Bullock's lawsuit against the BLM has now come at the expense the great people of Montana who, for the time being, are subjected to decades old RMPs that do not include the nation's first Backcountry Conservation Areas," the statement said.

It adds, "The Department will continue to comply with the court's orders while reviewing all legal options to fight these outrageous rulings."

But Morris appears to scold Interior for asserting in its brief "for the first time" that Pendley "performed no action in connection with the Lewistown and Missoula" RMPs, "but rather those duties were 'delegated to another BLM Official.'"

He wrote that the "hundreds of pages of new factual records" supporting this argument "could have — and should have — been introduced at the summary judgment stage" of the case.

But the delegations of authority were improper because Pendley was not authorized to perform the duties of the director.

"Federal Defendants again attempt to use a series of delegations to justify Pendley's improper exercise of BLM Director authority," Morris wrote. "These new arguments based on new legal arguments and new records similarly fail, particularly after the Court has granted summary judgment."

Email: sstreater@eenews.net

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