The Hill: Pendley court ruling could unravel Trump's public lands decisions

by Rebecca Beitsch

A federal judge’s decision to boot a top Trump appointee could jeopardize years of actions the administration has taken on public lands, including an expansion of oil and gas drilling and the decision to uproot the Bureau of Land Management (BLM) headquarters.

A Montana-based U.S. District Court judge on Friday ruled William Perry Pendley, the controversial acting director of BLM, “served unlawfully… for 424 days,” giving the Department of the Interior 10 days to justify why it shouldn’t throw out many of the decisions Pendley has made during his tenure.

Pendley, a polarizing figure due to his long history of opposing federal ownership of public lands, was given the de-facto top spot at BLM through a series of temporary appointments and later a change in succession orders that were successfully challenged by Montana Gov. Steve Bullock (D).

Though the White House formally nominated him to the job this summer, it rescinded the nod last month when it became clear he would not likely receive Senate confirmation.

Judge Brian Morris, an Obama-era appointee, found Pendley’s tenure to be a violation of the constitution and the Federal Vacancies Reform Act, which limits the power of acting directors beyond the first 210 days in office.

But Pendley’s predecessors were appointed in a similar fashion – the Trump administration has failed to secure a permanent director for the BLM since taking office – calling into question the validity of many of their decisions as well.

“Depending on what happens next this could invalidate an entire administration’s work of actions at the Bureau of Land Management,” said Aaron Weiss, deputy director of the Center for Western Priorities, a public lands watchdog group.

Morris enjoined Pendley from continuing to serve in his role, but now the court will examine the numerous decisions the bureau has made along the way. Pendley has led the department through a relocation that uprooted all but 61 of BLM’s Washington-based staffers and oversaw a number of management plans that would increase access for the oil and gas industry through their up to 20 year lifespan.

“I think the judge is contemplating that 424 days – all of it. If [Pendley] wasn’t properly appointed or placed in his position, I think the judge is inclined to want to know why any of the actions he took were valid,” said Carl Tobias, a law processor at Richmond University School of Law.

One of the resource plans cited by Morris would open 95 percent of 650,000-acres of BLM land to resource extraction like mining and drilling.

“Reversing course on many of Pendley’s disastrous and illegal decisions is a critical next step,” Sen. Jon Tester (D-Mt.) said in a statement to The Hill, adding that “Majority Leader McConnell and Senate Republicans need to learn a lesson from this mess: turning a blind eye to the public and letting unqualified folks sit unconfirmed in powerful positions is unconstitutional and a dereliction of the Senate’s duty.”

Close observers of the BLM have complained the Trump administration has changed an organization that largely flew under the radar in previous administrations, responsible for balancing recreation and conservation on the nation’s nearly 250 million acres of public lands with energy development and grazing interests.

“They definitely have a fossil fuel extraction lean in terms of their mission for the BLM,” Steve Ellis, who retired from the top career position at BLM in 2016, previously told The Hill in discussing the Trump administration.

“BLM is a multiple use agency by law, but they’re tilting it way over to fossil fuels,” he added. “It’s not balanced right now.”

Weiss said land management plans in not just Montana but Colorado and New Mexico where “they opened up everything to oil and gas drilling” could face renewed scrutiny.

“If this stands the implications are drastic because if this becomes a template for other court districts then it puts at risk every land use plan that has come out and been finalized at least this year and possibly the entirety of the Trump administration,” he said.

A future administration could also use the decision as a justification for closing BLM’s new headquarters in Grand Junction, Colo., and placing the 200 positions scattered across the West back in Washington, he said.

Where it gets complicated is that Pendley did not put his signature on many of the directives taken under his leadership.

“Mr. Pendley didn’t sign off on as many decisions as he could have, probably because he knew this day would come,” House Natural Resources Chairman Raúl Grijalva (D-Ariz.), whose committee oversees the BLM, said in a statement to The Hill.

“We’re still assessing the policy impacts of his tenure, but it’s already clear that no user of public lands should have put any faith in this administration or Mr. Pendley to provide them with any certainty about anything,” he said.

Interior did not respond to request for comment from The Hill but on Friday called the ruling an “outrageous decision.”

It’s not clear to what extent the ruling may affect decisions made by Pendley’s predecessors, many of whom were also appointed through temporary delegations.

The decision “at least raises questions about whether the people who served prior to Pendley also might have served illegally,” said Nina Mendelson, a law professor at the University of Michigan.

“The judge’s conclusion that Pendley’s service violated the Appointments Clause of the Constitution is a far-reaching ruling that could apply to those who served prior to Pendley,” Mendelson added. “But the judge also found Pendley’s service illegal for other reasons, including the invalidity of the succession order, that might not apply to those who served prior to Pendley.”

Bullock’s office said it would be complying with Morris’s order, crafting a comprehensive list of actions taken by Pendley it does not think should stand.

“While the Governor will be filing a more significant delineation of decisions William Perry Pendley has made that are unlawful and subject to challenge within the confines of this suit, any and all BLM decisions that Mr. Pendley participated in are within the scope of the judge’s order and may be included,” Bullock spokeswoman Marissa Perry said by email.