Helena Independent Record: Tester bill would bar appeal of Pendley's ouster from BLM

by Tom Kuglin

A bill introduced by Democratic U.S. Sen. Jon Tester Wednesday would bar the U.S. Department of Justice from appealing a Montana judge’s ruling ousting William Perry Pendley from serving as de facto director of the Bureau of Land Management.

The Public Lands Leadership Act comes in response the U.S. Department of the Interior’s criticism and vow to appeal a recent ruling from U.S. District Court Judge Brian Morris. In his Sept. 25 decision based on a lawsuit brought by Democratic Montana Gov. Steve Bullock, the judge found Pendley’s service as acting director for 424 days without Senate confirmation violated federal law.

A subsequent decision from Morris blocked three land-use plans implemented under Pendley.

Interior said it planned to appeal the decision, which the bill brought by Tester would halt.

“They’re more than willing to spend money to keep a person who is unfit for the job in office rather than just putting the person up in front of Congress like the Constitution says and having a vote up or down,” Tester said in an interview.

Tester pointed to the Federal Vacancies Reform Act, which in part limits acting agency directors to 210 days.

Interior questioned the legality of the bill Wednesday.

“Instead of pushing this patently unconstitutional bill, the senator’s time would be better spent working with President Trump on a COVID relief package for the betterment of Montanans and the rest of the country,” spokesman Nicholas Goodwin said in a statement.

Goodwin further defended the department’s actions while Pendley has been with BLM, saying that the agency has worked to expand public access and that court-halted resource management plans balanced development with conservation.

Bills prohibiting DOJ litigation are uncommon but not without precedent, The Hill reported Wednesday. Senate Democrats and a handful of Republicans attempted unsuccessfully earlier this month to bar DOJ from suing to invalidate the Affordable Care, commonly known as Obamacare.

Pendley, a former industry lawyer and property rights advocate, has been derided by several conservation groups since taking a leadership role in BLM. His opponents, as detailed in the legislation, point to his record as an attorney which includes litigating against Montana’s stream access law and representing oil and gas interests attempting to drill in the Badger-Two Medicine area on the Rocky Mountain Front.

Pendley has said he was representing his clients’ interests as an attorney and it was not relevant to how he would perform at BLM.

President Donald Trump said he would nominate Pendley to officially lead BLM in June but withdrew the nomination in September. Despite the withdrawal, Pendley continued to work atop the agency as deputy director of policy and programs with the director position vacant, which spurred Bullock’s litigation.

Bullock, who is running against Republican Sen. Steve Daines, argued in his initial lawsuit that Pendley’s tenure at BLM exceeded the allowable time for an acting director and his approval of two sweeping land resource management plans would allow oil and gas development on about 95% of Montana’s federal lands.

Following Morris’ ruling, Pendley has continued at BLM in his deputy director position but said he would not make decisions requiring the authority of the director.

Tester called Pendley’s continued role at BLM “disturbing” in light of the court decision.

Daines’ office blasted the bill as an effort to aid Bullock in the election.

“This is nothing more than political theatre. Chuck Schumer and Joe Biden put Tester up to this, simply to prop up his buddy Bullock’s election bid because they are desperate to give Schumer control over the Senate so they can pack the Supreme Court with activist, liberal, anti-energy, job killing Judges like Judge Morris in Montana,” spokeswoman Katie Schoettler said in a statement.

When asked about the political implications of the bill in the current election, Tester defended it and said he would not expect any action to happen on it before the election.

“This has been going on for 424 days, that’s well over a year, and we’ve been begging the administration for a vote, literally, and it’s not happening because they think Congress is a nuisance I believe,” he said. “… Quite frankly, I guess you can say everything done in Washington, D.C., is political but the truth is this is about a person who is unfit for the job to be removed.”

Bullock’s legal counsel Raph Graybill, who is running for Montana Attorney General, agreed with Tester that the Trump administration should formally nominate a BLM director.

“As the federal court found, the bureau has been without a Senate-confirmed leader for over 424 days,” he said in a statement. “It’s high time the administration follow the Constitution and appoint someone who has lawful authority to lead the agency.”