A federal judge’s ruling last week that William Perry Pendley served illegally for more than a year as the Bureau of Land Management’s acting director is raising questions about the legality of the decisions he made during that time.
Locally, these include actions he took in connection with the agency’s national headquarters move to Grand Junction and his role in the BLM’s issuance of a controversial resource management plan for its Uncompahgre Field Office.
More broadly, the Western Values Project on Tuesday said a cloud of legal uncertainty looms over BLM approvals of things such as resource management plans and travel plans elsewhere, a rule streamlining royalty rate reductions for mining of non-energy solid minerals like sodium bicarbonate, oil and gas regulation and production valuation rollbacks and royalty rate cuts, revisions of protections for greater sage-grouse habitat, and more, including the headquarters move.
“There’s more questions than answers” about the implications of last week’s ruling, said Jayson O’Neill, director of the Western Values Project.
Brian Morris, chief judge of the U.S. District Court in Montana, ruled last week that Pendley “served unlawfully” for 424 days as acting director. Morris, who was appointed to his job by Barack Obama, found that Pendley served as acting director without following “permissible paths” set forth by the U.S. Constitution or Federal Vacancies Reform Act, neither being confirmed by the Senate nor falling in the permitted category of people who can serve in an acting capacity.
Morris barred Pendley from exercising the authority of BLM director.
The ruling came in a suit brought by Montana Gov. Steve Bullock, a Democrat, over issues including two resource management plan approvals there. Morris gave parties 10 days to file briefs on what acts by Pendley, including but not limited to decisions related to those plans, should be set aside.
“The Court recognizes that any ‘function or duty’ of the BLM Director that has been performed by Pendley would have no force and effect and must be set aside as arbitrary and capricious,” Morris wrote.
He wrote that those acts “appear to include, but not be limited to,” the two Montana management plans.
“It’s kind of unclear what kind of impact it’s going to have downstream on all non-Montana cases,” Scott Braden, interim director of the Western Slope Conservation Center based in Paonia, said of the ruling.
“… However, I think that this does cast a shadow over anything during (Pendley’s) tenure,” Braden said.
That could include the BLM approval of the Uncompahgre plan, which is the subject of two lawsuits by groups including Braden’s. The suits challenge in part the amount of oil and gas leasing it allows in places such as the North Fork Valley and what level of restrictions apply to energy development activities.
The decision on that plan was signed by Colorado BLM Director Jamie Connell. But Pendley had at least one decision role in it, resolving protests over it, a role he also performed in the case of the Montana plans.
Braden said attorneys in the lawsuit his group is involved with are reviewing the Montana ruling, and while he hopes it might help with their suit, “it’s also just too early to tell.”
Tracy Stone-Manning with the National Wildlife Federation said there’s “no gray there” when it comes to Pendley and the Uncompahgre plan. He handled the protests, which is a duty and function of the BLM director, so the plan should be voided, she said.
Kathleen Sgamma, president of the Western Energy Alliance, doesn’t understand how the legitimacy of a plan Pendley didn’t sign can be questioned, and said raising the issue of his handling of protests is “a real stretch.”
She added, “Judge Morris is an activist judge who’s already had to be overturned by the Supreme Court in an emergency ruling a few months ago. His ruling extends way beyond his powers as a federal judge. He rules as though he exercises the power of all three branches of government as enumerated in the Constitution. I would anticipate the government will appeal this obvious infringement on the Executive Branch.”
Dan Jorjani, solicitor of the Department of the Interior, said in a statement that Interior “believes this ruling is erroneous, fundamentally misinterprets the law and unreasonably attempts to up-end decades of practice spanning multiple presidential administrations from both parties. Nevertheless, the Department will comply with the Court’s Order, while we move forward with an appeal and review all other legal options.”
Pendley ran the BLM while also serving as its deputy director of policy and programs, mostly as a result of temporary orders issued by Interior Secretary David Bernhardt, and Pendley retains his deputy director role. Jorjani said Bernhardt “will continue to rely on the Bureau of Land Management’s superior management team, specifically Deputy Director for Policy and Programs William Perry Pendley, who will continue to serve in his leadership role at the Bureau of Land Management.”
As for how the Morris ruling might pertain to the headquarters relocation, the decision by Interior and the BLM to make that move occurred before Pendley became acting director. The agency this year has been moving some 40 jobs to its new national headquarters in Grand Junction, and many more Washington jobs to other locations around the West, in an action the Trump administration says will put top BLM officials closer to the lands they manage and the people their decisions affect.
While the relocation decision wasn’t Pendley’s, he has led the relocation itself, including working with affected employees, some of whom chose options such as retirement or reassignment to other federal jobs rather than moving.
Stone-Manning said Pendley “was the face of the move,” with hundreds of people being affected, “so I think it puts the onus on the Department of Interior to show that the move is not subject to the court’s order.”
She said “there’s going to be a lot of scrambling on the taxpayer dime” to determine which Pendley decisions are valid and which aren’t based on the ruling.
“We just shouldn’t be in this spot,” said Stone-Manning.
She said she hopes that the takeaway is that officials “can’t abuse the procedures and get away with it.”