Top U.S. Lands official served unlawfully for over a year, a federal judge rules
By Maria Cramer
A federal judge in Montana has ordered William Perry Pendley, the acting director of the Bureau of Land Management, to leave the position after finding that he had served unlawfully as acting director for 424 days.
Pendley, who had held the job since he was “temporarily” appointed in July 2019, was also prohibited from using any authority to make decisions about federal lands. President Donald Trump nominated Pendley to fill the position on a permanent basis in July 2020 but withdrew the nomination this month.
“Pendley has served and continues to serve unlawfully as the Acting BLM director,” the judge, Brian Morris of the U.S. District Court for the District of Montana, wrote in a 34-page ruling he issued Friday.
Morris added that Pendley’s ascent “did not follow any of the permissible paths set forth by the U.S. Constitution.”
The ruling also prevented Interior Secretary David Bernhardt, who appointed Pendley, from picking another person to run the bureau.
Gov. Steve Bullock of Montana, who filed a lawsuit in July against Pendley and Bernhardt, called the ruling “a win for the Constitution, the rule of law, and our public lands.” Former Vice President Joe Biden, the Democratic nominee for president, cheered the decision Saturday, National Public Lands Day.
The ruling was a significant victory for Bullock, a former presidential candidate who is running for the U.S. Senate in a tight race against Steve Daines, the Republican incumbent.
The Bureau of Land Management has been without a Senate-confirmed director since Neil Kornze left in January 2017. Since then, five people have been appointed to the position — and none received Senate approval.
Conner Swanson, a spokesperson for the Interior Department, said the ruling was “an outrageous decision that is well outside the bounds of the law.”
“It betrays long-standing practice of the department going back several administrations,” he said in an email. “We will be appealing this decision immediately.”
The department noted that under President Barack Obama’s leadership, Mary L. Kendall, the department’s former deputy inspector general, served as acting inspector general for years even though the Senate never confirmed her appointment. Kendall resigned in 2019, shortly after her office opened an investigation into ethical complaints about Bernhardt, a former lobbyist for the oil and agribusiness industries.
“The department is unaware of any Democrat voicing similar concerns related to this issue during the Obama administration,” the department said.
Morris, who was appointed by Obama, said that Pendley, by staying on as acting director while his nomination was pending, had violated the Federal Vacancies Reform Act, which limits how long an official can remain in a vacant position without Senate confirmation. The vacancies act prohibits people from serving as an acting officer in a position they have been nominated to hold permanently or if they held the acting position for more than 210 days, according to Morris.
The bureau manages 245 million acres of federal public lands and 700 million acres of subsurface acreage, which holds 30% of the country’s minerals, according to the bureau. Nearly a third of the land in Montana is owned by the federal government, according to the lawsuit filed by Bullock.
Former directors of the agency have criticized the appointment of Pendley, who has been public about his disdain for preserving federal land. In 2016, he wrote in National Review that “the Founding Fathers intended all lands owned by the federal government to be sold.”
In the same magazine, he expressed sympathy for Cliven Bundy, the rancher who led an armed standoff with the federal government over the bureau’s seizure of his cattle in an attempt to force him to pay decades of back fees for grazing his cattle on federal land.
Pendley has also mocked court rulings that sided with Native Americans on their religious claims to sacred sites on federal land.
The lawsuit filed by Bullock said that under Pendley’s leadership, the bureau had walked away from a previous agreement to protect sage brush habitat, which is vital to the conservation of sage grouse.
Under Pendley, the bureau also pushed plans that would reduce protections for fish and wildlife habitats, cultural resources and recreational uses of federal lands in Montana, according to the complaint.
The lawsuit also said: “Over the last three years, in which the bureau has had no Senate-confirmed director, the agency has offered hundreds of oil and gas leases on land designated as priority habitat and general habitat.”