Federal Judge Removes Acting Director of Bureau of Land Management

In this Oct. 11, 2019, file photo, William “Perry” Pendley speaks at a conference for journalists in Fort Collins, Colo. (AP Photo/Matthew Brown)

(CN) — A Montana federal judge ruled Friday that Acting Director of the Bureau of Land Management William Perry Pendley has been unlawfully serving in the position for over a year.

Despite being on the verge of completing a full term in the White House, President Donald Trump has faced criticism for allowing a number of ranking administration officials to carry out official duties in an acting capacity only, and therefore without receiving any kind of official confirmation from the Senate.

Trump, for his part, has seemingly showed an openness to having an executive branch filled with acting directors and officials, telling reporters last year that “I sort of like ‘acting,’” and that it “gives me more flexibility.”

Perhaps nowhere is this more apparent than at the Bureau of Land Management, a crucial agency within the Department of the Interior that is responsible for overseeing and managing over 200 million acres of public land. During Trump’s term in office, five different individuals have served in some capacity as director of the BLM, but none of them have been officially confirmed by the Senate.

Current acting director Pendley was appointed by Secretary of the Interior David Bernhardt in July 2019 to serve as a deputy director, a position he held for just three months before becoming acting director. Pendley has served as acting director of the BLM ever since, even after his official nomination to lead the agency was withdrawn earlier this month.

Some have opted to take the Trump administration to task over its usage of acting directors, notably Democratic Montana Governor Steve Bullock. Earlier this year, Bullock filed a lawsuit against the BLM, Department of the Interior, Pendley and Bernhardt with allegations that the officials had violated the Federal Vacancies Reform Act by allowing Pendley to remain in office for so long without an official confirmation hearing.

“The Federal Vacancies Reform Act bars Presidents from circumventing the Constitution by putting people in charge of federal agencies before they are Senate-confirmed,” the complaint filed in July states. “But that is precisely what has happened here. Pendley’s tenure—and the actions the Bureau has taken, and continues to take during that tenure—violate the law.”

Bullock asked the court to declare that Pendley’s time at the BLM has been unlawful and that he should be stopped from carrying out any more official duties as an acting director.

On Friday, U.S. District Judge Brian Morris, an Obama appointee, did exactly that.

In a 34-page ruling, Morris found that while disagreements between the president and the Senate can result in delays regarding confirmation hearings on certain officials, and that there are some allowances given to ensure that a department can continue operating during transitional periods, such allowances only stretch so far.

“The President cannot shelter unconstitutional ‘temporary’ appointments for the duration of his presidency through a matryoshka doll of delegated authorities,” Morris wrote.

Morris specifically discussed a pair of memos and orders that made Pendley acting director in the first place, orders that used careful language to avoid designating Pendley as such — despite empowering him with acting authority and being repeatedly presented by the White House as an acting director. 

Morris pushed back on these linguistic efforts, saying that the department cannot use wordplay to avoid their constitutional and legal requirements.

The judge said that while the president does have broad discretion over who operates federal agencies, that discretion is not boundless and Pendley’s tenure as acting BLM director has clearly crossed the line. 

According to Judge Morris, his rise to acting director status did not “follow any of the permissible paths” set out by the law, Bernhardt lacked the authority to appoint him to the role in the first place and that Pendley has been unlawfully serving as an acting director at the BLM for exactly 424 days.

The judge officially halted Pendley from exercising any authority as a BLM director and ordered that Bernhardt cannot unlawfully delegate that authority.

Morris also asked both parties in the lawsuit to bring forward briefs on what actions Pendley took during his tenure at the BLM that should be set aside and voided, given that they were actions taken by a director without the proper legal authority to enforce them.

Representatives from Bullock and the BLM did not immediately respond to requests for comment Friday evening.

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