William Perry Pendley takes part in a electronic bike ride in Moab, Utah. Photo: Eric Coulter / Bureau of Land Management
With Pendley ousted, BLM decisions come under new scrutiny
William Perry Pendley’s ‘acting’ status as head of the Bureau of Land Management calls into question his rulings on energy leases, national monuments and conservation plans in Montana and across the American West.
Wednesday, October 21, 2020
Montana Free Press
The breathtaking view from the rim above Unaweep Canyon is what Erik Molvar remembers best from his trip last spring to western Colorado. Surrounded by the heady perfume of pinon and juniper, he saw red-rock cliffs rising from the green valley and heard the gentle music of dusk settling on the wild landscape of the Uncompahgre Plateau. Then a jarring thought spoiled his reverie.
Oil and gas rigs could fill this scene by the next time he returned.
The day before, the U.S. Bureau of Land Management had finalized a long-term management plan for the area that reflected the Trump administration’s “energy dominance” priority, not the wild landscapes overwhelmingly favored by the more than 2,500 Coloradans who’d sent comments to BLM.
The Uncompahgre plan, which applies to 676,000 terrestrial acres and nearly 1 million acres of subsurface mineral rights, is just one of dozens of decisions made under the oversight of the agency’s de facto director, William Perry Pendley
Molvar, who leads the conservation group Western Watersheds Project, said public lands like Unaweep Canyon should remain undeveloped to help people understand how healthy ecosystems look and to address climate change. Otherwise, he said, “we’re going to have a planet that is a dystopian nightmare to live in, and we’re not going to be able to fix the damage that we’ve done.”
WIDE-RANGING IMPACTS ACROSS THE WEST
The Uncompahgre plan is one among dozens of public lands decisions across the West that could soon come under scrutiny in the federal courts due to Pendley’s involvement.
Three weeks ago, Judge Brian Morris of the U.S. District Court in Great Falls ruled that it was unconstitutional for the Trump administration to put Pendley in charge
of the nation’s largest land agency for nearly 14 months because the Senate has never signed off on Pendley’s leadership, as required by the U.S. Constitution and the Federal Vacancies Reform Act.
Not only was Pendley ousted by that ruling, but in a final decision on Friday, Morris struck down three BLM decisions involving federal lands in Montana: long-term plans for greater sage-grouse habitat and resource management plans developed in the agency’s Lewistown and Missoula field offices.
“It is hard to measure the damage William Perry Pendley has done to America’s public lands, but this order rightly reverses several of the decisions made under his illegal watch,” said Tracy Stone-Manning of the National Wildlife Federation. “This administration has failed our public lands, and we’ll fight to rectify all of Mr. Pendley’s wrongs.”
A controversial right-wing property-rights lawyer, activist and commentator, Pendley was briefly the Trump administration’s nominee
last summer to become director of the BLM, which oversees about 245 million acres of public land — about one of every 10 acres in the United States — along with 700 million acres of subsurface mineral rights.
But Pendley, known as a supporter of transferring public lands to the states and for calling the Black Lives Matter movement a “terrible lie,”
was considered so unpopular that the White House withdrew his nomination within weeks. Had he been confirmed, Pendley would have been the first BLM director of the Trump administration.
On September 25, Morris ordered Pendley to stop acting as the BLM’s leader. He also asked lawyers for Montana Gov. Steve Bullock, who brought the suit, and the BLM “to address what acts of Pendley … should be set aside” from his 424 days as “acting” director.
Montana’s lawyers, citing “unassailable evidence of Pendley’s unlawful involvement,” pointed to amendments of the state’s protection plans for sage grouse habitat and long-term resource management plans for 800,000 acres of land and more than 1.4 million acres of subsurface mineral rights.
“This ruling affirms that there are consequences for the continued evasion of constitutional obligations to seek the Senate’s advice and consent,” said Bullock, a Democrat attempting to unseat
Republican U.S. Sen. Steve Daines. “Our public lands deserve better.”
Leaders at the Interior Department, BLM’s parent agency, have attacked the judge’s ruling, and Interior Secretary David Bernhardt promised to keep Pendley on BLM’s management team while the administration appeals Morris’ ruling to the 9th Circuit Court of Appeals. Interior Department lawyers contend that Pendley hasn’t made any illegal decisions and that authority has been “delegated” to him under long-standing practice.
Pendley seemed at first to reject the judge’s decision ousting him. In an interview with the Powell Tribune
in Wyoming, Pendley said he had never been BLM’s “acting director,” though that is the title the Interior Department sometimes used to describe him. Then he added, “I’m still here, I’m still running the bureau. I have always been from Day One … deputy director of policy and programs.”
Though Pendley reversed that position the next day in an interview with Wyoming Public Radio
and said he will comply with the judge’s order, Bullock later highlighted the earlier comments in a supplemental briefing to the court to underscore that the Trump administration has shown little regard for the judge’s order requiring Pendley stop overseeing BLM business.
BLM denounced the ruling Saturday in a statement to InsideClimate News, saying Bullock’s lawsuit “comes at the expense of the great people of Montana” and linking to a defense of the agency-approved resource management plans
“The court’s erroneous ruling continues to disregard basic facts and misapprehend the law,” the statement concluded, “and the [Interior] Department is reviewing all legal options to fight this outrageous decision.”
BLM DECISIONS HAVE CLIMATE IMPACTS
The administration’s position has clear implications for climate policy across the West. Jesse Prentice-Dunn, of the Center for Western Priorities, noted that fossil fuel production on public lands accounts for nearly 24% of the nation’s greenhouse gas emissions
“We need to make sure that our public lands are part of the climate solution,” he said, noting that BLM policies during the Trump administration have instead favored fossil fuel “energy dominance.”
The Pendley controversy has also become a factor in the Daines-Bullock Senate race, which is being closely watched for its potential to help flip the Senate to Democratic control.
Daines expressed support for Pendley as BLM director last fall. But after Trump formally nominated him for the position this summer, Daines’ press office told E&E News
he hadn’t made a final decision and “would have some very tough questions” for the nominee. Those comments were published the same week Bullock filed the lawsuit to have Pendley removed and his Montana decisions reversed.
The ruling was both a sting and a balm for conservationists. Last Friday, Judge Morris rejected a request by the Center for Biological Diversity, the Western Environmental Law Center, the Western Watersheds Project and WildEarth Guardians to join the lawsuit. But he also seemed to encourage them to file their own lawsuits.
“It remains probable that additional actions taken by Pendley should be set aside as unlawful,” he wrote. “Conservation Groups remain free to file suit in the appropriate federal district court to challenge land management decisions they have identified as potentially unlawful.”
The groups responded to the October ruling by vowing to try to overturn and invalidate at least 16 resource-management plans and other projects that open 30 millions of acres of public lands to oil and gas drilling, mining and grazing in Arizona, California, Colorado, Montana, Wyoming, Texas, Oklahoma, Kansas, Idaho and Utah, as well as coal and copper mining development.
Fifty-eight conservation groups have signed a letter urging the Interior Secretary to reconsider “functions and duties” performed by Pendley
or “reviewed, approved and/or influenced” by him. Their pages-long list of such functions includes BLM decisions in 15 states regarding oil and gas regulations and royalty rates, expanded access for e-bikes, wild horse and burro management, and environmental review regarding the National Petroleum Reserve in Alaska, among others.
The groups also say BLM’s potentially illegal actions under Pendley include rewriting habitat conservation plans for the greater sage-grouse in seven states and two dozen revised and updated resource management plans like those that expanded oil and gas leasing in Montana, the Uncompahgre and the Bears Ears and Grand Staircase Escalante national monuments in Utah.
Comparable to zoning master plans in a city or town, these plans set aside areas that will be prioritized over decades for habitat conservation, mining, grazing, logging and recreation.
“The court ruling makes it pretty clear that many of the activities Mr. Pendley directed are invalid,” said Nada Culver of the National Audubon Society. “Secretary Bernhardt can and should take stock of this situation to address the latest problems caused by Mr. Pendley’s invalid decisions or make plans to continue his string of court losses.”
Interest in the case and how far the Montana ruling might reach has expanded beyond the West into other federal agencies because the practice of delegating authority to “acting” officials in key agencies has been as common during the Trump administration as it is controversial.
An analysis by the Washington Post
in February found that acting officials have collectively served in cabinet-level positions for more than 2,700 days during Trump’s presidency. Some of those officials, including the controversial Ken Cuccinelli
and Chad Wolf
at the Department of Homeland Security, have been the subject of lawsuits. Critics say the use of unconfirmed appointees undermines the intent of the Vacancies Act to keep government running temporarily while senators perform constitutionally mandated “advise and consent” reviews for each presidential nominee.
According to the nonpartisan Congressional Research Service, that process applies to between 1,200 and 1,400 executive branch positions
, including nearly a dozen leadership roles at the Interior Department. (Advice and consent for judges is governed by a different process.)
“We were greatly concerned that the Department of Interior was trying to sidestep the Constitution and the Senate by installing Mr. Pendley into the director’s chair without advice and consent of the Senate,” the Wildlife Federation’s Stone-Manning said. “It’s pretty clear that the Constitution says they [the Trump administration] have to do that. ”
“They didn’t, and a judge called them on it,” she said. “And that now puts into question — if he was acting illegally as director — every single decision he made as director, and every decision that he had his thumb on the scale on as director is now in question. It’s a big mess.”
Chief Earl Old
Person of the Blackfeet Nation presents the Badger-Two Medicine Song
PENDLEY’S WORK AT INTERIOR WAS ALWAYS CONTROVERSIAL
Pendley holding any leadership role at the BLM has been the source of complaints ever since it was announced he would join the Trump administration on July 29, 2019. He had led the right-wing Mountain States Legal Foundation for three decades, fighting to shrink the boundaries of the Bears Ears and Grand Staircase national monuments in Utah. He’d also led a court fight to reverse the cancellation of a Louisiana company’s oil leases on land in the Badger-Two Medicine area
near Glacier National Park that’s considered sacred by the Blackfeet tribe.
Citing the Morris ruling, the Western Watershed Project has teamed up with the advocacy group Public Employees for Environmental Responsibility, asking in a lawsuit for the removal of the de facto leader of another Interior Department agency, the National Park Service. Interior Secretary David Bernhardt appointed Margaret Everson “to exercise the delegable authority of the director” at the park service two months ago.
“The Trump administration has been engaging in a pattern of illegal appointments as a means to dodge the transparency and accountability of the Senate confirmation process,” Molvar said in an interview. “It is critical that appointees are able to pass the test of Senate scrutiny before they are put in charge of important federal agencies.”
To Molvar, the serial use of these temporary department leaders amounts to a “hostile takeover of public lands” by political extremists.
“Fundamentally, Pendley is a symptom of the extremists on the right getting hold of Americans’ Western public lands and doing their best to destroy them and strip Americans of their ability to enjoy them,” he said.
That won’t end if Pendley stays on at BLM in another position, Molvar concluded. “So we’re going to have to continue to be vigilant.”
William Perry Pendley has been serving as a deputy director of the Bureau of Land Management since June 2019. Since the director’s post is vacant, he has effectively led the agency without being confirmed by the U.S. Senate. Photo: U.S. Department of the Interior
CONSERVATION GROUPS REMAIN WARY
The Western communities where BLM is a fixture now find themselves in a tough position. Year to year, they muddle through the cooperative processes of trying to balance often conflicting land use agendas. In Montana, BLM manages 27 million acres, nearly one-third of the state.
BLM’s mandate includes protecting wetlands used by wildlife, livestock and endangered species, and conserving public lands for climbing, biking, horseback riding and hiking in places where oil and gas companies want to drill and companies want to mine uranium, salt and other minerals.
The balancing act has never been easy, but it has been a vital part of life in Western communities where federal lands sometimes account for as many as 9 out of 10 acres in a county. The rural West looks to BLM’s resource management plans — basically gigantic, long-term zoning plans — to help juggle the competing interests for decades into the future.
Ideally, ranchers and rock climbers, oil and gas companies, off-road vehicle enthusiasts, bird watchers, backpackers, city council members and national conservation leaders all work shoulder-to-shoulder to guide BLM’s decisions.
Critics say the balance has been flipped on its head during the Trump administration. Stone-Manning pointed to the years-long cooperative efforts that went into the Montana plans that were scrapped during Pendley’s time in the Trump BLM over the wishes of more than 200 organizations that favored stronger environmental protections and less drilling. Stone-Manning calls it “wildly bad governing.”
“We just wasted so much time and money — taxpayer dollars,” she said. “And if it gets tossed out because it was done illegally, that means it’s going to cost money to do the work again, and cost time.”
The Montana Wilderness Association also remains watchful. Aubrey Bertram, the group’s eastern Montana field director, said BLM’s decisions about the Montana plans were “devastating … enraging and infuriating.”
“At first glance, one might think, ‘Oh, it’s just a bunch of grass, it’s just empty.’ But if you just sit there and just watch and immerse yourself in the landscape, it just comes to life,” she said.
Bertram was describing the Chain Buttes and Horse Camp Trail areas in what she describes as the “wild heart of Montana,” where Pendley-era changes re-prioritized energy development, but it could have been any number of wild places in Montana or across the West.
“You will begin to hear all kinds of different birds if you’re lucky,” Bertram said. “You’ll see deer or pronghorn or elk wander by, and my favorite thing to do up there is to get down on my hands and knees and get into the grass itself and get into the ecosystem that exists at that small level — different insects and small reptiles that are in there, really cool birds’ nests are built into the sagebrush, all kinds of different flowers and plants with so many different medicinal uses, and it smells so alive.”
Bertram said people don’t have many opportunities anymore for experiences like that. She said that’s why it’s crucial that BLM protects such lands, as so many Montanans have requested.
Judy Fahys writes for InsideClimate News and occasionally produces audio stories. She used to cover the West from Washington, D.C., but made a course correction and settled in Salt Lake City so she can actually enjoy the wild places (and people) in her stories. You can reach her at firstname.lastname@example.org
A version of this story was originally published by InsideClimate News
and appears here under a Creative Commons license
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