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Montana Governor Sues to Oust De Facto Land Bureau Chief (1)

July 21, 2020, 3:46 PM; Updated: July 21, 2020, 4:43 PM

The governor of Montana filed a federal lawsuit late Monday alleging that William Perry Pendley should be removed as de facto director of the Bureau of Land Management because his appointment was illegal.

The complaint by Gov. Steve Bullock (D) alleges that the Interior Department is violating federal law by allowing Pendley to continue directing the bureau while he awaits Senate confirmation and that a series of Interior orders granting Pendley the authority of the bureau’s director was also illegal.

“The Federal Vacancies Reform Act bars Presidents from circumventing the Constitution by putting people in charge of federal agencies before they are Senate-confirmed. 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 said in the complaint, filed in the U.S. District Court for the District of Montana.

Bullock is a candidate for Senate in Montana, where public lands are widespread.

No Confirmed Director

The land bureau has operated without a Senate-confirmed director during the entire Trump administration so far. The post is a powerful one that is central to Trump’s fossil fuels-focused “energy dominance” agenda: It oversees 245 million acres of federal public lands in the West and all federally owned onshore oil, gas and coal nationwide.

Pendley, who is officially the land bureau’s director of policy and programs, was given director’s authority in July 2019 without being named an “acting” director as defined by the Federal Vacancies Reform Act.

He spent decades as an attorney questioning the legitimacy of federal ownership of public land and was nominated by President Donald Trump in July to become the director of a bureau that oversees those same public lands.

“Pendley himself holds extreme, unpopular views on public lands and has acted in accordance with those views during his tenure as acting director,” Bullock said in the complaint. “His nomination, therefore, is likely to languish in the Senate for months and extend his unlawful tenure as acting director through the remainder of this presidential term.”

‘Frivolous’ Lawsuit

The Interior Department dismissed the legitimacy of Bullock’s lawsuit Tuesday, saying Pendley has never been the acting director of the land bureau, even though he has served as director without Senate confirmation.

“This is a frivolous and politically motivated claim that has no legal standing. Governor Bullock should do a little legal research before wasting everyone’s time with this nonsense,” Interior Department spokesman Conner Swanson said.

Swanson said Pendley’s post doesn’t break the law because the Federal Vacancies Reform Act requires the “first assistant” to an agency director to become acting director when the director departs, but that position wasn’t filled.

“When the BLM director position was vacated, Mr. Pendley wasn’t in the ‘first assistant’ position to be an acting director, therefore he never was ‘acting,’” Swanson said. “The Secretary issued a Secretary’s Order delegating him the more limited responsibility of ‘exercising the authority of’ the BLM director.

The lawsuit has been assigned to Judge Brian Morris, who in recent months has ruled against the land bureau in lawsuits related to oil and gas leasing.

Separately, the environmental groups Public Employees for Environmental Responsibility and Western Watersheds Project in early July asked the U.S. District Court for the District of Columbia to update their May lawsuit, in a play to remove Pendley for the same reasons.

Call for Hearing

Sen. Jon Tester (D-Mont.) led a call from nine Western Democratic senators on Tuesday for the Senate Energy and Natural Resources Committee to expedite Pendley’s confirmation hearing. The senators said they want Pendley’s lifelong opposition to federal ownership of public lands to be more publicly exposed.

The committee hasn’t yet set a date for Pendley’s confirmation hearing.

“After nearly a year as Acting Director, Mr. Pendley’s formal nomination is long overdue, and the public deserves the opportunity to hold him accountable for his record of undermining our public lands, clean water, and jobs that rely on both,” the senators wrote in a letter to committee chair Sen. Lisa Murkowski (R-Alaska) and ranking member Sen. Joe Manchin (D-W.Va.)

The letter was co-signed by Sens. Ron Wyden (D-Ore.), Martin Heinrich (D-N.M.), Tom Udall (D-N.M.), Jacky Rosen (D-Nevada), Jeff Merkley (D-Ore.), Michael Bennet (D-Colo.), Dianne Feinstein (D-Calif.) and Kamala Harris (D-Calif.).

Cause of Action: Violation of Federal Vacancies Reform Act and Administrative Procedure Act.

Relief: Declaratory and injunctive relief.

Attorneys: Chief legal counsel Raphael Graybill and deputy legal counsel Rylee Sommers-Flanagan represent the Office of the Governor. Gupta Wessler PLLC in Washington, D.C., represents plaintiffs Steve Bullock and the Montana Department of Natural Resources and Conservation.

The case is Bullock v. Bureau of Land Management, D. Mont., No. 4:20-cv-00062, 7/20/20.

(Updates with additional reporting throughout.)

To contact the reporter on this story: Bobby Magill at bmagill@bloombergindustry.com

To contact the editors responsible for this story: Gregory Henderson at ghenderson@bloombergindustry.com; Rebecca Baker at rbaker@bloombergindustry.com

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