Ready for some good news? Following a lawsuit filed by Montana governor Steve Bullock, on Friday a federal court ruled that William Perry Pendley’s tenure running the Bureau of Land Management was illegal and immediately ordered an end to his authority. The decision has the potential to invalidate hundreds of decisions issued by the agency, dating all the way back to July 2019, when Pendley first assumed the role.
The actions threatened by the ruling include everything from oil development in the Arctic National Wildlife Refuge (ANWR), to a new rule that permits electric bicycles to be operated on federal lands, and even mineral extraction on lands that used to be a part of Grand Staircase–Escalante National Monument. It’s potentially an unraveling of nearly every anti-public-lands, pro-extraction effort taken by the Trump administration over the past 14 months, and the ramifications of all that go much further, too.
Wait, Who Is This Guy?
Pendley is the mustachioed face of the lands-transfer movement, an effort by the oil and gas industries to steal public land from American citizens. After a brief tenure working for James Watt, Ronald Reagan’s secretary of the interior—during which he almost succeeded in forcing the sale of 5 percent of all public lands—Pendley joined the Mountain States Legal Foundation and spent the next three decades of his life in search of dubious legal arguments he could twist into his anti-public-lands agenda.
Pendley is also an opinion writer who has authored a variety of pieces expressing racist, homophobic, anti-immigrant, anti–Native American, and anti-science ideas. An oft-repeated topic is his argument that public lands represent “tyranny.”
No one’s quite sure how it happened, but sometime during July 2019, this comic-book villain appeared atop the BLM’s org chart. Soon after, interior secretary David Bernhardt (also a lobbyist for the oil and gas industries) appointed Pendley to the position of acting BLM director.
The Department of the Interior oversees the BLM, the National Park Service, the U.S. Fish and Wildlife Service, and several other agencies that manage federal lands and waters, Indian affairs, and extractive industries. The DOI’s leader—the interior secretary—is a cabinet-level position within the executive branch. Both that position, as well as the directors of its various agencies, require confirmation by Senate vote, as the BLM runs 247 million acres of public land, one-eighth of our country’s landmass.
Bernhardt went on to “redelegate” Pendley’s authority roughly every 90 days, in an effort to keep him in the role without confirmation. Pendley was eventually nominated for an official role in late July of this year, only to have that nomination withdrawn two weeks later, after GOP senators in swing states apparently complained that voting for him could scupper their attempts to greenwash their images ahead of the November election.
As if this whole thing couldn’t get more ridiculous, it turns out that Pendley himself actually authored and authorized the succession order that altered the agency’s normal leadership heirarchy, allegedly permitting him to lead.
What Happened on Friday?
If most of the above sounds flagrantly illegal to you, then count yourself in good company, because a federal judge agrees.
“Pendley has served and continues to serve unlawfully as the acting BLM director,” wrote Brian Morris of the U.S. District Court for the District of Montana in his decision. He found that Pendley’s role “did not follow any of the permissible paths set forth by the U.S. Constitution.”
The judge not only ruled that Pendley’s entire 424-day tenure atop the agency was illegal, but it also prevented Secretary Bernhardt from picking any other person to run the agency.
Perhaps the most interesting part of the ruling, though, is what comes next. Morris has given both the DOI and Montana Governor Bullock (who brought the suit) ten days to file briefs explaining what aspects of Pendley’s work at the BLM should be retained or further litigated.
What’s on the Table?
In a phone call with Outside, Jayson O’Neil, who runs the Western Values Project, a public-lands advocacy group, asked: “If Pendley’s tenure was illegal, would challenging policies and decisions in a case-by-case manner or challenging everything the bureau has done in the last 424 days make sense?”
It seems certain that Governor Bullock will at least challenge the rulemaking around protections for two areas in southwest Montana that led to his lawsuit. But in talking to various conservation organizations, lobbyists, lawmakers, and lawyers while putting together this article, one conclusion was universal: this ruling potentially invalidates hundreds of rules, permits, and decisions made since July 2019. Most of those decisions have been in favor of extractive industries, often against the stated will of the public, and without consideration for climate change or impacts to our nation’s biodiversity.
The Western Values Project has compiled an initial list of 85 specific policy actions and 500 rate cuts and suspensions for extraction leases that could be impacted, in addition to the areas cited in Governor Bullock’s suit. The ruling could also open up the potential for litigation or legal discovery around the BLM’s controversial relocation of its headquarters from Washington, D.C., to an office building in Grand Junction, Colorado, that’s shared with oil and gas firms. There’s speculation that if Pendley can be shown to have participated in any of the above, then those actions could be ruled illegal as well.
“The scale of all this is mind-boggling,” one congressional staffer, who wishes to remain anonymous, told me during a phone call. The staffer says that, while all of this is certainly capturing the attention of lawmakers, they’re currently taking a hands-off approach while the original suit remains ongoing, and they may wait until further lawsuits (described as “inevitable”) are filed before bringing the matter before Congress. I asked about a time line for that and was told it could happen “next year.”
How Far Can This Go?
The issues raised here promise to go beyond murdering polar bears for profit via an Endangered Species Act rollback. They also threaten the Trump administration’s practice of using “acting” officials in roles that require Senate confirmation. Currently 133 of the over 750 roles in the federal government that require Senate confirmation remain unfilled. These include everything from the secretary of homeland security to the director of the National Park Service. The Pendley ruling doesn’t just put a legal stamp of disapproval on this practice, it threatens to invalidate, or at least open up to legal scrutiny, all actions taken by these illegally acting officials as well.
But it looks like the polar bears are going to get their day in court, too. The environmental impact statement that was used to inform the DOI’s decision to permit drilling on the ANWR coastal plain—a crucial polar bear denning habitat—was conducted by the BLM under Pendley’s management. If the statement is found to be part of Pendley’s illegal management, then the rulemaking it was used to inform could be deemed illegal as well.
“If I was looking to invest in a drilling project, it wouldn’t be in ANWR anytime soon,” O’Neil said. “My opponents advocating for oil and gas always talk about one thing—regulatory certainty. And Bernhardt has ensured there will be little of that, not just in ANWR but across all the rest of the BLM land, too.”
Rulemaking and permitting conducted by the BLM typically remain in place for decades. This facilitates the massive capital investments necessary to build new extraction sites and the infrastructure required to support them. With so many decisions about to face legal scrutiny, doing business with the BLM just became a whole lot costlier and less certain. It just doesn’t look like the Trump administration’s enthusiasm for drilling has been matched with competence.
“We’re still assessing the policy impacts of his tenure, but it’s already clear that no user of public lands should have put any faith in this administration or Mr. Pendley to provide them with any certainty about anything,” said House Natural Resources Committee chair Raúl Grijalva in a statement.
“Perhaps this is why we see we’re seeing so much interest from the business community in Democrats this year,” said the anonymous congressional staffer, who pointed toward the unprecedented endorsement that the U.S. Chamber of Commerce—a pro-business lobbying group—just made for 23 Democrat incumbents facing difficult reelection battles in the House of Representatives as an example.
For its part, Bernhardt’s DOI has stated that it plans to appeal the Pendley ruling. We’ll be following this one closely.
by Wes Siler via Outside Magazine: All
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