A federal judge ruled Friday that President Donald Trump’s leading steward of public lands has been serving unlawfully, blocking him from continuing in the position in the latest pushback against the administration’s practice of filling key positions without U.S. Senate approval.
U.S. Interior Department Bureau of Land Management acting director William Perry Pendley served unlawfully for 424 days without being confirmed to the post by the Senate as required under the Constitution, U.S. District Judge Brian Morris determined.
The ruling came after Montana’s Democratic governor in July sued to remove Pendley, saying the former oil industry attorney was illegally overseeing an agency that manages almost a quarter-billion acres of land, primarily in the U.S. West.
“Today’s ruling is a win for the Constitution, the rule of law, and our public lands,” Gov. Steve Bullock said Friday. Environmental groups and Democratic lawmakers from Western states also cheered the judge’s move after urging for months that Pendley be removed.
The ruling will be immediately appealed, according to Interior Department spokesman Conner Swanson. He called it “an outrageous decision that is well outside the bounds of the law,” and he said the Obama administration had similarly filled key posts at the agency with temporary authorizations.
It was not immediately clear if the administration will try to keep Pendley atop the bureau pending the appeal.
The land bureau regulates activities ranging from mining and oil extraction to livestock grazing and recreation. Under Trump, it has been at the forefront in the administration’s drive to loosen environmental restrictions for oil and gas drilling and other development on public lands.
Pendley has been one of several senior officials in the Trump administration running federal agencies and departments despite not having gone before the Senate for the confirmation hearings that are required for top posts.
Last month, the Government Accountability Office, a bipartisan congressional watchdog, said acting Department of Homeland Security Secretary Chad Wolf and his acting deputy, Ken Cuccinelli, were improperly serving and ineligible to run the agency under the Vacancy Reform Act. The two have been at the forefront of administration initiatives on immigration and law enforcement.
Trump agencies have defended the skipped deadlines for Senate hearings for administration nominees, saying that the senior officials involved were carrying out the duties of their acting position but were not actually filling that position, and thus did not require a hearing and votes before the Senate.
Pendley had been formally nominated by Trump to direct the land bureau in July, after being given temporary authorizations to the acting position several times by Interior Sec. David Bernhardt.
But the nomination was withdrawn earlier this month after the confirmation process threatened to become contentious, potentially disrupting key U.S. senate races in Montana, where Bullock is seeking to unseat incumbent Republican Steve Daines, and Colorado, where Republican Sen. Cory Gardner is being challenged by former Gov. John Hickenlooper.
Pendley continued to hang on to the post despite the withdrawal, under an arrangement that Pendley himself set up months ago. In a May 22 order, Pendley made his own position, deputy director, the bureau’s top post while the director’s office is vacant.
After establishing that succession order, Pendley’s actions included approval of two sweeping land resource management plans in Montana that would open 95% of federal land in the state to oil and gas development, attorneys for Bullock contended in court filings.
Administration officials had insisted in public statements and court filings that Pendley was not in fact the acting director, but rather “exercising the authority of the director.”
Morris rejected the administration’s argument saying they were “evasive and undermine the constitutional system of checks and balances.”
“Under the federal defendant’s theory, a president could ignore their constitutional appointment responsibility indefinitely and instead delegate authority directly or through cabinet secretaries to unconfirmed appointed officials. Such an arrangement could last for an entire presidential administration. In fact, the case before the Court presents that scenario,” he wrote.
The bureau’s holdings are sweeping, with nearly 1 out of every 10 acres nationally under its dominion, mostly across the U.S. West.
Pendley was a longtime industry attorney and property rights advocate from Wyoming who had called for the government to sell its public lands before joining the Trump administration.
After joining the government, he declared that his past support for selling public lands was irrelevant because his boss, Bernhardt, opposes the wholesale sale of public lands.
Trump’s actions to bypass the confirmation process has raised serious questions about the legitimacy of people in acting roles.
The GOP-led Senate typically is falling short of the votes needed from its ranks to confirm some of Trump’s choices. But as Trump bypassed the chamber, chipping away at its advise-and-consent role, the Republican leadership has also allowed the acting positions to stand.
Shortly after the GAO questioned the DHS officials, Trump formally nominated Wolf to the secretary post. A hearing was held last week in the Senate on his nomination, but it’s unlikely Wolf will be confirmed before the election.
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