Update, Oct. 19, 2020—U.S. District Judge Brian Morris handed Montana Gov. Steve Bullock a victory on Friday, invalidating long-term resource management plans for more than 800,000 acres of Bureau of Land Management wildlands in Montana and the state's plans to protect the habitat of the sage grouse. While the judge rejected a request by conservation groups to join Bullock's suit, he reminded them that they are free to sue over decisions William Perry Pendley might have made over the last 14 months, while acting illegally as the BLM's de facto leader. The BLM called Morris' rulings "erroneous" and said it was reviewing "all legal options."
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 redrock 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 soon fill this scene.
The day before, the U.S. Bureau of Land Management (BLM) 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 in comments to BLM.
The Uncompahgre plan, affecting 676,000 acres and nearly 1 million acres of subsurface mineral rights, was 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 natural 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 for Decades, Including Climate
Pendley's role in the Uncompahgre is potentially among dozens of public lands decisions across the West that could soon be under scrutiny by a federal court. Last month, Chief Judge Brian Morris of the U.S. District Court in Montana 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 his leadership as required by the U.S. Constitution and the Federal Vacancies Reform Act.
A controversial right-wing lands lawyer, activist and commentator, Pendley was briefly the Trump administration's nominee this 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 selling off public lands 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 Sept. 25, Morris ordered Pendley to stop acting as an official of the BLM and asked lawyers for Montana Gov. Bullock and the BLM for a list "to address what acts of Pendley ... should be set aside" from his 424 days as "acting" director.
Montana's lawyers offered a short list in a legal brief filed Oct. 5. Citing "unassailable evidence of Pendley's unlawful involvement," they pointed to amendments of the state's protection plans for sage grouse habitat and long-term resource management plans (RMPs) for 800,000 acres of land and more than 1.4 million acres of subsurface mineral rights. But they also seemed to invite others to step up with their own suggestions about policies and decisions tied to Pendley.
Leaders at the Interior Department, BLM's parent agency, have widely denounced the judge's ruling, and Secretary David Bernhardt promised to keep Pendley on BLM's management team while the administration appeals the federal judge's "erroneous" ruling that "fundamentally misinterprets the law."
In response to the judge's request for a list of dubious actions, Interior lawyers said Pendley hasn't made any illegal decisions, that authority had been "delegated" to him under long-standing practice.
"The court directed the parties to identify which 'acts of [William Perry] Pendley' should be set aside under the Federal Vacancies Reform Act and the Administrative Procedure Act," the Interior Department said in a statement. "From our [Oct. 5] brief to the court, the answer is simple: none."
Once the court finalizes its decision, the administration has 60 days to ask the 9th Circuit Court of Appeals to reverse Morris' order.
Meanwhile, the Interior Department and Pendley seem to be snubbing the Montana ruling. In an interview with the Powell Tribune in Wyoming on Tuesday, Pendley said he'd never been the BLM's "acting director." But 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."
"I have the support of the president," Pendley told the newspaper. "I have the support of the secretary of the interior and my job is to get out and get things done to accomplish what the president wants to do—which means increase recreational opportunities on federal land and to increase opportunities for jobs, so we can recover back to where we were pre-pandemic."
Bullock filed a supplemental briefing in the case late Friday highlighting the comments to underscore that the Trump administration has shown little regard for the judge's order requiring Pendley stop doing the BLM's business.
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 fuels from public lands account for nearly 24 percent 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's policies during the Trump administration have instead favored fossil fuel "energy dominance." "We need to figure out a smarter way to plan how we'll increase renewable generation, restoration and carbon sequestration. It's time for a smarter view."
On Tuesday, a group of 58 conservation groups wrote a letter urging that the interior secretary get ready to justify "functions and duties" performed by Pendley or "reviewed, approved and/or influenced" by him. Although their list is "by no means exhaustive," it includes everything from oil and gas regulations and royalty rates to expanding access for e-bikes, wild horse and burro management and the environmental review of tapping into the National Petroleum Reserve in Alaska.
The groups also say BLM's dubious actions include rewriting habitat conservation plans for the Greater Sage Grouse in seven states, along with two dozen revised and updated resource management plans like those that expanded oil and gas leasing in the Uncompahgre, Montana and the shrunken 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 only intensified, not only in the West but nationally and from other agencies. That's because the practice of delegating authority or using "acting" officials in key agencies is as common throughout the Trump administration as it is controversial.
An analysis by the Washington Post in February found that acting officials had been serving in Cabinet-level positions for over 2,700 days. Some of those officials, including the controversial Ken Cuccinelli and Chad Wolf at the Department of Homeland Security, have also been the subject of lawsuits. And, to many, this use of unconfirmed appointees undermines the intent of the Vacancies Act to keep government running temporarily while senators do constitutionally mandated "advise and consent" reviews for each presidential nominee.
According to the nonpartisan Congressional Research Service, this process applies to between 1,200 and 1,400 executive branch positions, including nearly a dozen leadership roles at the U.S. Interior Department, the BLM's parent agency. (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," said Tracy Stone-Manning, associate vice president for public lands at the National Wildlife Federation. "It's pretty clear that the Constitution says they [at the Trump administration] have to do that.
"They didn't, and a judge called them on it," she added. "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."
Pendley holding any leadership role at the BLM has been the source of complaints ever since it was announced he'd be joining the Trump administration July 29, 2019. He'd 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 had also worked to reverse the cancellation of a Louisiana company's oil leases on sacred land in the Badger-Two Medicine area near Glacier National Park in Montana that's sacred to the Blackfeet people.
On Twitter, environmental groups have started using the hashtags #FirePendley and #PinkSlipPendley.
Citing the Pendley ruling, Molvar's group has also joined the advocacy group, Public Employees for Environmental Responsibility, asking in a lawsuit for the removal of the temporary leader at 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 in August.
"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. "It is critical that appointees are able to pass the test of Senate scrutiny before they are put in charge of important federal agencies."
"Every American citizen can come out and camp on these lands and enjoy the wildlife, the wild horses, the free flowing streams and the fishing opportunities, the hunting opportunities and the recreation opportunities and the non-consumptive uses of wildlife rockhounding on these public lands, and so we all have a stake in their future," said Molvar, adding that the lands were originally indigenous lands.
"When you get a political appointee like William Perry Pendley, who decides, 'I'm going to sign over the future of these public lands to big industries and private corporations who are going to exploit these lands and leave them ruined and leave them desolate and leave them devoid of wildlife'," he said, "that's robbing from every American's birthright."
Conservation Groups Remain Vigilant
The western communities where the BLM is a fixture now find themselves in a tough position. Year to year, they muddle through the cooperative processes of trying to find balance between often conflicting land uses.
The BLM's mandate includes protecting wetlands used by wildlife, livestock and endangered species, conserving redrock landscapes 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. They're places where people want to enjoy scenic beauty, to hunt and to ride off-road vehicles.
The task has never been easy, but it has been a vital part of western life where federal lands sometimes account for more than 90 percent of all the land in a county. The rural West looks to BLM's resource management plans—basically gigantic, long-term zoning plans—to juggle the competing interests for decades into the future.
Ideally, ranchers and rock-climbers, oil and gas companies and off-road vehicle enthusiasts, bird-watchers and backpackers, city council persons and national conservation leaders all work shoulder-to-shoulder to guide the BLM's decisions.
Critics say that 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 against the wishes of more than 200 organizations who 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."
To Molvar, the use of serial temporary leaders in the agencies amounts to a "hostile takeover of public lands" by political extremists. "Fundamentally," he said, "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."
That won't end with Pendley staying on at BLM in another position, Molvar concluded. "So we're going to have to continue to be vigilant."
The same watchful and cautious approach is being taken at the Montana Wilderness Association. Aubrey Bertram, the group's Eastern Montana Field Director, said BLM's decisions on the Montana plans were "devastating...enraging and infuriating" since Montanans have such a strong connection with the outdoors.
"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, describing the Chain Buttes and Horse Camp Trail areas in what's often called the "wild heart of Montana," where the Pendley-era changes prioritized energy development over conservation.
"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 like small reptiles that are in there—really cool birds nests are like built into the sagebrush, all kinds of different flowers and plants with so many different medicinal uses, and it...smells so alive."
Bertram said humans don't have many opportunities anymore for experiences like that. That's why the fight to protect the land the way Monantans have advised BLM is crucial. "It's important to know that they're out there."