Federal judge finds Pendley illegally headed the BLM for nearly half of his tenure
HELENA, Montana––Wild horse nemesis William Perry Pendley was on September 25, 2020 removed from his position as acting director of the Bureau of Land Management by Chief District Judge Brian Morris of the U.S. District of Montana.
Morris ruled that Pendley has served unlawfully, without U.S. Senate confirmation, for 424 days, more than twice as long as a presidentially appointed department head is permitted to serve before being confirmed under the Federal Vacancies Reform Act of 1998.
“Morris additionally ruled that Secretary of the Interior David Bernhardt cannot pick another person to run the Bureau of Land Management as its acting head because that person must be appointed by the President and Senate-confirmed,” reported Kyle Feldscher and Andy Rose of CNN.
Verdict to be appealed
The Morris verdict “will be immediately appealed, according to Interior Department spokesman Conner Swanson,” wrote Matthew Brown of Associated Press, adding “It was not immediately clear if the [Donald Trump] administration will try to keep Pendley atop the bureau pending the appeal.”
Pendley, at age 75, a year older than Trump, may be ushered into retirement as a political liability to the Trump re-election campaign, or may be vigorously defended as one of the most outspoken voices for Trump administration policies pertaining to mineral and energy extraction from public lands, with longstanding endorsements from representatives of several western militias.
The Morris verdict could be appealed initially to the Ninth District U.S. Court of Appeals, long considered the federal bench most favorable to environmental concerns and the least favorable toward the Trump administration.
A justice short of a bench
The appellate verdict could then be appealed to the U.S. Supreme Court, currently short a member due to the September 18, 2020 death of Justice Ruth Bader Ginsberg.
President Trump, however, has nominated Seventh Circuit federal appellate Judge Amy Cohen Barrett to succeed Ginsberg. Barrett is likely to be confirmed by the U.S. Senate before an appeal on behalf of Pendley could reach the Supreme Court, meaning that such an appeal would be heard by a court whose members include six avowed conservatives, three Trump appointees among them.
Meanwhile, the Morris verdict means that Pendley directives issued since February 2020, at least, may be contested as illegal.
This could include a May 2020 order excluding wild horse advocates from visiting the estimated 37,000 wild horses who have been removed from Bureau of Land Management property and are now being boarded by private contractors at what are called Public Off-Range Pastures.
Access to Public Off-Range Pastures has been denied, under Pendley, purportedly due to concerns about spreading the COVID-19 coronavirus.
Which Pendley orders must be vacated?
Judge Morris “gave both sides of the case 10 days to file briefs about which of Pendley’s orders must be vacated,” reported Feldscher and Rose.
Ruling on a lawsuit filed in July 2020 by Steve Bullock, currently governor of Montana and the Democratic candidate for an open U.S. Senate seat, Morris wrote in his verdict that “Pendley has served and continues to serve unlawfully as the Acting BLM Director. His ascent to Acting BLM Director did not follow any of the permissible paths set forth by the U.S. Constitution or the (Federal Vacancies Reform Act). Pendley has not been nominated by the President and has not been confirmed by the Senate to serve as BLM Director.”
Pendley was appointed by Interior Secretary David Bernhardt. However, found Judge Morris, “Secretary Bernhardt lacked the authority to appoint Pendley as an Acting BLM Director under the Federal Vacancies Reform Act. Pendley unlawfully took the temporary position beyond the 210-day maximum allowed by the Federal Vacancies Reform Act.
“Unlawfully serves as Acting BLM Director”
“Pendley unlawfully served as Acting BLM Director after the President submitted his permanent appointment to the Senate for confirmation––another violation of the Federal Vacancies Reform Act. And Pendley unlawfully serves as Acting BLM Director today,” Judge Morris emphasized.
Officially identified as Bureau of Land Management deputy director for policy and programs in July 2019, Pendley had previously headed the Mountain States Legal Foundation for nearly 30 years, lobbying and litigating to undercut BLM authority
“Pendley was nominated to be the permanent director of the agency in July 2020,” Feldscher and Rose recounted, “but the Trump administration withdrew his nomination in September 2020 after a series of controversial statements [by Pendley], including saying that climate change is not real and falsely saying that there was no credible evidence of a hole in the ozone layer, were made public by CNN’s KFile,” an investigative news broadcast directed by Andrew Kaczynski.
Pendley made himself head honcho
Observed Brown of Associated Press, “Pendley continued to hang on to the [BLM leadership] 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,” Brown added, “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.”
Noted Feldscher and Rose of CNN, “The BLM manages 244 million acres of federal lands in the United States––one out of every 10 acres of land in the country––along with 30% of the nation’s minerals. Pendley became the fifth person to lead the bureau on a temporary basis after the departure of director Neil Kornze less than a year into the Trump administration.”
At the forefront of Trump policies
Elaborated Brown, “The BLM “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,” Brown continued, “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.”
In August 2020, Brown recalled, “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 Federal Vacancy Reform Act. The two have been at the forefront of administration initiatives on immigration and law enforcement.”
“Scapegoating wild horses”
Remembered the American Wild Horse Campaign in a prepared statement after the Trump administration withdrew the nomination of Pendley to become director of the Bureau of Land Management, “As acting BLM director, Pendley absurdly called America’s beloved wild horses an existential threat to the public lands, when these iconic animals are not even present on 88% percent of the lands his agency manages. Pendley’s brazen scapegoating of wild horses for environmental damage caused by livestock grazing and other commercial industries drew scorn from conservationists and wild horse advocates alike.”
Pendley was vocally eager to dispose of as many as 45,000 wild horses now in holding pens, including those in Public Off-Range Pastures, plus about 68,000 of the estimated 95,000 wild horses now roaming BLM land leased to ranchers in 10 western states.
But while working to ease restrictions on the sale of wild horses who may be trucked to slaughter in Canada and Mexico to serve what horse meat export markets still exist, Pendley downplayed the increasingly dim prospect of reviving horse slaughter for human consumption within the U.S.
Wild horses “causing havoc,” Pendley said
Returning the U.S. wild horse population to the officially estimated sustainable level of about 27,000, without mass roundups for slaughter, would take 15 years and $5 billion of investment, acting Bureau of Land Management director William Perry Pendley told Scott Sonner of Associated Press on October 23, 2019.
“I’m not going to speculate on what Congress is going to do about money,” Pendley told Sonner.
Pendley expanded upon his remarks of October 12, 2019, when, concluding a plenary address to nearly 700 members of the Society of Environmental Journalists in Fort Collins, Colorado, he said, “I’ll get really in the weeds. I think the biggest issue I see [for the Bureau of Land Management] is the wild horse and burro issue. We have 88,000 wild horses and burros on our western federal lands. They are causing havoc on the lands.”
Pendley avoided discussion of global warming, oil and gas leasing, mining, water rights, and severely weakened enforcement of the Endangered Species Act under the Trump presidential administration, among a long list of other urgent topics.