Pendley Is Ousted, but Interior Continues to Protect Its Illegal Hire

September 30, 2020 | 4:22 pm
Maria Caffrey
Former Contributor

It has been an absolute rollercoaster of a week for anyone who cares about our public lands. It all started last Friday when a federal judge ruled that the Bureau of Land Management’s (BLM) beleaguered acting director should be removed from his illegally held position.

The BLM has gone four years without a Senate-approved director since Neil Kornze left the role in 2017. Since then, William Pendley was the agency’s fourth acting director after being assigned the position in July 2019. However, his tenure has been far from typical as President Trump waited almost a year to formally nominate him for Senate approval before withdrawing the nomination last month after fierce backlash from environmental groups and others.

Typically, an unsuccessful attempt at Senate approval results in the candidate being removed from their acting role so that someone better qualified could fill it, but that was not the case here.  Instead Pendley was allowed to continue illegally leading the agency, despite a seemingly unlimited number of conflicts of interest, which resulted in a federal court case challenging the constitutionality of his assignment.

So it was a sweet relief when I heard that the federal courts had finally ruled that Pendley should be removed from his position. Indeed it should be celebrated that a man who once claimed that the founding fathers intended for all public lands to be sold and that climate science is “junk science” is no longer the acting leader of a federal agency that manages 10 percent of the US landmass.

This relief, however, turned to profound disappointment on Monday when Interior Secretary Bernhardt announced in a show of full support that he would retain Pendley in his current role as Deputy Director of Policy and Programs and simply remove “exercising the authority of the director” from his title – thereby allowing him to continue to exert significant influence towards his anti-public lands agenda.

Acting in violation of federal law

Federal law requires that any “temporary” appointment should not exceed 210 days, which Mr. Pendley far exceeded by serving 424 days as acting director. In June this year the Trump administration announced a new attempt to have Pendley confirmed by the Senate after the BLM and National Park Service were sued for their illegal hiring practices. These hiring practices were in violation of the Federal Vacancies Reform Act of 1998 and described by my colleague Andrew Rosenberg as “just one more example of this administration ignoring laws that it finds inconvenient despite swearing to uphold those laws.”

Last month Montana Governor Steve Bullock filed a motion with the courts asserting that Pendley’s tenure as acting director was unconstitutional, which led to Friday’s decision that Pendley must be removed from the role of acting director.

A win, for now

Beyond Pendley’s removal as acting director, this decision has also opened the door to anyone who would like to challenge decisions Pendley made during his illegal tenure, including the BLM’s controversial relocation to Colorado and a number of oil and gas leases.  (Though that would not prevent the next acting director, whoever that may be, from trying to reissue those orders.)

The bigger issue though is that Pendley is still at the BLM in a leadership role. To the casual observer, it might seem the removal of his acting director title means that Pendley will no longer wield any power at the BLM, yet the agency’s updated organizational chart still shows him atop the chain of command — albeit accompanied by Deputy Director of Operations Michael Nedd, who will presumably be given the new official title of acting director.

It is highly irregular for an administration to go four years without successfully gaining Senate approval of a director for such a large federal agency. And once again the BLM is now without a leader, which raises the question: Is it better for the agency to be led by the wrong person or by no one at all? The answer of course is that both cause harm, and that an actually qualified person should be put in place as quickly as possible.

It is not normal for an administration to so blatantly ignore federal laws such as the Federal Vacancies Reform Act. These actions undermine our democracy and erode public trust in our federal agencies. Still, for anyone who cares about protecting public lands, Friday’s court decision is something to feel positive about—and motivation to continue our fight against such actions and do everything we can to protect the people’s lands.