Federal judge strips public lands acting director from role after serving unlawfully
Acting BLM Secretary William Perry Pendley. (Photo provided by Democratic staff of the Natural Resources Committee)

Flying under the radar last Friday, September 25, was news of a court ruling dealing yet one more blow to Trump’s continued drive to take from the people what belongs to them.

A federal judge ruled that Trump’s chief steward of public land had been serving unlawfully, and blocked him from continuing in that position, as part of the latest push against the administration’s practice of filling key positions without Senate approval

William Perry Pendley, acting director of the U.S. Interior Bureau of Land Management, served unlawfully for 424 days without being confirmed by the Senate as required under the U.S. Constitution, ruled Judge Brian Morris.

This ruling comes after Montana’s Democratic governor sued to remove Pendley back in July, arguing the former oil industry attorney was illegally overseeing an agency tasked with managing almost a quarter-billion acres of land, primarily in the western United States.

Morris also noted in his ruling that, “the President cannot shelter unconstitutional ‘temporary’ appointments for the duration of his presidency through a matryoshka doll of delegated authorities.”

Commenting on Friday’s ruling, Gov. Steve Bullock said it was “a win for the Constitution, the rule of law, and our public lands.”

As expected, (by this “law and order” president) the ruling will be appealed immediately according to Interior Department spokesperson Conner Swanson. He called it “an outrageous decision that is well outside the bounds of the law,” also saying that the Obama administration had similarly filled key posts at the agency with temporary authorizations.

For now, the agency will accept the judge’s orders as the appeal is pending, officials said. This will also force the Interior Department to address questions over the legitimacy of all decisions made by Pendley, including his approval of land use plans in Montana which Morris said the acting director was not authorized to make.

“The Court recognizes that any function or duty of the BLM Director that has been performed by Pendley would have no force and effect and must be set aside as arbitrary and capricious,” wrote Morris.

Pendley has been just one of several senior officials in the Trump administration running federal agencies and departments despite not going before the Senate.

Trump agencies have defended the skipped deadlines for Senate hearings, saying the senior officials involved were only 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, like others, had been formally nominated by Trump to the BLM position in July, but the nomination was withdrawn early September after the confirmation process was seen as becoming politically tense, and could potentially disrupt U.S. Senate races in Montana, where Bullock, sa Democrat, is fighting to take the Republican seat held by Steve Daines, and in Colorado where Republican Cory Gardner is being challenged by former-Democratic Gov. John Hickenlooper.

Pendley held onto his position despite the withdrawal, under an arrangement made up by himself on May 22. In his self-directed order, Pendley made his position as “deputy director,” becoming the top post while the director’s office remained vacant.

From his newly-minted post, Pendley approved two sweeping land resource management plans what would open 95 percent of Montana federal land to oil and gas development, said Bullock in court filings.

The bureau’s holdings are massive, with nearly 1 out of every 10 acres nationally under its control, mostly across the U.S. West.

Administration officials argued and insisted in public statements and court filings that Pendley was not the acting director, but rather “exercising the authority of the director.” In this case, the “director” would be the president.

Morris summarily rejected the Administration’s argument, writing:

“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.”

Trump’s continued strategy to avoid the confirmation process has raised worrisome questions about the legitimacy of those administration officials in acting roles, and in the executive branch’s authority regarding those temporary appointments. Both issues will ultimately be determined with the outcome of the Nov. 3 elections.


CONTRIBUTOR

Al Neal
Al Neal

Al Neal is the associate editor for labor and politics. He is also the chief photographer for People's World.

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