After a year on job, public lands chief overdue for confirmation hearing, Democrats say

William Perry Pendley is among many Trump Administration appointees acting in posts that require Senate confirmation

William Perry Pendley (Bureau of Land Management)
William Perry Pendley (Bureau of Land Management)
Posted August 6, 2020 at 11:29am

More than a year into the job that is officially still temporary, William Perry Pendley, the acting head of the Bureau of Land Management, is doing things that may be permanent, and Senate Democrats are seeking a chance to hold him to account.

President Donald Trump nominated Pendley, a conservative legal activist, on June 30, 11 months after the nominee assumed the post on an acting basis in July 2019. Whether or not he is confirmed, his legacy will include overseeing the move of the bureau’s headquarters to western Colorado.

Pendley's seat at the helm of the BLM for than 12 months without a confirmation hearing has grated Senate Democrats from Western states, where the BLM does the bulk of its work. Those lawmakers say the delay has allowed Pendley to avoid congressional scrutiny.

Pendley's situation also underscores a pattern both at the Interior Department, which includes the BLM, and across federal agencies and departments during the Trump administration. Top posts at NOAA, EPA, the Small Business Administration, the Pentagon, the Department of Homeland Security, the Department of Justice and the Department of Health and Human Services, among other departments, have gone without Senate-confirmed leaders for extended periods since Trump took office.

“After nearly a year as Acting Director, Mr. Pendley’s formal nomination is long overdue, and the public deserves the opportunity to hold him accountable for his record of undermining our public lands,” nine Senate Democrats from Western states said in a July 21 letter to Senate Energy and Natural Resources Chairwoman Lisa Murkowski of Alaska and the panel's top Democrat, Joe Manchin III of West Virginia. 

At Interior, heads of the BLM and the National Park Service have been operating without that approval but in acting capacities for months or years — practices that violate federal law, according to watchdog groups such as the nonpartisan Public Employees for Environmental Responsibility (PEER) and the Project on Government Oversight.

In May, PEER sued Pendley, acting Director of the National Park Service David Vela and Interior Secretary David Bernhardt, accusing Pendley and Vela of breaking the law by exercising authorities that haven’t been granted to them and criticizing the department for supporting “illegal” appointments.

Vacancies law

Pendley’s authority as acting director comes from the Federal Vacancies Reform Act of 1998, which allows the president to choose temporary heads of agencies as the administration searches for nominees for the Senate to confirm.

That law allows an acting director to fill a position for only 210 days. Yet Pendley has been in place since July 2019.

As Rebecca Jones of the nonpartisan Project on Government Oversight pointed out in 2019, officials in circumstances that match Pendley’s can continue working in government while the Senate mulls their confirmation.

“If the president does submit a nomination to the Senate while an acting officer is serving, that officer can continue to perform the office’s duties as acting officer while the nomination is pending, however long it takes,” Jones said. “If the nominee is returned, the officer can work as acting for another 210 days, and then through a second entire nomination process, and a final 210 days if that second nominee is returned.”

Trump nominated Vela to be director of the NPS in August of 2018. He did not get a vote in the 115th Congress, and was not nominated again, though he was named acting director in the fall.

Trump has voiced his support for deploying temporary agency leaders.

“I sort of like ‘acting,’” Trump told reporters in 2019 before going to Camp David. “It gives me more flexibility. Do you understand that? I like ‘acting.’

Chad Wolf, the acting secretary for the Department of Homeland Security, has come under scrutiny for spearheading a combative intervention against civil rights protesters in Portland, Ore., where federal troops detained demonstrators and carried them away in unmarked vans. Wolf has not been confirmed by the Senate, yet was carrying out sweeping and significant actions, critics noted.

Black Lives Matter

Republicans up for reelection are tight-lipped on Pendley, whose disparaging comments about the Black Lives Matter movement elevated the visibility of his nomination.

Pendley criticized the movement in a Washington Examiner column published in November 2017, saying it was built on a false foundation. 

"Michael Brown never raised his hands in surrender and cried, 'Hands up; Don't shoot,'" Pendley wrote, referring to the police shooting of Michael Brown, an unarmed Black man, in 2014 in Missouri. "We know the political movement spawned August 9, 2014, Black Lives Matter, was built on that terrible lie — a lie the mainstream media perpetrated, that cowardly politicians, fearful of saying 'all lives matter,' emboldened."

Writing in National Review in 2016, Pendley, the former head of the Mountain States Legal Foundation, a conservative law organization, said the "Founding Fathers intended all lands owned by the federal government to be sold."

In an emailed statement, the bureau said Pendley is “committed to carrying out” the administration’s priorities. “Under Mr. Pendley’s leadership, BLM has acquired more than 25,000 acres of land and expanded recreational access on public lands under its jurisdiction,” the BLM said.

CQ Roll Call asked 10 Republican senators up for reelection in competitive races if they supported Pendley’s nomination.

Representatives for Sens. Steve Daines, R-Mont., and Cory Gardner, R-Colo., said the senators were not committed.

“Senator Daines has not made a final decision,” said Katie Schoettler, a spokeswoman for the senator.

Gardner spokeswoman Annalyse Keller said the senator was waiting on the confirmation process.

In their campaigns, Daines and Gardner have highlighted their roles in successfully shepherding a public lands bill, which Trump signed into law Tuesday. It establishes permanent funding for a broadly popular land conservation program, the Land and Water Conservation Fund. Gardner was a sponsor and Daines a co-sponsor.

Pendley's office released a statement of support for the new law after it was signed by Trump.

In brief interviews, Sen. Thom Tillis, R-N.C., said he didn’t want to reveal his position, while Sen. John Cornyn, R-Texas, said he was uninformed on Pendley. “That’s a new one,” Cornyn said.

Representatives for the other Republican senators contacted for comment on Pendley did not respond: Sens. Susan Collins of Maine, Martha McSally of Arizona, David Perdue and Kelly Loeffler of Georgia, Joni Ernst of Iowa and Dan Sullivan of Alaska.

Hearing prep

Asked if Pendley’s confirmation paperwork has been sent to the Senate Energy and Natural Resources Committee, Conner Swanson, a spokesman for the Interior Department, said Tuesday “all paperwork has been delivered to the committee.”

But a Democratic committee staffer said Tuesday the panel has not received a completed questionnaire on Pendley. The committee also does not have his financial disclosure statement, his ethics agreement and a DOI letter confirming Pendley is complying with ethics rules, according to the staffer.

Murkowski, the committee chairwoman, has not scheduled a confirmation hearing, and her staff did not respond to questions on the hearing timing.

A former Marine, Pendley worked at the Interior Department during the Reagan administration and wrote a book, “Sagebrush Rebel,” about the late president’s clashes with environmental groups in the 1980s.

Pendley’s 27-page ethics recusal list includes 56 entities and one stock, Sirius XM. He listed among his former clients mining and ranching groups including the National Mining Association, South Dakota Cattlemen’s Association and the Colorado Farm Bureau Federation. 

More than 300 environmental and civil rights groups condemned Pendley’s nomination on Monday and urged senators to vote against him.

While the signatories were primarily environmental groups, including the Environmental Defense Fund, Food & Water Action and the Center for Biological Diversity, they also included organizations that focus primarily on racial justice including, most prominently, the NAACP.

“At a time when the nation is grappling with deep-seated issues of institutional discrimination, Mr. Pendley’s long history of inflammatory statements and opposition to diversity efforts make him uniquely unsuited to manage a federal workforce or impartially decide issues of public interest,” the groups wrote.

Manchin, who has worked closely with Murkowski during the 116th Congress on committee work, said in July he would oppose Pendley, citing his animus toward the Black Lives Matter campaign and statements on public lands, climate change and vulnerable plants and animals.

"His past comments calling the Endangered Species Act 'a joke,' comparing global warming to the existence of unicorns and arguing the federal government should sell off its public lands are disqualifying," Manchin said.

Lindsey McPherson contributed reporting.