Without Senate-confirmed leaders, Interior rules may be at risk

A federal judge in Montana invalidated three land use rules, saying an acting director had served too long without Senate approval

Sen. Jon Tester, D-Mont., center, has introduced a bill to block the Justice Department from defending William Perry Pendley's status as acting director of the Bureau of Land Management. (Tom Williams/CQ Roll Call)
Sen. Jon Tester, D-Mont., center, has introduced a bill to block the Justice Department from defending William Perry Pendley's status as acting director of the Bureau of Land Management. (Tom Williams/CQ Roll Call)
Posted October 26, 2020 at 6:00am

Three Interior Department divisions have gone without Senate-confirmed leaders during the entire Trump administration, endangering department policies and decisions over violations of laws that govern presidential appointments and nominations.

Through a series of appointments that appear to have bypassed the Appointments Clause of the Constitution and the Federal Vacancies Reform Act of 1998, the officials leading those agencies — the Bureau of Land Management, the National Park Service and the Office of Surface Mining Reclamation and Enforcement — have been nonpolitical career staff or political officials chosen by Interior Secretary David Bernhardt or his predecessor, Ryan Zinke.

Five career and political appointees have been the top official at BLM since January 2017. The NPS has had four acting directors. The White House nominated Lanny Erdos in October 2019, moving to fill the director post at the mining agency three years into the term. His nomination stalled, but he’s still in charge there. And the U.S. Fish and Wildlife Service, another DOI division, did not have a confirmed director until December 2019, when the Senate narrowly approved Aurelia Skipwith.

Legal and congressional experts say the Trump administration routinely circumvented congressional oversight by failing to nominate candidates for these crucial roles and that policies set under their watch could be legally vulnerable.

[Environmental action, laws may face new hurdles on high court]

A red flag for the administration emerged Sept. 25 in a case that Montana Gov. Steve Bullock, a Democrat running for Senate, filed against the administration. Federal Judge Brian Morris, an Obama appointee, ruled in a 34-page opinion that William Perry Pendley, the top BLM official, had served “unlawfully” as the acting BLM director for 424 days.

“Pendley has served and continues to serve unlawfully as the Acting BLM Director,” wrote Morris, chief judge for the U.S. District Court for the District of Montana, indicating he could toss policies the agency has completed under Pendley. 

Morris did just that on Oct. 16, invalidating three of the bureau’s land use plans in Montana over how Pendley, a conservative Wyoming lawyer with a penchant for bolo ties, came to run BLM.

BLM response

The BLM disputed Morris’ two rulings and Pendley has refused to step down, telling reporters he has the president’s backing and paraphrasing Mark Twain, saying that “news of my political demise has been greatly exaggerated.”

In a statement to CQ Roll Call, Daniel Jorjani, the Interior solicitor, said the department would follow the court orders as it appealed.

“Consistent with the law, Secretary Bernhardt will continue to lead the Department and all of its bureaus, including the Bureau of Land Management,” Jorjani said. “In so doing, he will continue to rely on the Bureau of Land Management’s superior management team, specifically including Deputy Director for Programs and Policy William Perry Pendley.”

But Aaron Scherb, director of legislative affairs at Common Cause, a nonpartisan watchdog group, said ignoring the FVRA is “flouting the rule of law.” 

“Going around the legal confirmation process evades public scrutiny for some of these nominees and does a huge disservice,” Scherb said.

“This is just one of the worst examples but not totally isolated from other examples,” Carl Tobias, a University of Richmond law professor and nominations expert, said of Pendley. “I think that it is pretty broad within the department.”

Pendley assumed the post of acting BLM director in July 2019, and Trump nominated him officially nearly a year later, on June 30, but then withdrew the nomination when Senate confirmation seemed unlikely.

BLM responded to the Montana court rulings by arguing that Pendley has never been “acting director” of the bureau but rather a deputy. Still, he is the top-ranking official at BLM, where he was identified on an organizational chart as “Deputy Director, Policy and Programs, Exercising the Authority of the Director” as recently as mid-September.

Like BLM, neither the National Park Service nor the Office of Surface Mining Reclamation and Enforcement, which deals with mining cleanup, have had Senate-confirmed leaders since the Obama administration.

Peter Jenkins, a lawyer with the Public Employees for Environmental Responsibility, a nonpartisan watchdog group, spotted a pattern after Morris’ first Pendley ruling. The leaders of the NPS and OSMRE, who had been using the phrase “acting” in their official titles, stopped, he said.

NPS strategy

“They got legal trouble for simply treating these people as acting directors,” said Jenkins. “In all these cases, the only way they could have properly put acting in the name was if President Trump had appointed them.” On behalf of PEER and the environmental group Western Watersheds Project, Jenkins sued Interior in May, challenging the legal authority of the appointments of Pendley and David Vela, who was temporary NPS director at the time and resigned in August.

Using the legal blueprint that led to the recent Morris rulings, PEER turned its aim on Margaret Everson, the acting director of the National Park Service, whom Bernhardt tapped for the role after Vela left.

“The Montana judge just basically threw him out of the office, said, ‘You can’t do that anymore,’” Jenkins said, referencing Pendley. “It was a huge step. And that’s what we’re trying to do in the Everson case.”

In court papers, PEER challenged a slew of NPS decisions made under Vela’s watch, including moves to allow electric-powered bicycles in national parks, participating in board meetings of the National Park Foundation, supervising the hiring of staff and managing NPS sites during the coronavirus pandemic.

“He has made major operational decisions on closing Parks to public access — or, in many cases, deciding not to close the Parks — which impacted the infection risk of the public and NPS staff,” PEER said in its complaint in May.

When a Senate-approved official steps down and creates a vacancy, the Federal Vacancies Reform Act provides three options: An assistant officer, such as a deputy secretary, can step into the vacated spot; the president can pick someone working at the agency; or the president can appoint someone who has been confirmed by the Senate from a different agency.

The law allows a temporary officer to fill the vacancy for 210 days. But if the president nominates someone for the post, the acting head can serve in that role as long as the nomination is pending. 

Keeping time is the Government Accountability Office, the investigative arm of Congress, charged with tracking the tenure of acting agency bosses. If the GAO finds a violation, it is required to report it to the president, Congress and the agency.

Sen. Jon Tester, D-Mont., introduced a bill Wednesday to block the Justice Department from defending Pendley in the Bullock case.

Citing the August GAO report that the appointments of acting Homeland Security Secretary Chad Wolf and his aide, Ken Cuccinelli, were invalid, Dylan Hedtler-Gaudette, an analyst with the nonpartisan Project on Government Oversight, said requiring nominations to go through the Senate is about more than weighty debate or legal philosophy.

“Every policy that has been made in the past year and a half or so could potentially be up for legal challenge,” Hedtler-Gaudette said of the DHS development. 

“That’s why this is an actually important concrete issue. It’s not only about kind of high-minded arguments about constitutional principles,” he continued. “But there’s actual on-the-ground policies that have impacted people’s lives, either in a good or a bad way that could be overturned potentially because the Trump administration just didn’t want to follow the process and didn’t want to abide by the Constitution.”