A new Interior Department move to leave controversial temporary leaders in place indefinitely may violate laws on filling vacancies, legal experts say, and skirts requirements for Senate confirmation.
In a statement provided to The Hill on Friday, Interior said leaders for the Bureau of Land Management (BLM) and the National Park Service (NPS) will continue to serve in their roles pursuant to “updated succession orders.”
However, Interior refused to provide a copy of the new orders, leaving unclear the breadth of the directive leaving acting BLM head William Perry Pendley and acting NPS director David Vela in place.
The effort quickly drew criticism from outside groups, who argued the administration is once again avoiding the Senate to keep controversial leaders in place.
“What they're doing is the result of a failure of imagination from Congress,” said Aaron Weiss, deputy director of the Center for Western Priorities, a public lands watchdog group. “They never imagined an administration that would ignore the law and ignore the constitutional duties to consult the Senate.”
Pendley had long advocated for selling off the public lands he now manages, while Vela has faced scrutiny for reopening national parks during the coronavirus outbreak.
Interior Secretary David Bernhardt has faced criticism for issuing orders to keep Pendley and Vela in their posts for several months at a time.
Watchdog group Public Employees for Environmental Responsibility sued in April, arguing the orders violated the Federal Vacancies Reform Act by keeping the men in their posts beyond 210 days.
The orders “falsely asserted that the need for the ‘temporary’ re-delegations is due to the ‘Presidential transition,’ which now is long past more than three and one quarter years post-inauguration,” the group wrote in its suit.
The new orders “provide the same legal standing as prior actions and ensure the smooth continuity of operations for leadership positions,” Interior said in a statement Friday.
Updating the succession orders would mark a shift in the strategy used to keep Pendley and Vela in office. The move leaves the men in their roles without the expiration date hanging over their authority that accompanied the earlier orders from Bernhardt.
Nina Mendelson, a law professor at the University of Michigan, said the legality of the order depends on just how much authority is being given to the two men. Assigning very limited duties might withstand muster, while a wholesale handing over of the role could be problematic.
“The issue is we don't know what’s in the succession order. If it changes one little function maybe we'd have fewer concerns about it, but if it’s transferring a significant number of functions from one office to another office or a particular person, it is potentially illegal,” she said.
Interior refused multiple requests from The Hill to provide documentation of the orders. It instead said that the department’s leadership team was listed online.
“It should be a very easy paper to produce out of the department’s operating manuals,” Weiss said. “The fact that they have not produced any documentation for this theoretical order of succession means that they are hiding something.”
Other legal experts said the succession order raises more ethical concerns than legal ones.
“It’s a crazy workaround to the appointments process,” said Anne Joseph O’Connell, a law professor at Stanford University.
“I think it's legal, but undesirable,” she said, adding that the law was designed to strike a balance between giving the Senate the chance to review appointees and giving the executive branch flexibility to keep the government functioning.
Phil Francis with The Coalition to Protect America’s National Parks, a group for NPS retirees, said they want Vela, whose 2018 nomination never came to a vote, to get proper confirmation so he can more credibly lead the department.
“When you're in school and get a substitute teacher or later on at work when you had an acting person in a job, we knew that person would be leaving,” he said. “So a person in an acting position oftentimes but not always is just maintaining the day-to-day activities, as opposed to developing and employing a strategic plan, setting a direction for the agency.”
“There are all kinds of benefits of having a permanent employee in place,” he added.
But both Pendley and Vela would face significant hurdles in the Senate.
Vela would need to be renominated in order to be considered for the job. During his first hearing he faced questions on whether he supported a controversial proposal to charge activists for holding demonstrations at certain landmarks. His oversight of Park Police’s use of chemical agents to clear a park full of protesters near the White House would be sure to be raised today.
Pendey has come under fire for his 17-page recusal list detailing ties to a number of industries that could benefit from increased access to public lands. He has also overseen the relocation of the agency’s headquarters from Washington, D.C., to Colorado, resulting in the loss of more than half the staff slated to move.
The Trump administration has lost other cases when acting leaders' authority was challenged. In March, a federal judge threw out immigration policies implemented by acting Department of Homeland Security head Ken Cuccinelli.
"The actions taken by these people are void and don't have force of law," said Mort Rosenberg, an expert on vacancies law, adding that Pendley's and Vela's policies could be thrown out in court.
"This administration is consistently trying to find ways to avoid the confirmation power of the Senate."