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Lawyers question public lands chief move leaving himself in power

Lawyers question public lands chief move leaving himself in power
© Greg Nash

The Trump administration’s method of keeping the controversial acting head of the Bureau of Land Management (BLM) in power even after his nomination is withdrawn is likely not legal, according to experts who have reviewed the orders.

Over the weekend, it was made public that William Perry Pendley’s nomination will be withdrawn amid doubts he had the votes to be confirmed. Democrats all opposed the nomination because of Pendley’s opposition to federal ownership of public lands and his controversial comments on climate change and the Black Lives Matter movement. 

But Pendley is still running the agency because of succession orders dictating that the acting chief will lead the department if the director role remains unfilled. 

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The Department of Interior previously had relied on a series of temporary delegations of power to keep Pendley and other Interior officials in office, even though they have not been confirmed by the Senate.

Legal experts say the succession orders are dubious because the officials whose tenure has been questioned are the ones assigning themselves their new positions. The order was written and signed by Pendley, essentially giving himself the authority to act as director.

“It is the ultimate in bootstrapping because Pendley, who is in my view not serving legally in this job, is naming himself at the top in the order of succession,” said Nina Mendelson, a professor of law at the University of Michigan and an expert on administrative law. 

The May order mandates that if there is no BLM director, the next person in line, who gets to exercise the “authority of the director,” or act in that role, is the deputy director of policy and programs, which is the job Pendley officially holds. A June order lays out a similar policy for the National Park Service (NPS). Neither agency’s director position has been filled throughout the entirety of the administration. 

Interior spokesperson Conner Swanson argued that the orders “provide the same legal standing” as the department’s prior moves to extend the tenures through temporary secretarial orders. 

“These delegations under succession orders, which have existed and been updated throughout this administration and many prior administrations, comply with the Vacancies Reform Act in that they do not encompass the performance of functions or duties assigned by statute or regulation exclusively to the ... position,” he told The Hill in an email. 

Pendley is already facing two lawsuits challenging his legal right to retain the position he’s served in for more than a year. 

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Both suits, one from Montana Gov. Steve BullockSteve BullockJudge tosses land management plans after ousting Pendley from role Biden and Schumer face battles with left if Democrats win big The Hill's Morning Report - Sponsored by Facebook - Trump combative, Biden earnest during distanced TV duel MORE (D) and the other from the group Public Employees For Environmental Responsibility (PEER), say keeping Pendley in office violates the Federal Vacancies Reform Act (FVRA), which limits how long acting officials can fill vacancies for roles requiring Senate approval. 

PEER argued Pendley, along with then-NPS chief David Vela, violated the FVRA by filling in vacant roles beyond the 210 days allowed under the law.

After reviewing the succession orders for Vela and Pendley that were obtained by The Hill, PEER attorney Peter Jenkins similarly argued that they don’t have the authority to appoint themselves. 

He particularly took issue with the fact that the orders that say they are outlining who will “automatically succeed the director ... in the absence of the incumbent.”

“There’s no director so what he’s saying doesn’t make any sense. He was never the director. He was never even appointed as the acting director. He was always the deputy director so first of all he wouldn’t have any authority to decide who shall succeed the director, only the director could decide that,” Jenkins said of Vela’s order. He made similar criticisms of the Pendley order.  

“This document itself only says who could succeed the director in their absence so since there is no director, there can’t all of a sudden become an absence of the director,” he added. 

Vela is set to retire in September, and Interior once again returned to a delegation order to name Margaret Everson as his replacement. The Aug. 10 order has no expiration date. 

Pendley’s succession order gets more complicated by the fact that the other signatory, Principal Deputy Assistant Secretary Casey Hammond, is serving in that role through a succession order of his own. 

“Maybe the idea here is that both of them are issuing the memorandum? But it’s not clear that Hammond has any greater authority to create a succession order than Pendley does. And in fact Hammond is not even an acting assistant secretary,” Mendelson said. “He is also a pseudo-acting official.”

“For very senior positions in the federal government, these kinds of pseudo-acting officials might not only violate the statute on acting officers. They also might violate the Constitution,” Mendelson added.

Other experts see the layers and layers of delegated authority that have kept Interior functioning since the beginning of the administration as part of a bigger issue.

“These orders themselves don't tell us whether the delegations at [Interior]are legal under the vacancies act or the Appointments Clause. Congress didn't intend for top positions at major agencies to go unfilled for years. When do stop-gaps go too far?” said Anne Joseph O'Connell, a professor at Stanford Law School who reviewed the succession orders.

Bullock’s office also argued that the documents are unconstitutional. 

“So long as the person who holds that position is not Senate confirmed and is not in compliance with the FVRA, their authority is in violation of the Appointments Clause of the Constitution,” a spokesperson for the governor told The Hill in an email. 

The Hill’s fight to track down the succession orders also raises questions.

Interior initially refused to provide a copy of the succession orders, saying only that its organizational chart was available on its website. The Hill then submitted a Freedom of Information Act (FOIA) request for the orders for both BLM and NPS.

The department provided a physical copy of both orders only after the NPS FOIA office said that it had “located no responsive records” when asked for Vela’s succession order, casting into doubt whether the succession orders indeed existed — a move that would raise even more questions about the validity of Pendley and others’ positions.

It remains unclear why the FOIA office said it had no documents responsive to the NPS request. The Hill’s FOIA request for the BLM succession order is still pending.

“I find it highly unlikely that the National Park Service wouldn't just have those documents,” said Anne Weismann, chief FOIA council with Citizens for Responsibility and Ethics in Washington, adding that the order and other documents dealing with its leader’s authority should have been circulated within the agency.

“It’s just not credible. And the fact that you had to push so hard for documents they essentially acknowledged having months ago is also sort of revealing,” she said.

The Interior Department has already been embroiled in controversy over FOIA requests.

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Interior uses an “awareness review” process that allows political appointees to review FOIA requests — something critics say gives Trump appointees undue influence over what records were released.

A recent report from Interior’s Office of Inspector General found political appointees and Interior’s FOIA office withheld sensitive documents ahead of the confirmation hearing of now Secretary David Bernhardt, releasing them months after he was confirmed.

According to the report, Rachel Spector, chief of Interior’s FOIA office, said she told employees that “choosing the order of document production was not a ‘violation of the law.’”