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Montana asks court to throw out major public lands decisions after ousting BLM director

Montana asks court to throw out major public lands decisions after ousting BLM director
© Courtesy Department of Interior

The state of Montana is asking the courts to throw out some major Bureau of Land Management (BLM) decisions after a federal judge ousted the agency’s acting director from his post.

Interior argues, however, argued that former BLM acting head William Perry Pendley took “no relevant acts” to be thrown out by the court during his tenure.

A Montana-based U.S. District Court judge ruled last month that Pendley "served unlawfully ... for 424 days," giving the Department of the Interior 10 days to justify why it shouldn’t throw out many of the decisions Pendley has made during his tenure.

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In a filing late Monday, Montana argued the court should toss some of the biggest land management plans Pendley has overseen, which open up hundreds of thousands of acres to oil and gas drilling.

Montana argues other states could make similar claims, opening the door to undoing plans in other states.

“Although the plaintiffs limit their present request to the Montana resource management plans and plan amendment for which there is unassailable evidence of Pendley’s unlawful involvement, the plaintiffs do not intend to suggest that other actions should not be similarly set aside where a proper party can identify and challenge them,” Montana wrote in its brief.

In Montana alone, one of the plans would open 95 percent of 650,000 acres of BLM land to resource extraction such as mining and drilling. Environmentalists have identified similar plans elsewhere that they say are lopsided, opening up the vast majority of lands for drilling while leaving little for conservation and wildlife protection.

“It’s a pretty long list,” said Aaron Weiss, deputy director of the Center for Western Priorities, a public lands watchdog group, adding there are at least 30 land management plans produced under Pendley’s watch that states or environmental groups could seek to overturn.

A coalition of 60 environmental groups has sent a letter to Interior Secretary David Bernhardt asking him to scrap many of those decisions made by Pendley.

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“BLM must review and restart any action in which Mr. Pendley’s involvement renders the action invalid given his absence of authority,” the groups wrote.

Bernhardt has tried to dispel environmentalists of the hope for any major victories.

“I think we’ll find any action Perry took was consistent with the law,” Bernhardt said in an interview with Colorado Politics. “I know there are advocacy groups that have hypothesized about how things will happen. What I would say to them is their hopes and dreams are about to be crushed.”  

Interior has argued those decisions should stand because Pendley delegated authority to other BLM officials to oversee the development of resource management plans (RMPs) in Montana.

“The record shows that Mr. Pendley performed no action in connection with the Lewistown and Missoula RMPs. The resolution of protests was instead properly delegated to another BLM official under longstanding BLM practice,” Interior wrote in its brief, referring to the process for objecting to BLM proposals. 

In his initial decision, the judge had said BLM had used a “matryoshka doll of delegated authorities.”

It’s not clear that Pendley was as removed from the process as Interior claims: A Federal Register posting appears to show Pendley was involved in responding to protests to the Montana land management plans.

"Plaintiffs point only to a formal but imprecise Federal Register reference to 'the Director’s' role in resolving those RMP-related protests," Interior argues.

“The court directed the parties to identify which 'acts of Pendley' should be set aside under the Federal Vacancies Reform Act and the Administrative Procedure Act. From our brief to the court today, the answer is simple: none,” the department said in a statement.

—Updated at 2:43 p.m.