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Judge tosses land management plans after ousting Pendley from role

A federal judge unraveled the work of former Bureau of Land Management (BLM) acting Director William Perry Pendley, throwing out land management plans in Montana in a case that could jeopardize the agency’s work elsewhere across the country.

The late Friday ruling is a win for the state of Montana, with Montana-based District Judge Brian Morris criticizing the Department of the Interior for “novel and last-ditch legal arguments.” 

It’s the second major decision in the case after Morris last month determined Pendley had violated federal vacancy laws by "serv[ing] unlawfully ... for 424 days" through a series of temporary orders. He gave 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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The decision holds promise for environmental groups, who have a list of at least 30 land management plans overseen by Pendley they’d like to see reversed, many of which limit the scope of national monuments or open up significant portions of federal lands to oil and gas drilling. 

Pendley, a controversial figure due to his history of opposing federal ownership of public lands, remains with the agency in a deputy role after his nomination to lead the BLM was withdrawn from the Senate this summer.

Pendley “had not been properly appointed to the position, and instead had exercised authority as acting BLM director through a series of unlawful delegations,” Morris wrote in reference to the maneuvers that kept him in the acting director role for over a year.

“Any exclusive function of the BLM director performed by Pendley is invalid.”

BLM said in a statement it will “fight this outrageous decision,” arguing the suit “comes at the expense of the great people of Montana who, for the time being, are subjected to decades old [resource management plans] that limit Montanans’ ability to work, recreate, and conserve our public lands.” 

Morris’s decision invalidates three land management plans Pendley supervised in Montana, including one that would open 95 percent of 650,000 acres of BLM land to resource extraction like mining and drilling. 

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But he stopped short of applying the ruling to any of Pendley’s other decisions, despite devoting much of the decision to castigating the Interior Department for failing to comply with his order to supply a list of actions that he may have taken illegally. 

“Despite Federal Defendants’ disagreement with the exercise and apparent refusal to engage in such a search in good faith, it remains probable that additional actions taken by Pendley that should be set aside as unlawful,” Morris wrote.

Environmental groups are likely to accept Morris’s invitation.

“The Interior Department has done this all over the West. They have opened up everything to oil and gas drilling so now that these illegal actions have been spelled out by the judge, I’d imagine you’re going to see similar lawsuits across the county,” said Aaron Weiss, deputy director of the Center for Western Priorities, a public lands watchdog group, adding that Morris “has laid out a very strong case for why everything Pendley has done has been illegal.” 

Interior had argued that Pendley took “no relevant acts ... within the director’s exclusive authority.”

The agency also argued that Pendley delegated authority to another BLM official to oversee the Montana plans.

“These new arguments based on new legal arguments and new records similarly fail,” Morris wrote, as he has already determined that Pendley lacked the authority to serve as the acting director.

Montana Gov. Steve BullockSteve BullockOVERNIGHT ENERGY: Down ballot races carry environmental implications | US officially exits Paris climate accord  GOP Rep. Greg Gianforte wins Montana governor's race Senate control in flux as counting goes forward in key states MORE (D), who brought the suit in his personal capacity, said the ruling “affirms that there are consequences for the continued evasion of constitutional obligations to seek the Senate’s advice and consent.”

Some observers were surprised by Interior’s legal strategy, which has been complicated by a series of interviews Pendley has done with Wyoming media outlets claiming that the decision has had little impact on his role within BLM.

Morris himself felt the need to reiterate that Bernhardt is now responsible for leading BLM in light of some of Pendley’s comments that “appear more reticent in their acknowledgement” of the effect of the court order.

“The Trump Administration wants to have it both ways – to get credit from rightwing libertarians that Pendley’s in charge, while telling the court, not true, he’s just a figurehead and the decisions are being made elsewhere. Judges are human, and they don’t like to feel they are being played,” said John D. Leshy, a law professor who served as Interior solicitor under the Clinton administration.

“They’re doubling down on the strategy that lost them the case so far as far,” Weiss said.

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Steve Ellis, who held the highest-ranking career position in BLM under the Obama administration, called the ruling “a self-inflicted event.” 

Vacancy laws and the Federal Land Management and Policy Act require BLM to have a Senate-confirmed director, something Ellis said attorneys like Pendley and Interior Secretary David Bernhardt should know.

“They made their own mess here. They didn't have a Senate-confirmed director, and then they were extending his acting under various documents including one naming himself director that he signed it himself, so they were on thin ice,” he said, referring to succession orders leaving Pendley in his role.

If Interior chooses to appeal, the case would head to the 9th Circuit Court of Appeals.

“Now they’re on federal appeals court time, which runs slowly--there’s no way this gets resolved before Jan. 21,” Weiss said, referring to inauguration day.

“So the outcome of the election will have a huge effect on the outcome of this case.”

Updated at 11:53 a.m.