Chief District Judge Brian Morris of the US District Court of Montana ruled that Pendley has served unlawfully for 424 days, in response to a lawsuit brought by Democratic Montana Gov. Steve Bullock and the Montana Department of Natural Resources and Conservation. Morris additionally ruled Secretary of the Interior David Bernhardt cannot pick another person to run the Bureau of Land Management as its acting head because that person must be appointed by the President and Senate-confirmed.
The judge gave both sides of the case 10 days to file briefs about which of Pendley’s orders must be vacated.
“Pendley has served and continues to serve unlawfully as the Acting BLM Director,” Morris wrote in his opinion. “His ascent to Acting BLM Director did not follow any of the permissible paths set forth by the U.S. Constitution or the (Federal Vacancies Reform Act). Pendley has not been nominated by the President and has not been confirmed by the Senate to serve as BLM Director.”
He added, “Secretary Bernhardt lacked the authority to appoint Pendley as an Acting BLM Director under the FVRA. Pendley unlawfully took the temporary position beyond the 210-day maximum allowed by the FVRA. Pendley unlawfully served as Acting BLM Director after the President submitted his permanent appointment to the Senate for confirmation — another violation of the FVRA. And Pendley unlawfully serves as Acting BLM Director today, under color of the Succession Memo.”
The BLM manages 244 million acres of federal lands in the United States — one out of every 10 acres of land in the country — along with 30% of the nation’s minerals. As acting director of the BLM, Pendley wielded significant authority over the leasing and use of land for mining, recreation, and oil and gas exploration and development along with maintaining environmental protections for federal lands. The agency is currently taking steps to move its headquarters and employees out west.
Last year, Pendley became the fifth person to lead the bureau on a temporary basis after the departure of Director Neil Kornze less than a year into the Trump administration. Bullock filed suit in July challenging Pendley’s authority.
Pendley, a conservative activist, commentator and lawyer, was appointed by Bernhardt as acting director in July 2019.
Morris wrote that, by law, the position of Bureau of Land Management director is required to be confirmed by the Senate. The Trump administration argued that Pendley did not officially have the title of acting director, so the requirement does not apply.
“Such arguments prove evasive and undermine the constitutional system of checks and balances,” Morris wrote, adding that the administration referred to Pendley publicly as the agency’s director.
Interior Department spokesman Conner Swanson told CNN in an email the administration will appeal “immediately.”
“This is an outrageous decision that is well outside the bounds of the law,” Swanson said.
Bullock, who is challenging GOP Sen. Steve Daines in a competitive Senate race, tweeted, “Today’s ruling is a win for the Constitution, the rule of law, and our public lands.”
CNN’s Katelyn Polantz contributed to this report.
