A federal judge ruled on Friday that Donald Trump’s leading steward of public lands has been serving unlawfully, blocking him from continuing in the position in the latest pushback against the administration’s practice of filling key positions without Senate approval.
Interior department Bureau of Land Management acting director William Perry Pendley served unlawfully for 424 days without being confirmed to the post by the Senate as required under the constitution, US district judge Brian Morris determined.
In July, Montana’s Democratic governor sued to remove Pendley, saying the former oil industry attorney was illegally overseeing an agency that manages almost a quarter of a billion acres of land, primarily in the west.
“Today’s ruling is a win for the constitution, the rule of law, and our public lands,” Governor Steve Bullock said on Friday. Environmental groups and Democratic lawmakers from western states also cheered the move.
The ruling will be immediately appealed, according to interior department spokesman Conner Swanson, who called it “an outrageous decision that is well outside the bounds of the law” and said the Obama administration similarly filled key posts with temporary authorizations.
The agency will abide by the judge’s order while the appeal is pending, officials said. It will also have to confront questions over the legitimacy of all decisions Pendley made, including his approval of land use plans in Montana that Judge Morris said Pendley was not authorized to make.
The land bureau regulates activities ranging from mining and oil extraction to livestock grazing and recreation. Under Trump, it has been at the forefront in the drive to loosen environmental restrictions for oil and gas drilling and other development on public lands.
Pendley has been one of several senior officials in the administration running federal agencies and departments despite not having gone before the Senate for confirmation hearings.
Last month, the Government Accountability Office, a bipartisan congressional watchdog, said acting Department of Homeland Security Secretary Chad Wolf and his acting deputy, Ken Cuccinelli, were improperly serving and ineligible to run the agency under the Vacancies Reform Act. The two have been at the fore in initiatives on immigration and law enforcement.
Trump agencies have defended the skipped deadlines for Senate hearings, saying the senior officials involved were carrying out the duties of their acting position but were not actually filling that position, and thus did not require a hearing and votes before the Senate.
Pendley was formally nominated by Trump in July, after being given temporary authorizations several times by interior secretary David Bernhardt. But the nomination was withdrawn after the confirmation process threatened to become contentious, potentially disrupting key US Senate races in Montana, where Bullock is seeking to unseat incumbent Republican Steve Daines, and Colorado, where Republican Cory Gardner is being challenged by former governor John Hickenlooper.
Pendley continued to hang on to the post, under an arrangement he himself set up months ago. In a 22 May order, Pendley made his own position, deputy director, the bureau’s top post while the director’s office is vacant.
Pendley’s actions included approval of two sweeping land resource management plans in Montana that would open 95% of federal land in the state to oil and gas development, attorneys for Bullock contended in court filings.
The bureau’s holdings are sweeping, with nearly one out of every 10 acres nationally under its dominion, mostly across the west. Pendley was a longtime industry attorney and property rights advocate from Wyoming who called for the government to sell its public lands before joining the Trump administration.