After a frenzy of Cabinet departures during his first two years in office, President Donald Trump embraced a controversial ― and, as courts have found, sometimes illegal ― strategy to shield agency chiefs from the scrutiny of Senate confirmation: delaying formal nominations and putting officials in “acting” roles.
“I’m in no hurry” to nominate replacements, Trump told reporters in January 2019. “I sort of like ‘acting.’ It gives me more flexibility, do you understand that?”
That approach is now backfiring in a big way. So far this year, three federal judges have separately found that William Perry Pendley, head of the Bureau of Land Management, and Ken Cuccinelli and Chad Wolf, two top officials at the Department of Homeland Security, served in their de facto positions in violation of the Federal Vacancies Reform Act. The 1998 law sets rules for temporarily filling vacant positions in the executive branch and limits the amount of time officials can serve in an acting role to 210 days.
In March, some nine months after Cuccinelli’s appointment as acting director of U.S. Citizenship and Immigration Services, a U.S. district judge in Washington, D.C., ruled that Cuccinelli was never eligible for the position and consequently found that two policies he had enacted limiting legal representation for asylum-seekers must be invalidated.
Cuccinelli had also been elevated to acting deputy secretary of homeland security in late 2019. The Government Accountability Office found in August that Cuccinelli and Wolf, his boss as acting secretary of homeland security, were illegally serving in those de facto positions. A U.S. district judge in Maryland agreed in a Sept. 11 ruling that Wolf was “likely” violating the succession law. The judge temporarily barred the Trump administration from enforcing new employment restrictions on asylum-seekers that Wolf was involved in issuing. But both men remain in their positions.
Perhaps the biggest blow to the administration came late last month when U.S. District Judge Brian Morris in Montana ousted Pendley, an anti-federal land extremist, as head of the federal land bureau, ruling that he had illegally served as its acting director for 424 days. That decision came in response to a lawsuit from Montana Gov. Steve Bullock (D).
Watchdog groups also question the legality of Margaret Everson’s appointment as acting chief of the National Park Service. Both the federal land and national park agencies sit within the Department of the Interior.
Scrap It All, Critics Say
Morris’ decision could have much broader implications than simply stripping Pendley of his duties overseeing 245 million acres of public land. It opens the door for legal challenges targeting every Bureau of Land Management decision, policy and order since he was designated acting director in July 2019.
“The Court recognizes that any ‘function or duty’ of the BLM Director that has been performed by Pendley would have no force and effect and must be set aside as arbitrary and capricious,” Morris wrote in his opinion. The judge gave the Interior Department and Bullock 10 days to file briefs detailing which of Pendley’s orders should be invalidated.
Bullock has since asked the court to block three land use plans that Pendley approved to open large swaths of federally controlled land in Montana to fossil fuel development. Bullock told The Associated Press that he is only challenging decisions in Montana and would leave it to others to scrutinize Pendley’s actions elsewhere.
Environmental and public land advocacy groups were quick to compile their own lists. In a letter this week to Interior Secretary David Bernhardt, a coalition of 60 conservation organizations detailed dozens of actions, plans and regulations that they say should be nullified. The list includes dozens of resource management plans, oil and gas leases and environmental impact statements, as well as the relocation of BLM headquarters from Washington, D.C., to Grand Junction, Colorado.
“What a tangled web they have woven,” said Tracy Stone-Manning, Bullock’s former chief of staff and current associate vice president for public lands at the National Wildlife Federation, one of the groups that organized the letter. “All they had to do was get someone appointed and confirmed, and they chose to skirt the Constitution and the law. And there are going to be consequences.”
Meanwhile, the Trump administration, which had gone to surprising lengths to defend the president’s toxic BLM hire, responded to the judge’s request by suggesting that Pendley had done nothing of consequence in his role and thus nothing had to be undone. “Careful review shows no relevant acts taken by Mr. Pendley — rather than by other Bureau of Land Management officials — much less any within the Director’s exclusive authority,” the Interior Department said in its court brief.
The Interior Department arguing that Pendley was an unimportant official kept on a short leash is an extraordinary departure from its comments over the last year.
When Trump announced his intent to officially nominate Pendley for the BLM director job this summer ― a nomination that he withdrew less than two months later after it became clear his nominee was unlikely to be confirmed ― Secretary Bernhardt applauded Pendley as “a leader” who was “doing a great job.” And when the entire Senate Democratic caucus signaled it would vote against the nomination, a White House spokesman came to Pendley’s defense, calling him “a true son of the West” and an “accomplished public servant” and applauding “his careful acting stewardship” of BLM headquarters in its move to Colorado.
A former property rights lawyer, Pendley was appointed in July 2019 to a senior policy position at the BLM and quickly elevated to the role of acting director. He remained in that role via a series of controversial temporary reappointments, even personally crafting and signing a succession order to keep himself at the helm of the bureau indefinitely.
Critics in the conservation community saw Pendley’s appointment as a prime example of Trump putting a fox to guard the henhouse, and he has been the subject of a constant stream of negative headlines since joining the administration. As a private attorney, he had sued the federal government numerous times, railed often against environmental “terrorists” and “eco-fascists,” compared the climate crisis to a “unicorn” because “neither exists,” and, most notably, argued that the federal lands Trump put him in charge of overseeing should not be held by the government.
‘They Can’t Even Shoot Straight’
The backdoor appointment of the self-proclaimed “sagebrush rebel” now threatens to significantly undermine Trump’s federal lands agenda. And the Interior Department trying to distance Pendley from all BLM decision making looks to be a desperate attempt to prevent the courts from unraveling the administration’s pro-industry efforts across BLM lands.
Carl Tobias, a professor at the University of Richmond School of Law who closely tracks presidential nominations, observed that an administration that fancies itself an upholder of the law has proven time and again that “they can’t even shoot straight.”
“This could be revolutionary in a sense,” Tobias said of Morris’ ruling. “It could roll back a lot of the perverse activity that the government has been engaged in. The stakes are pretty high, and this just may break things loose.”
The fallout could last months or even years. Environmental groups are likely to submit multiple public records requests to determine the extent of Pendley’s involvement in BLM actions, and those documents could ultimately become the foundation of future legal challenges.
The Interior Department has said it will comply with the court order but vowed to appeal. Pendley’s title on the BLM website no longer includes the words “exercising the authority of director” and, as The Hill reported, Bernhardt has taken over leading the bureau.
Even as the administration scrambles to safeguard BLM actions over the last year, it insists nothing will really change. In an interview with Colorado Politics last week, Bernhardt blasted environmental groups as “completely detached from the reality of the legal process.”
“I know there are advocacy groups that have hypothesized about how things will happen,” he said. “What I would say to them is their hopes and dreams are about to be crushed.”