It was through a series of controversial ― if not illegal ― temporary reappointments that William Perry Pendley, an anti-public lands extremist, ascended to the top of the Bureau of Land Management, an agency that oversees 245 million acres of federal land.
In late May, approximately two weeks before one of those controversial extensions was set to expire, Pendley — a former property rights lawyer who spent his career arguing that public lands should not even exist — crafted and signed an order to keep himself at the helm of the bureau indefinitely.
Seriously.
The order, which The Associated Press first reported on Wednesday, states that in the absence of a permanent Bureau of Land Management director, the director’s authority and responsibility falls to none other than the bureau’s deputy director of policy and programs, the position Pendley has held since last July.
Two weeks after Pendley’s appointment to that position, Interior Secretary David Bernhardt elevated him to the role of acting director, and he has continued to lead the bureau for more than a year without ever having to face the scrutiny of a Senate confirmation process.
President Donald Trump formally nominated Pendley to the director post in late June, but on Saturday, the White House said Trump is withdrawing him from consideration, signaling doubts about whether he’d get enough votes for Senate confirmation. The move also frees two vulnerable Republican allies, Sens. Cory Gardner (Colo.) and Steve Daines (Mont.), from having to vote him up or down.
Daines and Gardner, who are both touting their roles in the passage of a major public lands package last month as they head into the November election, have avoided taking a firm stance on Pendley, at times dodging media questions entirely. Daines signaled in November that he’d back Pendley for the director post, only to later walk back his support. A vote for Pendley would not have landed well with environmental and public land advocacy groups.
But the withdrawal changes nothing in the near term. Thanks to his own self-serving succession order, Pendley continues to lead the bureau.
“The Trump administration and complicit senators are purposefully avoiding the only opportunity Americans have to hear and review the positions and beliefs of Senate-confirmable executive positions as required by the constitution,” said Jayson O’Neill, director of public lands watchdog group Western Values Project.
Pendley’s order became official on May 22, when he and Casey Hammond, the Interior Department’s principal deputy assistant secretary for land and minerals management, both signed the document. It came on the heels of a federal lawsuit that two conservation groups, Western Watersheds Project and Public Employees for Environmental Responsibility, filed to challenge the legality of Pendley’s backdoor appointment, and about a month before Trump formally nominated him.
The legal challenge from the conservation groups and a separate lawsuit filed last month by Montana Gov. Steve Bullock (D), who is running to unseat Daines in November, both argue that Pendley’s ongoing tenure violates the Federal Vacancies Reform Act, which limits the amount of time Cabinet officials may serve in an acting role to 210 days. The lawsuits, which Interior has dismissed as frivolous, seek to remove Pendley from his acting duties.
Interior Department spokesperson Conner Swanson said Pendley’s May 22 order provides “the same legal standing as prior actions and ensure[s] the smooth continuity of operations for leadership positions.”
“These delegations under succession orders, which have existed and been updated throughout this administration and many prior administrations, comply with the Vacancies Reform Act,” he added in an email. Swanson did not respond to HuffPost’s specific questions.
However, legal experts were quick to question the legality of Pendley’s self-appointment order. “It is the ultimate in bootstrapping because Pendley, who is in my view not serving legally in this job, is naming himself at the top in the order of succession,” Nina Mendelson, a professor of law at the University of Michigan and an expert on administrative law, told The Hill.
Others saw it as the latest sign that the Washington “swamp” Trump vowed to “drain” of special interests is indeed thriving under his administration.
“Swamp creatures, at work,” tweeted David Hayes, who served as deputy Interior secretary under President Barack Obama.