A federal judge ruled last Friday that William Perry Pendley, a crusading former oil industry lawyer and self-avowed sagebrush rebel, had served unlawfully as head of the Bureau of Land Management for 424 days. Any function or duty Pendley performed during that time, the judge ordered, “would have no force and effect and must be set aside as arbitrary and capricious.” He gave the BLM and the plaintiffs in the case 10 days to submit briefs addressing which of Pendley’s acts should be overturned.
The ruling by Judge Brian Morris of the U.S. District Court in Montana raises the possibility that many of the Trump Administration’s most impactful land use and environmental policies could be unraveled. That’s no sure thing, though. The administration already has vowed to appeal Judge Morris’s order, and is sure to fight for those policies at every turn, bureaucratically, procedurally, and legally.
“Pragmatism tells you that if he acted illegally as BLM director in the state of Montana, he did so everywhere,”
So what, if anything, will be thrown out? That will ultimately be decided by the courts and the ballot box, but the field of battle—and the stakes—are coming into focus.
The immediate question is whether the ruling will apply only to the state of Montana, or more broadly. The case was brought by outgoing Montana Gov. Steve Bullock and his department of natural resources and conservation, in response to what Bullock characterized as BLM overreach in the state. In his order, Judge Morris refers specifically to two resource management plans that opened 95 percent of BLM land in Montana to drilling. The acts that must be overturned, the judge wrote in his order, “appear to include, but not be limited to, the Missoula RMP and the Lewistown RMP.”
Tracy Stone-Manning, associate vice president for public lands at the National Wildlife Federation, said the order should apply nationally. “Pragmatism tells you that if he acted illegally as BLM director in the state of Montana, he did so everywhere,” she said.
Pendley presided over a number of high-profile actions in his 424 days at the helm of BLM. During his tenure, the agency finalized plans to allow drilling, mining, and grazing on lands President Trump stripped from the Bears Ears and Grand Staircase Escalante national monuments in Utah in 2017. Under Pendley, the agency also began moving its headquarters from Washington to Grand Junction, Colorado, forcing dozens of BLM employees to either move or resign in a move widely viewed as an effort to purge seasoned staff and pack the agency with Trump’s people.
Those and dozens of other decisions made on Pendley’s watch will now come under scrutiny, though Judge Morris specifically mentioned only the two Montana resource management plans in his order. Those plans determine how more than 800,000 acres of public lands and nearly 1.4 million acres of subsurface mineral rights in western and central Montana will be managed for the next 20 years.
This is wide, wild country, full of sweeping prairie and the rugged breaks, or cliffs, leading into the Missouri River. Many call it the heart of wild Montana. The Lewiston RMP in particular includes some of the best mule deer, pronghorn, and upland game bird country in Montana, said Nick Gevock, Conservation Director of Montana Wildlife Federation. Until this year it was managed for multiple use, with hundreds of thousands of acres open to livestock and mineral leases, and tens of thousands more set aside for conservation. Pendley’s BLM opened 95% of it to drilling.
That is the plan Judge Morris called “capricious and arbitrary,” and which he appears poised to overturn. For hunters and conservationists like Gevock, it feels like a last chance. “Once lands are leased for oil and gas, your chance of getting some kind of conservation designation for them is basically nonexistent,” Gevock said.
Also in Montana, the BLM under Pendley largely ignored a sage grouse habitat preservation plan painstakingly agreed to by dozens of interested parties. “The sage grouse conservation plan nationwide brought every interest together,” Gevock said. “Ranching, oil and gas, public recreation, hunters, wildlife watchers, all came to the table to craft plans to conserve sage grouse and the sagebrush steppe habitat that they depend on. All that was thrown out the window.”
Judge Morris mentions sage grouse habitat only fleetingly in his order, but BLM’s disregard for the consensus plan was a primary driver in Governor Bullock’s decision to bring the lawsuit.
When the governor sends his list of Pendley’s capricious acts to Judge Morris, sage grouse and the two Montana resource management plans will almost certainly be on it. The BLM has reportedly been keeping its own list of actions taken by interim leaders since at least May, but refused Adventure Journal’s request to see it. The agency also declined to comment on Pendley’s current role at BLM, which has not had a Senate-confirmed director since the Obama administration. This week the agency removed “exercising the authority of director” from Pendley’s title, but he still shares top billing on the bureau’s organizational chart. The Hill reports that Interior Secretary David Bernhardt will not appoint a new acting director for BLM. Instead, he plans to run the agency himself.
“This is an outrageous decision from a politically motivated lawsuit by Montana Governor Bullock,” Interior Department spokesman Conner Swanson told AJ a prepared statement. “The decision is well outside the bounds of the law and betrays at least 30 years of practice spanning presidential administrations from both political parties. We will be appealing this decision immediately.”
The suit certainly has political undertones. Gov. Bullock, a Democrat, is in a close race to unseat Republican Sen. Steve Daines. Though the state is deep red, protecting one of the best big-game hunting grounds in North America is a winning issue in Montana. Trump is well aware of this dynamic; earlier this summer he signed the biggest conservation bill in a generation to give political cover to Daines and another embattled Republican incumbent, Colorado Sen. Cory Gardner.
Trump nominated Pendley to fill the BLM job permanently in June, 2020, only to pull the nomination when the confirmation process threatened to become contentious. The nomination shuffle put Pendley into rare territory. While an agency headed by an acting director is not unusual in any administration—especially Trump’s, in which 113 Senate confirmable positions are currently held by interim appointees—Pendley continued to call the shots at BLM even after his nomination was withdrawn.
The vacancies act prohibits officials from holding an acting position for more than 210 days without Senate confirmation, and also bans people nominated to a permanent position from holding that role in an acting capacity. By the time his nomination was withdrawn in August, Pendley had run afoul of both those provisions. To complicate matters, Pendley himself signed an order in May making his own position, deputy director of policy and programs, the bureau’s top post while the director’s office is vacant—essentially extending his term as acting director even though the 210-day limit had passed.
“It’s all the more galling and arrogant that they kept him serving in the director’s role after the nomination was withdrawn because they understood they couldn’t get him by the Senate,” Stone-Manning said. “That’s not running a yellow light. That’s a full on red light.”
Pendley was aware that his tenure would likely come under legal scrutiny and according to at least one Congressional Democrat, he took steps to distance himself from decisions that might later be challenged. “Mr. Pendley didn’t sign off on as many decisions as he could have, probably because he knew this day would come,” House Natural Resources Chairman Raúl Grijalva (D-Ariz.), whose committee oversees the BLM, told The Hill.
Pendley has reportedly signed some relocation orders connected to the headquarters move, and major documents such as the resource management plans in Montana and more than a dozen others throughout the West.
One notable exception is the management plan for the land removed from Bears Ears and Grand Staircase Escalante national monuments. First, the size reduction of the monuments is not in play. That was a presidential action, and predated Pendley’s arrival at BLM by more than a year and a half. Second, Pendley recused himself from direct involvement in those management plans, citing conflict of interest.
When Trump ordered the size of the monuments reduced in 2017, Pendley was working as an attorney for three Utah counties that supported the move. In 2017, he filed a petition on behalf of San Juan County defending Trump’s reduction of Bears Ears, and even after joining the BLM in 2019, he remained the attorney of record for Kane and Garfield counties, which were fighting efforts to restore Grand Staircase-Escalante to its former size.
In September 2019, more than three months after joining BLM, Pendley shared with top BLM leadership a list of 57 clients and current business associates and pledged to recuse himself from “particular matters” involving them. These clients included mining, oil and gas, and agricultural associations whose interests are deeply affected by BLM policies, the Salt Lake Tribune reported at the time.
“He recused himself because of those client conflicts. But that gets back to another reason why he shouldn’t be director,” Stone-Manning said. “He has 17 pages of conflicts.”
What Happens Next
The Department of the Interior, which includes the BLM, is expected to file a motion to Judge Morris as soon as today, requesting the judge suspend his order until the appeals court rules on the case, which probably won’t happen until early next year. In the meantime—pending the results of November’s presidential election—Pendley will stay on indefinitely as BLM’s deputy director of policy and programs, a powerful position that affords him substantial influence over the federal government’s largest landowner.
The appeal will be heard in the Ninth Circuit, whose 29 judges include 16 appointed by Democratic presidents and 13 by Republicans. Among those, 10 are Trump appointees. Cases on the Ninth Circuit are heard by randomly selected panels of judges, so it’s hard to game the ideological disposition of the judges who would review the case. The merits of the case are easier to parse. Judge Morris issued a summary judgment, meaning the case against Pendley was strong enough that he felt it didn’t need to be argued in court—a slam dunk, in layman’s terms. Judge Morris put it this way: “The Court’s conclusions of law rely on a clear administrative record and do not involve a genuine dispute as to any material fact.”
Interior Secretary David Bernhardt will not appoint a new acting director for BLM. Instead, he plans to run the agency himself.
In a statement emailed to Adventure Journal, Solicitor for the Department of the Interior Dan Jorjani said “the Department of the Interior believes this ruling is erroneous, fundamentally misinterprets the law and unreasonably attempts to up-end decades of practice spanning multiple presidential administrations from both parties.”
John Leshy, who was Interior’s top lawyer in the Clinton administration, believes Judge Morris’s order will likely be upheld on appeal. “I could not find any obvious flaws in Judge Morris’ opinion,” Leshy, a distinguished professor emeritus at the University of California Hastings College of the Law, told E&E News.
“Morris’s opinion methodically demolishes the house of cards the Trump Interior Department constructed to install Pendley as leader of the BLM,” Leshy said.
Whether Judge Morris’s ruling is a strong enough blast of fresh air to blow down that house of cards remains to be seen, but Stone-Manning said it’s a promising start.
“The judge has told us what we believed all along, that Pendley was acting illegally as director, so therefore what he decided to do shouldn’t stand. It’s just that simple. You don’t get to break the rules and still have your body of work stand.”