Court Invalidates Pendley-Approved Resource Management Plans

In 2020 we can all use some good news—particularly when it benefits the environment and our public lands. And here is something to feel good about: a federal judge in Montana has set aside three resource management plans proposed by the Department of the Interior’s Bureau of Land Management.

The Bureau of Land Management has incredible responsibilities—it manages the use and maintenance of around 245 million acres of federal public lands (around 12 percent of the nation’s landmass) and 700 million acres of subsurface acreage (around 30 percent of the nation’s minerals—coal, oil, and gas).

And the Bureau is expected to manage all of these lands for multiple uses in a way that benefits present and future generations. The Federal Land Management and Policy Act charges the Bureau with managing public lands in a manner that will protect the quality of scientific, scenic, historical, ecological, environmental, air and atmospheric, water resources, and archeological values. The law also requires that the President nominate the Bureau’s Director, by and with the advice and consent of the Senate.

Despite its important responsibilities, the Bureau has been operating for over a year without a properly confirmed Director and has been endangering our public lands by prioritizing fossil fuel development over other uses and values. Even worse, the de facto acting Bureau director, William Pendley, publicly and repeatedly expresses disdain for preserving federal land. And he’d like to sell these precious public resources away to industry.

Montana Governor Steve Bullock filed a lawsuit in a Montana federal court to enjoin Pendley from continuing to exercise the authority of the Bureau’s Director in violation of the Federal Vacancies Reform Act and the U.S. Constitution. Montana has legitimate concerns over the Bureau’s handling of public lands since it manages 27 million acres in Montana—or nearly one-third of the state.

Montana alleged that Pendley continued to perform the duties of the Bureau Director in violation of federal law while his appointment was pending, and the state sought to prevent him from illegally performing the duties of director until the Senate confirms his nomination. According to the state of Montana, Pendley illegally abandoned a bipartisan agreement with Western governors that prioritizes oil and gas leasing outside of Greater sage-grouse habitat and reduced protections in Resource Management Plans. Those plans guide land management for coming decades—for lands that have wildlife, cultural, archaeological, and recreational values. The Montana Governor asked the court to set aside three plans covering about 800,000 surface acres and 12 million acres of subsurface mineral estate.

One of these resource management plans in particular would be devastating for the climate. As we previously reported, the Administration proposed to make vast amounts of coal, oil, and gas available in the Powder River Basin in Montana (and Wyoming). NRDC and its partners sued to stop these plans and obtained a favorable decision from a Montana federal court, requiring the Bureau to disclose to the public the climate implications of its plans. In response to this legal victory, the Bureau released a supplemental environmental analysis for its plan amendment for the Miles City planning area in Montana—but it was still deficient. The plan made the same amount of coal available for leasing and development and failed to fully analyze and disclose the resulting impacts on the climate.

Fortunately, the same Montana court that ordered the Bureau to reanalyze the climate implications of the Miles City plan agreed with the Montana Governor, ruling that for more than a year, Pendley unlawfully exercised the responsibilities of the Bureau Director and enjoined him from continuing in the role. Consequently, in a win for the climate, the court set aside the Miles City Resource Management Plan Amendment (along with two other Montana plans for Lewistown and Missoula).

The Bureau has since removed “exercising the authority of director” from Pendley’s formal title of deputy director of policy and programs. But Pendley continues to double down, asserting that he’s still on the job as the nation’s acting head of public lands.

However, any decisions Pendley unlawfully makes on behalf of the Bureau are legally vulnerable.

Importantly, the Montana court noted that other decisions made by Pendley since July 2019—when Interior Secretary Bernhardt delegated the exercise of authority of Bureau Director to Pendley—could be found unlawful by other courts. The court expressly stated that “Conservation Groups remain free to file suit in the appropriate federal district court to challenge land management decisions they have identified as potentially unlawful.”  

And there are a host of other Pendley actions that could be unlawful: rulemakings, guidelines, programs, plans, and internal memos, along with his decision to reassign the Bureau’s Washington, D.C. based staff to the Bureau’s new headquarters in Grand Junction, Colorado, and to other BLM state offices in the interior west.

A comprehensive list of decisions that are now in jeopardy can be found here.

This is an important victory for our public lands and the environment, but also for the Constitution. The Administration has an obligation to uphold our constitutional system of check and balances. Neither Pendley nor any other presidential appointee is above the law.