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Ruling removing Pendley could also nix Missoula BLM management plan

William Perry Pendley, acting director of the U.S. Bureau of Land Management (BLM)

The court ruling that ousted William Perry Pendley from the position of acting director of the Bureau of Land Management could also negate recently issued Bureau of Land Management plans in Montana, including the Missoula BLM Office Resource Management Plan.

“These plans have to go. All this was done illegally,” said Aubrey Bertram, the Montana Wilderness Association’s eastern Montana field director. “These plans have to be rescinded, and we have a really great opportunity to revisit all of this work across the state and do so in a way that they protect the integrity of Montana public lands. And do so in a way that isn’t in violation of the Constitution.”

Montana conservation groups celebrated after Great Falls federal court judge Brian Morris confirmed what they’d been saying for about a year: William Perry Pendley wasn’t confirmed by the U.S. Senate so he was illegally running the Bureau of Land Management. In fact, none of the four men who have landed in the top BLM position since March 2017 have had the legal authority to act as director, according to the U.S. Constitution and the Federal Vacancies Reform Act of 1998.

The Federal Vacancies Reform Act allows people to be assigned to agency leadership positions temporarily while the reins are transferred from one presidential administration to another. The law says people can fill positions for only 210 days, but Pendley headed the BLM for 424 days and started three years into the administration.

“The president cannot shelter unconstitutional “temporary” appointments for the duration of his presidency through a matryoshka doll of delegated authorities,” Morris wrote.

But when Gov. Steve Bullock and the Montana Department of Natural Resources Conservation sued the BLM and the Department of the Interior on July 20, their problem wasn’t just with Pendley’s illegitimacy. It was mainly with the fact that the state of Montana and others had voiced their opposition to the rewritten Lewistown and Missoula BLM resource management plans.

The two plans made no attempt to hide the fact that the BLM had made resource extraction the priority and little effort was made to include any land or wildlife conservation. Comments accused the BLM of abandoning its multiple-use mandate. Protections for wilderness study areas were eliminated, and the Lewistown plan opened up almost every acre in that region to oil and gas.

Pendley ignored their concerns and approved the plans in July. So Montana sued, saying Pendley didn’t have the authority of a BLM director, and therefore he couldn’t approve resource management plans or carry out other duties reserved for the BLM director alone. Morris agreed.

“A ruling like this is so monumental because we don’t have a lot cases that deal with the Federal Vacancies Reform Act. This kind of case doesn’t come along very often,” Bertram said.

Bullock and the DNRC could have sued using only the arguments that states are quasi-sovereign entities and Montana contains 27 million acres of BLM land. Previous courts have ruled that a state has the “last word as to whether its mountains shall be stripped of their forests and its inhabitants shall breathe pure air.”

But the two RMP plans and the fact that Pendley approved them this summer without the authority to do so helped seal the deal on Montana’s standing.

The judge also highlighted the plans as examples of all the decisions that Pendley made that now should be reversed.

“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. These acts appear to include, but not be limited to, the Missoula RMP and the Lewistown RMP,” Morris wrote.

The judge gave Bullock and the federal defendants 10 days to list all of Pendley’s actions that should be set aside.

“The judge was basically begging Bullock to list the RMP’s specifically,” said Aaron Weiss, deputy director of the Center for Western Priorities. “The Interior Department has said they will appeal. I would not be surprised at all if they went to an appeals court looking for a stay of this ruling and any effects. Because it does take effect immediately and the judge is clearly moving very fast to toss out these resource management plans.”

Requests for information made to the local and regional offices of the BLM on whether they would be starting over on the public process for rewriting the resource management plans were referred to the Department of the Interior.

Conner Swanson of the Office of the Interior Secretary sent the Missoula Current a statement from the Solicitor of the Department of the Interior, Dan Jorjani.

“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. Nevertheless, the Department will comply with the Court’s Order, while we move forward with an appeal and review all other legal options,” Jorjani said in the statement. “The Bureau of Land Management and all of its employees will continue to perform their important duties on behalf of the American people.”

In the meantime, all the groups who since 2014 put time and comments into the two Montana resource management plans are rolling up their sleeves in preparation for helping the BLM write new plans, this time with broader appeal to all public land users.

Until it can publish another plan to be approved by a confirmed director, the Missoula office would fall back to its previous plan for managing its 163,000 acres in and around the Garnet Mountains between Missoula and Avon. Among other things, this would require managing 2,500 acres for wilderness characteristics around three wilderness study areas and would keep all 1,225 acres in areas of critical environmental concern.

Resource management plans are intended to guide the BLM for about a decade before a new plan is written. The process to write a new plan itself can take at least two to three years.

Montana Wildlife Federation spokesman Alec Underwood said it’s unlikely that the Missoula and Lewistown offices would have to start from scratch. They could dust off the 2016 versions, which were rejected by the Trump administration. The 2016 draft of the Lewistown plan set aside 100,000 of 200,000 acres as having wilderness characteristics.

“The opportunity to revisit these plans and strengthen them for what’s actually on the land, and stop allowing the lands to be subject to speculative oil and gas leasing, that’s something that absolutely should be done,” Underwood said. “This blatant disregard for the existing values out there flies in the face of hunters and anglers and people who value those lands for what’s there. It’s not good management to ignore those values.”

Bertram said the Montana Wilderness Association would rather wait until 2021 to jump in so it knows how much to invest. If the Department of the Interior remains the same and Pendley is still pulling strings somewhere in the BLM, Montanans still might not be heard.

“We’re 30-odd days out from a major presidential election and the executive branch is really up for grabs right now,” Bertram said. “If we’re going to revisit these plans, we need to wait for a new administration to start in January before we engage in these policy processes that come directly from the executive branch.”

Contact reporter Laura Lundquist at lundquist@missoulacurrent.com.