District Chief Justice Brian Morris of the U.S. District Court of Montana ruled that Pendley served illegally for 424 days, in response to a lawsuit brought by Democratic Montana Governor Steve Bullock and the Department of Natural Resources and Montana Conservation. Morris also ruled that Home Secretary David Bernhardt could not choose another person to lead the Office of Land Management as the interim chief, as that person must be appointed by the president and confirmed by the Senate.
The judge gave both sides of the case 10 days to file briefs on Pendley’s orders to be set aside.
“Pendley served and continues to serve illegally as the acting director of the BLM,” Morris wrote in her opinion. “His rise to the position of Acting Director of the BLM did not follow any of the authorized routes set out in the United States Constitution or the Federal Vacancies Reform Act. Pendley has not been nominated by the president and has not been confirmed by the Senate to sit as BLM Director. ”
He added: “Secretary Bernhardt did not have the authority to appoint Pendley as acting director of the BLM under the FVRA. Pendley has illegally occupied the temporary post beyond the 210-day maximum allowed by the FVRA. Pendley illegally served as acting director of the BLM after the president presented a permanent appointment to the Senate for confirmation – another violation of the FVRA. And Pendley is illegally acting director of the BLM today, under the guise of the succession note. ”
The BLM manages 244 million acres of federal land in the United States – one in 10 acres of land in the country – as well as 30% of the country’s minerals. As Interim Director of BLM, Pendley wielded significant authority over the leasing and use of land for mining, recreational, oil and gas exploration and development, while maintaining environmental protections for federal lands. The agency is currently taking steps to move its head office and employees to the west.
Last year, Pendley became the fifth person to lead the office on a temporary basis following the departure of Director Neil Kornze, less than a year in the Trump administration. Bullock filed a lawsuit in July to challenge Pendley’s authority.
Pendley, a Conservative activist, commentator and lawyer, was appointed by Bernhardt as interim director in July 2019.
Morris wrote that by law the position of director of the Bureau of Land Management must be confirmed by the Senate. The Trump administration has argued that Pendley does not officially have the title of acting director, so the requirement does not apply.
“Such arguments are evasive and undermine the constitutional system of checks and balances,” Morris wrote, adding that the administration publicly named Pendley as the agency’s director.
Home Department spokesman Conner Swanson told CNN in an email that the administration would appeal “immediately.”
“This is an outrageous decision that is well outside the bounds of the law,” Swanson said.
Bullock, who is challenging GOP Senator Steve Daines in a competitive Senate race, tweeted: “Today’s decision is a victory for the Constitution, the rule of law and our public lands. “
CNN’s Katelyn Polantz contributed to this report.