Amid the COVID-19 crisis and the uprisings against police brutality and systemic racism, it is understandable if many Americans overlooked the Trump administration’s continued attacks on the management of public lands and the Constitution’s mandates about how our leaders are appointed.
The most recent attack of this type came with President Trump’s June 30, 2020, nomination of William Perry Pendley to be the Director of the Bureau of Land Management. Interior Secretary David Bernhardthas kept Pendley “exercising the authority of the director” in the role of Deputy Director of the Bureau since last July, in an illegal end-run around the federal law and the Constitution that limits the roles of “acting” directors. Now the administration is trying to get Pendley officially confirmed.
Even in normal times, Pendley would be a terrible choice to lead the Bureau, whose mission is to “sustain the health, diversity, and productivity of public lands for the use and enjoyment of present and future generations.” He’s a self-described “sagebrush rebel” who has a long record of opposing the very existence of the public lands he now oversees. Writing in 2016, Pendley said, “The Founding Fathers intended all lands owned by the federal government to be sold.” He has overseen the Bureau’s highly-politicized move from Washington, D.C. to the agency’s new western Colorado headquarters, losing critical long-term staff and creating vacancies in key positions.
Pendley not only approves of selling off the public lands but also selling out federal laws. In 2014, he complained that the Obama administration was waging a “war on the West” in its higher scrutiny of fossil fuel operations on public lands, and he claimed that environmental groups use the National Environmental Policy Act and the Endangered Species Act to “prevent anybody from making a living on federal land.”
As the former longtime president of the Mountain States Legal Foundation, he fought against workplace affirmative actionand voting rights for Native Americans out West. In addition, his 2017 op-ed, “Black Lives Matter began with a lie,” should be sufficient to disqualify him from national office; at this time in history, we need someone who will unify Americans, not seek to disparage the civil movements seeking justice for all. It’s all too clear that Pendley is a problematic nominee, for so many reasons.
Even if Pendley were an appropriate choice – and he’s not – the President’s recent nomination of him to head the Bureau does nothing to correct the legal and Constitutional deficiencies of Pendley’s unlawful current tenure. To head a big federal agency like the BLM, the candidate must be nominated by the President and then confirmed by the Senate under the Appointments Clause of the Constitution. Short of this, under the Federal Vacancies Reform Act, the President can appoint an Acting Director from among current high-level Bureau of Land Management officials for a period no longer than 210 days. As of next month, he will have run the Bureau for an entire year. And, as the nominee to be the Director, Pendley is prohibited under that Act from also serving as the de facto acting Director Allowing the Trump Administration to snub the norms of the American system of government is a Constitutional crisis with massive implications.