Trump Strikes Out Again in Court-- BLM Appointment Ruled Illegal

 A federal judge has ruled that Donald Trump's leading steward of public lands has been serving unlawfully, blocking him from continuing in the position in the latest push-back against the administration's practice of filling key positions without U.S. Senate approval.

U.S. Interior Department Bureau of Land Management (BLM) acting director William Perry Pendley served unlawfully for 424 days without being confirmed to the post by the Senate as required under the Constitution, U.S. District Judge Brian Morris concluded.  The ruling came after Montana´s Democratic governor sued to remove Pendley, saying the former oil industry attorney was illegally overseeing an agency that manages almost a quarter-billion acres of  land.

"[The] ruling is a win for the Constitution, the rule of law, and our public lands," Gov. Steve Bullock said. Environmental groups and Democratic lawmakers from Western states also cheered the judge's move after urging for months that Pendley be removed.   The agency will be required to abide by the judge's order during an appeal and will likely have to confront questions over the legitimacy of all decisions Pendley had made, including his approval of land use plans in Montana that Judge Morris said Pendley was not authorized to make.

BLM regulates activities ranging from mining and oil extraction to livestock grazing and recreation across the U.S.  Under Trump, BLM has been at the forefront in the administration's drive to loosen environmental restrictions for oil and gas drilling and other development on public lands.

Pendley has been one of several senior officials in the Trump administration running federal agencies and departments despite not having gone before the Senate for the confirmation hearings that are required for top posts.  Last month, the Government Accountability Office said acting Department of Homeland Security Secretary Chad Wolf and his acting deputy, Ken Cuccinelli, were improperly serving and ineligible to run the agency under the Vacancies Reform Act.  The two have been at the forefront of controversial and widely reviled initiatives on immigration and law enforcement.

Trump agencies have defended the avoidance of  Senate hearings for Trump nominees by claiming that  officials involved were only carrying out the duties of their acting position but were not actually filling that position, and thus did not require a Senate confirmation. Pendley had been formally nominated by Trump to direct BLM  in July, after being given several temporary authorizations to the acting position several times by Interior Secretary David Bernhardt.  But the nomination was withdrawn after the confirmation process threatened to become contentious  Pendley continued to hang on to his post despite the withdrawal by creating a new deputy director position, and then announcing that as deputy director he would be performing the duties of the director while the office was vacant.  

After installing himself as Deputy Director, Pendley approved two sweeping land resource management plans in Montana that would open 95% of federal land in the state to oil and gas development.  Trump officials had insisted in public statements and court filings that Pendley was not in fact the acting director, but rather 'exercising the authority of the director.'

Morris rejected the administration's argument, saying it undermined the constitutional system of checks and balances.  'Under the federal defendant's theory, a president could ignore their constitutional appointment responsibility indefinitely and instead delegate authority directly or through cabinet secretaries to unconfirmed appointed officials. Such an arrangement could last for an entire presidential administration.