Case 4:20-cv-00062-BMM Document 25 Filed 09/25/20 Page 1 of 34

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA
GREAT FALLS DIVISION

STEVE BULLOCK, in his official capacity

as Governor of Montana; MONTANA 4:20-cv-00062-BMM
DEPARTMENT OF NATURAL
RESOURCES AND CONSERVATION,
ORDER
Plaintiffs,

vs.

UNITED STATES BUREAU OF LAND

MANAGEMENT, an agency within the
United States Department of the Interior;
WILLIAM PERRY PENDLEY, in his
official capacity as the person exercising
authority of the Director of the Bureau of
Land Management; UNITED STATES
DEPARTMENT OF THE INTERIOR;
DAVID BERNHARDT, in his official
capacity as Secretary of the United States
Department of the Interior,

Defendants.

INTRODUCTION

The Governor of Montana and the Montana Department of Natural

Resources and Conservation (“Plaintiffs”) bring this action against the U.S. Bureau

of Land Management (“BLM”), William Perry Pendley in his official capacity, and

various government agencies and agents in their official capacities (together,

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“Federal Defendants”). Plaintiffs allege that Pendley unlawfully served as Acting

BLM Director in violation of the Appointments Clause of the U.S. Constitution,

the Federal Vacancies Reform Act of 1998 (“FVRA”), and the Administrative

Procedure Act (“APA”). (Doc. 1).

Plaintiffs seek declaratory and injunctive relief. (Doc. 1 at 29). Specifically,

Plaintiffs seek an order and judgment declaring Pendley’s service as Acting

Director of BLM unlawful; enjoining Pendley from exercising the authority of the

Director; enjoining Department of the Interior (“Interior”) Secretary David

Bernhardt from directing Pendley to exercise the authority of the Director; and

granting any other relief deemed appropriate. Id. Plaintiffs filed what they

fashioned as an Expedited Motion for Summary Judgment on August 20, 2020.

(Doc. 10). Federal Defendants argue that Plaintiffs lack standing to bring their

claims. (Doc. 17 at 1–2). Federal Defendants argue, in the alternative, that Pendley

exercises the authority of BLM Director through lawful delegation. Id. at 2–3.

BACKGROUND

Factual Background

BLM manages the use and maintenance of 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). The Federal Land

Management and Policy Act (“FLPMA”) charges BLM with administering those

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lands and subsurface acres. FLPMA requires that “the public lands be managed in

a manner that will protect the quality of scientific, scenic, historical, ecological,

environmental, air and atmospheric, water resource, and archeological values.” 43

U.S.C. § 1701(a)(8). Congress established the office of Director to lead BLM. By

statute, the Director of the BLM must be filled “by the President, by and with the

advice and consent of the Senate.” Id. § 1731(a).

BLM has operated without a Senate-confirmed Director since Neil Kornze

left the position on January 19, 2017. That day, the outgoing Secretary of the

Interior, Sally Jewell, issued a Secretarial Order to delegate temporarily the

“functions, duties, and responsibilities” of the BLM Director to Kristin Bail, the

Assistant Director for the Office of National Conservation Lands and Community

Partnerships. Secretary Sally Jewell, Order No. 3345 (Jan. 19, 2017). The Order

covered nine other positions across the Interior Department, including the Deputy

Secretary and the Solicitor. Id. Acting Secretary of the Interior Kevin Haugrud

amended the Order the following day to change select designations. Acting

Secretary Kevin Haugrud, Order No. 3345 Amendment 1 (Jan. 20, 2017).

Amendments became a pattern of practice. Secretaries of the Interior (both

Acting and Senate-confirmed) amended Order No. 3345 thirty-two times over the

next three years. These thirty-two amendments expanded and contracted the

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number of delegated positions covered, delayed the expiration for delegated

authority, and altered who wielded delegated authority.

Five people—none of whom had been approved by the Senate—would

exercise the “functions, duties, and responsibilities” of BLM Director: 1) Kristin

Bail, the Assistant Director for the Office of National Conservation Lands and

Community Partnerships, Secretary Sally Jewell, Order No. 3345 (Jan. 19, 2017);

2) Michael D. Nedd, Assistant Director of Minerals and Realty Management,

Secretary Ryan Zinke, Order No. 3345 Amendment 2 (Mar. 15, 2017); 3) Brian

Steed, Deputy Director of Policy and Programs, Secretary Ryan Zinke, Order No.

3345 Amendment 12 (Nov. 14, 2017); 4) Casey Hammond, Principal Deputy

Assistant Secretary for Land and Minerals Management, Secretary David

Bernhardt, Order No. 3345 Amendment 26 (May 11, 2019); and 5) William Perry

Pendley, Deputy Director of Policy and Programs, Secretary David Bernhardt,

Order No. 3345 Amendment 28 (July 29, 2019). These “temporary” authorizations

ostensibly were motivated by a desire to fill vacancies “during the Presidential

transition pending Senate confirmation of [a] new [Director],” even three years

into the presidential administration. Secretary David Bernhardt, Order No. 3345

Amendment 32 (May 5, 2020) (emphasis added).

Secretary Bernhardt extended Pendley’s tenure four times by amendment.

See Secretary David Bernhardt, Order No. 3345 Amendment 29 (Sept. 30, 2019)

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(extending Pendley’s appointment to January 3, 2020); Secretary David Bernhardt,

Order No. 3345 Amendment 30 (Jan. 2, 2020) (extending Pendley’s appointment

to April 3, 2020); Secretary David Bernhardt, Order No. 3345 Amendment 31

(Apr. 3, 2020) (extending Pendley’s appointment to May 5, 2020); Secretary David

Bernhardt, Order No. 3345 Amendment 32 (May 5, 2020) (extending Pendley’s

appointment to June 5, 2020).

Following the fourth and final extension, Pendley, “exercising the delegated

authority” of BLM Director, issued a memorandum (“Succession Memo”)

clarifying BLM’s “order of succession” for “Vacancies Reform Act” [sic]

purposes. Memorandum from William Perry Pendley on Designation of Successors

for Presidentially-Appointed, Senate-Confirmed Positions (May 22, 2020). Casey

Hammond, who previously exercised the delegated authority of BLM Director, but

now “exercising the delegated authority” of the Assistant Secretary of Land and

Minerals Management, approved this memorandum. See id. The Succession Memo

claimed to designate Pendley as the “First Assistant for the purposes of the

[FVRA]” and delegated Pendley “the authority to perform all duties and

responsibilities of the Director.” See id. Pendley has exercised the authority of

BLM Director under color of this self-delegation since June 5, 2020.

Pendley exercised BLM Director authority for 337 days under a combination

of Order amendments and the Succession Memo. President Donald J. Trump

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nominated Pendley for the position of BLM Director on July 30, 2020. PN2076

(116th Congress). Pendley continued to exercise BLM Director authority for 40

days while his nomination remained pending. President Trump withdrew Pendley’s

nomination on September 8, 2020.

Federal Defendants assert that Pendley continues to exercise BLM Director

authority under the Succession Memo. (Doc. 17 at 5–7).

Procedural History

Plaintiffs filed this action on July 20, 2020, to challenge Pendley’s use of

BLM Director authority. (Doc. 1). Plaintiffs allege that Pendley unlawfully has

served as Acting BLM Director in violation of the Appointments Clause of the

U.S. Constitution, FVRA, and APA. See id. Plaintiffs filed what they termed an

Expedited Motion for Summary Judgment on August 20, 2020. (Doc. 10). The

Court set a hearing on Plaintiffs’ Motion for Summary Judgment for September 21,

2020, without having ruled on the need for expedited proceedings. (Doc. 12). This

date provided more than the 21 days allowed for Federal Defendants to respond to

the Motion. See L. R. 7.1(d)(1)(B).

Federal Defendants filed their Opposition to Plaintiffs’ Motion for Summary

Judgment 20 days later, on September 9, 2020. (Doc. 17). Federal Defendants’

response focuses on their claim that Plaintiffs lack standing and that Pendley’s

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service does not violate the Appointments Clause. See id. The Court held a hearing

on the Motion for Summary Judgment as scheduled on September 21, 2020.

Legal Standard

A court should grant summary judgment where the movant demonstrates

that no genuine dispute exists “as to any material fact” and the movant is “entitled

to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Summary judgment remains

appropriate for resolving a challenge to a federal agency’s actions when review

will be based primarily on the administrative record. Pit River Tribe v. U.S. Forest

Serv., 469 F.3d 768, 778 (9th Cir. 2006).

ANALYSIS

I. Article III Standing

Plaintiffs must establish that they possess standing to invoke the Court’s

jurisdiction. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 559–60 (1992). Standing

represents an “indispensable part of [a] plaintiff’s case.” Id. at 561. The

“irreducible constitutional minimum of standing” contains three elements: injury-

in-fact, causation, and redressability. Id. at 560; see also Summers v. Earth Island

Inst., 555 U.S. 488, 493 (2009). “The party invoking federal jurisdiction bears the

burden of establishing these elements.” Lujan, 504 U.S. at 561. Federal Defendants

assert that Plaintiffs have failed to identify a sufficiently concrete or traceable

injury to maintain standing. (Doc. 17 at 9–15).

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Plaintiffs rely primarily on three separate theories to support their standing

claims. BLM manages 27 million acres of land in Montana. Plaintiffs allege that

Pendley’s unlawful leadership at BLM and his management decisions regarding

these lands has a significant and harmful effect on the environmental, economic,

and regulatory interests of Montana. Plaintiffs point to two policies, in particular,

that BLM adopted under Pendley’s direction and supervision to establish standing.

Plaintiffs first cite departures from commitments made by BLM to protect

sagebrush habitat on BLM lands, including the now-vacated sale of oil and gas

leases that covered land in Montana designated for protection as greater sage-

grouse habitat. See Montana Wildlife Fed’n v. Bernhardt, No. CV-18-69-GF-BMM

(D. Mont. May 22, 2020) (vacating these leases). Plaintiffs argue, in effect, that

BLM’s decisions to renege on these commitments could cause injury in the future

to those lands in Montana that had been designated for protection as greater sage-

grouse habitat. These allegations raise concerns regarding a lack of necessary

specificity to support standing. The Court notes that Montana, with land within its

borders managed by BLM, likely would have standing under this analysis in the

same way that a bank had standing to challenge the recess appointment of the

Director of the Consumer Financial Protection Bureau. State Nat’l Bank of Big

Spring v. Lew, 795 F.3d 48, 53 (D.C. Cir. 2015). Then-Circuit Judge Brett

Kavanaugh determined that the Bureau’s regulation of the bank afforded standing

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to the bank under Lujan to challenge the constitutionality of the Bureau. See id.

(citing Lujan, 504 U.S. at 560–61). The Court need not finally resolve this issue,

however, as Plaintiffs’ other claims clearly support Article III standing.

Plaintiffs next cite two finalized Resource Management Plans (“RMPs”) that

they allege would reduce protections for fish and wildlife habitat, cultural

resources, and recreational uses on federal lands in Montana. See BLM, Record of

Decision and Approved Lewistown Resource Management Plan (July 2020);

BLM, Record of Decision and Approved Missoula Resource Management Plan

(July 2020). Montana provided BLM with feedback on both RMPs as a part of the

State consultation procedure and joined members of the public who submitted

protest letters. (Doc. 1 at 24–25; Doc. 10-5 at Exhibits A–E, H). BLM approved

the RMPs following review by “the BLM Director” as well as resolution of protest

letters by the “BLM Director.” (Doc. 10-1 at 11–12).

Every case must satisfy the elements of standing, but a plaintiff asserting a

procedural right “can assert that right without meeting all the normal standards for

redressability and immediacy.” Lujan, 504 U.S. at 572 n.7. For example, someone

“living adjacent to the site for proposed construction of a federally licensed dam

has standing to challenge the licensing agency’s failure to prepare an

environmental impact statement, even though he cannot establish with any

certainty that the statement will cause the license to be withheld or altered, and

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even though the dam will not be completed for many years.” Id. The U.S. Supreme

Court emphasized that such a case differs completely from a case in which the

plaintiff does not live near the proposed dam. Id. As explained below, Plaintiffs

satisfy the standing requirements for a party asserting a procedural right.

Plaintiffs argue finally that they hold a “special position and interest” as a

State. Massachusetts v. E.P.A., 549 U.S. 497, 518 (2007). Standing requirements

universally apply to plaintiffs. A court must give “considerable relevance that the

party seeking review here is a sovereign State and not . . . a private individual.” Id.

The U.S. Supreme Court has recognized that States do not come before the courts

as “normal litigants for the purposes of invoking federal jurisdiction.” Id. Courts

grant States “special solicitude” in standing analysis to recognize their quasi-

sovereign status. Id. Montana has alleged “an injury to it in its capacity of quasi-

sovereign.” Id. (quoting Georgia v. Tennessee Copper Co., 206 U.S. 230, 237

(1907)). When Montana acts in that capacity, it “has an interest independent of and

behind the titles of its citizens[.]” Massachusetts, 549 U.S. at 519 (quoting

Tennessee Copper, 206 U.S. at 237). Application of these standing principles to

Plaintiffs’ claims under this standard removes any doubt as to Montana’s right to

bring these claims.

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Injury-in-Fact

To demonstrate injury-in-fact, Plaintiffs must show that they suffered “an

invasion of a legally protected interest” that is “concrete and particularized” and

“actual or imminent, not conjectural or hypothetical.” Spokeo, Inc. v. Robins, ___

U.S. ___, ___, 136 S. Ct. 1540, 1548 (2016) (quoting Lujan, 504 U.S. at 560). In a

procedural standing case, a plaintiff must show that the procedures at issue are

designed to protect some “threatened concrete interest” to satisfy the injury-in-fact

requirement. WildEarth Guardians v. U.S. Dep’t of Agric., 795 F.3d 1148, 1154

(9th Cir. 2015). A plaintiff must show “a geographical nexus between the

individual asserting the claim and the location suffering an environmental impact”

to demonstrate a concrete interest. Id. (quoting W. Watersheds Project v.

Kraayenbrink, 632 F.3d 472, 485 (9th Cir. 2011)).

FLPMA requires that BLM manage public lands “in a manner that will

protect the quality of scientific, scenic, historical, ecological, environmental, air

and atmospheric, water resource, and archeological values.” 43 U.S.C. §

1701(a)(8). BLM accomplishes this directive by developing, maintaining, and

revising RMPs for particular areas of public land. Id. § 1712(a)-(b); 43 C.F.R. §

1601.0–5(n). RMPs “guide and control future management actions.” 43 C.F.R. §

1601.0–2. RMPs designate “[l]and areas for limited, restricted or exclusive use”

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and determine “[a]llowable resource uses (either singly or in combination) and

related levels of production or use to be maintained.” Id. § 1601.0-5(n)(1)–(2).

Both FLPMA and the RMP regulatory guidelines provide significant

procedural opportunities for State and local input on public land management

decisions. FLPMA requires “meaningful public involvement” in the management

process. See 43 U.S.C. § 1732(c)(9). RMP regulations provide an opportunity for a

State to file recommendations on draft RMPs to ensure that any federal

management plans comport with State land management priorities. 43 C.F.R. §

1610.3–2(e). The initial consultation takes place between the State and the relevant

BLM State Director; however, the BLM Director ultimately considers, rules on,

and responds in writing to the State’s recommendations if BLM or the State

identifies any inconsistencies. See id.

Regulations also provide a protest procedure for draft RMPs. Any person,

including State agencies, may submit a written protest to a draft RMP directly to

the BLM Director. See id. § 1610.5-2(a). The BLM Director “shall promptly

render a decision on the protest.” Id. § 1610.5-2(a)(3). “The decision shall be in

writing and shall set forth the reasons for the decision.” Id. And the “decision of

the Director shall be the final decision of the Department of the Interior.” Id. §

1610.5-2(b). The Director’s protest ruling finalizes the RMP. See Or. Natural

Desert Ass’n v. Bureau of Land Management, 625 F.3d 1092, 1097 (9th Cir. 2010)

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(“Once the Director of the BLM has ruled on any protest, the decision is final and

the plan may be adopted.”).

Plaintiffs have proven sufficiently the injury-in-fact requirement of standing.

Plaintiffs’ alleged procedural injury stems from the risk that takes place “when

governmental decisionmakers make up their minds without having before them an

analysis of the likely effects of their decision on the environment.” Citizens for

Better Forestry v. U.S. Dep’t of Agric., 341 F.3d 961, 971 (9th Cir. 2003).

Specifically, the procedural injury that arises when the wrong official considered

their comments, and so those comments do not reach those officials lawfully

empowered to make the decision at hand. See generally Morgan v. United States

(Morgan I), 298 U.S. 468, 481 (1936) (declaring the foundational administrative

law principle that “[t]he one who decides must hear.”). In a separation-of-powers

violation case, it is “sufficient that the challenger sustains injury from an executive

act that allegedly exceeds the official’s authority.” Seila Law LLC v. C.F.P.B., ___

U.S. ___, ___, 140 S. Ct. 2183, 2196 (2020). See also Free Enter. Fund v. Pub.

Co. Acct. Oversight Bd., 561 U.S. 477, 513 (2010) (providing that “a separation-of-

powers violation may create a ‘here-and-now’ injury that can be remedied by a

court”).

Montana possesses a procedural right to submit recommendations and

protest on the RMPs. Montana availed itself of those opportunities. (Doc. 10-5 at

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Exhibits A–D, H). The Montana State BLM Director found no inconsistencies

between the RMPs and the recommendations filed by Montana. (Doc. 10-5 at

Exhibit E). The State BLM Director referred any disagreement to the BLM

Director. Id. BLM received 150 protest letters on the Lewistown RMP and 72

protest letters on the Missoula RMP. (Doc. 10-1 at 11). The “BLM Director

reviewed all protest issues for the proposed planning decisions . . . concluded that

the BLM Montana State Director followed the applicable laws. . . . The BLM

Director denied the protests, and that decision is the final decision of the US

Department of the Interior.” Id. BLM further published in the Federal Register that

“[a]ll protests have been resolved and/or dismissed by the BLM Director.” Notice

of Availability of the Record of Decision and Approved Resource Management

Plan for the Lewistown Field Office, Montana, 85 Fed. Reg. 47,239, 47,239 (Aug.

4, 2020). Pendley, acting as BLM Director, reviewed and resolved protests

received in the development of the RMPs.

Montana sought adequate and lawful consideration of its views as required

by statute and regulation. Montana did not receive such consideration if Pendley

unlawfully was exercising the authority of the BLM Director. Plaintiffs’ alleged

harm also proves sufficiently concrete because it occurs in the relevant geographic

boundary. See W. Watersheds Project, 632 F.3d at 485. The harms to fish and

wildlife habitat, cultural resources, and recreational uses on federal lands and

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State-owned/managed lands nearby those lands will take place within Montana’s

geographic boundaries. Such injuries present a potent concern for Montana as a

quasi-sovereign with traditional State interests over its land, water, air, and

wildlife. See Tennessee Copper, 206 U.S. at 237; California v. Trump, 963 F.3d

926, 936–40 (9th Cir. 2020). Plaintiffs have satisfied the injury-in-fact requirement

of standing through their demonstrated “actual or imminent” “invasion of a legally

protected right” that is “concrete and particularized.” Spokeo, ___ U.S. at ___, 136

S. Ct. at 1548 (quoting Lujan, 504 U.S. at 560).

Causal Connection and Redressability

To establish a causal connection, a plaintiff generally must establish a “more

than attenuated” line of causation between the challenged action and the alleged

harm. Maya v. Centex Corp., 658 F.3d 1060, 1070 (9th Cir. 2011). Once plaintiffs

have established a procedural injury-in-fact, they must demonstrate “only that they

have a procedural right that, if exercised, could protect their concrete interests.” W.

Watersheds Project, 632 F.3d at 485. The plaintiffs do not have to provide “proof

that an officer would have acted differently in the ‘counterfactual world’ where he

was properly authorized.” Collins v. Mnuchin, 938 F.3d 553, 586 (5th Cir. 2019),

cert. granted, __ S. Ct. __ (U.S. July 9, 2020) (No. 19-563).

Plaintiffs have alleged a procedural right under FLPMA. Plaintiffs allege

that preparation of the RMPs requires the BLM Director to consider comments and

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protests received from Montana. See 43 U.S.C. § 1701(a)(8); 43 C.F.R. §§ 1610.3-

2(e), 1610.5-2(a)(3). Pendley considered the protests when exercising the authority

of BLM Director. If Pendley unlawfully had been exercising the authority of the

BLM Director, then those protests were unlawfully addressed. See generally

Morgan I, 298 U.S. at 481. The finalization of the RMPs without proper

consideration threatens the State’s concrete interest as a quasi-sovereign in

protecting its land, water, air, and wildlife. See Tennessee Copper, 206 U.S. at 237.

BLM’s alleged procedural failure directly threatens Montana’s concrete interests.

The Court remains convinced that it can redress the unlawful exercise of

authority through a combination of equitable and legal remedies available to

correct statutory and constitutional violations. It is “likely, as opposed to merely

speculative” that the relief sought would resolve Montana’s injury-in-fact. Lujan

504 U.S. at 561 (internal quotation marks omitted). Plaintiffs have satisfied the

injury-in-fact, causation, and redressability requirements of standing. See Friends

of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180–81

(2000).

“Special Solicitude”

Plaintiffs have satisfied the requirements of standing based on their

procedural claims. Plaintiffs also satisfy the requirements of standing on the

independent basis of their “special position and interest” as a State. Massachusetts,

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549 U.S. at 518. Montana does not come before the Court as a “normal litigant[]

for the purposes of invoking federal jurisdiction.” Id. A State holds an independent

and concrete interest “in all the earth and air within its domain.” Tennessee

Copper, 206 U.S. at 237. A State has the “last word as to whether its mountains

shall be stripped of their forests and its inhabitants shall breathe pure air.” Id. A

State can protect its “sovereign territory” from greenhouse-gas emissions.

Massachusetts, 549 U.S. at 519–22. A State can shield its “environment and

wildlife” from harm and claim its “sovereign interests in enforcing their

environmental laws.” California, 963 F.3d at 936–40.

Montana has alleged “an injury to it in its capacity of quasi-sovereign.”

Massachusetts, 549 U.S. at 518 (quoting Tennessee Copper, 206 U.S. at 237).

BLM manages 27 million acres of land in Montana—nearly one-third of the

State’s landmass. Pendley’s allegedly unlawful management of that land harms

concretely Montana’s interests in land, water, air, and wildlife within its domain.

His allegedly unlawful actions further harm Montana’s interest in enforcing its

own environmental laws. The “special solicitude” granted to States, independent of

the concrete procedural harms alleged, reinforces the fact that Plaintiffs possess

standing to bring their claims. Massachusetts, 549 U.S. at 518.

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II. Pendley’s Appointment

Legal Framework

Article II of the U.S. Constitution requires that the President obtain the

“Advice and Consent of the Senate” before appointing “Officers of the United

States.” U.S. Const. art. II, § 2, cl. 2. Offices requiring Presidential appointment

and Senate confirmation (“PAS offices”) wield critical responsibilities in the

federal government. They lead departments and agencies, set priorities for the

bureaucracy, and direct the conduct of civil servants. The Framers split

responsibility over PAS offices between the Executive and Legislative Branches to

put a “check upon a spirit of favoritism in the President,” “prevent the appointment

of unfit characters,” and provide a “source of stability in the administration.” The

Federalist No. 76 (A. Hamilton). The requirement represents a “significant

structural safeguard[] of the constitutional scheme.” Edmond v. United States, 520

U.S. 651, 659 (1997).

Disagreement between the President and the Senate over nominee

qualifications may leave vacant positions unfilled—and their responsibilities

unperformed—for a time. See N.L.R.B. v. SW General, Inc., ___ U.S. ___, ___,

137 S. Ct. 929, 934–35 (2017). Congress has accounted for this reality throughout

our nation’s history by providing the President with limited authority to “direct

certain officials to temporarily carry out the duties of a vacant PAS office in an

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acting capacity, without Senate confirmation.” Id. at 934, 935–37 (describing the

history of temporary nomination statutes going back to “Washington’s first term”).

The FVRA, 5 U.S.C. § 3345 et seq., represents the most recent temporary

appointment authority from Congress. The FVRA prescribes the “exclusive means

for temporarily authorizing an acting official to perform the functions and duties”

of a vacant PAS office. 5 U.S.C. § 3347 (emphasis added). Congress adopted the

FVRA after significant inter-branch conflict in the 1970s and 1980s where the

President used “temporary designees . . . without presidential submissions of

nominations” to fill high-level positions. N.L.R.B. v. SW General, Inc., ___ U.S. at

___, 137 S. Ct. at 935–36 (quoting M. Rosenberg, Congressional Research Service

Report for Congress, New Vacancies Act: Congress Acts to Protect the Senate’s

Confirmation Prerogative 2–4 (1998)). In 1998 “approximately 20 percent of PAS

offices in executive agencies were occupied by temporary designees.” Id. at 936.

These “acting officers filled high-level positions, sometimes in obvious

contravention of the Senate’s wishes. One, for instance, was brought in . . . to serve

as Acting Assistant Attorney General for the Civil Rights Division of the Justice

Department, immediately after the Senate refused to confirm him for that very

office.” Id.

Congress enacted the FVRA to protect the Senate’s Advice and Consent

power and to prevent the President from engaging in similar evasive temporary

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appointment practices in the future. See id. As a result, the Act severely limits the

ways that a President may temporarily fill PAS offices. See id.

The Act authorizes only three classes of government officials to become

acting officers. 5 U.S.C. § 3345(a). As a default rule, the first assistant to a vacant

office shall become the acting officer. Id. § 3345(a)(1). The President, and only the

President, may override that default rule by directing either a person serving in a

different PAS office or a senior employee within the relevant agency to become the

acting officer. Id. § 3345(a)(1)-(2). The FVRA further prohibits persons from

serving as acting officers if they have been nominated to hold permanently the

position, or if they have held the acting role for more than 210 days. Id.

§§ 3345(b), 3346(a).

Unless the President uses the procedures of the FVRA to fill temporarily the

open position, the “office shall remain vacant,” and in the case of a sub-cabinet

agency, “only the head of [the] Executive agency” can perform the functions or

duties of the vacant office. Id. § 3348(b). Any “action taken by any person” who

serves as an acting officer in violation of the FVRA “shall have no force or effect”

and “may not be ratified.” Id. § 3348(d)(1)-(2). The FVRA defines “function or

duty” as one “established by statute” or “by regulation” and “required by statute”

or “by such regulation to be performed by the applicable officer (and only that

officer).” Id. § 3348(a)(2)(A)–(B).

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Congress established the office of Director to lead BLM—an office that

must be filled “by the President, by and with the advice and consent of the Senate.”

43 U.S.C. § 1731(a). As a result, the designation of an Acting BLM Director

remains subject to the exclusive methods set out in the FVRA. See 5 U.S.C. §

3347.

Pendley serves as the Acting BLM Director

Federal Defendants argue that whether one “appreciate[s] the difference or

not” Pendley “is not BLM’s Acting Director, but rather the official performing the

Director’s duties under the Secretary’s delegation.” (Doc. 17 at 1). Under Federal

Defendants’ 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. In fact, the case before the Court

presents that scenario.

Federal Defendants’ argument attempting to distinguish an “Acting

Director” from an “official performing the Director’s duties under the Secretary’s

delegation” represents a distinction without a difference. Such arguments prove

evasive and undermine the constitutional system of checks and balances. Federal

Defendants’ theory flies in the face of the constitutional design, the clear text of the

FVRA that provides the “exclusive” means for temporary appointment, and the

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history of Executive Branch evasion of the Appointments Clause that led Congress

to pass the FVRA in the first place.

This case does not present the only recent improper exercise of acting

authority in the Executive Branch. See, e.g., Casa de Maryland, Inc. v. Chad F.

Wolf, Case No. 8:20-cv-022118-PX (D. Md. Sept. 11, 2020) (invalidating the

appointment of Acting Secretary of Homeland Security Chad F. Wolf under the

FVRA); L.M.-M. v. Kenneth T. Cuccinelli II, Case No. 1:19-cv-02676-RDM

(D.D.C. Mar. 1, 2020) (invalidating the appointment of Acting Director of the

United States Citizenship and Immigration Services Kenneth Cuccinelli II under

the FVRA). This case does present, however, a unique method to evade proper

FVRA acting appointment procedures. The President cannot shelter

unconstitutional “temporary” appointments for the duration of his presidency

through a matryoshka doll of delegated authorities.

Secretarial Order 3345

A series of Secretarial Order Amendments first empowered Pendley as

Acting BLM Director. The amendments do not describe Pendley as the “Acting

BLM Director.” Rather, they purport to “temporarily redelegate authority for . . .

vacant non-career Presidentially appointed and Senate-confirmed positions.”

Secretary David Bernhardt, Order No. 3345 Amendment 28 (July 29, 2019). The

Secretarial Order Amendments go on to “delegate[]” all “functions, duties, and

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responsibilities” of the BLM Director position to Pendley. Id. The amendments

also provide a limitation, that the “delegation covers only those functions or duties

that are not required by statute or regulation to be performed only by the Senate-

confirmed official occupying the position.” Id. This boilerplate limitation appears

to be an attempt to avoid running afoul of the FVRA. Cf. 5 U.S.C. § 3348(a)–(d)

(requiring that any “action taken by any person” who serves as an acting officer in

violation of the FVRA “shall have no force or effect” and “may not be ratified,”

and defining a “function or duty” as one “established by statute” or “by regulation”

and “required by statute” or “by such regulation to be performed by the applicable

officer (and only that officer)”). The Order provides no mechanism to enforce or

track its limitation of authority. Pendley served under Secretarial Order delegations

from July 29, 2019, until June 5, 2020.

Succession Memo

After the fourth extension of Pendley’s service under the Secretarial Order,

Pendley, “exercising the delegated authority” of BLM Director, issued a

Succession Memo clarifying BLM’s “order of succession” for “Vacancies Reform

Act” [sic] purposes. Memorandum from William Perry Pendley on Designation of

Successors for Presidentially-Appointed, Senate-Confirmed Positions (May 22,

2020). Casey Hammond, who previously exercised the delegated authority of BLM

Director, but now “exercising the delegated authority” of the Assistant Secretary of

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Land and Minerals Management, approved this memo. Id. The Succession Memo

purported to designate Pendley as the “First Assistant for the purposes of the

[FVRA]” and delegated to Pendley “the authority to perform all duties and

responsibilities of the Director.” Id. Unlike the Secretarial Order, the Succession

Memo imposes no limitation of authority to only those duties that remain not

exclusive to the BLM Director. Federal Defendants asserted at the Motion for

Summary Judgment hearing for the first time that Reorganization Plan Number 3

of 1950 authorized the Succession Memo delegation. Reorganization Plan No. 3 of

1950, 15 Fed. Reg. 3174 (May 24, 1950). Pendley has served under this

Succession Memo self-delegation of authority since June 5, 2020.

Acting Director Analysis

Secretarial Order 3345 and the Succession Memo both represent unlawful

attempts to avoid the constitutional requirements of the Appointments Clause and

the statutory requirements of the FVRA. Each delegation improperly empowered

Pendley as the Acting BLM Director.

The Interior Secretary carefully crafted the Secretarial Order to avoid

designation of Pendley as “Acting BLM Director,” but the Executive Branch

cannot use wordplay to avoid constitutional and statutory requirements. No legal

authority exists for this kind of delegation from the Secretary.

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Federal Defendants attempt to justify the Secretarial Order by first pointing

out that the Secretary properly appointed Pendley as Deputy Director of Policy and

Programs at BLM under 43 U.S.C. § 1731(c). (Doc. 17 at 19). That is true. Federal

Defendants go on to argue that a subsequent Secretarial delegation of authority to

that lower-level official would be proper. Federal Defendants rely on United States

v. Eaton, 169 U.S. 331 (1898), for the principle that a lower-level official may

exercise the powers belonging to a higher office without offending the

Appointments Clause. (Doc. 17 at 19 (citing Eaton, 169 U.S. at 343)). Federal

Defendants misunderstand that case.

Eaton centered on whether Congress can provide a statutory process by

which the President can designate a temporary appointee, or if such an

arrangement would violate the Appointments Clause. Eaton, 169 U.S. at 336–37.

The U.S. Supreme Court declared that the process enacted by Congress that

allowed the President to appoint vice consuls temporarily without Senate approval

was constitutional. See id. at 343–44 (citing Rev. St. §§ 1695, 1703). Read

correctly, Eaton bolsters the fact that Congress can set parameters for temporary

appointments of PAS officers. Congress did exactly that when it adopted the

FVRA. The FVRA represents the only method by which a temporary designee can

exercise the authority of a PAS office.

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Similarly, no legitimate authority exists for the delegation described in the

Succession Memo, and the memorandum cites to none. Federal Defendants

asserted at the Motion for Summary Judgment hearing for the first time that

Reorganization Plan Number 3 of 1950 authorized the Succession Memo

delegation. Reorganization Plan No. 3 of 1950, 15 Fed. Reg. 3174 (May 24, 1950).

The Reorganization Plan provides authority for the Secretary of the Interior to

“from time to time make such provisions as he shall deem appropriate authorizing

the performance by any other officer, or by any agency or employee, of the

Department of the Interior of any function of the Secretary.” Id.

On its face this Plan does not authorize the Succession Memo. Casey

Hammond “exercising the delegated authority” of the Assistant Secretary of Land

and Minerals Management, approved this memorandum delegating authority to

Pendley who was himself “exercising the delegated authority” of BLM Director.

Memorandum from William Perry Pendley on Designation of Successors for

Presidentially-Appointed, Senate-Confirmed Positions (May 22, 2020). Nothing in

the Reorganization Plan authorizes someone to exercise temporary authority via

memorandum signed by two officials purportedly “exercising the delegated

authority” of their respective PAS offices without proper appointment and

confirmation. The FVRA does not authorize this arrangement either.

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Two more factors demonstrate that Pendley operated as the Acting BLM

Director. First, Pendley actually exercised powers reserved to the BLM Director.

Pendley analyzed the comments and protests submitted regarding the Lewistown

RMP and Missoula RMP. Regulations require the BLM Director alone to consider

and resolve recommendations and protests on RMPs. See 43 U.S.C. § 1701(a)(8);

43 C.F.R. §§ 1610.3-2(e), 1610.5-2(a)(3). Following Pendley’s review, BLM

published in the Federal Register that the “BLM Director reviewed all protest

issues for the proposed planning decisions . . . concluded that the BLM Montana

State Director followed the applicable laws. . . . The BLM Director denied the

protests, and that decision is the final decision of the US Department of the

Interior.” (Doc. 10-1 at 11). BLM further asserted in its Federal Register notice

regarding the RMPs that “[a]ll protests have been resolved and/or dismissed by the

BLM Director.” Notice of Availability of the Record of Decision and Approved

Resource Management Plan for the Lewistown Field Office, Montana, 85 Fed.

Reg. 47,239, 47,239 (Aug. 4, 2020).

Second, the Executive Branch repeatedly presented Pendley as Acting BLM

Director. The White House listed Pendley’s official title as the “Acting Director of

Bureau of Land Management” in a pool report on the same day that BLM

published the RMPs. (Doc. 10-1 at 12). Citing the declaration of yet another

Acting official, Federal Defendants argue that those “references were inadvertent.”

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(Doc. 17 at 7). Though not conclusive, this pattern of reference affirms what was

already established through delegation and practice: Pendley operated as the

Acting BLM Director. Whether Pendley operated as Acting BLM Director presents

a matter of law, not a matter of disputed fact, as Federal Defendants asserted at the

Motion for Summary Judgment hearing in a last-ditch effort to avoid summary

judgment. The only question that remains is whether the FVRA permitted

Pendley’s service.

Pendley’s Service as Acting Director Violates the Appointments

Clause and the FVRA

The Appointments Clause “is not an empty formality.” N.L.R.B. v. SW

General, Inc., ___ U.S. at ___, 137 S. Ct. at 948. Presidents cannot avoid their

constitutional obligation to appoint Officers on advice and consent of the Senate by

making “temporary” delegations with evasive titles and delegations. Pendley’s past

and continued service trivializes the import of the FVRA and the Appointments

Clause. Presidents possess significant authority over the Executive Departments,

but even where the President has broad discretion, “that discretion is not

boundless” and “may not transgress constitutional limitations.” Abourezk v.

Reagan, 785 F.2d 1043, 1061 (D.C. Cir. 1986). It remains “the duty of the courts,

in cases properly before them, to say where th[e] . . . constitutional boundaries lie.”

Id. “At some point, courts can and must play a role in policing ‘acting’

appointments that are effectively permanent.” Guedes v. Bureau of Alcohol,

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Tobacco, Firearms, & Explosives, 356 F. Supp. 3d 109, 153 (D.D.C. 2019), aff’d

on other grounds, 920 F.3d 1, 12 (D.C. Cir. 2019) (per curiam).

Congress established the BLM Director as an office that must be filled “by

the President, by and with the advice and consent of the Senate.” 43 U.S.C. §

1731(a). The agency’s statute provides no independent means to temporarily fill

the role. See, e.g., Hooks v. Kitsap Tenant Support Servs., 816 F.3d 550, 556 (9th

Cir. 2016); Guedes, 356 F. Supp. 3d at 143 (“Agency-specific statutes like the AG

Act were expected to operate alongside the FVRA, not to displace it”), aff’d on

other grounds, 920 F.3d 1, 12 (D.C. Cir. 2019) (per curiam). As a result, the

designation of an Acting BLM Director remains subject to the exclusive methods

for temporary appointment set out in the FVRA. See 5 U.S.C. § 3347. A delegation

that does not follow those procedures would violate both the FVRA and the

Appointments Clause of the U.S. Constitution.

Pendley has served and continues to serve unlawfully as the Acting BLM

Director. His ascent to Acting BLM Director did not follow any of the permissible

paths set forth by the U.S. Constitution or the FVRA. Pendley has not been

nominated by the President and has not been confirmed by the Senate to serve as

BLM Director. Pendley is not a member of the permitted category of individuals

who can serve in an acting capacity in a PAS office under the FVRA. Secretary

Bernhardt lacked the authority to appoint Pendley as an Acting BLM Director

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under the FVRA. Pendley unlawfully took the temporary position beyond the 210-

day maximum allowed by the FVRA. Pendley unlawfully served as Acting BLM

Director after the President submitted his permanent appointment to the Senate for

confirmation—another violation of the FVRA. And Pendley unlawfully serves as

Acting BLM Director today, under color of the Succession Memo.

The Executive’s delegation arrangement threatens “a gradual concentration

of the several powers in the same department.” The Federalist No. 51 (J. Madison).

It does not take “careful and perceptive analysis” to understand such a threat

because “this wolf comes as a wolf.” Morrison v. Olson, 487 U.S. 654, 699 (1988)

(Scalia, J., dissenting). Pendley’s previous and ongoing service as Acting BLM

Director violates the Appointments Clause of the U.S. Constitution and the FVRA.

The Court’s conclusions of law rely on a clear administrative record and do

not involve a genuine dispute as to any material fact. Federal Defendants noted at

oral argument that Plaintiffs had filed their Motion for Summary Judgment before

the expiration of the 60 days allowed under Rule 12(a)(2) to file their Answer to

Plaintiffs’ Complaint and of the 60 days allowed under Rule 12(b) to raise defenses

to Plaintiffs’ Complaint. Fed. R. Civ. P. 12(a)(2), 12(b). As a result, Federal

Defendants contend that they reserved the right to raise any genuine issues of

material fact that would defeat summary judgment under Rule 56 and to raise any

defenses allowed under Rule 12(b).

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Federal Defendants must do more than allege that genuine issues of material

fact may exist or claim to preserve defenses. Federal Defendants identified no facts

in dispute or facts that would be unavailable as of the September 21, 2020 hearing

date that would justify a delay. Rule 56(d) requires the non-moving party to show

by “affidavit or declaration” that it cannot present “facts essential to justify its

opposition” to summary judgment. Id., Rule 56(d). Federal Defendants filed no

affidavits or declarations. Federal Defendants filed no motion pursuant to Rule

56(d).

Rule 56(d) requires the party opposing summary judgment, regardless of

when raised during the litigation, to explain “why, at that timepoint, it cannot

present by affidavit facts needed to defeat the motion” for summary judgment.

Strang v. U.S. Arms Control & Disarmament Agency, 864 F.2d 859, 861 (D.C. Cir.

1989) (citing Londrigan v. F.B.I., 670 F.2d 1164, 1175 (D.C. Cir.1981)). Federal

Defendants failed to meet this standard when they announced at oral argument an

intent to preserve the right to identify, at some unspecified later date, potential

genuine issues of material fact that would defeat summary judgment. Therefore,

summary judgment proves appropriate. Pit River Tribe, 469 F.3d at 778.

III. Relief

Plaintiffs seek both declaratory and injunctive relief. Specifically, Plaintiffs

seek an order and judgment declaring William Perry Pendley’s service as Acting

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Director of BLM unlawful; enjoining Pendley from exercising the authority of the

Director; enjoining Secretary Bernhardt from directing Pendley to exercise the

authority of the Director; and granting any other relief deemed appropriate.

The Court deems appropriate the requested declaratory and injunctive relief.

The Court determines, however, that further relief likely should be granted under

the FVRA and APA. See, e.g., Casa de Maryland, Inc. v. Chad F. Wolf, Case No.

8:20-cv-022118-PX (D. Md. Sept. 11, 2020) (enjoining enforcement of rules

changed by an unlawfully serving acting official); L.M.-M. v. Kenneth T.

Cuccinelli II, Case No. 1:19-cv-02676-RDM (D.D.C. Mar. 1, 2020) (invalidating

the reduced-time-to-consult and prohibition-on-extension directives under the

FVRA and APA issued by an unlawfully serving acting official). Congress

prescribed an additional form of relief for violations of the FVRA: that “any

function or duty of a vacant office” performed by a person not properly serving

under the statute “shall have no force or effect.” 5 U.S.C. § 3348(d). Unless the

President uses the procedures of the FVRA to temporarily fill the open position,

the “office shall remain vacant,” and in the case of a sub-cabinet agency, “only the

head of [the] Executive agency” can perform the functions or duties of the vacant

office. Id. § 3348(b). Only the Secretary of the Interior can perform functions or

duties of the BLM Director.

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The APA requires courts to “hold unlawful and set aside agency action,

findings, and conclusions found to be . . . arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law.” Id. § 706(2)(A). A court

cannot “substitute its judgment for that of the agency.” Citizens to Preserve

Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971). A court instead must ensure

that the agency has “examine[d] the relevant data and articulate[d] a satisfactory

explanation for its action.” Motor Vehicle Mfrs. Assn. of United States, Inc. v. State

Farm Mut. Automobile Ins. Co., 463 U.S. 29, 43 (1983). The Secretary’s failure to

perform the functions and duties of BLM Director as required under the FVRA and

instead delegate those decisions to an improperly appointed Acting BLM Director

would render any decisions issued by that Acting BLM Director arbitrary and

capricious as not issued “in accordance with law.” 5 U.S.C. § 706(2)(A). See also

SW General, Inc. v. N.L.R.B., 796 F.3d 67, 79 (D.C. Cir. 2015), aff’d on other

grounds, ___ U.S. at ___, 137 S. Ct. at 938 n.2 (“The Board did not seek certiorari

on this issue, so we do not consider it.”).

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. See 5 U.S.C. §§ 3348(d), 706(2)(A). These acts

appear to include, but not be limited to, the Missoula RMP and the Lewistown

RMP. The Court will direct the parties to provide further briefing on these actions

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and any other BLM Director exclusive functions or duties that Pendley may have

performed.

ORDER

Accordingly, IT IS ORDERED that the Motion for Summary

Judgment (Doc. 10) is GRANTED:

 The Court declares that William Perry Pendley served unlawfully as

the Acting BLM Director for 424 days;

 The Court enjoins William Perry Pendley from exercising authority of

BLM Director;

 The Court enjoins Interior Secretary David Bernhardt from unlawfully

delegating the authority of the BLM Director;

 The Court directs the Parties to file simultaneous briefs within 10 days

of this Order, not to exceed 5,000 words, to address what acts of

Pendley, including but not limited to the Lewiston RMP and the

Missoula RMP, should be set aside under 5 U.S.C. § 3348(d)(1) and 5

U.S.C. §706(2)(A).

Dated the 25th day of September, 2020.

34