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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
DEPARTMENT OF NATURAL
RESOURCES AND CONSERVATION,
Plaintiffs,

4:20-cv-00062-BMM

ORDER

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: injuryin-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 sagegrouse 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 sagegrouse 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 quasisovereign status. Id. Montana has alleged “an injury to it in its capacity of quasisovereign.” 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-ofpowers 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. §§ 1610.32(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 Senateconfirmed 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 210day 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