Bullock v. U.S. Bureau of Land Mgmt.

489 F.Supp.3d 1112

Steve BULLOCK, in his official capacity as Governor of Montana; Montana Department of Natural Resources and Conservation, Plaintiffs,

v.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.

4:20-cv-00062-BMM

United States District Court, D. Montana, Great Falls Division.

Signed September 25, 2020

Neil K. Sawhney, Raphael Graybill, Rylee K. Sommers-Flanagan, Office of Governor Steve Bullock, Helena, MT, Deepak Gupta, Pro Hac Vice, Jonathan E. Taylor, Pro Hac Vice, Gupta Wessler, PLLC, Washington, DC, for Plaintiff Steve Bullock.

Raphael Graybill, Rylee K. Sommers-Flanagan, Office of Governor Steve Bullock, Helena, MT, Deepak Gupta, Pro Hac Vice, Jonathan E. Taylor, Pro Hac Vice, Gupta Wessler, PLLC, Washington, DC, for Plaintiff Montana Department of Natural Resources and Conservation.

Michael Andrew Zee, United States Department of Justice, San Francisco, CA, for Defendants.

ORDER

Brian Morris, Chief District Judge

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, "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 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 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) (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 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 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, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Standing represents an "indispensable part of [a] plaintiff's case." Id. at 561, 112 S.Ct. 2130. The "irreducible constitutional minimum of standing" contains three elements: injury-in-fact, causation, and redressability. Id. at 560, 112 S.Ct. 2130 ; see also Summers v. Earth Island Inst. , 555 U.S. 488, 493, 129 S.Ct. 1142, 173 L.Ed.2d 1 (2009). "The party invoking federal jurisdiction bears the burden of establishing these elements." Lujan , 504 U.S. at 561, 112 S.Ct....