489 F.Supp.3d 1112
D. Mont.2020Background
- BLM manages ~27 million acres in Montana and a national portfolio of public lands; its Director is a Presidential appointment requiring Senate confirmation under 43 U.S.C. § 1731(a).
- From Jan. 2017–2020, the Interior Secretary repeatedly used Secretarial Order No. 3345 (and 32 amendments) to delegate the BLM Director’s "functions, duties, and responsibilities" to a series of unconfirmed officials; William Perry Pendley received such delegations beginning July 29, 2019.
- After extensions, Pendley issued a May 22, 2020 "Succession Memo" purporting to designate him the FVRA "first assistant" and to authorize him to perform all Director duties; he exercised Director authority through actions including resolving protests on the Lewistown and Missoula Resource Management Plans (RMPs).
- Montana (Governor Bullock and the State DNRC) sued, alleging Pendley’s service violated the Appointments Clause, the Federal Vacancies Reform Act (FVRA), and the Administrative Procedure Act (APA), and sought declaratory and injunctive relief.
- The Court held Plaintiffs had Article III standing (procedural injury and state "special solicitude"), ruled Pendley had in fact acted as the BLM Director, found the Secretarial Order and Succession Memo could not lawfully bypass the FVRA, and granted summary judgment.
- Relief: the Court declared Pendley’s service unlawful for 424 days, enjoined Pendley from exercising Director authority and Bernhardt from unlawfully delegating it, and ordered briefing on which of Pendley’s Director-exclusive actions (e.g., the Lewistown and Missoula RMPs) must be set aside under 5 U.S.C. §§ 3348(d) and 706(2)(A).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to sue | Montana suffered concrete, geographically tied procedural injury from Pendley resolving RMP protests and altering land protections; state gets "special solicitude" | No sufficiently concrete or traceable injury; plaintiffs cannot show redressability | Standing satisfied: procedural injury + state sovereign interests; causation and redressability met |
| Was Pendley an Acting BLM Director under the FVRA/Appointments Clause? | Pendley exercised Director-only duties and was presented as Acting Director; his authority must conform to FVRA or constitution | He was merely performing delegated duties under the Secretary’s authority (not an "Acting Director") | Pendley acted as the BLM Director; labels and delegations cannot evade FVRA/Appointments Clause; his service violated both |
| Legality of Secretarial Order 3345 and Pendley’s Succession Memo (delegation authority) | Secretarial orders and the Succession Memo unlawfully attempted to bypass FVRA; Reorganization Plan 3 and Eaton do not authorize this scheme | Delegations flowed from Secretary authority and longstanding practice (and Reorg. Plan No. 3/Eaton) | Both the Order amendments and the Succession Memo failed to lawfully authorize Pendley; Eaton/Reorg. Plan do not displace FVRA |
| Remedy for actions Pendley took as Director (e.g., RMPs) | FVRA and APA require that Director-exclusive actions taken by an improperly serving acting official have no force and be set aside | Federal Defendants sought to preserve those actions; argued factual disputes and procedural defenses | Court ordered declaratory relief, injunctions, and directed further briefing on which Director-exclusive actions must be vacated under FVRA §3348(d) and APA §706(2)(A) |
Key Cases Cited
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (standing essentials: injury-in-fact, causation, redressability)
- Spokeo, Inc. v. Robins, 578 U.S. 330 (2016) (requirements for concrete and particularized injury)
- Massachusetts v. EPA, 549 U.S. 497 (2007) (state "special solicitude" in standing analysis)
- Georgia v. Tennessee Copper Co., 206 U.S. 230 (1907) (state quasi-sovereign interests in natural resources/environment)
- NLRB v. SW Gen., Inc., 137 S. Ct. 929 (2017) (history and limits of temporary appointment statutes; FVRA context)
- Seila Law LLC v. CFPB, 140 S. Ct. 2183 (2020) (separation-of-powers and structural limits on executive appointments)
- Free Enterprise Fund v. PCAOB, 561 U.S. 477 (2010) (separation-of-powers consequences and remedial doctrines)
- United States v. Eaton, 169 U.S. 331 (1898) (historical discussion of temporary designation and its limits)
- Morgan v. United States, 298 U.S. 468 (1936) (administrative law principle that decisionmaker must hear interested parties)
- Citizens for Better Forestry v. U.S. Dep’t of Agric., 341 F.3d 961 (9th Cir. 2003) (procedural injury where decisionmakers exclude required environmental analysis)
- Pit River Tribe v. U.S. Forest Serv., 469 F.3d 768 (9th Cir. 2006) (summary-judgment review of agency action on administrative record)
- State Nat’l Bank of Big Spring v. Lew, 795 F.3d 48 (D.C. Cir. 2015) (standing in challenge to agency leadership and regulation)