August 4, 2020
Update: The White House announced on August 15 that Trump would be withdrawing Pendley’s formal nomination, though he will stay on in the role of deputy director of policy and programs and apparently continue as acting director.
William Perry Pendley, President Trump’s nominee to lead the Bureau of Land Management (BLM), has said that the government should sell federal lands, denied climate change, wants to weaken the Endangered Species Act and has sued BLM and the Interior Department repeatedly over the course of his career. His history of litigation against the agency that Trump has finally nominated him to lead—after nearly a year as its acting head—generated a list of potential conflicts of interest that is literally 17 pages long. With so many conflicts, what is left for Pendley to do as head of BLM?
When he initially joined the agency, which administers 245 million acres of federal lands and 30% of the country’s minerals, Pendley issued a 17-page list of 57 potential conflicts that he had to recuse from, including his former employer, the Mountain States Legal foundation (MSLF), his book publisher, and initially the Washington Examiner where he was a frequent blog contributor. Seven of those recusals have expired, and 50 are still in effect. The majority of the conflicts stem from clients that he represented at MSLF, including several airline and helicopter companies, the Petroleum Association of Wyoming, the American Exploration & Mining Association, the National Mining Association and the Colorado, Utah, Idaho, Montana and Wyoming Farm Bureau Federations.
Of course Pendley should not be allowed to work on matters related to his former employer, but recusing becomes a lot more complicated when his former employer has sued BLM and it’s parent agency the Department of Interior so frequently, and on behalf of so many clients, that Pendley’s work could be severely restricted. Not only that, but his past work has also conflicted Pendley out of party matters related to two major trade groups that would seek to influence BLM. It is hard to imagine how he could administer federal lands and minerals if he couldn’t make decisions related to multiple mining trade associations, five state’s farm bureau federations, or ideally any of the issues that his former employer has sued on.
But perhaps appointing a BLM director who is conflicted out of so much of the agency’s work is actually the point.
Pendley put his antagonistic attitude towards federal regulations and ownership of land into action as president of MSLF, where he worked until December 2018. In July 2019, he was appointed as the acting director of BLM. During the Trump administration alone, MSLF has been involved in at least six lawsuits challenging Interior and BLM actions or policies. MSLF is involved in four active lawsuits against Pendley’s boss, Interior Secretary Berhnardt, one against Interior itself and one against the Interior Board of Land Appeals. In addition, MSLF has intervened in two lawsuits advocating the reduction of the size of Grand Staircase Escalante and Bears Ears National Monuments. MSLF also intervened in a lawsuit against the United States to advocate for the rollback of grizzly bear protections. Most of these lawsuits involving Interior are attempts to increase private access to federal land for oil and gas and ranching companies.
Trump’s Interior Department has moved to put into place several of the policies that MSLF supports, which shows just how much overlap there could be between Pendley’s past work and the post that he’s been nominated to fill. The Endangered Species Act has been severely weakened, grizzly bears can now be hunted with donuts soaked in bacon grease, sage grouse habitat protections were loosened to pave the way for more oil and gas drilling and BLM is considering leasing land to oil and gas companies within half a mile of national monuments. And just a few weeks ago, the Trump administration overturned an environmental regulation in order to speed up the approval of oil and gas pipeline projects. As BLM Director, would Pendley have been conflicted out of all of that?
To understand Pendley’s perspective on the job he has been nominated for, look no further than the titles of two of his books: War on the West: Government Tyranny on America’s Great Frontier and Warriors for the West: Fighting Bureaucrats, Radical Groups, and Liberal Judges on America’s Frontier.
As the book titles hint, Pendley has long been advocating to reduce government ownership of public lands. In 2013, he called the federal government “a terrible landlord and worse neighbor.” Pendley first worked at the Interior Department under President Reagan, when he got in trouble for his involvement in leasing public land to coal companies far under market rate in order to maximize the amount of federal land being leased to companies.
Four decades later, Pendley’s crusade has advanced to the next level. This summer, BLM is forging ahead with moving its headquarters from Washington, DC to Grand Junction, Colorado, despite a scathing GAO report saying that the move was not justified. Pendley has vigorously defended the move in several op-eds. Half of the BLM staff asked to move have left the agency instead of moving across the country. Then-acting White House Chief of Staff Mick Mulvaney said last year that such relocations are a “wonderful way” to shed government employees.
Pendley is not the first Trump appointee to work against the agency he was appointed to lead. Former acting head of the Consumer Financial Protection Bureau (CFPB) Mick Mulvaney sponsored legislation to get rid of the agency. Rick Perry said he thought the US should abolish the Energy Department. Scott Pruitt sued the EPA 13 times and advocated against its existence. They all ended up leading those agencies. All of them have since left. Pruitt and Perry have both returned to the industry they came from.
With Pendley at the helm of BLM, not only have BLM employees had to contend with an agency leader at odds with the agency and its mission, but they have had to navigate Pendley’s absurdly long list of conflicts. Before bringing certain issues to Pendley’s attention, he asked in a note to staff that they consult his list of conflicts. Since that list includes several western states’ farm bureau federations, two of the major mining trade groups and his former employer that is involved in several ongoing lawsuits that are challenging the Interior Department or BLM’s function, it’s easy to imagine that his conflicts could become a real roadblock to agency action.
Pendley also has a financial arrangement with MSLF worth between $250,001 and $500,000 that entitles him to receive fixed annual payments for life beginning in 2025. Although he must recuse from particular matters that would affect the ability or willingness of MSLF to provide this, the agreement links his financial future with MSLF, which raises serious ethical questions given his ability to sign policy that could easily help any number of MSLF’s clients.
This financial entanglement should cause Pendley to be even more careful to avoid conflicts. Instead, the new ethics agreement submitted with his nomination actually omits language from his earlier ethics agreement requiring his recusal from “issues, decisions, and actions” related to MSLF, focusing only on “particular matters” in which MSLF is a party or represents a client. The legal standard for recusals is whether or not his involvement would cause a reasonable person to question his impartiality. Because of MSLF’s continuing litigation against BLM, and his long history of suing the agency, it is hard to imagine that a reasonable person would trust Pendley to leave all that at the door. During his confirmation hearing, Pendley might commit to recuse from anything in which he has taken a litigation position on behalf of MSLF and confirm that his earlier recusals still stand. But in doing so, he may create a situation where it is impossible for him to do his job. And that would put anyone voting for his confirmation between a rock and a hard place.
As Congress evaluates his tenure and the Senate considers his nomination, it must scrutinize not just his vision for ending government protection of public lands, but also his conflicts of interest. That might take a while.