William Perry Pendley was serving illegally as the Bureau of Land Management’s acting director when the agency’s updated resource management plan for the Montrose area was approved, thus, the plan should be voided, the Colorado Attorney General’s Office contends in a lawsuit.
The suit, filed Friday, also alleges the plan’s approval was at odds with state programs and policies designed to protect big game and sage-grouse and largely ignored the state’s concerns despite assurances these would be addressed. As a result, both wildlife and the state’s multi-billion-dollar economy are harmed, the complaint indicates.
The state maintains these flaws and a failure to follow proper processes add to up reasons for the U.S. District Court to set aside the updated Uncompahgre Resource Management Plan. The plan guides 675,800 acres of surface lands and 971,220 of federal mineral estate, including in the North Fork Valley.
“Unfortunately for us, the BLM has not been responsive to our input, has not followed the correct processes and has actually made decisions without legal basis because they don’t have a director legally authorized to make the decision,” Colorado Attorney General Phil Weiser said.
“We needed to file this lawsuit so we could protect public lands and our economy.”
The resource management plan was updated after a multi-year process and was approved last year under Pendley’s tenure.
The state cooperated in reviewing and commenting on a draft update in 2016, but says the BLM did not respond to the state’s Department of Natural Resources comments during the cooperating agency process, nor did the DNR receive the final administration copy of the resource management plan and environmental impact statement.
The draft plan did not address DNR’s concerns over standards for big game like deer and elk, or the allegedly inadequate analysis of conserving Gunnison sage-grouse habitat.
In 2019, the public was notified to direct all protests in writing to the BLM’s director, which the state of Colorado did that July, objecting to the plan’s lack of winter range and migration protections, as well as protections for the grouse and its habitat.
Governor Jared Polis submitted a consistency review that September. Although its recommendations were rejected, he did not appeal because he had received “assurances from the BLM that the majority of the state’s wildlife related concerns would be addressed in a separate, statewide resource management amendment,” the lawsuit says.
The BLM last February issued a protest resolution report, concluding that the state BLM director followed the law and considered all relevant and public information, which the state disputes. The litigation alleges another BLM official, June Shoemaker — the BLM deputy state director in Idaho who is also named in the suit — signed a letter to the DNR stating she had resolved the protest. Shoemaker “purported to exercise” the authority of the BLM assistant director of Resources and Planning, per the suit.
The BLM further did not publish in the Federal Register that anyone other than the BLM director would be resolving protests.
In addition to not adopting proper protections for wildlife and habitat, the approved resource management plan did not address greenhouse gas reduction targets and emission minimization required under state law, the complaint says.
These failures are “inconsistent with the agency’s federal law obligations” and “erode longstanding management protections and fail to take into consideration concerns expressed by primary stakeholders, particularly the Department of Natural Resources and the state,” the lawsuit reads.
“This is an area that involves balancing a lot of interests,” Weiser said. “It has to be done sensitively, ensuring all have been listened to and we are operating in a deliberate way. What happened in this decision was a failure to have that consultative process.”
The state has a vested interest in protecting outdoor recreation opportunities such as hunting. The overall economic impact of outdoor recreation in the state — $34.5 billion — includes $41 million from 186,000 big game hunter days in Montrose and other counties in the BLM’s Uncompahgre Field Office planning area. The suit contends those interests will be hurt by the current resource management plan, as will sage-grouse recovery.
Further, the resource management plan is essentially nullified because it was approved under Pendley’s tenure, which a U.S. District Court in Montana earlier determined was illegal.
Echoing previous suits over the Uncompahgre Resource Management Plan, Colorado also alleges Pendley’s service as acting director violates the Appointments Clause of the Constitution and the Federal Vacancies Reform Act.
The Department of the Interior does not ordinarily comment on litigation. A spokesman said previously, however, that the Montana District Court’s ruling “fundamentally misinterprets the law” and is erroneous.
Another spokesman criticized earlier suits over the plan by environmental groups as negatively affecting recreation access, conservation and energy development.
But it was Pendley’s flawed appointment as acting director that left states across the West in a bind, Polis said in a provided statement Friday.
“The unfortunate fact is that if the Trump Administration had followed the law in appointing a Senate-confirmed nominee to lead the BLM, Colorado and other Western states would not be in this predicament,” he said.
“It is now Colorado communities and the State of Colorado who face unnecessary uncertainty and potential impacts to local recreation and outdoor industry jobs.”
Pendley began working as deputy director for BLM Policy and Programs in July 2019. The “functions, duties and responsibilities of the BLM director” were delegated to Pendley July 29, 2019, Colorado’s lawsuit says and Pendley was “regularly understood by members of the public and the news media to be leading the BLM.”
Pendley exercised that authority until last Sept. 25, when the federal court in Montana enjoined him from doing so.
Colorado in its suit reiterated the position that Pendley’s appointment was in violation of the Appointments Clause and the Federal Vacancies Reform Act.
Per the suit, Pendley wasn’t qualified to be acting director because he was not first an assistant director, as the act requires; prior to his appointment, he did not serve in an office for which Senate confirmation was required and he was not a senior-level BLM employee when the vacancy occurred in 2017.
Under the act, even those who are qualified to perform duties in an acting capacity are not allowed to do so indefinitely. They are instead limited to 210 days from when the vacancy first occurred, with that timeline extended by 90 days during transitions between presidential administrations.
Pendley’s service as acting director exceeded those limits and his later nomination did not cure those violations, the state’s complaint alleges.
Weiser said the Montana ruling concerning Pendley’s service gives the state confidence. The BLM must act in a way that follows legal process, he said.
“Here, we believe they acted outside those requirements and in a way that is unlawful,” Weiser said.
The legal action will carry over into the Biden Administration, where Weiser hopes to see progress.
“We believe the best way to address it is for BLM to admit it violated the law and then do it (plan) the right way,” he said.
“ … We prefer to follow problems through collaboration. In this case, we weren’t able to, so we had to proceed to litigation.”
Weiser said public lands and wildlife are a big part of Colorado’s way of life and an economic engine. Ideally, the BLM would be a partner recognizing that.
“I look forward to working with the new administration to protect our interests in Colorado and to go about developing a management plan in the right way,” he said.
“If the federal government acts in ways that hurt Colorado, we need to step up for Colorado and that’s what we’re doing in this litigation.”
Katharhynn Heidelberg is the Montrose Daily Press assistant editor and senior writer. Follow her on Twitter, @kathMDP.