The Department of the Interior (DOI) secretary may have found himself in hot water. The Public Employees for Environmental Responsibility (PEER) and Westerns Watersheds Project (WWP) have notified DOI Secretary David Bernhardt of their intent to sue.
The groups stated that if Bernhardt continued to “issue amended orders authorizing two deputy directors to exercise the authority of the directors of the [Bureau of Land Management (BLM)] and the [National Park Service (NPS)] without compliance with the Federal Vacancies Reform Act (FVRA),” the duo would bring him to federal court.
The notice says William Perry Pendley, acting BLM deputy director for policy and programs, and David Vela, acting NPS director, have not been confirmed in their positions by the Senate or President Donald Trump as acting directors under the FVRA. The groups also say appointing the two officials violated the Administrative Procedure Act (APA).
“The president is allowed under the FVRA to appoint ‘acting’ officials into such positions, but only temporarily and under strict conditions,” the notice read. The groups note however, that Trump has never named an acting BLM or NPS director, and FVRA forbids lower unconfirmed officials who are not acting from occupying offices that require Senate confirmation.
Pendley was appointed as acting director last summer, and Vela last fall. Since then, 17 redelegation orders have been issued by Bernhardt to extend each director’s appointment. PEER and WWP have threatened to sue Bernhardt, Pendley, and Vela if their appointments are extended after May 5, when their current assignments expire.
“Our public lands and resources are too valuable to be managed by low-level deputies who evaded Senate confirmation and do not qualify to be ‘acting’ directors under the law,” said Erik Molvar, WWP executive director.
The groups mention a recent U.S. District Court decision ruled against an official in a similar position to Pendley and Vela. Ken Cuccinelli held the title of senior official performing the duties of the director for the U.S. Citizenship and Immigration Services, and was never appointed by the Senate.
The court ruled Cuccinelli acted illegally in his position, and that reliance on agency organic acts and redelegation provisions were not substitutes for complying with FVRA. The groups therefore believe Pendley and Vela would suffer the same fate in court.
“In short, your redelegation orders have detoured around the Constitution, contravened the FVRA, and been arbitrary and capricious, an abuse of discretion, and otherwise contrary to law, and are reviewable under the APA,” the notice concluded.
The federal agencies do not comment on potential impending litigation. — Anna Miller, WLJ editor
