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An Acting Director and a Permanent Move

(Illustration: Leslie Garvey/POGO)

This op-ed originally appeared in Morning Consult on December 4, 2019.

It has been more than 1,000 days since the Bureau of Land Management has had a permanent, Senate-confirmed director. In that almost three-year period, four acting directors have cycled through the Bureau of Land Management, including current acting-director William Perry Pendley. 

Despite his temporary status, Pendley is overseeing permanent decisions. It’s well past time for the Bureau of Land Management to have a Senate-confirmed director.  

Recently, over 80 percent of the Bureau of Land Management’s Washington, D.C.-based staff received relocation paperwork ahead of the agency’s move west, with plans to open one of the new offices as early as this winter.

Pendley, per his title, is exercising the authority of the director, but he has not gone through the confirmation process required of that position. Pendley’s authority to run the Bureau of Land Management as an acting director comes from the Federal Vacancies Reform Act of 1998, which allows the president to appoint temporary, or acting, directors while they find, nominate and confirm qualified candidates.

But the Vacancies Act only allows an acting director to fill a vacant position for 210 days. Nearly three years later, there is no place for an acting director. The president must nominate a permanent candidate.

With such consequential decisions on the horizon for the Bureau of Land Management, it is time for a permanent director.

Furthermore, acting directors such as Pendley may be less inclined to push back against politically motivated decisions, deferring to their bosses in the hopes of getting nominated for the job they are still auditioning for. When it comes to permanent or especially consequential decisions, agencies need directors who are willing to push back against political tides and advocate for their agency’s best interest. A presidentially nominated and Senate-confirmed permanent director brings a certain level of job security to the position that allows for the individual to make difficult decisions.

Pendley’s history advocating for oil and gas extractors also raises questions about potential conflicts of interest that could complicate the agency’s handling of leases on our nation’s public lands. Pendley spent almost 30 years as the president of the Mountain States Legal Foundation, a nonprofit law firm that has represented clients against federal land use restrictions and other property rights issues. Collectively, Pendley and the Mountain States Legal Foundation have filed lawsuits against the Interior Department at least 40 times, and some of the cases that began while Pendley was president are still ongoing.

Pendley released a 17-page recusal list highlighting a number of people, companies and advocacy groups he must avoid while working at the agency. Because Pendley is an acting director, these conflicts of interest have not been openly and properly discussed by the Senate.

An agency within the Department of Interior, the Bureau of Land Management is responsible for administering public lands owned by the federal government, with jurisdiction over 1 in 10 acres of land across the country. On the land the Bureau of Land Management oversees are nearly 100,000 oil and gas wells, millions of acres of Indian land, and 200 miles of international border land.

In 2018, energy development activity on BLM’s managed lands generated almost $100 billion in economic output, 70 percent of which was through oil and gas extraction. Oversight of this land should be conducted by a director whose conflicts of interest have been thoroughly vetted and who is clearly qualified for the job.

Nominees are required to submit to the Office of Government Ethics forms disclosing financial or other conflicts of interest. Though other federal employees, including those in an acting capacity, would have filed some similar ethics disclosures, they would not have reached the same level of scrutiny that a Senate confirmation process entails.

President Donald Trump has had more than enough time to find a qualified candidate to run the Bureau of Land Management. With Pendley’s appointment set to expire in January and such consequential decisions on the horizon for the Bureau of Land Management, it is time for a permanent director.