A lawsuit was recently filed which challenged Secretary Bernhardt’s order allowing David Vela to temporarily exercise the authority of the National Park Service (NPS)) Director and William Perry Pendley to temporarily exercise the authority of the Bureau of Land Management (BLM) Director. The lawsuit alleges that the Secretary’s order is not in compliance with the Federal Vacancies Reform Act (FVRA), which it alleges is the exclusive means by which the duties of a Director can be temporarily performed. Thus, plaintiffs’ argue, both individuals are effectively but illegally acting as the Directors of their respective agencies.
The position of Director of both NPS and BLM requires Senate confirmation. Messrs. Vela and Pendley have not been nominated for or confirmed by the Senate for those positions. The duties of the Director can be temporarily performed, however, by individuals serving as “acting” Directors for a period of no longer than 210 days pursuant to the FVRA. A person can become acting Director either by presidential appointment or as a matter of law if they serve as Principal Deputy and there is no Director. Messrs. Vela and Pendley are not acting Directors. Both are currently Deputy Directors of their agencies, but not Principal Deputy Directors.
Instead, Messrs. Vela and Pendley have been exercising the authority of the Director since September 2019 and July 2019, respectively, pursuant to orders issued by Secretary Bernhardt pursuant to Section 2 of Reorganization Plan No. 3 of 1950 and the FVRA. The Secretary’s most recent order stated that it was required in order to ensure execution of the duties of the two Director positions “during the Presidential transition pending Senate-confirmation of new non-career officials.” The lawsuit asserted that, in addition to the order not being in accordance with law, these two statements are false because the current administration is 3 ½ years old and thus no longer in a transition phase and there have been no nominees pending for Senate confirmation for either of these positions.
The lawsuit also alleges that Mr. Pendley does not meet the legal qualifications for serving as Director of BLM. The Federal Land Policy and Management Act (FLPMA) requires that the BLM Director have “a broad background and substantial experience in public land and natural resource management.” The lawsuit alleges Mr. Pendley’s experience does not meet this criteria.