BLM boss Pendley recused from Grand Staircase planning, but he remains listed as Utah counties’ attorney in suit

(Al Hartmann | Tribune file photo) Broken country of scrub and sandstone washes on top of the Kaiparowits Plateau in the Grand Staircase-Escalante National Monument, photographed in December 2001.

Acting Bureau of Land Management Director William Perry Pendley, until recently a prominent Western property-rights lawyer, has identified dozens of former clients — including Utah’s San Juan, Kane and Garfield counties — whose dealings with the BLM could pose conflicts of interest in his new role as a politically appointed agency leader.

On Wednesday, he shared a list of 57 clients and current business associates with top BLM leadership, pledging to recuse himself from “particular matters” involving these entities for two years, only one year for the counties. These include mining, oil, gas, livestock and agricultural associations whose interests are deeply affected by BLM policies.

“I have also established a rigorous screening process to ensure that I will remain in full compliance with the advice of the DEO [Departmental Ethics Office],” Pendley wrote in a cover email to his new BLM colleagues. “ ... I understand that preserving a culture of ethical compliance within the BLM begins with me, and I must set the example for the bureau.”

Also this week, the Interior Department affirmed in court filings that Pendley has been recused from Grand Staircase-Escalante National Monument planning, now reaching the finish line, but confusion persists over his role in the litigation surrounding the Trump administration’s controversial order reducing the Utah monument by half.

This is because he remains listed as Kane and Garfield counties’ lead attorney in their quest to intervene in one of two lawsuits challenging the Trump administration’s controversial decision to slash the Utah monument. The two counties support the move, which was recommended by then-Interior Secretary Ryan Zinke largely at the request of county leaders.

As an author and the former head of the right-leaning Mountain States Legal Foundation, Pendley has long argued for the selling off of public lands. Now he leads the agency that oversees 240 million acres of those lands, setting him up for potential conflicts of interest involving past clients.

His list includes Colorado property owner Michael Whited, whom Perry represented in a lawsuit accusing the BLM of mismanaging land adjacent to Whited’s. In a blog post about the case, Pendley decried the BLM as “the worst neighbor you can imagine.”

Also named is Marvin Brandt, a Wyoming property owner objecting to bicycles using a rail right of way through his property. The list of former clients includes mining industry groups, farm bureaus, air tour operators, the Petroleum Association of Wyoming, a shooting club and several other landowners in disputes with federal agencies.

Pendley joined the BLM on July 15 as deputy director for policy and programs. Two weeks later, Interior Secretary David Bernhardt named him the BLM's acting director under a temporary arrangement through Sept. 30, one that is not subject to Senate approval and could be extended.

Critics of Pendley’s appointment contend he should be barred from participating in anything that touches upon his past professional advocacy. This includes the reduced Bears Ears National Monument, whose reduction is also being challenged in cases Pendley sought to intervene in, according to Phil Hanceford, The Wilderness Society’s director of agency policy and planning.

“He should not be anywhere near these planning processes. The [Interior] ethics office should be taking a close a look at it,” Hanceford said. “This should be the beginning, the tip of the iceberg of Pendley recusing himself from things he has been associated with, including litigation matters.”

Pendley left Mountain States in late 2018 and established the Pendley law firm, which he ran with his wife before joining the BLM on July 15. During this period, the firm generated no income for Pendley, who represented no clients with the firm, according to a Sept. 6 memo Pendley submitted to Interior’s ethics office. Pendley’s firm now remains on inactive status.

He has also published several books critical of environmental protections for public land, including one titled “War on the West: Government Tyranny on America’s Great Frontier.” His ethics memo pledges not to use his official position to promote these books, which frame traditional users of public lands as victims of federal agencies, judges and environmental activists bent on getting them off the land.

In interviews since his appointment, Pendley has said his past advocacy will not be a factor in how he leads the agency he has spent so much of his career attacking. In his email to colleagues Wednesday, he promised to ensure the BLM would carry out its “duties in an ethical and transparent manner that the American people expect and deserve.”

Still, it is not entirely clear how far his recusals reach, although his ethics memo provides some guidance.

“If I personally determine that a reasonable person with knowledge of relevant facts would not question my impartiality in performing my official duties in the particular matter," he wrote, “then I understand that I may participate in the particular matter as part of my official duties.”

Does this mean Pendley will stay out of planning for Bears Ears National Monument, given that he represented San Juan County in its now-abandoned bid to intervene in lawsuits challenging Trump’s order to reduce that monument?

Proponents of a controversial fracking-sand mine in Kane County hold 12,000 acres of mining claims on BLM land and agreements with Kane County and Kanab to provide water for the operation. Should Pendley steer clear of anything involving this project, which proposes to mine on a state-owned section?

Meanwhile, Pendley remains listed as Kane and Garfield counties’ attorney in a suit brought by Grand Staircase Escalante Partners to invalidate Trump’s order reducing the Staircase monument.

In a Sept. 1 email to The Salt Lake Tribune, Mountain States attorney David McDonald said he would contact the court clerk to have Pendley's name formally removed from that docket. Nearly a month later, however, Pendley remains listed as the counties' lead attorney on the case, even though he is no longer involved.

Pendley’s past participation in the monument suits raised alarms because the longtime anti-public lands activist joined the BLM’s top leadership just as the agency was finalizing management plans for the reduced monuments and the 900,000 acres Trump stripped from the Grand Staircase.

The confusion around Pendley’s status in the cases stems from their administrative consolidation last year, establishing one filed by The Wilderness Society as the lead case. Earlier this year, Pendley filed papers to withdraw from that case, but, in what appears to be an oversight, the document failed to reference the second case filed by Grand Staircase Escalante Partners.

The judge’s consolidation order of February 2018 required that all future filings reference both cases in their captions, unless the filing pertains to just one.

In the meantime, Mountain States Legal Foundation, which is based in Colorado, had filed papers naming its general counsel, Zhonette Brown, as the Utah counties’ lawyer, although Pendley’s name still appears on the docket.