Legal Cloud Looms over Interior Department Actions

Legitimacy of Acting Directors of Parks, BLM, and Fish & Wildlife Remains in Doubt

Washington, DC March 5, 2018 – The legal authority of the acting heads in three major Interior Department agencies is still up in the air, according to the General Counsel of Interior’s own Office of Inspector General (IG). Consequently, the validity of months of actions taken by the current and former acting directors for the National Park Service, Bureau of Land Management, and Fish & Wildlife Service is subject to court challenge, potentially nullifying much of the Trump administration’s resource agenda.

The February 23, 2018 letter from IG General Counsel Bruce Delaplane came in response to a request for investigation filed two weeks earlier by Public Employees for Environmental Responsibility (PEER). PEER pointed out that designations of acting directors in these three agencies are in clear violation of the Federal Vacancies Reform Act. Under that act, any action taken by a noncompliant official “shall have no force or effect” nor may such action be later “ratified.” In his letter to PEER, Delaplane writes –

  • “[V]iolations of the Vacancies Reform Act have been historically addressed in Federal District Courts in actions brought by aggrieved parties who are affected by a Federal Government decision made or action taken in violation of the Vacancies Act. That avenue remains available to any party with standing to challenge a decision by Department officials”;
  • Interior has not filed statutorily required reports on these acting positions with the Government Accountability Office (GAO). “…[W]e have learned that the Department has not been timely with the reporting requirements of the Vacancies Act and we have urged the Department to rectify this. We have been advised that the deficiency is being addressed”; and
  • The IG is referring the PEER complaint to GAO as an issue that is “one that is best resolved by the Comptroller General” who oversees GAO.

“This legal shadow across the core of Interior is solely a product of Executive Branch dysfunction,” stated PEER Executive Director Jeff Ruch, noting that the GAO will now rule whether these temporary officials are in violation of the Vacancies Act. “Regardless of what GAO decides, this issue will be litigated in what could be scores of federal court cases challenging Interior decisions affecting endangered species, mining, drilling, grazing, and everything else these three agencies administer.”

These three are among more than 200 presidential appointments for which there is still no nominee or even notice of intent to nominate. This list also includes Interior’s Assistant Secretary for Fish, Wildlife & Parks. Trump has repeatedly said that he does not intend to fill “a lot” of these positions because he believes they are unneeded. It is unclear if he intends to leave these four slots vacant for three more years.

In a January 24, 2018 order, Interior Secretary Ryan Zinke attempted to insulate these four and six other acting officials in Senate-confirmed vacancies from legal challenge. That order rests on the highly questionable use of a 1950 Reorganization Act (which was superseded by the 1998 passage of the Vacancies Reform Act) as its authority. Zinke’s order also expires on March 15.

“Why don’t the missions and responsibilities of the Park Service, BLM, and Fish & Wildlife Service merit permanent, Senate-confirmed directors?” asked Ruch. “This attempt to circumvent the Senate’s advice and consent prerogative is not only doomed to fail but may prove profoundly counterproductive.”