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Washington, DC August 27, 2020 – The latest maneuver to evade Senate confirmation for the National Park Service’s (NPS) top official violates the law according to a newly-amended federal suit filed yesterday by Public Employees for Environmental Responsibility (PEER) and Western Watersheds Project (WWP). The new complaint was approved by U.S. District Court Judge Tanya S. Chutkan on August 24th ; she ordered the Defendants to file their answer or a responsive motion by September 14th. The Trump administration is already facing similar legal challenges in other agencies, including, most notably, the U.S. Bureau of Land Management (BLM), the Office of Surface Mining, and the Department of Homeland Security (DHS).
This August, following the abrupt retirement of Deputy Director David Vela who had been the de facto acting NPS Director, Interior Secretary David Bernhardt announced the designation of Margaret Everson “to exercise the delegable authority” of the NPS Director in place of Vela for an indeterminate period.
The PEER/WWP suit challenging the continued tenure of William Perry Pendley atop BLM, also had faulted Vela’s designation at NPS. The new complaint drops out David Vela and substitutes in a count that Everson’s designation also violates the Federal Vacancies Reform Act because the NPS Director is a position requiring “advice and consent” of the U.S. Senate under the Constitution and it may only be filled on a temporary basis by —
• A qualified official appointed directly by the President, not Secretary Bernhardt, or
• The “first assistant” to the former Director.
Everson, by contrast, was not appointed by President Trump. Since November 2018 she has been a Deputy Director of the Fish and Wildlife Service and then Counselor to the Secretary. She has never been a “first assistant” to the NPS Director or even worked in the agency before. This will be the first presidential term since the Park Service was created in 1917 in which it will have no actual Director.
“To name someone to act as Park Service Director who does not even work in the Service is a real mindblower,” stated PEER Senior Counsel Peter Jenkins, noting that Everson signed her introductory email to all NPS employees as “Counselor to the Secretary Exercising the Delegated Authority of the Director.” “With the enactment of the Great American Outdoors Act the National Park Service should have even greater prominence, but it has been reduced to a secondary bureau in David Bernhardt’s back office.”
The Federal Vacancies Reform Act provides that actions taken by noncompliant officials are “without force or effect” and may not later be ratified. On that basis, a federal court recently invalidated actions by “acting” DHS Deputy Secretary Ken Cuccinelli. On that same basis, the Government Accountability Office has also ruled that “acting” DHS Secretary Chad Wolf is not qualified to occupy his position.
“Trump’s repeated attempts to evade Senate confirmation create chaos and will likely spawn more lawsuits nullifying official actions by illegal appointees,” added Jenkins, pointing out the legality of any action by Ms. Everson will now be called into question. “The National Park Service desperately needs real leadership rather than just another temp.”
Meanwhile, the PEER/WWP legal claims against Pendley will also proceed, as will a similar suit by Montana Governor Steve Bullock. Following the White House announcement that it would withdraw Pendley’s nomination to serve as BLM Director but keep him in charge of the agency, there is a loud and growing chorus to remove him altogether.
Read the amended PEER lawsuit
View Bernhardt’s designation of Everson to oversee NPS
Revisit ongoing challenge to William Perry Pendley at BLM
See recent GAO ruling on Homeland Security “acting” appointees
Look at Office of Surface Mining challenge
Examine PEER’s “Beyond 2020” plan to reform the Park Service