Key Questions Remain After Interior Nominee David Bernhardt’s Confirmation Hearing

After the Senate Energy and Natural Resources Committee held a confirmation hearing on Interior Secretary nominee and former mega-lobbyist David Bernhardt, Western Values Project issued the following statement and list of critical questions that remain unanswered:

Handing over the keys to managing America’s public lands, national parks and wildlife to the ultimate D.C. swamp creature David Bernhardt would only exacerbate the culture of corruption and backroom deals promulgated under the Trump administration,” said Jayson O’Neill, Deputy Director of Western Values Project. “The impacts of Bernhardt’s misguided leadership and industry giveaways have already been well-documented on everything from industrial oil and gas giveaways in protected public lands to regulatory rollbacks that benefit his former clients. The Senate should reject Bernhardt, Trump’s most conflicted cabinet nominee to date.”

Previously, Western Values Project launched,, a comprehensive resource of primary source materials and background on Bernhardt’s work as a mega-lobbyist and how he used his position to help special interests.

Questions that Remain Unanswered (and Accompanying Research):

1.  Lack of transparency, public document delays and ethics:

Would Bernhardt be willing to provide access to any additional materials that would help reassure the public that his work at the Interior Department hasn’t been biased to suit the interests of friends and former clients?

Based on Bernhardt’s extensive conflicts, has he recused himself from any other decisions made over the last two years at Interior? Why did ethics officials advise Bernhardt to avoid an appearance at the Colorado River District, given that it is not on his conflicts of interest list? Have ethics officials stopped Bernhardt from appearing at any other events or meetings due to his unprecedented number of conflicts of interest?

In July of 2018, the Western Values Project filed a lawsuit over ten different FOIA requests aimed at learning more information about Bernhardt’s role in crafting policy changes benefitting his former clients – FOIA requests that were being stonewalled by the Department of Interior. As of the morning of Bernhardt’s confirmation hearing, Interior has produced less than 110 pages, responsive to only two of the ten requests.

ln August of 2018, Bernhardt was announced as the keynote speaker for the Colorado River District’s annual water seminar [Grand Junction Sentinel, 08/30/18]. Internal communications show that a member of his staff, Matt Dermody, gave a preliminary okay to his appearance before ethics officials it shut down — though no official reason has been publicly reported [8_29-2018 to 8_30_2018, pg. 13].

2.  Transferring and selling national lands to states:

Will Bernhardt reject calls from extremists in the West for transfer of title or management of federal public lands to the states? If Bernhardt is opposed to the transfer of federal public lands, what will he do to prevent land transfer advocates within Interior from advancing their anti-public lands agenda? If Bernhardt is opposed, why do land transfer advocates have such an outsized voice at Interior? Does Bernhardt stand with the President on this issue?

Donald Trump has said he “doesn’t like the idea” of transferring federal land to states because he wants “to keep the lands great, and you don’t know what the state is going to do.” [McClatchy, 12/08/18]

Land transfer political appointees at Interior:

3.  Bernhardt met with MGM prior to Mashantucket Pequot tribal casino controversy:

Has Bernhardt spoken to anyone at the FBI or Department of Justice about the reported investigation into Interior’s involvement in the Mohegan and Mashantucket Pequot tribes’ proposed casino? Has Bernhardt hired a criminal defense attorney?

In September 2017, the Interior Department refused to make a decision on the Mohegan and Mashantucket Pequot tribes’ plans to open a new casino in Connecticut. While “federal law gives Interior just 45 days to issue a yes-or-no verdict after a tribe submits proposed changes to its gaming compact with a state… the department declined to make any decision in this case” after intense lobbying from MGM, Senator Dean Heller (R-NV), and Representative Mark Amodei (R-NV). [Nick Juliano, Zinke’s agency held up Indians’ casino after MGM lobbying, Politico, 02/01/18; Swamp politics aids MGM in clash with tribal casinos, The Day, 04/23/18]

Interior’s non-decision has benefitted MGM Resorts International, a competing casino company, as the tribes proposed casino would be just across the border “from a billion-dollar casino that MGM is planning in Springfield, Mass.”

Meanwhile, Bernhardt’s old lobbying firm has been lobbying on behalf of MGM Public Policy LLC “on issues including gaming.” MGM Public Policy LLC is “an affiliated company” of MGM Resorts International. [Nick Juliano, Zinke’s agency held up Indians’ casino after MGM lobbying, Politico, 02/01/18]

Meetings on Bernhardt’s calendar with relevant parties:

4.  Possible recusal violation and conflict of interest on Westlands Water District:

In the five years Bernhardt served as the Westlands’ lawyer and lobbyist, was weakening the delta smelts’ federal protection a priority for Westlands? Did any of Bernhardt’s employers at Westlands ever ask him to make the weakening the federal protections a priority? Why did Bernhardt instruct a Bureau of Reclamation employee to weaken protections for the delta smelt and winter-run Chinook salmon? Did Bernhardt do it on his own volition or based on his past employer’s request?

Given Bernhardt’s previous work on behalf of Westlands, it is concerning that the Bureau of Reclamation appears to be siding and working with the water agency without regard for state laws and interests? Can Bernhardt commit to ensuring that his former clients do not receive special favors from Interior and that Interior projects are carried through in compliance with all applicable federal and state laws?

Is the Interior Department, Bureau of Reclamation or any other agency under Bernhardt’s authority working to alter the water allocation out of California Central Valley’s river?

For at least five years, Bernhardt was the federal lobbyist for and provided “legal services” to the Westlands Water District in California. [New York Times, 02/12/19 and David Bernhardt, 2019 278e Financial Disclosure]  

Four months into working for the Department of the Interior, Bernhardt called up one of his subordinates at the Bureau of Reclamation and instructed the bureau to begin to weaken protections for both the delta smelt and winter-run Chinook salmon.

In a 2014 case, he went to court to argue on behalf of the Westlands Water District, one of the plaintiffs challenging a 2009 Biological Opinion issued by the National Marine Fisheries Service (NMFS), determined that the Bureau of Reclamation’s proposed project to store and deliver water to agricultural and domestic consumers in California would jeopardize some of the Delta Mendota Canal’s endangered Salmonoids, and required Reclamation to change the way it pumps waters out of the California Central Valley’s rivers. He argued it violated portions of the ESA and APA, and yet the Ninth Circuit Court upheld the opinion. [San Luis & Delta-Mendota Water Authority v. Locke (9th Cir. 2014).]

Westlands is preparing an environmental impact report for the Shasta Dam expansion project north of Redding, California. State officials say the project would violate California’s Wild & Scenic Rivers Act and threaten sacred tribal grounds in the immediate area. State officials even sent Westlands a letter affirming their position that the project is illegal under state law, and that as a state agency, Westlands’ “participation is prohibited.” Despite state concerns, the Bureau of Reclamation has made it clear it intends to continue the project without state participation.

5.  Possible recusal violation and conflict of interest on Garrison Conservancy District:

Can Bernhardt commit to ensuring that his former clients do not receive special favors from Interior?

Former Bernhardt client, Garrison Diversion Conservancy District (Garrison), is “spearheading” a project to divert Missouri River water to supplement water supplies in the Red River Valley. This project has been long opposed by environmentalists. Bernhardt continued to work as a lawyer for Garrison while he was in charge of Trump’s Interior transition team and rumored to be Interior Deputy Secretary following the 2016 election. A month after he was nominated to be Deputy Secretary, his former lobbying firm Brownstein Hyatt Farber Schreck registered Garrison as a client. [“Plan to pipe Missouri River water to Red River Valley gains momentum,” Twin Cities Pioneer Press, 11/02/15; David Bernhardt, OGE Form, 2017; Robin Bravender, “Bush-era official seen as front-runner for No. 2 slot,” Greenwire, 01/30/17]

Garrison met with Zinke at least twice in 2017, after which it expressed confidence in the approval of the project. [Patrick Springer, “ND officials: Optimism builds over $1 billion water pipeline to serve Red River Valley, central ND,” WDAY, 11/06/17]

Garrison removed meeting minutes from an April 2017 meeting from its website. The minutes indicate that Bernhardt briefed Garrison alongside Brownstein lobbyists. [“Board of Directors Meeting Minutes,” Garrison Diversion Conservancy District, 04/06/17-04/07/17;]

“While Bernhardt has removed himself from several decisions where Interior has come out in favor of his former clients – like the Garrison Diversion Conservancy District, his former firm still touts its connection to him. In a December 20 [2017] letter to the District doubling its monthly fees, BHFS wrote, ‘Many of the decision-makers in the agencies are former co-workers and colleagues.” [Juliet Eilperin, “Zinke’s #2 has so many potential conflicts of interest he has to carry a list of them all, Washington Post, 11/19/18]

Bernhardt was recused from matters involving Garrison until August 1, 2018.

In September 2018, Interior released a Finding of No Significant Impact for the Central North Dakota Water Supply Project, allowing the controversial water project to move forward. [Bernhardt Recusal Letter; Press Release, Department of the Interior, 09/10/18]

Senator Hoeven has been pressing for approval of the contract, including helping to arrange a meeting between Garrison Diversion Conservancy District officials and Interior Secretary Ryan Zinke. The Bureau of Reclamation issued the proposal after completing its environmental assessment, which found that the water service contract would have no significant impact. The comment period for the proposal will be open until August 31. [Leah Backstrom, Hoeven Statement of Bureau of Reclamation Proposal to Approve Central North Dakota Water Supply Project, The Flag, 07/31/18].

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