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Deputy Secretary of the Interior

The Deputy Secretary of the Interior Department “serves as a Chief Operating Officer for the Department, managing everyday operations throughout the nine bureaus and various offices” and also “serves as a key leader for the implementation of several important departmental initiatives, including the Land Buy-Back Program for Tribal Nations, the land consolidation component for the Cobell Settlement, and water policy and relations throughout the Western drought season.”

David Bernhardt, an oil and gas lobbyist and former George W. Bush administration official, has passed back and forth through the revolving door between government and industry. Bernhardt began his career in the 1990s working for Scott McInnis (R-CO) before taking a position in the “Washington lobbying” operation of Brownstein, Hyatt and Farber, where he lobbied on behalf of oil and chemical companies. In 2001, Bernhardt went to work for the Interior Department, where he served in high-level positions including Deputy Chief of Staff, Counselor to the Secretary, and Solicitor.

While at Interior, Bernhardt worked on “some of the most contentious environmental issues of President Bush’s tenure, including snowmobiling in Yellowstone National Park and drilling in the Arctic National Wildlife Refuge.” His time at Interior was marred by scandal, including when he replaced independent government analysis in congressional testimony with reports funded by oil companies, oversaw the forced resignation of a whistleblower, and served as Counselor to the Secretary when J. Steven Griles, the “second-ranking official of the Interior Department,” was involved in the Jack Abramoff corruption scandal.

In 2009, Bernhardt returned to Brownstein Hyatt Farber Schreck LLP, and became the head of its newly created “Washington, D.C.-based department focusing on energy and the environment.” His Brownstein Hyatt clients included oil, gas, and “mining companies seeking to use resources on federal lands and Indian reservations.”

Sources:  [“Deputy Secretary of the Interior,” Political Appointee Project, accessed 06/22/17, “David L. Bernhardt of Colorado to Head Congressional and Legislative Affairs Office at the Interior Department,” U.S. Newswire, 05/24/01, Gale Courey Toensing, “Interior Solicitor David Bernhardt in the spotlight,” Indian Country Today, 06/04/07, Mike Soraghan, “Interior lawyer knows Colorado,” Denver Post, 12/04/06, Brittany Patterson, “Meet the man deciding the Department of the Interior’s future,” ClimateWire, 11/17/16, “The Ungreening of America: Behind the Curtain,” Mother Jones, 09-10/03, John Broder, “Ex-Interior Aide Is Sentenced in Lobbying Case,” The New York Times, 06/27/07, “David Longly Bernhardt,” Brownstein Hyatt Farber Schreck, accessed 01/18/17, Kalayaan Teodoro, “Law firm opens office focusing on energy, environment in Washington, DC,” SNL Daily Gas, 04/17/13, “Trump relies on Washington insiders to build administration,” Associated Press, 11/14/16, and Center for Responsive Politics, Lobbying, Bernhardt, David L, 2010201120122013, accessed 01/18/17]

Special Interests

Delta Petroleum Corporation (Resource Development on Public Lands)

David Bernhardt, in 2000, lobbied Congress and the Clinton administration on behalf of Delta Petroleum Corporation, an oil and gas exploration and development company. Delta was "lobbying for off-shore drilling" at the time.

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Titanium Metals Corporation (Resource Development on Public Lands)

David Bernhardt, from 1999 to 2000, lobbied on behalf of Precision Castparts Corporation, which is a subsidiary of Titanium Metals Corporation, a company that mills and manufactures titanium.

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NL Industries (Resource Development on Public Lands)

David Bernhardt, from 1999 to 2000, lobbied Congress and federal administrative agencies on behalf of NL Industries, an international chemical company.

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Shaw Group (Resource Development on Public Lands)

David Bernhardt, from 1999 to 2000, lobbied on behalf of the Shaw Group. The Shaw Group was a maker of piping for oil companies and power plants that was acquired by Chicago Bridge & Iron Company in 2013.

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Strata Production Company (Resource Development on Public Lands)

David Bernhardt, in 2010, lobbied the Department of the Interior, House of Representatives, and the Senate on climate change and natural gas and oil exploration and development on behalf of the oil company Strata Production Company.

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Freeport LNG Development (Resource Development on Public Lands)

David Bernhardt, in 2010, lobbied the House of Representatives and the Senate on behalf of Freeport LNG Development, a liquefied natural gas company, about securing permits to allow exportation of Liquefied Natural Gas.

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Cobalt International Energy (Resource Development on Public Lands)

David Bernhardt, from 2010 to 2013, lobbied Congress on behalf of Cobalt International Energy, an oil exploration company, on Interior appropriations bills and on bills to expand offshore oil and gas drilling.

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Samson Resources (Resource Development on Public Lands)

David Bernhardt, in 2012 and 2013, lobbied the Department of the Interior and Congress on the development of energy on federal lands on behalf of Samson Resources Company, an oil and gas company.

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Rosemont Copper Company (Resource Development on Public Lands)

David Bernhardt, from 2011 to 2015, lobbied the Senate and federal agencies on mining reform on behalf of Rosemont Copper Company. When he was named to Trump's transition team in November 2016, Bernhardt was still consulting for Rosemont.

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Access Industries (Resource Development on Public Lands)

David Bernhardt, in 2011 and 2012, lobbied Congress on an industry-friendly bill that would create a new Cabinet-level committee to study the effects of new EPA rules on behalf of energy conglomerate Access Industries.

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Westlands Water District (Resource Development on Public Lands)

David Bernhardt has lobbied the Interior Department and Congress on potential legislation related to the Bureau of Reclamation, the Endangered Species Act, and energy and water appropriations on behalf of Westlands Water District.

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Prospect Global Resources (Resource Development on Public Lands)

David Bernhardt, in 2011, wrote the proposal for Brownstein Hyatt Farber Schreck LLP to act as government relations counsel on behalf of Prospect Global Resources, a Denver potash company.

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Independent Petroleum Association of America (Resource Development on Public Lands)

Bernhardt provided legal services to IPAA, a national organization that represents independent oil & natural gas producers.

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Cadiz, Inc. (Resource Development on Public Lands)

Cadiz is trying to obtain permits for a controversial water project. David Bernhardt's lobbying firm, where Cadiz's CEO also works, has earned 200,000 shares of Cadiz stock and stands to earn 200,000 more upon the project's completion.

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Diamond Ventures, Inc. (Resource Development on Public Lands)

Diamond Ventures invests, develops, and manages residential and commercial real estate in Arizona. David Bernhardt, from 2010 to 2012, lobbied the Bureau of Land Management on granting a right-of-way on behalf of Diamond Ventures.

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Targa Resources Company (Resource Development on Public Lands)

Bernhardt provided legal services to Targa Resources Company, which engages in midstream natural gas and natural gas liquid services.

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Noble Energy (Resource Development on Public Lands)

Bernhardt provided legal services to Noble Energy, an independent oil and natural gas exploration and production company.

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NRG Energy (Resource Development on Public Lands)

Bernhardt provided legal services to NRG Energy, an energy company that owns natural gas, oil, and coal plants across the country.

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Sempra Energy (Resource Development on Public Lands)

Bernhardt provided legal services to Sempra Energy, which generates electricity, delivers natural gas, and operates natural gas pipelines and storage facilities.

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Statoil Gulf Services (Resource Development on Public Lands)

Bernhardt provided legal services to Statoil Gulf Services, a company that performs geophysical, geological, and other exploration services for oil and gas.

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Background Information

Previous Employers

Background Information on Employers of Note:

David Bernhardt, from 1998 to 2001, worked in the “Washington lobbying” operation of Brownstein, Hyatt and Farber.

David Bernhardt, from 1998 to 2001, worked in the “Washington lobbying” operation of Brownstein, Hyatt and Farber. While working there during this period he “lobbied Congress and federal administrative agencies on behalf” of companies in the oil and chemical industries, including Delta Petroleum Corp. and a maker of lead paint. Delta Petroleum Corp. “was lobbying for offshore drilling.”

[Bill McAllister, “Colo. Native gets key Interior post,” Denver Post, 05/25/01, “The Ungreening of America: Behind the Curtain,” Mother Jones, 09-10/03, and Gale Courey Toensing, “Interior Solicitor David Bernhardt in the spotlight,” Indian Country Today, 06/04/07]

David Bernhardt, in 2001, also lobbied for Precision Castparts Corporation, a subsidiary of Timet-Titanium Metals Corp which is a company that manufactures “complex metal components and products” and is the “leading producer of airfoil castings for the industrial gas turbine market.”

[“Precision Castparts Corp,” Legistorm, accessed 03/07/17, and Legistorm Bio for David Longly Bernhardt, accessed 03/07/17]

David Bernhardt, in 2009, returned to Brownstein Hyatt Farber Schreck LLP, and became the head of its newly created “Washington, D.C.-based department focusing on energy and the environment” in 2013.

Since 2009 he has been a shareholder at this firm, where he represents companies in “rulemakings, regulatory enforcement proceedings, and environmental and permitting reviews,” including oil, gas, and “mining companies seeking to use resources on federal lands and Indian reservations,” and his clients include “mining companies who intend to develop potash or copper resources on private, state, and Federal lands.”

[“David Longly Bernhardt,” Brownstein Hyatt Farber Schreck, accessed 01/18/17, and Kalayaan Teodoro, “Law firm opens office focusing on energy, environment in Washington, DC,” SNL Daily Gas, 04/17/13]

David Bernhardt now leads a division at Brownstein Hyatt Farber Schreck LLP.

David Bernhardt now leads a division at Brownstein Hyatt Farber Schreck LLP that “seeks to help companies navigate the administrative, political and legal challenges of developing energy…on public lands.”

[“David Longly Bernhardt,” Brownstein Hyatt Farber Schreck, accessed 01/18/17 and Phil Taylor, “Former Interior solicitor to head firm’s new energy practice,” Energy and Environment, 04/10/13]

David Bernhardt was formerly registered as a lobbyist for Access Industries, “an investment company controlled by a Soviet-born industrialist who made billions doing business with newly sanctioned Russian oligarchs.” Bernhardt lobbied for Access Industries on legislation to “delay two new sets of air pollution limits facing coal-fired power plants.”

In 2011 and 2012, Bernhardt was registered as a lobbyist in for Access Industries, “a holding company controlled by billionaire Leonard Blavatnik.” Access Industries is a multinational conglomerate with a subsidiary that is “one of North America’s leading domestic oil and natural gas producers.” The subsidiary has “a large footprint in emerging shale plays across the United States.” Blavatnik, the chairman of Access Industries, founded the company in 1986.

Blavatnik was “long in business with billionaire associates of Russian President Vladimir Putin.”

[Access Industries, “EP Energy,” accessed 03/13/17, “BP retreats from Russia,” The Economist, 06/09/12,Greg Walters, “EXCLUSIVE: TWO TOP TRUMP OFFICIALS ARE EX-LOBBYISTS FOR A BILLIONAIRE WITH DEEP TIES TO RUSSIAN OLIGARCHS,” VICE News, 04/13/18]

Bernhardt lobbied for Access Industries in 2011 and 2012 on H.R. 2401, the Transparency in Regulatory Analysis of Impacts on the Nation Act (TRAIN Act). This was a bill to “create a new Cabinet-level committee to study the cumulative effects of new EPA rules facing the power sector” and “delay two new sets of air pollution limits facing coal-fired power plants.” Environmental groups criticized this legislation, saying it would “pollute the air we breathe” and “expose our children, families, and communities to toxic air pollutants that cause illness and developmental disorders.”

[“Access Industries 2011 Third Quarter Report,” United States Senate Lobbying Disclosure Act Database, accessed 03/08/17, “Access Industries 2011 Fourth Quarter Report,” United States Senate Lobbying Disclosure Act Database, accessed 03/08/17, “Access Industries 2012 First Quarter Report,” United States Senate Lobbying Disclosure Act Database, accessed 03/08/17, “Access Industries 2012 Second Quarter Report,” United States Senate Lobbying Disclosure Act Database, accessed 03/08/17, Gabriel Nelson, “EPA: Republican TRAIN amendments try putting brakes on more rules,” Energy and Environment, 09/20/11, and John Walke, “Oppose the TRAIN Act, the Worst Air Pollution Bill Ever to Reach the House Floor,” Natural Resources Defense Council, 09/20/11]

David Bernhardt lobbied for Cobalt International Energy on multiple bills to expand offshore oil and gas drilling, including drilling in the Gulf of Mexico after the Deepwater Horizon oil spill. Environmental groups said the bills would “set the stage for environmental disaster” and would “‘leave oversight of offshore drilling weaker” than it was before the 2010 Deepwater Horizon oil spill.

David Bernhardt lobbied for Cobalt International Energy in 2011 on H.R. 1229, the “Putting the Gulf of Mexico Back to Work Act,” which was a bill to “require the Interior Secretary to issue decisions on permit application for offshore energy production in the Gulf of Mexico within 60 days” and automatically approve permits after 60 days “regardless of whether they met safety and cleanup standards.”

[“Cobalt International Energy 2011 Fourth Quarter Report,” United States Senate Lobbying Disclosure Act Database, accessed 03/08/17, “How They Voted,” The Huntsville Times, 05/15/11, and “GOP Reaffirms Its Energy Plan: Oil Above All,” Center for American Progress Action Fund, 05/11]

David Bernhardt lobbied for Cobalt International Energy in 2011 and 2012 on H.R. 1230, the “Restarting American Offshore Leasing Now Act,” which would have “reverse[d] the Obama administration’s decision” to postpone oil and natural gas lease sales in the Gulf of Mexico and cancel oil and natural gas lease sales off the Virginia Coast.

[“Cobalt International Energy 2011 Fourth Quarter Report,” United States Senate Lobbying Disclosure Act Database, accessed 03/08/17, “Cobalt International Energy 2012 Fourth Quarter Report,” United States Senate Lobbying Disclosure Act Database, accessed 03/08/17, and Mark Passwaters, “House passes bill requiring lease sales in Gulf of Mexico, off Va. Coast,” SNL Daily Gas Report, 05/11/11]

David Bernhardt lobbied for Cobalt International Energy in 2011 and 2012 on H.R. 1231, the “Reversing President Obama’s Offshore Moratorium Act,” which was a bill to “require the federal government to lease at least 50 percent of available unleased acreage off the West Coast, Alaska, the Gulf of Mexico and much of the East Coast, every five years.” Environmental groups called the legislation the “‘Law of Eventually Drilling Everything.'”

[“Cobalt International Energy 2011 Fourth Quarter Report,” United States Senate Lobbying Disclosure Act Database, accessed 03/08/17, “Cobalt International Energy 2012 Fourth Quarter Report,” United States Senate Lobbying Disclosure Act Database, accessed 03/08/17, and Susanne Rust, “California Oil Drilling: Congress Considers Offshore Drilling,” Huffington Post, 05/04/11]

Environmental groups said that H.R. 1229, H.R. 1230, and H.R. 1231 would “set the stage for environmental disaster” and would “‘leave oversight of offshore drilling weaker than it was before the [2010] oil disaster in the Gulf of Mexico.'”

[Susanne Rust, “California Oil Drilling: Congress Considers Offshore Drilling,” Huffington Post, 05/04/11]

David Bernhardt represented a water district “in its legal efforts to force” the National Marine Fisheries Service and U.S. Fish and Wildlife Service (USFWS) “not to block water pumping…despite abundant evidence that the pumping threatened legally protected species such as the Delta smelt, the winter-run Sacramento River Chinook salmon, and the southern resident orca population.”

David Bernhardt was a lawyer and lobbyist for the Westlands Water District. He terminated his role as a lobbyist in November 2016.

[Michael Doyle, “California water bills are starting to trickle out on Capitol Hill,” McClatchy News Service, 02/28/17, and Catherine Ho, “Several fall in line with Trump’s ban on lobbyists,” The Washington Post, 12/01/16]

David “Bernhardt represented Westlands in its legal efforts to force USFWS and the National Marine Fisheries Service not to block water pumping from the [San Francisco Bay] Delta, despite abundant evidence that the pumping threatened legally protected species such as the Delta smelt, the winter-run Sacramento River Chinook salmon, and the southern resident orca population.”

[Chris Clarke, “From the Delta to the Desert: Trump’s Interior Pick Bad News for California Water,” Link TV, 11/16/16]

David Bernhardt, in 2011, wrote a proposal for Brownstein Hyatt Farber Schreck LLP to act as government relations counsel on behalf of Prospect Global Resources. Prospect Global Resources is a Denver potash company that “explores and mines Potash in Holbrook Basin in eastern Arizona.” Brownstein Hyatt Farber Schreck LLP represented Prospect Global Resources “in its initial public offering and follow-on public offerings.”

In 2011 David Bernhardt wrote a “proposal and fee agreement for representation” for Brownstein Hyatt Farber Schreck LLP to act as government relations counsel for Prospect Global Resources. Prospect Global Resources is a Denver potash company that “explores and mines Potash in the Holbrook Basin in eastern Arizona.”

Bernhardt wrote that the firm was “uniquely” qualified to meet Prospect Global Resource’s “needs in Arizona and in Washington, D.C.” As part of the agreement the firm would be “entitled to up to 300,000 shares of Prospect common stock.” Brownstein Hyatt Farber Schreck LLP represented Prospect Global Resources “in its initial public offering and follow-on public offerings.”

[“Proposal and Fee Agreement for Representation,” Securities and Exchange Commission, 07/05/11, “Prospect Global Resources,” Bloomberg, accessed 03/08/17 and “Representative Matters,” Brownstein Hyatt Farber Schreck LLP, accessed 03/08/17]

Political Connections

David Bernhardt, since 1999, has given more than $80,000 in federal campaign contributions to Republican candidates and committees, including the campaigns of Donald Trump, John McCain, Mitt Romney, Ryan Zinke, Mitch McConnell, Mike Lee, Lisa Murkowski, Kelly Ayotte, Tom Cotton, Cory Gardner, Pat Roberts, George Allen, Pat Toomey, Roy Blunt, Scott Tipton, Cynthia Lummis, Jason Chaffetz, and Liz Cheney.

Since 1999, David Bernhardt has given at least $81,700 to Republican candidates and committees, including Donald Trump’s presidential campaign, the National Republican Congressional Committee, the National Republican Senatorial Committee, the presidential campaigns of John McCain and Mitt Romney, the Senate campaigns of Mitch McConnell, Mike Lee, Lisa Murkowski, Kelly Ayotte, Tom Cotton, Dean Heller, Cory Gardner, Pat Roberts, George Allen, Pat Toomey, Roy Blunt, and Tim Scott, and the congressional campaigns of Ryan Zinke, Scott Tipton, Pat Meehan, Cynthia Lummis, Jason Chaffetz, and Liz Cheney.

[Based on Data from CQ Political Moneyline, accessed 01/18/17]

In 2014, David Bernhardt donated $250 to Safari Club International.

In 2014, David Bernhardt donated $250 to Safari Club International, an organization that is “behind the killings of tens of thousands of animals, ‘including those on the brink of extinction,'” and has entered into “strategic partnerships” with the oil and gas industry.

David Bernhardt, in 2014, donated $250 to Safari Club International’s Political Action Committee.

[CQ Political Moneyline Search for David Bernhardt, accessed 03/08/17]

Safari Club International (SCI) claims it is “the leader in protecting the freedom to hunt and in promoting wildlife conservation worldwide.” However, animal protection advocates have said that SCI is “behind the killings of tens of thousands of animals, ‘including those on the brink of extinction.'”

Competitions run by SCI “contribute to the killing of lions, African elephants and other endangered species.” SCI has also had “strategic partnerships” with the oil and gas industry and has supported a variety of anti-environmental legislation.

[“SCI Foundation: In Major Setback for Anti-Hunting Efforts; FWS Rejects Attempts to Stop Lion Hunting,” PR Newswire, 10/27/14, Kate Gibson, “Safari Club attacked for incentives to kill rare animals,” CBS, 09/30/15, Matt Lee-Ashley, “Oil and Gas Industry Investments in the National Rifle Association and Safari Club International: Reshaping American Energy, Land, and Wildlife Policy,” Center for American Progress, 04/14, Ben Long, “Beware of Wolves,” Tucson Weekly, 09/29/11, Dale Sunderlin, “Young hunters score big,” Star Beacon, 11/28/11, Elizabeth Miller, “Hunting for conservation: Legislation aims for hunting access, but would destroy wildlife populations,” Boulder Weekly, 10/11/12, and Talasi Brooks and Kevin Proescholdt, “Safari Club and the NRA aim to gut wilderness,” High Country News, 06/21/12]

Current Activity

  • Cadiz

In October 2017, the Bureau of the Land Management announced a change of administrative opinion that made it easier for Cadiz Inc., David Bernhardt’s recent lobbying client, to go forward with a controversial water project. Bernhardt’s old lobbying firm has already earned 200,000 shares of Cadiz stock for their involvement with the company, and stands to earn 200,000 more if the project is completed. 

Before working at Interior, David Bernhardt was the chair of the Natural Resources Department at Brownstein Hyatt Farber Schreck LLP. His co-chair was Scott Slater, who is also the CEO of Cadiz, which wants to tap “into an aquifer the size of Rhode Island” to “provide an extra supply of water for…Southern California,” even though “scientific analysis by the U.S. Geological Survey” shows that severe environmental damage to the Mojave National Preserve is likely if the project moves forward.

“Until Donald Trump won the presidency, prospects looked bleak for Cadiz,” but in December 2016 “the National Governors Association circulated a preliminary list of infrastructure projects provided by the Trump transition team, and Cadiz’s was on the list.” David Bernhardt “served as the head of President-elect Donald Trump’s Interior Department transition team” in November 2016.

Brownstein Hyatt Farber Schreck LLP “stands to earn 200,000 shares of Cadiz stock if the company meets milestones for completing the project and selling water. Brownstein has already earned 200,000 shares for its involvement with the company – a stock portfolio that is sure to appreciate in value if Cadiz can overcome permitting obstacles.”

[“David Longly Bernhardt and Scott S. Slater,” Brownstein Hyatt Farber Schreck, accessed 01/18/17, Stuart Leavenworth, “California water venture tied to Trump sees prospects rise after years of setbacks,” McClatchy, 02/08/17, Chris Clarke, “From the Delta to the Desert: Trump’s Interior Pick Bad News for California Water,” Link TV, 11/16/16, and Tony Davis, “Ex-Rosemont lobbyist ousted from Trump transition team,” Arizona Daily Star, 11/25/16]

In October 2017, the Bureau of Land Management “removed a major obstacle that had long stalled a project designed to pump groundwater from the Mojave Desert to communities in Southern California.” Reversing guidance issued by the Obama administration’s Bureau of Land Management in 2015, the Trump administration’s BLM sent a letter “to Cadiz Inc., the company behind the pipeline, stating that the company did not need federal permission to begin construction.”

[Elizabeth Shogren, “Trump’s BLM removes a hurdle for controversial Cadiz project,” High Country News, 10/17/17]

  • Eni Petroleum

In August 2017, David Bernhardt included Eni Petroleum, North America on ethics recusal, writing that, absent a waiver, he would be “recused from particular matters” in which Eni was involved. In November 2017, the Bureau of Safety and Environmental Enforcement approved Eni’s application to drill in the Arctic, making Eni the first company to get approval for drilling in federal Arctic waters since 2015.

David Bernhardt, on August 15, 2017, wrote in his Ethics Recusal that he would “not participate personally and substantially in any particular matter in which” he knew that he had “a financial interest directly and predictably affected by the matter” or in which he knew “that a person whose interests are imputed to me has a financial interest directly and predictably affected by the matter, unless I first obtain a written waiver.”

In his recusal, David Bernhardt includes a “list of recusals” in which “absent a waiver” until August 3, 2019, he pledges to be “recused from particular matters involving specific parties in which any of the following entities either is a party or represents a party to the matter.” One of the entities he includes in this list is Eni Petroleum, North America. Eni U.S. Operating Co. Inc is the North American subsidiary of Eni Petroleum Co. Inc.

[David Bernhardt Ethics Recusal, Department of the Interior, 08/15/17, and “Company Overview of Eni US Operating Co. Inc,” Bloomberg, accessed 12/21/17]

In November 2017, Interior’s Bureau of Safety and Environmental Enforcement “approved an application Eni U.S. Operating Co. Inc. to drill exploratory wells in the Beaufort Sea.” When drilling begins, it will “be the first in federal Arctic waters” since 2015. Environmental groups are “strongly opposed to Arctic Ocean drilling.”

[Dan Joling, “Eni receives federal permit for U.S. Arctic offshore drilling,” Associated Press, 11/28/17]

  • MGM Resorts International

The Interior Department recently refused to make a decision on allowing the Mohegan and Mashantucket Pequot tribes to open a new casino in Connecticut, a non-decision that has benefitted MGM Resorts International, a competing casino company. Meanwhile, Bernhardt’s old lobbying firm has been lobbying on behalf of an MGM-affiliated company. 

In September 2017, the Interior Department refused to sign off on the Mohegan and Mashantucket Pequot tribes’ “plans for a third Connecticut casino.” 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.” Acting Assistant Secretary for Indian Affairs Michael Black wrote in a letter to the tribes that “approving or disapproving the amendment to their gaming compact was ‘premature and likely unnecessary,’ and said Interior had ‘insufficient information’ to make a decision.”

The Interior Department’s delay in approving the new casino “stands to benefit politically connected gambling giant MGM Resorts International.” “The proposed Connecticut casino would sit on non-tribal land just across the border from a billion-dollar casino that MGM is planning in Springfield, Mass.”

The Mohegan and Mashantucket Pequot tribes are now suing the Interior Department, in an attempt to “force approval of the contract.” The tribes are “arguing that the law does not allow Interior to refuse to render a verdict.”

In 2017, David Bernhardt’s former lobbying firm, Brownstein Hyatt Farber Schreck LLP, lobbied 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]

  • Garrison Diversion Conservancy District

The Garrison Diversion Conservancy District (GDCD) is “spearheading” a project to “diver[t] Missouri River water to supplement water supplies in the Red River Valley.” Proponents say the project is necessary “to meet the demands of residents and businesses,” but environmental and fiscal concerns have long plagued the project.

The Garrison Diversion Conservancy District (GDCD) is “spearheading” a project to “diver[t] Missouri River water to supplement water supplies in the Red River Valley,” in North Dakota.

[“Plan to pipe Missouri River water to Red River Valley gains momentum,” Pioneer Press, 01/29/14]

Proponents say the project is necessary to provide a “steady source of water… to meet the demands of residents and businesses” of the “growing population in the Red River Valley.”

[Nick Smith, “Water for the Red River Valley,” Bismarck Tribune, 03/23/14]

The project “has faced many obstacles over the decades, including environmental opposition and the federal budget crunch.” Critics have described the Red River Valley Water Supply Project as “costly and unneeded” and at one point in 1990 it was described as “possibly the most criticized water project in the nation.”

[Stan Stelter: “Letter: Nix the Red River Valley Water Supply Project,” Grand Forks Herald, 11/25/16, Philip Brasher, “Lujan To Look For Alternatives On North Dakota’s Garrison Project,” Associated Press, 03/28/90, and Patrick Springer, “Red River Water Supply Project funding faces new hurdle,” Bismarck Tribune, 03/28/16]

There has been “stiff resistance” to the idea of “carrying Missouri River water to the Red River,” in particular from “Canada and Minnesota over concerns about impacts to water quality.” “Shifting water into the Red River Valley has sparked fears of invasive species and added pollution in Manitoba” and concerns that the transfer could “bring major risks to Manitoba waterways.” A Canadian water expert said that “‘the water heading north would contain sulfate, chloride and possible invasive species, as well as additional phosphorous and nitrogen, two nutrients that fuel algae growth on Lake Winnipeg.'”

[Patrick Springer, “Red River Valley water supply project may stall,” Inforum, 03/21/15, and Joyanne Pursaga, “Manitoba experts fear N.D. water plan harmful here,” Winnipeg Sun, 08/11/17]

Opposition also comes from Missouri and other states downstream on the Missouri River opposed to removing water from the Missouri, who are concerned about the quantity of water that would be transferred.

[Patrick Springer, “Red River Valley water supply project may stall,” Inforum, 03/21/15]

There are two options being considered to deliver water from the Missouri River to the Red River Valley. The first plan limits “‘as much contact with the federal government as possible,'” and would place water pipes in such a way that they could be “grandfathered into existing federal standards for water pipelines.” However, an alternate plan, estimated to be $170 million cheaper, is to use the McClusky Canal to draw Missouri River water. This second plan had been “discarded” until Donald Trump took office, but now “project supporters are cautiously optimistic of reopening” talks about the McClusky Canal with the Trump administration. As of July 2017, the Garrison Diversion Conservancy District had “requested permission from the U.S. Department of the Interior to use the McClusky Canal.”

In 2007, the Bureau of Reclamation, “after approximately eight years of study,” released an environmental impact statement that concluded that “a pipeline” would “be the best way to address the growing water needs in the Red River Valley.” Since then, the project was “under consideration for more than a decade” but “a final decision from the federal Interior Department on the project was never issued. In fall 2012, state officials began to move toward an alternative pipeline route without federal funding.”

[Nick Smith, “Red River Valley pipeline moves away from federal process,” Bismarck Tribune, 03/07/16]

This state plan, which would limit “‘as much contact with the federal government as possible,'” would “place water pipes from the Missouri River to the Sheyenne River along a path south of Highway 200” which could “be grandfathered into existing federal standards for water pipelines and not be subject to potential future rule changes. This would include construction of an outlet along the Sheyenne River, attaining land easements along the route and completing the permitting process.” This first plan has “an estimated cost of $800 million to $1.1 billion.”

However, a second “older, discarded alternative” plan is also “being reconsidered. While past efforts to move Missouri River water east by utilizing the McClusky Canal were unsuccessful, project supporters are cautiously optimistic of reopening those talks with President Donald Trump’s administration. There is an estimated project savings of $170 million, if use of the canal became a viable alternative.”

[Nick Smith, “Large strides expected for water projects,” Bismarck Tribune, 05/22/17]

The Garrison Diversion Conservancy District wants to get started on the project soon because the Trump administration’s “environmental and natural resource policies are supportive of projects like the water supply pipeline.” North Dakota officials fear that a delay “could mean adverse policy decisions from a future administration, including a broader definition of wetland, which could make it much more difficult to get an approved pipeline route.”

[Patrick Springer, “ND officials: Optimism builds over $1 billion water pipeline to serve Red River Valley, central ND,” WDAY, 11/06/17]

As of July 2017, Garrison Diversion Conservancy District had “requested permission from the U.S. Department of the Interior to use the McClusky Canal to draw Missouri River water, as it would result in $171 million in capital savings to the RRVWSP.” Ken Royse, the Garrison Diversion board chairman, said that, “‘We are hopeful the Department of the Interior will grant our request to use the McClusky Canal for the Red River Valley Water Supply Project,” as using the canal is “‘the most cost-effective option.'”

[“RRVWSP 2017-2019 Work Plan presented to Water Topics Overview Committee,” Foster County Independent, 07/31/17]

David Bernhardt, before he was Deputy Secretary of the Interior, provided “legal services” to the Garrison Diversion Conservancy District. He had been in contact with GDCD since January 2016; GDCD hired Bernhardt’s lobbying firm, Brownstein Hyatt Farber Schreck “to assist with” the Red River Valley Water Supply Plan in March 2016.

David Bernhardt is currently the Deputy Secretary of the Interior Department. Before holding this position, he was a “top executive” at the law and lobbying firm Brownstein Hyatt Farber Schreck. On his Public Financial Disclosure Report that he filed before becoming Deputy Secretary, Bernhardt wrote down Garrison Diversion Irrigation District as a source of “compensation exceeding $5,000 in a year.” He said he provided GDCD “legal services.”

[Jesse Paul, “Colorado’s David Bernhardt is sworn into post as deputy Interior secretary after contentious nomination,” Denver Post, 08/01/17, and David Bernhardt, OGE Form, 2017]

In February 2016, the Red River Valley Committee of the Garrison Diversion Conservancy District discussed “the process used for selecting national legal counsel to assist with legal issues concerning the RRVWSP. A selection process took place with an appointed Ad Hoc/Review Committee to review the submitted proposals and conduct interviews. Two firms were selected for interviews by video conference, which took place on January 6. The Review Committee recommended hiring Brownstein Hyatt Farber Schreck, and the full board approved the recommendation at its January 7 board meeting. The chief attorney, who the committee has been corresponding with is
David Bernhardt. Tami Norgard, Vogel Law Firm, reviewed the retainer agreement with the committee.”

[Red River Valley Committee Meeting Minutes, Garrison Diversion Conservancy District, 02/26/16]

In March 2016, the board of the Garrison Diversion Conservancy District unanimously consented to hire Brownstein Hyatt Farber Schreck to “assist with the RRVWSP.” Bernhardt had a two-day meeting with the conservancy district in Carrington, North Dakota on March 1 and 2, 2016.

[Executive Committee Meeting Minutes, Garrison Diversion Conservancy District, 03/10/16]

David Bernhardt oversaw Donald Trump’s Interior Transition team in November 2016. By January 30, 2017, Bernhardt was rumored to be nominated for Interior Deputy Secretary. Months later, on April 7, 2017, Bernhardt participated in a Garrison Diversion Conservancy District Board of Directors meeting, during which GDCD received a “Report of Washington, DC, Consulting Firm.” In this report, Bernhardt “gave a summary of the DOI meeting” to GDCD.

David Bernhardt “was in charge of Trump’s Interior transition team for a short time after the November presidential election.”

[Robin Bravender, “Bush-era official seen as front-runner for No. 2 slot,” Greenwire, 01/30/17]

As early as January 30, 2017, David Bernhardt was being rumored as the “front-runner to become Interior’s next deputy secretary.”

[Robin Bravender, “Bush-era official seen as front-runner for No. 2 slot,” Greenwire, 01/30/17]

On April 7, 2017, the Board of Directors of the Garrison Diversion Conservancy District had a meeting in Carrington, North Dakota. In the meeting, there was a “Report of Washington, DC, Consulting Firm,” in which “David Bernhardt, Emily Sullivan and Luke Johnson of Brownstein Hyatt Farber Schreck, participated in the meeting via conference phone” and “Mr. Bernhardt gave a summary of the DOI meeting.”

[“Board of Directors Meeting Minutes,” Garrison Diversion Conservancy District, 04/06/17-04/07/17]

On April 28, 2017, David Bernhardt was nominated Deputy Secretary of the Interior. Just days prior, on April 17, 2017, his former lobbying firm had registered to lobby the Department of the Interior on behalf of the Garrison Diversion Conservancy District.  Bernhardt was confirmed Deputy Secretary of the Interior on July 24, 2017 and sworn into office on August 1, 2017.

On April 28, 2017, three weeks after he gave updates to the Garrison Diversion Conservancy District, David Bernhardt was nominated Deputy Secretary of the Interior.
[Department of Interior, Press Release, 04/28/17]

On April 17, 2017, just days before David Bernhardt’s nomination, Brownstein Hyatt Farber Schreck, Bernhardt’s former lobbying firm, registered Garrison Diversion Conservancy District as a lobbying client. The general description of GDCD’s business listed on the lobbying disclosure form is to “develop and ensure adequate water supply for North Dakota.”

[“Lobbying Registration,” United States Senate Lobbying Disclosure Database, 05/31/17]

David Bernhardt was confirmed Deputy Interior Secretary on July 24, 2017. He was sworn into office on August 1, 2017.

[Jesse Paul, “Colorado’s David Bernhardt, Trump’s nominee for Interior Department post, is confirmed by Senate,” Denver Post, 07/24/17, and Jesse Paul, “Colorado’s David Bernhardt is sworn into post as deputy Interior secretary after contentious nomination,” Denver Post, 08/01/17]

Brownstein Hyatt Farber Schreck lobbied the Department of the Interior in the second and third quarters of 2017. The lobbying reports filed said that Brownstein Hyatt Farber Schreck lobbied the Department of Interior on “issues related to water delivery in North Dakota,” on behalf of the Garrison Diversion Conservancy District. Luke Johnson, William McGrath, and Emily Sullivan are the lobbyists who have lobbied Department of Interior on behalf of GDCD.

[“Second Quarter Lobbying Report for Garrison Diversion Conservancy District,” United States Senate Lobbying Disclosure Database, accessed 11/17/17, and “Third Quarter Lobbying Report for Garrison Diversion Conservancy District,” United States Senate Lobbying Disclosure Database, accessed 11/17/17]

In August 2017, Garrison Diversion Conservancy District general manager Duane DeKrey said he expected the district’s project of “moving water from the Missouri River to eastern North Dakota” to “‘get to yes,'” and cited GDCD’s employment of David Bernhardt, who had since been “named deputy secretary of Interior.”

[Mike Jacobs, “Jacobs: More work, new life in Garrison project,” WDAY, 08/01/17]

Interestingly, the Garrison Diversion Conservancy District did not ask to be reimbursed from the Lake Agassiz Water Authority for Brownstein Hyatt Farber Schreck’s legal services for the period from July 1, 2017 to September 30, 2017. On GDCD’s billing statement for July 1, 2017 to September 30, 2017, the “Legal Services- Brownstein Hyatt Farber Schreck” balance is “$0.00.”

[“Billing Statement,” Garrison Diversion Conservancy District, 10/09/17]

In what appears to be a somewhat unusual move for a water district, Garrison Diversion Conservancy District officials have met with Interior Secretary Ryan Zinke at least twice in the past year, once in March and once in October. The goal of the October meeting was to “update Zinke on the water project and to garner his support for federal approval of supplying water out of the McClusky Canal for municipal, rural, and industrial uses.” In the meeting, Secretary Zinke said “‘as of today we are taking a fresh look at this project,'” and he “told officials attending the meeting to expect a response from the Department of the Interior in the near future.” One GDCD board member described the meeting with Secretary Zinke as “‘a very good meeting;'” after this meeting, the GDCD expects that the diversion project will receive approval from the federal government. 

In March 2017, after David Bernhardt was already rumored to be nominated for Deputy Secretary of the Interior, “Duane DeKrey, general manager of the Garrison Diversion Conservancy District” and “other Garrison Diversion officials were in Washington, D.C…. to talk with the North Dakota congressional delegation and officials with the U.S. Department of the Interior.” “DeKrey said conversations with Ryan Zinke, secretary of the Interior Department, went well.” There is no mention of DeKrey or GDCD officials meeting with Secretary Zinke in Zinke’s March calendar on the Department of Interior website.

[Robin Bravender, “Bush-era official seen as front-runner for No. 2 slot,” Greenwire, 01/30/17, Keith Norman, “Moving water across Nd,” Red River Valley Water Supply Project,” 03/25/17, and Ryan Zinke March Calendar, Department of Interior, accessed 11/20/17]

On October 25, 2017, officials with the Garrison Diversion Conservancy District had a meeting with Interior Secretary Ryan Zinke. The meeting was “orchestrated” by Congressman Kevin Cramer; when Secretary Zinke and Congressman Cramer were in Congress, the two “worked closely” together. The goal of the meeting was to “update Zinke on the water project and to garner his support for federal approval of supplying water out of the McClusky Canal for municipal, rural, and industrial uses.” In the meeting, Secretary Zinke said “‘as of today we are taking a fresh look at this project,'” and he “told officials attending the meeting to expect a response from the Department of the Interior in the near future.”

[Kevin Cramer, Press Release, 10/25/17, Kevin Cramer, Tweet, accessed 11/27/17, and Mike Jacobs, “Jacobs: More work, new life in Garrison project,” WDAY, 08/01/17]

After meeting with Secretary Zinke, the Garrison Diversion Conservancy District now expects “a letter from the federal government approving” the diversion project. Ken Vein, who is on the board of the GDCD, described the October meeting with Zinke as “‘a very good meeting.'”

[Patrick Springer, “ND officials: Optimism builds over $1 billion water pipeline to serve Red River Valley, central ND,” WDAY, 11/06/17]

North Dakota Governor Doug Burgum met with Secretary Zinke in September 2017. In the meeting, Governor Burgum “advocated for approval of the Red River Valley Water Supply Project intake permit from the Garrison Diversion’s McClusky Canal.”  

On September 7, 2017, North Dakota Governor Doug Burgum met with Interior Secretary Ryan Zinke. In the meeting, “Burgum advocated for approval of the Red River Valley Water Supply Project intake permit from the Garrison Diversion’s McClusky Canal.” Secretary Zinke’s calendar describes the meeting as a “Meeting with Governor of ND,” and the “description” says “Red River Valley Water Supply Project – Water intake, Mcclusky Canal & the Bureau of Reclamation” among other topics covered. Alan Mikkelsen, the Deputy Commissioner of the Bureau of Reclamation, was also in the meeting.

[Ann Dalyrmple, “Burgum makes pitch for federal drought relief,” Bismarck Tribune, 09/07/17, and Ryan Zinke September Calendar, Department of Interior, accessed 11/20/17]

Financials

Financial Disclosure

Certificate of Divestiture, 08/31/17

[Office of Government Ethics]

Interior Deputy Secretary David Bernhardt, on August 15, 2017, wrote in his Ethics Recusal that he would “not participate personally and substantially in any particular matter in which” he knew that he had “a financial interest directly and predictably affected by the matter” or in which he knew “that a person whose interests are imputed to me has a financial interest directly and predictably affected by the matter, unless I first obtain a written waiver.”

In his recusal, David Bernhardt includes a “list of recusals” in which “absent a waiver” until August 3, 2019, he pledges to be “recused from particular matters involving specific parties in which any of the following entities either is a party or represents a party to the matter.”

The entities Bernhardt vows to recuse himself from are:

Active Network LLC

BHFS-E PC

Brownstein Hyatt Farber and Schreck, LLP

Cadiz, Inc.

Center for Environmental Science Accuracy and Reliability (CESAR)

Cobalt International Energy

Eni Petroleum, North America

Halliburton Energy Services, LLC

Hudbay

Independent Petroleum Association of America (IPAA)

Klees, Don (individual)

National Ocean Industry Association (NOIA)

Noble Energy Company LLC

NRG Energy Inc.

Rosemont Copper Company

Sempra Energy

Statoil Gulf Services LLC

Statoil Wind LLC

Targa Resources Company LLC

Taylor Energy Company LLC

UBE PC

U.S. Oil and Gas Association

[David Bernhardt Ethics Recusal, Department of the Interior, 08/15/17]

Other Information

David Bernhardt, in the 1990s, “served nearly six years on Rep. Scott McInnis’ (R-Colo.) staff,” where he was the “point person” for the $300 million Animas-La Plata “water rights settlement with Colorado’s Ute Indian Tribe.” 

David Bernhardt, in the 1990s, “served nearly six years on Rep. Scott McInnis’ (R-Colo.) staff.”

[“David L. Bernhardt of Colorado to Head Congressional and Legislative Affairs Office at the Interior Department,” U.S. Newswire, 05/24/01]

While he worked for Rep. Scott McInnis he was the “point person” for the $300 million Animas-La Plata “water rights settlement with Colorado’s Ute Indian Tribe” to “supply water to the Ute Indian tribes in southwestern Colorado as well as Durango, Farmington, N.M., and several other communities.” Congressman McInnis argued that the Animas-La Plata project was “essential to fulfill the U.S.’s agreement with Native American tribes in the region.”

Critics said the true purpose of the settlement “was not to appease tribal nations, but to benefit developers.” They said that although the Animas-La Plata project was “advertised as an Indian project, the reality is that non-Indians [would] get much of the water – without paying much of the cost.” Project opponents also described the project as “economically infeasible” and an “environmental nightmare.”

[Mark Obmascik, “In these lean times, $710 million still buys a lot of pork,” Denver Post, 07/15/95, “Owens blasts Babbitt’s Animas-La Plata plan,” Associated Press, 03/16/99, John Biers, “Senate Votes to Keep Animas-La Plata Funding,” States News Service, 07/30/96, and Gale Courey Toensing, “Interior Solicitor David Bernhardt in the spotlight,” Indian Country Today, 06/04/07]

David Bernhardt was one of the “political appointees brought into Interior during [Secretary Gale] Norton’s tenure” who was an advocate or lobbyist “for big oil, gas…and mining corporations that operate on public lands.”

David Bernhardt was one of the “political appointees brought into Interior during [Secretary Gale] Norton’s tenure who all shared the common experience of having been advocates or lobbyists for big oil, gas, coal and mining corporations that operate on public lands.”

[Gale Courey Toensing, “Interior Solicitor David Bernhardt in the spotlight,” Indian Country Today, 06/04/07]

David Bernhardt, when George W. Bush was president, “helped craft rules that exempted carbon emissions from regulatory authority.”

David Bernhardt, during the George W. Bush presidency, “helped craft rules that exempted carbon emissions from regulatory authority.”

[Jimmy Tobias, “The Big Oil Allies and Beltway Insiders Leading Trump’s Department of the Interior – and How to Resist Them,” Pacific Standard, 11/28/16]

David Bernhardt was “one of the [Bush] administration’s point people in the push to promote oil drilling from the Arctic to Wyoming.”

David Bernhardt was “one of the [Bush] administration’s point people in the push to promote oil drilling from the Arctic to Wyoming.”

[“The Ungreening of America: Behind the Curtain,” Mother Jones, 09-10/03]

David Bernhardt was “a Bush administration point man for oil drilling in the Arctic National Wildlife Refuge. In 2001, he prepared congressional testimony on Arctic drilling that dismissed warnings from the government’s own scientists and relied on reports funded by BP.”

David Bernhardt was “a Bush administration point man for oil drilling in the Arctic National Wildlife Refuge. In 2001, he prepared congressional testimony on Arctic drilling that dismissed warnings from the government’s own scientists and relied on reports funded by BP.”

[Gale Courey Toensing, “Interior Solicitor David Bernhardt in the spotlight,” Indian Country Today, 06/04/07]

More specifically, in 2001, David Bernhardt “helped prepare congressional testimony on Arctic drilling for Interior Secretary Gale Norton that dismissed warnings from the government’s own scientists. The Fish and Wildlife Service, the agency that runs the wildlife refuge, had reported that drilling could have a negative impact on the region’s caribou herds. According to published reports, Bernhardt rewrote the FWS findings, and Norton, in answering questions before a Senate panel, misrepresented the research, relying instead on information from a report funded by BP Exploration.”

[“The Ungreening of America: Behind the Curtain,” Mother Jones, 09-10/03]

When David Bernhardt was the Interior Department Solicitor he “issued guidance that recommended agencies” narrowly interpret the Endangered Species Act (ESA), and he has litigated against the federal government over the federal government’s enforcement of ESA. David Bernhardt has been critical of stronger ESA regulations. He thinks “ESA should be reformed to empower local conservation efforts.”

When David Bernhardt was the Interior Department Solicitor he “issued guidance that recommended agencies focus on plants and animals most at risk in their current locations, rather than throughout their historic range or in other locations where species may be healthy.”

[Noelle Straub, “Endangered Species: Scientists Call For Ending Bush-Era Listing Policy,” Greenwire, 12/10/09]

He proposed a “new reading” of ESA which “would enable the U.S. Fish and Wildlife Service to protect animals and plants only where they are battling for survival.” As such, “the agency wouldn’t have to protect them where they’re in good shape.” A group of wildlife biologists said that the proposed changes would “‘have real and profoundly detrimental impacts on the conservation of many species and the habitat upon which they depend.'” In fact, “more than three dozen scientists…signed a letter to protest…[this] interpretation of the Endangered Species Act, saying it jeopardizes animals such as wolves and grizzly bears.”

[John Flesher, “38 scientists sign onto letter to protest new interpretation of Endangered Species Act,” Associated Press, 05/02/07, and “Digest,” St. Louis Post-Dispatch, 05/03/07]

David Bernhardt has “litigated against…federal agencies when failing to administer the act to protect species, as well as when administering the law in an arbitrary and capricious way.”

[114th Congress Disclosure form for David Bernhardt, House Natural Resources Committee, 04/19/16]

David Bernhardt “contended that that the present-tense language of the Endangered Species Act serves as a guide for the interpretation and concluded that the term ‘range’ refers only to a species’ current range: ‘The phrase ‘is in danger’ denotes a present-tense condition of being at risk…[h]ence, to say a species ‘is in danger’ in an area where it no longer exists – i.e., in its historical range – would be inconsistent with common usage.'” Bernhardt “also argued that the Department of the Interior should not be held to any one standard in how it interprets the term ‘significant,’ but rather should be able to apply the term differently on a case-by-case basis.”

[Press Release, “Ohio State Study: 2007 Legal Opinion Is A Threat To Imperiled Species,” US Fed News, 09/15/09]

A team of scientists from Ohio State University’s School of Environment and Natural Resources found that Bernhardt’s interpretation would set the stage “for the creation of sporadically located ‘wilderness zoos’ that would reduce protections for endangered species and the habitat on which they depend” and that this interpretation was “inconsistent with the way federal officials have historically defined threatened and endangered species, as most past listings took into account the loss of a species’ historical range – the land it had occupied in the past.”

[Emily Caldwell, “Ohio State study: 2007 legal opinion is a threat to imperiled species,” The Ohio State University News, 08/04/09]

David Bernhardt said in congressional testimony on April 19, 2016, “in most instances under ESA, any time a federal agency wants to fund, carry out or authorize someone else to conduct activities that may affect a listed species designated critical habitat, the agency must ensure that it is not likely to destroy or adversely modify the habitat,” but with “new regulations, the services modify the definition of the term destruction and adverse… modification. In doing so, they’ve placed a new duty on federal agencies. This duty is not to just refrain from making the present condition of habitat worse, but to refrain from doing anything that would significantly preclude or delay the habitat from developing conservation features in the future even where those future…features do not now and may never exist.”

[David Bernhardt, House Committee on Natural Resources, Hearing On Endangered Species Critical Habitat Designation, 04/19/16]

David Bernhardt, in 2015, “argued that the ESA should be reformed to empower local conservation efforts.”

[Corbin Hiar, “Endangered Species: To Block Gop Reform Bills, Boxer Threatens ‘Hand-To-Hand Combat,'” Environment And Energy Daily, 05/07/15]

Legal analysis by Interior Solicitor David Bernhardt concluded that ESA cannot be used to protect animals, including polar bears, from climate change.

A 2008 memo by Interior Solicitor David Bernhardt “concluded that emissions of greenhouse gases from any proposed project can’t be proved to have an impact on species or habitat, so it isn’t necessary for federal agencies to consult with government wildlife experts about the impact of such gases on species as stipulated under the Endangered Species Act.” His memo “concluded that indirect effects on wildlife can’t be traced to emissions from any specific source and that cumulative effects ‘are of no relevance’ under the Endangered Species Act.”

[Renee Schoof, “Memos tell wildlife officials to ignore global-warming impact,” McClatchy News Service, 10/14/08]

A “2008 legal analysis of planet-warming emissions and effects on polar bears done by Bush-administration Interior Department Solicitor David Longly Bernhardt…concluded there was insufficient data to draw a connection between U.S. emissions and effects on the species in its habitat.”

[“Endangered Species: Obama Admin Disputes Republican Calls For ESA Assessment,” Greenwire, 08/04/15]

David Bernhardt, in 2008, wrote a memorandum defending the decision by the U.S. Fish and Wildlife Service (FWS) that “wolves within the western region of the Great Lakes…were not an endangered or threatened species.”

David Bernhardt, in 2008, wrote a memorandum defending the 2007 decision by FWS revising “the listing of the gray wolf under” ESA after determining that “the wolves within the western region of the Great Lakes were a ‘distinct population segment’ (DPS) of gray wolves generally and that they were not an endangered or threatened species.” Bernhardt wrote that FWS “had clear authority to make these determinations.”

[“Memorandum on U.S. Fish and Wildlife Service Authority under Section 4(c)(1) of the Endangered Species Act to Revise Lists of Endangered and Threatened Species to ‘Reflect Recent Determinations,'” Department of the Interior, 12/12/08]

The Office of Solicitor at the Department of the Interior oversees the Interior Department’s Ethics Office. During Interior Solicitor David Bernhardt’s tenure the Interior Department was beset by ethical issues. In one example, Deputy Assistant Secretary Julie MacDonald was forced to resign “after Interior’s inspector general issued a scathing report exposing her bullying of U.S. Fish and Wildlife Service scientists, doctoring scientific reports and passing [nonpublic] sensitive information to industry lawyers and lobbyists.” David Bernhardt, as solicitor, could have stopped her doctoring of scientific reports, but he did not do so. Instead he was “part of Interior’s Executive Resources Board, which gave Julie MacDonald…a cash award of $9,628,” even though “the award lacked the required documentation of what MacDonald did to deserve it.”

The Office of Solicitor at the Department of the Interior “performs the legal work for the United States Department of the Interior,” which includes overseeing “the Ethics Office.”

[http://www.doi.gov/solicitor-dev/about]

As Solicitor at the Department of the Interior, David Bernhardt “handle(d) legal work and manage(d) its ethics office.”

[Mark Matthews, “Colorado Lobbying Firm Brings Clout to DC,” Denver Post, 04/21/16]

David Bernhardt said, “I view the role of the Solicitor as being the chief legal officer of the Department. In that capacity, the Solicitor serves as the principal legal advisor to the Secretary and is responsible for all legal work in the Department, except that delegated to the Office of Hearings and Appeals, the Inspector General, the Legislative Counsel, and the Justices of the American Samoa.”

[Orbach, Karsner, Spurgeon, and Bernhardt Nominations, Hearing before the Senate Committee on Energy and Natural Resources, 03/09/06]

Deputy Assistant Secretary Julie MacDonald resigned “after Interior’s inspector general issued a scathing report exposing her bullying of U.S. Fish and Wildlife Service scientists, doctoring scientific reports and passing sensitive information to industry lawyers and lobbyists.”

[Gale Courey Toensing, “Interior Solicitor David Bernhardt in the spotlight,” Indian Country Today, 06/04/07]

More specifically, in May 2007 she resigned from the department after being “criticized” in an inspector general’s investigative report that found she “repeatedly” asked Fish and Wildlife scientists to change their research recommendations on endangered species and criticized “her conduct severely.” The report noted that MacDonald operated under the principle “does the science fit the policy?” rather than taking the research at face value.

She was accused of, and admitted to, sending “nonpublic” information to “public sources” on several occasions during her tenure at the department. She sent at least two emails to addresses ending in chevrontexaco.com, including one “large EPA file,” and one about a proposed EPA watershed rule that she admitted “probably wasn’t releasable.” She also sent a document about the Delta smelt to an “on-line game friend” she was acquainted with through “internet role-playing games.”

As solicitor, David Bernhardt had the final legal say on MacDonald’s work classifying endangered species through a review process that escalated up through the various solicitors’ offices. Her work often reached the deputy solicitor’s desk, and if they disagreed on an issue, the decision would have been escalated to Bernhardt. Bernhardt told the inspector general that he viewed MacDonald as a “legal client” to whom he gave advice.

[Department of Interior Office of the Inspector General “Report of Investigation – Julie MacDonald,” 12/01/06, Elizabeth Williamson, “Interior Dept. Official Facing Scrutiny Resigns,” Washington Post, 05/02/07, and Charlie Savage, “Report Finds Meddling in Interior Dept. Actions,” New York Times, 12/15/08]

David Bernhardt was “part of Interior’s Executive Resources Board, which gave Julie MacDonald, the ‘disgraced… Deputy Secretary of Interior,’ a cash award of $9,628 in 2005 for her work in 2004.” She resigned “after Interior’s inspector general issued a scathing report exposing her bullying of U.S. Fish and Wildlife Service scientists, doctoring scientific reports and passing sensitive information to industry lawyers and lobbyists. The award lacked the required documentation of what MacDonald did to deserve it.”

[Gale Courey Toensing, “Interior Solicitor David Bernhardt in the spotlight,” Indian Country Today, 06/04/07]

In another example, according to “a report by the Interior Department’s inspector general,” employees in the Department of the Interior’s Minerals Management Service (MMS) “‘frequently consumed alcohol at industry functions, had used cocaine and marijuana, and had sexual relations with oil and gas company representatives,'” while allowing oil companies to “avoid paying royalties for offshore-drilling rights,” at a cost to taxpayers of “as much as $10.5 billion over about 25 years.”

From 2002 to 2006, according to “a report by the Interior Department’s inspector general,” MMS employees “‘frequently consumed alcohol at industry functions, had used cocaine and marijuana, and had sexual relations with oil and gas company representatives.'” Inspector General Earl Devaney said MMS made “mistakes” allowing oil companies to “avoid paying royalties for offshore-drilling rights,” which would “cost taxpayers as much as $10.5 billion over about 25 years.”

[Stephen Power, “Federal Oil Officials Accused In Sex and Drugs Scandal,” Wall Street Journal, 09/11/08]

When David Bernhardt was a Counselor to the Interior Secretary, J. Steven Griles, who was the “second-ranking official of the Interior Department,” was involved in the Jack Abramoff corruption scandal.

David Bernhardt, from 2001 to 2009, worked in the Department of the Interior. More specifically, from:

  • 2001 to 2004 he was Counselor to the Secretary and Director of the Office of Congressional and Legislative Affairs;
  • 2004 to 2005 he was Counselor to the Secretary and Deputy Chief of Staff;
  • 2005 to 2006 he was Deputy Solicitor; and
  • 2006 to 2009 he was Solicitor. [“David L. Bernhardt of Colorado to Head Congressional and Legislative Affairs Office at the Interior Department,” U.S. Newswire, 05/24/01, Brittany Patterson, “Meet the man deciding the Department of the Interior’s future,” ClimateWire, 11/17/16, and LinkedIn profile for David Bernhardt, accessed 01/18/17]

J. Steven Griles, who was the “second-ranking official of the Interior Department,” was the eleventh person who pled guilty or was convicted for “aiding Mr. [Jack] Abramoff in his lobbying on behalf of Indian tribes and others.” When Griles was sentenced Abramoff was “serving a six-year prison term after pleading guilty to fraud charges in Florida. He…also pleaded guilty in Washington to charges of fraud, tax evasion and conspiracy to bribe public officials. Among those officials is former Representative Bob Ney, Republican of Ohio, who pleaded guilty…to taking bribes from Mr. Abramoff” and was “serving a 30-month prison sentence.”

[John Broder, “Ex-Interior Aide Is Sentenced in Lobbying Case,” The New York Times, 06/27/07]

“The government said that Griles had asked for $100,000 for” the Council of Republicans for Environmental Advocacy (CREA) and “Abramoff solicited the funds from his tribal clients. Griles said that while he helped raise money earlier, he was unaware of…contributions [in 2001] to CREA on [the] eve of his joining the Interior Department.”

A judge “sentenced him to 10 months in prison for a felony conviction of obstructing a Senate investigation into corrupt lobbyist Jack Abramoff.”

[James V. Grimaldi, “Judge Orders Prison Time for Ex-Interior Deputy,” The Washington Post, 06/27/07]

Solicitor David Bernhardt oversaw the forced resignation of whistleblower Robert McCarthy, who helped expose the mismanagement of Indian Trust funds. McCarthy’s whistleblowing led to a “major victory” for the plaintiff tribal members in a case in which David Bernhardt was the “lead attorney” for the Department of the Interior.

The Office of the Solicitor, led by David Bernhardt, played “‘hot potato with Robert McCarthy’s career for…two years.'”

[Kristen Stade, “Agency Audit Verifies Whistleblower Mismanagement Charges,” Public Employees for Environmental Responsibility, 09/24/07]

Robert McCarthy, a “former Department of Interior attorney who spoke out about mismanagement of Indian trust funds was allowed to resign, ending a controversy in which the government threatened to fire him for leaking ‘trade secrets.'” A federal judge had previously “ratified McCarthy’s assessment about the trust system, giving the Indian plaintiffs a major victory.”

[Chris Casteel, “Whistle-blower Allowed to Resign,” The Okhlahoman, 02/27/08]

“McCarthy has since 2005 been trying to bring to light problems in the management of thousands of leases and contracts related to the Aqua Caliente Band of Cahuilla Indians’ lands and resources in Palm Springs and vicinity.” McCarthy had also been “named as a witness for plaintiffs in the continuing class-action lawsuit, Cobell v. Kempthorne, in which tribal members” claimed the Bureau of Indian Affairs and Department of the Interior “failed in their trust duties.”

After Robert McCarthy’s dismissal was proposed on August 9, 2007, responsibility for the decision was “elevated” to Solicitor David Bernhardt, who “also served as lead attorney” in the case McCarthy’s evidence impacted. Bernhardt “transferred” the decision to the Regional Solicitor in Alaska.

[Kristen Stade, “Agency Audit Verifies Whistleblower Mismanagement Charges,” Public Employees for Environmental Responsibility, 9/24/07, and Arthur O’Donnell, “Agency Attorney Faces Dismissal over Indian Trust Disclosures,” Energy and Environment, 09/27/07]

David Bernhardt represented the State of Alaska in a lawsuit against the federal government to allow the state to move closer to drilling for oil in the Arctic National Wildlife Refuge (ANWR).

“Though the U.S. Interior Department has already suggested that a mammoth oil field lies beneath the Arctic National Wildlife Refuge’s coastal plain, the Parnell administration” sued “for the right to run its own $50 million oil-scouting program there.” The state’s lawsuit contested “an Interior Department ruling that the state is 27 years too late to conduct three-dimensional seismic exploration of ANWR’s 1.5 million-acre coastal plain. Bill Barron, director of Alaska’s oil and gas division, said that the new program could more accurately map likely drilling hotspots, allowing other parts of the plain to be set aside as wilderness with little controversy.”

Alaska Governor Sean Parnell said “the state would offer $50 million toward a government program to explore ANWR with the U.S. Geological Survey” using modern three-dimensional oil-scouting techniques to accurately estimate “the oil and gas resource potential” and the “‘value of the (coastal plain) to the nation.'”

“The lead attorney for the state…[was] David Bernhardt of Washington, D.C.” [Richard Mauer, “State sues to access ANWR; Legal action contests Interior’s denial of plan to conduct new seismic exploration,” Anchorage Daily News, 03/26/14]

David Bernhardt, in 2010, suggested he is open to drilling for oil and gas in the oceans beyond the Outer Continental Shelf.

David Bernhardt, in 2010, said, “I completely agree that we need to decrease our dependence on foreign sources of energy.” He continued, “they drilled on the Outer Continental Shelf because that’s – areas that were available for leasing, and there can be discussions about other places and other processes.”

[Energy and Climate Legislation, C-SPAN, 06/25/10]

Interior Secretary Gale Norton, when David Bernhardt was Solicitor, may have “illegally used her position to benefit Royal Dutch Shell PLC, the company that hired her” soon after leaving the Interior Department. A criminal investigation centered “on the Interior Department’s 2006 decision to award [to a Shell subsidiary] three lucrative oil shale leases on federal land” that “could net the company hundreds of billions of dollars.”

It appears Royal Dutch Shell PLC had inside information and assistance to help it obtain these leases and that Gale Norton was less than forthcoming with Interior Department ethics officials about her role in the lease program. “The investigation’s main focus…[was] whether Norton violated a law that prohibits federal employees from discussing employment with a company if they are involved in dealings with the government that could benefit the firm, law enforcement and Interior officials said. They said investigators also were trying to determine if Norton broke a broader federal ‘denial of honest services’ law, which says a government official can be prosecuted for violating the public trust by, for example, steering government business to favored firms or friends.”

The Justice Department investigated “whether former Interior Secretary Gale A. Norton illegally used her position to benefit Royal Dutch Shell PLC, the company that later hired her.” The criminal investigation centered “on the Interior Department’s 2006 decision to award three lucrative oil shale leases on federal land in Colorado to a Shell subsidiary. Over the years it would take to extract the oil, according to calculations from Shell and a Rand Corp. expert, the deal could net the company hundreds of billions of dollars.

The investigation’s main focus…[was] whether Norton violated a law that prohibits federal employees from discussing employment with a company if they are involved in dealings with the government that could benefit the firm, law enforcement and Interior officials said. They said investigators also were trying to determine if Norton broke a broader federal ‘denial of honest services’ law, which says a government official can be prosecuted for violating the public trust by, for example, steering government business to favored firms or friends.”

“In early 2006…the department announced that it planned to award Shell three oil shale leases. Norton resigned two months later, saying that she had no job lined up. In December of that year, Shell announced it had hired Norton as in-house counsel to its unconventional fuels division, which includes oil shale.” The Justice Department was “looking into whether Shell received a competitive advantage or other preferential treatment from the Interior Department in the awarding of the leases. ‘If [Norton] had feelers out, or was in discussions with Shell in any way, she is absolutely forbidden from participating in any way from doing anything with Shell,’ a law enforcement official said.”

[Jim Tankersley and Josh Meyer, “Former Interior Secretary Gale Norton is focus of corruption probe,” Los Angeles Times, 09/17/09]

“The IG found that after leaving Interior but before joining Shell, Norton ‘failed to fully describe her role in the leasing program’ to department ethics officials. After she was hired, Norton contacted the Pentagon and Interior’s Bureau of Land Management, ‘indirectly,’ regarding oil shale issues.”

In addition, “the IG…found that BLM ‘appeared to give preferential treatment’ to Shell in two instances. In one case, two Shell bids were larger than the acreage allowed by BLM. In another, someone within the agency changed Shell’s numbers to comply with the requirements. Shell also submitted – and won – three bids – while other prospective bidders were allowed only one bid.”

[Dan Berman, “Gale Norton won’t face charges” Politico, 12/10/10]

“Critics accused the Interior Department of undermining a central goal of the leases by awarding three of them to Shell. The leases were meant to allow companies to test distinct methods for extracting shale from rock. But each of Shell’s tracts was granted for a variation of the same process. Critics also raised questions about the fairness of the process, given that Shell filed its first lease application just a day after the department issued its call for proposals in June 2005.” Department of the Interior “officials said they did not notify potential bidders” at that point in time.

“The Interior Department’s Office of Inspector General began the investigation during the waning months of the George W. Bush administration and…made a formal criminal referral to the Justice Department…after concluding that there was sufficient evidence of potential illegal conduct.”

[Jim Tankersley and Josh Meyer, “Former Interior Secretary Gale Norton is focus of corruption probe,” Los Angeles Times, 09/17/09]

In the end, “the Justice Department…declined to file charges against former Interior Secretary Gale Norton in connection with oil shale bids by Royal Dutch Shell.”

[Dan Berman, “Gale Norton won’t face charges” Politico, 12/10/10]

David Bernhardt was investigated as part of a Department of the Interior Office of Inspector General investigation into whether Royal Dutch Shell received preferential treatment in BLM’s awarding of oil leases in 2005 and 2006.

David Bernhardt was investigated as part of a Department of the Interior Office of Inspector General investigation that was launched “based on a complaint that Royal Dutch Shell…received preferential treatment during the awarding of oil shale Research, Development, and Demonstration (RDD) leases in 2005 and 2006 by the Bureau of Land Management.”

The investigation found that while Interior Secretary Gale Norton, who subsequently secured employment with Shell, was “very interested in the RDD program during her tenure as Secretary” there was no evidence “to conclusively determine that Norton violated conflict-of-interest laws.” However, BLM “appeared to give preferential treatment to Shell in two specific issues regarding these leases,” and “someone in BLM provided Shell with information” that allowed Shell to submit applications for leases multiple days before any other company.

According to interviews the Office of the Inspector General conducted, “[Gale] Norton and her staff viewed oil shale as a ‘game changer,’ meaning if it could be developed and produced, it would have a significant, positive impact on the Nation’s energy position.” Additionally, David Bernhardt and Gale Norton both “wanted to be involved in oil shale matters because they understood the sensitivity of oil shale development in Colorado.”

The investigation also found that “Bernhardt and Norton had toured a Shell oil shale facility on private land in Colorado.” In fact, Bernhardt, who closely advised Norton, traveled with her on multiple occasions to meet Shell executives in Colorado.

As part of the investigation, the Department of the Interior Office of Inspector General interviewed Melissa Loftin, who later became the designated Interior Ethics Official. Loftin said that she asked Bernhardt his “‘thoughts’ on whether Norton’s involvement in oil shale matters reached the level to where [Norton] was involved ‘personally and substantially on a particular matter involving specific parties.'” Bernhardt responded, “Norton’s involvement did not reach this level” and “BLM managed the RDD process.”

[“Report of Investigation – Royal Dutch Shell,” Department of the Interior Office of the Inspector General, 12/09/10]

David Bernhardt praised Donald Trump for saying, “‘I want to get rid of the stream buffer rule. I want to end the war on coal.'”

David Bernhardt praised Donald Trump’s speeches on energy and the environment, claiming Trump “laid out very detailed speeches about what he wanted to do.” Bernhardt said Trump said, “‘I want to get rid of the stream buffer rule. I want to end the war on coal.’ He was clear.”

[Minute 19 of YouTube, 03/02/17]