[Senate Hearing 115-269]
[From the U.S. Government Publishing Office]

                                                  S. Hrg. 115-269

                          BERNHARDT NOMINATION



                               BEFORE THE

                              COMMITTEE ON
                      ENERGY AND NATURAL RESOURCES
                          UNITED STATES SENATE


                             FIRST SESSION


                            OF THE INTERIOR


                              MAY 18, 2017


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                    LISA MURKOWSKI, Alaska, Chairman
JOHN BARRASSO, Wyoming               MARIA CANTWELL, Washington
JAMES E. RISCH, Idaho                RON WYDEN, Oregon
MIKE LEE, Utah                       BERNARD SANDERS, Vermont
JEFF FLAKE, Arizona                  DEBBIE STABENOW, Michigan
STEVE DAINES, Montana                AL FRANKEN, Minnesota
CORY GARDNER, Colorado               JOE MANCHIN III, West Virginia
LAMAR ALEXANDER, Tennessee           MARTIN HEINRICH, New Mexico
JOHN HOEVEN, North Dakota            MAZIE K. HIRONO, Hawaii
BILL CASSIDY, Louisiana              ANGUS S. KING, JR., Maine
ROB PORTMAN, Ohio                    TAMMY DUCKWORTH, Illinois
                      Colin Hayes, Staff Director
                Patrick J. McCormick III, Chief Counsel
                 Kellie Donnelly, Deputy Chief Counsel
           Angela Becker-Dippmann, Democratic Staff Director
                Sam E. Fowler, Democratic Chief Counsel
                            C O N T E N T S


                           OPENING STATEMENTS

Murkowski, Hon. Lisa, Chairman and a U.S. Senator from Alaska....     1
Gardner, Hon. Cory, a U.S. Senator from Colorado.................     1
Cantwell, Hon. Maria, Ranking Member and a U.S. Senator from 
  Washington.....................................................     4


Bernhardt, David, nominated to be Deputy Secretary of the 
  Interior.......................................................    14


Barrasso, Hon. John:
    Article written by Pamela King and published May 17, 2017, 
      entitled ``Oil and Gas: 3K drilling permit applications 
      await BLM approval''.......................................    26
Bernhardt, David:
    Opening Statement............................................    14
    Written Testimony............................................    17
    Response to Question from Senator King:
      Research Paper by John Yoo and Todd Gaziano published March 
        2017 by the American Enterprise Institute entitled 
        ``Presidential Authority to Revoke or Reduce National 
        Monument Designations''..................................    42
      Accepted Paper by Mark Squillace, Eric Biber, Nicholas S. 
        Bryner, and Sean B. Hecht published May 2017 by the 
        Virginia Law Review Online entitled ``Presidents Lack the 
        Authority to Abolish or Diminish National Monuments''....    68
    Responses to Questions for the Record........................   152
Boone and Crockett Club:
    Letter for the Record........................................   238
Cantwell, Hon. Maria:
    Opening Statement............................................     4
    Written Statement............................................     8
Colorado River Water Conservation District:
    Letter for the Record........................................    81
Colorado Water Congress:
    Letter for the Record........................................    82
Duckworth, Hon. Tammy:
    Article in Mother Jones dated September 1, 2003, entitled 
      ``The Ungreening of America: Behind the Curtain''..........    86
    Article by Elizabeth Williamson dated May 2, 2007, entitled 
      ``Interior Dept. Official Facing Scrutiny Resigns''........    96
    Article by Stephen Power in The Wall Street Journal dated 
      September 11, 2008, entitled ``Federal Oil Officials 
      Accused In Sex and Drugs Scandal''.........................    98
    Investigative Report of MMS Oil Marketing Group - Lakewood 
      (Redacted) dated August 19, 2008...........................   102
    U.S. Department of the Interior News Release dated January 
      17, 2012, ``Interior's ONRR collects $25 million to resolve 
      claims Shell Offshore underpaid royalties''................   135
    Article by Bettina Boxall entitled ``Trump's pick for a top 
      Interior post has sued the agency on behalf of powerful 
      California water interests''...............................   136
    David Bernhardt Client List..................................   140
Gardner, Hon. Cory:
    Opening Statement............................................     1
Gila River Indian Community:
    Letter for the Record........................................   239
Murkowski, Hon. Lisa:
    Opening Statement............................................     1
National Congress of American Indians:
    Letter for the Record........................................   240
National Rifle Association:
    Letter for the Record........................................   241
Oneida Indian Nation:
    Letter for the Record........................................   242
Outdoor Recreation Industry Roundtable:
    Letter for the Record........................................   244
Penobscot Nation:
    Letter for the Record........................................   246
Public Lands Council and the National Cattlemen's Beef 
    Letter for the Record........................................   248
(The) Seneca Nation of Indians:
    Letter for the Record........................................   249
Southern Ute Indian Tribe:
    Letter for the Record........................................    80

                          BERNHARDT NOMINATION


                         THURSDAY, MAY 18, 2017

                                       U.S. Senate,
                 Committee on Energy and Natural Resources,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:20 a.m. in 
Room SD-366, Dirksen Senate Office Building, Hon. Lisa 
Murkowski, Chairman of the Committee, presiding.

                    U.S. SENATOR FROM ALASKA

    The Chairman. Good morning, everyone. The Committee will 
come to order.
    We are here this morning to consider the nomination of 
David Bernhardt to be the Deputy Secretary of the Interior.
    I will give my opening statement and introduction of Mr. 
Bernhardt, as will Senator Cantwell, but I think I would ask 
you, Senator Gardner, to go ahead with your opening 
introduction so you can then join us up here at the dais. We 
appreciate you taking the lead in the introductions this 
    If you would like to proceed?

                   U.S. SENATOR FROM COLORADO

    Senator Gardner. Well, thank you, Madam Chair and Ranking 
Member Cantwell, for this opportunity and hearing today.
    It is my honor to introduce fellow Coloradan, Colorado 
native and my friend, David Bernhardt, as the Senate Committee 
on Energy and Natural Resources holds this hearing to consider 
his nomination to be Deputy Secretary for the Department of the 
    Welcome, David and your family, to the Committee, that has 
joined us today. Will, David's son, may not remember this but 
that you spent some time at daycare with our oldest daughter.
    So I have a picture of you in a clothes hamper when you 
were like this tall with Allison.
    We both grew up in rural Colorado. I am from the Eastern 
plains. Mr. Bernhardt is from the Western slope of Colorado. 
While the geography of our two homes is quite different, we 
share a lot of common interests and the development of the 
values that shape small towns.
    We both began our public service only one year apart, both 
of us interning for Colorado State Representative Russell 
George, who would later become Speaker of the Colorado House.
    Mr. Bernhardt worked with my wife, Jamie, at the Department 
of the Interior. And their offices, at one point, were just 
around the corner from one another.
    Mr. Bernhardt's personal background and public and private 
sector professional experiences prove he is a strong voice for 
the West and extremely well-qualified for the nomination to be 
Deputy Secretary. He has extensive insight on Western water 
policy, natural resources policy and Indian affairs, just to 
name a few. Those that have worked with Mr. Bernhardt commend 
him for his integrity and wealth of knowledge on the issues 
under the Department of Interior's jurisdiction.
    In 2008, after the Department reached the largest Indian 
water rights settlement in our nation's history, Secretary 
Kempthorne personally acknowledged Mr. Bernhardt's work as then 
Solicitor and stated, ``His effective coordination both within 
Interior as well as with the local, tribal, state and 
congressional leaders, was essential to the success we 
celebrate today.''
    The country will benefit from having Mr. Bernhardt serve as 
Deputy Secretary, a position that is the second ranking 
official within the Department with statutory responsibilities 
as the Chief Operating Officer.
    Along with Mr. Bernhardt's professional career, I believe 
it is important to fully understand his background and the 
foundation of his interest in public lands which further 
qualifies him for this role.
    Mr. Bernhardt is originally from the outskirts of the small 
town of Rifle, Colorado. It is located on the Western slope, 
like I mentioned. Few places more fully embody the spirit and 
mission of the agency that he has been nominated to lead as 
Deputy Secretary. Growing up in rural Colorado has instilled in 
him Western values and interests. To this day, Mr. Bernhardt 
enjoys hunting, recreation, the outdoors and fishing.
    Rifle is located in Garfield County, an area where about 60 
percent of the lands are federal public lands. Rifle was 
founded as a ranching community along the Colorado River and 
retains that heritage today, along with tremendous 
opportunities for outdoor recreation, including fishing, 
hiking, skiing, rafting and rock climbing. It also sits at the 
edge of the Piceance Basin, an area in Colorado that has vast 
amounts of natural gas.
    Mr. Bernhardt grew up in the oil shale boom and bust and 
has said that that boom and bust, ``has made him more sensitive 
to the potential impacts and benefits, both environmental and 
social, of our public lands.''
    In the 1980's Rifle was hit by the state's oil shale crash, 
and he personally experienced some of the hard times the 
nation's rural communities often faced.
    Much like the Department of the Interior itself, Rifle is a 
community that is a product of its public lands and Western 
heritage. Rifle is centrally located within a few miles of the 
iconic Grand Mesa, which is the world's largest flat-topped 
mountain, the flat top wilderness and the Roan plateau. It 
represents a home base among these public lands with virtually 
unmatched access to world class outdoor experiences, which is 
why David has such a passion for these issues.
    His background and outlook on public lands and water issues 
assisted him in his prior service at the Department, including 
in the Solicitor's role. David's confirmation as Solicitor was 
confirmed by voice vote by the U.S. Senate in 2006.
    There have been other nominees considered by the Committee 
who practiced private law before and between public service 
appointments at the Department of the Interior, including 
during the Obama Administration. David is taking the same steps 
these nominees did in order for his nomination to move forward 
today. Mr. Bernhardt's integrity and ability are two of his 
strongest qualifications for this nomination.
    Public service requires certain sacrifices, and I 
appreciate that David and his family's acceptance of this 
nomination are to be considered by this Committee today. I hope 
that the confirmation process has not become a broken process 
that disincentivizes qualified people, such as David, who are 
held in high professional regard from returning to public 
    As the Committee takes up his nomination, I urge my 
colleagues to hold this nominee to the same practice and to the 
same process that we hold all nominees that are under 
consideration from this Committee.
    I look forward to Mr. Bernhardt's testimony and thank the 
Committee for considering him today.
    Thank you, Madam Chair.
    The Chairman. Thank you, Senator Gardner. I appreciate your 
statement and the introduction of Mr. Bernhardt and his 
qualifications, as well as a reminder to us all that the 
nomination process is one that we take quite seriously. We have 
been waiting anxiously to have this new Administration's 
nominees come before the Committee. Making sure there is a 
consistency in application of standards, of course, is 
something that we would all encourage, support and request.
    So again, we are here this morning to consider the 
nomination of David Bernhardt as Deputy Secretary of the 
    Senator Gardner mentioned this position is akin to being 
the Chief Operating Officer. The individual who holds this 
position is responsible for executing strategy and overseeing 
the initiatives undertaken by thousands of employees as they 
carry out their statutory duties and the Administration's 
    I believe that Mr. Bernhardt is an excellent choice for 
Deputy Secretary. He is a fellow Westerner, as we heard, 
hailing from a small town in Colorado. He understands the 
management of federal lands and how it affects those who live 
near them, the implication of federal policies and the need for 
balance between conservation and development. He is an avid 
sportsman. He understands the balance.
    Mr. Bernhardt is already well known to many of us. He has 
extensive experience at the Department of the Interior, 
including several years as its Solicitor, a position, again, as 
noted by Senator Gardner, for which he was favorably reported 
from our Committee and confirmed by the Senate by a voice vote.
    Throughout his time at Interior, Mr. Bernhardt gained 
significant expertise about a range of Western issues and 
Alaska issues. After meeting with him last week again and, kind 
of, renewing our acquaintance there, I remain confident with 
how he understands the importance of Alaska to the Department 
and how consequential the Department's decisions are to my 
    Now I think we will let Mr. Bernhardt speak further to his 
biography, and give an opportunity to introduce his family. I, 
too, welcome the family and thank you for your willingness to 
serve in this manner because we all recognize that it is not 
just those who hold the office, but their families that 
sometimes bear the weight of the office because they don't see 
their family.
    I will just further add that Mr. Bernhardt is knowledgeable 
about the issues that face the Department and the predominantly 
Western lands it manages. He has a strong reputation as a 
manager which is critical for a Deputy Secretary, and his 
nomination is being supported by dozens of groups including 
sportsmen's groups, Ducks Unlimited, Safari Club, Teddy 
Roosevelt Conservation Partnership.
    For members who have questions for Mr. Bernhardt, this is 
the time, this is the place, to ask them.
    I know that many of us have had an opportunity to visit 
prior to this hearing, but I intend to be here this morning for 
as long as it takes members to ask their questions. They will 
also have the normal opportunity to submit questions for the 
record and those questions will be due at the close of business 
    So again, Mr. Bernhardt, I want to thank you for your 
willingness to serve, and your family's willingness. I think we 
all understand how difficult and contentious just the process 
is that we are dealing with right now, but know that it is my 
intention to try to move your confirmation as expeditiously as 
    With that, I turn to Senator Cantwell for her opening 

                  U.S. SENATOR FROM WASHINGTON

    Senator Cantwell. Thank you, Madam Chair, and welcome to 
the nominee and to his family for being here today. This is an 
important hearing and these issues are very important for the 
entire nation.
    The Deputy Secretary, in supervising and administrating the 
Department, performs important functions of the Secretary in 
the Secretary's absence. In virtually all matters the Deputy 
has the full authority of the Secretary. That is why it's 
critical today to have a full review of the nominee and his 
past positions on important matters that he will be responsible 
    I have to say at the outset that I have concerns about Mr. 
Bernhardt's nomination. Certainly, he is no stranger to the 
Department of the Interior, and he is no stranger to our 
Committee. He held a number of senior political positions in 
the Department during the Bush Administration, including the 
Department's Solicitor, beginning in 2006.
    Since leaving the Department in 2009, Mr. Bernhardt has had 
a very successful private sector law practice. He has 
represented a wide range of clients, including oil and gas 
companies, mining companies and water supply interests in 
California, just to name a few. And he has previously been 
tasked with helping to oversee these same companies while at 
the Department of the Interior.
    Mr. Bernhardt is now seeking to come back through this 
revolving door and be part of regulating and overseeing the 
same issues that he was lobbying for in the private sector.
    I am not suggesting that working for the private sector 
disqualifies someone from the public sector, but I am reminded 
of the various nominees before this Committee and the various 
issues that my colleagues have brought up during the Obama 
Administration. I don't think they are going to be the ones we 
are bringing up today.
    For example, the Committee rejected nominees during the 
Obama Administration for simply having worked for a national 
environmental group, having served on the board of an 
environmental group, and in one case, simply being a 
    Those objections for disqualifying the nominee were 
patently absurd, and they remain so today. But because of the 
extensive background Mr. Bernhardt has had in the private 
sector, these issues of conflict of interest or appearance of 
conflict of interest will be the subject of my questions today.
    His ethics agreements say he will not participate in 
particular matters involving specific parties in which his firm 
is a party or represents a party, and I will have questions for 
him on that. But these ethic rules only require him to recuse 
himself for one year; or two years, if he adheres to the Trump 
Administration pledge.
    Mr. Bernhardt has had considerable experience working with 
the Department from his service during the Bush Administration, 
as Counselor to the Secretary, Director of Congressional and 
Legislative Affairs, Deputy Chief of Staff, Deputy Solicitor, 
and Solicitor. And he has a great deal of experience from his 
law practice, representing energy, mining, and water clients. 
But his work for those clients also poses a problem. It creates 
at least an inherent appearance of conflict, and today we are 
going to talk about some of that.
    Why is this important? Well, in the Reagan and Bush 
Administrations, James Watt, Gale Norton, who was investigated 
for giving preferential treatment to Shell and later taking a 
job with Shell, and Steven Griles, who was investigated for 
conflict of interest and went to prison for obstructing a 
Senate investigation, all came to the Department of the 
Interior after representing energy and natural resource 
    In their confirmation hearings, they came before the 
Committee and assured us that they would successfully switch 
sides and disassociate themselves from these former clients. 
But their outlook, their frame of reference, the policies they 
pursued remained the same as those they had advocated for their 
former clients. These were the policies aimed at monetizing the 
values of American natural resources and public lands for the 
benefits of corporation and the expense of taxpayers. These are 
important issues that we want to address today.
    It took fewer than 100 days of the Trump Administration for 
the new Secretary to start rolling back important land 
conservation measures. To simply say to us, don't worry today, 
is not going to suffice.
    Mr. Bernhardt's nomination raises further questions because 
his prior service at the Department of the Interior came at a 
time when the agency faced legal scrutiny over its ethics 
failings. He was the Department's top legal officer at the time 
the Department's Inspector General described it as ``having a 
culture of ethical failure.''
    In September 2006, just before the Senate confirmed Mr. 
Bernhardt as the Solicitor but after he had been serving five 
years in a senior position, including as Deputy Solicitor, the 
Inspector General testified before a House Committee, ``Simply 
stated, short of a crime, anything goes at the highest level of 
the Department of the Interior. Ethics failures on the part of 
senior department officials--taking the form of appearances of 
impropriety, favoritism and bias--have been routinely dismissed 
with a promise of not to do it again.''
    Both Secretary Norton and Deputy Secretary Griles were 
investigated for those conflict of interests. And as I said, 
Deputy Secretary Griles was ultimately convicted and went to 
prison for obstructing the Senate Indian Affairs Committee 
investigation of the Jack Abramoff scandal.
    Julie McDonald, an Assistant Secretary in the Department, 
was forced to resign. She was found to have given internal 
agency documents to industry lobbyists, pressured agency 
scientists to withhold information, and improperly modified 
scientific data to further her agenda against the Endangered 
Species Act.
    Drug use, misconduct between agency staff and industry, 
rampant conflicts of interest were prevalent in the Mineral 
Management Services. I am not saying all of this happened 
during his watch, but certainly these were the things that 
occurred. So I have questions about tackling those issues.
    The lack of enforcement and oversight attitudes ultimately 
led to the complete restructuring of the Mineral Management 
Service. Mr. Bernhardt was a senior political leader in the 
Department during many of these events. He counseled the 
Secretary and served as the Deputy Chief of Staff or top legal 
officer during this time.
    Given this role I hope he will be able to shed light on the 
extent of his role in some of these matters and what further 
reforms we need. Specifically, the issue of conflict of 
interest will be something that I plan to ask about, Madam 
Chair, during the Q and A because Mr. Bernhardt has represented 
Cadiz, a company which is seeking to pump groundwater near the 
Mohave National Preserve in Southern California to sell it 
elsewhere. His law firm has a unique compensation arrangement. 
I find it interesting that upon taking office, the Trump 
Administration quickly reversed the previous Administration's 
opposition to this project.
    So we want to understand Mr. Bernhardt's clients, his 
partners, and what their financial benefits are from this 
project. We do know that the LA Business Journal reported 
earlier this month that Cadiz was able to raise $255 million in 
private equity investment premised on the Trump Administration 
    So again, these issues of clients and past issues at the 
agency will be the subject of many of our questions. I do have 
a longer statement that I am going to enter into the record 
about other issues of concern that we just don't have time at 
this point to go over. But clearly his work on behalf of the 
Westland's irrigation district, in addition, serving as the 
lead attorney for the State of Alaska's lawsuit challenging the 
Department of the Interior's management of the Arctic Wildlife 
Refuge and litigation, and lobbying on behalf of Taylor Energy 
which operates a well that has been leaking into the Gulf of 
Mexico since 2004.
    I am very interested to have the explanation on this 
previous tenure at Interior and avoidance of conflict of 
interest on many of these issues that I have just raised. I 
think the Department of the Interior should be the guardian of 
public interest when it comes to stewardship of our public 
lands and our natural resources. So I look forward to hearing 
the nominee talk about those issues and being able to ask 
    Thank you, Madam Chair.
    [The written statement of Senator Cantwell follows:]
    The Chairman. Thank you, Senator Cantwell, and we look 
forward to your questions, as well as those from all members of 
the Committee, questions about Mr. Bernhardt's or any nominees' 
potential conflicts and the needs for associated recusal are 
fair and important.
    For my part, I have asked many of those questions of the 
nominee, and I have been satisfied with his answers. I take the 
designated agency ethics official at the Department, in 
addition to the General Counsel at the Office of Government 
Ethics, at their word that Mr. Bernhardt meets all of the 
ethical standards under the law for nominees. They have 
attested to this in writing and in the paperwork that has been 
submitted that we all have.
    So, again, fair and important to ask these questions, but 
again, I want to make sure that what we are doing here in this 
Committee is consistent with what we have done previously in 
terms of the standards that we set.
    Mr. Bernhardt, if you would like to come forward, please, 
and we will administer the oath as we do with each nominee 
before the Committee. The rules of the Committee, which apply 
to all nominees, require that they be sworn in in connection 
with their testimony. Please raise your right hand. Do you 
solemnly swear that the testimony you are about to give to the 
Senate Committee on Energy and Natural Resources shall be the 
truth, the whole truth and nothing but the truth?
    Mr. Bernhardt. Yes.
    The Chairman. Before you begin your statement I will--you 
can go ahead and sit here. I will ask you three questions 
addressed to each nominee before this Committee.
    First, will you be available to appear before this 
Committee and other Congressional Committees to represent 
Departmental positions and respond to issues of concern to the 
    Mr. Bernhardt. Yes.
    The Chairman. Second, are you aware of any personal 
holdings, investments or interests that could constitute a 
conflict or create an appearance of such a conflict, should you 
be confirmed and assume the office to which you have been 
nominated by the President?
    Mr. Bernhardt. No.
    The Chairman. And are you involved or do you have any 
assets held in blind trust?
    Mr. Bernhardt. No.
    The Chairman. With that, Mr. Bernhardt, you may proceed. We 
would certainly encourage you to introduce your family to the 
Committee, but we look forward to your comments here this 
morning and the opportunity to ask questions.

                   SECRETARY OF THE INTERIOR

    Mr. Bernhardt. Well, thank you, Chairman Murkowski, Senator 
Cantwell, members of the Committee. I request that my written 
statement be entered into the record, and I will summarize my 
    The Chairman. It will be included as part of the record.
    Mr. Bernhardt. I am humbled to appear here today as 
President Trump's nominee for the position of Deputy Secretary 
for the Department of the Interior. I deeply appreciate the 
trust and confidence Secretary Zinke has placed in me by asking 
me to serve as his Chief Operating Officer of the Department, 
and I ask for your consent to that nomination.
    I am joined this morning by members of my family. My wife, 
Gena; my son, William; my daughter, Katherine; and my mother 
from Colorado, Carolyn Bernhardt-Jones.
    Now last week when Will and Katie were told about the 
hearing and that it would take place this morning, they wanted 
to attend because it beat the classroom.
    That actually was only for a few moments, and then I 
informed them that they wouldn't be texting during the 
Committee's proceeding.
    But after searching the web they decided their dad could 
use some backup, and for Will there's an additional bonus 
because we think his attendance counts toward meeting the 
requirement for a Citizenship of the Nation merit badge for 
    It was quite an experience to be introduced by Senator 
Gardner. Our paths have crossed in interesting ways. He is a 
great leader for the State of Colorado, and I am deeply 
grateful for his support and introduction.
    Senator Gardner mentioned a man named Russell George, who 
was only one of many individuals who greatly impacted my 
interest in natural resource and environmental matters as well 
as my development as a leader.
    My interest and dedication to working in natural resources 
was originally driven by family trips to majestic parks, 
boating in Glen Canyon National Recreation Area and hikes and 
hunts and horseback rides on the public lands that border 
Rifle, Colorado.
    But it was also driven by daycare. I didn't realize it 
would be a theme for today's hearing, but it was driven by 
daycare. And here's why. My parents both worked, and as a 
result they took an unconventional approach to daycare. My dad 
would take my brother and I everywhere. And when I say 
everywhere, I mean everywhere.
    As a result, my earliest memories are of attending local 
water district, fair board meetings, soil conservation meetings 
within the County of Garfield County. The discussion of many of 
those meetings centered around two things: water and what was 
taking place on public lands. That's what people talk about in 
Western Colorado.
    Now I thought the farmers, ranchers and other folks who 
volunteered their time to participate in these meetings were 
doing very important work. I also saw that they actually got 
things done. Needed facilities were actually built. Where there 
were disagreements, they took place with civil discussion.
    At times they thought their federal neighbors were helpful 
and at others, far less so. Their actions toward working to a 
common purpose improving things in Garfield County were, in my 
mind at the time as a child, the embodiment of the 4H pledge 
where it contains the phrase, ``I pledge my hands for a larger 
service to my club, my community and my world.''
    Now, not everything was sunshine in Rifle, as Senator 
Gardner mentioned. It suffered a dramatic economic downturn in 
the mid-80's that was driven partially or significantly by 
changing economic dynamics but it was also driven by changing 
federal policies. The Federal Government eliminated the so-
called synfuels program which had created an incentive for oil 
    One consequence of that downturn, at least for me, was a 
sense of economic hopelessness and I left high school a year 
early to get out of Rifle. When I left I carried with me a 
commitment to that 4H pledge that we should strive to serve our 
community, our state and our country in some capacity. I carry 
that with me today as I sit here with you, and I've carried it 
with me every day of my life.
    For me, there are few missions as important as those of the 
Department of the Interior. It is obvious to anyone watching 
their kids take in the Statue of Liberty for the first time why 
we protect our cultural icons for generations. It's also 
obvious to my kids, every time we open the freezer and they 
say, please, not elk again.
    Why we treasure access to our public lands and are guided 
by the North American model of wildlife conservation.
    During my career I have worked on complex issues affecting 
each of the Department's bureaus. I understand each bureau's 
mission. I know the dedication of the people there, and I 
respect the legal and policy choices facing decisionmakers.
    If I am confirmed here is the approach that I will take 
when addressing the Department's challenges: I will approach 
them with an open mind; I will actively seek input and listen 
to varied views and perspectives; the recommendations I make to 
the Secretary or those I personally draw will be informed; the 
decisions I make will be within the confines of the discretion 
you, as Congress, have given the Secretary in the law; and, the 
decisions I make will be made with integrity.
    Thank you and I look forward to your questions.
    [The prepared statement of Mr. Bernhardt follows:]
    The Chairman. Thank you, Mr. Bernhardt.
    We now will turn to five-minute rounds of questions from 
    Mr. Bernhardt, my first round here will be, perhaps, more 
parochial than my colleagues here, but I want to speak to some 
of the Alaska-specific issues.
    If you are confirmed, we have had the discussion about the 
extent of the role that Alaska plays within Department of the 
Interior. We oftentimes refer to the Department as our 
landlord, given the scope and reach into our internal affairs.
    It is no secret around here that with the last 
Administration I did not have a particularly close or 
productive relationship with the Department of the Interior 
which was unfortunate.
    So, a general question to you this morning, is how will you 
approach the dealings with the State of Alaska? How will that 
be different from what we saw with the previous Administration?
    Mr. Bernhardt. Well, first let me say that I love the State 
of Alaska.
    The Chairman. Thank you.
    Mr. Bernhardt. My wife and I have been at Katmai National 
Park which I think is one of the most incredible parks on the 
planet. I've hunted in Yukon Charlie Preserve and been to 
    In terms of a changed perspective, I think Secretary Zinke 
has already set that tone by saying that this would be an 
Administration that restores trust. And I believe that when he 
says that, he means that we will cooperate and collaborate with 
states and be respectful of their appropriate role in 
management and stewardship and with tribes.
    And from my own perspective I would tell you this, that I'm 
a student of history and I know and appreciate the agreements 
that the people in the State of Alaska believe were made by 
this Congress for them and the balance that those statutes were 
designed to create and to the extent that we decide that that 
balance is out of kilter, we'll work with you to restore the 
balance and the trust.
    The Chairman. Well, we appreciate that because we feel that 
there have been many promises made, whether at statehood or 
following statehood, as it related to our lands and to the 
promises made to our native people.
    Mr. Bernhardt. Right.
    The Chairman. In that vein, you mentioned the commitment to 
work with our tribes, and I am pleased that you are emphasizing 
that because the obligation to uphold the Federal Government's 
trust responsibility to our first peoples is a significant one 
and throughout the country. But recognizing that we have had 
issues relating to consultation with our native people, whether 
in the State of Alaska, I know, again, many of the commitments 
that were made under ANSCA, many believe have not been kept. 
There are groups, like the Bering Sea Elders, who believe the 
Federal Government has not done a good job of consultation in 
the past.
    So I am asking for your commitment to, not only conduct 
consultation, I don't want check the box consultation. We need 
to have meaningful and consistent consultation with our tribes, 
with our native organizations, not only in Alaska, but around 
the country and really to involve them appropriately in the 
decisions being made that are relevant to them.
    Mr. Bernhardt. Well, I certainly will give you that 
    I am fortunate in that yesterday I received a letter from 
the Southern Ute Tribe which is a tribe in Colorado that used 
to be led by a gentleman named Leonard Birch. And I had the 
good fortune of working with Chairman Leonard Birch and others 
to learn just how meaningful good tribal leadership can be to 
communities and they supported my nomination, expressed that I 
have a history of listening and working with them. And of all 
the things that I've received, other than Senator Gardner's 
introduction, that really hit home for me. I mentioned it in my 
testimony and it's something that I believe in.
    I spent years working on Indian water right settlements, 
resolving conflicts whether they were in Colorado, New Mexico 
or Arizona, and I'm committed to hearing people out and trying 
to find real solutions and to the extent that we can solve 
things doing it.
    At the end of the day that's what we're going to be judged 
on, what we did. Did we adopt practical solutions? Did we move 
the ball forward? Because I think at times we're paralyzed in 
the Federal Government and we just need to step forward and 
make things happen.
    The Chairman. Thank you.
    Senator Cantwell.
    Senator Cantwell. Madam Chair, I was wondering if I could 
defer to my colleague, Senator Heinrich, because I need to run 
and vote in the Finance Committee and come back, if I could do 
    The Chairman. Certainly. Senator Heinrich is next.
    Senator Cantwell. Is that imposing on you too much, Senator 
    Senator Heinrich. Not at all.
    Senator Cantwell. Thank you.
    The Chairman. Okay.
    Senator Heinrich.
    Senator Heinrich. Thank you, Madam Chair.
    Mr. Bernhardt, I wanted to start out and ask you a question 
about the recent action by President Trump that he took with 
regard to the signing statement when he signed and enacted the 
FY2017 Omnibus Appropriations bill.
    There was the implication that some programs and services 
for American Indians and for tribes may not comply with equal 
protection clause of the Constitution. Do you hold the view 
that tribal programs are somehow in conflict with the equal 
protection clause of the Constitution?
    Mr. Bernhardt. Well Senator, first off I must say I have no 
knowledge of the signing statement and if you want to provide 
it to me, I'd be happy to look at it.
    Senator Heinrich. We would be happy to do that, but I think 
generally as a matter you not need be familiar with the----
    Mr. Bernhardt. Sure.
    As a general matter there is a long history of Federal 
Courts upholding perspectives related to your plenary authority 
and the relationship with tribes, so I'm really at a loss to 
speak to that particular matter. But I'd say that the courts 
have sustained a variety of programs that have been lawfully 
enacted here and so, I just apologize for not being able to 
respond more deeply.
    Senator Heinrich. So you know, let me give you an example 
of one of the list of different programs that were called out 
with respect to the signing statement.
    One of them was Native American housing block grants, for 
example. I am not sure what the logic was, but I just want to 
get a sense for that you do not have an inherent concern about 
an inherent conflict and that you are comfortable with where 
the courts have ruled over the years on that matter.
    Mr. Bernhardt. Well, what I would say is I have no 
knowledge of that particular item. For example, some of those 
programs, or that particular program, it's my understanding, 
has been in place for quite a while. So, I can't really speak 
to the challenge.
    Senator Heinrich. During your previous tenure at the 
Department there was a multiple years long, what I would call 
a, sort of, a de facto moratorium on land-into-trust 
applications. More recently in the last Administration I think 
we saw them take approximately, yes, half a million acres into 
trust on behalf of tribes.
    One of the things that we have heard more recently is that 
there are concerns that there are plans in the works at the 
Department of the Interior, again, to change the land-into-
trust process and potentially to do so without first consulting 
with tribes. Are you comfortable committing to conducting a 
full tribal consultation before making any major changes to the 
land-into-trust process?
    Mr. Bernhardt. Well, fortunately we had a little bit of an 
opportunity to speak yesterday, and I think in that meeting I 
explained to you that from my perspective one of the great 
opportunities of the Trump Administration and its relationship 
with tribes is that Congress has resolved some of the long-
standing Indian trust issues related to Cobell and other 
    And I think that anything that happened during the Bush 
Administration regarding land-into-trust and trust 
responsibility, I don't think you can look at those things 
without sharing a perspective of that particular litigation and 
the burdens that were imposed on the Department of the Interior 
because of it.
    So I'm excited about having a new slate to start with, if 
you will, not covered by the legacy of hundreds of years, or a 
hundred years.
    I can't speak to what the Department has suggested because 
I'm not aware of any changes. What I would say is to the extent 
that it would be a regulatory change, there would absolutely be 
public comment opportunity. And I would think that if it's 
anything that's meaningful, we would absolutely participate in 
some form of engagement.
    Senator Heinrich. Great.
    Madam Chair, I am going to hold the rest of my questions 
for the second round and let you get to some other members.
    Thank you.
    Mr. Bernhardt. Thank you, Senator.
    The Chairman. Thank you, Senator Heinrich.
    Senator Barrasso.
    Senator Barrasso. Well, thank you, Madam Chairman.
    Congratulations again on your nomination. It is clear to me 
that you are keenly aware that this Administration does not 
want to continue the old business as usual at the Department of 
the Interior. In fact, it must not be business as usual. You 
know, across the West communities are struggling with real, 
dramatic, over regulation that we have been living with the 
last eight years.
    Federal agencies have repeatedly failed to recognize on the 
ground realities that were caused by broad, over-reaching 
federal policies. Over regulations, particularly harmful, in my 
home state of Wyoming, where nearly half of our state is public 
land managed by the Department of the Interior.
    We live and we work and we play on these public lands, so 
it is critical to states like Wyoming, that the Department find 
a balance between protecting the environment and developing our 
nation's energy resources in a responsible way.
    I think that the Obama Administration failed to find that 
balance. They pursued a burdensome regulatory agenda that 
resulted in far more harm to the economy than benefit to the 
environment. But Congress and the Trump Administration have 
taken decisive steps to reverse the trend, such as the 
Executive Order promoting energy independence and economic 
growth. The Executive Order gives federal agencies the 
opportunity to review and, if appropriate, suspend, revise or 
rescind harmful regulations that burden the energy sector of 
the American economy.
    So my question is what steps do you intend to take to 
remove some of these regulatory burdens to the safe and 
efficient production of energy resources?
    Mr. Bernhardt. Well, thank you for that question, Senator.
    From my perspective, environmental standards need to be 
maintained. But anyone who goes to the CEQ regulations today 
would see that they say things such as a complex, environmental 
impact statement should be 300 pages. If you look at the 
reality in today's permitting processes, what you would see are 
environmental impact statements that are hundreds or thousands 
of pages more than what is suggested.
    And I believe that we need to ensure that there's public 
participation and input. I believe that we need to think about 
alternatives in terms of specific projects. And we need to 
ultimately make very informed decisions which include the 
information regarding our required statutes.
    But I don't believe we need to do it in the way that we do 
it because we are a country that is suffering from paralysis of 
analysis, if you will. And part of it's driven by ultimate 
litigation factors, but I could show you proposed projects that 
just the documentation for a project is costing $250 million 
and taking a decade. There's no reason for that to happen. If 
it's a bad project, we should say it's a bad project and move 
    But we need to streamline our systems, and we're prepared 
to do that. And then we're prepared to manage aggressively as 
it relates to multiple use.
    Senator Barrasso. You talked about some of the costs and 
some of the delays, you know, excessive permitting delays at 
the Bureau of Land Management really do present additional 
challenges for our rural communities.
    In fact, on April 30th this year the BLM, the Bureau of 
Land Management, had 3,000 pending applications for permits to 
drill oil and gas on federal land.
    There is an article, Madam Chairman, I would like to put 
into the record.
    The Chairman. It will be included.
    [The information referred to follows:]

    Senator Barrasso. It is just oil and gas, 3,000 drilling 
permit applications await BLM approval. These permitting delays 
directly threaten our energy security. They threaten jobs. They 
threaten economic stability for a lot of small communities. The 
delays exist across all sectors.
    NEPA delays prevent active forest management. They slow our 
reactions to invasive species issues.
    And so, can you talk a little bit about what steps you can 
take to reduce these permitting backlogs across the Department?
    Mr. Bernhardt. Well, I think the Secretary has made, as a 
commitment to you in his confirmation, that we're going to 
focus on giving the front lines the tools that they need to do 
their job. And I believe that when you look at backlogs in 
field offices what you find are a few things. Number one, the 
resources can very well be an issue and often are. The other 
thing is that at times the field offices are focused on things 
that are not necessarily within the parameters of the specific 
mission that the Department has.
    So, I think we need to start by asking ourself, what are we 
doing in these offices as it relates to our specific statutory 
direction? And then two, making sure that we give our folks on 
the front line the tools to do their job and the flexibility to 
make their decisions.
    Senator Barrasso. Thank you.
    I appreciate Senator Heinrich's comments and questions 
regarding Indian affairs. As a former Chairman of the Committee 
on Indian Affairs, I have a number of questions in that area as 
well, but I will submit those in writing.
    So thank you and thank you for the question.
    The Chairman. Thank you, Senator Barrasso.
    Senator Manchin.
    Senator Manchin. Thank you, Madam Chairman, and thank you, 
Sir, for your willingness to serve again.
    In West Virginia we have over 17,000 acres of land in the 
Canaan Valley National Wildlife Refuge. I think we spoke about 
this. And we have a headquarters, it is the headquarters of the 
refuge, and it is 7,000 square feet and dilapidated and it is 
really a situation that we need help with. I think we have 
talked, and my staff has, to an extent with you on this.
    The other thing, Mr. Bernhardt, is that that is something 
that, I think, we are going to do in infrastructure. It is a 
shovel-ready project. It is ready to go. We have been 
requesting and requesting and requesting.
    First of all, we would love for you to come out and visit. 
It's not that far. It is only a three-and-a-half-hour drive.
    Next of all, we would hope that you would give us the 
support that we would need, sir, because it is going to take a 
push from yourself to make something like this a high priority 
to be done.
    There are an awful lot of people, a lot of youth, that use 
this program, and they are out there continuously for 
educational purposes. So if you could put that on your radar 
screen, I would appreciate it very much.
    Mr. Bernhardt. Absolutely, sir.
    First off, we'll take you up on the visit. My family 
regularly goes up to Harper's Ferry, and we love it.
    Senator Manchin. Oh, you are not that far.
    Mr. Bernhardt. Yes.
    That said, we did talk about that issue a little bit. I 
really appreciate you giving me time to visit with you and I 
will look into it in more content once I'm----
    Senator Manchin. I thank you for that.
    The other one I have affects a lot of our states, but in 
the East, you know, we don't have many public lands, most of 
ours is private. But what we do have, we have Payment in Lieu 
of Taxes on those that we do have, and that has been a real 
tough situation and is really with a lot of our counties that 
they have had the flexibility to use payments for government 
purposes as they determine by the state awarded the funds. But 
we are in jeopardy of those funds subsiding or going away.
    This Committee recently held a hearing on the Payment in 
Lieu of Taxes and Secure Rural Schools. Olivia Ferriter, the 
DOI Deputy Assistant Secretary of Budget, Finance, Performance 
and Acquisition, testified on the importance of these programs. 
Specifically, in her written testimony she said that, ``The 
Trump Administration is interested in ensuring that the Federal 
Government can fulfill its role of being a good neighbor to 
local communities.''
    West Virginia's larger rural state and expiration of these 
programs will have greater impact than more populated urban 
states. Specifically, West Virginia has 1.2 million acres of 
eligible Payment in Lieu of Tax lands and in 2016 we received 
$3,113,365 under the program. That was in '16. In 2017 the 
Omnibus authorities went down to $465,000.
    You can see where we stand on this. So I would ask, in your 
previous roles in the Department, what, if any, prior work 
experience have you had working with the Payment in Lieu of 
Taxes? Has that been part of your purview?
    Mr. Bernhardt. Well, I had the luxury of serving as the 
Head of Congressional Affairs for a while at the Department of 
the Interior. And the most significant role I had in the PILT 
situation was getting yelled at by members of this Committee 
and the House Resources Committee for the----
    Senator Manchin. No, not these exact members----
    Mr. Bernhardt. No, not these exact----
    Getting yelled at because we didn't hit the target right. 
So I can tell you I will be a strong internal advocate for 
making sure we get PILT payments right, and we'll see how that 
plays out in the budget situation.
    Senator Manchin. I know there is going to have to be push 
back, probably, sometimes with some of the Administration 
because of the cuts and things of this sort and you need to 
prioritize, but how would you prioritize this PILT program? You 
can imagine the counties where there is no private money coming 
in. Land taxes are how we pay for our schools.
    Mr. Bernhardt. Well, I'll tell you, I know how important 
PILT payments are to local communities. So, I'll tell you that.
    And I know that we'll be----
    Senator Manchin. I hope that you can commit to basically 
putting it as a high priority.
    Mr. Bernhardt. I can----
    Senator Manchin. Because of education, it is all tied to 
education. That is what it is all about.
    Mr. Bernhardt. I'll commit that I'm the only Deputy 
Secretary that's going to have a Navy Seal for a boss and we'll 
push internally as hard as we can.
    Senator Manchin. Thank you, sir, I appreciate it.
    The Chairman. Thank you, Senator Manchin.
    Senator Gardner is gone, so Senator Daines, you are next.
    Senator Daines. Alright. Thank you, Madam Chair. Mr. 
Bernhardt, welcome to the Committee, congratulations.
    Your breadth of experience at the DOI will serve the 
Secretary and the President very well.
    Mr. Bernhardt. Thank you.
    Senator Daines. However, what I think is equally as 
important as your Western heritage, I was very clear with the 
Trump Administration when it came time to pick a Secretary of 
the Interior, it needed to be a Westerner. With all due respect 
to the Senator from West Virginia, West Virginia, to me, is not 
West enough.
    And to me, West----
    Senator Manchin. It is still wild and wonderful.
    Senator Daines. It is wild and wonderful. I do not 
    Wild and wonderful, but I guess it is all relative. To me, 
West starts at about the North Dakota/Montana border and angles 
West. As you look right here across this Committee, I think you 
have got Senators starting with the Chairman, all the way over 
to here that fit that criteria. I was thrilled to see then-
Congressman Zinke become the new Secretary, a friend of mine 
for 38 years.
    The Department of the Interior, as you know, is charged 
with managing our wildlife, our public lands, including 
national parks and refuges, our nation's rich mineral 
resources, which are key to American energy independence and 
the sacred responsibility of protecting the Federal 
Government's trust responsibilities to Indian tribes.
    I know stewarding the Department's assets is an incredibly 
challenging balancing act. This came to bear most directly with 
you in your Deputy Secretary role in charge of resolving the 
interagency conflicts.
    In Montana and out West we also have learned to strike that 
important balance in our daily lives. I like to call it finding 
that balance between John Denver and Merle Haggard. That melody 
is so important to capture and get it right.
    I know you have similar roots in Western Colorado which 
have, no doubt, informed your world view. Having your family 
and your mother here, as well, says a lot. You have mastered 
that melody well, much like Secretary Ryan Zinke.
    For these reasons you have earned the support of nearly 30 
different sportsmen groups. It is an impressive list, Mr. 
Bernhardt. The Boone and Crocket Club, the Theodore Roosevelt 
Conservation Partnership, the Mueller Foundation, the National 
Wild Turkey Federation, the Rocky Mountain Elk Foundation, 
headquartered in my home state, the Wild Sheep Foundation, 
headquartered in my home town. This is an impressive list, and 
I congratulate you on seeing that kind of widespread support 
from these important sportsmen groups. These groups and others 
are important at what we like to call our outdoor economy in 
Montana and out West.
    But frankly, it is about our state's and our country's 
heritage. I understand you are an avid hunter. In fact, Senator 
Gardner, thanks to technology, and I know you haven't allowed 
your children to tweet today, but Senator Gardner showed me a 
picture as you were testifying and it was a photo of a 
beautiful bull moose that you had taken somewhere in Alaska.
    Mr. Bernhardt. From Alaska.
    Senator Daines. From Alaska.
    So I know you are an avid hunter. I liked your anecdote 
about the elk in the freezer. The Daines Family harvested three 
elk last season. Our freezer runneth over with elk.
    You know you are in Montana when the text message you get 
from your daughter is Dad, she is in college at Montana State 
University, I just swung by and picked up, and showed, 
identified which cuts she took from the freezer as she took it 
home to cook with her roommates.
    Conservation, like the LWCF, is important to increasing 
access to our public lands for hunting, fishing and protecting 
and restoring wildlife habitat. Can you expand on how you will 
help balance the needs of outdoor recreation access to public 
lands and conservation, both key roles of the Department's 
importance to hunting and fishing and other uses of public 
    Mr. Bernhardt. Well, thank you very much for that question.
    Look, access to public lands means that everyone can have 
an opportunity to hunt or recreate and this isn't just the 
domain of a select few. Where I grew up in Rifle, hunting 
season was a huge, important activity for our town's economy.
    Senator Daines. I think the namesake of the town, kind of, 
illustrates that. Just saying.
    Mr. Bernhardt. And the truth of the matter is, you know, it 
impacts you personally in so many ways. The most prized 
possession I've carried in my wallet since I was in fourth 
grade is my hunter safety card. The ability to spend time with 
my kids out there has been phenomenal. And we also have to look 
at new challenges.
    I was on the state Fish and Game Board in Virginia and I 
pushed for an online hunter education program because kids 
today don't have the time to spend two days in a program and 
our numbers went up.
    I'm committed to not only focusing on access but ensuring 
that we get the next generation of hunters committed to the 
same thing.
    Senator Daines. Yes.
    I am out of time, but in closing it is very important, I 
think, to many of us out West to preserve and protect that for 
the average, hard-working American.
    Mr. Bernhardt. That's right.
    Senator Daines. Those who still buy their elk tags at 
    Mr. Bernhardt. That's right.
    Senator Daines. Those are the folks you have to look out 
    Mr. Bernhardt. Agree.
    The Chairman. Thank you, Senator Daines.
    Senator Stabenow.
    Senator Stabenow. Well, thank you, Madam Chair. And 
welcome, Mr. Bernhardt, to you and your family.
    I also grew up in a family of hunters and fishermen and 
wanted to talk to you about the Great Lakes because the Great 
Lakes are critical to Michigan's economy and way of life. It is 
not only about our boating and fishing industry and our 
hunting, but it is over 1.5 million jobs in Michigan and we 
provide drinking water for over 30 million people. So this is a 
big deal for us in protecting our water, 20 percent of the 
world's fresh water.
    States in the region work hard to protect the lakes, but we 
also depend on federal support and partnership. The work by 
scientists at the U.S. Geological Survey and the Fish and 
Wildlife Services are critical to combating Asian Carp which 
continue to be a threat of entering our waters, destroying our 
fish population and ability to have tourism, other aquatic 
invasive species which frankly would decimate the Great Lakes.
    So here is my concern. When I first came in 2001, I 
authored the ban on oil and gas drilling in the Great Lakes. We 
cannot afford a spill in the Great Lakes. I am looking at your 
long history of lobbying for oil and gas stakeholders and the 
fact that you have even litigated against the Interior 
Department on behalf of private interests. In 2001, as the 
Director of Congressional and Legislative Affairs at Interior, 
you reportedly modified scientific data from the Fish and 
Wildlife Service to obscure findings that oil drilling could 
negatively impact wildlife.
    So I am very concerned. We count on scientific information 
to protect the lakes, to know what we ought to be doing to 
protect the lakes, as well as our land and air. How do we trust 
you to preserve scientific integrity and manage public 
resources for Americans given your history?
    Mr. Bernhardt. Well, thank you for that question. I did not 
modify scientific data, but I appreciate the question.
    And before I enter into it, I'd like to tell you I have a 
2520 Parker pilot house boat that sits on the Chesapeake and, 
if I'm not at work, I'm out there on it. So I love water and 
fishing too.
    But that said, I think that it's important for me to convey 
two things to you. First, I wasn't involved. I was not the 
person that modified any data, but I want to tell you how I go 
about making decisions with science. Perhaps the best example, 
and it may not make everyone on the Committee happy, but 
perhaps the best example is the process that Dirk Kempthorne 
and I went through to ultimately make the determination of 
whether or not to list the polar bear.
    And the reality is that when a listing decision was about 
to be made, at least proposed in a proposed regulation, I 
looked at the record as a lawyer. And I said, this record is 
pretty weak. We might be able to go left or right, whatever the 
Secretary wants to do. And the Secretary made a decision at 
that moment to ask the U.S. Geological Survey to do more 
research. They spent a year doing research, and they brought 
that research back to the Department.
    So, we get to the next year and that obviously meant as a 
lawyer, you know, there's more information to analyze. 
Secretary Kempthorne went through that information incredibly 
carefully. He reached his own conclusions on that information 
which may not be the same conclusions that all of you would 
reach. But I spent days working with the people who developed 
the data. And once he made the decision to list the bear as a 
threatened species, then I looked at the law and said, okay, if 
that law is the Endangered Species Act, we've used science. 
He's made his decision. How can we line up things in the law in 
a harmonious way to reduce conflict? And he did that as a 
matter of law. So, we look at the science, then we apply the 
law. And we have to learn the science. We have to understand 
it. We don't manipulate it. If we're going to use data, we 
should say why it's one person's versus another.
    But we look at the law with the science as an informational 
base, and then we make a legal determination. And as long as we 
connect the dots that we've looked at, that we've evaluated it 
and we've dotted our ``I''s and crossed the ``T''s, those 
decisions are going to be upheld and they're going to be upheld 
legally. And that is the process.
    Senator Stabenow. So if I might just because, I apologize, 
because I am running out of time.
    Mr. Bernhardt. Sure.
    Senator Stabenow. I just want to follow up and say, so you 
are indicating you will honor the agency's professional 
scientists, regardless of political agenda. I mean, we are in, 
as you know, a whole different world where we never thought we 
would have to have a march for science. Let's march for facts. 
I mean, it is kind of strange world that we are in right now.
    Mr. Bernhardt. So----
    Senator Stabenow. But the reality is that scientists and 
science are under attack throughout the Administration. And so, 
are you saying that you will honor the professional scientists 
and what they recommend based on scientific facts?
    Mr. Bernhardt. Well, I would say first, that I'm certain 
that the scientists at the Department of the Interior are not 
under attack, number one.
    Number two, I will take the science. I will look at the 
science. And you take the science with all its significance and 
its warts. And you look at that, you evaluate it, and then you 
look at the legal decision you need to make. In some instances 
the legal decision may allow you to consider other factors, 
such as jobs. In other instances, it might not. But you've 
given us whatever that standard is, and we're going to look at 
it and apply the law and be honest to the science.
    Dale Hall, the Director of the Fish and Wildlife Service 
while I was there, said to this Committee, in a letter, my 
scientific, you know, I've never, my integrity on science is 
unquestionable. And that is the fact.
    Senator Stabenow. Thank you.
    Thank you.
    The Chairman. Thank you, Senator Stabenow.
    Senator Flake.
    Senator Flake. Thank you, Madam Chair.
    Thank you for the testimony so far, and I appreciated the 
meeting we had in my office.
    The decisions made by the Department of the Interior have 
an outsized impact on Arizona. The Department of the Interior 
manages about a quarter of the land directly in Arizona and 
holds in trust another quarter. So we are looking at half of 
the land mass in Arizona that is under some jurisdiction of the 
Department of the Interior.
    I was pleased to see Secretary Zinke confirmed and under 
his leadership, I think, the Department is already starting to 
listen to those in Arizona who are affected by the Department's 
    For example, I commend the Department for looking to all 
sides of the Navajo generating station lease issue hearings 
that have been held or listening sessions this week in Arizona 
with the stakeholders have been helpful. I think people are 
pleased to see that the Department is listening. I hope that 
the Secretary will soon make a trip out to Arizona.
    Now members of this Committee have heard me talk repeatedly 
about water, and we talk a lot about it in Arizona. We talk 
about it more than we have it. That is the problem.
    The basin states are very close to coming up, hopefully, 
with a drought contingency plan. That will be a needed update 
to the 1944 treaty with Mexico regarding the Colorado River. I 
believe that we will be well served by your long history 
dealing with the Colorado River.
    Can you talk about some of that, talk about your experience 
and some of the issues that we have going forward?
    Mr. Bernhardt. Well, candidly, my history with the Colorado 
River begins probably in first grade. The Colorado River was 
about 150 feet from my house growing up, and it was an awesome 
place to be.
    But the reality is for my entire career I've understood 
very well how special the approach taken on the Colorado River 
is. The seven basin states have worked cooperatively, sometimes 
encouraged or nudged by the Department, but there is a legacy, 
there is a legacy of them coming together since the Hoover 
Commission to reach consensus on very tough issues.
    When I was first at the Department we worked on a variety 
of things. I was involved in the Arizona Water Rights 
Settlement Act and, you know, I know full well what power the 
Secretary has as it relates to the Colorado River and the 
legacy of cooperation that has been shared with the Department 
and the seven basin states. And I cannot imagine that changing 
under our watch.
    Senator Flake. Okay.
    Talk a little bit about that role. What is the Department's 
role? Is it to convene the basin states, to nudge them into an 
agreement, to work with them after they have reached the 
agreement? What is the optimal approach?
    Mr. Bernhardt. Well, I think optimally, the Department 
should be involved, I mean, you know, if push came to shove on 
the lower Colorado, the Secretary is the water master of the 
Colorado, lower Colorado, under the law.
    But the reality is that it's through encouragement, you 
know, there's constant meetings between the Department and the 
various states, as well as some collectively. And it's my 
belief that we should be engaged and not take a back seat, but 
at the end of the day, to the extent that the states can agree 
on an approach that works for us, we should adopt it.
    Senator Flake. Great. Thank you.
    One area that will require continued cooperation between 
Arizona and the Department is the tribal water rights 
settlements. You mentioned that you've been involved in this 
area. There are several settlements that are in need of 
legislative action this year alone, many more in the 
negotiation phase.
    How can your previous experience in this area be of help to 
    Mr. Bernhardt. Well, I think first off I've resolved a 
number of Indian water rights settlements and other federal 
reserved water rights settlements. And so, I know, not only the 
importance to the community of getting it resolved, but the 
energy and effort that it takes to get to a resolution. And 
from that standpoint, you know, Secretary Zinke, while he was a 
Member of Congress, enacted legislation related to a water 
rights settlement. And so, I believe that he's committed to 
that. And you know, we, to the extent that we can be helpful, 
we will.
    Senator Flake. Right.
    Thank you, Madam Chair.
    The Chairman. Thank you, Senator Flake.
    Senator Cantwell.
    Senator Cantwell. Thank you, Madam Chair.
    I am sorry I had to leave to run to vote, and thank you for 
my colleagues letting me weigh in here.
    I wanted to ask you, I mentioned in my statement about 
previous times that you were at the Department of the Interior 
and some of the challenges that the agency faced, particularly 
Deputy Secretary Griles and his conviction for obstructing the 
Senate Indian Affairs Committee and Julie McDonald for 
disclosing internal documents and pressuring agency scientists 
to withhold information improperly. I am assuming you agree 
with the decision for both of those individuals to be dismissed 
and prosecuted on those issues?
    Mr. Bernhardt. To be prosecuted?
    Senator Cantwell. I think they were accused of obstructing. 
I don't know where it went after that. Do you agree with their 
firings? How about that?
    Mr. Bernhardt. Sure.
    Senator Cantwell. Okay.
    And what do you think was wrong with what they were doing 
at the agency?
    Mr. Bernhardt. Well, if you've looked at and I assume you 
have reviewed the Inspector General reports?
    Senator Cantwell. Yes.
    Mr. Bernhardt. So, if you look at those reports, what 
you'll see is that there's two issues. One is the conduct of an 
employee. But there were also very significant structural 
issues of how lawyers were advising clients whether that 
information was moving through the decision-making process.
    So what I personally did is I ensured that we put in new 
legal review processes so that we could always manage to have 
the clients talking to lawyers in a way that would allow them 
to freely communicate their views and move their views up the 
chain so that things were modified.
    Senator Cantwell. I guess I am trying to get a reading on 
how egregious you think it was that Julie McDonald tried to 
pressure the scientists to withhold information or modify 
scientific data to further the agenda.
    Mr. Bernhardt. So----
    Senator Cantwell. How egregious do you think that is?
    Mr. Bernhardt. Well, I think it was, it was very serious. 
There are two very serious problems.
    One is the manner in which Julie went about a discussion 
with folks and that was clearly abrasive when you read the 
report, you see that.
    The other fundamental problem was that legal questions and 
legal information that was provided to the Fish and Wildlife 
Service as part of the listing packages, was not in and 
incorporated in the Department and it was the result of that 
that if you look at that report you'll see that I put a 
surname, legal review process in place that ensured that legal 
conflicts, legal conflicts, would rise to me, if necessary, to 
resolve. And if I couldn't resolve an issue with Julie, I would 
go to the Deputy Secretary.
    So I personally put in place a means to correct, not only 
correct but proactively eliminate, the problem of a disconnect 
between what Julie McDonald wanted to do and what the lawyers 
wanted to do. When it came to me, it was either resolved my way 
or I went to the Deputy Secretary and I said to him, we need to 
fix it.
    In addition, once these issues came out through Earl 
Devaney, I went to the Deputy Secretary and I said the 
    Senator Cantwell. Okay.
    Mr. Bernhardt. I said, I said----
    Senator Cantwell. I have a lot of questions.
    Mr. Bernhardt. I must at least be able to complete my 
    I said, Deputy Secretary, we need to revise and evaluate 
these decisions, and she requested that the Fish and Wildlife 
Service begin a review process of all decisions so that none of 
them were tainted.
    Senator Cantwell. You can extend your remarks as long as 
you want on this. It was just a simple question to get this 
issue registered to you as how egregious you thought these 
actions were and how aggressive you might be in the future--it 
was not pushing you on what you did to rectify that, although 
that is a different line of questioning.
    I have questions about both Cadiz and Westlands, and as you 
can see, my colleagues are asking these questions because they 
do not want--we do not want--to have a culture at Interior 
where people decide to prosecute these things on their own.
    Have you received any compensation for your work, including 
additional shares of stocks on the Cadiz question in 
compensation since you have exited the firm?
    Mr. Bernhardt. Well, I would exit the firm if I were to be 
confirmed. And if I did, my ethics agreement is clear that I 
would not have any continuing interest in the firm and 
therefore, I would have no interest in anything of value that 
the firm might have.
    Senator Cantwell. Including shares of stock?
    Mr. Bernhardt. I would have no interest in any shares or 
theoretical potential for shares, not----
    Senator Cantwell. Do you believe that you or your firm 
worked on behalf of Cadiz in any way to influence the Trump 
Administration's decision to reverse the BLM decision either 
directly or indirectly?
    Mr. Bernhardt. Well I know that I had no involvement with 
the Trump Administration. I had, either directly or indirectly, 
I had no involvement on the Cadiz matter with the transition, 
none with the Department, none with the Hill during that period 
of time.
    Senator Cantwell. Did you discuss the project with anybody 
as part of the Trump transition team or any member of Congress?
    Mr. Bernhardt. Absolutely--during that period of time?
    Senator Cantwell. Yes.
    Mr. Bernhardt. Absolutely not.
    Senator Cantwell. Okay.
    What about in the last six months in general? Prior to the 
transition team?
    Mr. Bernhardt. Absolutely not.
    Senator Cantwell. Okay.
    As a lawyer do you believe the transition team's non-
disclosure agreement authorizes the withholding of information 
from Congress or is it legally enforceable under the 
Whistleblower Protection Act?
    Mr. Bernhardt. Well, I hate to give you a lawyer's answer 
to a legal question in a hearing, but I think the first 
question would be whether or not the Whistleblower Act will 
even apply to the transition because it's my understanding that 
Trump for America is a non-profit entity. And so, I'm not sure 
that the legal rubric that falls for government would even 
apply to that. I just don't--simply don't--know the answer to 
that right now.
    Senator Cantwell. I see I'm over my time. We will come back 
on a second round, Madam Chair.
    The Chairman. Thank you.
    Senator Cantwell. Thank you.
    Thank you.
    The Chairman. Senator Risch.
    Senator Cantwell. Thank you.
    Senator Risch. Very deep questions, Senator.
    Senator Cantwell. Very important issues.
    Senator Risch. Mr. Bernhardt, thank you so much. Madam 
Chairman, I really do not have any questions for Mr. Bernhardt.
    He was very gracious to come and spend quite a bit of time 
with me. I find him uniquely qualified for the job. I am an 
enthusiastic supporter.
    The bad news for him is we confirm a lot of people for a 
lot of positions. This is a really tough position. There is 
nothing easy that is going to come across your desk. And I want 
to thank you for your willingness to take this on. Thank you to 
the family that is going to sacrifice also.
    My first year in law school I remember one of the 
professors saying, ah, the law is a jealous mistress. And we 
all, kind of, laughed. And he was right. It takes a lot of 
time, and there is a lot of sacrifice involved.
    Again, thank you for your willingness to do that, and I 
look forward to working with you. As you know, my state, the 
Western states, have huge issues because of our interface with 
the Federal Government and the Federal Government's ownership 
of the amount of, the percentage of, land that they have in 
each of the states. It causes considerable conflict and it is 
always best if these things can be resolved. I know that you 
are committed to do that and look forward to working with you.
    So, with that, thank you, Madam Chair.
    The Chairman. Thank you, Senator Risch.
    Senator Franken.
    Senator Franken. Thank you, Madam Chair.
    Good to see you again, Mr. Bernhardt.
    You talked already--we talked about science. He talked 
about it here thus far.
    In the polar bear being listed under the Endangered Species 
Act, the listing decision stated most of the observed increase 
in globally average temperatures since the mid-20th century is 
very likely due to the observed increase in the anthropogenic, 
man-made, greenhouse gas concentrations. Do you agree with that 
    Mr. Bernhardt. That was in the rule?
    Senator Franken. That was in the decision.
    Mr. Bernhardt. Yup. I would absolutely agree with that.
    Senator Franken. Okay.
    So, you believe that climate change is a serious threat 
that requires aggressive action?
    Mr. Bernhardt. I believe that we need to take the science 
as it comes, whatever that is. And we need to----
    Senator Franken. I think the science is pretty decided on 
    Mr. Bernhardt. I know and we talked about that in your 
    Senator Franken. And in my office you seemed to agree.
    Mr. Bernhardt. I certainly agree that we take the science 
as we find it, whatever it is.
    Senator Franken. That's not----
    Mr. Bernhardt. And I personally believe that the 
contribution is significant, very significant. Now, that's 
different, that's different than what we do with it. And here's 
where people disagree. My task will be to take the science as 
we find it, put it in the paradigm of the Administration's 
policy perspective which is we are not going to sacrifice jobs 
for this and then look at the legal rubric and say, how do we, 
how do we apply the law there?
    So, for example----
    Senator Franken. Okay, here is the question though.
    When you say sacrifice jobs, we know there are jobs and 
probably a lot more jobs in clean energy, and we have seen a 
lot more jobs in solar, and we have seen a lot more jobs in 
wind than, you know, Senator Manchin sits to my right. I know 
he likes coal jobs, but they are not coming back and that is 
partly due to natural gas.
    But if you are going to argue--what about the jobs that we 
are going to have dealing with climate dislocation and 
refugees? What about the jobs we are going to have when the 
East Coast is flooded? What about those jobs?
    If we don't, you know, I think it is very shortsighted to 
talk about the extra jobs that you get by drilling for fossil 
fuels when the science is telling us that by the end of the 
century and God willing, your kids, who are beautiful, by the 
way, whether they will make it to the end of the century.
    The scientists tell us that we are going to have about four 
degrees Centigrade increase in temperature and the military, 
and we talked about this, the Defense Department, it knows very 
well that this is a threat, the greatest national security 
threat to us. So, this calculus of, well, how many jobs is--
yes, but it is incredibly shortsighted, I think, to look at it 
that way.
    So my question to you is climate change an existential 
threat to you because I would suggest that the science is in 
and to say we are going to take the science as we take it? The 
science is in.
    Mr. Bernhardt. Would you like me to respond?
    Senator Franken. That's what the long pause was for?
    Mr. Bernhardt. Wasn't sure.
    Here is the reality. We are going to look at the science, 
whatever it is, but policy decisions, policy decisions are 
made. This President ran. He won on a particular policy 
    That perspective is not going to change to the extent that 
we have the discretion under the law to follow it. In some 
instances, we might now, but those that we do, we are 
absolutely going to follow the policy perspective of the 
    And here's why. That's what--the way our republic works and 
he is the President.
    Senator Franken. Okay, you also talked about some ethics 
problems during your eight years in Interior that were brought 
up. I will save that for the second round because I see I am 
losing my time. So I will be here for a second round.
    Mr. Bernhardt. Yes, sir.
    The Chairman. Thank you, Senator Franken.
    Let's go to Senator King.
    Senator King. Thank you.
    First I want to address my comments to your daughter. As I 
came in I looked on the TV screen, and you are in every picture 
of your dad. So you have to look very attentive and don't even 
think about touching your phone.
    Mr. Bernhardt, I want to say, you are the first person in 
the history of the human race to ever use the words, ``luxury 
to serve as Director of Congressional Affairs.''
    I will let that one go. Your credibility diminished though.
    I understand from our discussion that you grew up in a 
small town in Colorado near a national monument. Is that 
    Mr. Bernhardt. Well, I grew up near public lands. There's a 
national monument about 60 miles away. So----
    Senator King. Does that national monument contribute to the 
economy of the region?
    Mr. Bernhardt. Absolutely.
    Senator King. It is a positive?
    Mr. Bernhardt. It is.
    Senator King. Well, I want to ask you a few questions.
    As you know the President signed an Executive Order which 
led to the review of a series of national monuments. The cutoff 
was 100,000 acres for the list. Then there was one monument 
added under 100,000 acres which happens to be in the State of 
Maine, and it said that the question there was adequate public 
outreach and coordination with relevant stakeholders.
    Would you give me your views on what that means? What would 
you consider adequate public outreach and coordination with 
relevant stakeholders?
    Mr. Bernhardt. Well, I certainly can't speak to the 
specifics of the----
    Senator King. No, no. I am asking in general. What would 
adequate public outreach and coordination with relevant 
stakeholders look like?
    Mr. Bernhardt. Well, my expectation would be that public 
meetings were held, the views of the state representatives, the 
views of congressional representatives, were all part of----
    Senator King. Local businesses.
    Mr. Bernhardt. Making an informed decision.
    Senator King. Local businesses?
    Mr. Bernhardt. Of course, local businesses, the public at 
large in open meetings.
    Senator King. Open meetings involving the Department of the 
    Mr. Bernhardt. Absolutely, sir.
    Senator King. So that would look like adequate----
    Mr. Bernhardt. Well, it would certainly look like a darn 
good start.
    Senator King. Thank you.
    As Solicitor one of the legal questions about the 
Antiquities Act is the authority of the President. It is clear 
the President has the authority to create national monuments. 
There is no expressed authority to undo a national monument.
    Do you believe under the Antiquities Act the President has 
the authority to eliminate a national monument that was duly 
promulgated during a prior Administration?
    Mr. Bernhardt. So, I could show you legal opinions going 
both ways and----
    Senator King. I wish you would because I have only seen 
legal opinions that say that the President can't do it.
    If there are----
    Mr. Bernhardt. I would be happy to provide some to you.
    [The information referred to follows:]

    Mr. Bernhardt. At the end of the day, that's not been 
tested. And here's my view of where that ultimately comes out.
    The first question, and this is the biggest question, is 
this isn't a decision that's made by the Department of the 
Interior. It's not even made by the Department of Justice. It's 
a decision that will be made at the White House because you're 
talking about the exercise of Presidential power.
    Senator King. Presidential power, as all Presidential 
powers, are somewhat circumscribed by statute and in the 
    Mr. Bernhardt. Well, absolutely, but this is specific 
authority given to the President.
    So, I can at least tell you that when these discussions 
take place, they will take place in the White House Counsel's 
office with a view from the Department of Justice, potentially 
a view from the Office of Interior's Solicitor and many other 
views. And I cannot predict at this moment in time where that--
where the White House Counsel will end up.
    Obviously people are familiar with the 1938 opinion. 
They're also familiar with other legal arguments and some folks 
have even criticized the '38 opinion.
    So I don't know where the government will come out, but I 
know that it won't be a decision made at Interior.
    Senator King. Thank you.
    You have been criticized, and I am sure you are aware of 
it, for having been in the Department, in the private sector, 
represented groups and organizations, now you are going back 
into the Department. One way to characterize that is you have 
broad experience with these issues. Another way to characterize 
it is potential conflicts of interest. Talk to me about that 
    Mr. Bernhardt. Well, first off I'd say, on a personal 
level, I take ethics incredibly seriously.
    Senator Cantwell raised a statement made in 2005 by Earl 
Devaney in a hearing. If she scrolls through that hearing a 
little farther she's going to see another statement by Earl 
Devaney where he says I've been talking to the Acting Solicitor 
and I think he gets it, meaning he gets----
    Senator King. That was you.
    Mr. Bernhardt. I was the Acting Solicitor. And what he 
meant is I think he gets that Bernhardt understands that these 
decisions made, legal decisions, legal advice that needs to be 
given, that legal advice needs to be given in a way that says 
it's in the interest of the public and the interest of the 
American public and that's the way I conducted myself.
    I looked at----
    Senator King. Is it your commitment here today to make all 
your decisions in the interest of the people of the United 
States of America?
    Mr. Bernhardt. Unequivocally, and I have signed the exact 
same agreements my predecessors have. And I will stand by that.
    Senator King. Thank you.
    Thank you, Madam Chair.
    The Chairman. Thank you, Senator King.
    Senator Gardner.
    Senator Gardner. Thank you, Madam Chair, and again, thanks 
to you and Ranking Member Cantwell for this hearing today. 
Again, welcome to the Bernhardt Family.
    I have a couple of letters of support for Mr. Bernhardt 
that I would ask unanimous consent to be submitted into the 
record, a letter from the----
    The Chairman. It will be submitted.
    Senator Gardner. Thank you.
    [The information referred to follows:]


    Senator Gardner. A letter from the Southern Ute Indian 
Tribe in Southwestern Colorado supporting the nomination, a 
letter from the Colorado River District supporting David 
Bernhardt's nomination and a letter from the Colorado Water 
Congress supporting Mr. Bernhardt's nomination.
    I think it is important to point out, an organization like 
the Colorado Water Congress which has environmentalist members, 
it has engineering members, it has lawyer/attorney members. 
This comment from Colorado Water Congress' letter of support 
for the nomination says, ``Mr. Bernhardt believes in and 
practices straight talk, is inclusive in consideration of 
issues brought before, explores all available options on the 
path to finding workable solutions in the real world where 
government actions impact real people.''
    I think that speaks very highly of your work, but also from 
the people who have known your work in the past, not just as a 
member of the Interior Department but as a Coloradan, having 
worked in Colorado Congressional Offices and beyond, the 
importance of finding those solutions that impact a lot of 
    Mr. Bernhardt, you and I have had a number of conversations 
about how we can help better promote our public lands, how we 
can better manage our public lands, what we can do to make sure 
that we continue to protect and highlight our public lands.
    There is a bipartisan support growing for moving an agency 
like the Bureau of Land Management (BLM) to the West, where 99 
percent of the land the BLM holds is West of the Mississippi 
River. We have talked about placing it in Grand Junction which 
is, of course, the Western Slope in Mesa County, right next 
door to Rifle, Colorado. That is where the Colorado National 
Monument is home to, so it would be right there in Mesa County. 
Seventy-four percent of the acreage is federal land managed 
primarily by the BLM.
    Do you think we ought to explore whether putting the 
federal workforce that specializes in these public land 
initiatives closer to lands and the people they affect? Do you 
think that is a good idea?
    Mr. Bernhardt. Well, not only do I think it's a good idea, 
Senator, I think it might already be happening.
    Senator Gardner. I appreciate that, Mr. Bernhardt. I have 
introduced legislation that to do just that.
    In a number of other conversations that you and I will be 
having over the years, if you are confirmed, of course, is 
water issues. I learned from, I think, Speaker George that 
``damn bureau'' was one word to a lot of people in the Western 
Slope of Colorado.
    But they have gone on to do some very great things and we 
have to make sure that those great things can continue.
    We have numerous proposed water projects in Colorado, 
including projects like the Northern Integrated Supply Project, 
others in the Western Slope as well, things like the Arkansas 
Valley Conduit, the Arkansas Valley Conduit was authorized to 
be built, a pipeline, from Pueblo, Colorado to Lamar, Colorado, 
a 200-mile journey, to provide clean water to economically, 
low, depressed, economically depressed areas, affordable, 
abundant, clean water. That was authorized, as you know, by 
President John F. Kennedy, and yet it still has not been built.
    Will you commit to working with me and the Colorado 
delegation to improve our federal regulatory permitting 
process, members of this Committee, as well, in order to assist 
in getting the critical water projects approved in a more 
timely fashion?
    Mr. Bernhardt. Absolutely.
    I think this is one of the most significant things that, 
maybe, I can help the Committee understand is many of these 
projects are not seeking federal money, but what they need is 
some regulatory certainty in terms of getting them developed. 
And ideas like Senator Gardner's could fundamentally help 
develop these projects in a reasonable way. And I look forward 
to working with you on that because I believe that the era of 
financing these projects in many instances, not all, is gone. 
But the regulatory certainty needs to be there or the projects 
are just not going to get built.
    And you know, many of the projects we use to today were 
built in the 60's. And you look back and you say wow, you know, 
that's really not that long. And we need to be thinking about 
the next 100 years, as Mr. Franken said, at least for water.
    Senator Gardner. And as you have, many times, gone into the 
Great Rotunda at the capital in Denver, you will see that mural 
written on the wall that says, ``Here is a land where history 
is written in water.''
    Mr. Bernhardt. That's right.
    Senator Gardner. Will you commit to continuing the 
tradition of allowing states to take the lead in negotiating 
interstate water compacts?
    Mr. Bernhardt. Absolutely.
    Senator Gardner. Thank you.
    Thank you, Madam Chair.
    The Chairman. Thank you, Senator Gardner.
    The last person in this first round is Senator Duckworth.
    Senator Duckworth. Thank you so much, Madam Chair.
    I would like to submit the following articles for the 
record. There's several so I'm just going to describe them all 
    The first one is an article that ran in Mother Jones in 
2003. It documents that the nominee was the Bush 
Administration's point person, pushing oil drilling in the 
Arctic to Wyoming and that the nominee altered the scientific 
findings from the Fish and Wildlife Service so that they would 
fit his political and policy priorities. These findings came 
from a report funded by BP exploration and were shared in 
congressional testimony.
    The second item is an article that ran in the Washington 
Post in 2007. It details that senior political appointees in 
the Bush Administration resigned over ethical violations while 
the nominee was the Solicitor of DOI. Those appointees revised 
scientific reports in an effort to minimize the protections of 
endangered species. And as you know, the Office of Solicitor 
performs the legal work for DOI which includes overseeing the 
Ethics Office.
    The third item is an article that was published in the Wall 
Street Journal in 2008. It details how when the nominee was at 
DOI the Minerals Management Service allowed oil companies to 
avoid paying royalties for offshore drilling rights which will 
cost taxpayers as much as $10.5 billion over about 25 years.
    The fourth item is an investigative report that was written 
by the Interior's Inspector General. This report details how 
employees at the Minerals Management Service created a culture 
of ethical failure by consuming alcohol at industry functions, 
had used cocaine and marijuana and had sexual relations with 
oil and gas company representatives. These events occurred on 
the nominees watch as Solicitor and other leadership roles at 
Interior. The article further observes that employees had 
escaped punishment by leaving the Department.
    The fifth item is a press release from DOI which was 
published in 2012. It indicates that Shell Oil had $25 million 
in underpaid royalties for federal offshore oil and gas 
drilling leases in the Gulf of Mexico during the nominees' time 
at the agency. That money should have gone to states like 
Louisiana and was settled under the Obama Administration.
    The sixth item is an article that ran this week in the LA 
Times. It states that as a partner at one of the nation's top 
grossing lobbying firms, the nominee represented major players 
in oil, mining and western water. These are all areas that fall 
under the purview of DOI that the nominee would regulate, if 
confirmed as the Department's Deputy Secretary.
    Finally, I would like to submit the nominee's client list 
while at Brownstein, Hyatt, Farber and Schreck. This list 
includes the who's who of oil companies that the nominee would 
regulate as Deputy Secretary.
    Those are the seven items.
    The Chairman. The items that you have requested be included 
as part of the record will be included, although I would 
probably disagree with many of the summations that you have 
made there. So I will look forward to reading them.
    Senator Duckworth. Yes, of course.
    [The information referred to follows:]
    Senator Duckworth. Clearly no candidate is perfect; 
however, what is so shocking about your candidacy, Mr. 
Bernhardt, is that the scandal and controversies associated 
with your career stretch over such a long period of time.
    President Trump promised the American people that he would 
drain the swamp when he was elected, his words, not mine. Yet 
he weakened the laws that actually prevent the very type of 
conflict of interest your candidacy is plagued with.
    Mr. Bernhardt, a simple yes or no. Are you aware that under 
the Obama Administration's lobby rules you would not have 
qualified for this appointment?
    Mr. Bernhardt. Yes.
    Senator Duckworth. Okay, thank you.
    I would like to yield the rest of my time, Madam Chair, to 
the Senator from Minnesota, Mr. Franken.
    The Chairman. The Senator has one minute.
    Senator Franken. Okay, well I will do a 1 minute and 16 
second thing.
    I got a call today from a friend in Indian Country, and she 
expressed a lot of concern from tribal leaders that even though 
Secretary Zinke assured me that he took tribal consultation 
sovereignty very seriously that they feel that is not 
happening. They feel that they are being blocked by James 
Cason. Do you know who he is?
    Mr. Bernhardt. I do.
    Senator Franken. I do want your commitment that you will 
observe the government relationships with the tribes and 
undertake meaningful consultation regarding policy and 
regulatory changes and that you will make that commitment and 
that you will continue to check in with us to make sure that 
that is happening?
    Mr. Bernhardt. So, I will unequivocally commit. I will 
commit to consult. I will unequivocally commit to keeping you 
    And you don't need to take my word for it, the Southern Ute 
Tribe of Colorado as well as other tribes, have sent in letters 
discussing my activities and their experience with them.
    I take the trust responsibility seriously. I take the 
consultation responsibilities seriously that I'm going to 
consult with tribes and I'm also going to consult with states 
and local entities.
    Senator Franken. I understand that answer, but I just want 
to respond very quickly to it.
    That is not what I am hearing from my friends in Indian 
Country at all in terms of, not you personally, but of, for 
example, when it comes to the DOI's status review of Bears Ears 
National Monument, that there has not been consultation. And 
this is very concerning to me.
    Thank you.
    The Chairman. We will now begin a second round, although I 
do understand that we are supposed to have two votes at noon. I 
have not seen them noticed up yet, but we will just be aware of 
    Mr. Bernhardt, we have had an opportunity to discuss the 
situation in Alaska. As you know, our state's economy has been 
very reliant over the past several decades on the oil that 
comes to us through the North Slope. The Trans Alaska Pipeline 
is about three-quarters empty. It carries about 500,000 barrels 
a day, not due to lack of resource up there, but really more to 
almost a blanket lack of permission to access our federal 
    If you are confirmed as Deputy Secretary, and again, I am 
certainly going to be helping to make that happen, but can you 
give your commitment to me that you will make it a priority to 
work with me, with the other members of the Alaska delegation, 
with our Governor, to develop a plan to figure out how we 
refill our Trans Alaska Pipeline?
    Mr. Bernhardt. Absolutely.
    I was--I hadn't looked at the volume in TAPS for a while, 
and I was very surprised by the significance of the decline. I 
will absolutely make it a priority to work with you on that 
    The Chairman. Well, we look forward to that.
    Let me ask about some of the reports that have come out of 
the Interior's Inspector General over the last few years 
regarding the Park Service and other DOI agencies. These have 
included not only the agencies, but also the previous Park 
Service Director himself, on topics ranging from sexual 
misconduct to major ethical violations.
    What do you think needs to be done? What do we need to do 
to improve, not only within the Park Service but the Department 
of the Interior as a whole to avoid this kind of conduct by 
employees in the future and ensure a more positive work 
environment by not only the employees, but to ensure that our 
visitors to our public lands have the most positive experience 
    Mr. Bernhardt. Well Senator, on a personal level, as Katie 
sits behind me, I can't fathom her being subjected to a work 
environment where she's treated hostilely, just because of her 
gender. And I will do everything I can on the personnel side to 
deal with that.
    But I think that we need to look at where the cultural 
priorities of the Department are. The Secretary has said from 
the top we are going to have a cultural accountability.
    And the reality is that when I went into the Department as 
Solicitor in 2006, what I did is I went and pulled a number of 
the reports and investigations that people have talked about 
today. I went line by line through them doing things like 
finding ethics experts who were experienced, expanding the 
ethics program within the Department significantly, locating 
ethics officials where there were a high degree, where there 
were many personnel, for example, in Denver. And I created a 
very robust plan that I implemented after hearing what the 
Inspector General had to say. What was interesting to me when I 
went back recently to go through the pre-clearance process 
here, is that those same folks are there.
    I think we really need to ask ourselves is there more 
needed, because obviously there are serious issues at Interior 
and agencies like the Park Service and we need to beef up and 
that may require us asking you for additional help.
    But we need to create a culture of accountability and then 
we have to send a message, very clearly, that the culture we 
have is one of employee safety and ethical conduct.
    The Chairman. I appreciate that. I think we all recognize 
that matters of ethics and integrity are ones where there can 
be no compromise, no give, that they need to be to the highest 
    Mr. Bernhardt. Sure.
    The Chairman. And I appreciated the depth of the discussion 
that we had in my office about just this and you outlining what 
you had done within the Department during your tenure there to 
focus specifically on it.
    I also further noted with some interest that you happened 
to be married to an individual who devotes her daytime job to a 
focus on ethics as well. So I think that that cannot hurt you 
in your analysis as well.
    Mr. Bernhardt. That's true. I have an ethics expert nearby.
    The Chairman. Thank you.
    Senator Cantwell? I note that Senator Cortez Masto has just 
come in and has not yet had a first round, but your deference 
    Senator Cantwell. Are you going to continue through the 
vote, Madam Chair?
    The Chairman. Well, we have to.
    Senator Cantwell. I will just go, thank you, Madam Chair.
    Our last question was on this issue of the transition team.
    Regardless of whether the Whistleblower Enhancement Act 
applies to the transition team, do you believe the transition 
team's non-disclosure agreement authorizes the withholding of 
information from Congress?
    Mr. Bernhardt. Well, I certainly believe that I've signed a 
non-disclosure agreement and to the extent that that non-
disclosure agreement exists, I have to ensure that I've done 
everything I can to comply with that.
    Senator Cantwell. Do you think it is a good policy that the 
President's transition team actually requires the transition 
team to withhold information from Congress? Do you think it is 
a good idea?
    Mr. Bernhardt. I don't know if they've made that assertion 
or not.
    Senator Cantwell. Do you think it is a good idea?
    Do you think it is a good idea, in general, for the 
transition team to withhold information from Congress?
    Mr. Bernhardt. At the end of the day I felt that it was 
acceptable for me to sign a non-disclosure agreement and I did, 
and I'm obviously bound by that agreement.
    Senator Cantwell. Okay, I will take that on its face, what 
you have said.
    Your firm, I know, has an agreement on this Cadiz issue in 
the value of stock. Has your firm benefited recently from the 
announced Trump policy on Cadiz or has it benefited to date in 
the context of this, since the time of the policy?
    Mr. Bernhardt. In terms of?
    Senator Cantwell. Increased payment, benefited financially.
    Mr. Bernhardt. Not that I'm aware of.
    Senator Cantwell. Okay.
    Was the compensation reflected in any--you had a personal 
financial disclosure statement that is about stock and equity 
and is there any updated financial disclosure on that that we 
haven't seen since?
    Mr. Bernhardt. Well, I think the way the process worked is 
I had to submit a letter to you. I believe, maybe even 
yesterday or Tuesday that it contained any updates as they 
related to my interests. And that has been submitted to you and 
obviously, it does not include anything related to the Cadiz 
matter or anything like that. I specifically have no interest 
in those, I think, items.
    Senator Cantwell. Okay, so nothing reflects in that 
statement any kind of payment or increase in payment through 
the firm to you prior to this filing?
    Mr. Bernhardt. Well, it would, I believe the letter 
includes what would be the, my draws, for one or maybe two 
months as it related to the, whatever the time horizon of the 
letter is.
    Senator Cantwell. On the issues of both Westlands and 
Cadiz, I think what you have testified to is that you would 
adhere to whatever recusals are required, for a one-year 
period, and then whatever the Administration requires, so maybe 
a two-year period.
    Don't you think the general public would wonder, have 
concerns about, a recusal period for a longer period of time on 
something where the investment and performance of your firm 
will be resulting in decisions on Cadiz in the future?
    Mr. Bernhardt. Well, I've signed exactly the same 
agreements that folks that were reported out of the Committee 
with your support included. On top of that, whatever my firm's 
interests may or not be, the minute I walk out of that firm, I 
have no interest in their interest. And that is the way the law 
operates. That's the way the law is set up, and that is the way 
I will follow the law.
    Senator Cantwell. You don't find it a conflict that you 
have worked for this firm and you have been part of the 
Department of the Interior, you could go back to this firm. 
Clearly during the transition period this firm's payment as it 
relates to stock value has gone up just because of the 
decisions of the Administration.
    So, yes, I have a question about whether you had any 
discussions with anybody during that time period to influence 
the decision by the Administration. You have said that you 
haven't. I personally think that Westlands and Cadiz represent 
such large public policy issues with financial interests that 
it would be better if you recused yourself for the entire time 
that you were at the Department, not just one or two years. Do 
you have a comment about that idea?
    Mr. Bernhardt. Well, I appreciate that you have that 
    I can sit here and walk through numerous nominees that 
you've supported that you didn't ask that of and the reality is 
I will follow all of the recusals I have and on top of that, if 
I get a whiff of something coming my way that involves a client 
or a former client or my firm, I'm going to make that item run 
straight to the Ethics Office. And when it gets there, they'll 
make whatever decisions they're going to make and that will be 
it for me.
    Senator Cantwell. I would ask you to think about a longer 
term than one or two years.
    Thank you, Madam Chair.
    The Chairman. Let's turn to Senator Gardner.
    The vote has started so my hope is that we can power 
through this last round pretty quickly.
    Senator Gardner. Yes, thank you, Madam Chair.
    I think it is important to this conversation that we are 
reminded of the Hayes/Schneider standard which was a standard 
put forward when David Hayes and Janice Schneider were 
confirmed. I think one worked for the Clinton Administration, 
was confirmed by the Senate, went into the private sector, 
worked at a law firm, represented clients, then came back and 
was confirmed into the Obama Administration.
    The Schneider nomination, the same thing. I believe she 
worked in the Clinton Administration, was a partner at Latham 
and Watkins, the law firm, represented a variety of clients, 
came back and was confirmed in the Obama Administration.
    All of them, including the Hayes/Schneider contingency, 
were cleared by the Department of Government Ethics. They had 
the same agreements put in place. And so, the Hayes/Schneider 
standard that they were confirmed with is the same standard 
that, I hope, we continue to look at nominees who have gone 
into the private sector and gained that valuable experience 
that would be nice to be able to apply to their public service, 
to understand what happens in the private sector and how that 
impacts, the real-world impacts, and how that can be utilized 
when it comes to better government service.
    I also want to talk a little bit about the Southern Ute 
Indian tribe letter. I did not get a chance to read it. I read 
one of the letters of support, the Colorado Water Congress. I 
am going to read the last paragraph of the Southern Ute Indian 
tribe. And I will just add this about the Southern Ute Indian 
tribe. They are a tribe that supports the Bears Ears National 
Monument designation. So here is a tribe that is part of the 
coalition that supports Bears Ears designation. And it says 
this, ``A native of Colorado, Mr. Bernhardt, is aware of our 
tribe's unique history, particularly the role that meaningful, 
self-determination has played in our achieving economic 
prosperity for our tribe.'' I am paraphrasing the sentence.
    It goes on to say, ``We believe that Mr. Bernhardt is well 
positioned to help lead the Department of the Interior in a 
manner that respects the federal trust responsibility to Indian 
tribes and empowers tribal communities to exercise greater 
    I think if there is any question or concern that related to 
prior questions, I think this Southern Ute Indian tribe letter 
explains that and the work that you do, in fact, the tribe that 
supports the Bears Ears National Monument designation.
    I think that if we are going to continue to treat nominees 
as we have others and I know there can be particular politics 
at the time that demand different tactics and techniques, but 
again, I appreciate your willingness to come out of the private 
sector and to provide that valuable public service to the 
    Thank you, Madam Chair.
    Mr. Bernhardt. Thank you, Senator.
    The Chairman. Thank you, Senator Gardner, I appreciate a 
little bit of that background, because I think it is an 
important part of the record.
    Let's go to Senator Cortez Masto, if we may.
    Senator Cortez Masto. Thank you, Madam Chair, and Mr. 
Bernhardt, it is good to see you again.
    I am juggling three committees at the same time, so I so 
appreciate you coming in and having the opportunity to sit and 
talk with you. Thank you.
    As you well know, as we discussed, in my state we have the 
greatest amount of public lands, more than any other state in 
the nation. Not only do I believe that we must protect our 
lands with federal oversight, but I am a firm believer in the 
benefits of national monuments to our economy and our 
    As I have seen in my own state of Nevada, Gold Butte and 
Basin and Range provide incredible opportunities for outdoor 
recreation, not only for the enjoyment of Nevadans, but for a 
resilient economy for neighboring rural communities. Nevada 
supports its monuments.
    In fact, the Pew Charitable Trust in 2015 study that a 
national monument designation for Gold Butte could contribute 
nearly $2.7 million per year in economic activity and increase 
the number of jobs by 60 percent.
    In Nevada alone, the outdoor recreation economy generates 
148,000 jobs and $14.9 billion, according to the Outdoor 
Industry Association, and at least 57 percent of Nevada 
residents participate in outdoor recreation each year.
    I look forward to working with you. I do know, if appointed 
as the Deputy Secretary, you will oversee the Bureau of Land 
Management and the National Park Service. We have also seen an 
Executive Order from the Administration looking at the impact 
of the Antiquities Act and particularly Gold Butte Basin and 
Range are impacted.
    I am curious what your approach would be with respect to 
those monuments and would you consider, as you look at those, 
and if you are considering those, would you consider widespread 
support from the state as important, as well as the outdoor 
recreation it provides to the state as well, in your 
    Mr. Bernhardt. Yes, obviously, I'm not involved in that 
review yet because I'm not there. But to the extent that I were 
to be involved in that, undoubtedly, strong support from the 
state, impacts to the economy have to be factors that are 
    Senator Cortez Masto. Okay.
    Again, I invite you to come out as well. The invitation is 
open. We would love to have you back in Nevada.
    Also, along that route, Resource Advisory Councils (RACs) 
are a crucial way for DOI to get diverse community input on 
public land management and RACs have helped inform decisions on 
issues related to recreation, land use planning, wildfire 
planning, wildfire management issues. I will tell you I am 
concerned that these meetings are being postponed right now in 
Nevada until September 2017 due to the full-scale review.
    Do you believe community input is essential and will you 
continue to postpone these meetings once you are there as 
    Mr. Bernhardt. Well, I certainly believe that community 
input and involvement is essential. I can't speak to the 
specifics of that because I've read about it and that it 
    My sense would be that when I was at the Department of the 
Interior before RACs were a useful and important thing and that 
wasn't a cessation of them.
    Senator Cortez Masto. Can I ask that once you are 
appointed, or if you are appointed, that you will continue to 
look at allowing these meetings to move forward because 
obviously, as you go through your review and if you are 
reviewing our national monuments, you would want input from our 
community members.
    Mr. Bernhardt. I certainly would commit to looking into it 
and coming back and talking with you about it once I have a 
more informed perspective.
    Senator Cortez Masto. Then we talked about this in the 
office, but just want to have it on the record. How would you 
approach wild horse management?
    Mr. Bernhardt. Well, as we discussed, that's a--I recognize 
that that's a very challenging item and I know that we need to 
get resolutions. So I have to learn a lot about it, but the 
minute I do, I'm going to sit down with you and other members 
of the delegation or other members of the Committee that have 
challenges with it. We have to find a solution and it has to be 
something that, you know, that recognizes the impact that is 
occurring in the environment and has to be workable long-term 
in terms of the budget. So it's just something I have to get up 
to speed on a little bit more, but I know it's become a huge 
challenge for BLM administratively and we've got to find a way 
to fix it.
    Senator Cortez Masto. Great.
    And will you commit to working with us to find a solution?
    Mr. Bernhardt. Sure.
    Senator Cortez Masto. Thank you very much, and welcome to 
your family.
    Thank you.
    The Chairman. Thank you, Senator.
    Senator Heinrich.
    Senator Heinrich. Thank you, Mr. Bernhardt, again for being 
so patient and sticking around for all of these questions.
    I don't want to belabor my last question, but I just want 
to make sure we are actually on the same page. I asked about a 
tribal consultation with respect to any potential changes to 
the land and trust process. I think you used the phrase, 
meaningful engagement. I used the phrase, full tribal 
consultation. Can you just put a point on that?
    Mr. Bernhardt. Can I commit to you that that's a 
distinction without a difference?
    Senator Heinrich. Okay. That is exactly what I was asking.
    I want to go back to something that was raised by Senator 
Cortez Masto as well as Senator King. Senator Udall of New 
Mexico and myself have worked for many, many years, hand in 
hand with local elected officials, mayors, county 
commissioners, city counselors and many others, as well as 
resource users and small businesses, recreationists, 
permittees, you name it, to create the Rio Grande del Norte and 
Organ Mountains Desert Peaks National Monuments.
    In my view, I think these two monuments are really the gold 
standard for locally driven, public lands conservation that 
really grew from the grass roots up that did not come from 
Washington and were imposed on New Mexico, but communities in 
New Mexico came together and came to us and said, this is how 
we want to protect our backyards.
    The results of these designations have not only been 
overwhelmingly popular in the respected counties, in Dona Ana 
County and Taos County, in particular, but we have also seen 
visitation go up in these monuments. We have seen local tax 
receipts go up after their creation.
    These two monuments currently fall under the Secretary's 
review process and our process that we went through included 
many years and included direct engagement with, as I mentioned, 
local elected leaders, local land owners, permittees, sportsmen 
groups, recreational groups, conservation groups, tribes and 
local businesses. That engagement was in addition to what the 
Department of the Interior did in terms of public meetings when 
they came out.
    Does that sound to you like the kind of adequate public 
outreach with relevant stakeholders' approach that was 
referenced in the President's Executive Order?
    Mr. Bernhardt. Well it sounds pretty substantial to me.
    Senator Heinrich. I want to ask one last thing while I have 
a couple minutes before I go to a vote.
    There was a case when you were in the Solicitor's Office 
where the Department reversed itself on a couple of tribal 
recognition decisions, and I know that it was noted by many at 
the time that the reversal occurred after some fairly intense 
pressure from local, not tribal, elected officials.
    Basically it begs the question, how do you think Interior 
should conduct that formal tribal recognition process and what 
is the right way to go about that so that you don't end up in a 
position where there is a reversal?
    Mr. Bernhardt. So it's been a long time since I've been 
involved with a recognition issue and it's possible that the 
Department has changed things significantly.
    But for me personally, my view of the recognition process 
is it's a process of looking at history, genealogy. It's an 
extensive, it should be an extensive process to make a 
determination of whether a potential group has the political 
significance and the other factors that apply. And it's really, 
it really should just be a fact-based decision.
    Now it's possible some of those reversals that the folks in 
the Bureau didn't exactly dot their ``I''s and cross their 
``T''s or maybe there were facts that they got wrong.
    But the truth of the matter it should be devoid of----
    Senator Heinrich. Political consideration.
    Mr. Bernhardt. Politics. That's not the threshold, so 
that's my view and it's been my view.
    I was very supportive of the branch of acknowledgement when 
I was there because, and this is not to be negative about 
gaming, but there's so much outside pressure and interest in 
these recognition decisions because of the consequences that 
they bring that I really felt that the Bureau of Reclamation 
should be as insulated from those types of activities as 
possible so that they could do the review that they need to do.
    Senator Heinrich. Okay.
    Thank you, Mr. Bernhardt.
    The Chairman. Thank you, Senator. Thank you for that.
    Mr. Bernhardt, I appreciate your responses this morning. We 
do have to get to a vote immediately here.
    But I do want to acknowledge the comments that Senator 
Gardner made with reference to previous individuals within the 
Department of the Interior, most notably, Mr. Hayes and Ms. 
    It is the backgrounds, the similarities there. There are 
certainly parallels to you and the position that you are being 
considered for this morning. I would just remind colleagues 
that both were confirmed with strong support of members who 
might otherwise be interested in raising accusations against 
you here this morning.
    So, I just remind us that we do not want to be in a 
situation where we have two different standards here. I think 
it is important that if you have policy disagreements with the 
nominee, this is the place to be bringing them up, but it is my 
hope that you are not going to be held to a different standard 
than past nominees and not held to a different standard than 
what exists under law.
    I appreciate the time that you have given us. I appreciate 
the responses. I appreciate your willingness to serve, and I 
look forward to moving your name quickly through the 
confirmation process.
    I think Secretary Zinke has a big job in front of him, and 
he needs a team. And I think that you can be a valuable asset 
to that team.
    So with that, we stand adjourned and we thank you.
    [Whereupon, at 12:20 p.m. the hearing was adjourned.]