[Senate Hearing 115-269]
[From the U.S. Government Publishing Office]
S. Hrg. 115-269
BERNHARDT NOMINATION
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON
ENERGY AND NATURAL RESOURCES
UNITED STATES SENATE
ONE HUNDRED FIFTEENTH CONGRESS
FIRST SESSION
To
CONSIDER THE NOMINATION OF DAVID BERNHARDT TO BE THE DEPUTY SECRETARY
OF THE INTERIOR
__________
MAY 18, 2017
__________
Printed for the use of the
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__________
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COMMITTEE ON ENERGY AND NATURAL RESOURCES
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
LUTHER STRANGE, Alabama CATHERINE CORTEZ MASTO, Nevada
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
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OPENING STATEMENTS
Page
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
WITNESS
Bernhardt, David, nominated to be Deputy Secretary of the
Interior....................................................... 14
ALPHABETICAL LISTING AND APPENDIX MATERIAL SUBMITTED
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
Association:
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
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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.
OPENING STATEMENT OF HON. LISA MURKOWSKI,
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
morning.
If you would like to proceed?
STATEMENT OF HON. CORY GARDNER,
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
Interior.
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.
[Laughter.]
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
service.
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
Interior.
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
agenda.
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
state.
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
today.
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
possible.
With that, I turn to Senator Cantwell for her opening
comments.
STATEMENT OF HON. MARIA CANTWELL,
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
for.
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
vegetarian.
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
clients.
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
approval.
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
questions.
Thank you, Madam Chair.
[The written statement of Senator Cantwell follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
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
Congress?
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.
STATEMENT OF DAVID BERNHARDT, NOMINATED TO BE THE DEPUTY
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
remarks.
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.
[Laughter.]
That actually was only for a few moments, and then I
informed them that they wouldn't be texting during the
Committee's proceeding.
[Laughter.]
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
scouts.
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
shale.
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.
[Laughter.]
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:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
The Chairman. Thank you, Mr. Bernhardt.
We now will turn to five-minute rounds of questions from
members.
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
Denali.
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
commitment.
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
that?
The Chairman. Certainly. Senator Heinrich is next.
Senator Cantwell. Is that imposing on you too much, Senator
Heinrich?
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
things.
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
on.
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:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
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----
[Laughter.]
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.
[Laughter.]
And to me, West----
Senator Manchin. It is still wild and wonderful.
Senator Daines. It is wild and wonderful. I do not
disagree.
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
lands?
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.
[Laughter.]
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
Walmart.
Mr. Bernhardt. That's right.
Senator Daines. Those are the folks you have to look out
for.
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
decisions.
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
Arizona?
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
following.
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
sentence.
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
opinion?
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
this.
Mr. Bernhardt. I know and we talked about that in your
office.
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?
[Laughter.]
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
perspective.
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
President.
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.
[Laughter.]
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.''
[Laughter.]
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
correct?
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
Interior?
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.
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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.
And----
Senator King. Presidential power, as all Presidential
powers, are somewhat circumscribed by statute and in the
Constitution.
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
issue.
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.
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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
people.
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.
[Laughter.]
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.
[Laughter.]
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
first.
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.
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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
updated.
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
that.
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
lands.
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
specifically.
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
possible?
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
standard.
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.
[Laughter.]
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
here.
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
perspective.
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
self-determination.''
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
government.
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
communities.
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
consideration?
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
considered.
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
Deputy?
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
occurred.
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.
Schneider.
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.]
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