[Senate Hearing 116-303]
[From the U.S. Government Publishing Office]
S. Hrg. 116-303
GREENBLATT AND JORJANI NOMINATIONS
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON
ENERGY AND NATURAL RESOURCES
UNITED STATES SENATE
ONE HUNDRED SIXTEENTH CONGRESS
FIRST SESSION
TO
CONSIDER THE NOMINATIONS OF MARK LEE GREENBLATT TO BE INSPECTOR
GENERAL, DEPARTMENT OF THE INTERIOR AND DANIEL JORJANI TO BE SOLICITOR
OF THE DEPARTMENT OF THE INTERIOR
__________
MAY 2, 2019
__________
Printed for the use of the
Committee on Energy and Natural Resources
Available via the World Wide Web: http://www.govinfo.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
37-304 WASHINGTON : 2020
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COMMITTEE ON ENERGY AND NATURAL RESOURCES
LISA MURKOWSKI, Alaska, Chairman
JOHN BARRASSO, Wyoming JOE MANCHIN III, West Virginia
JAMES E. RISCH, Idaho RON WYDEN, Oregon
MIKE LEE, Utah MARIA CANTWELL, Washington
STEVE DAINES, Montana BERNARD SANDERS, Vermont
BILL CASSIDY, Louisiana DEBBIE STABENOW, Michigan
CORY GARDNER, Colorado MARTIN HEINRICH, New Mexico
CINDY HYDE-SMITH, Mississippi MAZIE K. HIRONO, Hawaii
MARTHA McSALLY, Arizona ANGUS S. KING, JR., Maine
LAMAR ALEXANDER, Tennessee CATHERINE CORTEZ MASTO, Nevada
JOHN HOEVEN, North Dakota
Brian Hughes, Staff Director
Kellie Donnelly, Chief Counsel
Lucy Murfitt, Deputy Chief Counsel
Sarah Venuto, 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
Manchin III, Hon. Joe, Ranking Member and a U.S. Senator from
West Virginia.................................................. 3
WITNESSES
Jorjani, Daniel, nominated to be Solicitor of the U.S. Department
of the Interior................................................ 5
Greenblatt, Mark L., nominated to be Inspector General, U.S.
Department of the Interior..................................... 9
ALPHABETICAL LISTING AND APPENDIX MATERIAL SUBMITTED
Greenblatt, Mark L.:
Opening Statement............................................ 9
Written Testimony............................................ 11
Responses to Questions for the Record........................ 73
Heinrich, Hon. Martin:
Letter for the Record from Former U.S. Department of the
Interior Professionals..................................... 24
Jorjani, Daniel:
Opening Statement............................................ 5
Written Testimony............................................ 7
Responses to Questions for the Record........................ 41
Manchin III, Hon. Joe:
Opening Statement............................................ 3
Murkowski, Hon. Lisa:
Opening Statement............................................ 1
Wyden, Hon. Ron:
Email from Daniel Jorjani to Russell Roddy dated 3/28/2017... 19
GREENBLATT AND JORJANI NOMINATIONS
----------
THURSDAY, MAY 2, 2019
U.S. Senate,
Committee on Energy and Natural Resources,
Washington, DC.
The Committee met, pursuant to notice, at 10:06 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 nominations of two
individuals for the Department of the Interior (DOI). But
before we do the introduction on that, I would like to turn to
my colleague and Ranking Member, Senator Manchin, just for a
few words here this morning to start the morning off right.
Senator Manchin. Madam Chairman, thank you, thank you so
much and sorry to take just a few minutes, but I think it is
extremely important for all of us on this Committee to
recognize and say thank you to a gentleman who has given us
tremendous service. So it is with great pleasure that I take a
moment to recognize the Committee's longest serving staff
member, David Brooks.
David joined the Committee staff 30 years ago in February
1989. To put in perspective how long David has worked for the
Committee, consider this. There are only four Senators who are
still in the Senate who were here when David arrived.
The Chairman. Wow.
[Laughter.]
Wow.
Senator Manchin. You can take that any way you want.
[Laughter.]
David has faithfully served seven of the eight Democrats
who have been either the Chairman or Ranking Member in the
entire history of this Committee. That is unbelievable also.
David serves as our General Counsel for Public Lands. He is
our foremost authority on National Parks and Public Land
issues. Unquestionably, he has staffed more park and public
land hearings and helped enact into law more park and public
lands legislation than anyone in the Committee's 42-year
history.
David's most recent accomplishment was the 700-page John D.
Dingell, Jr. Conservation, Management, and Recreation Act which
passed both the House and the Senate with broad, bipartisan
majorities and was signed into law two months ago. That law,
like so many before, was made possible, in large part, by
David's hard work, his many years of experience, his deep
knowledge of our public land laws, his skills as a negotiator
and as a legislative draftsman, and his dedication to this
Committee.
I am proud and grateful to have David on our staff, and I
take great pleasure in recognizing him for his 30 years of
devoted service to the Committee, the Senate, and the nation.
David, thank you so much and come forward.
[Applause.]
Let's get everybody up here.
The Chairman. Congratulations.
Senator Manchin. Come on, everybody get up.
The Chairman. We are going to get a picture here.
Senator Manchin. Get everybody in here.
He deserves 30 years of recognition for just enduring.
[Members surround David for a photo.]
The Chairman. Senator Manchin, thank you for recognizing
David.
David, I, too, want to extend my thanks and appreciation
for your good work on the Committee. By my calculations, now I
have been here 16 years, so the entire time I have been here,
you have been here, so about half of your tenure.
We have gotten to know one another through some of these
public lands' issues, and your expertise, the value that you
bring to the Committee, is appreciated on both sides. So thank
you for that. We will look forward to giving you a 40-year pin.
So 2029 is coming up, just hold on. But thank you again for
your good work for the Committee.
It is always nice to start the Committee out on, kind of,
an upbeat note.
Let's talk about our two nominees that we have before us
this morning. Mark Lee Greenblatt, who is nominated to be
Inspector General, and Mr. Daniel Jorjani, nominated to be
Solicitor. These are critical positions. I want to thank both
our nominees for their willingness to serve.
The Interior Department has numerous, wide-ranging
responsibilities, including the administration of more than a
quarter of the land in the United States. Almost two-thirds of
the land in Alaska is under the oversight of the Department of
the Interior. It is also the primary federal agency charged
with meeting our nation's trust responsibilities to American
Indian and Alaska Native people.
In order to carry out its mission, the Department needs a
strong, independent watchdog who can ensure that it operates
efficiently, effectively, and legally. It also needs a top
lawyer who can provide good advice, counsel, and legal
representation.
Both of these positions have been vacant since President
Trump took office. In fact, the Interior Department has been
without a permanent Inspector General (IG) for more than ten
years. We have to change that. The Inspector General must
appreciate the responsibilities the IG's office has to the
Department's Secretary as well as to Congress, and that is why
I welcome the nomination of Mr. Greenblatt, who is well-
qualified for this position. He has more than 15 years of
oversight experience, including several positions in the Office
of the Inspector General at the Department of Commerce and as
Staff Director and Chief Counsel on the Senate Permanent
Subcommittee on Investigations.
The Department's Solicitor must have a commitment to the
careful interpretation of both the law and precedent,
regardless of how that advice may be received. Mr. Jorjani has
been performing the Solicitor's duties largely since President
Trump took office, but his experience at Interior extends
beyond that. This is actually his second tour at the
Department, having previously served in the Bush
Administration. Mr. Jorjani clearly knows the issues and is
demonstrating that he can do the job.
For members who have questions for our nominees, I am going
to be here this morning until we can get through everybody. If
members have additional questions after the hearing, questions
for the record will be due at the close of business tomorrow.
As usual, it is my intent to report these nominees as soon
as possible.
I would just note that we still have five nominees who have
already been favorably reported from the Committee that are
still awaiting full confirmation by the Senate. That includes
Susan Combs, the President's nominee for Assistant Secretary of
Policy, Management, and Budget. She was reported out of our
Committee three separate times. She has now been awaiting
confirmation for a total of 661 days. We have got to get moving
on these nominations.
Secretary Bernhardt and Secretary Perry need their teams in
place. I would encourage members to recognize the importance of
confirming these individuals and the importance of encouraging
Americans who want to enter public service, and to work with me
to secure their approval.
At this point I will turn to Senator Manchin for your
comments, and then we will swear in our witnesses and proceed.
STATEMENT OF HON. JOE MANCHIN III,
U.S. SENATOR FROM WEST VIRGINIA
Senator Manchin. Thank you, Madam Chairman, especially for
holding this hearing today.
Thank you, Mr. Jorjani and Mr. Greenblatt, for your
willingness to serve and for appearing here before the
Committee this morning, and thank you for having your families
with you. I know they'll enjoy this. I hope they do.
[Laughter.]
The positions to which Mr. Jorjani and Mr. Greenblatt have
been nominated are among the most important at the Department
of the Interior. The Solicitor is responsible for providing
legal advice and counsel to the Secretary and to all of the
bureaus and offices within the Department of the Interior. The
Inspector General is responsible for detecting and deterring
waste, fraud, and abuse in the Department's programs and
operations; for reporting any problems to the Secretary and
Congress; and for recommending any corrective actions that may
be needed.
Both of these important jobs have gone too long without a
Senate-confirmed appointee. The Department has been without a
confirmed Solicitor since the beginning of the Trump
Administration and without a confirmed Inspector General since
early in the Obama Administration.
In fairness though, I must note that the Office of the
Inspector General has been very ably filled on an acting basis
by Mary Kendall for the past ten years. I was pleased to hear
that Ms. Kendall will become the Deputy Inspector General for
Amtrak when she leaves the Interior Department. I would like to
take this opportunity to thank her for her public service and
wish her well in her new position.
But the Department should not be run by acting officials.
Our laws and our constitution require Senate confirmations of
its principal officers. So I am pleased we finally have these
nominations before us this morning.
Unfortunately, as we are all aware, some of the
Department's highest officials have been the subject of
conflict of interest allegations.
The Solicitor, as the Department's Chief Legal Officer, and
the Inspector General, as its internal watchdog, must play lead
roles in ensuring the integrity of the Department and its
officials, ensuring that they meet the highest ethical
standards. They both must be willing and able to speak truth to
power.
I regret that I did not have a chance to meet with Mr.
Jorjani before today's hearing, so I look forward to hearing
from him this morning. In particular, I am interested in
hearing more about his background and how he views the
Solicitor's role within the Department. I believe the Solicitor
must be more than just an advocate defending the policies of
the Secretary or even the President. He must be willing to give
them candid, principled, and independent legal advice, even
when it is not what they want to hear. The Solicitor, like any
appointee to the Department, bears the very important
responsibility of creating a culture of integrity and ensuring
the protection of our public lands and the taxpayer dollar, and
the Solicitor must do so by upholding the law above all else.
I appreciate having had the opportunity to meet with Mr.
Greenblatt several weeks ago. I am favorably impressed by his
many years of experience as an investigator with the Senate's
Permanent Subcommittee on Investigations, the Department of
Justice Office of Inspector General, and most recently, the
Department of Commerce Office of Inspector General.
I look forward to hearing from both of you all today.
Thank you so much, Madam Chairman.
The Chairman. Thank you, Senator.
Gentlemen, at this time the rules of the Committee which
apply to all nominees require that they be sworn in in
connection with their testimony. I would ask that you rise and
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?
[Witnesses respond favorably.]
The Chairman. You may both be seated.
Before you begin your statement, I will ask you three
questions addressed to each nominee before the 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. Jorjani. Yes.
Mr. Greenblatt. Yes.
The Chairman. 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. Jorjani. No.
Mr. Greenblatt. No.
The Chairman. Are you involved or do you have any assets
held in blind trusts?
Mr. Jorjani. No.
Mr. Greenblatt. No.
The Chairman. Very good.
We appreciate, again, your willingness to serve and the
opportunity to ask questions of you in Committee here.
I note that there are some younger members of the society
that have joined us behind you, so I am assuming that they may
have some connection to each of you. As you present your
statements, we would certainly invite you to introduce any of
your family members or supporters or fan club that you may have
brought with you.
We will begin comments or statements from you, Mr. Jorjani,
and then we will go to Mr. Greenblatt.
We would ask you to try to keep your comments to about five
minutes. I do note that we have a series of votes that are
scheduled to begin about 10:45, so we are probably going to
have to be jumping up and down between all this because we want
to get all the questions in as we can, but we apologize in
advance for the disruption.
Mr. Jorjani, if you would like to begin?
STATEMENT OF DANIEL JORJANI, NOMINATED TO BE SOLICITOR OF THE
DEPARTMENT OF THE INTERIOR
Mr. Jorjani. Chairman Murkowski, Ranking Member Manchin,
and members of the Committee, it is my honor to appear before
you today as the President's nominee to be Solicitor of the
Department of the Interior. I humbly ask for your consent to
the President's nomination.
If confirmed, I will bring over 20 years' experience to
this role, including approximately ten years at the Department
of the Interior, where I have spent two years as the Principal
Deputy Solicitor, four years as the Counselor to the Deputy
Secretary, and almost four years as the Counselor and Chief of
Staff to the Assistant Secretary for Policy, Management and
Budget. It is my understanding that no other nominee for
Solicitor has ever brought this much DOI experience to the
role.
If confirmed, I will serve as the chief legal officer for
the Department and as the principal legal advisor to Secretary
Bernhardt. I first met Secretary Bernhardt in 2001 and consider
myself fortunate to have had the opportunity to work for him
directly. He is a lawyer's lawyer and a person of the highest
integrity.
I am joined today by my extraordinarily awesome wife,
Aimee, and my three children, Nickolas, Lucy, and Flora.
Nickolas is named for my oldest cousin, Nick, a recently
retired federal civil servant who has worked tirelessly at home
and abroad to protect our country since 9/11.
As a child of physicians who immigrated to this great
country in the 1950s, I learned from both of them to appreciate
the wonders of America and the importance of public service. I
grew up hearing my mother's stories of living in Scotland
during the Second World War and the aftermath she endured in
London while doing her residency there. I learned early on the
challenges that women face in the workplace and the importance
of creating a safe and secure work environment.
On the farm in Kentucky is where my father first taught me
to shoot at the age of five with a Browning SA-22, a rifle I
still own today and will pass on to my children. There I also
learned coal's importance to the hardworking families of
southeastern Kentucky. And I learned the equally important
lesson that government has an important role to play in
ensuring the safety of those same hardworking men and women.
From 2001 to 2009, I was incredibly fortunate to have been
mentored by senior career members of the Senior Executive
Service (SES) on DOI operations and on the Executive Branch
inter-agency process more broadly. I re-joined the Department
in January 2017 after serving on the Trump-Pence Transition
Team. Starting in May 2017, I began my service as Principal
Deputy Solicitor and have served in that capacity for the past
two years. During this time, I have been fortunate to work with
highly talented lawyers and administrators, both at Main
Interior and in the regions.
The Solicitor's Office is currently composed of 407
employees, including 352 attorneys. Our portfolio covers all
ten bureaus and is organized by issue area including ethics,
energy and minerals, parks and wildlife, Indian affairs, Indian
Trust Litigation, land, water, general law, and administration.
Almost half of our lawyers are located in regional and field
offices that span from Anchorage to Albuquerque to Knoxville,
Pittsburgh, and beyond. The Solicitor's Office also houses
Interior's Freedom of Information Act (FOIA) Office, which is
managed by the newly created SES level role of Deputy Chief
FOIA Officer. The career civil servant who holds that role is a
senior lawyer with over 20 years federal experience, much of it
in FOIA policy and litigation.
In addition to my responsibilities over the past two years
as Principal Deputy Solicitor, I've also served as the
Regulatory Policy Officer on Interior's Regulatory Reform Task
Force and as a member of Interior's Executive Resources Board,
which plays an important role in managing the Department's SES
corps.
If confirmed, I welcome the opportunity to use my legal,
policy, regulatory, and management skills to further the
Department's mission to protect and manage the nation's lands,
natural resources, and cultural heritage and to ensure that the
Department fulfills its responsibilities to the Insular areas
and its trust responsibilities to American Indian tribes and
their members.
Thank you very much for your consideration.
[The prepared statement of Mr. Jorjani follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
The Chairman. Thank you, Mr. Jorjani, and welcome to you
and your lovely family back there. Nice to have you here.
Mr. Greenblatt, welcome to the Committee.
STATEMENT OF MARK L. GREENBLATT, NOMINATED TO BE INSPECTOR
GENERAL, U.S. DEPARTMENT OF THE INTERIOR
Mr. Greenblatt. Thank you, Chairman Murkowski, Ranking
Member Manchin, and members of the Committee. It's an honor to
appear before you as the nominee to serve as the Inspector
General of the Department of the Interior.
At the outset, I'd like to thank my family, friends, and
colleagues, many of whom are here today, for their support. My
colleagues, who inspire me with their intelligence, sound
judgment, good humor, and work ethic. My family, who instilled
in me the value of honesty, integrity, and hard work from a
young age. My wife, Jana, who's been a wellspring of support
for the past 19 years. And lastly, my two boys, Micah and Levi,
who are always energetic and sometimes well-behaved reminders
of why we are all here, to improve our country for future
generations.
[Laughter.]
The Chairman. Exceptionally well-behaved.
[Laughter.]
Mr. Greenblatt. The desire to improve our country drove me
to dedicate my career to public service.
In that vein, I've spent the last 16 years rooting out
waste, fraud, and abuse in the Federal Government. I started my
public service right here in the U.S. Senate, conducting
oversight for the Permanent Subcommittee on Investigations
(PSI). After almost six years at PSI, I joined the special
investigations team of the Department of Justice OIG. Then
after five years, I moved to the Department of Commerce OIG,
first as the Director of Special Investigations and later as
the Assistant Inspector General for Investigations.
Over the years, I have led hundreds of inquiries involving
a variety of federal agencies including the Justice Department,
FBI, DEA, the Patent and Trademark Office, Census Bureau, NOAA,
and Fortune 500 companies, and the United Nations. These
matters have included high-profile investigations into the
highest-ranking officers in our agencies, and run the gamut of
misconduct from conflicts of interest to misuse of office, from
whistleblower retaliation to revolving door violations, from
nepotism to contract and grant fraud.
I take great pride in the fact that, throughout my career,
investigations under my watch have been conducted in a fair,
independent, and objective fashion that uncovered the truth and
affected positive change, even under highly politicized and
challenging circumstances.
In one case, we investigated allegations of misconduct in a
Census Bureau office. The atmosphere there had grown toxic.
Witnesses were scared. Whistleblowers were threatened. In fact,
one subject, while cutting a cake at an office party, moved the
knife up and down in a stabbing motion and said, ``This is for
the ones who went to the OIG.'' Our investigation ultimately
uncovered extensive abuses, including roughly 40 employees who
falsely claimed to work nearly 20,000 hours, more than $1
million stolen from the taxpayers. We also found a variety of
other misconduct, like multiple cases of employees misusing
their position to hire their friends and family. As a result of
our report, the Census Bureau took action and disbanded the
unit. They implemented substantial changes and attempted to
fire or discipline many of those employees. That investigation
is particularly gratifying to me because it is a great example
of how IGs can have a positive impact on its agencies by
uncovering misconduct, holding officials accountable,
protecting whistleblowers, and empowering the agency to make
necessary reforms. That is what I love about serving in the IG
community.
Therefore, it's an honor to be nominated to be an Inspector
General, particularly at an agency with such far-reaching
impact as the Department of the Interior. Simply put the
Department touches every American in significant ways and that
includes my own family.
Several months ago, I took the boys with my father to the
battlefields at Antietam and Gettysburg. Walking around
Cemetery Hill and Devil's Den, Burnside Bridge and the Sunken
Road, we discussed those pivotal moments in American history
and the stories of self-sacrifice and leadership like Clara
Barton and Joshua Chamberlain. Months later we still talk about
what Chamberlain and his boys from Maine did to hold that
crucial left flank on Little Round Top, what it meant for this
country, and what we can learn from it all these years later.
Those were meaningful experiences for us, all made possible
by the Department's efforts to preserve our national parks. So
I'd be especially honored to contribute to this important
mission as DOI's Inspector General.
If confirmed, I'd strive to be an agent of positive change,
focusing on eliminating waste, fraud, and abuse and making
effective recommendations to Interior's leadership, all
designed to make the Department the best it can be.
I would also maintain strong relations with Congress. In
light of my tenure conducting oversight for this very body, the
significance of that relationship resonates with me on a
personal level.
Thank you for your consideration of my nomination and, if
confirmed, I would look forward to working with you toward our
common goal of making our country better now and for future
generations.
Thank you, and I look forward to your questions.
[The prepared statement of Mr. Greenblatt follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
The Chairman. Thank you, Mr. Greenblatt. We appreciate your
comments, your willingness to serve and your family that is
here to support you in every way. We appreciate that.
Let me begin with questions here, beginning with you, Mr.
Jorjani.
You are certainly not the first nominee who has worked
somewhere else in the past, but in your case I suspect there is
going to be some interest in your work and how it will affect
your work going forward within the Department. So if you can
just give the Committee some insight as to how you handle
ethics and potential conflicts, both for yourself and for those
within the Department?
Mr. Jorjani. Thank you for the question, Senator.
I handle that issue the way I handle a lot of issues which
is at the very first step, consulting with the career civil
service ethics officials, whether it's meetings that I take or
topics that I review. The role of ethics is incredibly
important to the U.S. Department of the Interior.
And just to build out from my past experiences working
focused on compliance and the legal component but also at the
U.S. Department of the Interior, the role of the Ethics Office
is incredibly important. Secretary Bernhardt has prioritized
that as a top priority.
And we look forward to continuing to perform the massive
reforms we already have underway, including the hiring of 42
career ethics officials, on schedule to hire another 25 by the
end of this fiscal year. Additional training, additional
professionalization of the core, but making sure from top to
bottom, everybody understands the importance of ethics. It's
not optional. It's a core part of what we're seeking to
accomplish.
The Chairman. Well, I appreciate that.
I also recognize that in order to do that which we have
tasked you at the Department, you have to have a workplace that
is respectful, safe, free of harassment, free of retaliation of
all kinds and really creating a positive workplace environment
and combatting misconduct. That is a key part of what you have
to do as well.
You have been there as Principal Deputy Solicitor for some
time. What have you done, in terms of either specific policies
or practices, to improve the Department's workplace environment
and, really, the morale as well within the Department and each
of its bureaus because that too is important?
Mr. Jorjani. Thank you for the question, Senator.
The first thing at the policy level is an issuance of
Personnel Bulletin 18-01 which established broad-reaching
criteria to address the issue of workforce harassment, not just
protected classes and not just what is the legal definition of
harassment but trying to be proactive in addressing the issues
of workplace harassment.
If we've seen anything, not just in the previous
Administration, but for decades now, it's the ongoing issues of
harassment that employees in the field, for example, the Park
Service, have been experiencing. In our most recent survey, the
numbers show over 40 percent of Park Service employees had
experienced harassment in the workplace within the past two
years.
Kudos to the entire team, not just Secretary Bernhardt, but
the employment and labor law unit for pursuing this issue
aggressively. It is something we take very, very seriously and
are allocating significant resources to. It's part of an
ongoing process. We're not there yet, but it remains a top
priority.
The Chairman. It needs to be that top priority.
Mr. Greenblatt, let me ask you.
You are sitting at the table today with Mr. Jorjani who, if
confirmed, will be the Department's Solicitor. How should the
Office of Inspector General and the Solicitor's Office be
working together?
Mr. Greenblatt. There are a number of areas, actually,
where we do, at least in my experience from Commerce and
Justice, where the OIG and the Solicitor's Office or there, the
General Counsel's Office do overlap or not overlap, but they do
have to work together.
For example, in employee misconduct cases, if we have an
investigation that finds one or more employees have engaged in
misconduct, we would then turn that over to the agency. Usually
it's going to be the Solicitor's Office or the General
Counsel's Office that would then take the lead on exerting some
sort of discipline or whatever process they want to do. So
there is some engagement there.
And then there's also refined engagement, uh, misconduct,
with respect to contractors or grant recipients, then we would
proceed with the suspension in--to stop more money going to
those, that contractors and grant recipients. That again,
usually would go through the General Counsel's Office or, in
this case, the Solicitor's Office.
The Chairman. Thank you.
Very quickly, back to you, Mr. Jorjani.
During Secretary Bernhardt's confirmation we talked about
the Trans-Alaska Pipeline which is our economic backbone up
north. It has been running about three-quarters empty and that
is certainly not due to lack of resources, you know that. But
so much of it has been because we have just had issues with
lack of permission to access our federal areas.
But thanks to some of Interior's policies, we are seeing a
turnaround there. Obviously this is critical for my state, our
economic livelihood, for public services and the like. I would
just ask for your continued commitment to the full resources
and focus of the Solicitor's Office to help us turn this around
and really refill that Trans-Alaska Pipeline.
Mr. Jorjani. Yes, Chairman, it is a top priority. You'll
have the full commitment of the Solicitor's Office both at main
Interior and with the regional Solicitor based out of
Anchorage. It remains a top priority from the Secretary all the
way down to the field.
The Chairman. I appreciate that.
Mr. Jorjani. Yes, ma'am.
The Chairman. Senator Manchin.
Senator Manchin. Thank you, Madam Chairman.
Mr. Jorjani, as the Department of the Interior's chief
legal officer, the Solicitor must be able to provide an
accurate and honest appraisal of the law, even if the Solicitor
may not personally agree with that law and even if the law may
constrain the Secretary or President's desired policy goals.
If confirmed, will you be able to set aside your ideology
and personal policy views and provide the Secretary and the
Department with principled, objective, and forthright legal
analysis?
Mr. Jorjani. Thank you for the question.
Yes, I take seriously my responsibilities that the
Solicitor is not simply the legal advisor to the Secretary, he
is the Chief Legal Officer for the Department and the ability
to provide robust challenge and accurate legal advice is
incredibly important, even if it is initially unwelcome.
Senator Manchin. One of the foundations of the rule of law
in the country is respect for established precedent--the same
law that is applied to one person one day should be applied to
the next person the next day. I understand the Solicitor is the
legal advisor, not a judge or a court. The Solicitor is not
bound by the legal opinions of his or her predecessors.
The Department of the Interior, like other Executive Branch
agencies, has considerable leeway to change policies from one
Administration to the next, but laws do not change unless we,
in Congress, amend them. So the Department's interpretation of
the law should not change, wholesale, every time an
Administration changes. Congressional intent is Congressional
intent.
So I am troubled by the fact, Mr. Jorjani, that seven of
the eight legal opinions you have issued as Acting Solicitor
overturned well-reasoned, legal opinions of the previous
Solicitor.
So my question would be what weight do you afford the legal
opinions of previous Solicitors? I can give you three examples
of the seven of the eight you overturned. One was a page-and-a-
half opinion summarily overturning Ms. Tompkins' exhaustive 30-
page analysis of the Department's statutory authority to
require companies permitted to develop energy development or
other infrastructure projects on public lands to mitigate
environmental harm. The second one, an opinion that concluded
railroad companies holding railroad rights-of-way over public
lands under the 1875 law can lease portions of those rights-of-
way to other companies for non-railroad purposes. And a third
one of the seven, an opinion that concluded that the Migratory
Bird Treaty Act (MBTA) makes it unlawful to kill migratory
birds without a permit at any time. Those are just three of the
seven.
Mr. Jorjani. Thank you for the question, Ranking Member
Manchin.
The previous sets of M Opinions are important. They provide
guidance to us. I'm not sure if you want me to go each of the
three----
Senator Manchin. I'm just saying----
Mr. Jorjani. But it is important. And we do our----
Senator Manchin. As coming in as acting, you came in and
overturned seven of the eight. I heard that those things were
basically approved as the previous Administration was outgoing.
We found also these had been exhaustively studied and Ms.
Tompkins was well regarded in following the rule of law. And in
all honesty, the observance that I have is that your political
ideology overtook, basically, the rule of law that was in the
previous opinions.
Mr. Jorjani. Thank you for the question, Ranking Member
Manchin. We take our responsibilities very seriously.
Of the three I can go through each of them, but I'll just
start with MBTA. It was an interesting issue looking at the
statute and the interpretation because, essentially, we had a
split in circuits between the second and tenth on one side
regarding its take and the fifth, eighth and the ninth circuit
taking a different interpretation. There's a long process for
reviewing M Opinions, what the catalyst is for it.
In this case, we received a directive from the Chief of
Staff to the President saying take a fresh set of eyes on every
reg in any interpretations of statutes with general
applicability.
So, as part of that process, actually before I became the
Principal Deputy Solicitor, those were withdrawn and then we
did a multi-month process involving senior career lawyers as
well as consultation through the interagency process and a lot
of feedback from DOJ before we rolled out that specific
opinion.
Senator Manchin. I will talk further on my second round,
but I want to go right to Mr. Greenblatt, if I may.
Several years ago, the Inspector General's Office found
systematic sexual harassment and gender discrimination in the
National Park Service which seems to be of epidemic proportion.
Three years later this is still a serious problem, as you know,
and I think you have been made aware of that. Will you commit
to giving that problem the utmost attention that it needs and
what is your thought process of how we can cure it?
Mr. Greenblatt. So that is absolutely something I'm
committed to addressing. Normally or in other IG offices,
sexual harassment doesn't quite fall in the purview of the OIG.
I'm happy to report that Interior does take a proactive view
with respect to the OIG engaging on some of those issues.
That doesn't mean we can do all of those cases, but when it
rises to a pervasive level that impacts the operations of the
entity, then that's when it gets OIG involvement and that's
when we've been, I think, proactive and adding real value. I
look forward to continuing doing just that.
Senator Manchin. Thank you.
Thank you, Madam Chairman.
The Chairman. Senator Wyden.
Senator Wyden. Thank you, Madam Chair.
Madam Chair and colleagues, the grotesque scandals at the
Interior Department, in effect, are going to be part of an
especially bizarre twist this morning.
At the witness table there are two nominees, Mr. Daniel
Jorjani, who believes he deserves an ethics job promotion even
though his current ethics job coincides with the blizzard of
ethical lapses by Ryan Zinke. Sitting next to him is Mr. Mark
Greenblatt, the nominee to be the Interior Inspector General
which is a job charged with being a key line of defense against
corruption at the Interior Department.
As Senators consider whether to promote Mr. Jorjani, here
are several considerations.
First, there is Mr. Jorjani's non-existent record of ethics
enforcement during his time as Acting Solicitor. By my count
there are at least four investigations into wrongdoing at the
Interior Department that were closed or found inconclusive due
to a lack of cooperation or records production and this took
place on Mr. Jorjani's watch. These investigations ranged from
the political or potential misuse of expensive chartered air
flights to a halted study on the crucial health impacts of
potentially dangerous Interior Department policies.
Second, on March 28th of 2017, Mr. Jorjani boasted in an
email he sent to another Interior official that he, ``worked
for and successfully protected DOI politicals who have
undergone IG travel investigations.''
Mr. Barrasso, as Acting Chair, I would ask unanimous
consent that that email be put into the record.
Senator Barrasso [presiding]. Without objection.
[The information referred to follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senator Wyden. In that same email, Mr. Jorjani says, and I
quote, ``At the end of the day, it's our job to protect the
Secretary.'' Colleagues, last time I looked, Interior lawyers
are responsible for protecting the best interest of the
American people before those of the Secretary or special
interests, and I found that comment particularly troubling.
Third, Mr. Jorjani oversees Interior's new Freedom of
Information Act policies that give political appointees the
opportunity to review document productions. What this means is
it is harder for the press to report on what actually is going
on there at Interior and for the American people to access
public documents.
In addition, it appears that under Mr. Jorjani's leadership
Interior has so far stonewalled Congressional requests as two
House Committees investigate whether Secretary Bernhardt
complied with record keeping laws.
Here's my conclusion. The way Interior has acted under the
Trump Administration is the textbook definition of a political
cartel using state resources to help the special interests, and
it sure looks to me like Mr. Jorjani has been a key member of
the cartel.
So I have only one question and that is, Mr. Greenblatt, if
you are confirmed, you are going to have your work cut out for
you and I want to know what you are going to do to maintain
your independence and avoid an appointee, like Mr. Jorjani,
attempting to interfere with your work.
You and I talked about this yesterday and I want to hear
some specific examples this morning of what you are going to do
to maintain your independence and keep these political
appointments from interfering with protecting the public, not
the Secretary and not politics, at Interior.
Mr. Greenblatt. Thank you.
This is a crucial issue for Inspectors General.
Independence, fairness, objectivity, these are core principles
for us. And as we discussed yesterday, I have a good, long
track record of doing just that--fair, objective, independent
oversight.
Now in terms of specific steps. I've gone toe-to-toe with
the biggest lawyers in town. I didn't back down then. I'm not
going to back down now. What does that mean? That means, in
particular, you know, we have a number of different
responsibilities and prerogatives under the IG Act that we can
use to ensure that we're getting the materials, we're getting
access to the materials and witnesses that we need.
There's a seven-day letter where we can write to the agency
and insist that they then go to Congress and report on
deficiencies and abuses.
If we have obstruction in terms of obstructing our
investigations, you know, I have no problem making referrals
over to the Department of Justice if there's an obstruction of
our investigation into agency employees. I'll have DOJ on speed
dial if I need to.
So we are going to do our investigations in a fair,
objective, independent way. We're going to follow the evidence
wherever it goes. Wherever it goes we're going to do thorough,
exhaustive investigations, and we will close them when they're
closed in accordance with----
Senator Wyden. My time is up and my colleagues are waiting
for the vote.
I would like you, within five days, to present in writing
specific steps of what you are going to do to make sure there
is no political interference with your work.
I would like to know, for example, what specifically your
timetable will be with respect to requests for document
production. We are seeing that as a problem in the House.
I would like to hear about a regular reporting schedule to
this Committee that has oversight responsibilities.
Five days, I want to hear specific steps.
I have not made up my mind on how I am going to vote for
you, but I want to see independence.
Thank you, Mr. Chairman.
Mr. Greenblatt. Understood.
Senator Barrasso. Thank you, Senator Wyden.
Well, I would like to thank Senator Murkowski and Ranking
Member Manchin for holding this hearing. I am glad that we are
here taking steps to fill two very important Senate-confirmed
positions that have been sitting vacant for far too long.
Nearly half of the land in Wyoming is owned by the Federal
Government, so I believe we are particularly affected by the
decisions made by the Department of the Interior.
I would like to begin with a question for Mr. Jorjani.
Since President Trump has taken office, many of his actions
have been subject to litigation. I wanted to get into that.
But first, it seemed you were chomping at the bit to
respond to some of the comments that were being made by the
previous Senator in his comments. I would like to give you some
of my time to respond as you wish.
Mr. Jorjani. Thank you, Senator.
Yeah, I believe Senator Wyden was referring to a March 28,
2017, email when I was on duty as a Special Assistant in the
Secretary's office before I had moved to the Solicitor's
Office. The context for that email was a mid-level political,
essentially expending dollars for a trip that I considered to
be poor use of taxpayers' dollars. I was politely reprimanding
him about the use of those dollars, and he responded
negatively.
And I do take seriously in that role the obligation to
protect the Secretary and the Secretary's immediate office
against misuse of taxpayers' dollars. But it's also sometimes,
as a senior member of the political team, you're protecting the
Secretary against poor judgment of other political appointees
who do things that reflect badly upon the Department, on the
Secretary and upon the Administration.
So no, I agreed with that chastisement of that particular
official. He lasted less than a year in the Department before
finding other opportunities.
Senator Barrasso. Well, I appreciate your willingness to
come forward here today, to bring your family and to present
yourself, and I appreciate your service to the nation.
Interior is faced with an increasing number of legal
challenges, unfavorable decisions and it must determine the
appropriate legal strategy in moving forward in a lot of
things. The DC District Court's recent Wild Earth Guardians
decision is just one example that severely impacts my home
State of Wyoming. Attorneys at the Department of Justice
represent Interior in this litigation. So while the Interior
Solicitor works closely with the Department of Justice on these
cases, they have ultimate authority over the case, including
the decisions to litigate, to settle, to appeal.
Mr. Jorjani, I would just like to ask you about your
relationship with the attorneys at the Department of Justice.
How would you describe the relationship between Interior and
Justice and how closely are you able to work with them?
Mr. Jorjani. I consider the working relationship between
all the attorneys at the U.S. Department of the Interior and
ENRD, who is our primary point of contact of DOJ, is to be a
highly positive.
The new Assistant Attorney General at ENRD is Jeff Clark, a
very aggressive, very talented litigator. My team and his team
speak on a daily basis.
We understand Department of Justice controls litigation
strategy and we're the client, but it's a productive, highly
productive, working relationship.
Senator Barrasso. Thank you.
Mr. Greenblatt, oversight in Indian Country, and I have
been former Chairman of that Committee, must be carefully
navigated to respect tribal sovereignty while ensuring
accountability in the use of taxpayer dollars.
I would just like to ask you how you would approach
investigations that implicate the BIA or the tribes?
Mr. Greenblatt. Those are a particularly sensitive issue
for us and in my communications with the folks currently at the
IG's office, that's one area of growth, one place we could go
and develop a little bit more of a robust practice. That's one
place they, you know, the current team there and I would agree,
want to expand and develop a little bit more of an
infrastructure there, perhaps, even opening an office in that
area of the country.
That would be something that's absolutely crucial because
of the very reason you said, the 638 grants, the contracts that
have self-determination in them, make it very difficult to
exert oversight. But that's exactly the void we need to fill.
And so, I would look forward to working with you on that.
Senator Barrasso. Thank you very much.
Senator Heinrich.
Senator Heinrich. Thank you.
Mr. Jorjani, I want to go back to the Migratory Bird Treaty
Act, because you referenced the Circuit split. What you omitted
was that the Department of the Interior and that the U.S. Fish
and Wildlife Service have a 70-year history of supporting the
opposite view and protecting the resource. And in 1989 alone,
roughly half a million birds died in oil waste pits in the
Southwest. That is twice what were killed by the Exxon Valdez
spill.
I would just ask unanimous consent to add to the record
this letter signed by administration officials from the last
eight administrations, Republican and Democrat, ranging from
the Nixon Administration all the way through to the most recent
Administration, because these are not just esoteric legal
questions. They have real impacts on the resources that the
Department of the Interior is entrusted to protect.
[Letter regarding the Migratory Bird Treaty Act follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senator Heinrich. So let me move on to another question
which is, do you believe that the programs and services for
Indian tribes and their members as currently implemented are
constitutional?
Mr. Jorjani. Yes, our sovereign-to-sovereign relationship
with Indian tribes is incredibly important. It's set forth in
the Constitution, in federal treaties, and in federal statutes.
That relationship is incredibly important. It's one we value
and one we're working constantly to strengthen.
Senator Heinrich. Some have suggested in this
Administration that programs like the Indian Housing Block
grant are not constitutional and that the thought process there
is that these are basically not, that tribal membership is not
so much a reflection of affiliation with a sovereign government
but more of a racial status. That is the view that I am deeply
opposed to and I think as you point out, is deeply incongruous
with 240 years of legal history. Would you agree with that
interpretation?
Mr. Jorjani. Yes, I'm not aware of the counter
interpretation being an official position.
It is definitely the position of the Department of the
Interior. We value the sovereign-to-sovereign relationship with
the tribes and with their individual members as well.
Senator Heinrich. I am very pleased to hear that.
Let me ask you, climate change, is it happening?
Mr. Jorjani. Yes.
Senator Heinrich. Do you have a view on what is causing it?
Mr. Jorjani. I don't have a comprehensive view but man
certainly plays a role.
Senator Heinrich. Okay.
Do you think that the Department of the Interior has an
obligation to consider the effect of those changes in
Departmental actions?
Mr. Jorjani. It's an interesting question. It's incredibly
important. I'm not aware of a precise statutory requirement for
the Department of the Interior the way there might be for the
Environmental Protection Agency. But certainly, when we're
looking at issues involving climate change, how it might impact
our analysis for NEPA and elsewhere, it's something we're
taking very seriously, under the leadership of Secretary
Bernhardt.
Senator Heinrich. Okay.
Thank you, Madam Chair.
The Chairman [presiding]. Thank you, Senator.
Senator Cantwell.
Senator Cantwell. Thank you, Madam Chair.
I understand earlier you honored David Brooks for his
service on the Committee. I want to thank you and Ranking
Member Manchin for doing that and thank David for his service
here in the United States Senate. I think when somebody writes
the book on the last 100 years of public land debate, there
will definitely be a chapter in there about David Brooks.
I certainly appreciate all that he has done to continue to
hold present the history and the understanding of these issues
and, frankly, for helping us negotiate this package last time
because we certainly would not have been able to do that
without his great insight and, certainly, Sam Fowler as well.
The Chairman. We will go ahead and photoshop you into that
picture where we all stood to congratulate him.
Senator Cantwell. Okay.
The Chairman. We knew you were there.
Senator Cantwell. Okay.
Mr. Jorjani, I have concerns, obviously, about drilling in
the Arctic Wildlife Refuge and many of my constituents do. It
is one of the largest and wildest refuges that we have on the
planet, and I believe it is very fragile.
I am concerned that the rush to jam through drilling by the
Department of the Interior has ignored some legal obligations
to conduct a meaningful analysis on the impacts of the
industrial development and what impact it will have on the
refuge and species like polar bear and others.
It is my understanding that this expedited review is
resulting in a lack of sound and updated science, that the
Department of the Interior is taking action without the
information needed on potential impacts that drilling will have
on the refuge, even if other agencies like Fish and Wildlife
have flagged that there are gaps and issues with the
Department's environmental review and failure to obtain all
science and information.
So I have some questions for you regarding that. Mr.
Jorjani, do you believe the Endangered Species Act, the Alaska
National Interest Lands Conservation Act (ANILCA), and the
National Wildlife Refuge System Administration Act apply to the
Arctic National Wildlife Refuge?
Mr. Jorjani. Yes, they do.
ANILCA is an incredibly important statute. Both ANCSA and
ANILCA and the Department of the Interior needs to do the best
it can to make sure we're fulfilling our obligations under
those statutes.
Senator Cantwell. Thank you.
Mr. Jorjani. But all three apply.
Senator Cantwell. Thank you.
Given the serious issues with BLM's environmental review
process to date, will you advise BLM to revise and release its
draft EIS for an additional round of public review?
Mr. Jorjani. Thank you for the question, Senator.
I am not aware of a rushed process for it, but I commit to
going back to the Department and speaking with the policymakers
on that issue. And if it is advised to fulfill our legal
obligations, I will make that recommendation.
Senator Cantwell. I think I am going to follow up with you
on another written question for the record on that so that it
will give you a little more time maybe to evaluate that
information and come back with either more of a yes or a no.
If the court rules that there were flaws in the legal
process at BLM or the analysis, will you commit to revoking any
leases that may be issued pursuant to a lease sale based on a
flawed EIS?
Mr. Jorjani. If a decision from a District Court is reached
with that conclusion, I commit to consulting with the
Department of Justice and with the Department's leadership at
Interior regarding appropriate next steps as a policy matter as
well as a legal matter.
Senator Cantwell. If the court ruled that there were legal
flaws, why wouldn't you continue to, you know, hold up, I
guess, would be the best. Why wouldn't you hold up?
Mr. Jorjani. Thank you for the question.
I would like to see what the decision is and what the
rationale is for this hypothetical decision. But if we get the
decision it will receive full, careful review both at the
Department of the Interior and the U.S. Department of Justice.
Senator Cantwell. Okay. I think I will follow up with you
on maybe an even more direct question on that so that you can,
again, give us--I know it is hard because there are lots of
different elements of this but, you know, I will never forget
asking John Ashcroft at his confirmation hearing when he was
about to become the Attorney General whether he would uphold
the Roadless Rule. I said, it is now law, according to the APA
under the Clinton Administration, but you are now going to work
for the Bush Administration and are you going to uphold it? He
hesitated for a minute and he said, well, if it's the law of
the land then yes, I will uphold it.
Pretty soon as we saw the Bush Administration try to roll
back various environmental reviews, various issues on Friday
afternoons, we reminded the Attorney General that he made that
commitment and at least he let the Roadless Rule, I would not
say he was an effective advocate in court but he definitely
didn't try to revoke it based on his testimony.
So I am just trying to get an understanding of your
commitment to what is law and whether you will help follow the
law. That is the key thing I am after. I get that there are
many scenarios, but I want to know just as I wanted to know
from Attorney General Ashcroft whether he would uphold the law
in the responsibility and area that he had.
So thank you very much.
The Chairman. Thank you, Senator Cantwell.
Let's go to Senator Hirono.
Senator Hirono. Thank you.
I ask all nominees who come before any of the five
committees on which I sit, the following two questions. And so,
I would like both of you to respond to these questions.
I will start with you, Mr. Jorjani, and then you can
answer, Mr. Greenblatt.
Since you became a legal adult have you ever made unwanted
requests for sexual favors or committed any verbal or physical
harassment or assault of a sexual nature?
Mr. Jorjani. No.
Mr. Greenblatt. No.
Senator Hirono. Have you ever faced discipline or entered
into a settlement related to this kind of conduct?
Mr. Jorjani. No.
Mr. Greenblatt. No.
Senator Hirono. Mr. Greenblatt, the DOI IG's office
recently opened an investigation into allegations that
Secretary Bernhardt has taken steps to suppress a Fish and
Wildlife Service report on the impacts of pesticides on
endangered species. This was in response to a letter that I led
with some of my colleagues requesting an investigation into
these allegations.
If confirmed, do you commit to maintain open communications
with my office during the course of this investigation and, of
course, to see that this investigation continues?
Mr. Greenblatt. Let me be very clear, I have zero intent of
walking in the door and shutting down that investigation or any
other matter in front of the OIG.
In terms of open communication, this is true, speaking
broadly, we can't convey what's going on with an ongoing
investigation but the extent to which we can, I'm happy to
engage with the Committee in terms of what's happening, but
that's difficult in the context of an ongoing investigation.
Senator Hirono. So I can be assured that you will commit to
being responsive and communicative with Congress during any
future requests?
Mr. Greenblatt. Yes, absolutely.
Senator Hirono. Mr. Jorjani, in both your testimony and
biography that you provided to the Committee, there is no
discussion of what you did between 2009 and 2017. That is a
pretty long period of time.
I understand you were working for various Koch Brothers-
supported entities. It is hard to believe that your time with
the Koch Brothers did not influence your opinion that
incidental take, for example, is not prohibited under the
Migratory Bird Treaty Act, something that has been a top
priority of the oil and gas industry and is contrary to how the
Fish and Wildlife Service has implemented the Act since the
1970s.
Your opinion discussed how the scope of incidental take is
virtually unlimited, yet the Fish and Wildlife Service Office
of Law Enforcement has stated in a briefing that, ``Despite the
wide range of activities that can potentially incidentally kill
birds, Fish and Wildlife Service and DOJ have been careful to
bring enforcement actions only in limited circumstances,'' and
that, ``DOJ does not ordinarily prosecute pure accidents.''
Are you aware that prosecution of incidental take under the
MBTA has been limited?
Mr. Jorjani. I'm aware there are different interpretations
of the statute and prosecution depends on a certain degree of
discretion on individual prosecutors. And that----
Senator Hirono. Well, the question is that that has not
been unfettered prosecutions, that there are limitations. They
are not going to go and sue everybody in sight.
And by the way, you are aware that before they file these
kinds of losses that they give the affected entity a chance to
remedy the situation. Are you aware of that?
Mr. Jorjani. I'm aware different prosecutors have different
approaches and, again, the task of the M Opinion is to focus on
the statute itself.
Thank you for the question.
Senator Hirono. Yes, you take the plain meaning of the
statute.
So really why did you issue this opinion if prosecution--
yes, they do have discretion but it is not as though they are
just running wild for incidental take--has been so limited? You
acknowledge that, I hope that you acknowledge that it has been
limited? So why did you feel you needed to issue an opinion
that just totally opened the floodgates for non-prosecution for
incidental take?
Mr. Jorjani. Senator, thank you for the question.
Senator Hirono. You do not have to thank me for the
questions. Please respond.
Mr. Jorjani. When we review M Opinions and M Opinions have
been, we've issued them to the Solicitor's Office for almost
100 years, there's usually a process in place that we adhere
to. Usually the first step for revising any M Opinion is we get
an options paper from the career lawyers. The second stage----
Senator Hirono. I think, excuse me, I realize there is a
process, but nonetheless you came to the conclusion that you
should totally open the floodgates for no prosecutions under
the incidental takes. And in the opinion you issued, you cite
to a number of cases. A lot of these cases had to do with the
oil industry, the United States v. Citgo Petroleum Corporation,
United States v. Brigham Oil and Gas LP. A lot of these
challenges under this law have come from or have been lawsuits
involving the oil and gas industry. So who benefits most from
your opinion that totally stopped prosecutions for incidental
take under this law? What industry most benefits from your
opinion?
Mr. Jorjani. I'm not aware of any particular industry that
benefits from this. I'd like to think the American people
benefit from a restrained approach to statutory interpretation.
Senator Hirono. Yes, I would like to think so too. But I
think you cannot escape the conclusion that the people you used
to work for before, the Koch Brothers, that this is one of
their biggest issues that they wanted to have done away with
and that was prosecutions under the Migratory Bird Treaty. So I
would say the oil and gas industry are the biggest
beneficiaries.
And you know, may I just say one more thing that I think
you could have considered under this law--some other
suggestions such as maybe lowering the penalties for incidental
take or clarifying that these kinds of takes would not be
subjected to a strict liability standard if, you know, I
realize that was not applied across the board. But there was
some other things you could do rather than to issue an opinion
that just gave unfettered right mainly to the oil and gas
industry that they do not have to even pay any attention to
unintended takes.
Thank you, Madam Chair.
The Chairman. Thank you.
Let's go to Senator King.
Senator King. Thank you.
Mr. Greenblatt, you had me at Chamberlain.
[Laughter.]
Mr. Greenblatt. And the Gettysburg book on your desk or on
your table.
Senator King. You are a very astute guy----
[Laughter.]
----and that is why I am going to vote for your
confirmation.
Mr. Greenblatt. I appreciate that.
Senator King. No, I appreciate your answers to your
questions, the questions, your attitude, I think. You and I
discussed how important the role of Inspector General is in any
federal agency. It is essential to undergirding public
confidence in the efficacy of our federal agencies.
Mr. Jorjani, it is true, is it not, that you worked for an
organization called Freedom Partners Chamber of Commerce which
was at least partially funded by the Koch Brothers. Is that
correct?
Mr. Jorjani. Yes, it is true, I believe from February 2012
to January 2017 I worked for Freedom Partners Chamber of
Commerce.
Senator King. And since you have been in the Department of
the Interior, have you had any oral or written contact with any
of the personnel associated with Freedom Partners or the Koch
Brothers regarding either business or political interests? This
is a very specific question. Have you had written or oral
communication with any of those individuals?
Mr. Jorjani. If it's any oral communications with anyone
who has ever worked at Freedom Partners Chamber of Commerce, I
went to a holiday party, not an official one, for somebody who
used to work at Freedom Partners Chamber of Commerce. I still
have friends there. But to the best of my recollection, I've
never had a meeting nor any official communications with them.
I will double check.
Senator King. No communication with any of those
individuals?
Mr. Jorjani. Well, that's to the best of my recollection
but I will double check for you.
Senator King. Thank you.
I would like to go back to this email that Senator Wyden
raised. A couple of phrases in the email which is dated March
28th, 2017. You are talking about an expenditure for a trip to
the, I believe, the Virgin Islands or to Puerto Rico.
There is a parenthetical in the first paragraph of your
email. ``OIGs love travel investigations. They are easy to
document and spin in a negative way.'' What in the hell do you
mean by that?
Mr. Jorjani. Oh, if you're engaged in violations of travel
policy, it's incredibly easy to document and when you have----
Senator King. It is the ``spin in a negative way'' that
implies a disrespect for the Office of the Inspector General.
Can you respond?
Mr Jorjani. Oh, yeah, not for the Office of Inspector
General. I will say they----
Senator King. It says OIGs.
Mr. Jorjani. Oh yeah. There are two things, very quickly.
Office of Inspector General at Interior, phenomenal. I had
the pleasure of working with Earl Devaney for eight years.
Senator King. That is not what you said in this email. You
said OIGs can spin it in a negative way. What did you mean by
that?
Mr. Jorjani. I will take that----
Senator King. Doesn't that imply disrespect for the Office
of Inspector General?
Mr. Jorjani. I can only say I have the highest, utmost
respect for the Office of Inspector General.
Senator King. Well, I can only say that is inconsistent
with what you said in your email.
The second piece of the email is, ``nevertheless at the end
of the day our job is to protect the Secretary.''
Isn't your job to protect the American people? Are you the
Secretary's lawyer or are you the Department of the Interior's
lawyer?
Mr. Jorjani. Thank you for the question. That email----
Senator King. Don't--I am like Senator Hirono, never mind
the thank you for the question.
Mr. Jorjani. ----March 28th, 2017, at that point that was
several months before I joined the Solicitor's Office. I was a
Special Assistant in the Office of the Secretary and it is
important when you have senior political officials, it's not
just, they sometimes have to be protected against junior
politicals who are taking travel and expending taxpayers'
dollars and doing it in a way that's inconsistent with our
obligations to the American people.
So that email was focused on a mid-level political, from my
perspective, taking advantage of a trip for what were non-
personal experience, personal expenses and I considered it
inconsistent use of dollars.
Senator King. So your position was the meaning of that
phrase was you were protecting the Secretary from misuse of
public funds by another, a lower down member of the Department?
I want to give you fair--that is your----
Mr. Jorjani. Oh sure. Well, there are different components
to it. That particular political appointee who didn't last long
at the U.S. Department of the Interior. This just being one
example of what I considered not adhering to the point that
public trust is a public responsibility.
Senator King. I appreciate that.
One final question.
I am a little unclear from the pre-hearing materials and
your testimony. As of now, who is in charge of FOIA requests in
the Department of the Interior? Is it a career professional or
is it a political appointee?
Mr. Jorjani. Day-to-day management of the FOIA Office is
run by the Deputy Chief FOIA Officer who is a career lawyer of
20 years' experience.
I don't have the statute in front of me, but I believe it's
5 U.S.C. 552(j)(1), which states that each agency must have as
the FOIA Officer someone at the Assistant Secretary's level or
above.
At the U.S. Department of the Interior all Assistant
Secretaries are political or are presidentially appointed and
Senate-confirmed by definition.
Senator King. So it is your testimony that that is a
statutory requirement across the government to have a political
appointee deciding ultimately on FOIA requests?
Mr. Jorjani. I'll be careful. The statute says Assistant
Secretary or above.
At the U.S. Department of the Interior, all Assistant
Secretaries are, by definition, political officials. Guidance
from U.S. Department of Justice, the Acting Associate AG made
the point that these should all be, in effect, Assistant
Secretary or above. It's a mark of how seriously we take FOIA
that we're trying to reprioritize it and give it the highest-
level review. I, myself, don't manage it day-to-day.
Senator King. But isn't it true that the changes you have
made in the FOIA regulations within the Department make it
harder, not easier, to process FOIA, to get FOIA responses?
Mr. Jorjani. I don't want to be pre-decisional on how the
regulation is going to end. We recently received some very good
comments from Department of Justice. All of those comments have
been integrated into the revised rule and we'll have to see
what the final interpretation is.
But consistent with the practice at DOJ, DoD and State,
where it is a political official who is literally designated as
the Chief FOIA Officer. I, myself, don't review FOIAs or make
determinations.
Senator King. Thank you.
Thank you, Mr. Chairman.
Senator Barrasso [presiding]. Senator Manchin, additional
questions?
Senator Manchin. I am working on that right now. Yes.
Mr. Jorjani, one of your opinions that I have a question
about is on the Bureau of Land Management's authority to
address impacts of its land use authorization through
mitigation.
The previous solicitor, Hilary Tompkins, issued a 30-page
opinion. We talked about that. You overturned her opinion with
a page-and-a-half opinion. We talked about that. And you said,
I think, her opinion was no longer needed since Secretary Zinke
had revoked the Department's mitigation policy. So you were
following that.
So I have said before I believe energy producers and other
users of our public lands who have been granted the privilege
of doing business on those lands should leave them in better
condition. I come from a state where we do not have BLM and,
basically, landowners get their land back better than it was
when they turned it over to a producer.
So you can understand why I am a little bit concerned why
people doing business on BLM land are getting preferable
treatment in the way I understand we have always done business
in West Virginia.
Can you explain your views on the Secretary's authority to
protect the public lands and why we should not hold them more
accountable or as accountable as we do in private transactions?
Mr. Jorjani. Well, generally for the purpose of that
specific M Opinion, we try, as with all M Opinions, to focus on
what the statute says and the relevant statutes on the topic of
compensatory mitigation we couldn't find anything mandatory
within FLPMA or elsewhere that directed us to follow that,
essentially, policy decision that was institutionalized as an M
Opinion. Thus, we withdrew it.
I know Secretary Bernhardt plays particularly close
attention to this issue, and we'll be looking for policy
guidance from him.
If states and others want to take advantage of compensatory
mitigation, that is up to the states. We don't oppose it.
Senator Manchin. I understand there are quite a bit of
royalties that have not been paid to the Federal Government for
the work or the extraction that has been done on BLM land. I
don't know how much you have looked into that, but how much of
this is still owed in royalties and how would you suggest that
we collect that money? Do you know the amounts? Let me see if I
have them.
[Senator Manchin confers with his staff.]
My reason for the questioning is that again in the private
sector, East of the Mississippi, you pay a certain royalty, you
pay a certain severance tax, and basically life goes on. It
does not seem to have the same weight as far as with BLM and
how we basically protect or collect from those who do business
on federal lands.
On hardrock mining we collect nothing, nothing, and those
laws are over, I think, almost 200 years old.
Can you give me some insight on how you feel about that or
what should be done to correct that?
Mr. Jorjani. As a policy matter and as a contractual matter
and as a legal matter, if royalties are owed to the Federal
Government, it's incredibly important that we make sure that
those obligations are fulfilled.
Regarding this particular matter, I can commit to going
back and discussing this with the Department's leadership to
make sure this remains a priority and everything that we do
complies with the law and that those who are West of the
Mississippi are not--and that we treat everyone equally,
consistent with the law.
Senator Manchin. Well, the Hardrock Mining Law, I mean, I
think we all agree, even those from hardrock mining states,
that we have to have some changes that bring it into the 21st
century. I think it is well past due.
If I can go to Mr. Greenblatt.
If confirmed, will you ensure that energy producers pay
their royalties and can you go back and make sure that what is
owed to the country is paid to our Treasury?
Mr. Greenblatt. So that is a crucial issue. The current IG
staff in their top management challenges identified that.
That's, literally, the first one in the top management
challenge report is the collection and verification of those
royalties. And so, that's clearly an issue.
The extent to which the IG can add value, I'm happy to
entertain that. I'm happy to work with you on that. I
understand from our meeting that's a significant issue for you.
Senator Manchin. Yes.
Mr. Greenblatt. And I'm happy to go back with the team and
see how we can add value, where we can do so and engage with
you on that.
Senator Manchin. We are doing extensive research also to
find out exactly what is owed, what has not been paid and then
also looking at the rates that we are charging and what can be
done to bring them into parity.
Mr. Greenblatt. Sure.
Senator Manchin. Because right now there is no parity
whatsoever, public versus private, and they should not be
treated different, you know? The ownership belongs to us, as
far as taxpayers, citizens of this great country, the same as
if you had a farm and you were basically leasing out your gas
or oil rights. Same way.
Thank you, Mr. Chairman.
Senator Barrasso. Thank you, Senator Manchin.
Senator Cortez Masto.
Senator Cortez Masto. Thank you.
And gentlemen, welcome. Congratulations on the nominations.
Mr. Jorjani, I would like to start with questioning with
you.
During your tenure, the BLM has pursued an aggressive
energy dominance agenda prioritizing oil and gas development as
the dominant use of our public lands, no matter the negative
impact it may have on any other value that public lands yield
to the American people. You played a central role in this
policy, penning legal opinions that consistently favor industry
at the expense of other interests.
Furthermore, since you were appointed in May 2017, the BLM
has offered over 17.7 million acres of public land for lease to
the oil and gas industry, yet just 60 percent of it has
actually been leased.
So my question to you is this. Given that the Mineral
Leasing Act limits oil and gas leasing to public lands, which
are known or believed to contain oil or gas deposits, can you
please describe for me the legal basis for leasing public lands
that, according to BLM, have little to no actual drilling
potential?
Mr. Jorjani. Thank you for the question.
I am not aware of the BLM conclusion that they have little
to no potential. I commit to going back to the Department and
finding out BLM's rationale for making these decisions and via
the Office of Congressional Legislative Affairs, reporting back
to you directly.
Senator Cortez Masto. Thank you.
Last year the Trump Administration issued new guidance
pertaining to land parcel reviews for oil and gas leasing as
part of their energy dominance agenda, again, to open more
public lands for potential leasing.
Prior to the Administration's new guidance, the public was
assured a 30-day comment period before parcels were included on
a lease sale list and 30 days to file a protest. Under the new
guidance, comment periods are optional and the protest period
is ten days.
Would you commit to a meaningful public participation
environmental review process for all oil and gas leasing
activities, including by restoring the previous process?
Mr. Jorjani. Senator, thank you for the question.
I commit to going back and speaking to departmental
leadership on this very important issue which has legal and
policy implications and then via the Office of Congressional
Legislative Affairs, reporting back to you promptly.
Senator Cortez Masto. Thank you.
Mr. Greenblatt, you obviously have a background in
providing oversight investigations in many different forms. I
appreciate you providing us with an example of such oversight
regarding the misconduct in the Census Bureau Office.
You are being considered for a role that has multiple open
investigations into very senior officials within the
Department. Can you talk a little bit, if you can, about how
you intend to continue these investigations and how you intend
to retain your impartiality within these clouded circumstances
that you would be stepping into?
Mr. Greenblatt. Sure, I appreciate the question.
So, and this is obviously a sensitive issue, as I said to
Senator Hirono earlier, I have zero intent of walking in the
door and shutting down those matters or any other matters, that
we will continue them, follow the evidence wherever they go, in
accordance with our IG community standards. Close them down
when they're ready to be closed, when we've exhausted all of
the, you know, angles, gotten all the evidence we need.
And in terms of dealing with senior level folks, that
that's what I've done throughout my career. I'm very
comfortable in that space. I've done them both, you know, here
at the Senate, at DOJ and at the Department of Commerce. Those
don't scare me.
And so, that's the sort of thing. We'll go. We'll follow
the evidence. We'll do what we need to do. We'll research the
law and write up a report and that will be shared, you know, if
we elect to publicize, make it public, which by the way, DOI,
OIG is on the cutting edge of transparency and making
investigative reports public. So I fully anticipate that that
would be public both, you know, for Congress and in the public
domain.
Senator Cortez Masto. Thank you. Thank you.
Gentlemen, again, congratulations on the nominations.
Welcome to your family members, although I do notice that I
went to vote and came back and Mr. Greenblatt, your boys are no
longer here. I hope they were still well behaved.
[Laughter.]
Mr. Greenblatt. Yeah, yeah. The medicine only lasted so
long.
[Laughter.]
Senator Cortez Masto. Thank you.
Senator Barrasso. Well, thank you.
Senator Manchin, any final comments or thoughts?
Senator Manchin. I want to thank both of you all for coming
and being direct with us. And we have concerns, but basically
what we do is I think we are all here for the same reason, to
make our country better and stronger and make sure that we can
speak truth to power.
It is difficult, I understand. I have been around for a
long time. But the country depends on you. I don't care whether
you are Democrat or Republican, we just want you all to do the
job that you know you can do best. You are all trained to do
it, and we hope for the best.
Senator Barrasso. I would like to ask if either of you have
anything that you would like to add to summary, clarification,
anything that has come to your mind.
Mr. Greenblatt?
Mr. Greenblatt. No, thank you. I appreciate it.
Senator Barrasso. Okay.
Mr. Jorjani?
Mr. Jorjani. Thank you, Senator. Again, thank you for the
opportunity.
If confirmed, I am deeply humbled by the opportunity. I am
greatly appreciative.
One potential clarification. The way Senator King has
phrased his question regarding my previous employers was
phrased incredibly broadly, including personal interactions and
what have you. So, if it is very broadly and personal, I commit
to going back and checking my personal Gmails, my personal
calendar and reporting accurately to the Committee. I just want
to be, out of an abundance of caution, completely truthful.
Thank you.
Senator Manchin. Thank you.
Senator Barrasso. Well, we appreciate both of your service.
We congratulate both of you and your families. We thank your
families for the service and your sacrifices that they make for
you to be able to play this important role in governing of the
United States.
There will be questions for the record that may be
submitted by other members of the Committee who have not been
able to do that today. The deadline for that is tomorrow, and
we ask that you try to get those answered and back as quickly
as possible.
Congratulations again to both of you.
This hearing is adjourned.
[Whereupon, at 11:22 a.m. the hearing was adjourned.]
APPENDIX MATERIAL SUBMITTED
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