[Congressional Record Volume 165, Number 63 (Thursday, April 11, 2019)]
[Senate]
[Pages S2401-S2404]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
Nomination of David Bernhardt
Mr. GARDNER. Madam President, it is an exciting day for Colorado. I
have known David Bernhardt, our nominee for Secretary of the Interior--
and the seventh Secretary of the Interior from Colorado should he be
confirmed today--personally and professionally for over two decades.
His roots are deep on both sides of Colorado--in the High Plains and on
the Western Slope.
We share a lot of common interests in rural development and in saving
our small towns. My experience stems from growing up in the
agricultural community of Yuma, CO, in the Eastern Plains, and Mr.
Bernhardt's formative years were spent on the Western Slope of
Colorado--an area that is a microcosm of all of the things that we
cherish about our great public lands. We both began our public service
only 1 year apart when we worked for Colorado State Representative
Russell George, who would later go on to become speaker of the Colorado
House. That is when I first met David. Mr. Bernhardt worked with Jaime,
my wife, at the Department of the Interior during the George W. Bush
administration under another Colorado Secretary of the Interior.
His personal background and public and private sector professional
experiences prove he is a strong voice for the West and is extremely
well-qualified for the nomination to be the Secretary. In fact, there
are few others who have the kind of experience that he has that enables
him to be qualified to be Secretary. Which Secretary of the Interior
has had more experience than David Bernhardt or has been more qualified
to become the Secretary of the Interior? He has extensive insight on
Western water policy, natural resources policy, and on Indian affairs,
just to name a few.
Those who have worked with Mr. Bernhardt commend him for his
integrity and wealth of knowledge on the issues under the Department of
the Interior's jurisdiction.
In 2008, after the Department of the Interior reached the largest
Indian
[[Page S2402]]
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.''
More recently, he worked to accommodate many Western States' requests
for more flexibility under the Greater Sage-Grouse RMP Amendment. John
Swartout, who as a senior policy adviser ran point on this issue for
Colorado's Democratic Governor John Hickenlooper, had this to say in
December 2018 once that process was completed:
David Bernhardt is an honest man who puts all his cards on
the table and keeps his word. I have worked with DOI for 25
years, and David is one of the finest people I have ever
worked with.
That didn't come from a partisan Republican or a partisan Democrat;
that came from a person in the Democratic Governor's office who worked
with him on natural resource issues.
Dale Hall, the CEO of Ducks Unlimited, which is hardly a partisan
Republican or Democratic organization but is an organization that does
more real conservation work on the ground than most of the groups that
have the word ``conservation'' in their names, had this to say when Mr.
Bernhardt's nomination for Secretary was announced:
I have known and worked with David Bernhardt for more than
a decade, and we are excited to continue to work with him as
the new Secretary of the Interior. His integrity in following
the law is beyond reproach. David Bernhardt is a champion of
conservation and the right person for the job. We urge the
Senate to swiftly confirm him.
Colleagues of his from his time spent working for Representative
Scott McInnis, who represented Mr. Bernhardt's hometown in Colorado,
swore he worked 40 hours a day, 8 days a week. Notably, during Mr.
Bernhardt's tenure in his office, Representative McInnis was the House
author of the bill that led to the designation of the Great Sand Dunes
as being a national park. Having now worked at very senior levels in
the Department of the Interior over the course of many years, there is
zero question Mr. Bernhardt is qualified to do this job.
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, located on Colorado's Western Slope. Few places more fully
embody the spirit and mission of the Agency he has been nominated to
lead as Secretary with that understanding of this public land. Growing
up in rural Colorado has instilled in him Western values and interests,
and to this day, Mr. Bernhardt enjoys hunting, recreation, the
outdoors, and fishing.
Rifle is located in Garfield County, an area in which about 60
percent of the lands are public lands. Rifle was founded as a ranching
community along the Colorado River, and it 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 the boom and bust ``has made [him] more sensitive to the potential
benefits and the potential impacts, both environmental and social'' of
energy development. In the 1980s, Rifle was hit by the State's oil
shale crash, and he personally experienced some of the hard times that
the Nation's rural communities often face in those boom and bust
moments.
Much like the Department of the Interior itself, Rifle is a community
that is a product of its public lands and Western heritage. It is
centrally located within a few miles of the iconic Grand Mesa--the
world's largest flat-topped mountain--the Flat Tops Wilderness, and the
Roan Plateau. It represents a home base among these public lands with
there being virtually unmatched access to world-class outdoor
experiences, which is why Mr. Bernhardt has such a passion for these
issues.
His previous experience at the Department of the Interior allowed him
to fix a problem for Colorado that I was told for 8 years, under the
Obama administration, was simply not fixable. As a result, in 2018,
revenue that had been sitting in an account in the Federal Government
for over a decade that had been owed to three counties in Colorado were
distributed back to these Colorado counties and to the taxpayers who
had been owed this money. How did this get solved after a decade of
saying it could not be solved? It is because David Bernhardt believes
you don't just push the problems that are on your front porch onto
somebody else's; you find a solution and you fix it.
Prior to his current position, his previous experience includes being
tapped to be the Solicitor of the Department of the Interior. In 2006,
by voice vote in the U.S. Senate, Mr. Bernhardt was confirmed to be
Solicitor. In the last Congress, he earned bipartisan support during
his confirmation process to be Deputy Secretary.
His integrity and ability are assets that should bolster the case for
his nomination, not detract from it. Yet, over the course of the last
couple of months, the Washington, DC, political smear machine has been
working overtime to sully a good man's name. None of what we have seen
or heard in the pages of the New York Times and in other places has
been new information. I guess the hope is that we will take it more
seriously because this time around, the New York Times is the one
writing about it.
Mr. Bernhardt has undergone two separate and extensive FBI reviews
for both his nomination to be Deputy Secretary and his nomination to be
Secretary. These reviews occurred after the allegations were first
raised, and he was cleared for both positions, which is probably
something people didn't read in the New York Times. In understanding
that these claims had been reviewed previously to the Senate's
committee's satisfaction, Mr. Bernhardt's nomination was reported out
last week by a bipartisan vote of 14 to 6.
Madam President, I ask unanimous consent to have printed in the
Record Chairman Murkowski's and Ranking Member Manchin's committee
statements.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Statements From Senators Murkowski and Manchin From the Business
Meeting To Consider Pending Nominations (04/04/2019)
Senator Murkowski: (21:01)
Good morning everyone. The Committee will come to order.
We're meeting this morning to consider three nominations.
This is for the nomination of David Bernhardt to be Secretary
of Department of Interior; Susan Combs to be assistant
Secretary of Interior for Policy, Management and Budget; and
Aimee Jorjani to be chair of the Advisory Council on Historic
Preservation. I believe that all three of these nominees are
well-qualified and encourage all members to vote to report
them favorably this morning.
As I noted last week Mr Bernhardt, I believe, has the right
background. He's got the right experience to be an excellent
Secretary of the Interior. He has twice been confirmed to
positions at Interior with bipartisan support. First, to be
Solicitor in 2006 and then to be Deputy Secretary in 2017.
He's most recently served as Acting Secretary since January
of 2019. I understand that Mr. Bernhardt has the second most
prior experience at the Department out of any nominee for
secretary, is from the West-I like that-he has great
familiarity with issues that will come before him, and he's
proven that he can ably lead the Department.
So, what everybody's talking about this morning. There is--
there are accusations about his ethics. We had this
conversation last--or two weeks ago when--when his name was
before us. I think it's very clear you got some pretty well
funded groups that are working very hard, very energetically
against his nomination. We saw new allegations last week and
then this morning there is--is yet another report. And this
is all--this is all coming despite--despite the government
scientists involved saying that there was nothing amiss when
we had that conversation last week, Senator Gardner, you
certainly raised that. This week we're starting to see--we're
again seeing new reporting on old allegations. I don't think
that this is a coincidence, that we are seeing this kind of a
roundup of reporting on old stories--and I think nonstories--
just as we're approaching the markup here.
Interior's Inspector General has reviewed the matter as
part of its due diligence. It has not opened an
investigation. In fact, our staff checked with the Inspector
General's office. We were told that there are no open
investigations into Mr. Bernhardt. We have had as a committee
I believe ample time to review all of these allegations. I am
aware of
[[Page S2403]]
no substantiation of them whatsoever and frankly I would be--
I would be stunned if they were to be substantiated. I would
remind members that both the Office of Government Ethics and
the Designated Agency Ethics Official have found Mr.
Bernhardt to be in good standing.
So, again, there--there will probably be a question this
morning, I would imagine, on--on the New York Times article
that is out there this morning, but I would remind colleagues
or ask you to look into these. These allegations again
contain no new infoimation. This is recycled. It's been
repackaged. They're now focusing on an invoice from Mr.
Bernhardt's prior Law Firm. The law firm has said that it was
labeled incorrectly. Others have said it was labeled
incorrectly. It didn't concern lobbying services. We have
known about this previous work that he has had at Westlands.
We knew it back in 2017 when we confirmed him as Deputy
Secretary. And at that time this work was not deemed
lobbying. So, just because it's in the New York Times this
morning doesn't mean that it's correct. It's my hope that as
a committee we will--will move forward in affirming Mr.
Bernhardt to be Secretary of the Interior. And then the full
Senate will confirm him coming up here. I think the sooner we
have a permanent Secretary at Interior, the better.
Senator Manchin: (30:50)
Thank you Madam Chairman and I appreciate the committee--
ensuring this committee moves forward on important
nominations. We have two of those nominations before us this
morning that I'm glad that we are reporting from this
committee and--the nominations of Susan Combs, Assistant
Secretary of Interior of Policy, Management, and Budget and
the nomination of Aimee Jorjani to chair The Advisory Council
on Historic Preservation. I think Madam Chairman gave a good
overview of that. Committee voted to--to report both of these
nominations during the last Congress, but unfortunately the
Senate didn't vote to confirm them before at adjourned. Each
time, the committee approved the nomination by voice vote and
I previously supported of both nominations and I intend to do
so again this morning.
On David Bernhardt. As a former governor and those who have
served in executive positions, that I understand it, we've
had to ask our state senators and our Oversight committees
about putting in our teams together. And I've always been
differential to allowing an executive to put their team
together as long as the person is qualified and meets the
ethical standards. There's concerns and I respect those
concerns. Mr. Bernhardt, in my estimation met the test. He's
clearly qualified. I think we all know that. He has the
knowledge and experience to serve as Secretary, knows the
Interior Department inside and out--that might be a blessing
to some, maybe a concern--and he is well-versed in all the
issues that come before him.
I spoke with him several times before this business meeting
regarding his nomination. I've reviewed his follow-up
questions for the record following his hearing. He has
answered all of our questions in a timely manner. We received
them back and I think it's all been made record. I even
talked to him earlier this week by phone again. I questioned
him again, extensively, about his willingness to be a good
steward of our nation's greatest natural resources, our
national parks, our monuments, and all of our historical
sites. I questioned him about his responsibility to balance
our resource needs with environmental protection in fairness
to the owners of our public lands, which is all of the
American people. I spoke to him about the need to make sure
that those who are granted the privilege of using our public
lands leave them in better condition than what they found
them in, which is not always the case and we've got to change
that. And I had extensive conversation with Mr. Bernhardt
regarding compliance and ethics--ethics laws and regulations,
as well as his potential conflict of interest. I was very
much concerned about that. Based on my extensive discussions
with Mr. Bernhardt and the assurances that he has given me,
I'm prepared to vote for him this morning, but I will note
that I expect him and the Department, now I've put them on
notice, hold them--hold them to the highest ethical
standards. And I've told him that. I said because I surely
will. I surely will hold him to be accountable for his
actions. He must work to ensure committee and a commitment to
ethical and scientific integrity and I intend to work with
him and his staff persistently to ensure that this is the
case. Our parks and public lands, our scenic beauty, our fish
and wildlife resources are important to all of us here, to
the people we represent, and my state, and in your states.
And West Virginians count on the Secretary of Interior, as
they do in your States also, as the guardian of our public
lands. . . . I intend to work with Mr. Bernhardt these
important issues. I've made it clear to him that I expect him
to put his extensive experience and knowledge of these issues
to work for the American people and not to people used to
work for. And to execute his responsibilities in the manner
that ensures that our public lands are not just being
maintained, but improved. Improved for the benefit of
generations to come. Thank you Madam Chair.
Mr. GARDNER. Madam President, let's talk about that story and ethics
for a second.
Mr. Bernhardt has spent more than 15 years of a 25-year career in
public service, and most of that time has been spent at the Department
of the Interior. While in his private law practice, he never lobbied
the Department of the Interior--not once. During his time as Deputy
Secretary, he has focused on the fundamental transformation of the
Department and Bureau-level ethics programs to ingrain a culture of
ethical compliance and reduce workplace misconduct.
The reality is that the ethics program throughout the Department of
the Interior had been, sadly, neglected by the previous administration.
The Office of Inspector General and the Departmental Ethics Office had
recommended significant resource changes that had fallen on deaf ears
under the previous administration. Under Mr. Bernhardt's direction, the
Department has hired a total of 42 career professional ethics advisers.
By the end of fiscal year 2019, they will have doubled the number of
career ethics officials that the previous administration had hired in
its entire 8 years.
The record shows that he has actively sought and consulted with the
Department's designated Agency ethics officials regarding compliance
with his ethics obligations recusals.
In addition, he has installed a robust screening process to ensure
that he does not meet with or engage in particular matters benefiting
the former clients from which he is recused. Every proposed meeting is
reviewed by career professionals to ensure compliance with not only his
ethics agreement but ethics laws and to make sure his ethics pledge to
the President is upheld.
His work in natural resources law prior to joining the administration
and related ethics agreements are very similar in scope and substance
to the private work and ethics agreements of senior Interior officials
who came before him in previous administrations. Let me say that again.
The same kinds of ethics agreements and obligations that basically he
is doing are what previous administrations did as well.
I ask unanimous consent to have printed in the Record a letter from
the Department of the Interior Designated Agency Ethics Official dated
March 25, 2019.
There being no objection, the material was ordered to be printed in
the Record, as follows:
United States Department of
the Interior, Office of
the Solicitor,
Washington, DC, March 25, 2019.
Hon. Elizabeth Warren,
U.S. Senate,
Washington, DC.
Hon. Richard Blumenthal,
U.S. Senate,
Washington, DC.
Dear Senator Warren and Senator Blumenthal: Thank you for
your letter of February 26, 2019 regarding your expressed
concerns of the actions of the Acting Secretary of the
Department of the Interior (Department or DOI). Your letter
references an article published by the New York Times on
February 12, 2019 discussing the Acting Secretary's legal
practice prior to joining the Department as Deputy Secretary
in August 2017. Specifically, you asked about the Acting
Secretary's involvement with the Central Valley Project (CVP)
in California and whether his actions, ``violated his ethics
pledge and federal conflict of interest regulations by
participating in decisions that directly affect a former
client.'' As discussed below, we have found the Acting
Secretary's actions have complied with all applicable ethics
laws, rules and other obligations, including the requirements
of President Trump's Executive Order 13770 entitled, ``Ethics
Commitments by Executive Branch Appointees'' (Jan. 28, 2017)
(Ethics Pledge).
As an initial matter, I would like to take this opportunity
to inform you and your colleagues of recent developments and
improvements with the DOI ethics program that will enhance
our ability to prevent conflicts of interest at all levels of
the Department. Since our arrival at the Department in April
2018, Deputy Director Heather Gottry and I have overhauled an
ethics office that was previously characterized by both DOI
employees and numerous Inspector General reports as passive
and ineffectual. With the strong support of the Acting
Secretary, we have spearheaded a long-overdue build-out of
the Departmental Ethics Office (DEO) as well as the ethics
programs of the various Bureaus and Offices throughout the
Department.
Our top priority as non-partisan, career ethics officials,
is to prevent conflicts of interest at the DOI and ensure
that DOI employees are aware of and comply with all
applicable ethics laws and standards. We understand the
importance of our program in helping the American people have
trust and confidence in the lawful and proper administration
of the Department.
[[Page S2404]]
Please know that my office takes all credible allegations
of potential ethics violations by any DOI employee very
seriously and allegations against senior officials are an
extremely high priority. Consequently, when the New York
Times published its article, I immediately sought to
understand the facts and carefully analyzed the applicable
legal authorities. We note that the Acting Secretary also
immediately requested that my office look into this matter
and to examine the prior ethics advice and counsel he had
received.
Of critical importance, we note that the Acting Secretary
does not have any financial conflicts of interest related to
either his former client, Westlands Water District, or the
CVP generally. As reflected in his Ethics Agreement, dated
May 1, 2017, and his Ethics Recusal memorandum, dated August
15, 2017, the Acting Secretary was required under 5 C.F.R.
Sec. 2635.502 to recuse for one year (until August 3, 2018)
from participating personally and substantially in any
``particular matters involving specific parties'' in which
Westlands Water District was a party or represented a party.
Because Westlands Water District is an agency or entity of a
state or local government it is excluded from the
requirements of paragraph 6 of the Ethics Pledge.
Additionally, consistent with U.S. Office of Government
Ethics (OGE) guidance, it was determined that the law the
Acting Secretary had lobbied on for Westlands Water District,
Public Law 114-322, should not be categorized as a
``particular matter'' because the law addressed a broad range
of issues and topics. Therefore, because he did not lobby on
a ``particular matter'' for Westlands Water District, he was
not required to recuse himself under paragraph 7 of the
Ethics Pledge either from ``particular matters'' or
``specific issue areas'' related to Public Law 114-322.
Accordingly, the Acting Secretary's recusal related to
Westlands Water District ended on August 3, 2018, and was
limited in scope to ``particular matters involving specific
parties'' under 5 C.F.R. Sec. 2635.502.
I have enclosed the transmittal e-mail from me to the
Acting Secretary with a detailed memorandum attached wherein
the DEO consolidates and memorializes prior ethics advice and
guidance on certain issues involving the CVP. Of particular
importance for a legal analysis of the scope of the Acting
Secretary's recusals related to Westlands Water District, the
memorandum analyzed and categorized certain issues involving
the CVP and related State Water Project as ``matters,''
``particular matters of general applicability,'' and
``particular matters involving specific parties.'' As I state
in the transmittal e-mail, these legal categorizations are
critical in determining whether an official complies with the
various ethics rules. As reflected in the memorandum, we
determined that both the Notice of Intent to Prepare a Draft
EIS and the development of a 2019 Biological Assessment are
appropriately categorized as ``matters,'' not ``particular
matters.'' Our determinations are supported by Federal law
and OGE opinions and though the matters involved may sound
like ``particular matters'' or ``specific issue areas,'' they
are legally broad matters outside the scope of 5 C.F.R.
Sec. 2635.502. As noted above, the Acting Secretary's
lobbying on behalf of Westlands Water District on Public Law
114-322 was not categorized as a ``particular matter'' and
did not require an additional recusal under paragraph 7 of
the Ethics Pledge. Therefore, the Acting Secretary was not
required under either 5 C.F.R. Sec. 2635.502 or the Ethics
Pledge to recuse from participation in either the Notice of
Intent to Prepare a Draft EIS or the development of a 2019
Biological Assessment. Attached, for your convenience, please
find the legal reference materials addressed in the
memorandum--I believe our interpretation and application of
the relevant legal authorities is both reasonable and
prudent.
I have advised the Acting Secretary, at his request, that
he and his staff should continue to consult with the DEO
prior to participating in any matter that is potentially
within the scope of his Ethics Agreement, Ethics Recusal
memorandum, the Ethics Pledge, or any other ethics law or
regulation. Additionally, to eliminate any potential for
miscommunication, I have instructed my staff that all ethics
guidance to the Acting Secretary be in writing prior to his
participation in a decision or action that reasonably appears
to come within the purview of his legal ethics obligations.
In closing, and to be responsive to your final requests,
the DEO has not issued any authorizations or ethics waivers
to the Acting Secretary or other Interior officials on the
topics you raised, nor have we referred any matters to the IG
on these topics. It is worth noting that the Acting Secretary
meets with me and my senior staff frequently and that I have
a standing meeting with him once a week to discuss any
significant ethics issues at the DOI. Pursuant to the Acting
Secretary's direction, my senior staff also meets with his
scheduling staff and other top officials twice a week, at a
minimum, to ensure we are aware of who the Acting Secretary
is meeting with and the issues he will be discussing. These
efforts, supported by the Acting Secretary and his staff, are
designed to ensure his compliance with applicable ethics
rules and protect the integrity of the Department's programs
and operations. My experience has been that the Acting
Secretary is very diligent about his ethics obligations and
he has made ethics compliance and the creation of an ethical
culture a top priority at the Department.
If you have any other questions or concerns, please do not
hesitate to contact me.
Sincerely,
Scott A. de la Vega,
Director, Departmental Ethics
Office and Designated Agency Ethics Official.
Enclosure.
Mr. GARDNER. This letter is in response to a letter from Senators
Warren and Blumenthal and states that the Ethics Office has found that
Mr. Bernhardt's actions as Deputy Secretary and Acting Secretary ``have
complied with all applicable ethics laws, rules, and other obligations,
including the requirements of President Trump's executive order 13770,
entitled `Ethics Commitments by Executive Branch Appointees.' ''
This letter from the career head of the Department of Interior ethics
professionals who served at the White House during the previous
administration goes on to say:
My experience has been that the Acting Secretary is very
diligent about his ethics obligations and he has made ethics
compliance and the creation of an ethical culture a top
priority at the Department.
That wasn't in the New York Times, either, but I think it should be.
This is not about Mr. Bernhardt's ethics or his integrity or his
qualifications; it is about the fact that he has been and will be
effective at implementing an agenda that the other side doesn't agree
with because they know he will be effective in protecting our great
outdoors and our public lands.
I am thankful there are qualified people out there like Mr. Bernhardt
and his family who are still willing to wade through the muck and serve
the people of the United States, knowing that they will be called a
liar in front of their children at a U.S. Senate committee hearing
despite letters from top officers in charge of our ethics laws at the
Department of Interior saying otherwise.
I am thankful for David, and I look forward to working with him and
his team at the Department of the Interior. I hope my colleagues will
see through the partisan rancor, see through the lens of blue or red,
of party politics, and confirm a man who--if you go back to Colorado
and talk to people like Russell George, you will learn that he has the
greatest respect not only for our public lands but for the people of
Colorado, and for that, I am grateful for him and my colleagues who
will confirm him today.
I yield the floor.
The PRESIDING OFFICER. The Senator from Colorado.