David Bernhardt

"a walking conflict of Interest" - Rep. Jared Huffman (D-CA)
Position: 
U.S. Department of the Interior Deputy Secretary
Biography: 

David Bernhardt was raised in Colorado and went to school at his local college, University of Northern Colorado. After graduating in 1990, he went on to get a J.D. from George Washington University Law School.  

From 1993 to 1998, Mr. Bernhardt worked for the then U.S. Representative Scott McInnis of Colorado. In his position, he managed the water rights conflict with the Ute Indian tribe. When a settlement was reached, it was largely criticized for its benefits for project developers instead of appeasing the Ute tribe.

From 1998 through 2001, Mr. Bernhardt was an associate at Brownstein LLC, a law firm. He gave up his position when he transitioned into government employment in 2001. 

Mr. Bernhardt filled many posts for the Department of the Interior (DOI). In order of importance they include: 

  • Deputy Secretary, second in command (Trump DOI)
  • Deputy Solicitor, third in command (Bush DOI)
  • Deputy Chief of Staff (Bush DOI)
  • Counselor of the Secretary of the Interior (Bush DOI)
  • Director of the Office of Congressional and Legislative Affairs.

In 2006, Bernhardt was confirmed as the Solicitor of the Department of the Interior - the third highest ranked position in the DOI. The following year, President Bush appointed Mr. Bernhardt to lead the International Boundary Commission – the commission in charge of matters involving the US/Canadian border. 

In 2009, Mr. Bernhardt became a Shareholder at the Brownstein Hyatt Farber and Schreck law firm, a position he still holds today. In 2013, Mr. Bernhardt was appointed the Chair of Brownstein’s Energy, Environment and Resource Strategies department. The department is composed of lawyers with experience working with federal agencies and congressional committees that specialize in energy and natural resource development. The department offers legal, lobbying and strategic services for its clients. He holds a partnership with the law firm pays him an annual $950,000, in addition to his annual corporate distribution of $150,000.

Since 2009, Bernhardt was separately paid by 12 companies which specialize in some regard in the oil, natural gas, mining, or water industries for legal services. See below for a detailed breakdown.

In 2012, Bernhardt became a Board Member for Bernhardt Brothers Land and Cattle LLC, the Virginia Board of Game and Inland Fisheries, and the Center for Environmental Science Accuracy and Reliability (CESAR).

After serving on Donald Trump's presidential transition team, Mr. Bernhardt was nominated for Deputy Secretary of the Department of the Interior (DOI) – the second highest ranking position in the DOI – on April 28, 2017. Bernhardt was confirmed by the U.S. Senate’s Committee on Energy and Natural Resources on July 24, 2017, and he was sworn into office on August 1, 2017.

Quotes: 

"The secretary certainly has a much more public-facing role. My role is driving the department, trying to accomplish his vision and the vision of the president."

- E&E Greenwire (Aug. 10, 2018)

"Disclosure of such materials would inhibit the open and candid expression of such views in similar future deliberations, could confuse the public as to the official agency position on an issue and would have a detrimental effect on our decision-making process."

- Dec. 7, 2003 letter responding to Senator Jeff Bingaman formal request for DOI documents, via E&E Publishing (Feb. 13, 2004)

 

Evidence: 

THE TRUMP INTERIOR DEPARTMENT:

As Deputy Director at DOI, Bernhardt has used bureacratic procedure to push experts out of the agency, such as re-assigning scientists and experts to new tasks that they had no prior experience or interest in. As reported by Mother Jones in October, 2018:

"Late last year, Associate Deputy Secretary Jim Cason, a Bernhardt lieutenant, reassigned at least 27 executives, including several high-level staffers with portfolios in climate change and conservation, without much explanation or a paper trail. [Obama-era career Interior official Joel] Clement, a climate policy expert, was assigned to audit oil and lease sales in the Office of Natural Resources Revenue. Dan Wenk, the veteran superintendent of Yellowstone National Park, was directed to transfer to a DC job just before he planned to retire. Both ended up leaving Interior."

INDUSTRY MEETINGS undisclosed in DOI PUBLIC CALENDAR

According to DOI visitor logs obtained by Documented, David Bernhardt had a meeting with oil lobbyists that was not published in his public calendar. American Petroleum Institute CEO Jack Gerard and API lobbyist Carrie Dominitch met with Bernhardt on September 22, 2017. At least two of API's member companies, Halliburton Energy Services and Noble Energy, were among Bernhardt's former clients at Brownstein, Hyatt, Farber and Schreck. From the report by Documented,

"While no records on the substance of this meeting have been released by the Department of the Interior, the delay and replacement of BLM’s Venting and Flaring rule was a topic of particular interest to API at the time. Suing to prevent implementation of Venting and Flaring rule was a top priority for the Independent Petroleum Association of America (IPAA), an oil and gas lobbying organization that Bernhardt worked for through 2016."

Omitted meetings with industry raise questions about conflicts of interest, politically and financially. David Bernhardt cannot be held accountable for his ethics pledge to recuse himself from matters involving his former clients if information is behind hidden from the public, or simply not being recorded in the first place.

 

BERNHARDT IN BETWEEN DOI JOBS: Brownstein HYatt Farber and Schreck (BHFS)

BHFS' Energy, Environment and Resource Strategies Clients:

Oil and Natural Gas Companies and Trade Groups

  1. Halliburton Energy Services (2011-2013)

  2. Access Industries (2011)
    • Mr. Bernhardt lobbied for Access Industries on the topic of “Natural Resources/ Energy” in 2011.
    • While Mr. Bernhardt worked at Brownstein, Access Industries paid Brownstein for lobbying $1,430,000. Through the following payments $30,000 (2017), $200,000 (2016), $240,000 (2015), $240,000 (2014), $240,000 (2013), 240,000 (2012), and 240,000 (2011).
  3. Samson Resources Company (2012-2013)
    • Mr. Bernhardt was paid privately for “legal services” by Samson Resources Company in 2013 and 2012.
    • Mr. Bernhardt lobbied for Samson Resources on the topic of “Natural Resources”. He led all lobbying efforts made by Brownstein on behalf of Samson Resources in 2013 and 2012. 
  4. Cobalt International Energy (2010-2013)
    • Mr. Bernhardt lobbied for Cobalt Energy on the topic of “Natural Resources/ Energy”. He led all lobbying efforts made by Brownstein on behalf of Cobalt International Energy in 2013, 2012, 2011, and 2010.
    • While Mr. Bernhardt worked at Brownstein, Cobalt International Energy paid Brownstein for lobbying $2,940,000. Through the following payments $90,000 (2017), $370,000 (2016), $440,000 (2015), $460,000 (2014), $560,000 (2013), $560,000 (2012), $400,000 (2011), and $430,000 (2010).
  5. Ur Energy USA, Inc. (2009-2012)  
    • Mr. Bernhardt was paid privately for “legal services” by Ur Energy USA, Inc.
  6. Targa Resources Company LLC
    • Mr. Bernhardt was paid privately for “legal services” by Targa Resources Company LLC for an unknown time frame.
  7. Noble Energy
    • Mr. Bernhardt was paid privately for “legal services” by Noble Energy for an unknown time frame.
  8. Sempra Energy
    • Mr. Bernhardt was paid privately for “legal services” by Sempra Energy for an unknown time frame.
  9. Taylor Energy Company LLC
    • Mr. Bernhardt was paid privately for “legal services” by Taylor Energy Company LLC for an unknown time frame.
    • While Mr. Bernhardt worked at Brownstein, Taylor Energy Company LLC paid Brownstein $50,000. Through the following payments $30,000 (2017) and $20,000 (2016).
  10. NRG Energy, Inc.
    • Mr. Bernhardt was paid privately for “legal services” by NRG Energy for an unknown time frame.
  11. Strata Production (2010)
    • Mr. Bernhardt lobbied for Strata Production on the topic of “Energy” in 2010.
  12. Freeport LNG Expansion (2010)
    • Mr. Bernhardt lobbied for Freeport LNG Expansion on the topic of “Energy”. He led all lobbying efforts made by Brownstein on behalf of Freeport LNG in 2010.
  13. Independent Petroleum Association of America
    • Mr. Bernhardt was paid privately for “legal services” by Independent Petroleum Association of America for an unknown time frame.
  14. Colorado Oil and Gas Association
    • Chair of the Energy, Environment and Resource Strategies department while they successfully stuck down the Longmont, Colorado’s ban on fracking and Fort Collins, Colorado’s five-year moratorium on fracking. Bernhardt led the 3 person litigation team.
  15. WPX Energy
    • While Mr. Bernhardt worked at Brownstein, WPX Energy paid Brownstein $510,000 for lobbying. $30,000 (2017), $120,000 (2016), $120,000 (2015), $120,000 (2014), and $120,000 (2013). 
  16. Lario Oil and Gas
    • While Mr. Bernhardt worked at Brownstein, Lario Oil and Gas paid Brownstein $90,000 (2015).
  17. PDVSA (Petroleum of Venezuela)
    • While Mr. Bernhardt worked at Brownstein, PDVSA paid Brownstein $2,109,000. Through the following payments $540,000 (2016), 1,080,000 (2015) and $489,000 (2014).
  18. Spotted Hawk Development LLC
    • While Mr. Bernhardt worked at Brownstein, Spotted Hawk Development paid Brownstein $280,000. Through the following payments $30,000 (2016), $120,000 (2015), $120,000 (2014), and $10,000 (2013).
  19. Statoil ASA
    • While Mr. Bernhardt worked at Brownstein, Statoil ASA paid Brownstein $960,000. Through the following payments $60,000 (2017), $240,000 (2016), $240,000 (2015), $240,000 (2014), and $180,000 (2013).
    • Specifically, Brownstein lobbied for Statoil Gulf Services on behalf of Statoil ASA.

Mining Companies

  1. Rosemont Copper Company (2011-2014, and 1st quarter 2015)

    • David Bernhardt represents Rosemont Copper Company, a copper mining company seeking mining rights for the Santa Rita Mountains in Arizona. The creation of such mine will pollute both water and air in the area, hurting a community which relies heavily on outdoor recreation and eco-tourism. 
    • David Bernhardt lobbied for Rosemont Copper Company on a “Natural Resources” topic. He led all lobbying efforts made by Brownstein on behalf of Rosemont Copper Company in 2015, 2014, 2013, 2012, and 2011
    • Mr. Bernhardt was paid privately for “legal services” by Rosemont Copper Company for an unknown time frame.
    • While Mr. Bernhardt worked at Brownstein, Rosemont Copper Company paid Brownstein $1,760,000. Through the following payments $240,000 (2016), $240,000 (2015), $290,000 (2014), $270,000 (2013), $360,000 (2012), and $360,000 (2011).
  2. American West Potash LLC (2012-2014)
    • Mr. Bernhardt was paid privately for “legal services” by American West Potash between 2012 and 2014.

Water Companies

  1. Cadiz, Inc.
    • David Bernhardt represents Cadiz, Inc., a water company seeking access to the aquifer under the arid Mojave Desert which scientists predict will have dramatic consequences for the Mojave National Preserve.
    • While Mr. Bernhardt worked at Brownstein, Cadiz, Inc. paid Brownstein $2,750,000. Through the following payments $110,000 (2017), $440,000 (2016), $440,000 (2015), $440,000 (2014), $440,000 (2013), $400,000 (2012), $440,000 (2011), and $40,000 (2010). 
  2. Westlands Water District (2011-2016)
    • Mr. Bernhardt lobbied for Westlands Water District on the topic of “Natural Resources”. He led all lobbying efforts made by Brownstein on behalf of Westlands Water District in 2016, 2015, 2014, 2013, 2012 and 2011.
    • While Mr. Bernhardt worked at Brownstein, Westlands Water District paid Brownstein $1,505,000. Through the following payments $70,000 (2017), $310,000 (2016), $245,000 (2015), $240,000 (2014), $240,000 (2013), $240,000 (2012), and $160,000 (2011).
    • According to the Washington Post, "On Aug. 17, [2018], two weeks after Bernhardt’s recusal over Westlands Water District expired, Zinke tasked him with drafting a new plan for managing federal and state water supplies there."
  3. Garrison Diversion Irrigation District
    • Mr. Bernhardt was paid privately for “legal services” by Garrison Diversion Irrigation District for an unknown time frame.
  4. Otay Water District (2011)
    • Mr. Bernhardt lobbied for Otay Water District on the topic of “Natural Resources” in 2011.
    • While Mr. Bernhardt worked at Brownstein, Otay Water District paid Brownstein $120,000. Through the following payments $40,000 (2013), $40,000 (2012), and $40,000 (2011).

-- Learn more about Mr. Bernhardt’s personal lobbying from his two Financial Disclosures: Senate Disclosure and DOI Financial Disclosure
-- Learn more about Brownstein Hyatt Farber Schreck, LLC lobbying and their specific clients. 
-- Learn more about context of Mr. Bernhardt’s Financial Disclosures.

bernhardt vs. the Endangered Species Act

CESAR - the Center for Environmental Science Accuracy and Reliability

Bernhardt was a board member of the Center for Environmental Science Accuracy and Reliability (CESAR) from 2012 to 2017. CESAR uses the Endangered Species Act to pervert conservation legislation for company profit.

In 2014, CESAR sued multiple employees of the Department of the Interior, claiming they failed to comply with the Endangered Species Act, with regards to salmon, sturgeon and smelt in the Tuolumne and San Joaquin rivers, with respect to the Hetch-Hetchy Project. The Hetch-Hetchy Project diverts water from the Tuolumne River dam to a pipeline that sends water to San Francisco, which provides 85% of the city’s water.

The law suit was filed because federal orders for “severe cutbacks” in the amount of water provided to the Central Valley to protect the fish habitat, but was not enforced with the Hetch-Hetchy Project.

One might think that environmentalists would support such legislation, such as Kieran Suckling, executive director of the Center for Biological Diversity. Yet, when asked her opinion on the lawsuit she stated,

“the goal is not to provide more water for fish, the goal is to provide more water for Westlands.” Westlands Water District is a water company that operates and competes in the same region as the Hetch-Hetchy project. Mr. Bernhardt led the lobbying effort for Westlands Water District at Brownstein between 2011 and 2016 and Westlands Water District paid Brownstein 1.5 million dollars over that period for his services. Most significantly, the head of CESAR serves as the general council for Westlands Water District and Mr. Bernstein is a member of the board of directors. This is one such example of CESAR using the Endangered Species Act to pervert conservation legislation for a company’s profit.

BUSH DOI VS THE ESA

In 2007, as DOI solicitor, David Bernhardt issued a formal "opinion memo" that limited the scope of the Endangered Species Act (ESA) by directing agencies to apply protections to the current habitat range of endangered species, rather than the historic habitats. As reported by E&E Publishing (March 19, 2007), "By dealing with the issue in a memo, rather than a new regulation, Interior avoided public notice and comments." The effort was contested by 38 scientists, who asked the DOI Secretary Dirk Kempthorne to withdraw the legal guidance (E&E, May 2, 2007). Following the election of Barack Obama in 2008, 129 scientists wrote a letter to the Ken Salazar DOI formally requesting that Bernhardt's memo be rescinded in order to resume the government's protection of historic habitats for endangered species. (E&E Greenwire, Dec. 10, 2009 & Dec. 24, 2009).

In 2008, still serving as DOI solicitor, Mr. Bernhardt wrote a memo instructing federal agencies to ignore climate change as a factor in Endangered Species Acts decisions. The memo came as Greenpeace, the Natural Resources Defense Council (NRDC) and the Center for Biological Diversity sued DOI for refusing to classify polar bears as an endangered species. As described by Jeff Ruch of Public Employees for Environmental Responsibility (PEER), Bernhardt and the Bush DOI were pre-emptively fending off ESA-grounded lawsuits against new coal power plants using "circular legalisms to justify continued inaction" on climate change. (E&E PM, October 15, 2008).

BERNHARDT IN THE GEORGE W. BUSH INTERIOR DEPARTMENT:

Undermining Science at DOI

In 2001, Mr. Bernhardt rewrote official DOI scientific findings on the impacts of Arctic drilling on caribou published by the U.S. Fish and Wildlife Service. Bernhardt used the edited report as proof a lack of ecological impacts from Arctic drilling in Congressional testimony he prepared for the DOI Secretary at the time, Gale Norton.

Later in 2001, he led the effort for oil drilling in the Arctic National Wildlife Refuge. During Senate testimony, he ignored the DOI’s U.S. Fish and Wildlife Service’s warnings of the ecological impacts and instead quoted the opinions of a BP funded report.

In 2007, when then Deputy Assistant Secretary Julie MacDonald edited a scientific report by U.S. Fish and Wildlife Service, David Bernhardt stood by her when she was forced to resign for violating the law and making “the science fit the policy.” 

obstructing requests from u.s. Senators

As reported by E&E Publishing (Feb. 13, 2004), David Bernhardt was responsible for unusual bureaucratic stonewalling a U.S. Senator request by treating it like a public Freedom of Information Act request:

[Senators Jeff Bingaman (D-NM) and Republican Pete Domenici (R-NM)] complained about the handling of Bingaman's Sept. 15, 2003, request for information regarding the National Football League's week-long festival on the National Mall that featured several large commercial advertisements. Interior handled the request as a standard Freedom of Information Act query, replying with a dismissive letter three months later, Bingaman said.

[...] Interior responded on Dec. 17, 2003, via a letter signed by David Bernhardt, director of Interior's Office of Congressional and Legislative Affairs, detailing the department's handling of Bingaman's request. Interior sent a CD-ROM disc containing 425 pages of records, but used FOIA to exempt or redact documents of internal deliberations that Bingaman was seeking.

"Several of the documents you requested fall into the deliberative process exemption" of FOIA, Bernhardt wrote. "Therefore we have redacted certain information consisting of drafts, internal comments in electronic messages and handwritten notes containing analysis and commentary regarding issues before the agency. They reflect the personal opinions, recommendations and advice of staff members in the course of reaching a final agency decision.

During the confirmation process for Bernhardt as the DOI Solicitor General, in the U.S. Senate Energy and Natural Resources committee, New Mexico Senator Jeff Bingaman said that confirming Bernhardt was "not in keeping with the level of qualifications most people would expect for the Interior solicitor" (E&E Publishing, March 16, 2006). Bernhardt's final confirmation before the full Senate was delayed for months by an anonymous Senator, later revealed as Oregon Senate Democrat Ron Wyden.