His name is David Longly Bernhardt, and he’s worked as the top lobbyist for California’s Westlands Water District, the largest agricultural entity of its kind in the nation. He’s sued the Interior Department and helped write legislation on behalf of his client. Largely because of his services, Westlands has paid Bernhardt and the law firm where he works $1.27 million since 2011.
On Friday, the Trump administration announced it was nominating Bernhardt to serve as deputy to Interior Secretary Ryan Zinke. If confirmed by the Senate, Bernhardt will be in a position to influence decisions that could benefit his former client.
Under a executive order signed by President Donald Trump, appointees such as Bernhardt are required to recuse themselves from matters involving former clients, although in the past, waivers have been granted for people in his situation. Zinke on Friday praised the nomination, saying in a statement that Bernhardt’s extensive experience “is exactly what is needed to help streamline government and make the Interior and our public lands work for the American economy.”
Bernhardt’s nomination, however, is already drawing fire from critics, who note that Trump, as a candidate, promised to “drain the swamp” of lobbyists’ influence over the White House and Congress. As president, Trump has placed lobbyists in key positions on his transition team and in his administration, and has adopted ethics rules looser than those of the Obama administration for appointees.
“Bernhardt is a walking conflict of interest,” said U.S. Rep. Jared Huffman, a California Democrat who’s a fierce critic of Westlands. “He should absolutely have to recuse himself from anything having to do with Westlands Water District. That is the most obvious of ethical fault lines here.”
Interior officials said Friday that Bernhardt would have to comply with all federal ethics statutes as well as the administration’s earlier ethics pledge. An Interior spokeswoman said he had undergone “an extensive preclearance examination with the department’s senior ethics officials and the Office of Government Ethics.”
Over the last five years, Bernhardt has sued the Interior Department and lobbied the Justice Department and Congress to finalize a settlement that could be worth more than $375 million to Westlands. The settlement, approved by the Obama administration, involves a decades-old dispute over the toxic irrigation drainage that flows from Westlands’ 600,000 acres. Federal courts have ruled that the federal government is responsible for constructing drainage, but for a variety of reasons – costs and potential environmental damage – the Interior Department has not done so.
Under legislation that Westlands is seeking, the federal government would relieve the water district of its roughly $375 million debt to the federal government and provide it with new water contracts. In exchange, Westlands would retire one-sixth of its acreage and free the federal government of its obligation to build a drainage system that could cost an estimated $3.5 billion.
Westlands officials say the settlement is fair to both farmers and taxpayers. Environmentalists and some in Congress have labeled it a “giveaway.” They complain that the deal includes no clear provisions on how Westlands would manage its tainted wastewater and no clear assurances the federal government will intervene if problems occur.
Bernhardt stepped down as Westlands’ lobbyist in November, when he joined the Trump transition. Yet before that, he was involved with the drainage settlement and other legislation benefiting his former client. Documents obtained by environmental advocate Patricia Schifferle show he helped write amendments to a $558 million water bill, approved by Congress in December, that steers more water to Westlands and other water districts and eases construction of new dams.
Schifferle and others say that, as the number two official in Interior, Bernhardt could give Westlands preferential treatment in how Interior implements the 2016 water legislation and a future settlement on drainage. He will also be in a position to influence permitting for the $17.1 billion twin tunnels project in California, which could ease deliveries of water to the Westlands and Southern California water districts.
When President Barack Obama was in office, lobbyists were barred from taking jobs at federal agencies they had previously lobbied. When Trump took office, his administration removed such restrictions, with the proviso that former lobbyists had to sign an recusal oath. That oath says they cannot “participate in any particular matter of which I lobbied . . . or participate in the specific issue area in which that particular matter falls.”
Bernhardt’s appointment echoes a similar one from the administration of George W. Bush. His Interior Department hired Jason Peltier, director of the Central Valley Project Users Association, to serve as deputy assistant secretary for water and science. Upon joining Interior in 2001, Peltier recused himself from some decisions involving the water districts he previously represented, including Westlands. Then his superiors granted him an exemption, he said, because of his expertise in California water issues. “I was given dispensation early on because of my knowledge of these issues,” Peltier told The New York Times in 2006.
Made up of roughly 700 farms west of Fresno, Westlands grows about $1 billion in crops yearly, and it includes some of the most lucrative farming operations in the United States.
While Westlands does well during big water years, the U.S. Bureau of Reclamation has reduced its water deliveries during drier years, in favor of environmental requirements and water districts with senior water rights. Westlands has fought those reductions for decades, and last year’s water legislation , crafted at the end by California Democratic Sen. Dianne Feinstein and House Majority Leader Kevin McCarthy, R-Calif., was a partial victory.
Over the last five years, Westlands has spent more than $3 million lobbying the federal government, with more than a third of that going to Bernhardt’s employer, the Denver law firm of Brownstein Hyatt Farber Schreck. After Obama came to office, the water district also hired numerous Bush-era Interior officials, including Peltier, Susan Ramos, Craig Manson and Julie McDonald.
Prior to joining the Brownstein firm, Bernhardt worked at Interior, rising to the department’s number three job, as solicitor, from 2006 to 2008.
Colleagues who worked with Bernhardt – even those critical of the Trump administration – praise Bernhardt’s knowledge of resource law and his skills as a manager. One of those is Eric Nagle, who in February sent out an email blast urging his fellow Interior lawyers to “stand your ground” and resist indefensible edicts from the new administration.
“I think he (Bernhardt) would be a good pick,” said Nagle, who retired last month from the Interior Department’s Pacific Northwest region. “He’s a principled guy and good manager. He understands the need to follow the law.”
Others, however, say Bernhardt has so many conflicts that many of his decisions will be second-guessed. Not only has he represented agricultural interests and industries that hope to influence Interior decisions, his law firm – Brownstein – represents hundreds of such clients. As McClatchy reported in February, Brownstein also has a financial stake in a California water venture, Cadiz, that was recently successful in overturning a unfavorable permit ruling from the Bureau of Land Management, an Interior agency.
Matt Lee-Ashley, an Interior deputy chief of staff during the Obama administration, said Bernhardt’s appointment was the inevitable result of Trump’s looser restrictions on lobbyist hiring. If Bernhardt is confirmed by the Senate, “It will be difficult for ethnics officials to unpack what kind of conflicts there are, and what kind of recusals are going to be in place,” said Ashley, who works at the Center for American Progress, a liberal think tank.
Bernhardt, who couldn’t be reached for comment, is hardly the only lobbyist hired by the Trump administration to serve in a department he previously lobbied.
Geoff Burr, formerly a chief lobbyist for a construction industry trade group, now has a job at the Department of Labor, where he reportedly is in line to be chief of staff. As a lobbyist, Burr opposed wage standards for federal construction contracts and standards to limit workers’ exposure to silica dust, according to a report in ProPublica.
Huffman, who sits on the House Natural Resources Committee, said he didn’t expect that Bernhardt would completely recuse himself from matters involving Westlands and other former clients.
“This is the poster child of the swamp that people thought would be drained by this president,” said Huffman. “Instead it is being restocked by more swamp people.”
Stuart Leavenworth: @sleavenworth