Top Interior official facing ethics questions after meetings with casino lobbyists

During confirmation process, David Bernhardt was described as a "walking conflict of interest."

Deputy Interior Secretary David Bernhardt (center) listens as President Trump speaks during a cabinet meeting at the White House on November 1, 2017. CREDIT: Jabin Botsford/The Washington Post via Getty Images
Deputy Interior Secretary David Bernhardt (center) listens as President Trump speaks during a cabinet meeting at the White House on November 1, 2017. CREDIT: Jabin Botsford/The Washington Post via Getty Images

Interior Deputy Secretary David Bernhardt, a quintessential revolving-door figure in Washington, met with lobbyists in late 2017 who were making the rounds on behalf of their client, a major casino and resort company that is hoping the department’s Bureau of Indian Affairs rules in its favor.

The client, MGM Resorts International, opposes efforts by two Native American tribes to build a casino in Connecticut. The casino and resort giant worries the Connecticut casino would draw business away from its own proposed casino and resort across the border in Springfield, Massachusetts.

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The lobbyists with whom Bernhardt met in late 2017 — Sylvester Lukis and Dan McFaul — hail from Ballard Partners. Bernhardt’s former lobbying firm, Brownstein Hyatt Farber & Schreck, also counts MGM Resorts as one of its clients, HuffPost reported late Wednesday.

Also at the meeting, according to HuffPost, was Brian Ballard, the founder of Ballard Partners who raised millions of dollars for President Trump’s campaign and was hired by MGM in March 2017 to lobby the Department of the Interior on Indian Gaming & Expansion Policy and other issues. The MGM lobbyists denied they talked with Bernhardt about their casino and resort project in Massachusetts.

On a separate occasion in 2017, Bernhardt met with former Interior Secretary Gale Norton, who also lobbies for MGM. Norton was hired specifically to work on MGM’s opposition to the casino proposed by the two Connecticut tribes.

Under an ethics agreement he signed upon taking over the No. 2 position at the Department of the Interior, Bernhardt is prohibited from participating in matters involving his former employer.

A government affairs lobbyist for watchdog group Public Citizen told HuffPost that Bernhardt’s meetings, especially the one with Norton, “gives every appearance that Bernhardt is personally involved in negotiating public policies that directly impact MGM and his former lobby firm.”

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The Interior Department had not responded to a request for comment from ThinkProgress at the time this article was published.

At the Interior Department, Bernhardt has mostly been able to operate under the radar, given the controversies attached to his boss. Interior Secretary Ryan Zinke is under multiple investigations, including taking taxpayer-funded flights on private planes and ordering the transfer of about 50 senior federal employees to new positions inside the department.

But the New England casino battle is raising concerns about potential ethics violations by Bernhardt. MGM, together with its lobbyists, is trying to prevent the Mashantucket and Mohegan Sun tribes from building a $300 million gaming facility in East Windsor, Connecticut, about 13 miles south of MGM’s proposed $960 million casino resort in Massachusetts.

Even though the Connecticut casino would not be built on tribal land, the Interior Department’s Bureau of Indian Affairs still has authority to determine whether the casino would violate Connecticut’s gaming agreements with Native American communities. The tribes are seeking a definitive response from the Bureau of Indian Affairs on whether the proposed casino would violate the agreements.

That’s why the MGM lobbyists are asking for meetings at the Interior Department, hoping they can convince the Bureau of Indian Affairs to conclude the Connecticut casino does not meet Native American gaming rules in the state.

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To the MGM lobbyists, Bernhardt is a friendly figure. When the Senate confirmed Bernhardt to be second-in-command at the Interior Department, environmental advocates referred to him as a “walking conflict of interest” for his long stints of work as an industry lobbyist, most recently as head of the natural resources department at Brownstein Hyatt, followed by periods in government.

In his previous position in government, Bernhardt worked as solicitor at the Interior Department, the agency’s third-ranking position, under President George W. Bush.

Bernhardt also has a close relationship with Norton, the controversial former Interior secretary who made a name for herself working under James Watt, President Reagan’s first Interior secretary.

Norton, a lawyer, began her career litigating on behalf of the cattle industry and mining and oil companies at Mountain States Legal Foundation, where Watt served as president. She followed Watt to the Interior Department, where she advocated policies such as opening the Arctic National Wildlife Refuge to oil drilling.

Steven Griles, Norton’s top aide at Interior during the Bush administration, resigned after an investigation by the department’s Office of Inspector General concluded he had met with former clients in the fossil fuel industry in violation of an agreement he signed upon getting confirmed to deputy Interior secretary.

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In the casino battle, Norton and her fellow MGM lobbyists appear to making headway. In September 2017, the Interior Department didn’t issue a decision on the Connecticut casino with the required 45 days, according to HuffPost.

HuffPost reported that the deadline for making a decision expired two weeks after Interior Secretary Ryan Zinke hosted Ballard and other lobbyists on his office balcony in Washington, according to a Politico report.

The two tribes filed a lawsuit in federal court to try to force the Interior Department to make a decision on their application for a casino.

According to HuffPost, Larry Jensen, a lawyer at Brownstein Hyatt and former Bernhardt colleague on the firm’s energy, environment and natural resources team, also met and held several phone calls in December 2017 and January 2018 with Bernhardt’s colleague, James Cason, the associate deputy secretary. Cason, Jensen, Bernhardt, and Norton all worked in the Interior Department during the Bush administration.

At his confirmation hearing, Sen. Maria Cantwell (D-WA) noted that Bernhardt has so many conflicts of interest, or the appearance of conflicts, that she saw two potential outcomes of his time in Trump’s Interior Department.

“One, he will simply be unable to perform his duties as deputy secretary. That’s because he will need to be recused from such a broad swath of the department’s issues,” Cantwell said during the confirmation hearing. “Or two, he will manage the Interior Department despite his clear conflicts of interest, and he will end up participating in matters involving his former firm or his former clients.”

The meetings with lobbyists who represent a client for whom Bernhardt’s former lobbying firm worked could mean that he is performing his duties in a fashion similar to the second outcome highlighted by Cantwell.