ShareTrails | Defend Your Ground Podcast Special Guest: Former Interior Secretary Bernhardt

Ben Burr:
Hey everyone. Welcome to the Defend Your Ground podcast. This is Ben, the executive director of Blue Ribbon Coalition. I’m here with Simone Griffin. And today we have invited a special guest to be on the podcast and we have with former Secretary of the Interior, David Bernhardt. He has worked for years in the Department of the interior. He worked for, during, almost the full time of the Bush administration. He was a deputy secretary during President Trump’s Administration. And he was also the secretary of the interior for a part of the Trump Administration. And so we know he has been involved in many of the actions that Blue Ribbon Coalition and our members care about. He’s been the decision maker on a lot of these actions. And we invited him to be a guest on the show because he’s recently released a new book called You Report to Me about his time serving in these positions. And I’ve read it, Simone’s read it. And the book… is already highly recommended by us. If you care about the things we’re fighting for, you need to understand what Mr. Bernhardt is talking about in this book. So we thought the best way to do that was to invite him to get the conversation started and let you know what this is about. And we would like to introduce Secretary Bernhardt. Why don’t you just give everybody the elevator pitch of what is this book, what’s it about, and why should they read it?

David Bernhardt:
Well, thank you very much for inviting me to be on today. I really, really appreciate it. The book, which is entitled You Report to Me begins with a vignette about my experience in working with president Donald Trump and being told that I was going to lead the department of the interior. And after I was told that I asked him, who do I report to? And he said, you report to me. And I was like, well, I know that’s what the Constitution says, but like, who do I really report to? And he was like, no, you report to me. And that was a surprise to me because I had served for eight years in the George W. Bush administration. And during that administration, at times, it could take months literally for the secretary to have a chance to meet with the president on something that was important to the Secretary of the Interior. So I was skeptical that that would be the way the President would actually manage my relationship with him. But more importantly, as you read the book, You Report to Me, what the book is really highlighting is that everyone in government, the local official, the policymaker as the Secretary, the members of Congress and the judiciary, as well as the president, all report to the American people. And that fundamentally, everyone involved in that process that has taken the oath of office to faithfully carry out the law has an obligation to remember that they work for the American people. And the best way that is identified in the executive branch is by carefully following the law and also recognizing the policies as appropriate for any president that’s elected. And so that’s the underlying theme of the book. And it really speaks to the need of all of us to recognize the respective roles in government and carry those out so we can deliver better results to the American people on the ground.

Ben Burr:
Thanks for sharing that. As I read it, the part of the book that stuck out the most to me is an additional main theme is what I call the growth of the administrative state.

David Bernhardt:
Absolutely.

Ben Burr:
I worked in Congress. I worked for Senator Lee, and he has similar vignettes with his interactions with President Trump. He really was a very accessible president.

David Bernhardt:
Very much so

Ben Burr:
And everyone who really worked with him and under him in those capacities, that is a unifying thing I hear from the people that had those relationships. And so that struck a chord when I read that. But this growth of the administrative state, I was in the Senate for seven years thinking I was in the center of the action. This is where the laws get made. This is where we’re going to solve the country’s biggest challenges. Two and three years in, I learned that’s not where I was. I actually was the one who helped Senator Lee get the Senate furniture department to build a custom case, a bookcase for the federal register. And it was three bookcases that were four feet tall that you can stack the federal register in every year. And the door in the front opens and closes kind of like a guillotine. And we did one year during the Obama administration and it filled all three of these with 12 feet of regulations, and then on top of it we had a pile of bills that was like this big that was everything that was the congressional output for the year. And it just sunk into me like that is where government is happening for better or for worse. And today we had the Supreme Court release a decision on the Sackett case, which I’m assuming you’ve been following closely. You would have been following this closely given your background. The decision seems to be favorable for the Sacketts, unfavorable for expansive interpretations of administrative power. The Sackett case has stuck out to me because you don’t want to be the Sacketts. Once you become the target of the administrative state, it’ll consume your life. I bet they’ve lived and breathed and they’ve been consumed by this. And that’s what happens when you have an out of control administrative state. And they’ve been fortunate enough to see their injuries remedied by the Supreme Court of the United States. Most Americans don’t quite fall in the camp where they’re being treated like the Sackett. How do you get everybody who seems to be not quite the target of administrative action to understand the concerns you’re raising in your book?

David Bernhardt:
Well, first off, you’re right about the recent decision by the Supreme Court. This is a very significant decision. And it follows on the heels of a couple of decisions that have indicated pretty strongly that we have a court that is going to continue to hew more closely to the law and you’re absolutely right that if you look at the difference between the amount of paper generated by the Federal Register or versus the laws that are enacted you have a very different perspective of where laws are and regulations and and what binds us is is is actually written but the court here the court here took a profound step of saying hey words in statutes are going to actually mean what they mean and and that was significant. What you’re saying about the Sacketts personally is completely true. This is a matter that has gone on for well over a decade. I mean think about that, your personal life affected by regulators that really had no jurisdiction for a decade. And Often, and this is really why I wrote the book, often administrators of the law stretch the law and impose it on individuals. And many individuals simply don’t have the ability to push back, don’t have the energy to push back. And at the end of the day, in order for us to be a nation of laws, and to have faith in our process, everybody in the system has to follow the rules. And the rules are this, Congress writes a law, the agencies are supposed to carry that law out to the extent that there’s ambiguity. And this is really where you’re talking about the courts have tended to defer to agencies. And the central theme of my book is that deference has led to more and more aggressive action by agencies. And because the agencies feel like they can continue to push the envelope. And so what you see in this court decision is a pulling back of a certain extent on the agency’s interpretation in this case. They basically said, look, the court says we gave you lots of chances to get this right and you haven’t and we’re going to be really clear here. And that’s a good thing because it begins to send a message to the agencies that they need to be more thoughtful in their application of the law. And one component of my book is that the other branches of government, the Congress and the public policy makers, the senior managers of these agencies need to be more on top of things. And I think if they did that together, folks would be a little more careful about what they do on a daily basis. And ultimately, not everyone is in the position to fight back like the Sakets did. And no one should have to do that. The reality is that the government is supposed to work for the people, not the other way around. And here we had an expansion of the assertions of authority. And ultimately, the courts have now stepped in and said, hey, here’s where the rules are going to be. And I’m very hopeful from this decision. I mean, the more often that the courts begin to stand up this way, the more likely it is that the executive branch will become a little more careful in stretching law in a way that treats it like a rubber band. And so I’m optimistic about this case. I’ve been optimistic about a few of the other decisions of the court. There’s also cases coming up in this next term. that will look at questions of other regulatory overreaches. And so that’s very exciting. But at the end of the day, what it really is about is ensuring that the American people have a fair shot at having a government that is accountable to them. You will, you know, the people, your members elect the legislative branch, they elect the president, they do not elect the bureaucracy. And the bureaucracy needs to be held accountable by those other elected entities and by the courts in order for us to have representative government.

Simone:
What can the people, just the average Joe, what can we do to help keep the bureaucracy in check? A lot of people I don’t think understand and I love that your book highlights that in Washington DC, most people think. I don’t think it’s a good idea to do that. I think it’s a good idea to do that. everybody in Washington DC is an elected official and they don’t realize the administrative state and how expansive it is and how many people are not elected and held accountable. So what can people do to help hold the bureaucracy accountable?

David Bernhardt:
Well, first off, a couple things. You’re absolutely right. When you think about a presidential election, you think, boy, that changes things. And it does in terms of the will of the people voting. But when that happens, about 3,500 people change jobs in the executive branch. And about 2.2 million civil servants remain in place. So it is, in one hand, a small change in numbers. But it embodies the policy direction the president is given by the people. But here’s what people can do. And I do think that this is really, really critically important, particularly in areas of the West where federal responsibility makes up so much of the administration of federal lands. should participate in the processes that exist to them. You know, people should make sure that their voices are heard on issues that are important. And that takes time and energy and effort or a commitment to be part of organizations like yours. And that is an important component. The other thing people should do is, you know, if they’re dealing with the government. They should take the time to sit down and look at what the rules and the regulations say. And that takes some effort, but I’ll tell you what, it’s very fair to ask agency officials to follow their own rules and speak out when they don’t. Sometimes they don’t. And finally, and this is far and away the most important issue, is explain to your elected want them to pay attention to the issues of the way the administration is managing. Because it’s very easy for elected officials to want to focus on new stuff, new programs, new this, new that, versus the administration of government itself. I believe that being involved is important, speaking out is important, and most importantly voting is important. Voting is critical. You know, at the end of the day, picking who you’re choosing, who you want to represent you is the most important function any of us can do. And so many of us don’t that it’s shocking. And that that is at the end of the day, the government, the people get the government that they elect, whether they participate or not. And I think that’s the most important factor that I tell people is, exercise your right and be consistent in telling people what you want. Because it’s only by saying we want better, whether that’s better access, more access, whether it’s more opportunity, whether it’s more, whatever it is, absent you carrying your voice forward. You have no chance of being heard.

Ben Burr:
Yeah, I want to add to that. A lot of times people think, well, will it really make a difference if I do that? And I don’t know if you’ve been paying attention to our water situation out west and we all watched as our reservoirs like Lake Mead and Lake Powell. I mean, you were over the Bureau of reclamation as the secretary of interior.

David Bernhardt:
Right.

Ben Burr:
SThings didn’t get quite as dire when you were there, but,

David Bernhardt:
Right.

Ben Burr:
one of our fastest growing movements is this, we call it Fill Lake Powell. I call it Utah’s second biggest church is the people that go to Lake Powell and recreate.

David Bernhardt:
Actually, I grew up going to Lake Powell. I would have been at Lake Powell from Friday and over Memorial Day. I can assure you, my parents would have had me at Lake Powell growing up.

Ben Burr:
Well, you’re missing out on a historic year. Our fill Lake Powell project worked. We ended up…

David Bernhardt:
It really worked, right?

Ben Burr:
Right, but what it really did do is we did get thousands of people commenting on the Bureau of Reclamation’s drought contingency plan.

David Bernhardt:
Right.

Ben Burr:
Before the, I looked at the previous time they went through NEPA on that process and they had one public comment from the public, the rest was from like water conservancy districts

David Bernhardt:
I bet

Ben Burr:
and water managers.

David Bernhardt:
absolutely true. I bet that’s true.

Ben Burr:
Now they have thousands coming in from the recreation users of Lake Powell, when you were the Secretary of Interior, would something like that have caught your attention? Like how would that have changed your approach to an issue that you thought was getting managed kind of through the back channels of the agency and now there’s this big public discussion going on?

David Bernhardt:
I can tell you, I get asked that. I’ve gotten asked that. I’ve been asked that question a lot. And I have seen firsthand how a single comment has completely changed the trajectory of a decision. When I was the solicitor of the Department of the Interior, that’s the chief legal officer in the Bush administration, George W. Bush administration. Secretary of the Interior, Kempthorne, was making a decision. And he had struggled with the decision for months. And ultimately, he brought me a single comment that he had seen. And he came to me and he said, David, this comment is so important to me. I think I’ve made my decision. I am not. I’m not going to. You know, this is the pathway we’re going to go down. And so my view of that is, you know, comments have all sorts of benefits. You know, they highlight the importance of an issue. They show community support. But at the end of the day, they also absolutely can and do have a fundamental impact on the decision maker and so I’m a believer that, that it’s, because I’ve experienced it, that that comment effort does matter. And you know, the point of a comment is to help the decision maker be more informed and make a more informed decision. And that doesn’t necessarily mean they’ll agree with your comment. But it may simply change the trajectory of the decision. It may stand or refine the thinking of decision. But I’ve absolutely seen it turn somebody around 180 degrees. So I say it’s critically important. And it is worth the effort.

Ben Burr:
So that’s in connection with that. We did ask our users if there’s any questions that they would have for you. We did a survey through our email list last week and it’s related to what you just said, but we did have a user ask, is there anything that can be done to make or entities like the BLM and the Forest Service more responsive to input from the public? Because sometimes it feels like you make a comment and their legal boxes are being checked off. and they’re still gonna do what they want to do with that proposed action. And so what are the things the public can do when they’re taking the time to make these comments to make sure they’re having the maximum amount of impact?

Simone:
Sorry, I was just gonna add on to that question. People think that decision has already been made. So how can we give people confidence that the decision hasn’t already been made?

David Bernhardt:
Sometimes it can be that the policy of a president is to take a particular action, and that’s really an important consideration for the particular action. And that can be viewed as a little disheartening. And it’s important to recognize that… elections also have consequences as to the policy direction somebody wants to go. But my own view is this, that number one, every substantive comment has to be dealt with in the process. So if you raise a new or important issue, that’s something that has to be addressed. But more importantly, and I think this is a key, is you have an opportunity, a person or an entity has an opportunity to comment. They also have an opportunity to ask their local elected officials to comment. They have an opportunity to seek other federal, your elected representatives’ attention on a matter. And to the extent that there’s a consensus in a community that something is really, really unacceptable. It’s unlikely, generally, that those issues are not going to be resolved at a higher level if they’re raised. Now, they may not always be resolved in the way that a particular advocate wants, but in general, where there’s a constituency of, you know, significance on an issue at a local or a state level, it’s generally the case that that comment and concern is going to have to be resolved up somewhere up the chain. And so I think that’s important to know, you know, and it’s important for people to have confidence that, you know, the decisions are going to be reviewed and thought about. They may not always work out to your benefit, but that’s also why we have a system of elections.

Ben Burr:
Yeah, that’s good. I’m glad you bring up this, bringing in the other branches of government, the separation of power, like getting everybody engaged. That’s something we’re trying to do. You’ve probably heard about this new rule that’s been proposed by the Bureau of Land Management. They’ve looked into FLPMA and discovered that hidden there all along was this authority to go create a conservation lease program. And we have big problems with this at Blue Ribbon Coalition. We’ve been… raising alarm bells around it to our users. We’ve seen through our tools, over a thousand comments have been submitted on this regulation so far. We have been copying our members of Congress on those, something we come and do with these advocacy tools. And since then, we’ve seen the Senate has introduced a bill, basically a paragraph saying that the secretary should withdraw this rule. The House of Representatives has introduced, so we are bringing in the members of Congress. We have a group letter that we’re getting entities to sign like other organizations like ours. We have a lot of county commissioners that are very interested in our take on this bill. And so I feel like we’re doing the things you just recommended on that BLM rule. And I’m just kind of curious, like what else could Blue Ribbon Coalition do? And a rule like that comes out that we aren’t really thrilled about to make sure that… All our boxes are checked that we’ve done everything we can to make sure that the administration thinks long and hard before saying this was a nice effort, but maybe we should rethink this. I think if they like the idea they’re proposing, they should introduce it as a bill in Congress. This is one of those ideas that’s just too far off the beaten path of what FLPMA allows for. If the American people need this conservation lease program, Congress should… vet it and introduce it. They’re the better branch of government to create a program like that. But what else can we do?

David Bernhardt:
Well, this is a very significant issue. This is a new proposed rule. It’s certainly a new idea from the administration. And, you know, I haven’t studied it as closely as you have, but my concern is that it’s, it may be one of the most significant public land decisions and initiatives that we’ve seen in a very, very long time with very extensive impacts and consequences to public access, to opportunity, to the future of Western communities. And I am thrilled to hear that you have taken efforts to begin to think about it and comment on it. And my view of this particular proposal is that every community in the Western United States that is dependent on the activities that take place on federal lands, whether those activities are purely recreational or traditional uses of public lands, every single community. has a really big stake in how this particular rulemaking is ultimately resolved and finalized. And to the extent that people remember, the property clause of the Constitution does give Congress the primary authority to deal with these issues. They created FLPMA, obviously, as you mentioned, and whether this fits in or not, it really is such an important issue that everyone in the West, I think, really needs to think long and hard about whether this is a good or bad, or maybe a medium or not so good idea, and comment on it. really express it to their legislators. But I think the people that have the greatest stake in it beyond individuals is really local community leaders. Because where I grew up in western Colorado, the decisions that were made by a federal land manager could fundamentally affect the hopes and dreams of that local community. You know, the decision to not allow an activity could mean that that community missed an opportunity for jobs that would be there for the next 30, 40, 50 years. And, you know, it obviously could work the converse as well. And here, making a decision to begin a practice like this, to have it defined the way it is, these are very big and consequential decisions to the future of communities. And I think that the people that are elected in those communities really have an obligation to think through what might this mean for their future, the future of the entire community, and think long and hard about what they ought to be saying about it to, obviously to the Bureau of Land Management and to the Department of the Interior, but also to their governor and and federal officials because it is a very, very significant initiative wherever you ultimately come down on it in terms of good, bad, or indifferent.

Ben Burr:
Yeah. And I would add to that because I’m trying to, one problem we always had in Congress was how do I get a Senator from South Carolina or from Oklahoma or from somewhere else to care about this? And I think what we’ve seen at least since the COVID-19 pandemic and still ongoing today is that our supply chains actually are fragile, our globalized markets are not as robust as we might’ve thought they were. And if you think that a BLM rule that has the potential to devastate the cattle ranching industry in the Western United States. If you don’t think that’s going to have a ripple effect through other parts of the economy and to agricultural production centers elsewhere, you should think twice about it. And I kind of felt like during COVID, I thought we’re finally in a moment where everybody’s the Sacketts now. It wasn’t the Congress that engineered the COVID response. It was the administrative state that did it all. And when you fully mobilized the administrative state, it was capable of shutting down a 30 trillion dollar economy overnight. And there were businesses that all of a sudden couldn’t open their door the next morning under threat of enforcement from what would have been an agent of the administrative state, not of the legislative branch. Do you feel like the American people are waking up to the potential risks of this? I mean, we’ve definitely built

David Bernhardt:
Absolutely.

Ben Burr:
this administrative state because we see benefits from it.

David Bernhardt:
No, I, well, first off, I think, you know, the reason I wrote the book and highlighted these issues is because I believe, I believe that the most important thing we can have in our society is that people are confident that when they go and vote an election, that that has meaning and has consequence. And if it doesn’t, my great fear. is that they simply will not have confidence in the government in any way, shape or form. And that leads to great division and great conflict. That’s my personal view. And I don’t want that to ever happen in our country. And so for me, it’s critical that people recognize that if they don’t like the way things are today, there’s always… an opportunity to create a better tomorrow through the voting box. COVID demonstrated, demonstrated to millions and millions of Americans, just how erroneous our, our bureaucracies and in some instances, our elected officials could absolutely be, and they should have the right to get rid of them. when they are headed in the wrong direction. There’s very few people that could credibly say what happened with our school system during the COVID experience was good for anyone today. I mean, if you go back and look, whether it’s looking at test scores, looking at impacts to families, looking at what the real risk of COVID was to youth. I mean, that was a horrible decision, a series of horrible decisions made by people, some of whom were elected, some of whom were appointed at all levels of government. And the reality is that governing takes work. And this is where things get complicated. And when I say work, it takes a willingness to learn the facts yourself. It takes a willingness to understand what the law is that you’re tasked with carrying it out, a willingness to learn the processes that go into it. When COVID hit with the Department of the Interior, I was the secretary and one of the first things I was really pressured to do was close all of the national parks like permanently, okay, until COVID went away. And I, the Park Service had a series of public health officers. They’ve been within the park service for 98 years and they’re incredible. And I had two of them come up and they worked with me the entire time COVID was an issue at Interior. And when I first brought them in, I sat them down and I said as follows, look, I need to learn every single thing I can about COVID. I don’t know anything about it. I need to learn everything I can from you, and I need you to educate me. But, but I will make every decision as to what we’re gonna do in Interior. I will make the decisions. I will be held accountable for the decisions. I will take the heat for the decisions, but I’m gonna make the decisions. And why did I do that? Because I wanted to make sure that if we were going to begin to close services down, that when we did so, we also had a metric or a tool for how we would open them back up. And ultimately, when I began to do the research, there were a couple of things that I wanted to know. For example, I wanted to know what was the communicability outside? What was transmission like outside? And why did I care about that? A lot of interior managed land is obviously outdoors. And… I wanted to know, frankly, what we could do with our national parks and public lands in a way that would be responsible. And I had proposals like the following. I had a very large park in California suggest to me that their plan for COVID, they had over 900 people living in the park as employees. Their plan for COVID would be that they would get 900 video cameras and they would go out every day and take videos of the park. They would close the park and they would show videos of the park on web so people could experience the park virtually. I couldn’t believe it. What we

Ben Burr:
I hope they have their film permits.

Simone:
Ha

Ben Burr:
No,

Simone:
ha.

Ben Burr:
just kidding.

David Bernhardt:
that’s even better. Only you guys would have made that joke, but that is really funny. What we basically did is said, no, let’s develop a tool that allows us to recognize, okay, you know, if you drive to wherever in Utah, or you drive to the Grand Canyon, I don’t believe anybody ever drove to the Grand Canyon, got to the Grand Canyon, got out in the parking lot. And the first thing they said is, we can’t wait to get into the movie theater. I bet nobody ever said that. But I bet they said, we can’t wait to get to the rim. And so we looked at how we could manage these places. And I took a lot of criticism. Before, you know, we did shut things down, I think through the 15 days for the spread, but then we put them back up and I took a lot of criticism. But you know what? During COVID 200 over 200 million people still went to the national parks in 2020. That was down from 300 million the year before. But you know, if I had taken the Park Service’s advice, we would have basically provided a lot of videos. And, and that made no sense from a scientific perspective. It made no sense from a public service perspective. It made no sense for America, but you had to be a person that was willing to say to people, look, I’ve studied the facts myself. I’m gonna be held accountable. I’m gonna be criticized, but I’m not doing what is an impulse decision. And I believe a lot of people during that period of time made impulse decisions, but you’re right. More than anything else, we should have realized from COVID the need to have domestic manufacturing, the need to have access to minerals and energy from America, have products from America, and recognize just how fragile the world’s supply of these things can be in a crisis and be ready to react.

Ben Burr:
Yeah, thanks. Well, we appreciate the time. I don’t know if there, I want to be careful of your time. I know you’ve got your busy guy. I think you’re out practicing law now and doing important work for the country. I believe still you’ve written this great book. I think we could probably talk for hours about these things. So we would be glad to have you back anytime. But we want to let you get back to your day. So do you want to have any final things to add to our audience?

David Bernhardt:
First off, thank you so much for having me on. I love these issues, and I love what your organization does. I grew up utilizing public lands with an off-road Yamaha motorcycle to be completely candid that would not pass any emissions test today. And in front of my house, I have 2 jeeps – two door, four wheel drive jeeps. And so I, I’m a big fan of everything that you do, but I would encourage folks to, um, take a look at, uh, this book You Report to Me, it gives you a vignette or an experience of what it’s like to really deal with the bureaucracy and how challenging it was for the Trump administration to work in that environment.

Ben Burr:
Oh, thank you. I didn’t know you were a motorized recreation enthusiast. And so maybe one of these days we’ll have to plan a Chevron Deference awareness ride.

David Bernhardt:
That would be awesome. That would be nice.

Ben Burr:
I always joked with Mike Lee. He introduced a bill to kind of through Congress undermine what the Chevron Deference was and kind of assert that the courts should be more proactive and not deferring to the agency interpretations

David Bernhardt:
Right.

Ben Burr:
of things. And I’m like, well, how do we get people to care about this? And. We didn’t know. I mean, he gave a speech about it at the Heritage Foundation and and they loved it. But I’m

David Bernhardt:
Yeah

Ben Burr:
like, this isn’t enough. I need to. And so we joked about doing a 5K where we do Chevron Deference Awareness, the 5K.

David Bernhardt:
There you go,

Ben Burr:
And,

David Bernhardt:
that’s right, you should do a Jeep ride,

Ben Burr:
If you want to come on a Chevron Deference Jeep ride, we’ll get that all planned.

David Bernhardt:
I might take you on, maybe we could get Chevron to support it.

Ben Burr:
Yeah, and so if you want to, we’ll organize that if you’ll be the guest of honor and of

David Bernhardt:
I’ll take you up on that. We’ll talk about that later.

Ben Burr:
All right. Well, good, good meeting you. And thank you for the book. We have both enjoyed it and we’ll make sure as many BRC members as we can get to read it, will read it. Cause we need them with us in these fights. I believe in what you’re doing. The American people, we have a great government and how it’s designed has the potential to be even greater. The administrative state has kind of grown beyond its bounds and there’s probably a half dozen ways we need to check it back into what it needs to be and you’ve identified all of those in the book. And so if everybody understood what you were writing about, my job would be a whole lot easier in getting people to advocate for a better version of what we’ve got. So thank you for what you’ve done and we’ll hopefully be in touch soon in future discussions.

David Bernhardt:
Thanks a lot.

Simone:
Yes, thank you.