Bernhardt Defends Bird Treaty Rule Amid Verbal Combat in Senate

Interior Secretary David Bernhardt, visibly shaking and combative during a Senate hearing Wednesday, defended the Interior Department’s plan to re-interpret the Migratory Bird Treaty Act so that oil companies would not be fined for killing birds due to oil spills.

Sparring with Sen. Chris Van Hollen (D-Md.), Bernhardt said during a Senate Appropriations subcommittee budget hearing that Interior will proceed with the reinterpretation regardless of objections from Congress. The proposed rule codifies a 2017 Interior solicitor’s opinion that said only intentional killings can be prosecuted under the MBTA.

Van Hollen said the reinterpretation of the MBTA would have made it impossible for BP to have been fined $100 million for bird deaths resulting from the Deepwater Horizon oil spill in the Gulf of Mexico.

“Isn’t that true?” Van Hollen asked Bernhardt.

“I’d have to go back and look at that particular settlement agreement,” Bernhardt said. “I wasn’t here when it was done.”

Van Hollen responded: “So you don’t know the answers to whether or not the changes you’re suggesting ... "

“With respect,” Bernhardt said, cutting Van Hollen off. “Last year you came here, and I told you very clearly I would love to work with you on legislation if you wanted to go that route. I’ve waited a year and not received a single phone call. House members have proposed legislation.”

‘We Are Doing This Regulation’

“Mr. Secretary, I thought we were going to hear from you. I’ve raised this repeatedly,” Van Hollen said, as the two talked over each other.

“Three circuit courts have, have taken a position that mirrors our position, O.K.?” Bernhardt said. “So at the end of the day, we are doing this regulation.”

“Mr. Secretary, I can tell you BP has some really good lawyers,” Van Hollen said as they talked over each other.

“I’m not BP’s lawyer,” Bernhardt said.

“Sometimes you are acting like BP’s lawyer, and that is the problem here because the reality is that BP was fined, and other folks, $100 million under the Migratory Bird Treaty Act, because of the massive loss in bird life,” Van Hollen said.

“You’re eliminating the legal basis that was used for getting this fine,” Van Hollen said, and after an argument said that Interior’s interpretation of the MBTA is on “thin legal ground.”

“I actually think that’s completely wrong,” Bernhardt said.

Anti-Poaching Efforts in Africa

The two men then launched into a conversation about Interior’s anti-poaching efforts in Africa, including the department taking actions against some contractors it worked with who were “engaged in wrongdoing” Van Hollen said. “I salute the department for stopping the funding at that point.”

Van Hollen said there is still funding left over for that program from that last three fiscal years and asked Bernhardt what Interior’s plan is for it.

“Your concept of wrongdoing is really a synonym for rapists and murderers,” Bernhardt said. “That’s where the money went.”

“It was a good thing you stopped it,” Van Hollen said.

Bernhardt said Interior is conducting a review of the program, and that Interior will “have the ability to prevent that from happening, or not. I’m not sending money where I think it’s going go for those types of things.”

“Mr. Secretary, nobody is suggesting that,” Van Hollen said, adding that Bernhardt had arrived at the hearing in a “confrontational mode.”

“If we’re going to ever make progress on these issues, then we need to be able to have a civil conversation,” Van Hollen said.

‘That is Revisionist History’

Sen. Jon Tester (D-Mont.) challenged Bernhardt on the ongoing delegation of the duties of Bureau of Land Management director to William Perry Pendley, a former lawyer who for decades advocated for selling off federal public lands.

Tester questioned the motives of Pendley and his commitment to maintaining federal control over BLM land in the West. Bernhardt touted Pendley’s credentials as a former marine and lawyer and denied that Pendley would try to sell off federal lands, which would need congressional approval.

“Do not deny the fact that he has been front and center on selling our public lands,” Tester said. “That is revisionist history.”

“I have complete faith that Perry understands the policies of our president and of me and he will implement them to a T,” Bernhardt said. “Nothing he’s done since he arrived in August would lead me to believe that there is anything in the contrary to that. It won’t happen.”

The Interior Department, which includes the Bureau of Land Management, the U.S. Fish and Wildlife Service, and other agencies, is targeted for a $2 billion budget cut in the next fiscal year compared to the enacted fiscal 2020 budget. The White House is calling for the department’s budget to be cut 13.6%, from $14.7 billion to $12.7 billion, according to the budget request.

Promoting fossil fuels development, reducing wildfire risk on federal lands, and boosting federal law enforcement there are among Interior’s chief priorities in the budget request.