Trump Interior Department transition leader David Longly Bernhardt | Photo: David Hawxhurst/Wilson Center
We've known for some weeks that Donald Trump's transition team includes attorney David Longly Bernhardt, who has been tasked with managing the post-electoral turnover at the U.S. Department of the Interior. Bernhardt will be overseeing the hiring process for Trump's new Interior Secretary, along with a number of important subordinate positions within the Department, including heads of agencies like the National Park Service and the U.S. Fish and Wildlife Service.
While he's hardly a household name, Bernhardt is a serious heavy hitter in the kind of policy issues Interior oversees, and his selection for the Interior transition job surprised no one who knows the field. Bernhardt's expertise, combined with Trump's apparent willingness to delegate the detailed work of hiring staff to carry out his policies, probably means that Bernhardt will effectively be selecting a good handful of candidates to fill top positions at Interior.
And that may well mean a couple of long-term California water issues get very close attention from Trump's new Interior Department.
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Bernhardt is no stranger to internal Interior Department politics. In 2006, he was appointed by former President Bush as Solicitor in the Department, essentially making him Interior's lead attorney. Bernhardt had previously served as Deputy Solicitor, Counsel to the Secretary, and a few other high-level positions within the Department since Bush took office in 2001. This insider career track likely contributed to his unanimous confirmation by the U.S. Senate for the Solicitor position.
As Solicitor, Bernhardt oversaw Interior legal strategy on water rights, public lands and waters energy development, and Endangered Species Act issues. His record there wasn't one you could characterize as uniformly anti-environmental: Bernhardt developed Interior's legal arguments for forbidding the importation of hunters' polar bear trophies after the species was listed as Threatened in 2008.
Bernhardt's private sector work should raise concern among California water activists.
Instead, it is Bernhardt's work outside the Interior Department that will likely raise concern among California water activists. After the inauguration of Barack Obama on January 20, 2008, Bernhardt took a position with the Denver-based law firm Brownstein Hyatt Farber Schreck, where former Bush Interior Secretary Gale Norton was a partner. Before joining the Bush Administration in 2001, Bernhardt had worked for the firm as an associate attorney.
It's at Brownstein Hyatt that Bernhardt did much of his work for the not-particularly-green community. Nationwide, Brownstein Hyatt is likely best known among environmentally concerned people for its work representing the developer of a proposed massive copper mine on sacred land in the Santa Rita Mountains in southeastern Arizona. But it's one of the firm's California clients that has some water activists on edge as they await news of Bernhardt's picks for Interior Staff.
A certain three-inch fish | Photo: USFWS
That client, described on Brownstein Hyatt's web site as the Nation's largest federal water contractor, is the Westlands Water District. Westlands hired Brownstein Hyatt in the early days of the Obama administration. That may have been due entirely to the law firm's reputation as an aggressive advocate. It may also have had something to do with an existing relationship between Bernhardt, who became co-chair of Brownstein Hyatt's Natural Resources Division, and former Interior Deputy Assistant Secretary for Water and Science Jason Peltier, who left Interior in 2007 to become Westlands' Chief Deputy General Manager.
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Throughout the course of the Obama administration, the embattled water district - in the news most recently for running afoul of the Securities Exchange Commission for allegedly hiding financial problems from would-be investors - has been a major political voice in favor of continued unsustainable water exports from the San Francisco Bay Delta. Bernhardt represented Westlands in its legal efforts to force USFWS and the National Marine Fisheries Service not to block water pumping from the Delta, despite abundant evidence that the pumping threatened legally protected species such as the Delta smelt, the winter-run Sacramento River Chinook salmon, and the southern resident orca population.
We've discussed that tortuous legal process at some length here before. In a case that made it to the Ninth Circuit, Bernhardt and his colleagues represented both Westlands and the San Luis & Delta Mendota Water Authority to argue that USFWS violated federal law when it found in 2008 that continued pumping from the Delta would endanger the Delta smelt, and that the federal Bureau of Reclamation, which operates the Central Valley Project and its pumps at the Delta, also broke the law when it accepted USFWS' recommendations by limiting pumping to help the fish.
In the lengthy legal battle to protect smelt and salmon from excessive water diversions, Bernhardt worked the other side.
Westlands and San Luis, and a long list of co-plaintiffs, lost that suit in the Ninth Circuit in 2014. The agricultural irrigation districts continue their lobbying efforts to preserve pumping. They won a rhetorical boost in Fresno on May 27, when then-Presidential aspirant Donald Trump told a fundraising rally:
You have a water problem that is so insane. It is so ridiculous, where they're taking the
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Trump Interior Department transition leader David Longly Bernhardt | Photo: David Hawxhurst/Wilson Center 
