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INSPECTOR GENERAL REPORT ON GALE NORTON, SHELL SCANDAL – PART 2

PART 2 OF REPORT, PAGES 8 TO 15 INCLUSIVE OF 23 PAGES IN TOTAL

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The BLM senior advisor said he found the answer, and approximately 1 month after the first meeting, he provided the information to the Secretary at a second briefing. He recalled telling Norton the energy ratio was approximately one-to-one but that oil shale technology was in its infancy stage and evolving. He said that based upon this second briefing, Norton concluded that if industry believed it could produce oil shale, then DOI should allow companies to do it. He said Norton subsequently gave BLM authorization to proceed with the RDD program.

On April 14, 2005, the BLM senior advisor emailed a number of BLM employees concerning a planned conference call on oil shale. He wrote, “This teleconference is prompted by a direct request from the Secretary of the Interior.”

On April 22, 2005, the BLM senior advisor provided a copy of the final draft of the proposed Federal Register notice soliciting RDD applications to several BLM employees by email. He wrote, “Please, let me hear from you by Monday, 4/25/05. The Secretary wants this out as quickly as possible.”

4. Meeting: June 23, 2005, at Shell’s Mahogany Site in Colorado

Attendees

Shell: CEO, UR; Senior Washington Counsel; Manager of Regulatory Affairs, UR
DOI: Secretary Norton, David Bernhardt

On May 5, 2005, a Shell employee sent an email to the CEO, UR, and others at Shell in which he wrote, “I have attached and pasted the text below of a draft invitation letter … to Secretary Norton asking her to visit the Mahogany facilities, [Shell’s private oil shale test site]. Secretary Norton’s office asked me to draft such a letter for their files since the Secretary very much wants to take a tour. They wanted some detail in the letter to help justify the trip.”

One day later, a Vice President responded to a Shell employee in an email in which he wrote, “As we discussed last evening, I am meeting later today with David Barnhardt [sic] in the Secretary’s office to discuss other matters relating to SURE … I will discuss with him the need for this letter.”

On June 23, 2005, Norton did participate in a tour of Shell’s oil shale Mahogany Research Project, located on land Shell owns in Colorado. According to Norton’s itinerary for that day, she and Bernhardt met at approximately 11 a.m. in Rifle, CO, with several Shell representatives and then drove 90 minutes to the Mahogany site. According to the itinerary, Norton and Bernhardt were to spend another 90 minutes at Mahogany, where they planned a tour and a briefing on Shell’s oil shale technology.

The CEO, UR, described this event in an email to a Shell executive 6 days later. He wrote:

We had the pleasure of Secretary Norton’s company for 3 hours last Thursday, June 23

… Mr. Bernhardt assured us that the Secretary’s keen interest in the SURE process was the only reason that we were getting that amount of time with her. We had the Secretary’s full attention. She asked probing questions and took notes.

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The CEO, UR, also wrote that, during the drive to the Mahogany site, he provided the Secretary with an overview of Shell’s oil shale technology, and he described their “commercial ambitions.”

He identified six items on Shell’s “ask” list that he apparently discussed with the Secretary, including Shell’s desire for immediate access to their nominated RDD acreage and their interest in seeing DOI support legislation concerning oil shale acreage limitations. He stated that the Secretary told him that DOI would work with Shell to ensure that the RDD program would not delay Shell’s work. In closing, he wrote:

Secretary Norton was very much intrigued with the process. She very much wants to see us succeed and definitely sees us as a unique serious player … All in all a good visit. We have much work in continuing to cultivate Interior as an ally. Having said that, our work to date appears to have been remarkably successful.

On June 28, 2005, a Shell attorney emailed several Shell employees and wrote, “Sec. Norton and Deputy Chief of Staff David Bernhardt had a very productive briefing and tour of our oil shale project led by the CEO, UR, on June 23.”

5. Meeting: October 6, 2005, with ExxonMobil

Attendees
ExxonMobil: Vice President of the Americas, Washington Representative
DOI: Secretary Norton, David Bernhardt, Rebecca Watson, Scott Stewart

A former Vice President of the Americas for ExxonMobil was interviewed and stated he met with Secretary Norton in the fall of 2005 about the RDD leases. According to him, this meeting concerned oil shale and a related issue concerning nacholite, a mineral co-mingled with oil shale in Colorado.

We also interviewed a former Washington Representative, ExxonMobil Corporation, who said that she was asked to schedule a meeting with Norton for the ExxonMobil Vice President of the Americas in the fall of 2005. The primary purpose of this meeting was to discuss ExxonMobil’s request for DOI acreage for oil shale exploration and research. The meeting with Norton was scheduled for early October 2005.

The Washington Representative, ExxonMobil, said she attended a “pre-meeting” on October 4, 2005, with Scott Stewart and David Bernhardt. The pre-meeting was held because it was “very important” for Stewart and DOI to understand the nature of ExxonMobil’s request to meet with Norton. She said there was a concern by DOI about the appearance of ExxonMobil meeting with Norton while their request for an oil shale lease was being considered. DOI wanted to be “very, very sure” that ExxonMobil did not intend to discuss the status of their lease application during this meeting or attempt to influence the decisions being made about the application.

Agent’s Note: We did not identify any evidence to suggest that Stewart, Bernhardt, or others raised similar “appearance” concerns relative to Norton’s visit with Shell employees and her tour of Shell’s Mahogany oil shale research site 4 months earlier.

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At the conclusion of this pre-meeting, ExxonMobil employees decided to discuss several issues with Norton, including DOI’s multi-mineral development requirements concerning all energy development, and not just oil shale; ExxonMobil’s energy outlook through 2030; and the effect of Hurricanes Katrina and Rita. The Washington Representative, ExxonMobil, acknowledged that the meeting scheduling form she submitted to DOI did indicate that the sole purpose of the meeting was to discuss the multi-mineral leasing issue. After the pre-meeting with Stewart and Bernhardt, the agenda “developed into” broader subject areas. She described the topics other than the multi-mineral leasing issue as being “introductory, chit-chat kind of topics” and “breaking the ice kind of stuff.” She said in any type of meeting between high-level officials there is always introductory conversation.

The meeting with Secretary Norton was held as scheduled approximately 1 week after the October 4, 2005 pre-meeting. The Washington Representative, ExxonMobil, recalled the meeting lasted approximately 20 minutes. They discussed everything that had previously been agreed upon in the pre-meeting.

On October 13, 2005, the Washington Representative, ExxonMobil, wrote an email saying that during the meeting, they discussed “a broad range of access topics,” including issues involving the impact that recent hurricanes had on ExxonMobil’s operations, as well as a pipeline in Alaska. She also wrote:

While we expected a broad discussion of our nacholite and Federal Register issue, Bernhardt asked some specific questions that brought the discussion into a greater level of detail … Norton and Watson thanked us for the meeting, which they said was very useful.

We identified two internal DOI emails that appear to concern this meeting with ExxonMobil.

First, on September 29, 2005, a Scheduling Assistant, Office of Scheduling and Advance, Office of the Secretary, emailed a Special Executive Assistant on Norton’s staff. The Scheduling Assistant asked if Norton had met with Shell regarding oil shale since May of 2005. In the second email, sent on October 4, 2005, the Scheduling Assistant emailed the Special Executive Assistant regarding the upcoming meeting with ExxonMobil. The Scheduling Assistant wrote, “[P]lease change [the] title of [the] meeting from ‘Exxon – Oil Shale’ to ‘Exxon – General Energy.’ This is a change needed b/c of ethics.”

We contacted the former Scheduling Assistant regarding these emails, but she declined to be interviewed.

We asked Shayla Simmons, who served as DOI’s Designated Agency Ethics Official between 2001 and 2006, about this email. Simmons said, “I can say, I think pretty definitively, if I had concerns about a meeting I wouldn’t say that the way to solve it is to change the name of the meeting.”

6. Testimony: October 27, 2005 Congressional Hearing

In an October 19, 2005 email, BLM’s Legislative Affairs and Correspondence Group advised

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Ted Murphy and others at BLM that Secretary Norton would be testifying before the Senate Energy and Natural Resources Committee on energy production on public lands on October 27, 2005. The Legislative Affairs and Correspondence Group requested briefing papers on oil shale be provided in preparation for this testimony.

According to the schedule of the U.S. Senate Committee on Energy and Natural Resources, Secretary Norton did testify at a full committee hearing concerning hurricane recovery efforts and energy policy on October 27, 2005. A review of Norton’s prepared testimony disclosed that it contained information on oil shale. Specifically, it noted that BLM had received 20 RDD lease applications, and that the agency intended to award leases in 2006. The testimony also discussed the potential significance of oil shale related to the Nation’s energy picture.

7. Meeting: November 15, 2005, with DOI Staff

Attendees
DOI: Secretary Norton, David Bernhardt, Kathleen Clarke, Johnnie Burton, Selma Sierra, Bob Anderson, Ted Murphy, BLM senior advisor

In a November 14, 2005 email regarding a meeting with Secretary Norton that was to be held the following day, Chad Calvert, Deputy Assistant Secretary for Land and Minerals Management, DOI, advised Tom Lonnie and others at BLM that the Secretary “is interested to get an overview of the project nominations received and the criteria that BLM will use to review them. She also would like timelines to find out if there is any place to squeeze it down.”

On November 16, 2005, Ted Murphy authored an email to the BLM senior advisor and others at BLM about this meeting with the Secretary. Murphy wrote:

• Secretary very interested and will be engaged in the Oil Shale Leasing and Development process [sic]

• Need to ensure that the review process that we follow is solid. The financial capability of the applicant is primary concern, evaluating and rating to sustain any potential appeal or questioning.

• Sec [sic] uncomfortable with not approving an application if EA does not support a [Finding of No Significant Impact]. The timing and forthcoming regulations and leasing program were discussed, as well as discretion to deny or select were also discussed. Specifically, “did the FRN calling for nominations indicate that we would deny if the proposed process required and [sic] EIS?”
• Are there any endangered species in the areas proposed?
• How far reaching is the Programmatic EIS, in years?
• How do we plan on involving the local governments to assure that we consider their
concerns and they are addressed. [sic]
• How do we plan to lease oil shale? Royalty rate, diligence, etc.
• Has any thought been given to a National Strategic Plan for Leasing oil shale?
• Any thoughts on pulling companies together to discuss development technology and
concepts?
• Need to begin Public Relations campaign, focus on HR.

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• Community involvement during programmatic. [sic]
• Who will be the end users of the products produced, do we need to do outreach?
• Air quality and Water Quality issues, be well prepared.
• Is an EPA coordinator needed for programmatic and Leasing [sic] program?

Murphy also wrote that the Secretary thanked the participants for the briefing and requested no immediate feedback.

We interviewed Murphy and Bob Anderson about this meeting. Murphy recalled that he and the senior advisor attended this meeting, and that they briefed Norton on the applications they felt should move forward in the RDD process. Concerning this selection process, Murphy stated, “Ultimately those application decisions were made by the Secretary. Bottom line was the Secretary was advised.” He explained that Norton did not make a decision or give any approvals of the applications that would move forward at the time of this briefing. He said that instead, she later made the decision to approve BLM’s recommendations. Murphy also said he was “sure” that during this briefing, Norton was told the number of applications that had been submitted, including the fact that Shell submitted three applications.

When we interviewed Anderson, he recalled that Secretary Norton was “very high” on the oil shale program and was very attentive and asked many questions about it during this meeting.

Anderson recalled that the meeting, which lasted about an hour, was held in Norton’s conference room, and a number of persons were in attendance, perhaps including Waidmann and Bernhardt.

8. Briefing: November 18, 2005

When we interviewed Abraham Haspel, we showed him a document dated November 18, 2005, titled “Briefing for the Secretary.” The subject of the briefing was “Oil Shale – Background, Status and Timelines.” After reviewing it, Haspel explained that Norton received a briefing book every evening that contained informational materials regarding meetings and other events she was scheduled to attend the following day. The book contained written briefings on each event or relevant topics and background on the people she would be meeting. Given its format, Haspel thought this particular document looked like the type that would be part of that briefing book.

Haspel said it was “likely” that Norton saw this document.

9. Briefing: December 13, 2005

On Friday, December 16, 2005, Jim Hughes of BLM sent an email to Chad Calvert with the subject, “Oil Shale,” saying, “I gave the Secretary and Brian [Waidmann] packages Tuesday evening … I am trying to get a decision on the R&D projects. It will be [an Assistant Secretary for Land and Minerals Management] final signature so I have made it clear with our BLM staff we are consulting with the Secretary only. Both David [Bernhardt] and you had indicated she wants to see this stuff …”

When we interviewed Murphy and asked about the packages, he stated that based on the timing of this email, the “packages” would “have to be” the list of finalists. Murphy said he thought the BLM senior advisor prepared these packages. According to Murphy, word eventually made its

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way back to Murphy, through Tom Lonnie of BLM, that Norton had approved the finalists.

10. Meeting: December 22, 2005, with DOI Staff
Attendees

DOI: Secretary Norton, David Bernhardt, Jim Hughes, BLM senior advisor, perhaps others

A review of Secretary Norton’s schedule disclosed that on December 22, 2005, Norton met with Burton, Bernhardt, Hughes, and the BLM senior advisor concerning oil shale.

On December 23, 2005, Mitchell Leverette, BLM’s Deputy Chief of the Solid Minerals Branch, wrote an email to Murphy and others titled, “Secretary’s Oil Shale briefing.” Leverette wrote:

The Oil Shale briefing for the Secretary went well … The secretary had many questions. It seems as though they are concentrating on the amount of area/acreage [that] would be disturbed if the eight leases are granted. Additionally, there appeared to be some confusion between what is going on with the commercial leasing program versus the RD&D leasing initiative. I think we straightened that out for her…

The Secretary did state that she would like to meet with BLM before any scoping meetings occur. She would like to weigh in on what we should be covering in our scoping. We made her aware of the timeframe for the first scoping meetings, so there will probably have to be a meeting with her in the first week in January.

Agent’s Note: “Scoping” refers to the process wherein BLM obtains local opinions on impacts of resource development. The collected opinions are incorporated into the Programmatic
Environmental Impact Statement (PEIS).

A former BLM Team Lead for Oil Shale stated he attended a briefing given to Secretary Norton in approximately December 2005. The purpose of the briefing was to describe the current status of the RDD leases and provide other relevant information for Secretary Norton, he said. During the briefing, the list of RDD applicants was discussed, he said, as was the fact that it had been narrowed to eight finalists, including Shell, which had three applications in the final group. He said Secretary Norton did not provide any feedback or other comments to the group and simply thanked them for the presentation.

An SOL attorney said he had some recollection of this meeting, during which the decision was made that eight applications would be selected to move forward in the process. He stated that the Secretary’s office was “consulted and they blessed the decision to make awards.”

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11. Meeting: February 27, 2006, with BLM Staff in Phoenix
Attendees

DOI: Secretary Norton, Sally Wisely, Gene Terland, Kathleen Clarke

We interviewed Sally Wisely of BLM, who stated that she talked with Norton about the RDD process while in Phoenix for an unrelated meeting. Wisely did not recall the date of the meeting but thought it was in early 2006. She said that after the meeting, BLM Director Clarke approached her and Gene Terland, another BLM employee, and said Norton wanted to talk to them about oil shale. She said they proceeded to a room where she, Terland, and Clarke met with Norton. Wisely said Clarke encouraged her and Terland to share their views and concerns about oil shale with Norton.

Wisely said she and Terland informed Norton about a number of issues they believed needed to be addressed about oil shale. As an example, Wisely said she told the Secretary she believed BLM needed to determine how oil shale fit with oil and gas since all three resources could be found in the same location. Norton, Wisely said, was very engaged in the conversation, asked some very good questions, and was clearly listening to them. She said the discussion lasted approximately 30 minutes to 1 hour and went well because Norton was very interested in the topic.

12. Briefing: March 1, 2006

On March 1, 2006, Secretary Norton attended a briefing with Energy Secretary Samuel Bodman.

A review of her prepared remarks for that meeting indicate that Norton told Secretary Bodman that DOI had an active RDD program, that eight proposals had been selected to move forward in the process, and that DOI was developing a commercial oil shale leasing program.

Decisions on Oil Shale

Norton appears to have also made several decisions concerning the RDD leasing process.

On September 7, 2004, an Interdisciplinary Review Team member emailed the BLM senior advisor, Oil Shale, and asked him if the Federal Register notice soliciting comments on the potential RDD program had gone out. In response, the BLM senior advisor wrote, “…the Office of the Secretary is holding the Notice on the belief that the Notice needs more work, because the rental fee of $1.00/per acre is too low and gives the appearance of ‘a give away’… So we are waiting [for] an official directive from the department leadership.”

In a subsequent email, the former Team Lead for Oil Shale of BLM asked the BLM senior advisor, “…where does it say that rental for the RDD has been waived…” In response, the senior advisor wrote, “It was a decision made by the Secretary … The decision was made at a briefing … Tom [Lonnie] … Bernhardt, and other immediate staff to the Secretary were in attendance.”

When the BLM senior advisor was interviewed, he said that during one of the two briefings he attended with the Secretary on oil shale, he advised her that BLM could waive the rental fee for 5

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years of the 10-year RDD leases and also waive royalty requirements for the RDD leases. He said that Norton asked if the waivers were consistent with the law, and the SOL attorney who provided legal advice to BLM during the RDD process, told her they were. According to the BLM senior advisor, Norton then decided that BLM should proceed with the rental fee waivers.

Determination from the U.S. Office of Government Ethics (OGE)

We referred our January 29, 2009 interim report to OGE. In a March 10, 2009 response memorandum to the OIG, OGE wrote, “It is apparent from the report that Secretary Norton participated personally and substantially in the BLM Oil Shale Leasing program (18 U.S.C. § 207(a)(1)),” and that “[t]he program was a particular matter involving particular parties at the time she did so.” Pertinent portions of the interim report have been incorporated into this report.

II. Ethics Briefings and Statements to DOI Ethics Officials

First Ethics Contact: Shayla Simmons

A review of Norton’s DOI ethics file disclosed that on March 13, 2006, about 2 weeks before Norton left the Department, Shayla Simmons, who served as DOI’s Designated Agency Ethics Official between 2001 and 2006, issued a memorandum to Norton titled “Post Employment Advice.” In this memorandum, Simmons discussed various ethics requirements affecting Norton,
including 18 U.S.C. § 207(a)(1), “Lifetime Restriction.”

1

Simmons wrote:

This restriction prohibits a former employee from serving as another person’s representative to the Government on a case, contractual matter, or other similar application or proceeding in which he or she participated personally and substantially while a Government employee.

Simmons also discussed 18 U.S.C. § 207(a)(2), the “Two-year restriction that applies to former managers and supervisors. Simmons wrote:

A two-year restriction prohibits former employees from serving as another person’s representative before the Government on a case, contractual matter, or other similar application or proceeding which was under his or her management authority in the last year of government service. We discussed that as Secretary, all particular matters being worked on in the Department and its bureaus would fall into this category.

1Subsection (a)(1) of 207 provides as follows:

(1) Permanent restrictions on representation on particular matters.— Any person who is an officer or employee (including any special Government employee) of the executive branch of the United States (including any independent agency of the United States), or of the District of Columbia, and who, after the termination of his or her service or employment with the United States or the District of Columbia, knowingly makes, with the intent to influence, any communication to or appearance before any officer or employee of any department, agency, court, or court-martial of the United States or the District of Columbia, on behalf of any other person (except the United States or the District of Columbia) in connection with a particular matter—
(A) in which the United States or the District of Columbia is a party or has a direct and substantial interest, (B) in which the person participated personally and substantially as such officer or employee, and (C) which involved a specific party or specific parties at the time of such participation, shall be punished as provided in section 216 of this title.

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