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For the second time, the Committee is considering William
Myers' nomination to the Ninth Circuit. The Senate declined
to confirm him in the last Congress, and we should do so again.
In fact, the Senate confirmed 204 of President Bush's nominees
in the last two Congresses. We rejected only 10, because their
records, like Mr. Myers' record, were extreme, and failed
to show a commitment to upholding basic protections important
to the American people.
Democrats stand ready to work with the President in confirming
qualified nominees who will uphold our rights and liberties,
but the Administration will have to meet us half way. Renominating
persons who have been rejected before does not signal a willingness
to do so.
Last year, we voted against Mr. Myers because of his record
of hostility to environmental protections, and his failure
to respect the rights of Native Americans during his years
as Solicitor of Interior. If anything, the reasons to oppose
his confirmation to a life-time position on a federal court
are even stronger now, because of new revelations about his
record.
It's especially important for a nominee to the Ninth Circuit
to be able to impartially review cases affecting issues on
environmental law and the rights of Native Americans. The
states in that Circuit are home to many Native American tribes
and contain vast public lands. The court often has the final
word on legal issues affecting the environment and the rights
of Native Americans. Mr. Myers' record raises major doubts
on these issues.
During the two years he served as chief lawyer for the Department
of the Interior, he often failed in his duty to ensure that
his decisions properly took into account the Department's
unique relationship with Native Americans and to consult with
Native American tribes on matters affecting them.
No case better illustrates the problem than his role in the
Glamis Imperial Gold Mine project. In 2001, as Solicitor of
Interior, Mr. Myers issued a formal opinion that cleared the
way for a foreign company to build a 1,650 acre open-pit gold
mine in the heart of the California Desert Conservation Area
- one of America's most culturally and ecologically sensitive
areas.
The mine project threatened to devastate a local tribe's
ability to practice its religion and culture. The Advisory
Council on Historic Preservation concluded that allowing the
mine to be built would mean that the tribe's "ability
to practice their sacred traditions as a living part of their
community life and development would be lost."
As a result, the Department concluded that the mine would
violate the Federal Land Policy and Management Act, which
prohibits mining that causes "unnecessary or undue degradation"
of federal lands. But Mr. Myers then issued an opinion reinterpreting
the words of the statute in a way that would have allowed
the mine to go forward.
A federal court has held that Mr. Myers' opinion "misconstrued
the clear mandate" of the Act, and ignored "well-established
canons of statutory construction."
Mr. Myers' obvious mis-reading of the law is very troubling,
and so is the way he reached his decision. He had an obligation
to engage in government-to-government consultation with the
tribe before acting against their interests, but he failed
to meet with them or with other Colorado River tribes affected
by the mine before making his decision. Instead, he met with
representatives of the foreign mining company and, in their
words, let them "tell their story." But the tribes
were not given the same chance for their story to be heard.
His action is analogous to a judge hearing oral argument
in a case only from the side he agrees with. In fact, it's
much worse, because the side that didn't get a hearing was
the side Mr. Myers had a duty to consult.
Mr. Myers says he knew enough about Native American views
to make his decision without speaking to the tribes, because
he'd read their court filings and a letter from the attorney
for the Quechan tribe explaining its concerns. But that letter
stated only that the mine threatened areas sacred to the tribe
and asked for a meeting with Mr. Myers, which the tribe never
got. Six months later, when Mr. Myers finally got around to
replying to the letter, he told the tribe he'd already issued
his decision permitting the mine.
It's misleading for Mr. Myers to use the tribe's letter asking
for a meeting as a way to justify his decision not to meet
with tribal leaders. His other reasons for not meeting with
the tribe are equally incredible.
In answers to written questions, he used the 9/11 terrorist
attack as a reason for not meeting. But two days after September
11th, he met face-to-face with representatives of the mine.
The Quechan tribe has expressed dismay that Mr. Myers would
use this national tragedy to excuse his failure to consult
with them, when it never prevented him from meeting with the
mining company. Despite many attempts to do so, Mr. Myers
refuses to acknowledge that his trust obligation and duty
of consultation toward the tribes required that he give them,
at the very least, the same hearing he provided the private
company.
He also stated in answers to written questions that he would
have met with the tribes if they had come to Washington. But
he never contacted the tribes to tell them that.
Unfortunately, this is not the only example of Mr. Myers'
insensitivity to Native American rights. He also actively
supported the efforts of Oil-Dri, the world's largest cat
litter manufacturer, to build a kitty litter processing facility
on federal land near the ancestral burial grounds of the Reno-Sparks
Indian Colony in Nevada. In that case, the Reno-Sparks Indian
Colony had asked Mr. Myers, in his role as a trustee for Native
American lands, to support the tribe's efforts to oppose permits
for the facility. Instead, Mr. Myers urged the Justice Department
to file an amicus brief opposing the tribe's interests. Mr.
Myers cannot recall a single other instance in which he felt
so strongly that he asked the Justice Department to serve
as amicus in a case, yet he did so to assist a private company
with interests opposed to the tribe.
In that case, the government argued that federal law prevented
a Nevada county from denying a permit for the kitty litter
plant on private lands, an argument later rejected by a Nevada
court.
As a result of this record, Mr. Myers's nomination has generated
wide-spread opposition from Native American tribes. That opposition
has only grown stronger since we last considered his nomination.
He is opposed by the National Congress of American Indians,
the oldest and largest national organization of Native American
and Alaska Native governments, which has never before opposed
a nomination to the federal courts. He's opposed by the Affiliated
Tribes of Northwest Indians, which also has never before opposed
a judicial nominee, and by many, many other Native American
tribes and organizations.
The concerns about Mr. Myers' record on Native American issues
alone should be enough to reject to his nomination. But his
environmental record is just as troubling.
As Solicitor of Interior, his decisions on these issues often
went hand-in-hand with the interests of his former clients
in the mining and cattle industries. He issued a legal opinion
undermining an environmental group's effort to purchase and
retire grazing permits on ecologically sensitive public land.
After Mr. Myers' first hearing, we learned that as Solicitor,
he supported giving millions of dollars' worth of public land
to a private company, although readily available public documents
showed that the company had no credible claim to the land.
He admits that he never sought an estimate of the land's value
before seeking to transfer the land to private interests.
In addition, a new report by the Inspector General of the
Interior Department raises serious questions about Mr. Myers's
failure to supervise an Associate Solicitor, whom he personally
authorized to negotiate a settlement with a politically connected
Wyoming rancher who repeatedly violated grazing regulations
over many years. That settlement has been widely criticized,
including by the Administrative Law Judge in the case, as
giving the rancher a sweetheart deal that excused past grazing
violations, granted new permits, and made it harder to cite
this rancher than other ranchers for identical conduct. The
Administrative Law Judge called the behavior by his office
in the case "shocking," "disturbing" and
"disappointing."
Mr. Myers admits that he was briefed several times about
the agreement, but he apparently never asked any question
about its substance, and failed to supervise the negotiations.
He also admits that he never took any disciplinary action
against the Associate Solicitor, Bob Comer, who negotiated
the deal, even after problems with the settlement became public.
At the very least, the incident raises serious questions about
his judgment in selecting and supervising the Mr. Comer in
this important task.
Mr. Myers has also criticized environmental protections.
In a speech to the Cattlemen's Association, he stated that
"[t]he biggest disaster now facing ranchers is not nature
. . . but a flood of regulations designed to turn the West
into little more than a theme park." He has made numerous
other intemperate statements disparaging environmental laws,
which he has called "outright, top-down coercion."
Mr. Myers and his supporters dismiss these statements as
off-hand remarks with little or no meaning. Like every other
nominee before this Committee, Mr. Myers says that if confirmed
he will put aside past views and look at the issues. We are
asked to trust that despite the intensity with which he's
advocated these views, and the years he's devoted to opposing
environmental regulations that restrain the mining and cattle
industries, he will still "follow the law" if he's
confirmed to the Ninth Circuit. Repeating that mantra again
and again in the face of his extreme record does not make
it credible that he will do so.
The hallmark of our system of justice is that all who go
to court must know that they will get a fair hearing. Even
those who are poor and have no political power or influence
have a right to judges who respect that right.
Mr. Myers' record does not justify a life-time appointment
to the court of appeals. He's free to keep advocating for
private interests in his law practice, but I doubt we'd even
confirm him now for the Department of Interior, and we certainly
shouldn't confirm him for a federal court.
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