|
William G. Myers III, an advocate for the grazing and mining
industries with a record of hostility towards environmental
safeguards, has been nominated to a lifetime seat on the U.S.
Court of Appeals for the Ninth Circuit. The Ninth Circuit
encompasses Alaska, Arizona, California, Hawaii, Idaho, Montana,
Nevada, Oregon, and Washington and decides legal disputes
concerning the use and conservation of many of the most spectacular
and sacred lands in America. These states contain hundreds
of millions of acres of public lands, Indian Reservations,
and sacred sites and generate some of the nation's most significant
disputes regarding the environment and Native American rights.
The Ninth Circuit often makes the final decision on critical
mining, grazing, logging, recreation, endangered species,
coastal, wilderness, and other issues affecting the nation's
natural heritage, as well as treaty, statutory, trust relationship,
and other issues affecting American Indian tribal governments,
Native Americans, and Alaska Native groups.
Myers, who most recently served as Solicitor (chief lawyer)
at the Department of the Interior, has very little litigation
experience at either the trial or appellate level. He is not
a scholar or prolific legal writer. Myers' record is so lackluster
that more than one-third of the panel of the American Bar
Association's Standing Committee on the Federal Judiciary,
which reviews the qualifications of federal court nominees,
rejected Myers as "unqualified" for the bench.1
Not one person on the fifteen-member ABA panel considered
Myers "well-qualified" for the position.
Myers' has spent the majority of his legal career promoting
the interests of grazing and mining companies over the protection
of the nation's public lands and natural resources. From 1993-1997,
Myers was Executive Director of the Public Lands Council (PLC),
a trade association that promotes the interests of ranchers
who graze sheep and cattle on public lands, and the Director
of Federal Lands for the National Cattlemen's Beef Association
(NCBA). As an attorney with the Boise law firm of Holland
& Hart from 1997-2001, Myers continued to represent the
interests of public lands industries and served as corporate
counsel to "The CATL Fund." CATL-which stands for
Cattlemen Advocating Through Litigation-is the litigation
arm of the Public Lands Council.2
Myers was Solicitor of the Department of the Interior from
2001 until his resignation in late 2003 to return to Holland
& Hart. With Myers as its chief lawyer, the Interior Department
has advocated disturbing positions in litigation and launched
a seemingly endless string of legal initiatives to repeal
or rollback basic environmental safeguards. In one notable
case, he sided with a kitty litter manufacturer over his Department's
trust obligation to the Reno-Sparks Indian Colony and made
an argument that would significantly undermine the land use
control authority of state and local governments.
Both of his formal legal opinions as Solicitor favored the
grazing and mining industries that he represented as a lobbyist.
In one legal opinion, which was harshly criticized in a recent
federal court decision,3
he overturned important legal precedents to open the way for
a previously rejected and enormously controversial mining
project on sacred Indian lands. In the other, he debilitated
efforts by environmental groups to use the free market to
purchase grazing permits to preserve America's rangelands,
and then revised and "clarified" his own opinion
when he realized it might have unintended adverse consequences
for the ranching industry he previously represented.
Throughout his career, Myers has harshly criticized bedrock
environmental safeguards and belittled environmentalists.
He has also taken extreme legal positions on issues such as
the meaning of the Constitution's Takings and Commerce Clauses
that place him far outside the mainstream of constitutional
thought and threaten health, labor, and environmental protections
across the board. In all respects, Myers appears to be a singularly
poor choice for this critical court.
I. Myers' Intemperate Expressions of Hostility Toward
Environmental Safeguards and Environmentalists.
Bill Myers has made a habit of publicly expressing hostility
towards both environmental safeguards and environmentalists.
Myers compared the federal government's management of the
public lands to King George's "tyrannical" rule
over the American colonies and claimed that public land safeguards
are fueling "a modern-day revolution" in the American
West.4 He has called
environmental laws "outright, topdown coercion"
and has criticized "the fallacious belief that centralized
government can promote environmentalism."5
Myers has stated that the "biggest disaster now facing
ranchers is . . . a flood of regulations designed to turn
the West into little more than a theme park" and he has
opined that the federal government's "endless promulgation
of statutes and regulations harms the very environment it
purports to protect."6
Myers has called the Endangered Species Act and the Clean
Water Act's wetlands protections examples of "regulatory
excesses" that have had the "unintended consequence
of actually harming the environment."7
He has denounced the California Desert Protection Act as "an
example of legislative hubris."8
He called the Clinton Administration's Roadless Area Conservation
Policy, which protected 58 million acres of national forests
from new road building, "a narrow path toward economic
and environmental destruction."9
He has called the reintroduction of wolves into Yellowstone
National Park "unnecessary, unfair, and not affordable"
and, again employing Revolutionary War imagery, has likened
the occasional visit of a Yellowstone wolf onto private property
as akin to the British demand that Colonists "quarter"
their soldiers.10
Myers is even more intemperate in his criticism of environmental
organizations. As Solicitor, he called environmental critics
of his Department's policies the "environmental conflict
industry" and stressed the "importance of . . .
rejecting [their] scheming."11
He previously accused "professional environmentalists"
of having an agenda that has "more to do with selling
memberships and magazines than protecting the environment,"12
called environmental organizations "litigation happy,"13
and sarcastically accused environmentalists of "mountain
biking to the courthouse as never before, bent on stopping
human activity wherever it may promote health, safety, and
welfare."14
Comments like these from Solicitor Myers led his hometown
paper, the Idaho Statesman, to write an editorial called "A
Rancher's Advocate, or the People's Attorney?"15
The Statesman reported that "at a Nevada Cattlemen's
Association meeting … he promised to ease Clinton-era
restrictions on livestock grazing, repeated a Bush administration
pledge to look at rolling back environmental reviews, and
suggested the Endangered Species Act is applied too broadly
to the public lands that fall under his purview."16
The Statesman concluded that "Myers sounds less like
an attorney, and more like an apologist for his old friends
in the cattle industry."17
II. Myers Led an Effort by the Grazing Industry to Advance
a Radical Constitutional Agenda in the Courts.
In late 1993, early in his tenure at the Public Lands Council,
Myers helped establish the CATL Fund (Cattlemen Advocating
Through Litigation), which was designed to make the grazing
industry "a force to be reckoned with in the courts."18
While it is not unusual for an industry group to seek to
represent its interests in court, CATL operated in a decidedly
unusual way. Rather than litigate its own cases, CATL was
set up primarily to be the silent partner of individual property
owners that were challenging environmental regulations in
court. For example, Myers noted that "[o]nly through
outside, collective financial support" were the Dolans
of the Supreme Court case Dolan v. Tigard able to "withstand
seven straight losses until their Fifth Amendment rights were
upheld by the U.S. Supreme Court."19
CATL was "positioned to help families and businesses
like the Dolan's."20
Put another way, over the past decade, a number of the lawsuits
that have been effective in helping resource extraction companies
establish precedent under the Takings Clause and other constitutional
doctrines to undermine environmental protections were silently
bankrolled by cattlemen under the direction of Bill Myers.
Myers explained the need for a group like CATL by reference
to environmentalists who, in his words, "aggressively
pursued their goals before friendly judges who have been willing
to take activist positions and essentially legislate from
the bench."21
CATL's goal was to promote judicial activism from the right.
In Myers' words, "federal agencies with their never-ending
regulations are a great source of interference for cattlemen."22
CATL's mission was to identify cases "that provide a
cost-efficient opportunity to set broad-based precedent in
the courts" and that will "have a tremendous impact
on the future of the [grazing] industry."23
In particular, Myers identified "water allocation, endangered
species, private property rights, and virtually every other
environmental statute" as the specific area of interest
for CATL.24 Myers
warned that "[o]ur opponents are on notice. We are taking
a stand in the third branch of government on behalf of all
citizens who cherish private property and the protections
afforded to us by the constitution."25
A. Myers Advocated Extreme Legal Positions that Would
Thwart a Wide Range of Bedrock Environmental and Other Safeguards.
1. Myers' Absolutist Views on Property Rights.
In perhaps the most important Endangered Species Act case
of the 1990s, Myers argued that habitat regulation under the
Act is a violation of the Takings Clause and is facially unconstitutional.26
In Babbitt v. Sweet Home Chapter of Communities for a Great
Oregon, Myers not only co-authored a brief with Roger Marzulla,
the Chairman of the Board of Defenders of Property Rights,
but as Executive Director of the National Cattlemen's Association,
Myers served as his own client. Myers' status as both client
and counsel makes untenable an assertion that he was merely
representing a client and does not espouse the views expressed
in the brief.
When landowners bring takings claims challenging a specific
application of the ESA to their particular property, these
claims virtually always fail because the ESA is almost never
applied in a way that eliminates all productive use of property.27
In contrast to these individual claims, it is completely different,
and many times more extreme, to argue, as Myers did, that
the government cannot even regulate habitat modifications
under the ESA without compensating landowners.28
Myers argued that "the Constitutional right of a rancher
to put his property to beneficial use is as fundamental as
his right to freedom of speech or freedom from unreasonable
search and seizure."29
According to Myers' brief, "[e]very bit as much as a
regulation that restricts speech, the regulation of private
property here must be held under the strong light of Constitutional
scrutiny."30
The Supreme Court has held that a very limited number of "fundamental"
rights, including freedom of speech, are entitled to the highest
level of protection ("strict scrutiny"). Such rights
can be limited only when there is a compelling governmental
interest to do so, using means that are "narrowly tailored"
to address the government's interest without being overbroad.
When the Court applies strict scrutiny, it almost always rules
against the government.31
Thus, Myers argues for elevating the corporate and individual
right to use property above the vast majority of other rights.
His approach apparently would apply strict scrutiny to federal
and local laws and regulations that limit the use of property,
having the result of invalidating as unconstitutional a vast
range of labor, health, environmental, disability, civil rights,
zoning and other limits on property use. Myers' brief proposes
a radical extension of the Takings Clause that no court has
ever countenanced. Indeed, the Supreme Court upheld the ESA
regulations at issue 6-3, and Myers' argument was so extreme
the not one of the nine justices-including the dissenters-even
discussed the Takings Clause issues he raised.
Myers' expansive views on the Takings Clause are reminiscent
of the ideology of California Justice Janice Rogers Brown.
Sen. Dianne Feinstein (D-Calif.) and other Judiciary Committee
senators cited Brown's view that "the 'free use of property'
is 'as important' as freedom of speech or religion" as
a strong basis for opposing Brown's nomination to the U.S.
Court of Appeals for the District of Columbia.32
Myers' views on this point are essentially identical to those
of Justice Brown.
Myers advanced a similarly absolutist view of property rights
in Public Lands Council v. Babbitt.33
Myers brought this facial challenge on behalf of the Public
Lands Council to then-Interior Secretary Bruce Babbitt's Rangeland
Reform regulations, which gave the Secretary greater management
flexibility over public lands and clarified the government's
claim to structural improvements on the public lands.34
Arguing in a "friend-of-the-court" brief filed in
the Supreme Court on behalf of farm credit institutions, Myers
urged that the Rangeland Reform regulations be struck down.
"With a mere stroke of his pen," he wrote, "the
Secretary has boldly and blithely wrested away from Western
ranchers the very certainty, the definitiveness of range rights,
and the necessary security of preference rights that their
livestock operations require."35
The Supreme Court unanimously rejected Myers' rights-based
argument.
2. Undermining the Clean Water Act and the Commerce
Clause As a Basis for Environmental and Other Protections.
Myers has also advocated a narrow interpretation of Congress'
Commerce Clause authority, which is the basis for a wide range
of core federal environmental, disability, civil rights, and
other protections. Myers filed a "friend-of-the-court"
brief in the Supreme Court on behalf of the American Farm
Bureau Federation, the National Cattlemen's Beef Association,
and the North Dakota Farm Bureau in Solid Waste Agency
of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers.36
This case reviewed a challenge to the federal government's
authority to prevent waste disposal facilities from destroying
waters and wetlands that serve as vital habitat for migratory
birds.
Myers argued that the Constitution's Commerce Clause does
not grant the federal government authority to protect these
vital waters and wetlands and amounts to "unauthorized
federal regulation of land use."37
Of course, a great number of federal environmental and other
safeguards regulate the uses that may be put to land. If regulation
of waste disposal operations does not fall within the scope
of the Commerce Clause, then a wide array of environmental
and other protections would also fall outside Congress' constitutional
authority under the Clause. That is why a large coalition
of civil and human rights organizations filed a brief in SWANCC
arguing that such a narrow interpretation of the Commerce
Clause would "cast serious doubt on the previously well-accepted
foundations of some of the central civil rights laws of our
time."38
3. Myers' Writings on the Nomination of Judge Robert
Bork.
Myers' only two notable published law journal articles contain
his reflections on the hearings on Judge Robert Bork's unsuccessful
nomination to the Supreme Court.39
Myers asserts that "Judge Bork's judicial philosophy
was well within the parameters of acceptable constitutional
theory, worthy of representation on the Supreme Court."40
Leading Republicans, including Senators John Warner (R-Va.)
and Arlen Specter (R-Pa.), disagreed with this conclusion.41
In his book Passion for Truth, Sen. Specter explained his
opposition to Bork. "The Constitution has turned out
to be much more dynamic than [Bork believes]: a living, growing
document, responsive to the needs of the nation," wrote
Specter. "Bork's narrow approach is dangerous for constitutional
government."42
Myers' belief that Judge Bork's legal philosophy is "worthy
of representation on the Supreme Court" should give Senators
Specter, Warner and others sufficient reason to carefully
explore Myers' judicial philosophy.
III. The Interior Department's Assault on the Environmental
Safeguards During Myers' Tenure As Solicitor.
With Bill Myers as Solicitor, Secretary Gale Norton's Interior
Department launched a seemingly endless string of legal initiatives
to repeal or rollback protections for public lands. This enormously
disturbing record is comprehensively chronicled on a website
that is continuously being updated by Natural Resources Defense
Council. This "Bush Record" site documents dozens
and dozens of specific decisions made at Interior during Myers'
tenure that are environmentally destructive.43
Two reports issued recently by Defenders of Wildlife flesh
out this record in the context of arguments and decisions
made by the Interior Department under the Endangered Species
Act (ESA) and the National Environmental Policy Act (NEPA).44
As documented throughout this report, Bill Myers has expressed
a fundamental hostility to the Endangered Species Act. This
hostility carried over into his tenure as Solicitor. For example,
in a speech to the Nevada Cattlemen's Association that was
criticized in the press, Myers suggested the Endangered Species
Act is applied too broadly to the public lands. "We should
not be using the Endangered Species Act … as a land management
tool," he said. "It is not there as a tool for zoning
on federal lands."45
But as the Idaho Statesman opined, "[i]t's naive, and
downright misleading, to suggest that the Endangered Species
Act has no effect on land management."46
As Interior Solicitor, Myers had a key role in shaping the
administration's legal responses in cases involving the Endangered
Species Act. According to the Defenders of Wildlife report,
rather than defending such laws "the agencies responsible
for protecting endangered species under the Bush administration
have frequently taken illegal actions or presented unlawful
arguments that tend to harm endangered species and tend to
benefit the very industries previously represented by the
Bush nominees who now oversee them."47
Defenders of Wildlife reviewed some 120 federal court decisions
resolving ESA issues between January 21, 2001, and October
31, 2003 in which the Bush administration exerted influence
over legal strategy and outcome.48
In 63 percent of these cases, the Bush administration made
what Defenders called ESA-hostile arguments.49
In 89 percent of these ESA-hostile cases, "courts found
that the administration had acted illegally and ruled against
them."50
Many of the most disturbing ESA arguments were made on behalf
of the Interior Department. In one case, the Department was
threatened with contempt of court after violating the court's
order that required substantive protections for endangered
species.51 In another
case involving protections for the Mexican spotted owl, a
federal court strongly chastised the Department's decision
to reduce by 70 percent the acreage proposed as critical habitat
for the threatened species. U.S. District Judge David Bury
called the Department's interpretation of critical habitat
rules "nonsensical" and "impermissible and
contrary to law."52
In a later ruling in the case, the court criticized the Department's
failure to comply with its prior order compelling designation
of critical habitat as "an impermissible, unconstitutional
intrusion on the judicial power to enforce existing law"
and chastised the Department for its "dismissive attitude
toward the Endangered Species Act in general, and designation
of critical habitat in particular."53
The second Defenders of Wildlife report documents a similar
pattern with respect to suits under NEPA. Again Myers' personal
hostility to NEPA -- while serving as Solicitor he said that
"[i]t has gotten to the point where you can hardly dig
a post hole without having to do an environmental analysis"54
-- appears to have translated into his Department's legal
positions. The Defenders' study, published in the Environmental
Law Reporter, documents numerous cases in which the Interior
Department has litigated the necessity of performing environmental
review of agency actions.55
For example, in Sierra Club v. Norton, the Interior
Department argued that formal environmental review of a high-rise
beach condominium project in the critical habitat of an endangered
species was unnecessary. The court rejected the Department's
position stating, "[s]uch a conclusion is at odds with
the absolute, cumulative and relative losses of habitat, and
is 'so implausible that it could not be ascribed to a difference
in view or the product of agency expertise.'"56
A. The "Kitty Litter" Case.
The case of Oil-Dri Corp. v. Washoe County57provides
a particularly vivid example of the aggressive and disturbing
legal positions advanced by the Department of the Interior
during Myers' tenure as Solicitor. The Oil-Dri case
stemmed from an effort by Oil-Dri Corp., the world's largest
manufacturer of kitty litter, to extract and process kitty
litter clay on public and private lands that surrounded the
Reno-Sparks Indian Colony's residential homeland. Oil-Dri's
mining project required that clay extracted from federal lands
be processed in a plant on private land in Washoe County.
To build this processing plant, Oil-Dri needed a land-use
permit from Washoe County, and the County's zoning laws prohibited
heavy industrial uses in rural areas. To get around this prohibition,
Oil-Dri sought approval of the processing plant as an "ancillary"
or special use necessary for the clay mining activity.58
The county considered this special use permit (SUP) application
and denied it by a 3-2 vote due to environmental impacts,
threats to public health and safety, and overwhelming community
opposition.59
Oil-Dri responded by suing in federal court, alleging that
Washoe County had unlawfully considered the impacts of their
mining activity on federal land in denying their zoning permit
under local law. Oil-Dri then began an aggressive effort to
lobby the Department of the Interior to support their position
in court.60
When the Reno-Sparks Colony learned that Myers' office was
recommending the filing of a brief in support of the company's
position, Arlan Melendez, the Colony's chairman, met with
BLM officials and Erica Niebauer from the Solicitor's Office
to express dismay that "the Solicitor places mining interests
over trust [responsibilities to the Colony]."61
After this meeting failed to stop the Department from siding
with industry, Melendez wrote a letter directly to Secretary
Norton pleading for reconsideration of this decision. Melendez
explained the "devastating injuries to our trust resources
and the degradation of the health and quality of life of our
tribal community" that would result from the project
and reminded Norton of her pledge to defer to local control
in the West.62
According to press reports, Myers responded to this letter
on November 18, 2002, citing the Department's "vital
interest" in the case.63
The next week, shortly before Thanksgiving 2002 - offensive
timing given the brief's assault on the trust interests of
the Colony - the Department of Justice filed a brief supporting
the mining company. The government's brief argued that Washoe
County's consideration of the impacts of mining activities
on federal lands as part of its SUP application process was
preempted by federal law.64
Counsel for Oil-Dri hailed the government's brief for
making "the exact points it needed to."65
Three factors make the Interior Department's actions in the
Oil-Dri case, and Myers' participation in these actions, particularly
disturbing. First, it is extremely rare for the Department
of Justice to file an amicus brief at the district
court level. The scarcity of taxpayer resources, coupled with
the ability to correct errors by a district court on appeal,
have resulted in a practice in which the federal government
participates as an amicus in the district court only
where the government's interest is particularly strong. It
is remarkable that the Interior Department would view Oil-Dri
as such a case.
In a related point, the Oil-Dri case had no business
even being in federal court. Oil-Dri's claims were brought
pursuant to a Nevada cause of action and the company's claim
that the county's actions violated federal law was only one
of a number of arguments Oil-Dri made in challenging the denial
of their permit application. Because their claim "arose
under" Nevada law and raised no "essential question"
of federal law, the district judge dismissed the Oil-Dri
case for lack of subject matter jurisdiction shortly after
the federal government filed its brief.66
It may well be unprecedented for the federal government
to file an amicus brief on the merits in a district court
case where the court lacked jurisdiction to hear the federal
question discussed by the government. Put another way, faulty
legal analysis by Myers and others in his office resulted
in a significant expenditure of taxpayer resources on a brief
that was not even considered on the merits by the court because
of a jurisdictional defect. As an appellate judge, recognizing
these jurisdictional defects would be one of Myers' most important
responsibilities.
Finally, and most importantly, the merits of the government's
position in the Oil-Dri case are very weak. Washoe County
unquestionably had the authority to prohibit the kitty litter
processing plant on private land within county boundaries.
Indeed, the county's zoning laws flatly prohibit such heavy
industrial uses in rural areas. If the county has the authority
to ban the processing plant outright, it seems hard to question
the County's authority to consider all of the impacts of the
proposed mining operation in deciding whether to approve or
deny the processing plant as part of an "ancillary use"
permit application. The county never attempted to exercise
permitting authority over the mining operation on federal
land, standing alone. In Oil-Dri's words, the county's "denial
in no way affects Oil-Dri's ability to move forward on federal
land with its mining operation."67
In a December
2004 ruling, a Nevada court dismissed Oil-Dri's case,
specifically rejecting Myers' preemption argument.
In California Coastal Commission v. Granite Rock Co.,68
the Supreme Court found no federal preemption even in a case
where California required a mining company to seek a state
environmental permit simply for mining on federal land. Preemption
of local ordinances has only been found where the local regulation
amounts to a de facto ban on mining on federal lands within
the jurisdiction.69
No prior case supports the extraordinary federal intrusion
into the local land use authority advocated by the government's
brief in Oil-Dri.
Myers' conclusion that it was "vital" for the
Department of the Interior to support a kitty litter manufacturer's
claim for the right to exploit federal land, over the objections
of an Indian tribe with whom the Department had a trust relationship,
is telling of his bias towards resource extraction. His advocacy
for federal involvement at the district court level in a case
that had no business being in federal court in the first place
speaks to his legal acumen. His conclusion that Washoe County
was preempted from considering the impacts of federal mining
activity in deciding whether to permit a processing plant
on private lands demonstrates a willingness to twist the law
to achieve a particular policy outcome.
IV. Myers' Few Published Opinions as Solicitor Demonstrate
His Hostility to Environmental Protections and the Rights
of American Indian Tribes.
Perhaps the best indication of Myers' lack of qualification
to sit on the Ninth Circuit comes from the formal opinions
that he authored as Solicitor. These opinions only raise more
questions about his nomination. In over two years as Solicitor,
Myers issued only two formal opinions, along with a "clarification"
of one of these two opinions.70
Both of these opinions rely on unsound legal reasoning and
seem intended simply to advance the interests of the grazing
and mining clients Myers used to represent.
A. Myers' Glamis Mine Opinion and the Threat to America's
Natural and Cultural Resources and the Rights of American
Indian Tribes.
The first of Myers' two opinions is entitled "Surface
Mining Provisions for Hardrock Mining."71
It overturned the opinion of his predecessor in order to pave
the way for Interior Secretary Gale Norton to reverse former
Secretary Bruce Babbitt's rejection of a permit for the Glamis
Imperial Gold Mine project-a 1,650-acre cyanide heap-leach
gold mine proposed for the ecologically and culturally sensitive
California Desert Conservation Area (CDCA). The mine would
produce just one ounce of gold for every 422 tons of earth
disturbed. Former Secretary Babbitt refused a permit to the
mine under the Federal Land Policy and Management Act (FLPMA)
because the mine would destroy the ancestral lands of the
Quechan Indian Tribe. The Advisory Council on Historic Preservation
reviewed the proposed mine and concluded: "If implemented,
the project would be so damaging to historic resources that
the Quechan Tribe's ability to practice their sacred traditions
as a living part of their community life and development would
be lost."72 The
Council recommended that "Interior take whatever legal
means available to deny approval for the project."73
Secretary Babbitt refused to permit the project pursuant to
powers under FLMPA that are detailed in a thorough and persuasive
1999 opinion by then-Solicitor John Leshy.74
In October 2001, Myers issued a legal opinion that expressly
repudiates Solicitor Leshy's opinion and eviscerates the authority
of the Interior Department to deny mining permits under FLPMA.
Acting on the basis of Myers' opinion, which as described
below, was harshly criticized in a recent federal court decision,75
Secretary Norton likewise rescinded Babbitt's rejection of
the project. The decision not only paved the way for approval
of the Glamis mine project, but it seriously undermined the
Interior Department's ability under FLPMA to protect Native
American sacred sites as well as critical cultural, historic,
and environmental resources on public lands.
The crux of the dispute between Leshy and Myers is the meaning
of the word "or" in the statutory term "unnecessary
or undue." FLPMA amends the Mining Law of 1872 in part
by requiring that "[i]n managing the public lands the
Secretary shall, by regulation or otherwise, take any action
necessary to prevent unnecessary or undue degradation of the
lands." 43 U.S.C. §1732(b) (emphasis added). This
language subjects all mining claims to the "unnecessary
or undue degradation" standard. As Leshy's opinion maintains:
"That the statutory construction is 'or' instead of 'and'
strongly suggests Congress was empowering the Secretary to
prohibit activities or practices that the Secretary finds
are unduly degrading, even though 'necessary' to mining."76
Myers rejects this straightforward interpretation and argues
that the word "or" actually means its exact opposite-"and."
He writes: "It is not clear from the context in which
we find the word 'or' in section 302(b) of FLPMA what sort
of alternatives 'unnecessary' and 'undue' are. We cannot automatically
assume that the terms are disjunctive alternatives with entirely
separate meanings."77
He concludes: "[I]t therefore does not necessarily follow,
as [Leshy's opinion] contends, that Congress's use of the
word 'or' necessarily suggests that it was empowering the
Secretary to prohibit activities the Secretary finds are unduly
degrading, even though necessary to mining."78
Myers' Orwellian double-speak effectively eliminates the
undue degradation standard from FLMPA by holding that activities
must be both unnecessary and undue before the Secretary
can act to limit them. Specifically, Myers argues that the
Secretary is powerless to prevent undue degradation "caused
by an operator who is using accepted and proper procedures."79
Myers' decision provided the legal basis for Secretary Norton's
action rescinding her predecessor's rejection of the Glamis
mine.
As Sen. Barbara Boxer (D-Calif.) testified to the Senate
Indian Affairs Committee in July 2002, "Although the
initial permit denial took 6 years and hundreds of hours of
consultation, the decision to reopen the permit involved no
public input and took only a few months."80
As importantly, Myers' opinion prohibits any Interior Secretary
from acting to restrict future mining proposals-even where
significant ecological or cultural values are at stake.
Myers' tortured reasoning and unsupportable conclusion in
the Glamis opinion was scathingly criticized in a recent ruling
by U.S. District Judge Henry Kennedy Jr. in the case of Mineral
Policy Center v. Norton. In his decision, Judge Kennedy
concluded that Myers' opinion was "erroneous" and
ruled that "the Solicitor misconstrued the clear mandate
of FLPMA" and failed to apply three "well-established
canons of statutory construction."81
Rejecting Myers' analysis, the court held: "FLPMA by
its plain terms, vests the Secretary of Interior with the
authority-and indeed the obligation-to disapprove of an otherwise
permissible mining operation because the operation, though
necessary for mining, would unduly harm or degrade the public
land."82 Although
Judge Kennedy ultimately upheld the Interior mining regulations
that were challenged by Mineral Policy Center, he reached
this decision only after concluding that the BLM did not "toil"
under Myers' "erroneous view of [BLM's] authority."83
Judge Kennedy's opinion is a remarkable rejection of what
was one of only two formal opinions issued by Solicitor Myers
in his two-year tenure at Interior.
Myers clearly bent over backward to interpret the law to
advance the interest of the mining industry over the Department's
trust responsibility to safeguard the rights of the Quechan
Indian Nation, which faces potential extinguishment of its
tribal heritage. Tribal leaders called the decision "an
affront to all American Indians."84
"They [Department officials] appear destined to break
another promise - their promise to protect this sacred area
from certain destruction. This is an outrage," said Mike
Jackson, Sr., President of the Quechan Tribal Council. "The
Quechan Nation will continue to fight for its religion, traditions
and history."85
Adding insult to injury, although Glamis representatives were
granted meetings with top Interior Department officials to
press their point of view, Myers' legal opinion and Norton's
subsequent decision to validate Glamis's claims were issued
without any input from the Quechan tribe, which by law is
entitled to government-to-government consultation.86
This is especially disturbing in light of the Interior Department's
responsibility as the lead agency in the federal government's
trust and treaty relationship with the American Indian tribes.
Sen. Barbara Boxer (D-Calif.) stressed this point in testimony
before the Senate Select Committee on Indian Affairs' Hearing
on Sacred Sites:
The decision is a rejection of [Norton's] trust obligations
to the Tribe. It ignores her duty to comply with the Executive
Order on Sacred Sites. And it rejects her obligation to
comply with the Native American Grave Protection and Repatriation
Act. But what really bothers me deeply is that Secretary
Norton met with the Glamis Corporations-a private Canadian
company-prior to reversing the Clinton decision. She did
not similarly meet with, or even consult, the Tribe. In
fact, she still has not met with the Tribe, despite her
plans to move forward with a project that will tear the
heart out of their culture.87
The National Congress of American Indians (NCAI)-the oldest
and largest national organization of more than 250 American
Indian and Alaska Native tribal governments-and the California
Nations Indian Gaming Association, which represents 57 federally-recognized
tribal governments in California, formally oppose Myers' nomination.
This is the first time these organizations have ever opposed
one of President Bush's judicial nominations. In the words
of a resolution adopted unanimously by NCAI on November 21,
2003, "Solicitor Myers' actions and legal advice in the
Glamis matter … reveals an activist point of view that
disrespects tribal values that should not be reflected on
the federal bench."88
In the wake of Myers/Norton decisions, the state of California
has taken action to protect the Quechan site. Gov. Gray Davis
signed legislation on April 14, 2003 requiring that all open
pit mines near sacred sites be back filled and restored to
"pre-mining conditions."89
The practical impact of the law is to make mining so expensive
that the mines may never be developed. For cost reasons, open
pit mine operators rarely backfill their mines. In response
Glamis, a Canadian company, filed a notice of intent to sue
the state under a provision of the North American Free Trade
Agreement that allows investors to sue foreign governments
that take actions that are "tantamount to expropriation."90
The company is reportedly seeking a "negotiated settlement"
that would cost California taxpayers as much as $50 million.91
B. Imposing Unjustifiable Hurdles on Conserving Rangeland.
Opponents of environmental protections often criticize environmentalists
for being unwilling to pay for the environmental safeguards
they promote. There are many responses to this criticism-one
is that environmental protection is a public good that benefits
our country as a whole, not just environmentalists. But through
land trusts and other programs, many environmentalists have
started to purchase environmental protection. While most of
this activity is directed toward preserving private lands,
groups like the Grand Canyon Trust have made significant efforts
to protect sensitive public lands by purchasing and retiring
grazing allotments through willing-buyer, willing-seller transactions.
Indeed, the Trust has invested $1.5 million in its effort
to cease grazing permits and reduce grazing impacts on publicly-owned
lands and resources.92
Although individual ranchers benefit from these voluntary
transactions, the professional grazing lobby opposes this
example of "free market environmentalism," feeling
threatened by even voluntary termination of grazing privileges.
As always, Myers was more than attuned to the grazing lobby's
interests. After the Grand Canyon Trust had requested the
Bureau of Land Management to retire grazing permits for the
Grand Staircase-Escalante National Monument in Utah that it
had purchased from willing sellers, and after Secretary Gale
Norton had written a letter warmly and publicly endorsing
such voluntary "buyouts," Myers unilaterally issued
a formal legal opinion that sought to place an unprecedented
hurdle in the path of any third party seeking to retire public
lands from livestock grazing.
Myers' opinion would have required the Bureau of Land Management
in considering any proposal to cease grazing on public rangelands
within a grazing district (the case for the vast majority)
to analyze whether the lands are "chiefly valuable for
grazing and raising other forage crops."93
Myers invented this requirement, which had not been applied
in any previous instances in which third parties had purchased
permits for conservation purposes. Its adoption placed a new
and unjustified hurdle in the way of this shining example
of free market environmentalism and indefinitely delayed the
processing of the Trust's permits.
It turned out, however, that this new hurdle was not high
enough to suit the grazing lobby. Given changes in land use
patterns and other factors, many lands within grazing districts
were no longer still "chiefly valuable for grazing."
Environmentalists were also threatening to use this newly
minted chiefly valuable for mining test to challenge cattle
grazing on other public lands.94
Thus, Myers felt compelled to issue a "clarification"
of his first opinion. Directly contradicting his first legal
analysis, Myers now opined that the BLM was not compelled
to consider whether lands remained "chiefly valuable
for grazing."95
Rather, he stressed that while the Secretary has the discretion
to discontinue grazing, she will be disinclined to do so.
Further, he opined that, so long as the land remains part
of a grazing district as classified under the Taylor Grazing
Act, "the permit remains available for other permittees"
under the "presumption that grazing in a grazing district
should continue."96
This new "presumption" against stopping grazing
is no more compelled by the Taylor Grazing Act than was the
now discredited "chiefly valuable for grazing" test.
The Act, passed in 1934, did not envision and does not address
the willing-buyer, willing seller transactions sponsored by
the Grand Canyon Trust. Myers' two opinions thus illustrate
quite plainly that his legal analysis is inappropriately driven
by the results advanced by his analysis. Either the "chiefly
valuable for mining" test is required by the Taylor Grazing
Act or it is not. Myers appears to have concluded that it
is required only to the extent that it serves the interests
of the grazing industry to prevent voluntary termination of
grazing privileges. When it became clear that this test did
not adequately serve this purpose, he abandoned it and crafted
a new presumption against retirement of permits that better
advanced the grazing lobby's interests.
V. Myers' Continued Promotion of
Grazing Industry Interests.
Myers' formal opinion (and his "clarification"
of that opinion) on retiring grazing permits is only one of
many important victories grazing interests have won during
Myers' tenure as Interior Solicitor. Indeed, two specific
matters involving grazing interests have been so one-sided
that they have been the subject of investigations by the Interior
Department's Inspector General. Although one of these investigations
is ongoing and the other did not find actionable wrongdoing
by Myers, these favors to the grazing industry raise serious
questions concerning his fitness for a seat on the Ninth Circuit.
A. A Sweetheart Deal for a Rogue Grazer.
Myers' willingness to bend over backward to aid grazing interests
is particularly evident in a remarkably one-sided settlement
agreement reached under Myers' watch between the Interior
Department and H. Frank Robbins, Jr., a Wyoming rancher with
a long history of range violations and clashes with the Bureau
of Land Management. As reported in the press, "the deal
is highly unusual within the BLM and appears to depart from
long-running requirements spelled out in federal law about
who can receive grazing permits."97
The Interior Department's Inspector General's office-responding
to a complaint filed by Public Employees for Environmental
Responsibility (PEER)-has launched a still-ongoing investigation
of this entire matter.98
Various records indicate that Myers was personally involved
in approving this settlement.99
Since 1994, Robbins has been a habitual offender of public-land
grazing rules and has actively impeded BLM efforts to protect
the land, even going so far as to file a federal Racketeering
Influence and Corrupt Organization Act (RICO) lawsuit against
individual BLM employees. From 1996 to 2001, the BLM cited
Robbins for 25 different trespass violations, more than half
of which were classified as "repeated willful" violations.
As reported in the press, Darrell Barnes, manager of the Worland
BLM office, wrote in an internal memo to the BLM state director
in March 2002 that "Mr. Robbins has shown a complete
disregard for the terms and conditions of the permits and
of the authority of the BLM to manage public lands."100
He further stated, "His conduct was so lacking in reasonableness
or responsibility that it became reckless or negligent and
placed significant undue stress/damage on the public land
resources."101
Although Robbins claims that BLM agents have abused their
discretion, harassed him and trespassed on his property, both
a federal court and an internal BLM review of the field agents'
conduct rejected these contentions.102
Indeed, the review team vindicated the BLM officers' actions
and recommended that BLM Law Enforcement should "consider
taking criminal action … based on documented violations."103
All available evidence points inescapably to one conclusion:
Robbins is an unrepentant repeat violator of environmental
safeguards.
Rather than making an example of Robbins, the Interior Department
rewarded him with a personal meeting with top Department officials
in 2002 and negotiated a settlement agreement that conditionally
forgives 16 grazing violations dating back to 1994. It also
awards Robbins: a new grazing permit; management control over
certain federal lands; expanded rights-of-way across federal
lands; preferential grazing fees; a special recreation permit
to operate a "dude ranch"; and a promise to facilitate
a land exchange. Even as the agreement was being negotiated,
BLM field staff continued to document Robbins' violations
of federal law.104
Field staff reportedly was directed by higher-ups not to pursue
further violations against Robbins while the agreement was
being worked out.105
Even more unusual, Robbins obtained a special status whereby
only the Director of BLM or her designee may cite him for
future violations-a move that would seem to render the local
office's enforcement powers merely advisory. As Matthew Mead,
President Bush's U.S. Attorney for Wyoming, explained in an
August 2002 letter, this special process will complicate enforcement
of federal grazing law in Wyoming. "What justification,"
Mead asks, "is there for prosecuting all permittees other
than Robbins for the same conduct?"106
Many of the provisions of the settlement agreement appear
to violate federal law and regulations. At a minimum, they
represent astonishing deference to a rancher whose record
of rangeland management, according to the BLM's own review,
warrants criminal prosecution-not special benefits. According
to published reports, an internal department memo spends eight
pages documenting the ways the settlement agreement violates
the law by altering or ignoring provisions of the Taylor Grazing
Act, the Federal Land Policy and Management Act, the Federal
Advisory Committee Act, and the federal regulations.107
The agreement is now the subject of litigation by public-interest
organizations that are seeking to have it invalidated.
Myers bore oversight responsibility for agreements negotiated
by his office, especially an agreement such as this which
sets new and disturbing precedents for the management of public
lands. That Myers would permit such an extraordinary one-sided
agreement to be reached during his tenure is damning evidence
that he was unable as Interior Solicitor to set aside his
advocacy of grazing interests. His record provides little,
if any, support for the proposition that he would do so as
a judge.
B. Finishing the Business of His Former Grazing Clients.
Early in his first term as Secretary of the Interior, President
Clinton's Interior Secretary Bruce Babbitt vigorously promoted
protections for the nation's public lands against overgrazing,
first in the form of federal legislation, then, when this
failed, through the federal regulatory process. One of Myers'
main jobs as Executive Director of Public Lands Council and
Director of Federal Lands for the National Cattlemen's Beef
Association was to fight the implementation of these regulations
at all turns and then to promote federal legislation that
would repeal them. At Public Lands Council,108
and then at Holland & Hart,109
Myers was also actively involved in an unsuccessful effort
to challenge these regulations in court.
Prior to his confirmation as Solicitor, Myers entered into
an agreement that prohibited him from participating "in
any particular matter involving specific parties in which
[he knows] that Holland & Hart, LLP, is a party or represents
a party."110
The agreement took effect upon his confirmation by the U.S.
Senate-July 12, 2001-and remained in effect until July 12,
2002. In addition to this one-year ban, Myers agreed to an
open-ended ban on substantial participation in any matter
or case that he handled at Holland & Hart.
Notwithstanding this agreement, Myers' calendar entries,
obtained through a FOIA request, indicate that beginning almost
immediately upon his swearing in as Interior Solicitor, Myers
started actively participating in deliberations that led the
Interior Department to give notice, on March 3, 2003, that
it was considering revising many of the grazing regulations
that had been implemented in the Clinton Administration and
upheld by the Supreme Court in Public Lands Council v.
Babbitt.111 After
receiving a complaint from the Friends of the Earth, the Interior
Inspector General (IG) launched an investigation into whether
Myers violated his recusal agreement.112
The IG's report documents Myers' continual contact with grazing
advocates during his tenure as Solicitor, including meetings
with groups such as the Arizona Cattle Growers Association,
California Cattlemen's Association, Idaho Cattle Association,
Wyoming Stock Growers Association, and the National Cattlemen's
Beef Association, among others.113
Myers also participated in numerous meetings with senior policy
staff at the Interior Department at which the administration's
grazing reform proposals were discussed.
The ultimate conclusion of the Interior IG was that despite
these meetings, Myers did not violate the terms of his recusal
agreement, which focuses narrowly on specific "matters"
that Myers worked on for paid clients while at Holland &
Hart. Under this standard, even though Myers devoted nearly
eight years of his career to challenging the Clinton-era grazing
regulations, including bringing the case for PLC and filing
a Supreme Court brief on behalf of Holland & Hart clients,
Myers was not working on the same "matter" when,
as Solicitor, he promoted new regulations that would overturn
many aspects of these same regulations.
Even if the IG's conclusion is correct, it absolves Myers
only of violating the terms of a narrowly-worded recusal agreement.
The IG's report simply does not speak to the appearance of
impropriety created by the undisputable fact that as a public
servant, Myers continued to press for the same pro-grazing
legal reforms that he advocated as a highly paid lawyer in
private practice. To say that Myers should not face civil
or criminal sanctions because of his aggressive promotion
of grazing interests as Solicitor is different from saying
that he should now be confirmed to one of the nation's preeminent
courts. That question turns on whether Myers will impartially
judge the matters that come before him in court and on this
issue. Considered in context, the IG's report paints a disturbing
picture.
VI. Conclusion
William Myers' long history as an advocate for the grazing
and mining industry, coupled with his troubling and undistinguished
record as Interior Solicitor, casts serious doubts on his
willingness or ability to put aside his personal views and
rule fairly in environmental cases, cases involving Native
American and tribal issues, and those involving public land
management. His ABA rating reflects his minimal qualifications
for a lifetime seat on the Ninth Circuit. Myers may share
President Bush's bias toward the interests of industries engaged
in resource exploitation, but that is no reason to reward
him with a nomination to the Ninth Circuit.
For more information contact:
Doug Kendall, Executive Director
Jason Rylander, Litigation & Policy Counsel
Community Rights Counsel
(202) 296-6889
----------------------------------------------------------------------
1 Ratings of Article
III Judicial Nominees: 108th Congress, available at http://www.abanet.org/scfedjud/ratings108.pdf.
2 Public Lands Council
is a non-profit coalition that represents the National Cattlemen's
Beef Association, the American Sheep Industry Association,
the American Farm Bureau Federation and the Association of
National Grasslands. http://hill.beef.org/ncba/view.asp?DocumentID=553
3 Mineral Policy
Center v. Norton, 2003 WL 22708450 (D.D.C. Nov. 18, 2003),
available at http://www.dcd.uscourts.gov/01-73.pdf.
4 William G. Myers III,
Western Ranchers
Fed Up with Feds, FORUM FOR APPLIED RES. & PUB.
POL., Winter 1996 at 22.
5 William G. Myers III,
Environmental
Command and Control: The Snake in the Public Lands Grass,
in FARMERS, RANCHERS & ENVIRONMENTAL LAW 198 (1995)).
6 Behind the Curtain,
MOTHER JONES, Sept. 2003, available at http://www.motherjones.org/news/feature/2003/36/ma_534_01.html
) (discussing speech by Myers to the National Cattlemen Association).
7 Myers, Environmental
Command and Control
at 208 (The Act protected 7.5 million acres of wilderness,
and another 5.5 million acres that included national park
preserves).
8 Id. at 209.
9 William Myers, Forest
Road Closure Loses Path in Woods, JACKSON
HOLE GUIDE, Mar. 11, 1998.
10 Reintroduction
of Wolves in Yellowstone: Hearing Before the Subcomm. on Parks
and Historic Preservation and Recreation of the Senate Energy
Comm., May 23, 1995 (testimony of William G. Myers
III on behalf of the Public Lands Council).
11 William Myers, Agency
Lawyer Has Obligation to Speak on Behalf of a Client,
IDAHO STATESMAN, Nov. 26, 2002, available at http://www.idahostatesman.com/Search/story.asp?id=26580.
12 Bill Myers, The
Legal Bleat: Environmentalists Are More Concerned With Membership
than Environment, IDAHO WOOL GROWERS BULLETIN, Nov./Dec.
1997 at 5.
13 Bill Myers, Litigation-Happy
Environmentalists Need Reform, MOAB
TIME-INDEPENDENT, April 30, 1998.
14 Bill Myers, The
Legal Bleat: Kids, Cars and Commodities, IDAHO WOOL GROWERS
BULLETIN, Feb. 1998 at 7.
15 Our View: A
Rancher's Advocate, or the People's Attorney?, IDAHO STATESMAN,
Nov. 22, 2002, available at http://www.idahostatesman.com/Search/story.asp?id=26232.
16 Id.
17 Id.
18 Bill Myers, Having
Your Day in Court, NATIONAL CATTLEMEN (Nov/Dec. 1994).
19 Id.; see
also Dolan v. City of Tigard, 512 U.S. 687 (1994).
20 Myers, Having
Your Day in Court, supra note 18.
21 Id.
22 Id.
23 Id.
24 Id.
25 Id.
26 Brief
of the National Cattlemen's Association and the CATL Fund,
Babbitt v. Sweet Home Chapter of Communities for a
Great Or., 515 U.S. 687 (1995).
27 John D. Echeverria
& Julie Luhrman, "Perfectly Astounding" Public
Rights: Wildlife Protection and the Takings Clause, 16
TUL. ENVTL. L. J. 331, 338 (2003) ("While the alleged
economic burdens imposed under the ESA and state analogs are
hardly inconsequential, they have proven essentially noncompensable
under the Takings Clause.").
28 Brief
of the National Cattlemen's Association and the CATL Fund,
Babbitt v. Sweet Home Chapter of Communities for a Great Or.,
515 U.S. 687 (1995).
29 Id.
30 Id.
31 See Fullilove
v. Klutznick, 448 U.S. 448, 509 (1980) (Marshall J. concurring)
(Strict scrutiny is "strict in theory, but fatal in fact.").
32 Senator Feinstein
Opposes Justice Brown's Nomination to the Washington, DC Court
of Appeals, Nov. 6, 2003, available at http://feinstein.senate.gov/03Releases/r-brown2.htm.
33 Myers represented
the Public Lands Council in its initial challenge, Public
Lands Council v. Babbitt, 929 F. Supp. 1436 (D. Wyo. 1996),
and filed an amicus brief on behalf of farm credit institutions
at the Supreme Court. Public Lands Council v. Babbitt, 529
U.S. 728 (2000).
34 Rangeland Reform
1995, 60 Fed. Reg. 9894 (1995).
35 Brief of Amici Curiae
Farm Credit Institutions in Support of Petitioner, Public
Lands Council v. Babbitt, 529 U.S. 728 (2000), available at
1999 WL 1128263.
36 531 U.S. 159 (2001).
The Court in SWANCC ultimately interpreted the Clean Water
Act narrowly to avoid the Commerce Clause question discussed
in Myers' brief. See SWANCC, 531 U.S. at 173.
37 Brief
of the American Farm Bureau Federation, the National Cattlemen's
Beef Association, and the North Dakota Farm Bureau, SWANCC,
531 U.S. 159 (2001), available at 2000 WL 1059641.
38 Brief of the Anti-Defamation
League, People for the American Way, et al, SWANCC, 531 U.S.
159 (2001), available at 2000 WL 1369409.
39 William G. Myers
III, Advice
and Consent on Trial: The Case of Robert H. Bork,
66 DENVER L. REV. 1, 20, 22 (1988); see also William G. Myers
III, The Role
of Special Interest Groups in the Supreme Court Nomination
of Robert Bork, 17 HASTINGS CONST. L. Q. 399 (1990).
40 Myers, 66 DENVER
L. REV. at 25.
41 Other Republican
senators opposing confirmation were Sens. Bob Packwood (R-Or.),
John Chafee (R-R..I.), Lowell Weicker (R-Ct.), and Robert
Stafford (R-Vt.).
42 ARLEN SPECTER, PASSION
FOR TRUTH (2001).
43 The Bush Record,
available at http://www.nrdc.org/bushrecord/default.asp.
44 Defenders of Wildlife,
Sabotaging the Endangered Species Act: How the Bush Administration
Uses the Judicial System to Undermine Wildlife Protections
(2003) [hereinafter Sabotaging the Endangered Species
Act]; William Snape III & John M. Carter II, Weakening
the National Environmental Policy Act: How the Bush Administration
Uses the Judicial System to Weaken Environmental Protections,
ENVTL. L. REP. (Sept. 2003), available at http://www.endangeredlaws.org/downloads/defenders_nepa_article.pdf.
45 Scott Sonner, Interior
Department's Top Lawyer Takes Aim at Environmental Laws,
LAS VEGAS SUN, Nov. 15, 2002, available at http://www.lasvegassun.com/sunbin/stories/nevada/2002/nov/15/111510527.html.
46 Our View: A Rancher's
Advocate, or the People's Attorney?, IDAHO STATESMAN,
Nov. 22, 2002, available at http://www.idahostatesman.com/Search/story.asp?id=26232.
47 Sabotaging the
Endangered Species Act at 11.
48 Defenders of Wildlife
did not include in the study those ESA cases decided during
that period but which were initiated in prior administrations
and in which the Bush administration made no arguments or
significant legal strategy decisions.
49 Id. at 15-16.
50 Id. at I (executive
summary).
51 Defenders Report
at 17-19, 21-23 (discussing Save the Manatee v. Ballard, 215
F. Supp.2d 88, 88 (D.D.C. 2002); and Center for Biological
Diversity v. Bureau of Land Management, 00-927 (N.D. Cal.
May 7, 2001)).
52 Center for Biological
Diversity v. Norton, 240 F. Supp.2d 1090, 1098-95, 1102-03
(D. Ariz. 2003).
53 Defenders Report
at 30 (quoting Center for Biological Diversity v. Norton,
01-409 (D. Ariz. Oct. 10, 2003) (unpublished order) at 7,
10).
54 Scott Sonner, Interior
Department's Top Lawyer Takes Aim at Environmental Laws,
LAS VEGAS SUN, Nov. 15, 2002, available at http://www.lasvegassun.com/sunbin/stories/nevada/2002/nov/15/111510527.html.
55 William Snape III
& John M. Carter II, Weakening the National Environmental
Policy Act: How the Bush Administration Uses the Judicial
System to Weaken Environmental Protections, 33 ENVTL.
L. REP. 10682 (Sept. 2003), available at http://www.endangeredlaws.org/downloads/defenders_nepa_article.pdf.
56 207 F. Supp.2d 1310,
1336 (S.D. Ala. 2002) (internal citations omitted); Snape
& Carter, 33 ENVTL L. REP. at 10686.
57 Oil-Dri Corp. v.
Washoe County, CV-N-02-0186-ECR-RAM (D. Nev. Mar. 3, 2003).
58 Brief of the United
States as Amicus Curiae at 3 n.2, Oli-Dri Corp. v. Washoe
County, CV-N-02-0186-ECR-RAM (D. Nev. Nov. 22, 2002).
59 See Jeff DeLong,
Commissioners
Nix Cat-Litter Mine, RENO GAZETTE-JOURNAL, Feb. 26, 2002.
60 Associated Press,
Oil-Dri Urged Government
Intervention in Nevada Mine, Mar. 4, 2003.
61 See Letter
from Robert V. Abbey, State Director, Nevada BLM to Arlan
Melendez, Chairman, Reno-Sparks Indian Colony, October
16, 2002.
62 Letter
from Arlan Melendez, Chairman, Reno-Sparks Indian Colony,
to Gale A. Norton, Secretary of Interior, October 22,
2002.
63 Associated Press,
Oil-Dri Urged Government Intervention
in Nevada Mine, Mar. 4, 2003 (documents obtained through
a FOIA request "show Oil-Dri's lawyers and officials
from the Interior Department and BLM engaged in a series of
written and verbal communications from July through November
[2002] regarding the company's lawsuit and the possibility
of federal intervention.").
64 Brief
of the United States as Amicus Curiae, Oil-Dri Corp. v. Washoe
County, CV-N-02-0186-ECR-RAM (D. Nev. Nov. 22, 2002).
65 Associated Press,
Oil-Dri Urged Government Intervention
in Nevada Mine, Mar. 4, 2003
66 Oil-Dri
Corp. v. Washoe County, CV-N-02-0186-ECR-RAM, (D. Nev.)
(order of Feb. 22, 2003).
67 Jeff DeLong, Commissioners
Nix Cat-Litter Mine, RENO GAZETTE-JOURNAL, Feb. 26, 2002
(quoting Stephen Mollath, a Reno lawyer representing Oil-Dri).
68 480 U.S. 572 (1987).
69 See South Dakota
Mining Ass'n v. Lawrence County, 155 F.3d 1005 (8th Cir. 1998).
70 In contrast, Myers'
predecessor averaged 3.5 formal legal opinions per year during
his 8 years as Solicitor.
71 Office of the Solicitor,
Memorandum M-37007,
Surface Mining Provisions for Hardrock Mining, Oct. 2001.
72 Office of the Solicitor
(John Leshy), Memorandum M-36999, Regulation of Hardrock Mining,
Dec. 27, 1999, available at http://www.doi.gov/sol/M36999.pdf.
73 Id.
74 Id.
75 Mineral Policy Center
v. Norton, 2003 WL 22708450 (D.D.C. Nov. 18, 2003), available
at http://www.dcd.uscourts.gov/01-73.pdf.
76 Office of the Solicitor
(John Leshy), Memorandum M-36999, Regulation of Hardrock Mining,
Dec. 27, 1999, available at http://www.doi.gov/sol/M36999.pdf,
at 7
77 Office of the Solicitor,
Memorandum M-37007, Surface Mining Provisions for Hardrock
Mining, Oct. 2001 at 9.
78 Id. at 10.
79 Id. at 12.
80 Testimony of Senator
Barbara Boxer, before the Senate Indian Affairs Committee
Hearing on Sacred Sites, July 17, 2002, at http://indian.senate.gov/2002hrgs/071702hrg/Boxer.PDF.
The Glamis decision has also come under fire for potential
conflicts of interest. In October 2002, Sen. Barbara Boxer
(D-Calif.) demanded an inspector general probe of the Glamis
decision for potential conflicts of interest. Interior Secretary
Norton met with Glamis prior to making her decision. See Boxer
Calls for Probe of Mine Permit, WASH. POST, Oct. 5, 2002,
at A4. The IG did not find any wrongdoing.
81 Mineral Policy Center
v. Norton, 2003 WL 22708450 (D.D.C. Nov. 18, 2003), available
at http://www.dcd.uscourts.gov/01-73.pdf.
82 Id.
83 Id.
84 Gale Norton's Broken
Treaties: Interior Secretary Breaks Promise to Tribes, OKs
Imperial County Mine, FAULTLINE, Oct. 26, 2001, available
at http://www.faultline.org/news/2001/10/quechanmining.html.
85 Id.
86 Testimony of Sen.
Barbara Boxer before the Senate Indian Affairs Committee Hearing
on Sacred Sites, July 17, 2002, at http://indian.senate.gov/2002hrgs/071702hrg/Boxer.PDF.
87 Id.
88 National Congress
of American Indians, Resolution #ABQ-03-061 (Nov. 21, 2003),
available at http://www.ncai.org/data/docs/resolution/annual2003/03-061.pdf.
89 James May, Gov.
Davis Signs Legislation to Protect Indian Sacred Site, INDIAN
COUNTRY TODAY, April 14, 2003, at http://www.indiancountry.com/?1050332327&style=printable.
90 Evelyn Iritani,
Gold Firm Plans
Suit Under NAFTA; Canadian Mining Company Says California
Limits Make Its Imperial Property Worthless, LA TIMES,
Aug. 20, 2003.
91 Id.
92 Brent Israelsen,
Plan to Cut
Grazing in Monument Hits Snag, SALT LAKE TRIB., Nov.
10, 2002.
93 Office of the Solicitor,
Authority for the Bureau of Land Management to Consider Requests
for Retiring Grazing Permits and Leases on Public Lands, M-37008,
Oct. 4, 2002 at 2.
94 Brent Israelsen,
Plan to Cut
Grazing in Monument Hits Snag, SALT LAKE TRIB., Nov.
10, 2002 ("[Kieran Suckling, director of the Tucson,
Ariz.-based Center for Biological Diversity] said his group
may use Myers' letter as ammunition in lawsuits challenging
grazing.").
95 Office of the Solicitor,
Clarification of
M-37008, May 13, 2003 at 1.
96 Id. at 6.
97 Mike Stark, BLM,
Rancher Settle Grazing Dispute, BILLINGS GAZETTE,
June 13, 2003.
98 Id. (quoting Jack
Romer of the IG's office); Brodie Farquhar, Robbins Deal
Under Interior Microscope, CASPER STAR-TRIBUNE, Sept.
2, 2003, at http://www.casperstartribune.net/articles/2003/09/02/news/wyoming/fee6b2ccd2a6609970fc1f18f006d537.txt.
99 Calendar entries,
obtained through FOIA, indicate that Myers attended a meeting
with Bob Comer, Regional Solicitor, Denver, Colo., to discuss
the settlement on Nov. 21, 2002. Additionally, the Inspector
General's recent investigation of Myers' dealings with former
clients confirms that meeting and at least one other specific
occasion on which Myers discussed the agreement with Comer.
The IG interviewed both Comer and Myers regarding these meetings,
and Comer said in reference to an October 2, 2002, meeting
that he "had been working on this settlement since May
2002" and had "occasionally briefed [Myers] on the
status of it." Office
of the Inspector General, Report of Investigation, PI-NM-03-0309-I
(Nov. 24, 2003) at 26. Myers himself described the Nov.
21, 2002 meeting, saying "Comer was the lead attorney
from the SOL who was responsible for providing legal advice
on the settlement and Comer likely wanted to provide Myers
with an update on the status of the pending settlement."
Id. at 32. Myers thus
clearly had ongoing knowledge of the progress and terms of
this unusual settlement agreement.
100 Mike Stark, BLM,
Rancher Settle Grazing Dispute, BILLINGS GAZETTE,
June 13, 2003.
101 Id.
102 BLM,
Fact Finding Review-Frank Robbins, April 16, 2002.
103 Id. at 5.
104 BLM records indicate
that Robbins continues to violate his grazing permits and
the settlement agreement and the BLM director is taking no
action to enforce either federal law or the terms of the settlement
against him. Letter
from David L. Wallace, Supervisory Rangeland Specialist to
John L. Kunz, Regional Solicitor's Office, April 14, 2003
(monitoring and allotment analysis showing Robbins's practices
to be "inconsistent with the grazing permits and the
Settlement Agreement"); Letter
from David Wallace, Supervisory Rangeland Specialist, to Alan
Kesterke, Associate State Director, BLM, Aug. 4, 2003
(summarizing monitoring efforts that show Robbins's continued
permit violations); BLM, Analysis
of Billing History (3/24/03) for High Island, HD, and Owl
Creek Ranches (documents on file with CRC). See also Mike
Stark, BLM,
Rancher Settle Grazing Dispute, BILLINGS GAZETTE,
June 13, 2003.
105 Mike Stark, BLM,
Rancher Settle Grazing Dispute, BILLINGS GAZETTE,
June 13, 2003.
106 Letter
from Matthew H. Mead, US Attorney, District of Wyoming to
John R. Kunz, Assistant Regional Solicitor, Department of
the Interior, August 28, 2002.
107 Mike Stark, BLM,
Rancher Settle Grazing Dispute, BILLINGS GAZETTE,
June 13, 2003; see also Public
Employees for Environmental Responsibility, Analysis of the
Robbins Settlement (2003).
108 Myers was counsel
for PLC in Public Lands Council v. Babbitt, 929 F. Supp. 1436
(D. Wyo. 1996).
109 As counsel with
Holland & Hart, Myers authored a Supreme Court amicus
brief opposing the regulations on behalf of a number of farm
credit institutions. See Brief of Amici Curiae Farm Credit
Institutions in Support of Petitioners, Public Lands Council
v. Babbitt, 529 U.S. 728 (2000), available at 1999 WL 1128263.
110 Recusal Letter,
William Myers to Wendell K. Sutton, (May 1, 2001).
111 Documents obtained
through the Freedom of Information Act (FOIA) by Friends of
the Earth and Public Employees for Environmental Protection
(PEER) indicate that Myers met with cattle interests and members
of his former law firm at least seven times in the fall of
2001 and summer of 2002 in his first year in the post. Immediately
after the one-year recusal period expired, Myers' calendar
indicates repeated meetings with grazing interests, including
meetings concerning potential changes to the Department's
current grazing regulations.
112 See R.
Jeffrey Smith, Ethics
Probe Opened on Interior Dept. Lawyer: Environmental Groups
Allege Conflicts of Interest, WASH. POST, Aug. 15,
2003.
113 Office
of the Inspector General, Report of Investigation, PI-NM-03-0309-I
(Nov. 24, 2003).
|
