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MARYSVILLE, Calif. Last June, at the suggestion of the Interior
Department's chief lawyer, William G. Myers III, two congressmen
from Northern California introduced a bill that would have
given away $1 million worth of public land near this city
north of Sacramento to a private firm.
Myers, who had represented mining and cattle interests as
a private lawyer before taking the job as solicitor of the
Interior Department, acted without consulting the federal
government's land managers on the scene. Those officials believed
the private company, Yuba River Properties, had no valid claim
to the land.
The company claimed it had validly purchased a deed for
the land that it said had been issued by the government in
the 1940s.
Myers now has been nominated by President Bush for a seat
on the federal appeals court that hears cases from California
and eight other Western states. With the nomination drawing
opposition from many environmental and liberal organizations,
Myers' role in suggesting the land bill has become an issue
in the confirmation.
"Myers' attempt to give away valuable public lands
in this case is another example of how he used his position
as Interior solicitor to put the private interests of the
industries that paid his bills in private practice over the
public's interest," said Doug Kendall, executive director
of Community Rights Counsel, one of the organizations leading
the opposition to Myers' nomination to the U.S. 9th Circuit
Court of Appeals.
Thursday evening, after inquiries by The Times, the Interior
Department reversed field and told the two congressmen, Reps.
John Doolittle (R Rocklin) and Wally Herger (R Marysville)
that the department was withdrawing its support for the bill.
David L. Bernhardt, who serves as the department's director
of congressional and legislative affairs and counselor to
Interior Secretary Gale A. Norton, said the agency had changed
its position on the basis of "additional research"
by the Bureau of Land Management and Interior Department lawyers
in Sacramento.
Those lawyers discovered "two important new facts of
which Solicitor Myers was not aware" when he proposed
the legislation, Bernhardt wrote in a letter to the congressmen
that was provided to The Times.
One of the facts was that, even though Yuba River Properties
was claiming it had had a valid claim to the land all along,
it had never paid taxes on the property. Another, according
to a report released by Interior Department officials, was
that "since at least 1993," the property in question
"has been carried on the county's tax records as public
lands."
Myers, now back in private life as an attorney in Boise,
Idaho, declined to comment.
Matt McKeown, an attorney in the solicitor's office, said
Friday that Myers' proposal to award the land to the company
through what is known as a private relief bill had been "cleared
through our normal process, which includes the Office of Legislative
Affairs and the White House's Office of Management and Budget."
Myers was "relying on facts provided by members of
Congress" when he suggested that the legislation would
be appropriate, McKeown said, adding that "the record
shows that Bill did his job."
Although subsequent research contradicted Myers' proposal,
anyone criticizing his actions in this situation, McKeown
said, "is holding him to a standard of omniscience."
The land at issue is part of 9,670 acres of gravel mounds
and ponds known as the Yuba Goldfields that were created by
hydraulic mining in the 19th century.
The technique, which was used for many years but eventually
stopped because of the enormous damage it caused, involved
using high pressure hoses to erode hillsides in search of
gold. It dislodged large amounts of sand and rock, which could
then be easily mined.
Although the land no longer contains gold, the sand and
rock are much in demand for construction projects and are
worth hundreds of millions, perhaps billions, of dollars,
according to the BLM.
In addition to the gravel and scrub brush, there is a considerable
variety of bird life in the area, including wild turkeys,
and one of the last genetically pure lines of Chinook salmon
inhabits the area's streams, according to Defense of Place,
a San Francisco based environmental organization.
The three partners in Yuba River Properties, Merlynn J.
Barbour, Darrel E. Pierce and Philip C. Sutherling, contend
their firm is entitled to 8 acres of the Goldfields land,
a plot known as Lot 5. They base their claim on a deed that
a previous company, Yuba Consolidated Goldfields, bought for
$3,500 from the U.S. Army in 1943.
In 1998, Yuba River Properties acquired the deed. The next
year, the company made a mining deal with a local firm.
In 2000, federal land managers saw workers taking material
from property they believed to be public land. In December
of that year, the BLM issued a trespass notice to Yuba River
and fined the firm $6,546.95. Yuba River did not appeal the
fine, nor did it pay the damages. Nor did the company file
suit to establish that it was the legal owner.
Instead, in the fall of 2001, the partners sent letters
to members of Congress claiming they owned both the land and
the mineral rights on it. They sent copies of the 1943 deed
and other documents that they said established their ownership
rights.
In March 2002, Herger enlisted Doolittle and the two congressmen
jointly wrote to Myers on behalf of the company.
A few months later, Myers wrote back. His letter explained
in some detail that government lawyers had reviewed the issue
and concluded that the Army had the authority only to grant
mineral leases in 1943, not to sell land. The mining rights
purchased in 1943 had long since expired, the letter said.
The letter noted that BLM officials already had explained
to Yuba River officials why they had no lawful claim.
But at the end of his two page letter, Myers said he thought
"many of the equities" favored Yuba River Properties.
While the government "unfortunately" did not have
the authority to turn over the land "without compensation,"
Myers wrote, "the department would support private relief
legislation" to accomplish that goal.
"On the basis of Mr. Myers' opinion," Herger and
Doolittle introduced a bill to turn over the land for free,
according to Fran Peace, Herger's district director in Chico.
She said two of Yuba River's three partners live in Doolittle's
district, while the third partner and the land are in Herger's
district.
Peace acknowledged that the bill was controversial. "We
are not land title experts," she said. "This office
does casework. We try to help our constituents."
When federal land managers in the area learned of the proposal
after the bill had been introduced they went to work to try
to reverse the department's position.
Deane Swickard, director of the BLM office in Folsom, said
he had no problem if companies mined commodities on public
land, so long as taxpayers got "fair market value"
for the material.
Swickard has developed an overall plan for the area that
would generate hundreds of millions of dollars by selling
sand and rock. The plan, which has been endorsed by the Board
of Supervisors in economically depressed Yuba County, calls
for enhancing tourism there by using the money for such things
as trails for bird watching and hiking, improved access to
the river for rafting and camping, creation of a salmon sanctuary
and replenishment of natural habitats.
"I have been here 20 years," said Swickard, 59.
"There is 1.3 million tons of rock and 200,000 tons of
sand" on Lot 5, he said. "Why in the world would
we give it up? I'm not here to give away public resources."
Just before Interior reversed field, Swickard got a letter
from department officials praising his "hard work in
bringing to our attention here in Washington all the facts
surrounding the Yuba River Properties claim to public lands
in the Yuba Goldfields area."
"Having those facts and all the information ... enabled
us to properly advise the department that the lands in question"
belong to the U.S., said the letter from BLM Deputy Director
James M. Hughes, "and should rightfully remain in public
ownership and be managed for the public benefit."
Swickard said he was pleased with the outcome, as did Bill
Calvert, a 69 year old rancher and an activist in the Yuba
Goldfields Access Coalition who was opposed to the bill. Both
said, however, that if Myers had done routine research in
2002, he would have found the same Yuba County land and tax
records that Interior Department officials now cite as the
reason to no longer support the legislation.
"It seemed strange for a top attorney" to take
a position without doing basic research, said Swickard, who
added that he had never met or talked to Myers.
Swickard was not the only civil servant in the department
who had expressed concern about the bill. In August, Timothy
Carroll, also of the BLM's Folsom office, sent an e mail to
another BLM staff member in Washington, asking about the legislation.
"Turns out," Carroll said in an e mail, obtained
under the Freedom of Information Act, "Solicitor William
G. Myers III suggested this solution to Herger and Doolittle.
Would have been nice if he had asked us first."
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