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Spin is spin, and we'll get to that later, but the press secretary
for Interior's Inspector General Earl Devaney is correct about
one thing: the IG's report entitled Investigation
of Settlement Agreement Between BLM and Harvey Frank Robbins
"speaks for itself." (Washington
Post, February 23, 2005). The IG's report paints an
amazingly damning portrait of the functioning of Office of
the Solicitor during William Myers' tenure. As discussed below,
it also leaves a number of very important questions about
Myers' involvement in this matter completely unanswered.
According to the IG's report, Robert Comer, a political appointee
who served as one of six "Associate Solicitors"
under Myers during Myers' tenure, spearheaded the Robbins
Settlement. Hitting just the highlights, during the course
of negotiating and implementing this agreement, Comer:
- Ignored concerns repeatedly expressed by the Wyoming U.S.
Attorney's office about the legality of the settlement and
the impact the settlement would have "on the U.S. Attorney's
Office's ability to represent BLM in either criminal or
civil matters."
- Ignored specific objection by the Wyoming BLM office that
explained in detail how the agreement violated regulations
and BLM policies implemented to comply with federal land
management laws.
- Told a staff attorney in the Solicitor's Office that he
would "advise Secretary Norton or [BLM Director Kathleen]
Clark" if he refused to "cooperate" in the
drafting of the Robbins agreement. This line attorney responded
by writing a "Memo to File" documenting the irregularities
in settlement process.
- Instructed the BLM not to enforce grazing law against
Robbins while the settlement agreement was being negotiated.
The report concludes that Comer "negotiate[d] an agreement
with Mr. Robbins and his attorney directly, with little or
no input by senior BLM officials at headquarters and with
total disregard for the concerns voiced by career field personnel.
Later in the process, Mr. Comer would also unilaterally dismiss,
and fail to communicate to decision-makers, the concerns raised
by the U.S. Attorney's Office responsible for taking judicial
enforcement against violators of BLM rangeland rules and regulation."
Comer, according to the AG, "failed to act impartially
and gave preferential treatment to Mr. Robbins in negotiating
and crafting the settlement agreement." His conduct in
the Robbins matter "cries out for administrative action."
While the IG's report does not implicate Myers in Comer's
conduct, it does not absolve him of responsibility for what
was going on under his watch, either. Most importantly, the
IG ignores Mr. Myers' testimony before the Senate Judiciary
Committee that he "specifically authorized" Comer
to negotiate the settlement of the Robbins matter and the
IG's own evidence, developed in an earlier investigation into
Myers' contacts with his former mining and grazing clients,
that Myers was briefed by Comer on the Robbins settlement
before the settlement was executed. There is simply nothing
in the IG's report about Myers' pre-settlement involvement
in the matter, even though there are facts in the record documenting
Myers' direct involvement, at least in a supervisory capacity.
It seems telling that the staff attorney threatened by Comer
would feel compelled to express his concerns about Comer and
the Robbins settlement in a "memo to file," rather
than taking these concerns to Myers. At the very least Myers
bears responsibility for giving Comer authority to settle
the Robbins matter, and not ensuring that Comer followed the
law and department procedures in the negotiating and implementing
Robbins Settlement.
Which brings us to the spin. The IG's press secretary suggests
that the report "clears" Myers because Comer misrepresented
facts to Myers in a July 7, 2003 e-mail. First of all, this
correspondence occurred 6 months after the Settlement was
finalized. In no way does this absolve Myers of his responsibility
for his actions in authorizing and overseeing the Settlement
itself.
As importantly, Comer's message addresses one small aspect
of the settlement: its failure to include provisions addressing
a RICO suit Robbins brought against BLM. At this point, according
to his Senate Testimony, Myers had reviewed the Robbins Settlement
agreement. Was his only concern after reviewing this widely
problematic document the fact that "press reports"
indicated that Robbins has a RICO suit pending against BLM
employees that was not dismissed as part of the settlement?
The Robbins IG report, in short, raises serious questions
about Myers' tenure as Solicitor that have in no sense been
answered. These questions include:
- What role did Myers have in Comer's hiring, supervising,
and retaining Comer?
- What were Myers' instructions to Comer when he "specifically
authorized" Comer to settle the Robbins matter?
- On what basis or who's instructions did Myers authorize
these negotiations?
- What did Comer tell Myers about the settlement during
their pre-settlement discussions of the matter?
- Did Myers ever discuss the Robbins matter with DOI officials
other than Comer?
- Did he ever discuss the Robbins matter with anyone at
the Department of Justice?
- After he reviewed the Robbins Settlement Agreement, did
he have any concerns about the terms of the agreement? If
so, to whom did he express these concerns and what did he
do to address them?
None of these questions are answered in the IG's report.
What is certain is the Robbins settlement, and Myers' role
in it, reinforces the case against Myers confirmation to the
Ninth Circuit. The Robbins settlement is just one of many
examples where Myers, and attorneys under Myers' supervision,
reached unjustifiable results that benefit Myers' former grazing
and mining clients through unfair (and in some cases illegal)
processes. For a comprehensive report documenting the reasons
why Myers has been opposed by an unprecedented number of environmental
organizations and Indian tribes, click
here. For an updated report, click
here (PDF).
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