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April 12, 2005
The Honorable Arlen Specter
Chairman, Senate Judiciary Committee
United States Senate
Washington, DC 20510
The Honorable Patrick J. Leahy
Ranking Member, Senate Judiciary Committee
United States Senate
Washington, DC 20510
Dear Senators Specter and Leahy:
We are writing to bring to your attention an important development
concerning the nomination of William G. Myers to the Ninth
Circuit Court of Appeals. Specifically, Karen Budd-Falen,
the attorney for Wyoming rancher Frank Robbins, has asserted,
with some documentary support, that Mr. Myers had "full
knowledge of the [Robbins] Settlement Agreement and all of
its terms" before the Agreement was executed. This assertion
directly contradicts Mr. Myers' testimony before the Senate
Judiciary Committee on this important matter. We urge the
Committee to investigate this controversy further before a
Senate floor vote on Mr. Myers' nomination takes place.
Mr. Myers Has Repeatedly Told This Committee He Had No
Knowledge of the Terms of the Robbins Settlement Agreement
Before the Agreement Was Executed.
In Mr. Myers' first appearance before the Senate Judiciary
Committee in February 2004, Mr. Myers stated unequivocally
that he "was not involved in the negotiations or discussions
of [the Robbins] settlement, other than to tell a subordinate
attorney that he had authority to try to settle that case."
In his more recent oral and written testimony to this Committee,
he has backtracked slightly, admitting that he "had brief
conversations with Mr. Comer several times during the course
of the settlement negotiations process."
Mr. Myers has maintained however, that these conversations
with Mr. Comer amounted "to the effect that [Comer] was
still negotiating." Mr. Myers has continued to state
unequivocally that he was not informed of "the substance
of the negotiations or any terms of the settlement."
He has also asserted that he "did not read the settlement
before it was signed by the client agency" and did not
authorize the settlement terms. Mr. Myers claims that the
first time he reviewed the settlement was "approximately
a half year after it was entered into."
Mr. Myers has been even more forceful in denying knowledge
of the fact that the Robbins settlement agreement failed to
cover the RICO claims brought by Robbins against BLM officials.
Mr. Myers asserts that "he was not informed that the
RICO claims were pending" and he asserts that "these
issues should have been brought to my attention." He
contends that Mr. Comer violated the terms of his office's
Solicitor's Manual in not bringing these issues to his attention
and he asserts that he would not have picked Mr. Comer to
be the Regional Solicitor of the Rocky Mountain Region if
he had known the details of Mr. Comer's conduct in the Robbins
matter.
Frank Robbins' Lawyer Has Directly Contradicted Mr. Myers'
Testimony and Produced Evidence that Mr. Myers Received a
Draft of the Robbins Settlement Before Its Execution.
In the attached 12-page response to the Inspector General's
Report regarding the Robbins Settlement Agreement, Karen Budd-Falen,
counsel to Frank Robbins, directly contradicts Mr. Myers'
testimony. Ms. Budd-Falen asserts that "all relevant
parties within the Department of Justice and the Department
of the Interior were kept informed about all aspects of the
settlement negotiations and the Settlement Agreement."
In particular, with respect to the fact that the Robbins Agreement
was modified to exclude a settlement of Mr. Robbins' RICO
claims, Ms. Budd-Falen asserts that "Cherry, Caramanian,
Roberts, Kunz and Bill Myers (Solicitor for the Department
of the Interior) were all notified of this change."
Ms. Budd-Falen's response also attaches a number of exhibits
including the attached fax cover sheet indicating that Mr.
Comer sent Mr. Myers a copy of a draft of the Robbins Settlement
Agreement on November 13, 2002, several weeks before the agreement
was signed by BLM. The fax is the first indication that Mr.
Myers actually received a draft of the Robbins Settlement
and it raises important questions about the accuracy of Mr.
Myers' assertion that he was not informed about "any
of the terms of the settlement."
Mr. Myers Discussed the Robbins Settlement With Mr. Comer
After Mr. Comer Sent Mr. Myers the Robbins Draft.
Mr. Myers' calendar records indicate that Mr. Myers and Mr.
Comer discussed the Robbins settlement on November 21, 2002,
eight days after Mr. Comer sent Mr. Myers the Robbins draft
and six days before a final, signature copy of the agreement
was produced. As the fax from Mr. Comer to Mr. Myers indicates,
by the time of Mr. Comer's fax and the Myers/Comer conversation,
the Robbins settlement was essentially finished. In his fax
cover sheet, Mr. Comer asks the recipients of the fax: "Does
anyone have any other changes to the Robbins' settlement agreement?"
Mr. Myers has testified that this conversation was simply
an opportunity for Mr. Comer to tell Mr. Myers that he was
"still negotiating" the Robbins settlement. But
this description seems implausible. The negotiations were
essentially over by this point. It seems far more likely that
Mr. Comer sent Mr. Myers a draft of the Robbins settlement
and scheduled this conversation about the settlement to give
Mr. Myers an opportunity to approve or object to the settlement
and its terms. The timing of this fax and the conversation
between Mr. Myers and Mr. Comer thus support Ms. Budd-Falen's
assertion that Mr. Myers was informed of the terms of the
Robbins settlement and undercut Mr. Myers' repeated assertions
that he was out of the loop.
In sum, Ms. Budd-Falen has contradicted a central aspect
of Mr. Myers' testimony to this Committee, and the available
documentary evidence supports Ms. Budd-Falen's account. We
urge the Committee to investigate this new information, with
inquiries directed to Mr. Myers, Mr. Comer, and Ms. Budd-Falen,
before Mr. Myers' nomination is considered on the Senate floor.
Sincerely yours,
Jeffrey Ruch
Executive Director
Public Employees for Environmental Responsibility (PEER)
Douglas T. Kendall
Executive Director
Community Rights Counsel (CRC)
Cc: Members of the Senate Judiciary Committee
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