RE: Nomination of William G. Myers III to the Ninth Circuit Court of Appeals

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Constance Greer
5 years ago
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1 October 14, 2003 ADVOCATES FOR THE WEST AMERICAN RIVERS AMERICANS FOR DEMOCRATIC ACTION ALLIANCE FOR JUSTICE CLEAN WATER ACTION COMMITTEE FOR JUDICIAL INDEPENDENCE COMMUNITY RIGHTS COUNSEL DEFENDERS OF WILDLIFE EARTHJUSTICE ENDANGERED SPECIES COALITION FRIENDS OF THE EARTH LEADERSHIP CONFERENCE ON CIVIL RIGHTS MINERAL POLICY CENTER NARAL PRO-CHOICE AMERICA NATIONAL ABORTION FEDERATION NATIONAL ENVIRONMENTAL TRUST NATIONAL ORGANIZATION FOR WOMEN NATURAL RESOURCES DEFENSE COUNCIL THE OCEAN CONSERVANCY PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY PEOPLE FOR THE AMERICAN WAY SIERRA CLUB THE WILDERNESS SOCIETY The Honorable Orrin Hatch Chairman, Senate Judiciary Committee United States Senate Washington, DC The Honorable Patrick Leahy Ranking Member, Senate Judiciary Committee United States Senate Washington, DC RE: Nomination of William G. Myers III to the Ninth Circuit Court of Appeals Dear Chairman Hatch and Ranking Member Leahy: The undersigned organizations, representing countless Americans in the Ninth Circuit and across the country, urge you to consider our views on the nomination of William G. Myers III, who recently resigned his post as Interior Department Solicitor, to a lifetime position on the U.S. Court of Appeals for the Ninth Circuit. Specifically, we urge the Senate Judiciary Committee not to schedule a hearing on this nomination until the issues raised by all relevant investigations into alleged ethical improprieties by Myers and his office, including two concurrent inquiries by the Department of the Interior's Inspector General, are completely resolved.

2 Page 2 of 5 Myers record must be carefully scrutinized by this committee, particularly because a substantial minority of the American Bar Association six or seven of the ABA committee s fifteen members rated Myers not qualified for the job. Not a single member of the committee rated Myers well qualified. This fits a disturbing pattern four of the last six appellate court nominees rated by the ABA received a split Q/NQ rating. Scrutiny of Myers record cannot meaningfully take place until the conclusion of all investigations into the ethical questions with respect to Myers conduct as Solicitor. This would seem to go without saying, but we note that this Committee has scheduled a hearing on the nomination of Mike Fisher to the U.S. Court of Appeals for the Third Circuit, even though Fisher was recently found by a federal court jury to have violated the federal civil rights of Pennsylvania state employees. The jury awarded $220,000 in damages against him. The Committee simply should not hold hearings on the nomination of individuals whose records remain under such serious ongoing ethical clouds. Myers Contacts with Former Clients Inspector General Earl Devaney has opened an investigation into whether Myers violated his recusal agreement by holding a number of meetings with former clients during the restricted period. Here is a summary of the relevant facts: Prior to his confirmation as Interior Department Solicitor, Myers entered into an agreement that prohibited him from participating in any particular matter involving specific parties in which [he knows] that [his former law firm] Holland & Hart, LLP, is a party or represents a party. 1 The agreement took effect upon his confirmation by the U.S. Senate July 12, 2001 and remained in effect until July 12, 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 ban, there is evidence, obtained through a FOIA request, that Myers directly participated in deliberations that led the Interior Department to give notice, on March 3, 2003, that it was considering revising the very grazing regulations that had been implemented by the Clinton Administration and upheld by the Supreme Court in Public Lands Council v. Babbitt. 2 As director of Public Lands Council, 3 and then at Holland & Hart, 4 Myers was involved in challenging these regulations in court. As director of PLC, Myers advocated vigorously against these regulations. 5 At Holland & Hart he was a registered lobbyist for the 1 Recusal Letter, William Myers to Wendell K. Sutton, (May 1, 2001). 2 Documents obtained through the Freedom of Information Act (FOIA) by Friends of the Earth 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. 3 Public Lands Council v. Babbitt, 929 F. Supp (D. Wyo. 1996). 4 As counsel with Holland & Hart, Myers authored an amicus brief with the Supreme Court 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 See, e.g., Testimony of William G. Myers III before the Subcommittee on Livestock, Dairy, and Poultry of the House Committee on Agriculture, Sept. 17, 1997.

3 Page 3 of 5 PLC and National Cattlemen s Beef Association. The Inspector General s office must have time to conduct a thorough investigation to resolve these troubling questions prior to Committee consideration of Myers appointment to the bench. The Robbins Grazing Settlement The Inspector General is also currently investigating whether Myers office negotiated an illegal settlement agreement between the Bureau of Land Management (BLM) and H. Frank Robbins, Jr., a Wyoming rancher with a long history of range violations and clashes with the BLM. 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. 6 Calendar records obtained by Friends of the Earth note Myers personal attention to the agreement. Serious concerns about the legality of this settlement have been raised by both BLM employees 7 and the Bush-appointed U.S. Attorney for the District of Wyoming. 8 As explained in a letter from U.S. Attorney Matthew Mead to an Assistant Interior Solicitor, the agreement s special treatment of Robbins could undermine efforts to enforce rangeland protections against other public lands ranchers throughout Wyoming. What justification, Mead asks, is there for prosecuting all permittees other than Robbins for the same conduct? 9 PEER s analysis of the settlement details seven ways in which the agreement violates federal laws and regulations among them, illegally ceding a public easement; granting Robbins additional management flexibility over certain grazing allotments; conditionally awarding Robbins a new grazing permit; and extending preferential treatment in enforcement decisions. 10 Myers bears oversight responsibility for agreements negotiated by his office, especially an agreement such as this that sets new and disturbing precedents for public lands. His calendar records suggest that he specifically authorized this settlement. The Inspector General s and other investigations into this settlement agreement could answer serious questions about Myers involvement and should be completed before further consideration of his nomination to the Ninth Circuit. Conclusion The Ninth Circuit acts as the court of last resort for almost all federal cases arising from Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington. An important part of its caseload includes deciding the fate of federal environmental and other 6 Mike Stark, BLM, Rancher Settle Grazing Dispute, BILLINGS GAZETTE, June 13, According to published reports, an internal BLM memo documents at length the ways the settlement agreement grants Robbins preferential treatment that potentially violates sections of the Taylor Grazing Act, the Federal Land Policy and Management Act, and the Federal Advisory Committee Act, as well as federal regulations. Id. 8 Letter from Matthew H. Mead, US Attorney, District of Wyoming to John R. Kunz, Assistant Regional Solicitor, Department of the Interior, August 28, Id. 10 PEER, Violations of Law Sanctioned within the H. Frank Robbins and Bureau of Land Management Settlement Agreement (2003).

4 Page 4 of 5 safeguards. The people of these states deserve federal appellate judges whose fairness and integrity are beyond question. Consideration of Myers nomination must await completion of all ongoing investigations into Myers conduct. Sincerely, Laird J. Lucas Advocates for the West Amy Isaacs National Director Americans for Democratic Action Paul Schwartz National Campaigns Director Clean Water Action Doug Kendall Community Rights Counsel Vawter Parker Earthjustice Sara Zdeb Legislative Director Friends of the Earth Lexi Shultz Legislative Director Mineral Policy Center Vicki Saporta & CEO National Abortion Federation Kim Gandy National Organization for Women S. Elizabeth Birnbaum Director of Government Affairs American Rivers Nan Aron Alliance for Justice Susan Lerner Chair Committee for Judicial Independence William Snape VP for Litigation Defenders of Wildlife Beth Lowell Policy Director Endangered Species Coalition Wade Henderson Leadership Conference on Civil Rights Kate Michelman NARAL Pro-Choice America Philip E. Clapp National Environmental Trust Gregory Wetstone Director of Advocacy Natural Resources Defense Council

5 Page 5 of 5 Julia Hathaway Director of Legislative Affairs The Ocean Conservancy Ralph G. Neas People for the American Way Jeff Ruch Public Employees for Environmental Responsibility (PEER) Pat Gallagher Director, Environmental Law Program Sierra Club Leslie Jones Deputy General Counsel The Wilderness Society CC: Members, Senate Committee on the Judiciary

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