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Mr. Chairman, I will oppose the nomination of William G. Myers
to the Ninth Circuit Court of Appeals. I believe he should
not be confirmed.
I attended the hearing that was held on Mr. Myers, and I
submitted written follow-up questions, as did a number of
my colleagues. I have to say after listening to Mr. Myers
at the hearing and reviewing his responses to our written
questions that both his previously expressed views and his
lack of candor in discussing them trouble me greatly. Many
times during the nomination hearing, Mr. Myers simply evaded
or refused to answer questions that were posed to him, claiming
that he could not comment on an issue that could come before
him if he is confirmed. This was not the approach taken by
at least some of President Bush's nominees. Then-Professor,
now-Judge Michael McConnell, for example, was forthcoming
in his testimony and answers to written questions. He convinced
me in his hearing that he would put aside his personal views
if he were confirmed to the bench.
In contrast, Mr. Myers has not persuaded me that he can set
aside his personal views and objectively evaluate cases that
come before him. Since Mr. Myers has never served as a judge,
his published articles, his past legal work, his legal opinions
at the Department of Interior, and his testimony before this
Committee are all we have to assess his legal philosophy and
views. This nominee did not simply make a stray comment that
can be interpreted as indicating strong personal disagreement
with our nation's environmental laws; he has a long record
of extreme views on the topic. He had the burden to show us
that he will be fair and impartial on the court. He failed
to carry that burden.
Mr. Myers has called the Clean Water Act an example of "regulatory
excess." He has stated that critics of the Administration's
policies are the "environmental conflict industry."
He has stated that conservationists are "mountain biking
to the courthouse as never before, bent on stopping human
activity wherever it may promote health, safety, and welfare."
He even compared the management of public lands to King George's
"tyrannical" rule over American colonies. Over 175
environmental, Native American, labor, civil rights, women's
rights, disability rights, and other organizations oppose
the nomination of Mr. Myers, which speaks volumes about the
concern that many potential litigants have about his views
on a diverse range of issues that would come before his court.
Rather than explaining what his views were during the nomination
hearing, Mr. Myers repeatedly ducked questions posed by me
and my colleagues.
For example, Senator Leahy asked Mr. Myers to identify which
regulations he considered to be "tyrannical." After
pointing out that he wasn't criticizing government employees,
which obviously wasn't the question, Mr. Myers finally identified
the Rangeland Reform policy of Secretary Babbitt. Yet, when
pressed, Mr. Myers would not say that he personally believed
these regulations were unneeded, but that he was merely "advocating
on behalf of my clients who believed that [rangeland policies]
were harmful to their interests." This is what all nominees
say, of course, when challenged about past statements made
on behalf of clients, but since Mr. Myers has never been a
judge or a law professor, we have no other record to evaluate.
And since he was repeatedly unwilling to tell us about his
personal views in his hearing, we certainly cannot ignore
his previous published statements on important legal issues
he will be called upon to decide.
Mr. Myers's views on the jurisdiction of federal environmental
laws, which he has called "top down coercion," also
concern me. Mr. Myers authored a Supreme Court amicus brief
on behalf of the National Cattlemen's Beef Association and
others in an important case dealing with the jurisdiction
of the Clean Water Act, Solid Waste Agency of Northern Cook
County (SWANCC) vs. U.S. Army Corps of Engineers. The SWANCC
case involved a challenge to the federal government's authority
to prevent waste disposal facilities from harming waters and
wetlands that serve as vital habitats for migratory birds.
Mr. Myers argued in this brief that the Commerce Clause does
not grant the federal government authority to prevent the
destruction and pollution of isolated interstate waters and
wetlands. The Department of Justice, on behalf of the Army
Corps and EPA, has filed approximately 2 dozen briefs in federal
court since the SWANCC decision. DOJ has consistently argued
that the Clean Water Act (CWA) does not limit coverage of
the Clean Water Act to navigable-in-fact waters.
When I asked Mr. Myers about his view of the Clean Water Act
at the hearing and in my follow-up questions, Mr. Myers would
not say whether he agrees with this Administration's consistent
interpretation of the SWANCC case. He would not provide any
information on how he reads the Supreme Court's SWANCC decision
other than it is "binding precedent", nor would
he state what waters, if any, should not receive federal Clean
Water Act protection post-SWANCC. His refusal to respond to
these issues gives me pause because of a recent Ninth Circuit
decision that ruled that the SWANCC decision should be read
narrowly and that wetlands, streams and other small waters
remain protected by the statute and implicitly that the rules
protecting those waters are constitutional. While Mr. Myers
indicated that he would follow this Ninth Circuit precedent,
he refused to elaborate on his views on this crucial issue.
In follow-up questions, I also asked Mr. Myers about a 1994
article he wrote for the National Cattlemen Beef's Association,
which he also represented in the SWANNC case. Myers wrote
that environmental organizations have "aggressively pursued
their goals before friendly judges who have been willing to
take activist positions and essentially legislate from the
bench. No better example can be found than that of wetlands
regulation." Mr. Myers argued: "The word 'wetlands'
cannot be found in the Clean Water Act. Only through expansive
interpretation from activist courts has it come to be such
a drain on the productivity of American agriculture."
Mr. Myers' answers to my questions about this article were
not forthcoming. Mr. Myers would not list any of the cases
he referred to in that article or any cases of which he had
subsequently become aware in which there has been an "expansive
interpretation from activist courts" of "wetlands
regulation." Nor could he provide me with his analysis
of United States v. Riverside Bayview Homes, Inc., 474 U.S.
121 (1985), where the United States Supreme Court unanimously
upheld the Reagan Administration's application of the Clean
Water Act to protect wetlands. Mr. Myers stated that he considered
the case to be binding precedent, which of course it is, but
that doesn't shed much light on his views on the Clean Water
Act. Just last December, the Bush Administration decided not
to move forward with a rulemaking that would have severely
narrowed the reach of the Clean Water Act. Mr. Myers would
not say whether he agreed that this decision was consistent
with the law of the land.
In addition to being concerned about his views about many
potential parties that could come before his courts and his
views on the Clean Water Act and other key environmental statutes,
I am also deeply troubled by Mr. Myers's record as Solicitor
General at the Department of Interior. During his tenure as
the chief lawyer for the Department, Mr. Myers authored a
very controversial Solicitor's opinion, and approved an equally
controversial settlement. This legal opinion interpreting
DOI regulations is one of the only guides we have to evaluate
how a Judge Myers would interpret statutes. Mr. Myers's opinion
overturned legal precedent to permit a previously rejected
and controversial mining project, the Glamis mine, on sacred
Indian lands. The settlement he approved reversed a long-standing
policy on the authority of the Bureau of Land Management to
create wilderness study areas.
The Solicitor's opinion that Mr. Myers authored overturned
a previous ruling regarding the approval of mining projects
and greatly limited the authority of the Interior Department
to deny mining permits under the Federal Land Policy Management
Act ("FLPMA"). FLPMA amends the Mining Law of 1872
in part by requiring that "in managing public land the
Secretary shall, by regulation or otherwise take any action
necessary to prevent the unnecessary or undue degradation
of public lands." In the Solicitor's opinion, Mr. Myers
interpreted this law to mean that the government could only
deny a project to prevent unnecessary and undue degradation
of public lands. Thus, if the proposed mining activity is
"necessary," then Mr. Myers declared that the government
would have no authority to prevent a mine for going forward,
even if it would harm sacred Native American grounds, historic
sites, or environmentally sensitive areas.
Last year, a federal court found that Mr. Myers's opinion
incorrectly interpreted the statute and that the opinion violated
three separate, basic rules of statutory interpretation: 1)
language of the statute should govern; 2) judges should give
effect to every word Congress used; and 3) judges should give
the word "or" its normal disjunctive meaning. The
court declared that Mr. Myers "misconstrued the clear
mandate of FLPMA, which by its plain terms vests the Secretary
of the Interior with the authority - indeed the obligation
- to disapprove mines that 'would unduly harm or degrade the
public land.'"
In response to questions posed by Senator Kennedy about this
opinion at the hearing, Mr. Myers could not adequately explain
his statutory interpretation of "unnecessary or undue,"
nor could he articulate his rationale for finding that the
word "or" in the statute actually meant "and."
The legal opinion allowed the Glamis Imperial Mine Project,
a 1600-acre cyanide heap-leaching gold mine to move forward.
This mine was part of the sacred lands of the Quechan tribe
and was proposed for the ecologically sensitive California
Desert Conservation Area (CDCA). After Mr. Myers issued his
opinion, Secretary Norton decided to approve the mine permit.
Before Mr. Myers served as Solicitor General, he was a lobbyist
for the National Mining Association, Arch Coal Company, and
Peabody Coal Company. Mr. Myers met with mining industry officials
27 times during the first year of his tenure as the Solicitor
General. Mr. Myers obviously has very close ties to the mining
industry, which is why I am particularly concerned about his
meetings with the mining industry before he issued this legal
opinion. Tribal leaders have called the Mr. Myers' legal opinion
and the resulting decision to approve the Glamis mine "an
affront to all American Indians."
In a series of questions from Senator Kennedy about his involvement
in the Glamis decision, Mr. Myers was given the opportunity
to clarify why he would meet with one side of the litigation,
but not the other. Mr. Myers admitted that he and top Interior
officials met with representatives from the mining company
who were pressing to open up the Glamis mine. He stated that
he did not meet with the tribe, because they did not formally
ask for a meeting. I would think that to be fair on this issue,
he would have wanted to meet with both sides. Indeed, the
tribes are entitled to government-to-government consultation
on siting of mines on sacred lands. The National Congress
of American Indians, which includes more than 250 American
Indian and Alaska Native tribal governments, formally opposes
the Myers nomination.
As Solicitor General of the Department of Interior, Mr. Myers
also approved a settlement with the state of Utah that will
remove the possibility of administrative protection for millions
of BLM lands. Mr. Myers supported this reinterpretation despite
the fact that every Interior Secretary in the previous 26
years - including James Watt - affirmed and used BLM's authority
to administratively protect lands as wilderness study areas.
Mr. Myers signed off on the settlement even though the Tenth
Circuit Court of Appeals had previously ruled that Utah did
not have standing to challenge BLM's inventory authority,
and that Utah therefore could not have successfully pursued
the case. When I asked Mr. Myers how he could have approved
a settlement with an entity that did not have standing to
challenge the agency's action, he dodged my question.
I have discussed my concerns about this nominee at some length,
Mr. Chairman, because I wanted to show that my opposition
to Mr. Myers is not based on a single intemperate remark he
has made as an advocate. I simply am not convinced that Mr.
Myers will put aside his personal policy views and fairly
interpret and apply the law as passed by Congress. He has
shown a willingness to disregard clear statutory language
as Solicitor General of the Department of Interior.
It is not enough for Mr. Myers to pledge that he will follow
Supreme Court precedent. As we all know, the Supreme Court
has not answered every legal question. Circuit court judges
are routinely in the position of having to address novel legal
issues. Mr. Myers's writings and speeches raise the question
of whether he has prejudged many important legal questions.
His answers to our questions did not satisfy me that he has
not. I will vote No.
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