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I will vote against the nomination of William Myers to the
Ninth Circuit because that nomination is a bad idea for the
Ninth Circuit and a bad idea for the nation.
Mr. Myers lacks the outstanding professional record we seek
in nominees to the federal courts of appeals. Over a third
of the members of the ABA's Committee on Judicial Nominations
found him "unqualified," and none of them found
him "well-qualified." As Solicitor General of the
Interior Department, he produced only three formal opinions.
The first was criticized by a federal judge for misinterpreting
the law. The second opinion Mr. Myers himself felt he needed
to correct, and the third was that correction - not exactly
an impressive record.
The Role of the Ninth Circuit
More important, Mr. Myers' record raises serious questions
on issues related to environmental law and the rights of Native
Americans. It's especially important for a nominee to the
Ninth Circuit to be able to review impartially cases affecting
these issues. That Circuit contains millions of Native American
tribes and vast public lands, and it often has the final word
on legal questions affecting the environment and the rights
of Native Americans. Mr. Myers' record raises major doubts
on these issues.
The Importance of the Federal Government's Trust Responsibilities
for Native American Tribes
The federal government's legal relationship with Native
American tribes is unique. It has a duty to respect the sovereignty
of the tribes and to protect and safeguard tribal lands. It
also has a duty to engage in government-to-government consultation
with Native American tribes on matters affecting their interests.
The Department's role in protecting these lands and conducting
government-to-government relations with Native American tribes
is one of its most important responsibilities. It's not a
responsibility we hear much about. But given the federal government's
history of often failing to honor these cultural, religious,
and human rights, the Department of Interior has a moral as
well as a legal duty to take its trust obligations seriously.
We know the shameful history -- the forced relocation, the
Trail of Tears, the forced assimilation, and the many other
historical injustices against Native Americans. In more modern
times, we tried to recognize the rights and dignity of Native
American peoples by legislation and by Executive Order. The
Department of Interior's trust responsibility toward Native
Americans is a part of ensuring that the wrongs of the past
are not repeated.
Mr. Myers' record during the two years that he served as
chief lawyer for the Department of the Interior is very troubling.
During that time, he had a duty to see that his decisions
properly took into account the Department's unique role for
Native Americans and to consult with Native Americans on matters
affecting them, but Mr. Myers often failed in that duty.
No case better illustrates the problem than his role in
the Glamis Imperial Gold Mine project. In 2001, as Solicitor
General of the Department, Mr. Myers issued a formal opinion
that cleared the way for a foreign company to build a 1,650
acre open-pit gold mine in the heart of the California Desert
Conservation Area - one of America's most culturally and ecologically
sensitive areas.
The mine project threatened to devastate a local tribe's
ability to practice their religion and culture. The Advisory
Council on Historic Preservation concluded that allowing the
mine to be built would mean that the tribe's "ability
to practice their sacred traditions as a living part of their
community life and development would be lost."
As a result, the Department concluded that the mine would
violate the Federal Land Policy and Management Act, which
prohibits mining that causes "unnecessary or undue degradation"
of federal lands. But Mr. Myers then issued an opinion that
swept away this legal roadblock to the mine by interpreting
the words "unnecessary or undue degradation" to
mean their exact opposite -- "unnecessary and undue degradation."
A federal court recently held that Mr. Myers' opinion "misconstrued
the clear mandate" of the Act, and ignored "well-established
canons of statutory construction."
Mr. Myers' obvious mis-reading of the law is very troubling,
and so is the way he reached his decision. He had a duty to
engage in government-to-government consultation with the tribe
before acting against their interests, but he refused to meet
with them or the other Colorado River tribes affected by the
mine before making his decision. Instead, he met with representatives
of the foreign mining company and, in the words of those representatives,
let them "tell their story." But the tribes were
not given the same chance for their story to be heard.
This is like a judge hearing oral argument only from the
side he agrees with. In fact, it's much worse, because the
side that didn't get a hearing was the side Mr. Myers had
a duty to consult.
Mr. Myers says he knew enough about the Native Americans'
views to make his decision without speaking to them, because
he'd read their court filings and a letter from the attorney
for the tribe explaining its concerns. But that letter stated
only that the mine threatened areas sacred to the tribe and
asked for a meeting with Mr. Myers, which the tribe never
got. Six months later, when Mr. Myers finally got around to
replying to the letter, he told the tribe he'd already issued
his decision permitting the mine. I ask that the letter from
the tribe and Mr. Myers' response be placed in the record.
It's misleading for Mr. Myers to use the tribe's letter
asking for a meeting as a way to justify his decision not
to meet with tribal leaders. His other reasons for not engaging
in meaningful, government-to-government consultation with
the tribe are equally incredible.
In answers to written questions, Mr. Myers used the September
11, 2001 terrorist attack as a reason for not meeting with
the tribe. But just a few days after September 11th, he met
face-to-face with representatives of the mine. He also stated
in answers to written questions that he would have met with
the tribe if they'd come to Washington to see him. But he
never contacted the tribe to tell them that.
This is not the only example of Mr. Myers' insensitivity
to Native Americans. He also actively supported the efforts
of Oil-Dri, the world's largest cat litter manufacturer, to
open clay mines on federal land near the ancestral burial
grounds of the Reno-Sparks Indian Colony in Nevada.
Given this record, it's no surprise that Mr. Myers' nomination
has generated wide-spread opposition from Native American
tribes. In my years on the Committee, I can't recall any nominee
who raised such deep concern among Native American tribes.
We've received countless letters from tribes about this nominee,
and the message is loud and clear.
The president of the National Congress of American Indians,
the oldest and largest national organization of Native American
and Alaska Native governments, has said that "[f]or Native
Americans, Mr. Myers is the worst possible choice."
The Affiliated Tribes of Northwest Indians, which have never
before opposed a judicial nominee, have written that as Solicitor
General of the Interior Department, Mr. Myers "trampled
on law, religion, and dignity" by rolling back "protections
for sacred native sites on public lands . . . ."
The Chairman of the National Indian Gaming Association says
that its members in the Ninth Circuit "are not looking
for special treatment from the federal judges assigned to
the region," but only "impartiality, honesty, and
competence."
Mr. Myers' Environmental Record
The concerns about Mr. Myers' record on Native American
issues alone should be enough to object to his nomination.
But his environmental record is just as troubling.
As Solicitor General of Interior, Mr. Myers' decisions on
environmental issues often went hand-in-hand with the interests
of his former clients in the mining and cattle industries.
He issued a legal opinion undermining an environmental group=s
effort to purchase and retire grazing permits on ecologically
sensitive public land. We only recently learned that as Solicitor
General, Mr. Myers supported giving 1 million dollars' worth
of public land to private interests, without first consulting
with the Bureau of Land Management.
As Solicitor General, Mr. Myers criticized environmental protections.
In a speech to the Cattlemen's Association, he stated that
"[t]he biggest disaster now facing ranchers is not nature
. . . but a flood of regulations designed to turn the West
into little more than a theme park." He has made numerous
other intemperate statements disparaging environmental laws,
which he has called "outright, top-down coercion."
Mr. Myers and his supporters dismiss these statements as
off-hand remarks that mean little or nothing. Like every other
nominee before this Committee, Mr. Myers says that if confirmed
he will put aside past views and look at the issues. We are
asked to trust that despite the intensity with which he's
advocated these views, and the years he has devoted to opposing
environmental regulations that restrain the mining and cattle
industries, he will still "follow the law" if he's
confirmed to the Ninth Circuit. Repeating that mantra again
and again in the face of his extreme record does not make
it credible that he will do so.
Conclusion
The hallmark of our courts is that all who go to court will
know that they will get a fair hearing. Even those who are
poor and have no political power or influence have a right
to justice through the courts, and judges who respect that
right.
It's often judges who step in to safeguard the environment
and to protect the rights of Native Americans when the federal
government fails to faithfully fulfill its trust obligations
to the tribes.
Mr. Myers' record does not justify a life-time appointment
to the court of appeals. He's free to keep advocating for
private interests in his law practice, but I doubt we'd confirm
him now for the Department of Interior, and we certainly shouldn't
confirm him to a federal court.
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