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Redefining Federalism

Warming Law Blog

Community Rights Counsel
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CONTACT: David Smith/ Jim Manley, (202) 224-2633

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.


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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