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Taking the oath of office can be a solemn moment in the life
of a public servant. For William G. Myers III, a longtime
lobbyist for grazing and mining interests, the occasion was
an excuse for a corporate bash.
On October 4, 2001, Myers attended a reception in his honor
at the swank Hay-Adams Hotel in Washington, D.C., hosted by
his former colleagues at the law firm of Holland & Hart.
Vice President Dick Cheney showed up long enough to swear
in Myers as Solicitor for the Department of the Interior --
the top lawyer in the entire agency, charged with the legal
safeguarding of the federal government's vast array of parks,
wilderness, rangeland and other natural resources. The total
acreage under DOI control accounts for one-fifth of all the
land in the United States.
The next morning, Myers met with several Holland & Hart
partners at DOI headquarters. The purpose of the meeting wasn't
to discuss legal business -- Myers had formally recused himself
from any matters affecting his former clients, such as Peabody
Coal and the National Cattlemen's Beef Association, for one
year -- but to show off his righteous new digs. Myers took
the attorneys on a tour of his office and a conference room
where the photos of previous DOI solicitors are displayed,
then announced that the group had time to visit the office
of his boss, Gale Norton, before she arrived at work.
The office of the Secretary of the Interior is one of the
grandest in federal government, a cavernous room paneled in
oak and blazing with brass and chandeliers. Myers's buddies
were free to test the sofas and check out the view from the
balcony. They were, one recalled later, "appropriately
awed." But the solicitor soon glanced at his watch and
suggested it was time to go.
At that moment, Secretary Norton opened the door, nearly
leveling one of the senior partners in the process. After
some awkward introductions, the group beat a hasty retreat
down the hall.
Myers's critics love to tell the story of that embarrassing
encounter; the image of high-priced industry lawyers making
themselves at home in Norton's office is emblematic, they
say, of the corporate takeover of the DOI that began shortly
after George W. Bush was elected. But it's also indicative
of the bumpy ride that Myers had as solicitor. His brazenly
pro-industry approach angered environmentalists and Native
American groups, and his office -- which oversees 315 attorneys
around the country -- was frequently embroiled in ethics probes.
Myers left the government in 2003, returning to the cozy
embrace of Holland & Hart's office in Boise. Last year
he was one of ten Bush candidates for federal judgeships whose
nominations were blocked by filibustering Senate Democrats.
After Bush's re-election, the administration promptly resubmitted
Myers and several other nominees for consideration. Despite
strenuous objections from ranking Judiciary Committee liberals
-- Vermont's Patrick Leahy calls Myers "the most anti-environment
nominee sent to the Senate in my time here" -- this month
Myers will be the first of the contentious candidates to be
debated on the Senate floor.
Opponents insist that Myers's biases are far too extreme
to warrant a lifetime seat on the U.S. Court of Appeals for
the Ninth Circuit, a region that encompasses millions of acres
of public lands stretching from Hawaii to Montana. They've
found plenty of ammunition in his past legal work and writings,
such as his comparison of federal land management to the "tyranny"
of King George, his denunciations of the Endangered Species
Act, and his derisive references to environmental activists
"mountain-biking to the courthouse...bent on stopping
human activity wherever it may promote health, safety and
welfare."
But some of the toughest questions Myers has faced in recent
weeks focus on a deal that went down in the DOI solicitor's
office during his watch there. In an effort to resolve years
of court battles between a Wyoming rancher and the Bureau
of Land Management, attorneys working under Myers agreed to
a bizarre settlement that heavily favored the rancher at the
expense of their "client," the BLM. Essentially,
the deal forgave numerous alleged trespasses and grazing violations
by the rancher, Frank Robbins; deprived the local BLM office
of the ability to enforce the law in the event of further
problems with Robbins; and allowed Robbins to continue to
press a costly and punitive lawsuit against individual BLM
employees, accusing them of racketeering and extortion.
Questioned by investigators from the DOI's Office of Inspector
General about the settlement, Myers claimed that he was unaware
of key details until after the deal was done. The IG's report
-- completed last fall, but not publicly released until four
months later -- is much more critical of the actions of Robert
Comer, a political appointee who worked directly under Myers
and is now the Rocky Mountain regional solicitor for the DOI,
based in Lakewood. According to the report, Comer used "pressure
and intimidation" to try to get the settlement done his
way; misled or failed to inform senior officials about problems
with the deal; and ramrodded it through "with total disregard
for the concerns voiced by career field personnel."
Environmental groups appalled by the settlement believe the
IG's report was entirely too kind to Myers and other senior
DOI officials. "They centered on small fry, middle managers,
and let the principals skate," says Jeff Ruch, executive
director of Public Employees for Environmental Responsibility
(PEER), an advocacy group for federal whistleblowers that
had requested the internal investigation of the Robbins matter.
"This deal was green-lighted at the highest levels."
Jon Marvel, executive director of the Western Watersheds
Project, which filed a lawsuit challenging the settlement,
agrees. "I have no doubt that Bill Myers was perfectly
aware of what was going on and may have directed what was
going on," he says. "Myers is one of the preeminent
apologists for public-lands ranching, and the Robbins settlement
is the quintessential example of that point of view in action
-- where, because someone is rich and connected, they get
treatment that nobody else ever got."
Robbins and his attorney also dispute the report's findings,
saying they give a false picture of what went on in the negotiations,
unfairly depict Comer as some kind of rogue agent, and ignore
the substantial history of "wrongdoing" on the part
of the government that led to the settlement. The deal was
voided last year after alleged breaches of the terms by Robbins,
but Robbins charges that the BLM caved to pressure from environmentalists
-- and the BLM now faces additional lawsuits filed by his
attorney in Cheyenne.
"It's a crucifixion, what's been taking place,"
the rancher says. "They have put me completely out of
business now. The damages are huge. I'm talking about millions
and millions of dollars. They had no reason to break that
settlement agreement."
The report's scathing attack on Robert Comer seems to have
satisfied no one. (It probably didn't satisfy Comer, either;
he declined to be interviewed, saying that he was not authorized
by the DOI to comment on the IG's findings.) But whether Comer
was straying off the reservation or doing exactly what senior
officials wanted, the misfired Robbins deal provides a rare
glimpse into the inner sanctum of Norton's Department of the
Interior. The strange saga of Robert Comer and his know-nothing
bosses answers more than a few questions and leaves a big
one on the table:
Just who are these guys working for, anyway?
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Transfixed by the demons of Iraq, terrorism and the economy,
the national media has paid little attention to the Bush administration's
record on the environment. That's just the way the administration
likes it: Major policy shifts involving the opening of formerly
pristine areas to energy exploration or the weakening of pollution
laws tend to be announced late on Friday afternoons or right
before major holidays, when they attract as little coverage
as possible.
Not since the days of James Watt, Ronald Reagan's famously
combative Secretary of the Interior, have so many industry
foxes been appointed as stewards of the federal henhouse.
But Secretary Norton, who long ago served as lead attorney
for Watt's Mountain States Legal Foundation in Denver before
becoming Colorado's attorney general, has advantages that
her mentor did not, including a much more compliant Congress.
With lawmakers' help, she's managed to open up public lands
to development interests on a scale that Watt could never
have hoped for.
In the Norton era, the staunch political opposition to drilling
for oil and gas in the Arctic National Wildlife Refuge, a
freeze-out that lasted 25 years, melts away in a matter of
weeks. That's great news, the secretary proclaims -- even
though the decision will have no effect on today's soaring
gas prices, since commercial production is still at least
a decade away and there's no guarantee that the oil companies
will sell their spoils in this country, anyway.
In the Norton era, decades of federal protection for wild
mustangs get wiped out by an obscure provision in a 3,000-page
spending bill that effectively turns thousands of the animals
into horseburgers. Now wild horses and burros that are more
than ten years old or have struck out on three adoption attempts
can be sold "without limitation" to the highest
bidder at auction; those bidders are generally dealers representing
one of three foreign-owned slaughterhouses in the U.S. that
prepare horsemeat for human consumption abroad. It's a win-win
deal for everybody but the horses: Grazing interests get thinner
herds of the pesky ponies to compete with, and Belgians get
a slice of the American West on their breakfast table.
In the Norton era, buzzwords such as "consultation"
and "cooperation" mask a top-down approach to partnering
with industry, and even seemingly innocuous references to
a "cleaner" and "healthier" environment
conceal Orwellian doublespeak. Thus, the Healthy Forests Restoration
Act gives a giant boost to commercial logging in national
forests, all in the name of fighting wildfires. The Clear
Skies Initiative vows to reduce smokestack emissions but actually
allows twice as much crud in the air as Bill Clinton's plan.
Major policy moves that open up public lands to commercial
use are supposed to be based in sound science, not politics.
But in the Norton era, staff scientists find that their non-partisan
research -- on, say, how many off-road vehicles it takes to
squash the desert tortoise population, or the true extent
of the Florida panther habitat -- is routinely ignored.
In fact, it is now possible to stroll into a National Park
Service bookstore and purchase a work of Bible-based "natural
history," explaining that the Grand Canyon is merely
6,000 years old. Religious symbols and Bible verses are receiving
more prominent display in the parks, over the protests of
local managers and apparently at the instigation of political
appointees within the DOI.
The tilt toward industry and "faith-based parks"
has been a difficult adjustment for many of the department's
field personnel, particularly those engaged in resource protection
and public land management. A recent report by the Office
of the Inspector General, based on a survey sent to more than
25,000 DOI employees, concluded that there was a "culture
of fear" within the department; more than one-quarter
of respondents stated that they feared retaliation if they
reported problems.
"The grade level of our intake is way up," says
PEER's Ruch, referring to the type of whistleblowers within
the DOI who contact his organization. "It's gone from
range conservationists to field office managers and state
directors."
The solicitor's office is one of the most politically charged
components of the Department of the Interior, since it offers
more political-appointee positions than any other -- including
the solicitor, deputy solicitor and six associate solicitors.
Under Myers, it became a hotbed of former lobbyists and litigators
accustomed to challenging the government's regulatory "excesses"
on behalf of grazing associations and mining and energy companies
-- the same regulations that they were now sworn to uphold.
One of the stars of the new regime was Robert Comer, associate
solicitor for the Division of Land and Water -- a post that
oversaw legal matters dealing with the Bureau of Land Management
and the Bureau of Reclamation, among other agencies. A Denver
attorney who'd worked as a field ecologist, done a previous
stint in the regional solicitor's office in Lakewood, represented
mining giant Asarco as in-house counsel and served on the
board of the Colorado Mining Association, Comer came to Washington
with impeccable credentials as a warrior for the cause. There
was talk around the office that he was "pretty tight"
with then-Deputy Secretary Steven Griles (another former energy
lobbyist, now back in the private sector); that he was "going
places"; even a rumor that he could be the next director
of the BLM.
But judging from the comments of staffers who worked with
Comer in Washington and in the regional solicitor's office
in Lakewood, he was also disliked in some quarters -- and
feared. "He was thought of as someone who could send
you to Nebraska," says one insider, who requested anonymity
out of concerns about retaliation. "The agenda was clear
-- to de-emphasize protection of public lands. People learned
to back off rather than push the law."
"He would tell attorneys what conclusion he wanted them
to reach, rather than asking their legal opinion," says
another. "That's not the way it's supposed to work. His
biases were very apparent. They weren't based in the law,
and he didn't represent the positions of the agencies he was
supposed to represent. Usually, if it was something that favored
the feds, it was automatically bad."
Comer was known as a hard worker who often put in long hours.
He was also frequently out of the office, observers say --
visiting his family, speaking at conferences or otherwise
engaged. But then, Myers was often absent, too. In contrast
to the DOI solicitor in the Clinton years, John Leshy, a high-profile
scholar who'd literally written the book on public-land regulations
(Coggin, Wilkinson and Leshy's Federal Public Land and
Resources Law), Myers was an elusive boss.
"It wasn't like Bill was a strong figure, and Bob was
carrying out his business," says one source. "There
was no one leading the office, and Bob had free rein. He was
acting on his own judgment a lot of the time, in my opinion."
Comer was a key player in one of the DOI's most startling
policy turnabouts: the decision to settle a dispute with the
State of Utah over whether the BLM could continue to make
recommendations for wilderness designation of any of its lands.
The deal threw out years of wilderness studies and opened
up millions of acres of BLM land across the West to possible
development -- including Colorado's wildlife-rich Roan Plateau,
now targeted for hundreds of natural-gas wells ("Raiding
the Roan," January 1, 2004).
The Utah deal outraged environmentalists, since it signaled
the end of a process that dated back to the days of Jimmy
Carter and had survived the administrations of both Reagan
and George Bush the First. But among advocates of greater
commercial use of BLM lands, it was hailed as an unequivocal
triumph.
Given the Utah case and other momentous work that Comer was
engaged in, some insiders thought it was curious that he'd
be asked to resolve an ugly but very local dispute between
a single rancher and a BLM office in Wyoming. But then, very
little about the Robbins matter was typical. And the solution
that Comer devised was odder still, even by the odd standards
of the Norton era.
--------------------------------------------------------------------------------
Frank Robbins talks like a man who's been running cows through
Wyoming all his life. He has the lingo, the drawl -- and the
wariness of outsiders that comes with riding the range and
hassling with bureaucrats.
"The environmentalists created the whole problem,"
he says. "They see cows as one of the worst environmental
hazards, and the rancher is the biggest criminal there is.
That's the war we're in here."
Actually, Robbins is a relatively recent arrival to the Cowboy
State. His family hails from Alabama, where the E.S. Robbins
Company, a manufacturer of office products, is a major employer
and Frank's father and uncle are known as prominent Republican
donors. Robbins moved to Wyoming in 1994, when he bought the
High Island Ranch and Cattle Co. near Thermopolis. Over the
next six years he acquired two more ranches. Today his properties
total around 55,000 acres, mingled with BLM lands totaling
another 55,000 acres.
Robbins's operations included raising cattle, operating a
dude ranch and taking guests on cattle drives -- all activities
that depended on access to the federal lands interlaced with
his own. But his relationship with the BLM field office in
Worland soon became strained, then nuclear. The rancher locked
horns with local regulators over a host of alleged infractions,
including cows trespassing on neighbors' BLM allotments; bringing
more cattle to his allotments than the permits allowed, or
bringing them too early or too late; and refusing to follow
drought restrictions or obtain proper permits for his cattle
drives.
By some accounts, local BLM staff first made "informal
attempts" to resolve the disputes with Robbins -- no
formal trespass actions were issued for two years, despite
continuing reports of violations -- but the rancher's refusal
to cooperate led to a tougher stance and increasing trespass
citations.
The Robbins version, contained in lawsuit pleadings in Cheyenne
and Denver, is that things turned nasty after the rancher
declined to grant the BLM an easement across his property
to replace one approved by the previous owner that had lapsed.
Such reciprocal arrangements are common between ranchers and
the BLM; Robbins needed a similar easement from the BLM just
to maintain a road that led to the High Island. But Robbins
claims the BLM tried to "extort" an easement from
him by throwing its weight around.
The situation came to a head in the summer of 1997, when
two BLM employees encountered Robbins on their way to repair
a fence on one of the rancher's allotments. Robbins tore up
the easement document they showed him, which allowed them
access to the area. In response, the U.S. Attorney's Office
in Cheyenne charged him with a misdemeanor: interfering with
a federal officer. Robbins was acquitted at trial, and he
then filed suit against several employees of the BLM's Worland
office, claiming violations of his constitutional rights and
extortion under the Racketeering Influenced and Corrupt Organizations
(RICO) Act. He's also filed administrative appeals on almost
two dozen BLM actions against him.
Just how much of a problem Robbins's operations posed to
public lands is a matter of debate. One 2002 BLM report stated
a concern that unauthorized grazing by his livestock during
a time of drought was causing "sustained, long-term ecological
damage."
"It was clear that Robbins didn't know what he was doing,"
says Marvel of the Western Watersheds Project, who toured
the area with Robbins and BLM officials in 2002. "Not
that many ranchers do, but he was an especially bad one because
of the damaged condition of the riparian areas and even the
stripped nature of the uplands. He's the worst kind of hobby
rancher -- irresponsible, arrogant and much too rich."
However, a University of Wyoming professor who studied Robbins's
operation at his request came away with a less alarming impression.
Michael Smith, who teaches in the renewable-resources department
at Laramie, believes that many of the conflicts arose from
trying to coordinate grazing permits associated with different
ranches that had never been run as one entity before. "There
is no fundamental resource condition problem on the ranch,
just fundamental personal differences among various individuals,"
he says. "I think a reasonable grazing plan could be
developed for that operation if the two parties were willing
to start over."
Robbins himself bristles at the notion that he's some kind
of hobby rancher. He estimates he's spent $800,000 on legal
fees in the past eight years defending his livelihood against
the BLM. "This is my life out here," he says. "They've
destroyed my life. I haven't made money in this operation
since 1997. Every dime this ranch makes goes to lawyers. How
many years are you willing to work for nothing?"
The rancher says he took his complaints about the Worland
BLM office "to the congressional people, to the governor,
to anybody who would listen." After Bush's election,
he finally found a receptive audience at DOI headquarters.
On February 8, 2002, he was granted a meeting with senior
BLM officials in Washington, during which he recited a long
list of alleged misdeeds by the Worland office, including
harassment, blackmail, perjury and bad faith.
"I looked at everybody in that room," Robbins recalls.
"There were twelve or fifteen people in there, and six
or eight on the speaker phone, a bunch of lawyers from the
Department of Justice. I said, ŒIf you folks had perjury
on me, y'all would put me in jail. I have proven to you today
perjury by your own people, and you're not gonna do a thing
to 'em.'"
Environmental groups have speculated that the "juice"
for this unusual assembly came from the Robbins family's ties
to powerful Alabama politicians, including Senator Richard
Shelby. But Robbins says the meeting was arranged by Conrad
Lass, the BLM's chief of staff. "Con Lass was a Wyoming
boy," Robbins says, "and we put the pressure on
him to get us a meeting up there."
The IG's report supports Robbins's account. Lass told investigators
that the meeting was attended by a friend of Robbins's father
whom Lass knew from his days as a lobbyist in Alabama; the
friend now runs a political consulting business in Washington.
Lass added that he "decided to distance myself from any
significant involvement" in the dispute, since he was
a native of Worland and his family was active in politics
there. But the BLM's chief of staff continued to be party
to some discussions about the Robbins matter several months
after the February meeting.
The BLM's initial response to Robbins's complaints was to
conduct an internal review, which concluded that the Worland
office had not exceeded its authority in its dealings with
him. The review even recommended the possibility of taking
criminal action against the rancher "based on documented
violations." But in a meeting with BLM director Kathleen
Clarke and Robert Comer, one member of the review team said
that he didn't think the Worland office was "acting as
objectively or neutrally as they should be" in dealing
with Robbins. (Robbins regards the admission as tantamount
to a confession of mistreatment.) According to the team member,
Clarke then turned to Comer and asked him to work out a settlement
that would resolve the dispute.
The IG's report heaps much of the blame for what happened
next on Comer. The deal that took shape, through months of
negotiations between Comer and Robbins's attorney, suspended
enforcement actions against the rancher for his numerous alleged
grazing violations; set up an "informal dispute resolution"
process that removed enforcement authority from the local
office, so that only BLM director Clarke or her designee could
authorize new actions against Robbins; required the BLM to
grant to Robbins a right-of-way on the contested road without
requiring a reciprocal easement; and even raised the possibility
of a land swap with the feds that would add to Robbins's holdings
in the area.
The report suggests that various officials who should have
had more input on the settlement either didn't learn of its
terms until after the fact, or raised objections that were
largely disregarded by Comer. For example, Tom Roberts, then
an assistant U.S. attorney in Cheyenne, protested that the
agreement treated Robbins differently from every other BLM
permit-holder in the state, making it harder to cite Robbins
for future violations and giving him an unusual degree of
control over the government's right to access public lands.
Roberts says he received a short, "antagonistic, unpleasant,
in-my-face" phone call from Comer, letting him know that
his objections weren't well received.
But the biggest sticking point was the RICO suit that Robbins
had filed, suing eight BLM employees individually for their
actions. Roberts insisted that the suit, which sought potential
damages as high as $12 million, should be dismissed with prejudice
as part of any deal with the rancher. The IG report claims
that Comer not only failed to get the RICO suit withdrawn
but failed to inform his superiors of Roberts' objections;
yet drafts of the agreement show that Comer did propose various
ways of addressing the RICO problem, short of the dismissal
Roberts wanted -- and that several BLM officials were briefed
on those efforts.
In the end, the U.S. Attorney's Office did not sign off on
the deal, which was finalized in early 2003 and approved by
BLM deputy director Fran Cherry. News of the settlement leaked
out the following summer, prompting a request for an investigation
by PEER and a lawsuit from the Western Watersheds Project,
arguing that the agreement was illegal. Both organizations
blasted the DOI for its "sweetheart deal" with Robbins.
"These things don't happen out of the blue," says
the WWP's Marvel. "They happen because, it's clear, people
in Washington pushed aside the local administrators to get
Frank Robbins off the hook."
Robbins's contention that the BLM's own misconduct had prompted
the conciliatory agreement doesn't pass the laugh test, adds
Jeff Ruch. "The range staff in Wyoming BLM is the furthest
thing you can get from anti-cattle," he says. "People
in other BLM offices are threatened with transfers to Wyoming
to get an attitude adjustment. For this staff to bust their
pick in a case, this must be a completely extreme situation."
Robbins denies that he received preferential treatment. "That's
just hogwash," he says. "They've been beating me
over the head with a stick and kicking me in the ass for years.
How I get preferential treatment after eight years of hell,
I don't know. It's ridiculous."
Robbins's Cheyenne attorney, Karen Budd-Falen, was so incensed
by the IG report's "politically motivated" account
of events that she issued her own ten-page rebuttal. "I
have done lots of settlements with the BLM with these kind
of provisions," says Budd-Falen, who, like Secretary
Norton, once worked for the Mountain States Legal Foundation.
"What the government got out of it was not having to
spend zillions of dollars and huge amounts of time to litigate
a whole bunch of cases."
What the government didn't get out of it, though, was a dismissal
of the RICO case -- a potentially explosive precedent that's
still very much alive. Last year, Wyoming federal judge Clarence
Brimmer denied the government's motion for summary judgment
on the grounds of governmental immunity, ruling that Robbins
had presented "a significant amount of evidence which
could lead a jury to conclude that [the BLM employees] did
intend and agree to extort and punish" him. Brimmer's
ruling is now being reviewed by the Tenth Circuit Court of
Appeals in Denver.
Budd-Falen points out that various drafts of the settlement
included the option of staying the RICO case for thirty months
or even dismissing it without prejudice. Assistant U.S. Attorney
Roberts was so confident that he would prevail in the RICO
case that he refused to consider including it in the deal,
she says.
Roberts, who's now a member of the Wyoming Board of Equalization,
explains that he wasn't willing to consider a stay or a dismissal
without prejudice, which wouldn't preclude Robbins from refiling
the case. "I wasn't going to ask my clients to let a
case sit in limbo for two years," he says. "One
of our concerns all along was that you can't have federal
employees being sued under RICO."
After the settlement hit the newspapers, Bill Myers e-mailed
Comer and asked him why the RICO suit wasn't included in the
agreement, since the papers were saying "we did not protect
our own employees."
"I was quite insistent with both Robbins and [AUSA Roberts]
that we settle the RICO portion of the case," Comer e-mailed
back to his boss. "Fran Cherry was ok with the idea,
but neither the AUSA or Robbins were agreeable...the AUSA
was particularly blustery about the issue, and his boss concurred.
As a result, the RICO claims were not settled. Everyone wanted
to have their positions vindicated."
Roberts told the IG investigators that Comer's version was
"an absolute falsehood which completely misrepresents
my position." He produced e-mails and other documents
of his own that indicate his office pushed for a complete
dismissal of the RICO case and denounced the agreement that
Comer had come up with as "fraught with problems."
But Comer continued to insist that he'd acted as a "neutral
third party," trying to extricate the BLM and the rancher
from a litigious death match. Roberts was part of the "posse"
out to get Robbins, he told the IG's people, and complaints
from various quarters of not being briefed on where the settlement
was going were unfounded.
"The BLM was directly involved," Comer said. "The
BLM Washington office was directly involved in reviewing drafts
of this and, in fact, called the shots on every single aspect
of this document."
--------------------------------------------------------------------------------
On January 30, 2004, a BLM manager notified Robbins that
his settlement agreement was now void because of continuing
instances of grazing violations. Robbins says the violations
were minor and "non-willful," resulting from some
cows having slipped through a fence break, and shouldn't have
triggered such a severe response. He's now pursuing several
additional claims against the government based on what he
regards as its unlawful voiding of a politically unpopular
settlement.
"The Department of the Interior is full of environmentalists,"
he says disgustedly. "We've just got a lot of conspiracy
and collusion here. Everybody decided I was the enemy."
Back in Washington, senior DOI officials have done their
best to distance themselves from the Robbins affair. Indeed,
everyone involved in the settlement agreement seems to have
erected a wall of plausible deniability around their actions
-- with the exception of Bob Comer.
"I think Bob is being used as a scapegoat," says
attorney Budd-Falen. "When you look at the drafts that
were sent back and forth, they were copied to all sorts of
people."
Yet those people are all blessed with amnesia. Questioned
by IG investigators, BLM director Clarke couldn't even recall
asking Comer to settle the dispute; all she recalled was putting
her deputy director in charge of the matter.
Deputy director Cherry, who signed the deal, maintained that
he was unaware of the "significant concerns" raised
by the Department of Justice about the agreement. Yet Cherry
had been part of a teleconference with Comer and Roberts on
precisely that point, had been copied on numerous documents
dealing with the RICO case, and had even had conversations
with Robbins directly concerning his refusal to drop the lawsuit.
(Now retired, Cherry received only a mild scolding in the
IG's report.) Various other BLM and DOI officials pleaded
ignorance about the deal, despite a trail of settlement drafts
and briefing memos that tracks right to their office doors.
Then there's William Myers. Tap-dancing before Senate Democrats
in his judicial confirmation hearings a few weeks ago, Myers
tried to strike the right note of innocent bewilderment and
mild concern over the Robbins deal. He had "no information"
before or during Comer's negotiations, he told his inquisitors,
"that this settlement effort would be particularly controversial."
He didn't see the settlement document until after Cherry had
signed it. He didn't know about the RICO problems until after
the story hit the papers. Had he known, he might have called
off the whole settlement, he said, and he might have reconsidered
his decision to recommend Comer for the post of Rocky Mountain
regional solicitor.
Asked by Wisconsin senator Russ Feingold if he thought Comer
had misled him, Myers responded, "I believe there was
additional information about the course of the negotiations
that should have been brought to my attention by Mr. Comer."
The performance neatly omitted any mention of the information
that Comer did bring to his attention. Documents not released
with the public version of the IG's report include an acknowledgment
by Myers that he "was periodically briefed by Comer on
the progress" of the settlement. According to Budd-Falen,
Myers was notified when the RICO case was dropped out of the
agreement. He also was the one of the recipients of a "briefing
paper" Comer wrote, explaining his actions after the
DOI started to get heat over the settlement in the summer
of 2003. Shown a copy of that document by the IG investigator,
Myers said he couldn't recall having ever received it.
Myers's claims of being several steps removed from the Robbins
mess haven't persuaded the environmental groups keen on blocking
his appointment to the bench. "What we know from his
testimony is that he hired Comer, that he specifically authorized
Comer to negotiate this deal, and that this is the only settlement
of its kind that he ever authorized an associate solicitor
to negotiate," says Doug Kendall of the Washington-based
Community Rights Counsel. "Why get a senior political
appointee involved in a settlement between a single rancher
and a local BLM office?"
Myers's defenders argue, not implausibly, that he was far
too distracted by a massive lawsuit against the DOI over its
handling of Indian trust accounts to be concerned about Robbins.
One could also make a case that Comer, caught between an intransigent
rancher and zealous field officers, tried to cut a pragmatic
(if lopsided) deal that would get Robbins -- whose lawsuits
required an ongoing response that amounted to full-time work
by two staffers in the regional office -- off the department's
back. But that isn't the way the Inspector General saw it.
"The conduct in this report cries out for administrative
action," states the IG's findings, yet no such action
has been forthcoming. The only administrative move Comer has
endured is his transformation from political appointee in
Washington to regional solicitor in Colorado -- a process
known in federal circles as "burrowing in," since
a civil-service post offers greater job security than a tenuous
appointee position.
"We were all amazed that he was able to burrow in,"
says one of Comer's former colleagues. "What he did would
never fly in private practice. If you represent the wife in
a divorce and you do everything in the case to favor the husband,
she could bring a malpractice case against you."
Seven years after it began, Frank Robbins's lawsuit against
the BLM employees who tasked him is still limping through
the courts, a source of great frustration to both sides. Some
of the employees are approaching retirement, and at least
one has died since it all started.
"It's incredible that people trying to do their job
have been treated this way," says Jon Marvel. "Letting
that RICO suit continue is a black, black mark on the government."
But an attorney for the Department of the Interior has many
different kinds of clients. The agencies. Senior officials.
Their employees. The land, wildlife, minerals and other resources.
And, of course, the public.
It just happens that, in the Norton era, some of the clients
are a lot more important than others.
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