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Interior Attorney Pushed Land Deal
U.S. agency's chief lawyer, now an appeals court nominee,
urged turning over publicly owned parcel to firm

Los Angeles Times
March 8, 2004
Henry Weinstein


MARYSVILLE, Calif. Last June, at the suggestion of the Interior Department's chief lawyer, William G. Myers III, two congressmen from Northern California introduced a bill that would have given away $1 million worth of public land near this city north of Sacramento to a private firm.

Myers, who had represented mining and cattle interests as a private lawyer before taking the job as solicitor of the Interior Department, acted without consulting the federal government's land managers on the scene. Those officials believed the private company, Yuba River Properties, had no valid claim to the land.

The company claimed it had validly purchased a deed for the land that it said had been issued by the government in the 1940s.

Myers now has been nominated by President Bush for a seat on the federal appeals court that hears cases from California and eight other Western states. With the nomination drawing opposition from many environmental and liberal organizations, Myers' role in suggesting the land bill has become an issue in the confirmation.

"Myers' attempt to give away valuable public lands in this case is another example of how he used his position as Interior solicitor to put the private interests of the industries that paid his bills in private practice over the public's interest," said Doug Kendall, executive director of Community Rights Counsel, one of the organizations leading the opposition to Myers' nomination to the U.S. 9th Circuit Court of Appeals.

Thursday evening, after inquiries by The Times, the Interior Department reversed field and told the two congressmen, Reps. John Doolittle (R Rocklin) and Wally Herger (R Marysville) that the department was withdrawing its support for the bill.

David L. Bernhardt, who serves as the department's director of congressional and legislative affairs and counselor to Interior Secretary Gale A. Norton, said the agency had changed its position on the basis of "additional research" by the Bureau of Land Management and Interior Department lawyers in Sacramento.

Those lawyers discovered "two important new facts of which Solicitor Myers was not aware" when he proposed the legislation, Bernhardt wrote in a letter to the congressmen that was provided to The Times.

One of the facts was that, even though Yuba River Properties was claiming it had had a valid claim to the land all along, it had never paid taxes on the property. Another, according to a report released by Interior Department officials, was that "since at least 1993," the property in question "has been carried on the county's tax records as public lands."

Myers, now back in private life as an attorney in Boise, Idaho, declined to comment.

Matt McKeown, an attorney in the solicitor's office, said Friday that Myers' proposal to award the land to the company through what is known as a private relief bill had been "cleared through our normal process, which includes the Office of Legislative Affairs and the White House's Office of Management and Budget."

Myers was "relying on facts provided by members of Congress" when he suggested that the legislation would be appropriate, McKeown said, adding that "the record shows that Bill did his job."

Although subsequent research contradicted Myers' proposal, anyone criticizing his actions in this situation, McKeown said, "is holding him to a standard of omniscience."

The land at issue is part of 9,670 acres of gravel mounds and ponds known as the Yuba Goldfields that were created by hydraulic mining in the 19th century.

The technique, which was used for many years but eventually stopped because of the enormous damage it caused, involved using high pressure hoses to erode hillsides in search of gold. It dislodged large amounts of sand and rock, which could then be easily mined.

Although the land no longer contains gold, the sand and rock are much in demand for construction projects and are worth hundreds of millions, perhaps billions, of dollars, according to the BLM.

In addition to the gravel and scrub brush, there is a considerable variety of bird life in the area, including wild turkeys, and one of the last genetically pure lines of Chinook salmon inhabits the area's streams, according to Defense of Place, a San Francisco based environmental organization.

The three partners in Yuba River Properties, Merlynn J. Barbour, Darrel E. Pierce and Philip C. Sutherling, contend their firm is entitled to 8 acres of the Goldfields land, a plot known as Lot 5. They base their claim on a deed that a previous company, Yuba Consolidated Goldfields, bought for $3,500 from the U.S. Army in 1943.

In 1998, Yuba River Properties acquired the deed. The next year, the company made a mining deal with a local firm.

In 2000, federal land managers saw workers taking material from property they believed to be public land. In December of that year, the BLM issued a trespass notice to Yuba River and fined the firm $6,546.95. Yuba River did not appeal the fine, nor did it pay the damages. Nor did the company file suit to establish that it was the legal owner.

Instead, in the fall of 2001, the partners sent letters to members of Congress claiming they owned both the land and the mineral rights on it. They sent copies of the 1943 deed and other documents that they said established their ownership rights.

In March 2002, Herger enlisted Doolittle and the two congressmen jointly wrote to Myers on behalf of the company.

A few months later, Myers wrote back. His letter explained in some detail that government lawyers had reviewed the issue and concluded that the Army had the authority only to grant mineral leases in 1943, not to sell land. The mining rights purchased in 1943 had long since expired, the letter said.

The letter noted that BLM officials already had explained to Yuba River officials why they had no lawful claim.

But at the end of his two page letter, Myers said he thought "many of the equities" favored Yuba River Properties.

While the government "unfortunately" did not have the authority to turn over the land "without compensation," Myers wrote, "the department would support private relief legislation" to accomplish that goal.

"On the basis of Mr. Myers' opinion," Herger and Doolittle introduced a bill to turn over the land for free, according to Fran Peace, Herger's district director in Chico. She said two of Yuba River's three partners live in Doolittle's district, while the third partner and the land are in Herger's district.

Peace acknowledged that the bill was controversial. "We are not land title experts," she said. "This office does casework. We try to help our constituents."

When federal land managers in the area learned of the proposal after the bill had been introduced they went to work to try to reverse the department's position.

Deane Swickard, director of the BLM office in Folsom, said he had no problem if companies mined commodities on public land, so long as taxpayers got "fair market value" for the material.

Swickard has developed an overall plan for the area that would generate hundreds of millions of dollars by selling sand and rock. The plan, which has been endorsed by the Board of Supervisors in economically depressed Yuba County, calls for enhancing tourism there by using the money for such things as trails for bird watching and hiking, improved access to the river for rafting and camping, creation of a salmon sanctuary and replenishment of natural habitats.

"I have been here 20 years," said Swickard, 59. "There is 1.3 million tons of rock and 200,000 tons of sand" on Lot 5, he said. "Why in the world would we give it up? I'm not here to give away public resources."

Just before Interior reversed field, Swickard got a letter from department officials praising his "hard work in bringing to our attention here in Washington all the facts surrounding the Yuba River Properties claim to public lands in the Yuba Goldfields area."

"Having those facts and all the information ... enabled us to properly advise the department that the lands in question" belong to the U.S., said the letter from BLM Deputy Director James M. Hughes, "and should rightfully remain in public ownership and be managed for the public benefit."

Swickard said he was pleased with the outcome, as did Bill Calvert, a 69 year old rancher and an activist in the Yuba Goldfields Access Coalition who was opposed to the bill. Both said, however, that if Myers had done routine research in 2002, he would have found the same Yuba County land and tax records that Interior Department officials now cite as the reason to no longer support the legislation.

"It seemed strange for a top attorney" to take a position without doing basic research, said Swickard, who added that he had never met or talked to Myers.

Swickard was not the only civil servant in the department who had expressed concern about the bill. In August, Timothy Carroll, also of the BLM's Folsom office, sent an e mail to another BLM staff member in Washington, asking about the legislation.

"Turns out," Carroll said in an e mail, obtained under the Freedom of Information Act, "Solicitor William G. Myers III suggested this solution to Herger and Doolittle. Would have been nice if he had asked us first."



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