Sen. Russell D. Feingold (D-Wis.) called Tuesday for an investigation
into whether William G. Myers III, a nominee for the federal
appeals court in San Francisco, lied when he told a Senate
committee that he was not aware of the terms of a controversial
settlement the Interior Department had made with a politically
connected Wyoming rancher until months after the deal was
Myers was the top lawyer at the department in the first term
of the Bush administration, when the agreement was consummated.
Feingold said a memo from Karen Budd-Falen, the rancher's
lawyer, "directly contradicts Mr. Myers' written response
to a question I submitted."
A spokeswoman for Sen. Patrick J. Leahy (D-Vt.), the ranking
Democrat on the Judiciary Committee, said he was reviewing
the information regarding Myers, who cleared the committee
on a 10-8 party-line vote last month. An aide to panel chairman
Sen. Arlen Specter (R-Pa.) said the nominee "was thoroughly
vetted and investigated by the White House, the Department
of Justice, the American Bar Assn. and the U.S. Senate Judiciary
Community Rights Counsel and Public Employees for Environmental
Responsibility, two public interest groups opposing Myers'
nomination to the U.S. 9th Circuit Court of Appeals, gave
the lawyer's memo to senators and urged an investigation.
Myers, a longtime lobbyist for the mining and cattle industries
who served as solicitor of the Interior Department from July
2001 to October 2003, told the Senate Judiciary Committee
during hearings in 2004 and in written responses that he "did
not know" the terms of the settlement with Harvey Frank
Robbins, who had been accused of federal grazing violations,
until he read news accounts of the settlement in July 2003.
Robbins' lawyer has disseminated a memo and supporting material,
including a fax, raising questions about that response. The
Nov. 13, 2002, fax was sent by Robert Comer - the Interior
Department lawyer Myers authorized to make a settlement -
to Myers, other government officials and Budd-Falen.
The cover sheet of the 17-page fax asked the officials, including
Myers, if they wanted to make "any other changes to the
settlement agreement" that was attached.
Myers' calendar records, obtained by environmental groups
under the Freedom of Information Act, showed that he and Comer
discussed the settlement Nov. 21, eight days after the fax
was sent. In Senate testimony, Myers said the conversation
was simply an opportunity for Comer to tell him he was "still
negotiating." The final settlement was signed six days
In the memo, Robbins' attorneys said Myers had "full
knowledge of the settlement agreement and all of its terms"
before the agreement was finalized.
The latest challenge to Myers' nomination comes as Senate
Republicans are pressing for new rules to prohibit filibusters
against judicial nominations. Myers was among 10 nominees
blocked last year when Republicans could not get the required
60 votes to end debate.
Myers was renominated by Bush this year. Virtually every
major environmental organization in the country, along with
Native American, civil rights, labor and women's groups, are
opposed to his nomination. Myers is supported by ranchers,
mining organizations and conservative groups, who say he would
bring balance to the 9th Circuit, generally considered the
most liberal federal appeals court.
Robbins' 2002 settlement excused the Wyoming rancher from
16 trespassing violations and specified that only the director
of the federal Bureau of Land Management, or someone she designated,
could cite him for future violations, not officials in Wyoming
as normally would be the case.
The agreement also gave Robbins a new grazing allotment,
rights of way across federal lands and a special recreational
permit to run a dude ranch. The agreement was reached after
Robbins met with ranking officials of the BLM in Washington.
Robbins told the Los Angeles Times in an interview that Con
Lass, a BLM official with Wyoming roots, had arranged the
meeting after Robbins complained he was being treated unfairly.
Robbins has sued several current and former employees of the
BLM in federal court in Cheyenne, Wyo., alleging that they
violated federal racketeering laws in their dealings with
him. The suit is pending.
The memo from Robbins' lawyer was prepared in an effort to
rebut a stinging critique of the settlement issued in February
by Earl Devaney, the Interior Department's inspector general.
Devaney said the solicitor's office circumvented negotiation
processes, kept the BLM out of the talks, ignored concerns
about the settlement raised by the Justice Department and
engaged in an "inappropriate level of programmatic involvement"
in the settlement talks.
Myers was first asked about the Robbins settlement during
a Senate hearing in February 2004. He said he "was not
involved in the negotiations or discussions of [the Robbins]
settlement, other than to tell [Comer] that he had authority
to try to settle the case."
At his second hearing in February 2005, Myers offered a slightly
different version, saying he had "brief conversations
with Mr. Comer several times during the course of the settlement
negotiation process." Myers said Comer "did not
brief me on the terms of the draft settlement."
Justice Department spokesman John Nowacki, who has served
as Myers' spokesman during the confirmation battle, said Myers
"never saw drafts of the final settlement and didn't
sign the agreement but once he learned of potential problems
with the settlement, he quickly took steps to ensure that
received a thorough investigation."