Bush judicial nominee not blamed for improper grazing deal

By J.R. Pegg

WASHINGTON, DC, February 24, 2005 (ENS): A deal forged by the Interior Department's Office of the Solicitor to settle alleged grazing violations of a Wyoming rancher was improper but the chief of that office was not at fault, according to a report by the department's Inspector General.

The report clears former Interior Solicitor General William Myers - a controversial federal appellate court nominee - of wrongdoing, but critics say it raises more questions than it answers.

The Idaho lawyer is one of a dozen Bush administration judicial nominees blocked by Senate Democrats. Earlier this month the White House renominated the former mining and cattle industry lobbyist to the 9th Circuit Court of Appeals.

Myers served as the Interior Department's top lawyer from 2001 through May 2003, when he returned to the law firm where he worked prior to his tenure at the federal agency.

In a statement released Tuesday, Interior Inspector General Earl Devaney "expressed his hope that [the report] will dispel the criticisms directed at [Myers]."

"A fair reading of the report would suggest that Myers was, in fact, victimized when he was given a distorted explanation by one of his senior Associate Solicitors," according to the statement.

The January 2003 deal approved by Myers centers on 16 grazing violations allegedly committed by Wyoming rancher Frank Robbins.

U.S. Bureau of Land Management (BLM) officials in Wyoming issued Robbins a slew of trespass and grazing notices violations for damage to public lands, and in the mid-1990s the complaints prompted the office to deny the rancher a permit renewal.

In response Robbins filed a civil complaint in federal court in 1998, seeking $12 million in damages, for alleged harassment and attempted blackmail by BLM employees.

The settlement, which has been terminated due to breach by Robbins, would have forgiven the violations, limited future penalties for similar violations and granted Robbins other favorable terms, including a new grazing allotment and increased control over some federal lands.

It would also have allowed Robbins to move forward with his suit against the BLM, even though an independent review team determined Wyoming BLM field officials had followed the law.

The "conduct chronicled in this report cries out for administrative action," according to Devaney, and put "the Department at unnecessary litigation risk, as well as in a position of potential public embarrassment."

But the report fails to fully explain how the settlement was forged.

The investigation by the Interior Department's Inspector General ultimately "could not determine what motivated senior BLM officials to propose and advance the idea of a settlement between Robbins and BLM," Devaney wrote.

There are many accounts that indicate BLM chief Kathleen Clarke recommended pursuing a deal with Robbins, "although she, alone, does not recall doing so," Devaney wrote in a memo accompanying the report.

Clarke removed herself from the process, according to the report, and instructed BLM Deputy Director Frances Cherry to pursue the deal.

Devaney says Cherry "appears to have conducted himself without concern for the implications a settlement agreement would have on the BLM rangeland program and without regard for the objections raised by his career subordinates."

The report, dated October 13, 2004 but made public this week, also blames attorneys with the Office of the Solicitor - in particular Associate Solicitor Bob Comer.

There is ample evidence to "sustain the contention that Mr. Comer failed to act impartially and gave preferential treatment to Mr. Robbins in negotiating and crafting the settlement agreement," Devaney wrote.

Despite Devaney's public plea that critics of Myers put this issue to rest, the report has failed to satisfy some concerned with the conduct of the former Interior Solicitor General.

Attorney Jeff Ruch, executive director of Public Employees for Environmental Responsibility, which represents natural resources employees with all levels of government, says the report targets "obscure middle managers while shielding higher-ups who gave the order."

Ruch notes that in testimony before the Senate Judiciary Committee last year, Myers said he told "a subordinate attorney that he had authority to settle the case" but did not review the agreement before it was signed.

Myers also testified "after the settlement was signed, press reports came out with statements that it was perhaps illegal ... I asked for a copy of the agreement."

But after an internal review determined there were problems with the agreement, Ruch said, Myers did not move to revoke the agreement or reprimand his subordinate - and the report fails to explain his decisions.

"The best that can be said about William Myers' role in this matter is that he was inattentive and indifferent," added Ruch. "Given Myers' role as a former lobbyist for the public lands livestock industry, he had a duty to make sure this deal passed the smell test - a duty that he admittedly shirked."

More than 180 conservation groups, Native American tribes, and other public interest organizations actively oppose Myers nomination to the 9th Circuit Court of Appeals.

Myers' environmental record is considered central to the debate over his qualifications and independence because of the key role the 9th Circuit Court plays in environmental issues.

The court hears cases from nine Western states - where environmental law concerning more than 485 million acres of public lands is decided.

The Senate Judiciary Committee is expected to reconsider Myers' nomination to the court next month.