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Bush judicial nominee blasted by Democrats
Friday, February 6, 2004

The Department of Interior's former top lawyer was criticized by Senate Democrats on Thursday for paving the way for a mine on sacred land in California.

William G. Myers III admitted that he never consulted the Quechan Nation over a decision that intimately impacted the tribe's rights. Under questioning from members of the Senate Judiciary Committee, the former Interior solicitor said he didn't think a face-to-face meeting was necessary.

"Did you ever talk with them at all?" asked Sen. Ted Kennedy (D-Mass.).

"No I did not," responded Myers.

Kennedy and other Democrats lashed at Myers for actions he took after joining the Bush administration in July 2001. Reversing an opinion of his predecessor, he decided that the legal basis for denying a permit for the gold mine was faulty.

But before he released his opinion in October of that year, he met with representatives of Glamis Gold, a Canadian-based company that wants to operate a large, open pit, cyanide heap leach mine in the tribe's most sacred area.

"You're open to one side and not the other?" observed Kennedy. "Did it ever occur to you that you ought to talk with the other side?"

Myers said he was told that the Bureau of Land Management was consulting with the tribe. But the BLM had already recommended rejecting the mine, concluding in November 2000 that it would have significant and irreparable damage on rock carvings, sacred trails, cleared circles and other important tribal sites.

The BLM recommendation followed the views of the federal Advisory Council on Historic Preservation. In October 1999, the board said to approve the mine "would be so damaging to historic resources that the Quechan Tribe's ability to practice their sacred traditions. . . would be lost."

Myers is being pushed by the Bush administration for a spot on the 9th Circuit Court of Appeals. The court, controversial in conservative circles for its opinions, hears a large number of cases affecting more than 100 tribes in eight Western states, more than 220 tribes in Alaska and Native Hawaiians in Hawaii.

Myers, an attorney who has been a lobbyist for the ranching, grazing and cattle industry, stepped down from his post at the Interior Department in December. By that time, the National Congress of American Indians (NCAI) and the California Nations Indian Gaming Association (CNIGA) came out against his nomination to the 9th Circuit Court of Appeals.

Adding their opposition were the Association on American Indian Affairs, the Confederated Colville Tribes in Washington, the Inter-Tribal Council of Arizona, the First Americans Education Project of Washington, the Morning Star Institute of Washington, D.C., the National Tribal Environmental Council, the Northwest Indian Bar Association, the Quechan Nation of Arizona and California and the Reno-Sparks Indian Colony of Nevada.

Two tribal leaders from Oklahoma, a state not covered by the 9th Circuit, said they support the nomination. Gov. Bill Anoatubby of the Chickasaw Nation and John Berrey, chairman of the Quapaw Tribe's business committee, said Myers would be an asset to the court. The letters submitted by the two leaders were not accompanied by resolutions from their respective legislative body or council.

In addition to the tribal complaints, scores of environmental groups say Myers' advocacy on behalf of the industry would color his views as a federal judge.

Throughout the hearing, Democrats seized on Myers' writings, speeches and court briefs on behalf of former clients. Sen. Patrick Leahy (D-Vt.), the ranking member of the Judiciary committee, took exception with his comparison of federal environmental laws and regulations to "King George's tyrannical reign over the 13 colonies."

Sen. Dick Durbin (D-Ill.) pressed Myers for his views on the inter-state commerce clause of the U.S. Constitution, which has been the basis of numerous environmental laws and which is part of the basis of the federal-tribal relationship. On behalf of clients who challenged regulations before the U.S. Supreme Court, Myers wrote that the rules ended up harming the environment rather than helping it.

But Myers repeatedly declined to state his personal views on the subject. "All we have to go on is your writings," Durbin said in response.

Sen. Charles Schumer (D-N.Y.) said Myers did not meet his test for a judicial nominee. "You don't strike me as a moderate," he told Myers.

Sen. Dianne Feinstein (D-Calif.) took personal issue with Myers' characterization of a law she personally drafted as "legislative hubris." Myers acknowledge his "poor choice of words." "Accept that apology, please," he told Feinstein.

Myers was introduced to the committee by Sen. Michael Crapo (R-Idaho). "The entire Idaho delegation supports this nomination," said Crapo, who praised Myers' public lands expertise.

Sen. Larry Craig (R-Idaho) ran the hearing on behalf of committee chairman Sen. Orrin Hatch (R-Utah). He blasted Myers' critics as "special interest groups" who want judges with "activist tendencies."

Throughout his career, Myers has shown "balanced and mainstream decision making," Craig said, adding that Myers advocated for repatriation of Native remains and resurveying the boundary of Sandia Pueblo in New Mexico.

Myers was Interior's lawyer in the Kennewick Man case but government lawyers at the Department of Justice abandoned their support for repatriation to five Pacific Northwest tribes on appeal to the 9th Circuit. On Wednesday, three judges of the court said the tribes had no claim to the 9,000-year-old remains.

In documents to the Judiciary Committee, Myers wrote that he was "generally in support" of a bill to settle Sandia Pueblo's claim to 10,000 acres of mountain land. But he never committed to correcting the tribe's reservation boundary, telling another Senate committee that he probably would "have a third opinion" on whether the claim was valid.

Myers is likely to be approved by the Judiciary Committee, which has a one-member Republican majority. But he faces a filibuster on the Senate floor. Democrats have repeatedly blocked President Bush's judicial nominees in the past two years.

Democratic presidential candidate John Kerry, the Senator from Massachusetts, said yesterday that he opposes Myers.

Relevant Documents:
Environmental/Tribal Coalition Letter | NCAI Resolution | Environmental Group's Letter | Holland & Hart Biography

Indianz.Com Profile:
Industry insider named to Interior (March 30, 2001)

From the Archive:
Myers reversing sacred site opinion (10/25)
Bush nominee has no 'agenda' on Clinton decisions (6/21)

Related Stories:
Senate committee to take up Bill Myers judgeship (2/3)
Probes clear ex-DOI lawyer seeking judgeship (01/12)
Appeals court nominee favored industry over tribes (12/18)
Interior's top lawyer stepping down next month (10/02)
DOI's top lawyer under ethics investigation (08/15)
Interior has few answers at Senate hearing (7/18)
Tribes push action on sacred sites (3/21)
Interior Solicitor on trust fund crash course (10/17)
Memo: Solicitor's order was 'intimidating' (10/10)
Myers reversing sacred site opinion (10/25)
Bush nominee has no 'agenda' on Clinton decisions (6/21)
Norton confirmed by 'landslide' (1/31)
Babbitt denies Calif. gold mine (1/19)
BLM recommends mine rejection (11/10)

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