[Senate Hearing 109-38]
[From the U.S. Government Publishing Office]
S. Hrg. 109-38
CONFIRMATION HEARING ON THE NOMINATION OF WILLIAM G. MYERS III, OF
IDAHO, TO BE CIRCUIT JUDGE FOR THE NINTH CIRCUIT
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
__________
March 1, 2005
__________
Serial No. J-109-21
__________
Printed for the use of the Committee on the Judiciary
U.S. GOVERNMENT PRINTING OFFICE
21-544 WASHINGTON : 2005
_____________________________________________________________________________
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; (202) 512�091800
Fax: (202) 512�092250 Mail: Stop SSOP, Washington, DC 20402�090001
COMMITTEE ON THE JUDICIARY
ARLEN SPECTER, Pennsylvania, Chairman
ORRIN G. HATCH, Utah PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina RUSSELL D. FEINGOLD, Wisconsin
JOHN CORNYN, Texas CHARLES E. SCHUMER, New York
SAM BROWNBACK, Kansas RICHARD J. DURBIN, Illinois
TOM COBURN, Oklahoma
David Brog, Staff Director
Michael O'Neill, Chief Counsel
Bruce A. Cohen, Democratic Chief Counsel and Staff Director
C O N T E N T S
----------
TUESDAY, MARCH 1, 2005
STATEMENTS OF COMMITTEE MEMBERS
Page
Durbin, Hon. Richard J., a U.S. Senator from the State of
Illinois, prepared statement................................... 148
Feingold, Hon. Russell D., a U.S. Senator from the State of
Wisconsin, prepared statement.................................. 160
Kennedy, Hon. Edward M., a U.S. Senator from the State of
Massachusetts, prepared statement.............................. 188
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 9
prepared statement........................................... 217
Schumer, Hon. Charles E., a U.S. Senator from the State of New
York........................................................... 4
Specter, Hon. Arlen, a U.S. Senator from the State of
Pennsylvania................................................... 1
PRESENTER
Craig, Hon. Larry E., a U.S. Senator from the State of Idaho
presenting William Myers, Nominee to be Circuit Judge for the
Ninth Circuit Court of Appeals................................. 2
STATEMENT OF THE NOMINEE
Myers, William G., III, Nominee to be Circuit Judge for the Ninth
Circuit........................................................ 12
Questionnaire................................................ 13
QUESTIONS AND ANSWERS
Responses of William G. Myers III to questions submitted by
Senators Leahy, Feinstein, and Feingold........................ 58
Responses of William G. Myers III to questions submitted by
Senator Kennedy................................................ 74
Response of William G. Myers III to a follow-up question
submitted by Senator Leahy..................................... 83
Responses of William G. Myers III to follow-up questions
submitted by Senator Kennedy................................... 85
SUBMISSIONS FOR THE RECORD
Affiliated Tribes of Northwest Indians, Portland, Oregon, letter. 89
Ak-Chin Indian Community, Terry O. Enos, Chairman, Maricopa,
Arizona, letter................................................ 92
American Federation of Labor-Congress of Industrial Organizations
(AFL-CIO), William Samuel, Director, Department of Legislation,
Washington, D.C., letter....................................... 93
Andrus, Cecil D., Office of Legal Policy, Department of Justice,
Washington, D.C., letter....................................... 94
Anoatubby, Bill, Governor, The Chickasaw Nation, Ada, Oklahoma,
letter......................................................... 95
Attorneys General--Gregg Enkes, Attorney General of Alaska; M.
Jane Brady, Attorney General of Delaware; Mark J. Bennett,
Attorney General of Hawaii; Ken Salazar, Attorney General of
Colorado; Douglas Moylan, Attorney General of Guam, Lawrence
Wasden, Attorney General of Idaho; Brian Sandoval, Attorney
General of Nevada; Larry Long, Attorney General of South
Dakota; Patrick Crank, Attorney General of Wyoming; Wayne
Stenehjem, Attorney General of North Dakota; W.A. Drew
Edmondson, Attorney General of Oklahoma; Mark Shurtleff,
Attorney General of Utah; Gerald J. Pappert, Attorney General
of Pennsylvania; Jim Petro, Attorney General of Ohio; and Jerry
Kilgore, Attorney General of Virginia, joint letter............ 96
Barr, William P., McLean, Virginia, letter....................... 100
Bear River Band of Rohnerville Rancheria, Janice McGinnis, Tribal
Vice-Chairperson, Loleta, California, letter................... 101
Berrey, John L., Chairman, Quapaw Tribe, Quapaw, Oklahoma, letter 103
Big Pine Paiute Tribe of the Owens Valley, Jessica L. Bacoch,
Tribal Chairperson, Big Pine, California, letter............... 104
Big Sandy Rancheria, Connie Lewis, Auberry, California, letter... 106
Cabazon Band of Mission Indians, John A. James, Tribal Chairman,
Indio, California, letter...................................... 108
Cachil DeHe Band of Wintun Indians, Wayner R. Mitchum, Colusa,
California, letter............................................. 110
California Nations Indian Gaming Association, Susan Jensen,
Director of Communications, Sacramento, California, letter and
attachment..................................................... 112
California Rural Indian Health Board, Inc., James Crouch,
Executive Director, Sacramento, California, letter............. 117
Circle Tribal Council, Circle, Alaska, letter.................... 120
Civil rights, disability rights, senior citizens, women's rights,
human rights, Native American, planning and environmental
organizations, joint letter.................................... 122
Colorado Cattlemen's Association, Lucy Meyring, President,
Arvada, Colorado, letter....................................... 132
Confederated Tribes of Siletz Indians, Delores Pigsley, Tribal
Council Chairman, Siletz, Oregon, letter....................... 133
Congress of the United States, concerned Members of Congress,
Washington, D.C., joint letter................................. 135
Crapo, Hon. Mike, a U.S. Senator from the State of Idaho,
statement...................................................... 140
Cuddy, Hon. Charles D., Idaho State Representative, Clearwater,
Idaho, letter.................................................. 142
Delaware Tribe of Indians, Joe Brooks, Chief, Bartlesville,
Oklahoma, letter............................................... 144
Dennis, Michael, Director, Conservation Real Estate and Private
Lands, Nature Conservancy, Arlington, Virginia, letters........ 146
Elko Band Council, Hugh Stevens, Vice-Chairman, Elko, Nevada,
letter......................................................... 151
Environmental, Native American, labor, civil rights, disability,
women's and other organizations, list.......................... 153
Fallon Paiute-Shoshone Tribe, Len George, Vice-Chairman, Fallon,
Nevada, letter and attachment.................................. 156
Friends of the Earth, January 2004, article...................... 165
Habematolel Pomo of Upper Lake, Carmella Icay-Johnson,
Chairperson, Upper Lake, California, letter.................... 168
Ho-Chunk Nation Legislature, Wade Blackdeer, Vice President,
Black River Falls, Wisconsin................................... 170
Hopland Band of Pomo Indians, Sandra C. Sigala, Tribal
Chairperson, Hopland, California, letter....................... 171
Hyde, Hon. Henry J., a Representative in Congress from the State
of Illinois, letter............................................ 173
Inaja Cosmit Band of Mission Indians, Rebecca Maxcy Osuna, Tribal
Chairwoman, Escondido, California, letter...................... 174
Inter Tribal Council of Arizona, Nora McDowell, President,
Chairwoman, Fort Mojave Tribe, Phoenix, Arizona, letter........ 176
Jamestown S'Klallam Tribe, W. Ron Allen, Tribal Chairman,
Executive Director, Sequim, Washington, letter................. 178
Justice For All Project, Susan Lerner, Chair, Committee for
Judicial Independence, Los Angeles, California, letter......... 180
Kalispel Tribe of Indians, Glen Nenema, Chairman, Usk,
Washington, letter............................................. 185
Kaw Nation, Guy Munroe, Chairman, Chief Executive Officer, Kaw
City, Oklahoma, letter......................................... 187
Kite, Marilyn S., Justice, Supreme Court of Wyoming, letter...... 199
Lawyers and professors of law, joint letter...................... 200
Leadership Conference on Civil Rights, Wade Henderson, Executive
Director, and Nancy Zirkin, Deputy Director, Washington, D.C:
letter, February 3, 2004..................................... 213
letter, July 19, 2004........................................ 215
Lewiston Tribune, Lewiston, Idaho, editorial..................... 225
Members of the California State Senate--John Burton, President
Pro Tempore; Shiela Kuehl, Chair, Senate Natural Resources
Committee; and Byron Sher, Chair, Senate Environmental Quality
Committee; Sacramento, California, letter...................... 226
Mesa Grande Band of Mission Indians, Charlene G. Siford,
Chairman, Santa Ysabel, California, letter..................... 231
Mooretown Rancheria, Melvin Jackson, Vice Chairman, Oroville,
California, letter............................................. 233
National Association for the Advancement of Colored People,
Hilary O. Shelton, Director, Washington, D.C., letter.......... 235
National Congress of American Indians, Tex G. Hall, President,
Washington, D.C., letter and attachment........................ 238
National Senior Citizens Law Center, Edward C. King, Executive
Director, Washington, D.C., letter............................. 243
National Wildlife Federation, Larry Schweiger, President and
Chief Executive Officer, Reston, Virginia, letter and
attachments.................................................... 245
The Nature Conservancy, Steven J. McCormick, Arlington, Virginia,
letter......................................................... 253
Nightmute Traditional Council, John George, Tribal Administrator,
Nightmute, Alaska, letter...................................... 254
Offices of the Governors, joint letter........................... 255
Oglala Sioux Tribe, John Yellow Bird Steele, President, Pine
Ridge, South Dakota, letter.................................... 257
Organizations representing Americans in the Ninth Circuit and
across the country, joint letter............................... 259
Paskenta Band of Nomlaki Indians, Everett Freemen, Tribal
Chairperson, Orland, California, letter........................ 264
Passamaquoddy Tribe, Melvin Francis, Chief/Sakom, Perry, Maine,
letter......................................................... 266
People for the American Way, Ralph G. Neas, President,
Washington, D.C., letter....................................... 268
Public Employees for Environmental Responsibility, Jeffrey Ruch,
Executive Director, Washington, D.C., letter................... 269
Published opposition to the nomination of William Myers to the
9th Circuit Court of Appeals, list............................. 271
Pueblo of Laguna, Roland E. Johnson, Governor, Laguna, New
Mexico, letter................................................. 273
Quechan Indian Tribe, Mike Jackson, Sr., President, Yuma,
Arizona, letter and attachment................................. 275
Ramona Band of Cahuilla Mission Indians, Manuel Hamilton, Tribal
Chairperson, Anza, California, letter.......................... 279
Redding Rancheria Tribe, Tracy Edwards, Tribal Chair, Redding,
California, letter............................................. 281
San Pasqual Band of Mission Indians, Allen B. Lawson, Tribal
Chairman, San Diego County, California, letter................. 283
Santa Ysabel Band of Diegueno Indians, Johnny Hernandez,
Chairperson, Santa Ysabel, California, letter.................. 285
Sax, Joseph L., House & Hurd Professor of Law, University of
California, San Fancisco, California, letter................... 287
Seminole Nation of Oklahoma, Ken Chambers, Principal Chief,
Wewoka, Oklahoma, letter....................................... 288
Sierra Club, Patrick Gallagher, Director of Environmental Law,
Washington, D.C., letter....................................... 290
Simpson, Hon. Alan K., former U.S. Senator the State of Wyoming,
letter......................................................... 293
Simpson, Hon. Mike, and Hon. C.L. ``Butch'' Otter,
Representatives in Congress from the State of Idaho, joint
letter......................................................... 294
Sullivan, Michael J., Governor, Attorney at Law, Rothgerber
Johnson & Lyons, LLP, Casper, Wyoming, letters................. 295
Thornburgh, Dick, Washington, D.C., letter....................... 297
Timbisha Shoshone Tribe, Shirley Summers, Tribal Chairperson,
Bishop, California, letter..................................... 298
Tulalip Tribes, Herman A. Williams, Jr., Chairman, Board of
Directors, Tulalip, Washington, letter......................... 300
U-tu Utu Gwaitu Paiute Tribe, Joseph C. Saulque, Tribal Chairman,
Benton, California, letter..................................... 301
Van Hyning, Dyrck, Van Hyning & Associates, Inc., Grant Falls,
Montana, letter................................................ 303
Viejas Band of Kumeyaay Indians, Anthony R. Pico, Chairman,
Alpine, California, letter..................................... 304
Wasden, Lawrence G., Idaho Attorney General, Boise, Idaho, letter 306
Winnebago Tribe of Nebraska, John Blackhawk, Chairman, Winnebago,
Nebraska, letter............................................... 308
Women's, reproductive rights and human rights organizations,
joint letter................................................... 309
NOMINATION OF WILLIAM G. MYERS III, OF IDAHO, TO BE CIRCUIT JUDGE FOR
THE NINTH CIRCUIT COURT OF APPEALS
----------
TUESDAY, MARCH 1, 2005
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 9:30 a.m., in
room SD-226, Dirksen Senate Office Building, Hon. Arlen
Specter, Chairman of the Committee, presiding.
Present: Senators Specter, Hatch, Coburn, Leahy, Feinstein,
Feingold, and Schumer.
OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM
THE STATE OF PENNSYLVANIA
Chairman Specter. Good morning, ladies and gentlemen. The
hour of 9:30 having arrived, we will proceed with the Senator
Judiciary Committee on the nomination of Mr. William Myers for
the United States Court of Appeals for the Ninth Circuit.
Senator Craig and Mr. Myers, will you sit down, and after brief
opening statements, we will come to you.
The President resubmitted the name of Mr. Myers on Monday,
February the 13th, along with other resubmissions, and the
schedule was established the very next day, on February 14th,
to have a hearing the first week we were back after recess. And
we have decided to begin with Mr. Myers among those who have
been renominated, quite candidly so we can count 58 votes for
cloture, that is, to cut off debate and to move forward the
confirmation process. And we have had a very contentious 108th
session with the filibusters being employed for the first time
in the history of the Republic, but the filibusters did not
spring up without quite a considerable background, which I
think is important to keep in mind.
In the last 2 years of the Reagan administration when I was
on the Judiciary Committee, as I have been for 24 years and 2
months, the Democrats slowed down the confirmation process, as
they did during the tenure of President Bush I. And then during
the 6 years of President Clinton, after we Republicans took
control in 1995, we slowed down the process again. So it was
ratcheted up during Reagan, Bush, even more during Clinton, and
then the Democrats took it to what I thought was an
unparalleled height, or depth, in the filibuster. And then
Republicans responded with the interim appointment.
So we have a situation where it is very, very contentious,
and I have talked to many of my colleagues about this issue,
and I sense a lot of concern among both Republicans and
Democrats to try to avoid the controversy if we can. But no one
wants to back down, and no one wants to lose face. So that is
the tough issue which we face at the present time.
There was talk about a rule change, the constitutional
option. There was talk about the so-called nuclear option where
there would be a change in cutting off debate from 60 to 51
votes. And there are precedents for that approach, but it is
one to be taken with great reluctance, if at all. I have not
yet taken a position on the matter. With some tenure in the
Senate and with a very high regard for the history and
tradition of the Senate, which saved judicial independence in
the impeachment trial of John Jay shortly into the 19th century
and Presidential authority with the defeat of the impeachment
of President Johnson in 1868, the Senate has been the guardian
of minority rights, which is rockbed Americana.
We have to consider this issue, which is very, very
important to us today, in a historical perspective as to what
the view might be a century from now as to the weighing of the
minority rights and the tradition of the Senate, contrasted
with the very important matter of getting judges confirmed and
the President's authority to appoint the judges and the
Senate's constitutional authority to confirm.
So with that brief background, let me ask you to stand, Mr.
Myers, for the oath. Do you, William Myers, solemnly swear that
the evidence testimony you will present before this Committee
will be the truth, the whole truth, and nothing but the truth,
so help you God?
Mr. Myers. I do.
Chairman Specter. We are pleased to welcome back our
distinguished colleague, Senator Larry Craig, who served on the
Judiciary Committee, and elected, I believe, in 1990 after
having served extensively in the House of Representatives, a
senior member of the U.S. Senate, a very distinguished member
and a good friend of mine. Senator Craig, you have the floor.
PRESENTATION OF WILLIAM G. MYERS III, NOMINEE TO BE CIRCUIT
JUDGE FOR THE NINTH CIRCUIT COURT OF APPEALS, BY HON. LARRY E.
CRAIG, A U.S. SENATOR FROM THE STATE OF IDAHO
Senator Craig. Well, Mr. Chairman, first and foremost,
thank you very much for that kind introduction but, more
importantly, I am extremely pleased to see you looking healthy
today, and I say as a friend that I pray for you and your
health situation. We need you to stay healthy for lots of
reasons: first of all, because you are my friend; but,
secondly, your importance to this Committee and to this Senate
at this very important juncture is extremely valuable. And I do
appreciate that necessary and appropriate introduction as to
the circumstances we find ourselves before this morning.
Mr. Chairman, I have the honor of introducing my friend and
fellow Idahoan, the former Solicitor of the Interior, William
Myers, who was nominated by the President to serve in the Ninth
Circuit Court of Appeals. Bill is not a stranger to this
Committee, but let me recap a few of those important factors
for all of us and for the record.
He has had a distinguished career as an attorney,
particularly in the area of natural resources and public land
law, where he is nationally recognized as an expert. These are
issues of particular importance to the public land States of
the West, which are represented on the Ninth Circuit. These
issues are not just professional business issues to him. In his
private life, he has also long been an outdoorsman, and he has
spent significant time as a volunteer for the National Park
Service.
The majority of Bill's career has been spent in public
service, including working as legislative counsel for former
Senator Alan Simpson, deputy general counsel to the Department
of Energy, and assistant to the Attorney General of the United
States. The Senate confirmed him by unanimous consent to the
post of Solicitor of the Interior in 2001.
The entire Idaho Congressional delegation supports him. Our
colleague Mike Crapo would be seated beside us this morning,
but you know Mike also has a health challenge and is currently
taking treatment for that. Our colleagues in the House, both
Congressman Mike Simpson and Congressman Otter, extend their
full support.
But Bill's supporters are not limited to just Republicans.
They also cross political and ideological lines, and this
Committee has received letters from many of them. For instance,
Mr. Chairman, the former Democrat Governor of Idaho, Cecil
Andrus, who was Secretary of Interior under President Carter,
said that Bill has the necessary personal integrity, judicial
temperament, and legal experience as well as the ability to act
fairly on matters of law that will come before him on the
court.
Bill's supporters also include the former democratic
Governor of Wyoming, Mike Sullivan; the Attorneys General of 15
States, including three Democrats; and the Governors of five
States in the Ninth Circuit--Alaska, Hawaii, Idaho, Montana,
and Nevada.
I stress the breadth of Bill's support because it
demonstrates what some members of this Committee have said, and
I know--I once served here as you mentioned--how important it
is that the nominees are viewed as mainstream. We may not be
able to agree on the objective standards of mainstream, but I
think we can agree that when individuals with strongly
differing political points of view recognize and support the
same person, as is clearly demonstrated by the supporters of
Bill Myers, this can be recognized as part of mainstream.
What are some of the indicators that a nominee is
mainstream? Let me suggest a few. Has the nominee been
unanimously confirmed to some other position by the Senate? Did
the ABA determine he is qualified for the judgeship? As a
lawyer, did he zealously represent his clients, as required by
the Rules of Professional Conduct for attorneys? Would his
addition to the court to which he has been nominated help to
bring the court into the mainstream? Do the people who know him
best from all walks of life support him? Has he received the
Federal Government's highest security clearance after half a
dozen background checks by the FBI and the Secret Service? Have
his clients' positions been vindicated by the U.S. Supreme
Court in more than 75 percent of his cases?
In Bill's case, the answer to all of these questions is
yes, Mr. Chairman. Last year, a bipartisan majority of the
Senate voted to cut off the filibuster of the Bill Myers
nomination. While we fell short of the number needed to
actually get an opportunity to vote up or down on this nominee,
that kind of bipartisan support is not given to a nominee who
is unqualified and far out of the mainstream.
Even the Washington Post has backed off from its recent
criticism of Mr. Myers. I am sure some members of the Committee
saw the story last month entitled ``Judicial Nominee
Criticized; Actions at Interior Department questioned by
Inspector General.'' That story dealt with a statement
reached--a settlement, excuse me, reached by the BLM with a
rancher named Harvey Frank Robbins. Well, as they said, the
rest of the story came out a week later, with an article
entitled ``Judicial Nominee Cleared in BLM Case, Interior IG's
Report Critical of Others.'' And the next day, the Washington
Post even printed a retraction, stating that its first article
had incorrectly characterized a letter from Interior
Department's Inspector General as directly criticizing Bill
Myers when in reality that IG letter did not say Mr. Myers was
responsible.
It is a new day in Washington when the Post sets the record
straight by dismissing criticism of a Bush nominee. I hope the
new day means the Judiciary Committee will conclude that the
few issues dredged up to throw at Mr. Myers are nothing more
than red herrings.
Bill Myers is a fine man, a talented public servant, a
skilled lawyer, and he will be an outstanding judge of the
Ninth Circuit. And I ask you and this Committee to support his
nomination.
Thank you very much, Mr. Chairman.
Chairman Specter. Thank you very much, Senator Craig.
Regrettably, Senator Mike Crapo, the junior Senator from
Idaho, could not be with us today, but without objection, his
full statement will be made a part of the record.
Now I turn to the distinguished Chairman of the Courts
Subcommittee--the Ranking Member, Senator Schumer.
STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR FROM THE
STATE OF NEW YORK
Senator Schumer. Chairman would be nice.
Thank you, Mr. Chairman. First I want to say it is good to
have you back feisty and thinking, as you always are, and we
are glad you are here and doing the good job that you have
always done.
And, Mr. Myers, I want to say to you I know you are a hard-
working, decent man, and I know this process has been difficult
to you and your family. Unfortunately--and I know you
understand this, having allowed yourself to be renominated--you
are one of the handful of nominees who are part of a real
constitutional struggle between the branches of Government. So
while I know many of the comments regarding your nomination and
the nominations process as a whole will be tough, I want you to
know they are not personal but arise from concern about the
process and from a sincere difference in viewpoints about
judicial philosophy.
Now, it did not have to be this way. The President has left
us with no choice. His actions show Democrats that he is taking
a ``my way or the highway'' approach to judicial nominees. The
President set the tone in this debate, and many others, after
he won re-election. He said, ``I've earned political capital,
and I'm going to spend it.'' His nomination of seven judges
that were blocked in the last Congress is a thumb in the eye of
bipartisanship. It should not be. That should not be the way.
The President has put nothing new on the table. He has
effectively said let's have another fight. That does not
accomplish anything. There is simply nothing to be gained from
the President's unfortunate decision to play a game of judicial
chicken.
The renominations are a particular and deliberate affront.
The handful of men and women who were rejected were not
rejected casually. They were rejected because, after full and
fair consideration of their records, they were found to be
extreme. They are only among ten of 214 who have been rejected.
Repeated accusations of obstruction are ludicrous, and they are
counterproductive. We confirmed fully 95 percent of the
President's nominees. Democrats merely blocked by
constitutional means only a handful of perhaps the most
intemperate and immoderate judicial nominees ever sent our way.
Mr. Chairman, the President and the Senate both have a
vital constitutional role to play in this process. Just as the
President does not shrink from his, we will not shrink from
ours. When the President sends us a radical and regressive
nominee, one so far out of the mainstream he cannot even see
the shoreline, we as Senators have no choice but to return to
sender--once, twice, or ten times, if need be.
At the same time, we too regret the breakdown in relations
within the Senate. We also long for a return to bipartisanship.
As much as anyone, I would like to see an end to rancor.
Recently, Mr. Chairman, you have spoken in a voice of comity
and conciliation. I agree with you that, ``The advice clause in
the Constitution has been largely ignored.'' After you became
Chairman, about 2 months ago, you invited me to your office and
you asked how could we work together. Well, the first thing I
said is something that should not be done. The President should
not renominate the seven nominees or the ten nominees who were
rejected. The next day he did the same thing, and I was
heartened to hear that you suggested that these renominations
were not the best idea.
You have a long history of fairness when it comes to
approaching the judicial nominations process. And like you, I
do not want to see the Senate or the Nation torn apart over the
next Supreme Court nomination.
Fortunately, there is a simple solution, and it does not
require Democrats to take the highway. The solution lies in
consultation. We are right now so far apart it seems hard to
bridge the gap. But both sides should start talking so that we
can step back from the brink.
As I wrote to you in a letter last week, Mr. Chairman, I
urge you to put together a small bipartisan group of Senators
to ensure that the Constitution's advice role is truly
meaningful during the lead-up to the next Supreme Court
nomination. The group should meet with the President in the
next few weeks and could eventually make joint recommendations
to the President of highly qualified, mainstream judicial
nominees who would receive broad support in the Senate.
In this way, we can choose discourse over demagoguery,
harmony over acrimony, bipartisanship over one-upsmanship. To
us, to many of us, receiving 51 percent in the election is not
a mandate and not an imperative for one-party rule. We believe
we have an important and active role to play, and we will play
it.
The Founding Fathers, whom many of us like to cite, foresaw
just such a collaborative relationship between the President
and the Senate in the appointment of judges, especially to the
highest Court of the land, the Supreme Court. Significantly,
the Founding Fathers expected that because of the advise and
consent clause, the President would take great care and be
judicious in his nominations. As Hamilton wrote in the
Federalist Papers about the importance of the Senate's role in
approving nominees, ``The possibility of rejection of nominees
would be a strong motive to care in proposing.''
Alexander Hamilton, who believed more in Presidential power
than, say, Jefferson, was saying that the Senate ought to be
able to reject nominees as a check on the President. He did not
say do it by a majority vote or a two-thirds vote or anything
else. He said the possibility of rejection will temper the
President, and any reading of what the Founding Fathers did in
Constitutional Hall in your State, Mr. Chairman, corroborates
that view. It is food for thought. The President should take
care in the proposing of nominees.
But when a President repeatedly offers radical and
regressive candidates, he is not taking care in the proposing
and must shoulder much of the blame for the impasse. One need
not look so far back in time for answers about how to mend
relations and avoid this legislative and clash of branches
Armageddon. Recent history provides a perfect model for getting
back on track. As my colleagues know, scores of President
Clinton's nominees were blocked by many of the same Republican
Senators who now cry, ``Obstruction, obstruction.'' They used a
different means, the means at their disposal--not bringing them
up. But the effect is the same.
Even so, even when all that happened, President Clinton
consulted with the Senate about potential nominees. As
documented by then-Chairman Hatch himself, President Clinton
proposed various names and, rather than select the most radical
or extreme judges, chose mainstream or moderate liberals for
the court. These people did not have the same views as Senator
Hatch, but they were acceptable to him. We do not expect that
the nominees the President makes will have the same views as
Senators Feingold or Feinstein or Leahy or myself. But we
expect some degree of moderation.
This country is a divided country right now. There is no
question about it. But we can come together, and there is no
better forum than this.
President Clinton worked with the Senate, not against it.
It is not too late for President Bush to do the same. We are
ready. We hope he is.
Now let me turn to the nominee before us, William Myers,
who has been nominated to be a judge on the Ninth Circuit. Mr.
Myers, your nomination was defeated in the Senate last year
because of deep-seated concerns about your documented hostility
towards environmental laws and because of doubts about your
ability to be a neutral arbiter on environmental issues and
other matters. And as far as I can tell, little has changed.
To the extent anything is different, it is that new
questions have been raised in an Inspector General's report
about activities undertaken by your Department under your
watch, which allowed a sweetheart deal for a rancher with
political connections. I will not belabor that here, as I
expect you will get some questions about it, about your role in
the negotiations of the deal, what measures were taken to
ensure--even if you weren't involved, did you take measures to
ensure that political dealmaking would not be repeated. But, if
anything, your nomination should be in more trouble now than it
was last time, at least on the record.
And in reviewing the record in preparation for this
hearing, I am struck once again, as I was last year, by your
extremism on environmental and land issues. This is of
particular concern, of course, because of the importance of the
Ninth Circuit on these issues. The circuit encompasses nine
States. These States contain hundreds of millions of acres of
public land, Indian reservations, and many of the most
spectacular lands in America in our great West. Given that
judges in the Ninth Circuit have extraordinary power to shape
the laws on critical environmental land use issues, we should
be careful. That is why your record concerns me so.
It seems as if before, during, and after your time as
Interior Department Solicitor, you bent over backwards to be
solicitous of every ranching and grazing interest you came
across, never mind the effect on the environment. As I said,
your record screams passionate activist. It does not so much as
whisper impartial judge.
You have spent the majority of your legal career promoting
the interests of grazing and mining companies as a lobbyist and
advocate. That alone does not bother me, and I experienced my
own little epiphany. My family and I go hiking out West every
summer, and about 10 years ago, we were driving in northeastern
Arizona to Monument Valley. It was a flat road. It was early in
the morning. I looked at my speedometer. We were going 95. It
did not seem it. I said, ``Ooh, we better go at 55.'' That was
then the law. And I said, ``It is crazy to make people drive at
55 on this highway,'' and I sort of got a glimpse of the anger
of some people in the West that Washington would tell them what
to do. But that does not mean that all our environmental laws
should be thrown out the window. And that seems to be what you
have advocated and said.
You have, for example, advocated a radical expansion of the
Takings Clause of the Fifth Amendment. In an amicus brief you
filed with the Supreme Court of the United States you argued
that habitat protection laws are unconstitutional in every
instance, no matter how minor the impact on property rights. In
so advocating, you wrote, ``The constitutional right of a
rancher to put his property to beneficial uses is as
fundamental as high right of freedom of speech or freedom from
unreasonable search and seizure.''
As you know, that is not mainstream. That is far away from
our judicial interpretations and legislative interpretations
for 50 years.
Chairman Specter. Senator Schumer, how much longer do you
intend to take?
Senator Schumer. About 3 or 4 more minutes.
That would be a radical expansion of the Takings Clause
that no court has ever accepted.
I appreciate that reasonable people may have differences of
opinion on matters of law and public policy. You, however, have
heaped such scorn on environmentalists of all stripes that I
think it has to call into question your impartiality on such
matters.
I want to remind the Committee of some of your written
statements. It was you who compared the Federal Government's
management of public lands to ``the tyrannical actions of King
George over American colonies.'' You called the Desert
Protection Act, authored by my colleague from California, an
example of ``legislative hubris.'' You said that environmental
legislation ``harms the very environment it purports to
protect.'' You have called environmental laws ``outright top-
down coercion.'' You have criticized ``the fallacious belief
that centralized government can promote environmentalism.''
You have said that the biggest disaster now facing ranchers
is a flood of regulations designed to turn the West into little
more than a theme park. You have said derisively that
environmentalists are mountain-biking to the courthouse as
never before, bent on stopping human activity wherever it may
promote health, safety, and welfare. You have accused members
of certain groups of having an agenda that has ``more to do
with selling memberships and magazines than protecting the
environment.''
These are not isolated comments. They are not mainstream
comments. They are not judicious comments. They are part of a
disturbing pattern. Based on these comments, I have questions
about whether you have the appropriate judicial temperament and
impartiality to be a judge on the Ninth Circuit, which is so
important to the adjudication of environmental matters. The
bottom line is that there has been nothing to soothe our fears
about the kind of judge you would make.
Now, one other point before I close. We have talked and
Senator Specter has talked a little bit about balance on the
courts. I believe there should be balance on the courts, the
Supreme Court and the circuits. I have said before that a
Supreme Court with one Scalia and one Brennan would not be a
bad Court, although we should not have five of each. It is
suggested that because the Ninth Circuit is viewed by some as
more liberal than the other circuit courts, we should support
every conservative nominee to that circuit. Of course,
recognizing the value of balance on the circuit does not mean
we should support any extreme ideological nominee whose views
are off the deep end. And in any event, we have already moved
some measure towards balance in the Ninth Circuit. President
Bush has nominated and we have confirmed four conservative
judges to the circuit. Perhaps it is time for a moderate
nominee in the interest of balance.
And my colleagues across the aisle tend to talk about
balance when it suits their purposes. Where is the more liberal
or even moderate nominee to the highly conservative and
unbalanced Fourth and Fifth Circuits? If we want to do balance,
let's do it hand in hand, not just more conservatives on the
one more liberal court, but some liberals on the two or three
very unbalanced, more conservative courts as well. So balance
is a two-way street, not just used for one purpose.
Mr. Myers, I look forward to your shedding new light on
some of the concerns my colleagues and I have expressed.
Thank you, Mr. Chairman.
Chairman Specter. Thank you, Senator Schumer.
Our custom, as is well known on the Committee, is to hear
from just the Ranking Member. I had thought that Senator Leahy
was going to defer to Senator Schumer to serve as ranking, and
in a moment, I am going to call on Senator Leahy to speak as
the Ranking Member of the Committee. And the practice has been
followed not to time the statement of the Ranking. But if, as,
and when Senator--
Senator Schumer. Admirably so, I would say.
Chairman Specter. Well, I can understand why you say so,
having gone on for about 20 minutes.
Senator Schumer. Exactly.
[Laughter.]
Chairman Specter. But if, as, and when Senator Schumer
becomes Ranking Member of this Committee, there is going to be
a rule change. There is going to be a rule change as to how
long the Ranking Member can speak.
Senator Schumer. As long as it goes for the Chairman as
well, that is fine with me.
Chairman Specter. Well, I observe the 5-minute rule
meticulously.
Senator Schumer. Well, since you have become Chairman, you
have become far more judicious in your remarks.
Chairman Specter. Before I became Chairman, I observed the
4-minute rule.
Senator Schumer. Right. Over and over again.
[Laughter.]
Chairman Specter. I am sure this group and C-SPAN do not
want to see any more jousting.
On to the merits, Senator Leahy.
STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE
STATE OF VERMONT
Senator Leahy. I love listening to the guys from the big
States.
Chairman Specter has been very, very fair. I have been four
or five times Chairman of committees, four or five times
ranking on committees. I have noticed most Chairmen and ranking
try to help each other out, try to make it short.
I was going to note that last week Chairman Specter held a
news conference, and he demonstrated his determination, his
statesmanship, his ambitious agenda for the Committee in the
months ahead. Mr. Chairman, I am glad to see you back in such
good form and such good humor.
Chairman Specter. Thank you.
Senator Leahy. And as I have told you privately, and I will
say publicly, I want to do everything possible on this side of
the aisle to help move things along to help you. We have a lot
of things. We have privacy and identify theft issues, asbestos
legislation where the Chairman has probably spent more time
personally on that than I have seen any Senator spend on any
single issue since I have been here. He has talked about the
conflict between the White House and the Senate over
controversial judicial nominees, as he has again this morning.
I am hoping that in our meeting with the President this
afternoon this may come up.
I know when the President met with President Putin of
Russia last week, President Bush emphasized our separation of
powers, our checks and balances, our openness in Government. I
agree with him on that. We have to preserve this. We have to
preserve the independence of our courts. I totally agree with
President Bush on that, as I said when I applauded at his
Inaugural address.
But I welcome the improved tone that the Chairman has
brought to this last topic. I think it is a very good thing. I
think we should try to work together as we try to figure out
the best way to handle lifetime appointments of Federal judges.
As one of the new Senators, Senator Isakson, explained just a
few weeks ago in remarks on the Senate floor, preserving
minority rights is extremely important. In fact, overseas he
praised our filibuster as a way of maintaining minority rights.
Now, we Democrats have tried to cooperate with the
President since he began his first term. We have cooperated to
a remarkable degree in confirming 204 of the President's
judicial nominees to the Federal circuit and district courts.
That is far more than were confirmed in his father's term, more
than either of Ronald Reagan's terms, more than President
Clinton's second term. There is no longer a vacancy crisis. We
deserve some credit.
When I became Chairman, albeit for 17 months--and in some
ways it felt like the longest 17 months of my life because,
among other things, we had the 9/11 attacks during that time, a
deadly attack on my office and Senator Daschle's through
anthrax, deadly enough that an envelope addressed to me was
touched by two or three people--touched by two or three people
and they died. It does get your attention.
But notwithstanding that, and notwithstanding that there
had been a pocket filibuster of President Clinton's judges, 61
of President Clinton's judges had a pocket filibuster because
of one or two Republicans opposed to them, they were just never
allowed to have a vote. Sixty-one. I wanted to change that. In
17 months, I move through, with the help of the Democrats and
Republicans on this Committee, 100 of President Bush's nominees
in 17 months. To put this in perspective, another 103 were put
through under Republican control in 31 months. So it is kind of
hard to say anybody is dragging their feet. Actually, as I
pointed out to President Bush before, the Democrats moved his
judges a lot faster than the Republicans did.
But we have to work together on this. I do not think the
President should continue to insist on a handful of extreme
activist nominees to key positions in some circuit courts. When
he sends these nominations back to the Senate, he is choosing
partisan politics over good policy.
I worry about the nominee before us today--William Myers.
He has already been examined. The Senate withheld its consent
to his lifetime appointment. He was rejected for his
partisanship. Instead of trying to change the vote on this, we
ought to be looking for a new consensus nominee. There are
plenty of Republicans who would get votes of every single
Republican and every single Democratic Senator.
I believe Mr. Myers to be perhaps the most anti-
environmental judicial nominee sent to the Senate in my 30
years here. And I think this shows how the appointment process
has been misused. Senator Schumer spoke about ``the tyrannical
actions of King George.''
I come from the part of the country that fought a
revolution against King George. We have that in our bones and
in our soul. My State was involved in some of the critical
battles in that Revolution, and we do not think of our
Government, whether headed by Democrats or Republicans, as
being akin to King George. I think of our Government as the
most representative, democratic Nation on Earth.
Now, we have had more questions that have come up. I have
questions about Mr. Myers' relationship with and role in
rewarding a lawyer who worked for him who was recently found by
the Department of Interior's Inspector General, by President
Bush's Inspector General, to have been responsible for
arranging a sweetheart deal to a politically well-connected
rancher. It was not found that way by a Democrat. It was found
that way by President Bush's own Inspector General.
For 23 years, Mr. Myers has been an outspoken antagonist of
long-established environmental protections, usually wearing the
hat of a paid lobbyist. He has a right to do that. He also has
an absolute right to speak out and say anything he wants. But
we also have a right to look at what positions he has taken
when we think of him going on a court in an area of the country
which contains hundreds of millions of acres of national parks,
national forests, and other public lands, tribal lands, and
sacred sites.
We have a Federal judiciary today which in many instances
has prevented this administration's attempts to roll back
important environmental laws and protections put in by both
Republican and Democratic administrations. We have to make sure
we don't put judges on the bench whose activism and personal
ideology would circumvent environmental protections that
Congress has put in.
I look at 172 environmental, Native American, labor, civil
rights, disability rights, and other organizations formally
opposing this nomination. The National Congress of American
Indians, a coalition of more than 250 tribal governments,
unanimously approved a resolution opposing this nomination. The
National Wildlife Federation, which has never opposed a
judicial nomination by any President in its 68-year history--
never has--opposed this one.
Now, I have great regard for the Senators from Idaho, both
of them. I have huge affection for the former Senator from
Wyoming, who is a close personal friend. In deference to them,
I examined and re-examined Mr. Myers' record. I asked myself
whether I could support this nomination. But I did not come
back with a positive answer.
Mr. Chairman, you have been more than kind letting these
statements come out. As I said, we will try to work hard with
you to move things along, and I will stop.
[The prepared statement of Senator Leahy appears as a
submission for the record.]
Chairman Specter. Thank you very much, Senator Leahy.
Mr. Myers, we would be pleased to hear from you on the
traditional opening statement.
STATEMENT OF WILLIAM G. MYERS III, NOMINEE TO BE CIRCUIT JUDGE
FOR THE NINTH CIRCUIT
Mr. Myers. I appreciate that, Mr. Chairman. I do not have
an opening statement. I want to thank the President for
nominating me, and I want to thank this Committee and you, Mr.
Chairman, for hosting this hearing.
With that, I would be happy to answer any questions you
might have.
[The biographical information follows.]
[GRAPHIC] [TIFF OMITTED] T1544.001
[GRAPHIC] [TIFF OMITTED] T1544.002
[GRAPHIC] [TIFF OMITTED] T1544.003
[GRAPHIC] [TIFF OMITTED] T1544.004
[GRAPHIC] [TIFF OMITTED] T1544.005
[GRAPHIC] [TIFF OMITTED] T1544.006
[GRAPHIC] [TIFF OMITTED] T1544.007
[GRAPHIC] [TIFF OMITTED] T1544.008
[GRAPHIC] [TIFF OMITTED] T1544.009
[GRAPHIC] [TIFF OMITTED] T1544.010
[GRAPHIC] [TIFF OMITTED] T1544.011
[GRAPHIC] [TIFF OMITTED] T1544.012
[GRAPHIC] [TIFF OMITTED] T1544.013
[GRAPHIC] [TIFF OMITTED] T1544.014
[GRAPHIC] [TIFF OMITTED] T1544.015
[GRAPHIC] [TIFF OMITTED] T1544.016
[GRAPHIC] [TIFF OMITTED] T1544.017
[GRAPHIC] [TIFF OMITTED] T1544.018
[GRAPHIC] [TIFF OMITTED] T1544.019
[GRAPHIC] [TIFF OMITTED] T1544.020
[GRAPHIC] [TIFF OMITTED] T1544.021
[GRAPHIC] [TIFF OMITTED] T1544.022
[GRAPHIC] [TIFF OMITTED] T1544.023
[GRAPHIC] [TIFF OMITTED] T1544.024
Chairman Specter. Well, thank you, Mr. Myers.
We are going to proceed with 5-minute rounds, and there
will be multiple rounds. I had initially thought about 7-minute
rounds, but we consumed so much time at this point that we are
going to go to 5-minute rounds with, as I say, multiple rounds.
Mr. Myers, you have heard already this morning a long
litany of charges, really, practically indictments as to what
you have done. It is not uncommon for nominees to appear before
this Committee and have this Committee appropriately go into
great detail on their records and also on the floor of the
United States Senate. And then the traditional pattern has
been, when confirmed and when sworn in, that the individual
reads the law, follows the law, especially in a position not on
the Supreme Court but on the court of appeals or the district
court, and that the judicial record is significantly different
because of the change in position as to where the individual
stands, the difference in roles which he has as a jurist.
My question to you is: What assurances can you give to your
critics as well as to the American public at large, which does
not know the details of your record, that you will be fair
minded, that you will observe the law, that you will do your
utmost to follow the decisions of the Supreme Court, the
statutes enacted by Congress, and the precedents in the
judicial process, and that you will follow the law as
contrasted with any personal views you may have--not that I
give credence to what has been said, but that you will observe
the law?
Mr. Myers. I appreciate the question, Mr. Chairman, and it
is the fundamental question that this Committee needs to
address.
Really, you have done an excellent job of stating my view,
which is it is the paramount responsibility of a judge to
dispassionately review the law and the facts of the case before
him or her without regard to political persuasion or public
opinion. This is not a recent thought of mine. The first time I
expressed this in writing was in 1990 in an article I wrote
where I said essentially that.
It is my view, Mr. Chairman, that to do anything other than
that would be complete dereliction of duty. I have been a
lawyer in my private practice, of course. That's what I was
trained to be. That's what I have been. I have not been on a
bench. I have not served as a judge. And so I've been an
advocate for clients. If I were to be confirmed, I would be an
advocate for the law, and I would take that with the utmost
seriousness to try, to the best of my ability, to discern the
law and the facts, apply them fairly, consider with utmost
respect the precedent of the Supreme Court and the Ninth
Circuit, to consider the precedent of other circuits where
Ninth Circuit was absent, to look into the legislative history
of a matter if necessary, and discern what Congress intended in
the passage of a law, and to render a decision with my
colleagues on the panel.
Chairman Specter. Mr. Myers, a good bit of criticism was
leveled in your earlier hearing for your advocacy when you
undertook in the private practice of law the representation of
individual interests, and very successfully in many cases. And
I think it is important to put on the record and to draw the
distinction between the role of an advocate, a lawyer who
represents a client in private litigation, with a judicial
official or a quasi-judicial official. And perhaps I should
not, but one of the best illustrations of that that I know from
my own personal background was my representation between being
district attorney and coming to the Senate of a man named Ira
Einhorn, whom I do not have to describe because he is pretty
well known.
I was asked to represent him at a bail hearing, and
thinking that everybody had a right to counsel, I undertook the
representation to that extent. And had I been district
attorney, I would have opposed bail. But when the district
attorney did not and the question was how much, I brought in
the character witnesses, et cetera.
But that is a firm distinction, and I would like your
distinction between advocacy and the judicial function. Let the
record note that I stopped in mid-sentence at 5 minutes,
Senator Schumer.
You are not limited, Mr. Myers, in your reply time. You
have Senator Schumer's status for this limited period.
Mr. Myers. As an attorney, I am bound, of course, by the
Rules of Professional of the bars to which I belong. I will use
the Idaho rules as the example for my answer to your question.
Under the Idaho Rules of Professional Conduct, as an
attorney, as an advocate for individuals and companies,
businesses, I am required to zealously represent those clients,
to advance every legitimate, good-faith argument that I can
that is in their best interest. And that is the very essence of
advocacy.
That is, of course, not the role of a judge. That is
contrary to a judge's role, who listens to the advocates, both
for and against, and then tries to ferret out the realities of
the law and the facts.
Chairman Specter. Thank you, Mr. Myers.
As noted, my time has expired, and now I turn to Senator
Schumer, who has a time limit.
Senator Schumer. Thank you, Mr. Chairman.
My question is this, and this is the dilemma that we are
in. You do not have judicial writings, and so for those of us
who want to scrutinize your record, the public statements,
which are extremely disparaging of various environmental laws,
are all we have.
Now, it seems to me--or let me ask you this question:
Aren't these pronouncements deliberately made over the course
of an entire career, not one or two or three but over and over
again that do not just defend a position but really go out of
their way to mock people on the other side, aren't they a
better gauge of your beliefs about such laws, their wisdom,
their applicability than statements about your fealty to the
law at the last minute when you are appearing before a
Committee who obviously you want to get the support of?
So let me ask you a few questions in regard to that, and
you can also answer, as you answer these questions, why we
should believe your statements right here at the Committee
rather than a career of statements that quite conflict with
them, at least by any fair reading of what mainstream law is on
these issues.
First, do you think that the Clean Air Act harms the
environment or that the Clean Water Act harms the environment?
You have said that environmental legislation harms the very
environment it purports to protect. Can you name the
environmental laws you had in mind when you said that?
Mr. Myers. Senator, I do not think that the Clean Air Act
or the Clean Water Act harm the environment.
Senator Schumer. Okay. So when you said that environmental
legislation harms the very environment it purports to protect,
what were the laws that you had in mind?
Mr. Myers. At the time that I made that comment, I believe
I was advocating on behalf of the National Cattlemen's
Association, for whom I worked. I was employed by them. And I
was talking about at the time legislation that was pending in
Congress to variously regulate the use of about 270 million
acres of Federal land by ranchers in the West. It was a theme
that I carried forward during the time that I was employed by
that organization, and the essential idea was that a one-size-
fits-all approach to regulating Federal lands issues was
difficult at best because it is 270 million acres and every
acre has its own distinct character.
And so an attempt to try to regulate all that landscape
through a legislative approach often was unwieldy and sometimes
had a consequence of harming good actors who were providing
good stewardship.
Senator Schumer. So, in other words, you do not believe
that legislation harms the very environment it purports to--
environmental legislation harms the very environment it
purports to protect? Obviously legislation is not written acre
by acre.
Mr. Myers. Right.
Senator Schumer. You made a much broader statement than
that. What you said here is not what you said there.
Mr. Myers. I was making a generalized point there in a
generalized writing, and not a legal writing, that a one-size-
fits-all approach often does not work on the Federal landscape.
Senator Schumer. You are not really answering my question
directly unless you just said it--you are saying you said it
rhetorically, you do not really believe what you put in that
brief?
Mr. Myers. I believe that--
Senator Schumer. You said environmental legislation. You
did not say application. You did not say apply it differently
in different places.
Here is another one you said: ``the fallacious belief that
centralized government can promote environmentalism.'' Is that
your belief?
Mr. Myers. That's the same--
Senator Schumer. Is it a fallacious belief that centralized
government--is the belief that centralized government, which
passed the Clean Air and Clean Water Act, for instance, can
promote environmentalism fallacious?
Mr. Myers. It's my belief that centralized government can
do a great deal of good for the environment, and the example is
the two that you mentioned--the Clean Water Act and the Clean
Air Act--for reasons that we discussed in the previous hearing
about, for instance, air and the ability of smog to travel
interstate.
Senator Schumer. So what did you mean when you said this
statement?
Mr. Myers. I was again on that same theme, which is
sometimes a one-size-fits-all approach does not work well in
legislative enactments.
Senator Schumer. In all due respect, sir, what you are
saying now is not addressing what you said there and what you
really meant. You did not say one size fits all. It is a broad,
sweeping statement that centralized government can't promote
environmentalism.
Mr. Myers. Senator, I don't have the article with me, but I
think the context was that we need to work as a government with
the people who are on the ground to promote environmentalism,
that environmentalism and environmental stewardship is good
citizenship and good business. And those were quotes that I
also think may be in that article.
Senator Schumer. Here is another one--
Chairman Specter. Senator Schumer, we will have a second
round. Your time has expired.
Senator Hatch?
Senator Hatch. From what I have seen about your tenure here
in Government, you have been one of the better people who has
worked here, one of the more knowledgeable people, but you have
represented clients in the West, right?
Mr. Myers. That's correct.
Senator Hatch. And the West does have differing viewpoints
in many instances from those who live in the East because of
the huge ownership of Federal lands and a whole raft of other
issues that really are peculiar to the West. Isn't that true?
Mr. Myers. That is true.
Senator Hatch. And as an attorney, you have had to
represent your clients to the best of your ability, and that
sometimes means arguing against even laws that currently exist
that may be injurious in the eyes of your clients to the West.
Is that correct?
Mr. Myers. I had a duty to try to promote and push every
legitimate, good-faith argument that I could on behalf of those
clients.
Senator Hatch. That is right. Let me talk briefly about a
Solicitor opinion you issued in October 2002 regarding the
Bureau of Land Management's grazing permits on Federal lands.
Now, correct me if I am wrong, but what your opinion concluded
was that BLM does have the authority to retire permits at the
request of a permittee, but only after compliance with
statutory requirements and a BLM determination that the public
lands associated with the permit should be used for purposes
other than grazing. And BLM's decision to retire grazing
permits is subject to reconsideration, modification, or
reversal.
Now, what prompted you to issue this opinion?
Mr. Myers. The Federal Land Policy Management Act. That
statute puts forward a structure in which land use plans are
created by the Department of the Interior, and specifically the
Bureau of Land Management in this case, for the management of
the Federal landscape. It is my opinion that if a permittee
wanted to temporarily retire a permit, they could do so, but it
had to be in compliance with the land use plan promulgated
pursuant to the statute.
Senator Hatch. As you know, some found this opinion
controversial. Some saw it as a shot across the bow against
environmental activist groups to try to buy up grazing permits
and then seek to retire them permanently in order to shut
ranchers off from those permitted areas. But at least in the
case of a dispute over a portion of Utah's Grand Staircase
Escalante National Monument, a spokesman for the environmental
group that sought to buy and retire grazing permits had this
reaction to your opinion. He said, ``What the Solicitor's memo
sets up is an acknowledgment of what we have already known.
Once an area is closed to grazing, someone could still come
along later and say we want to graze here, and the BLM could
reopen the area to grazing. What people consider new about the
memo is that plan amendments are not permanent, but that was
not new to us.''
Now, would you agree with this assessment of your opinion?
Mr. Myers. I would, Senator. I think that the writer of
that letter was basically confirming my view as I stated to
your earlier.
Senator Hatch. And he was an environmental leader in the
Intermountain West.
Mr. Myers. That's correct.
Senator Hatch. In fact, a portion of the 1999 Tenth Circuit
in Public Lands Council v. Babbitt that the U.S. Supreme Court
did not review found that there is a presumption of grazing use
within grazing districts, and that BLM could not unilaterally
reverse this presumption. Now, that finding supports your
opinion, doesn't it?
Mr. Myers. It does, and I cited that opinion in my--
Senator Hatch. Well, then, you should not be criticized for
something that is accurate, and admittedly accurate by the so-
called environmentalists. Right?
Mr. Myers. That is correct.
Senator Hatch. Okay. Now, let me also note that your
opinion supersedes a prior memorandum issued by former
Secretary Babbitt's Solicitor on January 19, 2001, during the
final hours of the Clinton administration. Now, had that
memorandum failed to consider a critical factor in any analysis
of grazing permits under the Federal Taylor Grazing Act,
namely, that the Secretary of the Interior has deemed lands
within existing grazing districts ``chiefly valuable for
grazing and the raising of forage crops.''
Mr. Myers. You're referring to a memorandum and an opinion
that was written by my predecessor, Solicitor Leshy.
Senator Hatch. Right.
Mr. Myers. I read that and essentially agreed with his
analysis. What I did was take it a step or two farther to
address particular issues that were coming up in the context of
the Grand Staircase.
Senator Hatch. And good legal consideration allowed you to
do that, in your opinion, right?
Mr. Myers. That's correct, yes.
Senator Hatch. Okay. Now, Mr. Myers, you and many others
have criticized the Endangered Species Act for its basic
failure: the very small percentage of species that actually
have been recovered during the law's 30 years, and for
functioning in practice as tool for land use control by Federal
agencies and environmental activists. Clearly, many of your
private clients were and are adversely impacted by the ESA,
which is why you have spoken out against its abuse, as any
advocate would argue, and would. But when you became Solicitor
General of the Department, you had to and did defend the ESA.
Is that right?
Mr. Myers. That's right. And, Senator, I want to make one
clarification, if I might. I don't think I've ever been
critical of the Endangered Species Act. The reference you make
is criticism to misuse of the Act.
Senator Hatch. Okay. Could I ask one further question, Mr.
Chairman?
Chairman Specter. Certainly.
Senator Hatch. Moving to just a more concrete example of an
abuse of the ESA that you successfully fought, can you tell us
about the 1998 Arizona Cattle Growers' Association case in
which the Federal district court judge noted that he did not
believe that Congress intended ``to have good people who were
trying to make a decent living for themselves and their
families in a hard business put out of business based on mere
speculation'' that an endangered species might be harmed?
Mr. Myers. That was a decision of the Ninth Circuit on
review of the district court's opinion.
Senator Hatch. The Ninth Circuit affirmed that decision in
2001, right?
Mr. Myers. That's right, and I agreed with the Ninth
Circuit's decision.
Senator Hatch. It was a 3-0 panel decision.
Mr. Myers. Correct. Basically what the Ninth Circuit held
was that land use managers in the Federal Government should not
use the Endangered Species Act and that provision within the
Act regarding takings and issuing of permits where there are no
endangered species.
Senator Hatch. And the panel was composed of two judges
appointed by President Clinton and one judge appointed by
President Reagan. And one of the judges appointed by President
Clinton wrote the following, ``The Fish and Wildlife Service
acted in an arbitrary and capricious manner by issuing
incidental statements imposing terms and conditions on land use
permits where there either was no evidence that the endangered
species existed on the land or no evidence that a take would
occur if the permit were issued. We also find that it was
arbitrary and capricious for the Fish and Wildlife Service to
issues terms and conditions so vague as to preclude compliance
therewith.''
So basically abuses of the ESA by Federal agencies are not
just figments of the fevered imaginations of property rights
zealots as many leftist environmental groups would have us
believe. Was it abuses of this kind--and I am sure you can cite
others--that led to your reported statement at the Nevada
Cattlemen's Association meeting in 2002 to the effect that the
ESA ought not to be used by Federal agencies as a land
management or zoning tool?
Mr. Myers. That's right. I was referring to the Ninth
Circuit decision that we've been talking about when I made that
comment.
Senator Hatch. You would be heck of a poor intermountain
lawyer if you did not make that argument. Would you agree with
me?
Mr. Myers. Well, I felt like I was on pretty good ground
since the Ninth Circuit had decided it.
Senator Hatch. I think you are on good grounds, and some of
the criticisms that are used against you have not acknowledged
the fact that you are one of the experts in these areas and,
frankly, a very honest, decent, competent man. And I just
wanted to bring some of these things out. I wish I had a little
more time.
Mr. Myers. I appreciate it.
Chairman Specter. Senator Hatch, a little extra deference
on time as an ex-Chairman and somebody who did not get to make
an opening statement. And Senator Hatch knows an intermountain
lawyer when he comes up against one.
Senator Hatch. I do, and this is a very good intermountain
lawyer, but really a good lawyer for our country as a whole,
even though he undoubtedly has differed with some of our folks
on this Committee from time to time. But, gee, that is not
unusual either.
Chairman Specter. Senator Leahy?
Senator Leahy. Thank you, Mr. Chairman.
Let's go into this Inspector General report. We have talked
about it. The press has certainly carried a lot about it. The
Inspector General of the Department of the Interior issued a
report on the results of its investigation into a settlement
reached between BLM and Harvey Frank Robbins, a rancher in
Wyoming.
Incidentally, Mr. Chairman, before I go on, I have got--
Senator Hatch spoke of people who may oppose or not oppose. I
would want to put into the record the letters and editorials in
opposition.
Chairman Specter. Without objection, they will be made a
part of the record.
Senator Leahy. But I know the press reports say you have
been absolved of blame in the Robbins settlement. I still have
a couple of questions about the role of political influence in
this case, especially your role in the hiring and the
supervising of Robert Comer. He is the lawyer whom the
investigation, as you know, squarely blamed for this mess. He
is responsible for what apparently the Inspector General and
just about everybody else regards as a sweetheart deal made for
Mr. Robbins. Mr. Comer was at that time a political appointee
in your office working as just one of a few Associate
Solicitors.
What was your role in recruiting and getting approval for
Mr. Comer's hiring at the beginning of the administration?
Mr. Myers. It was the same process, Senator, that was used
for political hires in my office. I had a handful out of the
300--
Senator Leahy. I am asking about him specifically.
Mr. Myers. Right. I understand. I would look for candidates
who would fill various Associate Solicitor positions, and the
one that he filled was Associate Solicitor for Land and Water.
Senator Leahy. Why did you pick him?
Mr. Myers. Based on my understanding of his work in the
past, his resume, he came with good references.
Senator Leahy. How did he first come to your attention?
Mr. Myers. I had known Mr. Comer prior to becoming
Solicitor because he worked in Federal land issues, as had I.
That's a fairly small bar, so to speak. I don't recall
precisely how he came to my attention. Often these people would
put their resumes into the White House for positions. The White
House then sends them out to the various agencies for review. I
don't recall if that's how I got his resume or not.
Senator Leahy. The reason I ask you, at your first hearing
you testified you specifically authorized a subordinate to
negotiate the Robbins settlement. Was that subordinate Mr.
Comer?
Mr. Myers. Yes, it was.
Senator Leahy. Did you ask him to work on this matter, or
did he ask you to--
Mr. Myers. No, he came to me. The BLM, the client agency,
came to him and said, ``Would you help us settle this matter?''
Mr. Comer came to me and said, ``The client wants me to help
settle this matter, and I'd like to work on it.'' He didn't
need to ask my approval. He already had that authority under
the Solicitor's manual that was in place.
Senator Leahy. But you said you specifically authorized a
subordinate to negotiate--
Mr. Myers. I said it was okay because it was okay for him
to try to settle an administrative case.
Senator Leahy. When I read the IG report, it makes a pretty
mysterious reference to some friends of Mr. Robbins and his
father, one of whom the IG refers to as a political consultant
who had known Mr. Robbins since their childhood.
Now, one of these friends seems to have been the one to
arrange a meeting Robbins had in Washington with the chief of
staff of the BLM and some Congressional staff to discuss the
problems he was having with the Wyoming BLM. These friends
attended the meeting. Mr. Comer was there, too. Did you know
about these friends of Mr. Robbins and their role in helping
Robbins out with these components of the Department of
Interior?
Mr. Myers. No, Senator. The first time I learned about that
was when I read the redacted report of the Inspector General.
Senator Leahy. Do you know who they are now?
Mr. Myers. I have no idea who they are.
Senator Leahy. Did anyone either outside or inside the
Department of Interior, including Mr. Comer, ever speak to you
or let you know in any way that Mr. Robbins' problems with BLM
in Wyoming should be taken care of because of his political
considerations?
Mr. Myers. No, sir.
Senator Leahy. What about once you learned of the problems
with the Robbins settlement? You said you were aware of the
problems about 6 months after the settlement was signed. We
know the IG investigation was already going by June of 2003. So
I assume that means you were aware in the late spring of that
year at the time you started asking questions about the
settlement and its unfair terms, the Wyoming U.S. Attorney's
objections to it.
So with all that, what kind of disciplinary action did you
take against Mr. Comer?
Mr. Myers. Well, let me first say that I was very concerned
by what I read in the IG's report. It disturbed me greatly.
When I saw the reports that there was potentially something
amiss--and obviously there was--I asked a senior attorney in my
employ to work with the Assistant Secretary, who was also
concerned about it. She had assigned someone to look into this
on her behalf. I asked a senior attorney not involved at all in
the discussions or the negotiations to assist her to see if we
could figure out what was going on.
Senator Leahy. Did you help Mr. Comer, to use the
expression, burrow into a career position in the Solicitor's
Office. You know, he had been a political appointee. At some
point somebody agrees to take him out of that and put him into
a career safer position. Did you have anything to do with that?
Mr. Myers. I made sure that that process followed the civil
employees statutes.
Senator Leahy. What does that mean?
Mr. Myers. Well, he had to compete for that position. He
had to compete against other candidates who also wanted the
same opening.
Senator Leahy. Who made the final decision? Were you
involved in the final decision?
Mr. Myers. I was. Yes, I was. I'm trying to remember how
this works. A panel was put together to review the candidates.
They picked out the top three or so. I think they made a
recommendation to me as to who they thought would be best. I
signed off on the recommendation. Then it goes through the
Office of Personnel Management and through the departmental
Office of Personnel Management, and then--
Senator Leahy. Who picks one out of those top three? Did
you?
Mr. Myers. I'm trying to recall how that--really, how that
works. I think that the ultimate decision--my review of it is
near the end of the pipe. And then there's an executive
official within the Department who actually signs off on it
after getting OPM clearance.
Senator Leahy. I want to go back to that, Mr. Chairman.
Thank you.
Chairman Specter. Thank you, Senator.
Senator Coburn?
Senator Coburn. Thank you, Mr. Chairman. Good to see you.
Sorry I missed the opening statements.
Just a couple of questions. One of the things that I have
noted is there is a lot of criticism of your words, but very
little criticism of your actions. And at your time while you
were Solicitor for the Department of Interior, was there ever a
time at which environmental groups praised your work in terms
of your carrying out of your duties and responsibilities to
where it benefited the environment and the environmental
groups?
Mr. Myers. Often what I did, Senator, was fairly behind the
scenes, so I did not appear in the marquee credits, but the
actions that I took advanced environmental causes and issues
that were praised. I think, for instance, of a settlement that
we worked out on the Lower Penobscot River in Maine that was
roundly applauded by the environmental community. I think of
actions I took in Dinali National Park in Alaska to prevent
gold-mining activities within the boundaries of the park on
patented mining claims; preventing trespass in Wrangell-St.
Elias by an inn holder who had access to a bulldozer; by
prosecuting through the Department of Justice trespass actions
of ranchers in California and in Nevada; by seeking a record-
breaking monetary penalty against an oil company that was
illegally flaring gas in the Gulf of Mexico.
That is a rough run around the country.
Senator Coburn. The question has been made of frivolous
lawsuits. It may not be a question you necessarily want to
answer, but I think it is important to recognize that there are
frivolous lawsuits in environmental areas that were never
intended by the Congress to use as a method to delay an action
in some way that has nothing to do with the environmental
action or the lawsuit at the time.
Did you see that frequently, one? And, number two, are
there things that should be changed in terms of, for example,
ESA and the Clean Air Act and the Clean Water Act that would
make them more pro-environment but at the same time release the
freedom of time in which we can accomplish things that are
better for the environment and better for the country as a
whole?
Mr. Myers. Generally with regard to litigation reform,
those issues do not go to the substantive statutes themselves.
They go more to management of court dockets, to filings, trying
to reduce both the time and expense that litigants face when
they want access to the courts. Obviously, every litigant
deserves that access. But some are barred simply because they
have neither the time nor the money to pursue it, and that is a
factor which I think is widely recognized and was recognized by
the Congress in the Judicial Improvements Act of 1990 and at
other times.
As to the specific substance of statutes, my only comment
there would be a generic one, which is, of course, Congress
always needs to look at how statutes which, when they are
passed, have marvelous and laudatory goals, how those statutes
are being implemented by the agencies, whether the agencies are
getting it right in compliance with Congressional mandate, and
whether some amendments are useful.
Senator Coburn. One final question if you could. Can you
tell me why you would like to have this position?
Mr. Myers. Yes, Senator, I can. For an attorney who works
in the judicial branch of the three branches of our Government,
this would be the penultimate opportunity for public service. I
have always enjoyed public service. I think that's probably
clear from my record. I've been in three Cabinet-level
agencies, and I've worked as a staffer for this body. So it is
something that appeals to me. It's an opportunity to give back
and an opportunity that would be tremendously humbling to me if
I were so fortunate as to be confirmed.
Senator Coburn. All right. Thank you.
Mr. Chairman, I yield back.
Chairman Specter. Thank you very much, Senator Coburn.
Senator Feinstein?
Senator Feinstein. Thank you, Mr. Chairman, and welcome
back, and welcome back, Mr. Myers.
Mr. Myers. Thank you, Senator.
Senator Feinstein. Mr. Chairman, I want to just say one
thing about the Ninth Circuit, just for the record. There are
28 judges. Four appointments have already been made by the
President serving. That is 14 percent of the circuit. There are
another four openings. When the President fills them, that will
be 30 percent of the circuit filled. So, you know, I think many
of us are concerned that the circuit remain a mainstream
circuit. And I think the concern over Mr. Myers is really the
environmental record, not only as an advocate but as the
Solicitor for the Department of Interior. And so I would like
to ask this question of Mr. Myers. It is along the line of what
Senator Leahy has asked you, and that is the Inspector
General's recent report on your office and the settlement of
the Robbins case.
I think the report called your deputy's work
``disconcerting.'' The report goes on to say that Mr. Comer
entered the Federal Government into a settlement that was
essentially not supported by law. And Mr. Comer told the
Inspector General in its 2003 investigation of you that he had
briefed you on the settlement. And you testified at your
hearing last year to Senator Durbin that you were not aware of
the terms of the settlement in Wyoming.
Have you read the settlement now?
Mr. Myers. Yes, I have.
Senator Feinstein. And what do you think of it? Is it a
settlement that you think your office should have entered into?
Mr. Myers. Well, I think there are problems with that
settlement. There's one good provision in it, and that was that
provision which said that if the rancher violated any terms of
the agreement, it could be withdrawn. And it was.
Senator Feinstein. Is it a settlement that you think your
office should have entered into?
Mr. Myers. No, Senator, not the way it was done. I think
from my reading of the IG's report, there were serious concerns
raised by the U.S. Attorney's Office that apparently were not
adequately considered in that settlement.
Senator Feinstein. I appreciate that.
In 1988, in discussing judicial activism, you wrote the
following quotation in the Denver University Law Review on page
22: ``Interpretism does not require a timid approach to judging
or protecting constitutionally guaranteed rights. Interpretism
is not synonymous with judicial restraint and may require
judicial activism if mandated by the Constitution.'' That is a
direct quote.
Does that mean you will be an activist judge?
Mr. Myers. No, it doesn't. What I was trying to convey in
that quote was that a judge should not have a crabbed
interpretation of a statute that he or she may be reviewing in
a particular case, that the judge should give it a full and
fair and reasonable meaning, and that that's the right
approach. And, therefore, if a judge is presented with a
particularly egregious activity of a defendant, perhaps in a
criminal setting, that the judge should not be timid or
restrained about bringing the full force of the law down to
bear on a convicted criminal.
Senator Feinstein. Thank you.
In that same Denver University Law Review article, on page
25, you wrote, and I quote, that ``the Supreme Court has
started to retreat from the generalized right of privacy set
forth in Griswold and Roe v. Wade.'' As evidence, you cited
Bowers v. Hardwick.
As you know, since you wrote your article in 1988, the
Supreme Court has affirmed Roe in Planned Parenthood v. Casey,
and it has overruled Bowers in Lawrence v. Texas.
What do you think about the Casey and Lawrence decisions?
Are they examples of, as you wrote, situations where the Court
departs from the laws--this is your quote--``the Court departs
from the laws as embodied by the Constitution and the statutes
and supplants the individual morals of the Justices''? If you
were--well, perhaps you could just answer that?
Mr. Myers. Okay. No, I don't think it's an example of
judicial activism. I think that was your question. When I wrote
that comment about Bowers v. Hardwick, it was shortly after
that case had been decided, and many scholars, academics, in my
review of the literature suggested that it was a retreat from
where the Supreme Court had been prior to that decision. As you
note, in Lawrence v. Texas, the Supreme Court has overruled
Bowers v. Hardwick, and, of course, Lawrence v. Texas is the
law of the land.
You also mentioned Griswold v. Connecticut. I consider that
to be a bedrock of our privacy standards through the Supreme
Court and, frankly, one that I am enamored with. I don't know
if I've ever put it in writing, perhaps somewhere, but there
was a quote by Justice Brandeis in a 1928 dissent that he wrote
in Olmstead v. United States, where he said, ``The essence of
privacy is the right to be let alone.'' And it's one of the
most cherished of all rights.
Senator Feinstein. Okay. Let me say this: Virtually every
environmental organization that I know of opposes your
nomination. They essentially, I think, feel that your views on
takings as well as other subjects are such that environmental
law wouldn't stand a fair shake in the Ninth Circuit.
I would like you to make the case as to why you believe you
could provide a fair and open and just hearing in environmental
matters, particularly when your tenure as an advocate and your
tenure in the Department seemed to favor the opposite side.
Mr. Myers. Senator, I would start with another writing of
mine from 1990, when I said that it's the essence of judging to
dispassionately review the case before that judge and regard
for the law and the facts, without regard for political
persuasion or public opinion.
I move forward from that to my private life. A good
indication of a person is what they do on their free time. I've
spent a lot of my free time working for the environment,
volunteering for the Forest Service, volunteering for the Park
Service, volunteering for the local city Department of Parks
and Recreation. So I think that is where I would tell my
environmental friends to look first because that is, I think, a
true mark of an individual, what they're doing when they're not
on the clock.
Then I would take them through decisions I made as
Solicitor, and I mentioned several of these to Senator Coburn,
decisions which based on my neutral reading of the law were
compelled to reach a conclusion that was pro-environmental, and
I did so and I didn't faint from that obligation.
Yes, I have an extensive record. Sometimes I came down with
decisions which environmental advocates did not like. Sometimes
I came down with decisions that they did like. And I would ask
them to look at the entire picture and judge me on that.
Senator Feinstein. Thank you.
Thank you very much, Mr. Chairman.
Chairman Specter. Thank you, Senator Feinstein.
Senator Feingold?
Senator Feingold. Thank you for appearing before us, Mr.
Myers. You have been asked about your role in the Robbins
settlement agreement, and I was surprised that a rancher who
moved to Wyoming from Alabama in 1994--we are not talking here
about a family who had ranched this land for decades--and who
had a RICO suit pending against BLM employees would be able to
arrange such a high-level meeting to discuss his case.
From 1996 to 2001, the BLM cited Robbins for 25 different
trespass violations, more than half of which were classified as
``repeated willful violations.'' In fact, a local BLM official
declared that ``Mr. Robbins' conduct was so lacking in
reasonableness and responsibility that it became reckless or
negligent and placed significant undue stress and damage on the
public land resources.''
Yet, in February 2002, Mr. Robbins, Jr., his father, Mr.
Robbins, Sr., the chief of staff of BLM, a political appointee,
other BLM officials, Mr. Robert Comer of your office, a
political appointee, the DOI Congressional liaison, and
Congressional staff from Wyoming met at DOI headquarters in
Washington to discuss the possibility of a settlement.
After this high-level meeting in Washington, the Department
entered into an illegal settlement agreement with Mr. Robbins
in January 2003. The agreement forgave 16 grazing violations
dating back to 1994 and gave him preferential grazing fees.
Even more unusual, Robbins obtained a special status whereby
only the Director of the BLM, also a political appointee, or
her designee may cite him for future violations. According the
Inspector General, your employee and political employee Robert
Comer ``failed to act impartially and gave preferential
treatment to Mr. Robbins in negotiating and crafting the
settlement agreement.''
According to the Center for Responsive Politics, Mr.
Robbins' father, Harvey Frank Robbins, Sr., of Muscle Shoals,
Alabama, donated $25,000 in soft money to the Republican Party
in 2000. According to the Inspector General's report, Harvey
Frank Robbins, Sr., also attended the February 2002 meeting at
DOI headquarters with your office.
Would someone whose father had not contributed $25,000 in
soft money to the RNC receive this type of preferential
treatment Mr. Robbins received from the Department of Interior
headquarters?
Mr. Myers. Senator Feingold, I want to correct one thing I
thought you said, which was a meeting arranged in my office. It
was not in my office. It was, I believe, in the offices of the
BLM.
I didn't know Mr. Robbins prior to that meeting. I have
never met him or talked to him since, and I was unfamiliar with
whatever experience he has or political connections he might
have. So from where I sat, he was an unknown. He was a rancher
who was in a dispute with the BLM over his grazing permits in
Wyoming.
You cited the IG's report that said that that meeting
occurred and included staff members from the Wyoming
Congressional delegation. I do not know this, but I infer from
the IG's report that perhaps those staffers asked for the
meeting to occur.
Senator Feingold. But do you think somebody who had not
contributed $25,000 in soft money to the RNC would have
received this kind of meeting?
Mr. Myers. I would hope that political contributions would
have no effect whatsoever.
Senator Feingold. But is that your view that they have no
effect whatsoever in a situation--
Mr. Myers. Yes.
Senator Feingold. In an unusual meeting as this?
Mr. Myers. Yes, that's my view.
Senator Feingold. Well, this meeting and this settlement
disturbs me, not just because of the influence peddling it
speaks of and its reflection on how your office operated, but
because it underscores a concern I have about your ability to
be impartial. It seems that only certain interests had access
to your office under your tenure as the Department's top
lawyer.
You testified previously that you did not meet with the
Quechan tribe before you issued your legal opinion and the
resulting decision to approve the highly controversial cyanide
heap leaching Glamis Mine which rests on sacred tribal land.
Tribal leaders have called your legal opinion ``an affront to
all American Indians.'' Yet you were able to meet with mining
industry officials 27 times during the first year of your
tenure as the Solicitor. In response to Senator Feinstein's
written questions, you said that you didn't meet with tribal
leaders involved in the Glamis Mine because of the September
11th tragedy. Yet you met with mining officials from the
company who wanted to develop the mind on September 13, 2001.
The tribe has termed your written responses to Senator
Feinstein in the Glamis matter and your use of the September
11th tragedy as the reason that you did not meet with the tribe
as ``highly offensive.''
If you are not willing to meet with both parties involving
a controversial decision where the Interior Department has
tribal trust responsibility, will you please tell the Committee
why we should believe that you will be impartial as a judge?
Mr. Myers. Senator, regarding the meeting with the
representatives from the Glamis Mine, that occurred in my
office here in Washington, D.C., on the 13th of September. That
invitation that I received from the tribe was to travel to
California. I believe I'm correct in stating that planes were
all grounded at that time, and they could not have traveled
here to meet with me, and I could not have traveled there to
meet with them. Had they wished to meet with me in my office as
the mining company did, I would have welcomed them into my
office.
I subsequently did meet with them after I issued my
opinion, and they presented to me a PowerPoint presentation of
their concerns. That presentation affirmed for me the facts
that I knew about that situation prior to the time that I wrote
my opinion.
Senator Feingold. Well, as I understand it, your
predecessor at least gave them a call before he issued his
ruling, and I would submit that even if you could not have met
with them, if that is true, you could have at least picked up
the phone.
Mr. Myers. Senator, on that point, I don't know, of course,
what my predecessor did, but I did read a review from the
Inspector General of that question, and he said that my
predecessor had never met with the tribe. He issued a legal
opinion, and I reviewed his legal opinion to determine whether
I agreed with it. It was a discrete legal issue, and in my mind
fairly akin to a summary judgment motion in that the facts were
not in dispute from any side, and the question was, as a matter
of law, was my predecessor's opinion correct. I decided it
wasn't.
Senator Feingold. Thank you, Mr. Chairman.
Chairman Specter. Thank you, Senator Feingold.
Mr. Myers, in your long career in public service, you have
made many decisions. It is perhaps more interesting to be
critical of some of them, but I would suggest for the record
that there are many which you have made which support the pro-
environmental position. And as Solicitor for the Department of
the Interior, you have been involved in some of the settlements
of cases which were very favorably reported by environmental
protectionist groups such as the Shell Oil-based activities on
the Gulf of Mexico and the Governors Island National Monument
in New York Harbor.
Would you expand upon those particular items and other high
marks which you have weighed in on for environmental
protection?
Mr. Myers. I will, Senator.
Chairman Specter. I think, Mr. Myers, there is a real
balance in your record if we were to spend the next month with
you on the witness stand.
Mr. Myers. I would be happy to give you the citations.
Chairman Specter. Well, how about next month.
Mr. Myers. Senator, I will talk to you about the two that
you mentioned and add maybe one or two other examples.
The first one you talked about was the Shell Oil matter in
the Gulf of Mexico. The Shell Oil Company had for some time
been flaring gas from its platform. Before a company can flare
gas from a platform in the Gulf, it has to keep records of that
flaring. It has to report it to the Minerals Management Service
within the Department of the Interior.
Investigations revealed that they had neither kept the
records nor informed MMS about their activities. These were
violations of the law. We set about to correct that and imposed
upon them a $49 million payment, a duty to keep adequate
records and to follow up with the Department of Justice on how
they were complying with that settlement.
You also mentioned the Governors Island matter in New York
Harbor. Governors Island is a wonderful piece of Federal land
in the harbor off of Manhattan Island. You see it as you travel
from Manhattan Island to Ellis Island or Liberty Island. But
most people probably don't know what's there. It is an island
that has been in the ownership of the United States for over
200 years. It has Castle William and Fort Jay, I think it's
called, on that site, all embattlements created for the
protection of the harbor against warships of the day.
President Clinton designated it as a national monument, but
there was a problem with the statute that required the sale of
the island, including the national monument, to the city or the
State of New York, giving them the right of first refusal on
the bid. We didn't want to see that monument lost out of
Federal hands, so we worked with the city and the State and
with an intervening environmental group to arrange a transfer
of the island to us via that intermediary. At the same time we
increased the size of the monument to add additional
protection.
I had the opportunity while I was Solicitor to go to the
monument and to look at it. It's an amazing piece of property.
I'm excited about the opportunities there. There's a huge
amount of rehabilitation because many of the buildings have
fallen into complete disrepair. But we enhanced the size of
that monument and protected it.
Chairman Specter. And pardon my interruption, but a couple
of points I want to make, and we are going to conclude this
hearing hopefully reasonably soon. That action was very highly
praised by environmental groups and it has protected a great
U.S. national asset.
Mr. Myers. That's right. No one wanted to see the loss of
Governors Island.
Chairman Specter. You have, in Colvin versus Snow and other
similar cases, specifically authorized the regional solicitors
to seek enforcement action against ranchers who refused to pay
applicable grazing fees for their use of public lands?
Mr. Myers. Correct.
Chairman Specter. So you have taken some stands against
ranchers--
Mr. Myers. Impoundment of livestock.
Chairman Specter.--whom you are generally charged with
having unduly favored?
Mr. Myers. Right. Impoundment of livestock for sale by the
BLM because of trespass, actions by the U.S. Attorney's Office,
preliminary injunction sought in District Court in California
against a rancher who decided to use a bulldozer.
Chairman Specter. Pardon the interruption again, but I only
have time for one more question if I squeeze it.
That is your advocacy in urging young people to take up
public service and your service on the American Bar
Association's Public Lands Committee and the article you
published in the American Bar Association publication on public
lands and land-use relating to public service, could you state
for the record what you did in that respect?
Mr. Myers. Yes. I was assisting the Chairman of that ABA
Committee in writing an occasional column in the newsletter
that the Committee put out. My particular focus was on public
service and I think you are referring to an article that I
wrote that it was important for lawyers to give back to their
community, not just in typical pro bono legal activities but
also in going into classrooms, in helping devise easy to read
and understandable environmental codes, and in working with the
community on environmental issues.
Chairman Specter. Thank you, very much. Senator Leahy.
Senator Leahy. Thank you and I will be brief.
I am just still on this Comer. There are three people
there. Which one of the three did you recommend?
Mr. Myers. Bob Comer.
Senator Leahy. Would it be safe to say your recommendation
would carry a fair amount of weight?
Mr. Myers. Probably, yes, sir.
Senator Leahy. Considering some of the things that came out
in the IG's report, how do you feel about that?
Mr. Myers. Well, Senator, had I known then what I know now,
I would have made a different decision.
Senator Leahy. But he came in with a lot of political power
behind him and he is now ensconced in a nice safe position; is
that not correct?
Mr. Myers. I do not know that he came in with a lot of
political power. There were a lot of good candidates that I
reviewed for that position.
Senator Leahy. But he has got himself in a nice safe
position now. If he is a political appointee he could be easily
fired for the things that went on.
Mr. Myers. Right. When I hired him, he came into the office
as a political appointee.
Senator Leahy. Lucky Mr. Comer.
Mr. Myers. Well, after reading that report I am not sure I
would say lucky Mr. Comer.
Senator Leahy. You have been asked a lot of questions about
not meeting with the Quechan Tribe. Am I pronouncing that
correctly?
Mr. Myers. Quechan.
Senator Leahy. Quechan Tribe. You allowed a permit for a
mine which destroyed land sacred to them. Obviously your
answers, both your answers in the earlier hearing, your written
answers, have not satisfied them.
You are a Westerner. You deal a lot with the tribes. You
look at the National Congress of American Indians. I met up
with them in one of their meetings here. I was really impressed
with the intensity of their feeling. They have never taken a
position on a judicial nominee before you and they are opposing
you. Why do you feel that is so? Here is your chance to say
something.
Mr. Myers. I think that the opposition is based on that
Glamas matter that we have already discussed.
I would submit to you and to that group if they looked at
my entire record they would find a Solicitor who was very much
an advocate for Indian matters and tried to deal fairly with
Indian matters. As examples, I would cite probably first and
foremost my work regarding the Sandia Pueblo.
Senator Bingaman had proposed legislation after two
different solicitors prior to my arrival had issued opposing
opinions on whether that Sandia Pueblo had any right or access
to 10,000 acres in the National Forest, an area which was of
great significance and sacred sites to that tribe in an issue
that went back to the 1700's when the King of Spain issued a
patent to the Pueblo.
I came in, I was asked by various factions who were
debating this question to issue my own opinion. I did not do
so. Instead, I came to this Senate and I testified in favor of
Senator Bingaman's legislation. It passed and resolved the
problem.
As part of that process I went out to the Sandia Pueblo. I
talked to the Pueblo leaders. I looked at the landscape, both
from the air and on the ground. And I talked to the others who
were concerned about as well, and came to the conclusion that
the legislation was the best approach.
Senator Leahy. Let me ask you about another one involving
some of these same subjects. In November 2002 you convinced the
Department of Justice to file a friend of the court brief in
State Court of Nevada to argue against the State's right to
deny a permit to the Oil-Dri Company that wanted to mine clay
on Federal lands.
You did this even though the Department of the Interior,
your department, had a trust relationship with the Reno-Sparks
Indian Colony. They, of course, strongly oppose the mine. Late
last year the Nevada court rejected your argument that Nevada
could not have local control over this decision. They said that
Federal regulations recognized the State law applies.
Do you agree with that decision or do you think the Bush
Administration should continue to oppose the Reno-Sparks Indian
Colony and support the mining company?
Mr. Myers. The court dismissed that action without
prejudice, based on lack of subject matter jurisdiction.
My involvement in that was to review the question specific
to whether a State or local Government could exercise
regulatory control over Federal lands and to what extent they
could. In the amicus brief that we filed we said that State and
local Governments can enact environmental regulations specific
to mining, as long as those regulations are reasonable because
of the primacy of the Federal Government on Federal land
issues. That was, I think, consistent with the Supreme Court's
decision in the California Coastal Commission versus Granite
Rock case.
As far as the concerns of the tribal entities, I did take
those into consideration and specifically in this manner. I was
being pushed by the Oil-Dri Company, through the Secretary in
that they contacted the Secretary and I saw the letter to her,
to intervene in that case and become a party on their side of
the matter against the county. I did not intervene. My
recommendation to the Department of Justice was to file an
amicus brief, thereby foregoing an opportunity to become a
party in the case and simply acting as a friend of the court on
the particular issue of Federal environmental regulation.
Senator Leahy. The other part of my question, should the
Bush Administration continue to oppose the Reno-Sparks Indian
Colony and support the mining company?
Mr. Myers. I think the Administration should continue to
support the Supreme Court's decision in the Granite Rock case.
And in comment this case that means that environment regulation
imposed by State or local Governments is okay as long as it is
reasonable. And of course, the flip side of that coin is you do
not want State and local entities coming in and trying to
undermine Federal law on environmental issues that affect
Federal lands. It is the same principle that applies.
Senator Leahy. Thank you, Mr. Chairman.
Chairman Specter. Thank you, very much, Senator Leahy.
I have good news before turning to Senator Schumer. He has
only one question. Senator Schumer.
Senator Leahy. However, it is 14 minutes long.
Senator Schumer. Right. It has three parts.
Chairman Specter. He just raised the ante to two. And he
can ask as many as he wants within 5 minutes.
Senator Schumer. Thank you, Mr. Chairman.
Let me just, the places where I had asked you about the
statements which seemed rather extreme, you and some of your
defenders here seem to indicate well, when you are an advocate,
that is what you do.
But the statement, for instance, that environmental
legislation harms the very environment it purports to protect
is not from your arguing as a lawyer for somebody, but was in
an article you had written in the--it is called Environmental
Command and Control: the Snake in the Public Lands Grass. It is
in the Farmer, Ranchers and Environmental Law Journal of 1995.
I believe the other quote comes from either that article or
another article, as well.
Are you saying when you wrote these articles these were not
your beliefs?
Mr. Myers. I was on the staff of the National Cattlemen's
Beef Association when I wrote that article and I was advancing
the concerns of the ranchers that were members of that
organization.
Senator Schumer. In other words, this article was not your
views but the views of the cattlemen? Does it say that? I mean,
I do not know law journals, and I am not familiar with this
publication, but I do not know law journals where people submit
articles, lawyers, distinguished lawyers, and simply represent
a client, rather their views.
Did it say anywhere in there that these are the views of
the Cattlemen's Association and not of Mr. Myers?
Mr. Myers. I do not know for sure without looking at it,
but I think it indicated that I was employed by those
organizations and that I was not writing in my individual
capacity. And part of my job at that time, Senator, was to
advocate the constituents' concerns in the public media.
Senator Schumer. I want to ask you a question. So are you
saying you did not believe these things? That you only believed
part of what you wrote? That it was just hyperbole to make the
point? Or that you were just representing the Cattlemen's
Association? Would you write articles where you did not believe
what was said but you were just representing your client in law
reviews?
Mr. Myers. Writing articles was part of my job.
Senator Schumer. I did not ask that. I asked you do you
believe these statements that you have written? Do you stand by
them?
Mr. Myers. I stand by the statements that include that
environmentalism is good citizenship and good business and that
ranchers and environmentalists ought to work together.
Senator Schumer. I understand you stand by those. That is
not the question I asked you. I asked you do you stand by the
statement that environmental legislation harms the very
environment it purports to protect? You were not arguing a case
there. That was an article.
Mr. Myers. That is right.
Senator Schumer. Do you stand by--do you believe that
statement?
Mr. Myers. The statement was meant to suggest--
Senator Schumer. Do you believe it? I did not ask what it
was meant to suggest or who. I want to know if you believe it?
Mr. Myers. I believe that sometimes environmental
legislation has a blunt sword approach to particular problems
and that working with the regulated community can result in
better environmental protection than legislation, on occasion.
Senator Schumer. So in other words, you left out the words
sometimes, on occasion? You just wrote a sweeping statement?
Mr. Myers. Right.
Senator Schumer. How about this one? Do you believe the
statement you wrote that the fallacious belief that centralized
Government can promote environmentalism--do you believe that
statement?
Mr. Myers. It is the same answer, Senator. It is the point
that centralized Congressional action sometimes is not the best
result for an environmental problem.
Senator Schumer. I think you will admit that what you are
saying, if someone read this article and heard what you were
saying here, they would say those are two different things.
Mr. Myers. I am no longer employed by the National
Cattlemen's Association.
Senator Schumer. I understand that, but would they not say
they are two different things?
Mr. Myers. I think they are sympathetic.
Senator Schumer. I would think any reading of this would
say there is quite a bit of divergence: a judicious statement
that sometimes any law does not get applied right, as opposed
to statement after statement, broad sweeping statement
basically holding in ill-regard--and that is not as strongly as
you put it--all environmental laws.
Did you ever write anything when you wrote--you said you
support the Clean Air and Clean Water Act. Was that written in
your writings back then?
Mr. Myers. I submitted a brief to the Supreme Court in
support of--
Senator Schumer. I said in your article writings, you know,
where you are saying your own views or whatever?
What do we have? What can we cling to here, should we want
to support you, where you on your old, independently or while
you were working for the Cattlemen's Association, which shows
that you were somewhat moderate and judicious? All of your
statements are over-the-top.
Mr. Myers. Well, you asked on my own and when I was working
for the cattlemen. On my own, that would be my free time when I
volunteered for agencies to help environmental causes and to
clean up the environment that others had trashed.
In my capacity as an employee of the cattlemen, I wrote
that cattlemen, for instance feedlot operators, should get
permits under the Clean Water Act and comply with them. Those
are the examples.
Senator Schumer. Thank you, Mr. Chairman.
Chairman Specter. Thank you, very much, Senator Schumer,
for those two questions.
Senator Schumer. No comment, Mr. Chairman.
Chairman Specter. It is too late now not to make a comment.
You just did.
I think that this has been a very useful hearing because
while there can be many statements about your position on one
side of the advocacy line, there are other actions on your part
which show grave concern for environmental protection and
public service.
It is not unusual to have nominees appear before this
Committee who are controversial. But you can go back over
statements which I have made in the course of my activities and
public service which are subject to challenge. A week does not
go by without a challenge to the single bullet theory or Ira
Einhorn or have not proved or many, many other things which I
have said.
I do not know but it might even be possible to go through
Senator Schumer's record and find statements which might bear
on Senator Schumer's qualifications.
Senator Hatch. I would be amazed. I would just be amazed.
Chairman Specter. Senator Hatch, you might be right. But
the point is nobody comes to this hearing room perfect. Nobody
comes to this hearing room perfect.
I believe that the deference that the President ought to
have is fully within bounds as to your position. It is easier
to talk about being outside the mainstream and even poetic, you
cannot see the shoreline. But have reviewed your record very
carefully. And I have a record for supporting Democrats under
the Clinton Administration when they were appropriate. And I
have a record for opposing Republicans. And I feel very
comfortable supporting your record, although many of my good
friends on the environmental line have urged me to the
contrary.
I have listened to them and I have reviewed your record,
and I think you are fit to be a member of the Ninth Circuit.
Do you have family members with you today, Mr. Myers?
Mr. Myers. No, Mr. Chairman. My children are in school and
my mother is with my children. Excuse me, my children's mother
is with them.
Chairman Specter. It is my hope, I know this hearing is
being very closely monitored. Senators are obviously busy but I
know staffs are taking a look at it.
I count 98 votes for cloture--58. I wish I could count 98
votes for closure. So we not have a cloture motion. I count 58
votes for cloture, so hailing distance.
I think that you have helped yourself today, Mr. Myers, and
I think you have helped the cause of trying to avoid the
Constitutional issues which we are all conversant with.
That concludes the hearing. Thank you.
[Whereupon, at 11:18 a.m., the Committee was adjourned.]
[Questions and answers and submissions for the record
follow.]
[Additional material is being retained in the Committee
files.]
[GRAPHIC] [TIFF OMITTED] T1544.025
[GRAPHIC] [TIFF OMITTED] T1544.026
[GRAPHIC] [TIFF OMITTED] T1544.027
[GRAPHIC] [TIFF OMITTED] T1544.028
[GRAPHIC] [TIFF OMITTED] T1544.029
[GRAPHIC] [TIFF OMITTED] T1544.030
[GRAPHIC] [TIFF OMITTED] T1544.031
[GRAPHIC] [TIFF OMITTED] T1544.032
[GRAPHIC] [TIFF OMITTED] T1544.033
[GRAPHIC] [TIFF OMITTED] T1544.034
[GRAPHIC] [TIFF OMITTED] T1544.035
[GRAPHIC] [TIFF OMITTED] T1544.036
[GRAPHIC] [TIFF OMITTED] T1544.037
[GRAPHIC] [TIFF OMITTED] T1544.038
[GRAPHIC] [TIFF OMITTED] T1544.039
[GRAPHIC] [TIFF OMITTED] T1544.040
[GRAPHIC] [TIFF OMITTED] T1544.041
[GRAPHIC] [TIFF OMITTED] T1544.042
[GRAPHIC] [TIFF OMITTED] T1544.043
[GRAPHIC] [TIFF OMITTED] T1544.044
[GRAPHIC] [TIFF OMITTED] T1544.045
[GRAPHIC] [TIFF OMITTED] T1544.046
[GRAPHIC] [TIFF OMITTED] T1544.047
[GRAPHIC] [TIFF OMITTED] T1544.048
[GRAPHIC] [TIFF OMITTED] T1544.049
[GRAPHIC] [TIFF OMITTED] T1544.050
[GRAPHIC] [TIFF OMITTED] T1544.051
[GRAPHIC] [TIFF OMITTED] T1544.052
[GRAPHIC] [TIFF OMITTED] T1544.053
[GRAPHIC] [TIFF OMITTED] T1544.054
[GRAPHIC] [TIFF OMITTED] T1544.055
[GRAPHIC] [TIFF OMITTED] T1544.056
[GRAPHIC] [TIFF OMITTED] T1544.057
[GRAPHIC] [TIFF OMITTED] T1544.058
[GRAPHIC] [TIFF OMITTED] T1544.059
[GRAPHIC] [TIFF OMITTED] T1544.060
[GRAPHIC] [TIFF OMITTED] T1544.061
[GRAPHIC] [TIFF OMITTED] T1544.062
[GRAPHIC] [TIFF OMITTED] T1544.063
[GRAPHIC] [TIFF OMITTED] T1544.064
[GRAPHIC] [TIFF OMITTED] T1544.065
[GRAPHIC] [TIFF OMITTED] T1544.066
[GRAPHIC] [TIFF OMITTED] T1544.067
[GRAPHIC] [TIFF OMITTED] T1544.068
[GRAPHIC] [TIFF OMITTED] T1544.069
[GRAPHIC] [TIFF OMITTED] T1544.070
[GRAPHIC] [TIFF OMITTED] T1544.071
[GRAPHIC] [TIFF OMITTED] T1544.072
[GRAPHIC] [TIFF OMITTED] T1544.073
[GRAPHIC] [TIFF OMITTED] T1544.074
[GRAPHIC] [TIFF OMITTED] T1544.075
[GRAPHIC] [TIFF OMITTED] T1544.076
[GRAPHIC] [TIFF OMITTED] T1544.077
[GRAPHIC] [TIFF OMITTED] T1544.078
[GRAPHIC] [TIFF OMITTED] T1544.079
[GRAPHIC] [TIFF OMITTED] T1544.080
[GRAPHIC] [TIFF OMITTED] T1544.081
[GRAPHIC] [TIFF OMITTED] T1544.082
[GRAPHIC] [TIFF OMITTED] T1544.083
[GRAPHIC] [TIFF OMITTED] T1544.084
[GRAPHIC] [TIFF OMITTED] T1544.085
[GRAPHIC] [TIFF OMITTED] T1544.086
[GRAPHIC] [TIFF OMITTED] T1544.087
[GRAPHIC] [TIFF OMITTED] T1544.088
[GRAPHIC] [TIFF OMITTED] T1544.089
[GRAPHIC] [TIFF OMITTED] T1544.090
[GRAPHIC] [TIFF OMITTED] T1544.091
[GRAPHIC] [TIFF OMITTED] T1544.092
[GRAPHIC] [TIFF OMITTED] T1544.093
[GRAPHIC] [TIFF OMITTED] T1544.094
[GRAPHIC] [TIFF OMITTED] T1544.095
[GRAPHIC] [TIFF OMITTED] T1544.096
[GRAPHIC] [TIFF OMITTED] T1544.097
[GRAPHIC] [TIFF OMITTED] T1544.098
[GRAPHIC] [TIFF OMITTED] T1544.099
[GRAPHIC] [TIFF OMITTED] T1544.100
[GRAPHIC] [TIFF OMITTED] T1544.101
[GRAPHIC] [TIFF OMITTED] T1544.102
[GRAPHIC] [TIFF OMITTED] T1544.103
[GRAPHIC] [TIFF OMITTED] T1544.104
[GRAPHIC] [TIFF OMITTED] T1544.105
[GRAPHIC] [TIFF OMITTED] T1544.106
[GRAPHIC] [TIFF OMITTED] T1544.107
[GRAPHIC] [TIFF OMITTED] T1544.108
[GRAPHIC] [TIFF OMITTED] T1544.109
[GRAPHIC] [TIFF OMITTED] T1544.110
[GRAPHIC] [TIFF OMITTED] T1544.111
[GRAPHIC] [TIFF OMITTED] T1544.112
[GRAPHIC] [TIFF OMITTED] T1544.113
[GRAPHIC] [TIFF OMITTED] T1544.114
[GRAPHIC] [TIFF OMITTED] T1544.115
[GRAPHIC] [TIFF OMITTED] T1544.116
[GRAPHIC] [TIFF OMITTED] T1544.117
[GRAPHIC] [TIFF OMITTED] T1544.118
[GRAPHIC] [TIFF OMITTED] T1544.119
[GRAPHIC] [TIFF OMITTED] T1544.120
[GRAPHIC] [TIFF OMITTED] T1544.121
[GRAPHIC] [TIFF OMITTED] T1544.122
[GRAPHIC] [TIFF OMITTED] T1544.123
[GRAPHIC] [TIFF OMITTED] T1544.124
[GRAPHIC] [TIFF OMITTED] T1544.125
[GRAPHIC] [TIFF OMITTED] T1544.126
[GRAPHIC] [TIFF OMITTED] T1544.127
[GRAPHIC] [TIFF OMITTED] T1544.128
[GRAPHIC] [TIFF OMITTED] T1544.129
[GRAPHIC] [TIFF OMITTED] T1544.130
[GRAPHIC] [TIFF OMITTED] T1544.131
[GRAPHIC] [TIFF OMITTED] T1544.132
[GRAPHIC] [TIFF OMITTED] T1544.133
[GRAPHIC] [TIFF OMITTED] T1544.134
[GRAPHIC] [TIFF OMITTED] T1544.135
[GRAPHIC] [TIFF OMITTED] T1544.136
[GRAPHIC] [TIFF OMITTED] T1544.137
[GRAPHIC] [TIFF OMITTED] T1544.138
[GRAPHIC] [TIFF OMITTED] T1544.139
[GRAPHIC] [TIFF OMITTED] T1544.140
[GRAPHIC] [TIFF OMITTED] T1544.141
[GRAPHIC] [TIFF OMITTED] T1544.142
[GRAPHIC] [TIFF OMITTED] T1544.143
[GRAPHIC] [TIFF OMITTED] T1544.144
[GRAPHIC] [TIFF OMITTED] T1544.145
[GRAPHIC] [TIFF OMITTED] T1544.146
[GRAPHIC] [TIFF OMITTED] T1544.147
[GRAPHIC] [TIFF OMITTED] T1544.148
[GRAPHIC] [TIFF OMITTED] T1544.149
[GRAPHIC] [TIFF OMITTED] T1544.150
[GRAPHIC] [TIFF OMITTED] T1544.151
[GRAPHIC] [TIFF OMITTED] T1544.152
[GRAPHIC] [TIFF OMITTED] T1544.153
[GRAPHIC] [TIFF OMITTED] T1544.154
[GRAPHIC] [TIFF OMITTED] T1544.155
[GRAPHIC] [TIFF OMITTED] T1544.156
[GRAPHIC] [TIFF OMITTED] T1544.157
[GRAPHIC] [TIFF OMITTED] T1544.158
[GRAPHIC] [TIFF OMITTED] T1544.159
[GRAPHIC] [TIFF OMITTED] T1544.160
[GRAPHIC] [TIFF OMITTED] T1544.161
[GRAPHIC] [TIFF OMITTED] T1544.162
[GRAPHIC] [TIFF OMITTED] T1544.163
[GRAPHIC] [TIFF OMITTED] T1544.164
[GRAPHIC] [TIFF OMITTED] T1544.165
[GRAPHIC] [TIFF OMITTED] T1544.166
[GRAPHIC] [TIFF OMITTED] T1544.167
[GRAPHIC] [TIFF OMITTED] T1544.168
[GRAPHIC] [TIFF OMITTED] T1544.169
[GRAPHIC] [TIFF OMITTED] T1544.170
[GRAPHIC] [TIFF OMITTED] T1544.171
[GRAPHIC] [TIFF OMITTED] T1544.172
[GRAPHIC] [TIFF OMITTED] T1544.173
[GRAPHIC] [TIFF OMITTED] T1544.174
[GRAPHIC] [TIFF OMITTED] T1544.175
[GRAPHIC] [TIFF OMITTED] T1544.176
[GRAPHIC] [TIFF OMITTED] T1544.177
[GRAPHIC] [TIFF OMITTED] T1544.178
[GRAPHIC] [TIFF OMITTED] T1544.179
[GRAPHIC] [TIFF OMITTED] T1544.180
[GRAPHIC] [TIFF OMITTED] T1544.181
[GRAPHIC] [TIFF OMITTED] T1544.182
[GRAPHIC] [TIFF OMITTED] T1544.183
[GRAPHIC] [TIFF OMITTED] T1544.184
[GRAPHIC] [TIFF OMITTED] T1544.185
[GRAPHIC] [TIFF OMITTED] T1544.186
[GRAPHIC] [TIFF OMITTED] T1544.187
[GRAPHIC] [TIFF OMITTED] T1544.188
[GRAPHIC] [TIFF OMITTED] T1544.189
[GRAPHIC] [TIFF OMITTED] T1544.190
[GRAPHIC] [TIFF OMITTED] T1544.191
[GRAPHIC] [TIFF OMITTED] T1544.192
[GRAPHIC] [TIFF OMITTED] T1544.193
[GRAPHIC] [TIFF OMITTED] T1544.194
[GRAPHIC] [TIFF OMITTED] T1544.195
[GRAPHIC] [TIFF OMITTED] T1544.196
[GRAPHIC] [TIFF OMITTED] T1544.197
[GRAPHIC] [TIFF OMITTED] T1544.198
[GRAPHIC] [TIFF OMITTED] T1544.199
[GRAPHIC] [TIFF OMITTED] T1544.200
[GRAPHIC] [TIFF OMITTED] T1544.201
[GRAPHIC] [TIFF OMITTED] T1544.202
[GRAPHIC] [TIFF OMITTED] T1544.203
[GRAPHIC] [TIFF OMITTED] T1544.204
[GRAPHIC] [TIFF OMITTED] T1544.205
[GRAPHIC] [TIFF OMITTED] T1544.206
[GRAPHIC] [TIFF OMITTED] T1544.207
[GRAPHIC] [TIFF OMITTED] T1544.208
[GRAPHIC] [TIFF OMITTED] T1544.209
[GRAPHIC] [TIFF OMITTED] T1544.210
[GRAPHIC] [TIFF OMITTED] T1544.211
[GRAPHIC] [TIFF OMITTED] T1544.212
[GRAPHIC] [TIFF OMITTED] T1544.213
[GRAPHIC] [TIFF OMITTED] T1544.214
[GRAPHIC] [TIFF OMITTED] T1544.215
[GRAPHIC] [TIFF OMITTED] T1544.216
[GRAPHIC] [TIFF OMITTED] T1544.217
[GRAPHIC] [TIFF OMITTED] T1544.218
[GRAPHIC] [TIFF OMITTED] T1544.219
[GRAPHIC] [TIFF OMITTED] T1544.220
[GRAPHIC] [TIFF OMITTED] T1544.221
[GRAPHIC] [TIFF OMITTED] T1544.222
[GRAPHIC] [TIFF OMITTED] T1544.223
[GRAPHIC] [TIFF OMITTED] T1544.224
[GRAPHIC] [TIFF OMITTED] T1544.225
[GRAPHIC] [TIFF OMITTED] T1544.226
[GRAPHIC] [TIFF OMITTED] T1544.227
[GRAPHIC] [TIFF OMITTED] T1544.228
[GRAPHIC] [TIFF OMITTED] T1544.229
[GRAPHIC] [TIFF OMITTED] T1544.230
[GRAPHIC] [TIFF OMITTED] T1544.231
[GRAPHIC] [TIFF OMITTED] T1544.232
[GRAPHIC] [TIFF OMITTED] T1544.233
[GRAPHIC] [TIFF OMITTED] T1544.234
[GRAPHIC] [TIFF OMITTED] T1544.235
[GRAPHIC] [TIFF OMITTED] T1544.236
[GRAPHIC] [TIFF OMITTED] T1544.237
[GRAPHIC] [TIFF OMITTED] T1544.238
[GRAPHIC] [TIFF OMITTED] T1544.239
[GRAPHIC] [TIFF OMITTED] T1544.240
[GRAPHIC] [TIFF OMITTED] T1544.241
[GRAPHIC] [TIFF OMITTED] T1544.242
[GRAPHIC] [TIFF OMITTED] T1544.243
[GRAPHIC] [TIFF OMITTED] T1544.244
[GRAPHIC] [TIFF OMITTED] T1544.245
[GRAPHIC] [TIFF OMITTED] T1544.246
[GRAPHIC] [TIFF OMITTED] T1544.247
[GRAPHIC] [TIFF OMITTED] T1544.248
[GRAPHIC] [TIFF OMITTED] T1544.249
[GRAPHIC] [TIFF OMITTED] T1544.250
[GRAPHIC] [TIFF OMITTED] T1544.251
[GRAPHIC] [TIFF OMITTED] T1544.252
[GRAPHIC] [TIFF OMITTED] T1544.253
[GRAPHIC] [TIFF OMITTED] T1544.254
[GRAPHIC] [TIFF OMITTED] T1544.255
[GRAPHIC] [TIFF OMITTED] T1544.256
[GRAPHIC] [TIFF OMITTED] T1544.257
[GRAPHIC] [TIFF OMITTED] T1544.258
[GRAPHIC] [TIFF OMITTED] T1544.259
[GRAPHIC] [TIFF OMITTED] T1544.260
[GRAPHIC] [TIFF OMITTED] T1544.261
[GRAPHIC] [TIFF OMITTED] T1544.262
[GRAPHIC] [TIFF OMITTED] T1544.263
[GRAPHIC] [TIFF OMITTED] T1544.264
[GRAPHIC] [TIFF OMITTED] T1544.265
[GRAPHIC] [TIFF OMITTED] T1544.266
[GRAPHIC] [TIFF OMITTED] T1544.267
[GRAPHIC] [TIFF OMITTED] T1544.268
[GRAPHIC] [TIFF OMITTED] T1544.269
[GRAPHIC] [TIFF OMITTED] T1544.270
[GRAPHIC] [TIFF OMITTED] T1544.271
[GRAPHIC] [TIFF OMITTED] T1544.272
[GRAPHIC] [TIFF OMITTED] T1544.273
[GRAPHIC] [TIFF OMITTED] T1544.274
[GRAPHIC] [TIFF OMITTED] T1544.275
[GRAPHIC] [TIFF OMITTED] T1544.276
[GRAPHIC] [TIFF OMITTED] T1544.277
[GRAPHIC] [TIFF OMITTED] T1544.278