Friends of the Earth
FOR IMMEDIATE RELEASE
FEBRUARY 5, 2004
 2:49 PM
CONTACT:  Friends of the Earth
Kristen Sykes 202-222-0730
 
Environmental Group Calls on Senate to Block Myers Nomination to Ninth Circuit - Ethical Problems and Anti-Environmental Activism Make Him Unfit for Judgeship
 

WASHINGTON - February 5 - Today, the Senate will hold a confirmation hearing on William G. Myers for a lifetime appointment to the Ninth Circuit Court of Appeals. Based on his ethical conduct as solicitor at the Department of the Interior, and his anti-environmental activism in private practice, Friends of the Earth believes that Myers will be an activist judge bent on repealing fundamental environmental laws. The Senate should not confirm Myers to the Ninth Circuit Court of Appeals.

"Myers has made a career out of advocating for the coal, mining, oil and gas and grazing industries while at the Interior Department," said Kristen Sykes Interior Department watchdog for Friends of the Earth. "We question whether Myers can be an impartial judge or just an advocate for the exploitation of our public lands."

As solicitor of the Interior Department, from July 2001 to October 2003, Myers pursued an agenda to roll back or weaken environmental laws governing public land use. While solicitor, the Interior Department rolled back Clinton administration grazing regulations, which he previously challenged in 2000 for the grazing industry through a lawsuit that went all the way to the Supreme Court. Myers also reversed a Clinton administration opinion that had blocked a strip mine threatening Native American sacred lands in Southern California. Myers' tenure at the Interior Department was also plagued by questionable ethical decisions that eventually lead to an Interior Department inspector general report.

"Myers is the poster child for the revolving corporate door between Washington, DC and industry," continued Sykes. "He advocated for weakening environmental laws, while meeting with former clients and his former law firm."

Recently, the Interior Department's inspector general investigated Myers for violating his ethics agreement by continuing to meet with H&H partners and former clients. Before Myers could take his post at the Interior Department, he signed an agreement not to be involved with H&H or former clients. By looking at Myers' official calendars obtained through the Freedom of Information Act, Friends of the Earth discovered Myers had at least 11 meetings with H&H partners.

As an H&H lawyer, Myers represented Peabody Coal and Kennecott Energy, clearing the way for them to tear up the land through coal and coal bed methane development in the Powder River Basin in Montana and Wyoming. Furthermore, as executive director of the Public Lands Council, which represents ranchers who graze livestock on federal lands in the West, Myers advocated for the reversal of Interior Department grazing regulations; the de-listing of endangered species such as the desert tortoise, wolves and grizzly bear; the "un-designation" of wilderness areas; and the divestiture of federal lands.

The Ninth Circuit Court of Appeals is one of most important courts in the country for protecting public lands. It has jurisdiction over nine states, 485 million acres of public lands and the lives of more than 55 million Americans. The Ninth Circuit has recently ruled on such important cases as the protection of roadless areas in national forests and the implementation of California's tough new clean air protections.

William Myers Meetings with Industry and Environmentalists while at the Interior Department

As solicitor of the Department of the Interior, William Myers repeatedly met with industry lobbyists, his former clients and his former/current employer Holland and Hart (H&H). According to Myers' official calendars obtained through a Freedom of Information Act request, Myers met with industry lobbyists at least 32 times, including 11 meetings with H&H. In contrast, Myers met with one environmentalist three times. Therefore, Myers spent 90 percent of his time meeting with resource extraction interests.

Myers is currently awaiting confirmation to a lifetime appointment on the Ninth Circuit Court of Appeals (Ninth Circuit). The Ninth Circuit has jurisdiction over nine states, 485 million acres of public lands and the lives of over 55 million Americans. Based on his record of partiality to industry during his tenure at the Interior Department, Friends of the Earth questions his ability to be an impartial judge as he weighs public health and the environment against industry needs.

Meetings William Myers had with Industry as Interior Department Solicitor

Aug. 3, 2001, 11 a.m. -11:30 a.m. - Hal Quinn [Hal Quinn is senior vice president of the National Mining Association and specializes in coal issues.]

Aug. 6, 2001, 4 p.m. - 4:30 p.m. - Steve Quarles, Tom Hebert, Allan James [Steve Quarles is an industry lobbyist for Crowell and Moring and has represented mining and agricultural interests. Tom Hebert is a lobbyist for Capitolink, LLC and represents a number of agriculture and livestock interests. Allan James is a lobbyist for Croplife America.]

Aug. 7, 2001, 2:30 p.m. - 3 p.m. - Steven Griles and mining interests regarding valuation of mining claims [For this date on Griles' calendar it is recorded as a meeting with Nils Johnson and Placer Dome, Newmont Mining.]

Aug. 29, 2001, 2 p.m. - 2:30 p.m. - Brenda Southwick [Brenda Southwick represents the California Farm Bureau.]

Sept. 6, 2001, 2 p.m. - 3 p.m. - Monita Fontaine, George Manina both with the Personal Water Craft Association.

Sept. 24, 2001, 6:30 p.m. - 8:30 p.m. - Council of Republicans for Environmental Advocacy (CREA) Dinner at Julie Finley's home. [Secretary Gale Norton founded CREA, which is a big promoter of drilling in the Arctic National Wildlife Refuge and largely funded by the National Mining Association, the Chemical Manufacturers Association and the Heritage Foundation.]

Oct. 4, 2001, 5:45 - 8:30 pm - H&H Reception, Hay Adams Hotel.

Oct. 4, 2001 - Post reception dinner with H&H attorneys.

Oct. 5, 2001, 9 a.m. - 10a.m. - Murry Feldman, Ann Castle and Larry Wolf of H&H "hello" meeting.

Oct. 5, 2001, 1:30 p.m. - 1:45 p.m. - Larry Wolfe with general counsel of EOG Resources (formerly Enron Oil and Gas) [Larry Wolfe is an attorney with H&H.]

Oct. 5, 2001 - Dinner with H&H partner.

Oct. 15, 2001, 3 p.m. - 3:30 p.m. - Mark Himmelstein and Christa Mutch with National Environmental Strategies regarding coal bed methane. [National Environmental Strategies is Steven Griles' old lobby firm and it lobbies on energy issues.]

Oct. 19, 2001, 7 a.m. --5:45 p.m. - National Mining Association speech in Florida.

Oct. 30, 2001, 1 p.m. - 2 p.m. - Doc Lane with the Arizona Cattleman's Association and Jeff Mingas, regarding the Endangered Species Act and grazing. Jim Chilton, Kevin Moran from Sen. Kyle's (R-Texas) office, Ben Bell, Jason Campbell executive director of the Public Lands Council. [Myers was executive director of the Public Lands Council from 1993 to1997.]

Nov. 1, 2001, 11:30 p.m. - 12:30 pm - Bill Horn, a lobbyist with the law firm Birch, Horton, Bettner and Cherot PC , which represents a number of energy companies and off road vehicle groups.

Dec. 13, 2001, 10a.m. - 10:30 a.m. - Guy Hurlbutt and Ralph Saperstein, Boise Cascade Timber Company.

Jan. 15, 2002, 2 p.m. - 3 p.m. - Laura Skaer with Fred Ferguson [Laura Skaer works with the Northwest Mining Association.]

April 15, 2002, 9 a.m. - 10 a.m. - John Braley, executive vice president of the California Cattlemen's Association.

April 16, 2002, 11 a.m. - 12 p.m. - Sarah with the Idaho Cattlemen's Association

April 16, 2002, 1 pm - 2 p.m. - James Magagna - Wyoming Stockgrowers Association

April 26, 2002, 10:30 a.m. - 11:30 a.m. - American Forest Resources Council Rich Nolan with Tom Sansonetti [Sansonetti is assistant attorney general, Environment and Natural Resources at the Department of Justice and a former colleague of Myers at H&H.]

May 16, 2002, 2:30 - 3 pm - Larry Wolfe, Paul Phillips and Mark Sheridan [All are attorneys for H&H.]

September 18, 2002, 12:30 - 1 p.m. - Tim McCrumb, Chuck Jeannes - Glamis with Peter Shaumberg, Fred Ferguson. [McCrumb works for Crowell and Moring and represents Glamis Gold. Chuck Jeannes is the general counsel for Glamis Gold. Ferguson and Shaumberg work in the DOI solicitors office.]

Sept. 27, 2002 - H&H Retreat in Vail, Colo.

Oct. 23, 2002, 1:45 p.m. - 2:15 p.m. - David Delcouer with Bob Comer [Delcouer is executive vice president for the Dawn Mining Company and Bob Comer works in the solicitors office at DOI.]

Oct. 23, 2002, 3 p.m. - 3:30 p.m. - Laura Skaer, Northwest Mining Association

Nov. 13, 2002, 8:30 p.m. - 9 a.m. - Mark Burn, National Cattlemen's Association

Nov. 13, 2002, 9 a.m. --9:30 a.m. - Dick Loper with Wyoming State Grazing Board's Joe Bowzman.

Nov. 14, 2002 - Winnemucca, Nev.; Cattle Association Speech

Nov. 18, 19, 20, 2002 - Sun Valley Idaho - Idaho Cattle Association

June 4, 2003, 3 p.m. - 3:30 pm - National Cattlemen's Young Cattlemen's conference, DOI Auditorium

June 26, 2003, 10:30 - 11:00 am - Kim Harb and group [Kim Harb is head of government affairs for National Ocean Industries Association.]

Meeting William Myers had with Environmentalists as DOI Solicitor

Jan. 25, 2002, 3 p.m. - 3:45 pm - Cathy Carlson (Cathy is consultant for the Mineral Policy Center and the Hewlett Foundation)

Nov. 1, 2002, 2 p.m. - 3p.m. - Cathy Carlson

Dec. 5, 2002, 9:30 a.m. -10 a.m. - Cathy Carlson - courtesy visit - grazing op.

The Ninth Circuit and William G. Myers

In the coming months, the U.S. Senate will be asked to confirm former Solicitor of the Department of the Interior William G. Myers to the U.S. Court of Appeals for the Ninth Circuit. Based on Myers work at the Interior Department, Friends of the Earth is extremely concerned that he will be an activist judge, seeking to undermine or overturn some of the nation's fundamental environmental laws.

Background on the Ninth Circuit

The U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) is one of 12 regional circuit courts in the United States. U.S. Circuit Courts are the last courts to hear a case before it can be appealed to the Supreme Court. Because the Supreme Court typically considers only a couple of dozen cases annually, Circuit Courts often provide the final ruling on many cases.

On environmental protection cases, the Ninth Circuit may be the most important court in the nation. Currently, the Ninth Circuit has jurisdiction over nine states including Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington, as well as Guam and the Northern Mariana Islands. Combined, these states and territories have a population of more than 55 million people and contain more than 485 million acres of federal lands. Due to the large amount of public lands in its jurisdiction, the Ninth Circuit plays a huge role in the protection and management of some of the most incredible landscapes in America. Furthermore, not only is the Ninth Circuit the largest in federal land jurisdiction and population, it also handles the most cases with 12,388 case filings in 2002.

Politically, the Ninth Circuit has been castigated as a liberal court. Unfortunately, this label belies that of the 25 current judges on the court, with at least half of the justices having conservative leanings. An Aug. 23, 2002, article in the Legal Times broke down the make-up of the court stating, "Of the [then] 24 active judges, 12 are clearly conservatives, six are moderates, and only six could fairly be characterized as liberals."

William G. Myers

In May 2003, President Bush nominated William G. Myers, former solicitor for the Department of the Interior, to the Ninth Circuit. As solicitor at the Interior Department, Myers was the principal legal adviser to the secretary of the Interior and the chief legal officer of the Interior Department. Among other activities, the solicitor's duties involve drafting and legal review of legislation, regulations, contracts, leases, permits, correspondences and other documents.

For eight years, prior to his 2001 appointment as the Interior Department solicitor, Myers represented industry clients that sought to open public lands to more coal and coal bed methane extraction, as well as cattle grazing. The companies and trade groups he represented, including Arch Coal, Peabody Coal, Kennecott Energy and the National Mining Association, fought to weaken government regulations and oversight over coal and hardrock mining, as well as natural gas drilling. He was also the executive director of the Public Lands Council and director of Federal Lands for the National Cattlemen's Beef Association, where he sought to weaken environmental laws and regulations that govern grazing on public lands.

As solicitor, Myers advocated to roll back environmental laws. He was involved in the weakening of hard rock mining regulations, reversing a decision to stop a mine on American Indian sacred lands in Southern California and rolling back grazing regulations he once challenged in court. While the Interior Department was weakening environmental laws, Myers was having meetings with his former law firm, Holland and Hart LLP, which represents many of his old clients. In fact, the Interior Department's Inspector General investigated ethics complaints filed against Myers for meeting with former clients despite his ethics/recusal agreements.

On Oct. 10, 2003, soon after the investigation began, Myers resigned his post as solicitor at the Interior Department. Recently, the Interior Department's inspector general released a fact finding report on the ethic complaints against Myers. In total, the inspector general found 16 meetings that Myers' had with his former law firm.

William Myers: Advocate for Industry or Advocate for the People?

William G. Myers has made a career out of advocating for the coal, mining, oil and gas and grazing industries. During his tenure as solicitor at the Department of the Interior, Myers used his chief lawyer position to undercut rules and regulations that protect federal lands. Myers was also a former lawyer and anti-environmental activist for the Public Lands Council, where he represented grazing interests and energy developers who hired him to push for weakened environmental protections and a pro-industry agenda.

In the table below, we have compared the similarities of anti-environmental resolutions and positions the Public Lands Council adopted when Myers was the executive director to actions the Interior Department took when he was the solicitor.

POSITIONS PUBLIC LANDS COUNCIL ADOPTED WITH MYERS AS EXECUTIVE DIRECTOR (1993-1997)

(All resolutions were passed and actions taken between 1994 and 1996)

ACTIONS THE INTERIOR DEPARTMENT HAS TAKEN WITH MYERS AS SOLICITOR (2001-2003)

Myers represented the PLC in a lawsuit that challenged the Department of the Interior's grazing regulations. The lawsuit, which failed, was first brought in the District Court of Wyoming and went all the way to the Supreme Court in 2000.

November 2002: The Department of the Interior (DOI) announced its plans to reverse federal livestock grazing regulations, which would benefit ranchers at the expense of the environment.

The PLC passed a resolution "strongly opposed to the expansion of existing parks or designation of "ecosystems" that give priority to grizzly bear and wolf recovery over economic values." The resolution also supported "the de-listing of the wolf and grizzly bear from the Endangered Species Act and that the control of the grizzly bear and wolf be turned over to the appropriate state authority."

September 2002: The Bush administration moved to remove federal protections for wolves by 2003. According to Myers official calendars, he had meetings with DOI staff on the listing of wolves.

The PLC passed a resolution calling to amend the Endangered Species Act to recognize "the need for economic benefit and the protection of private property rights and insures that private property owners be fully compensated for any damage." The resolution further resolved, "the Endangered Species Act be amended to allow existing federal land laws equal consideration with the Endangered Species Act."

May 2003: The DOI announced that it wants to abandon what it calls a "broken" law -- the Endangered Species Act. The DOI also stated their plans to insert language into all future critical habitat designations (critical habitat is primary habitat for species that is necessary to their survival) that argues that these protections have no value in species protection. Myers was part of a DOI internal "Endangered Species Working Group" that met regularly to discuss endangered species issues.

The PLC "expresses its continued opposition to the listing and pursues every viable method to de-listing of the desert tortoise." PLC further resolved, "the U.S. Department of Interior assure that the interests of livestock producers are recognized and accounted for in any management plan for the desert tortoise."

August 2001: After agreeing to a legal settlement to remove livestock from endangered desert tortoise habitat in Southern California, Interior Secretary Gale Norton repeatedly refused to comply.

May 2001: A federal judge sharply criticized the Interior Department for failing to honor its promise to restrict cattle grazing on 427,000 acres of Mojave Desert public land allotments to protect critical tortoise habitat.

The PLC passed a resolution to strongly oppose "further designation of wilderness areas, Wild and Scenic Rivers, national conservation areas, primitive areas, wildlife refuges, or other special use areas which conflict with private property rights or restrict the continued multiple use of public lands." The resolution further resolved, "existing wilderness areas should be re-examined and only those areas that meet the criteria specified in the Wilderness Act of 1964 should remain wilderness. All other areas should be released back to multiple-use management."

April 2003: The DOI settled a lawsuit with the state of Utah that resulted in the reversal of a federal policy that protects public lands while federal land managers are assessing them for possible wilderness protection. Through the settlement, the DOI also renounced any authority by the department to conduct wilderness inventories on any public lands or to even decide to protect any more areas for their wilderness values. According to Myers' official calendars, he had a number of meetings with DOI staff on wilderness.

Key Environmental Cases Decided by the Ninth Circuit

If the Senate confirms Myers for the Ninth Circuit Court, he will hear cases that impact roughly 485 million acres of federal lands. These lands are managed by the U.S. Forest Service, the Bureau of Land Management, the U.S. Fish and Wildlife Service, the National Park Service, the Bureau of Reclamation and the Army Corps of Engineers. The Ninth Circuit has decided on significant issues such as whether to protect all of the U.S. Forest Service roadless areas, uphold a precedent setting air pollution law in California and confirm that oil and gas drilling is polluting our nation's waterways. Recent environmental decisions by the Ninth Circuit include:

Defining Coal Bed Methane Wastewater as a Pollutant

The Northern Plains Resources Council filed a claim that Fidelity Exploration and Development Company had violated the Clean Water Act by drilling for coal bed methane natural gas and discharging millions of gallons of the wastewater into the Tongue River without a permit in Eastern Montana. The case, originally brought in the U.S. District Court for the District of Montana, was denied but was won on appeal to the Ninth Circuit. The Ninth Circuit ruled that methane wastewater is a pollutant and states do not have the right to create exemptions to the federal Clean Water Act. Fidelity appealed the case to the Supreme Court, which refused to hear the case (Northern Plains Resource Council v. Fidelity Exploration and Development Company, 2003).

Upholding the National Forest Roadless Rule

The Kootenai Tribe of Idaho, as well as the American Council of Snowmobile Association, Boise County Idaho, Little Cattle Company Limited Partnership, Boise Cascade Corporation and others, challenged the Roadless Area Conservation Rule ("roadless rule") in the U.S. District Court for the District of Idaho. The Clinton administration promulgated the roadless rule in order to protect 58.5 million acres of national forest roadless areas from road building. The case was successful at the district level and the judge suspended the implementation of the roadless rule, however the Ninth Circuit reversed the injunction and the roadless rule was reinstated (Kootenai Tribe of Idaho v. Veneman, 2002).

Allowing Cattle Grazing to Continue Despite Endangered Species

The Southwest Center for Biological Diversity brought a case claiming that cattle grazing in Arizona was harming the endangered loach minnow against the U.S. Forest Service before the United States District Court for the District of Arizona. The district court denied the injunction and the plaintiffs appealed to the Ninth Circuit. The Ninth Circuit affirmed the decision of the district court. The Ninth Circuit upheld that an injunction on livestock grazing was not required to protect the endangered loach minnow (Southwest Center for Biological Diversity v. U. S. Forest Service, 2002).

Upholding a Clean Air Law in California

The Engine Manufacturers Association and other industry interests challenged a California clean air law before the U.S. District Court for the Central District of California. The plaintiffs appealed the district court's decision to the Ninth Circuit, which upheld the district court's opinion that the adoption of rules by a regional air quality management district requiring certain public and private vehicle fleet operators to purchase or replace their vehicles only with the lowest-emission vehicles available under California law, did not preempt the Clean Air Act (Engine Manufacturers Association v. South Coast Air Quality Management District, 2002). The manufacturers appealed to the Supreme Court, which has agreed to hear the case.

Salvage Logging Project Violates the National Environmental Policy Act

The Blue Mountains Biodiversity Project filed a case against the U.S. Forest Service claiming it violated the National Environmental Policy Act. The U.S. District Court for the District Court of Oregon found in favor of the U.S. Forest Service and the plaintiffs appealed to the Ninth Circuit. The Ninth Circuit reversed the lower court's decision and found that the U.S. Forest Service violated the National Environmental Policy Act by failing to do an environmental impact statement (EIS) on salvage logging projects in Oregon. The Ninth Circuit issued an injunction on the salvage logging projects until the U.S. Forest Service completed an EIS (Blue Mountains Biodiversity Project v. Blackwood, 1998).

Conclusion

The Ninth Circuit Court of Appeals is one of the most important courts in ensuring the protection of our environment and enforcement of our environmental laws. If the Senate confirms Myers to the bench, it would be allowing an anti-environmental activist judge to rule over sensitive environmental matters.

For more information, please contact:

Kristen Sykes, (202) 222-0730, email: ksykes@foe.org or Erich Pica, (202) 222-0739, email: mailto:epica@foe.org

Friends of the Earth, 1717 Massachusetts Ave., NW, Suite 600, Washington, DC 20036 (202) 783-7400

Friends of the Earth is a national environmental advocacy organization with affiliates in 69 countries. For more information on the Internet, check out http://www.foe.org

 

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