Judicial Nominee Under Scrutiny

Sen. Russell D. Feingold (D-Wis.) called Tuesday for an investigation into whether William G. Myers III, a nominee for the federal appeals court in San Francisco, lied when he told a Senate committee that he was not aware of the terms of a controversial settlement the Interior Department had made with a politically connected Wyoming rancher until months after the deal was signed.

Myers was the top lawyer at the department in the first term of the Bush administration, when the agreement was consummated. Feingold said a memo from Karen Budd-Falen, the rancher’s lawyer, “directly contradicts Mr. Myers’ written response to a question I submitted.”

A spokeswoman for Sen. Patrick J. Leahy (D-Vt.), the ranking Democrat on the Judiciary Committee, said he was reviewing the information regarding Myers, who cleared the committee on a 10-8 party-line vote last month. An aide to panel chairman Sen. Arlen Specter (R-Pa.) said the nominee “was thoroughly vetted and investigated by the White House, the Department of Justice, the American Bar Assn. and the U.S. Senate Judiciary Committee.”

Community Rights Counsel and Public Employees for Environmental Responsibility, two public interest groups opposing Myers’ nomination to the U.S. 9th Circuit Court of Appeals, gave the lawyer’s memo to senators and urged an investigation.

Myers, a longtime lobbyist for the mining and cattle industries who served as solicitor of the Interior Department from July 2001 to October 2003, told the Senate Judiciary Committee during hearings in 2004 and in written responses that he “did not know” the terms of the settlement with Harvey Frank Robbins, who had been accused of federal grazing violations, until he read news accounts of the settlement in July 2003.

Robbins’ lawyer has disseminated a memo and supporting material, including a fax, raising questions about that response. The Nov. 13, 2002, fax was sent by Robert Comer -- the Interior Department lawyer Myers authorized to make a settlement -- to Myers, other government officials and Budd-Falen.

The cover sheet of the 17-page fax asked the officials, including Myers, if they wanted to make “any other changes to the settlement agreement” that was attached.

Myers’ calendar records, obtained by environmental groups under the Freedom of Information Act, showed that he and Comer discussed the settlement Nov. 21, eight days after the fax was sent. In Senate testimony, Myers said the conversation was simply an opportunity for Comer to tell him he was “still negotiating.” The final settlement was signed six days later.

In the memo, Robbins’ attorneys said Myers had “full knowledge of the settlement agreement and all of its terms” before the agreement was finalized.

The latest challenge to Myers’ nomination comes as Senate Republicans are pressing for new rules to prohibit filibusters against judicial nominations. Myers was among 10 nominees blocked last year when Republicans could not get the required 60 votes to end debate.

Myers was renominated by Bush this year. Virtually every major environmental organization in the country, along with Native American, civil rights, labor and women’s groups, are opposed to his nomination. Myers is supported by ranchers, mining organizations and conservative groups, who say he would bring balance to the 9th Circuit, generally considered the most liberal federal appeals court.

Robbins’ 2002 settlement excused the Wyoming rancher from 16 trespassing violations and specified that only the director of the federal Bureau of Land Management, or someone she designated, could cite him for future violations, not officials in Wyoming as normally would be the case.

The agreement also gave Robbins a new grazing allotment, rights of way across federal lands and a special recreational permit to run a dude ranch. The agreement was reached after Robbins met with ranking officials of the BLM in Washington.

Robbins told the Los Angeles Times in an interview that Con Lass, a BLM official with Wyoming roots, had arranged the meeting after Robbins complained he was being treated unfairly. Robbins has sued several current and former employees of the BLM in federal court in Cheyenne, Wyo., alleging that they violated federal racketeering laws in their dealings with him. The suit is pending.

The memo from Robbins’ lawyer was prepared in an effort to rebut a stinging critique of the settlement issued in February by Earl Devaney, the Interior Department’s inspector general.

Devaney said the solicitor’s office circumvented negotiation processes, kept the BLM out of the talks, ignored concerns about the settlement raised by the Justice Department and engaged in an “inappropriate level of programmatic involvement” in the settlement talks.

Myers was first asked about the Robbins settlement during a Senate hearing in February 2004. He said he “was not involved in the negotiations or discussions of [the Robbins] settlement, other than to tell [Comer] that he had authority to try to settle the case.”

At his second hearing in February 2005, Myers offered a slightly different version, saying he had “brief conversations with Mr. Comer several times during the course of the settlement negotiation process.” Myers said Comer “did not brief me on the terms of the draft settlement.”

Justice Department spokesman John Nowacki, who has served as Myers’ spokesman during the confirmation battle, said Myers “never saw drafts of the final settlement and didn’t sign the agreement but once he learned of potential problems with the settlement, he quickly took steps to ensure that the matter ... received a thorough investigation.”