By Alan Prendergast
By Michael Roberts
By Michael Roberts
By Amber Taufen
By Patricia Calhoun
By William Breathes
By Michael Roberts
By Melanie Asmar
What the government didn't get out of it, though, was a dismissal of the RICO case -- a potentially explosive precedent that's still very much alive. Last year, Wyoming federal judge Clarence Brimmer denied the government's motion for summary judgment on the grounds of governmental immunity, ruling that Robbins had presented "a significant amount of evidence which could lead a jury to conclude that [the BLM employees] did intend and agree to extort and punish" him. Brimmer's ruling is now being reviewed by the Tenth Circuit Court of Appeals in Denver.
Budd-Falen points out that various drafts of the settlement included the option of staying the RICO case for thirty months or even dismissing it without prejudice. Assistant U.S. Attorney Roberts was so confident that he would prevail in the RICO case that he refused to consider including it in the deal, she says.
Roberts, who's now a member of the Wyoming Board of Equalization, explains that he wasn't willing to consider a stay or a dismissal without prejudice, which wouldn't preclude Robbins from refiling the case. "I wasn't going to ask my clients to let a case sit in limbo for two years," he says. "One of our concerns all along was that you can't have federal employees being sued under RICO."
After the settlement hit the newspapers, Bill Myers e-mailed Comer and asked him why the RICO suit wasn't included in the agreement, since the papers were saying "we did not protect our own employees."
"I was quite insistent with both Robbins and [AUSA Roberts] that we settle the RICO portion of the case," Comer e-mailed back to his boss. "Fran Cherry was ok with the idea, but neither the AUSA or Robbins were agreeable...the AUSA was particularly blustery about the issue, and his boss concurred. As a result, the RICO claims were not settled. Everyone wanted to have their positions vindicated."
Roberts told the IG investigators that Comer's version was "an absolute falsehood which completely misrepresents my position." He produced e-mails and other documents of his own that indicate his office pushed for a complete dismissal of the RICO case and denounced the agreement that Comer had come up with as "fraught with problems."
But Comer continued to insist that he'd acted as a "neutral third party," trying to extricate the BLM and the rancher from a litigious death match. Roberts was part of the "posse" out to get Robbins, he told the IG's people, and complaints from various quarters of not being briefed on where the settlement was going were unfounded.
"The BLM was directly involved," Comer said. "The BLM Washington office was directly involved in reviewing drafts of this and, in fact, called the shots on every single aspect of this document."
On January 30, 2004, a BLM manager notified Robbins that his settlement agreement was now void because of continuing instances of grazing violations. Robbins says the violations were minor and "non-willful," resulting from some cows having slipped through a fence break, and shouldn't have triggered such a severe response. He's now pursuing several additional claims against the government based on what he regards as its unlawful voiding of a politically unpopular settlement.
"The Department of the Interior is full of environmentalists," he says disgustedly. "We've just got a lot of conspiracy and collusion here. Everybody decided I was the enemy."
Back in Washington, senior DOI officials have done their best to distance themselves from the Robbins affair. Indeed, everyone involved in the settlement agreement seems to have erected a wall of plausible deniability around their actions -- with the exception of Bob Comer.
"I think Bob is being used as a scapegoat," says attorney Budd-Falen. "When you look at the drafts that were sent back and forth, they were copied to all sorts of people."
Yet those people are all blessed with amnesia. Questioned by IG investigators, BLM director Clarke couldn't even recall asking Comer to settle the dispute; all she recalled was putting her deputy director in charge of the matter.
Deputy director Cherry, who signed the deal, maintained that he was unaware of the "significant concerns" raised by the Department of Justice about the agreement. Yet Cherry had been part of a teleconference with Comer and Roberts on precisely that point, had been copied on numerous documents dealing with the RICO case, and had even had conversations with Robbins directly concerning his refusal to drop the lawsuit. (Now retired, Cherry received only a mild scolding in the IG's report.) Various other BLM and DOI officials pleaded ignorance about the deal, despite a trail of settlement drafts and briefing memos that tracks right to their office doors.
Then there's William Myers. Tap-dancing before Senate Democrats in his judicial confirmation hearings a few weeks ago, Myers tried to strike the right note of innocent bewilderment and mild concern over the Robbins deal. He had "no information" before or during Comer's negotiations, he told his inquisitors, "that this settlement effort would be particularly controversial." He didn't see the settlement document until after Cherry had signed it. He didn't know about the RICO problems until after the story hit the papers. Had he known, he might have called off the whole settlement, he said, and he might have reconsidered his decision to recommend Comer for the post of Rocky Mountain regional solicitor.