By Michael Roberts
By Michael Roberts
By Michael Roberts
By Michael Roberts
By Michael Roberts
By William Breathes
By Jonathan Shikes
By Michael Roberts
Taking the oath of office can be a solemn moment in the life of a public servant. For William G. Myers III, a longtime lobbyist for grazing and mining interests, the occasion was an excuse for a corporate bash.
On October 4, 2001, Myers attended a reception in his honor at the swank Hay-Adams Hotel in Washington, D.C., hosted by his former colleagues at the law firm of Holland & Hart. Vice President Dick Cheney showed up long enough to swear in Myers as Solicitor for the Department of the Interior -- the top lawyer in the entire agency, charged with the legal safeguarding of the federal government's vast array of parks, wilderness, rangeland and other natural resources. The total acreage under DOI control accounts for one-fifth of all the land in the United States.
The next morning, Myers met with several Holland & Hart partners at DOI headquarters. The purpose of the meeting wasn't to discuss legal business -- Myers had formally recused himself from any matters affecting his former clients, such as Peabody Coal and the National Cattlemen's Beef Association, for one year -- but to show off his righteous new digs. Myers took the attorneys on a tour of his office and a conference room where the photos of previous DOI solicitors are displayed, then announced that the group had time to visit the office of his boss, Gale Norton, before she arrived at work.
The office of the Secretary of the Interior is one of the grandest in federal government, a cavernous room paneled in oak and blazing with brass and chandeliers. Myers's buddies were free to test the sofas and check out the view from the balcony. They were, one recalled later, "appropriately awed." But the solicitor soon glanced at his watch and suggested it was time to go.
At that moment, Secretary Norton opened the door, nearly leveling one of the senior partners in the process. After some awkward introductions, the group beat a hasty retreat down the hall.
Myers's critics love to tell the story of that embarrassing encounter; the image of high-priced industry lawyers making themselves at home in Norton's office is emblematic, they say, of the corporate takeover of the DOI that began shortly after George W. Bush was elected. But it's also indicative of the bumpy ride that Myers had as solicitor. His brazenly pro-industry approach angered environmentalists and Native American groups, and his office -- which oversees 315 attorneys around the country -- was frequently embroiled in ethics probes.
Myers left the government in 2003, returning to the cozy embrace of Holland & Hart's office in Boise. Last year he was one of ten Bush candidates for federal judgeships whose nominations were blocked by filibustering Senate Democrats. After Bush's re-election, the administration promptly resubmitted Myers and several other nominees for consideration. Despite strenuous objections from ranking Judiciary Committee liberals -- Vermont's Patrick Leahy calls Myers "the most anti-environment nominee sent to the Senate in my time here" -- this month Myers will be the first of the contentious candidates to be debated on the Senate floor.
Opponents insist that Myers's biases are far too extreme to warrant a lifetime seat on the U.S. Court of Appeals for the Ninth Circuit, a region that encompasses millions of acres of public lands stretching from Hawaii to Montana. They've found plenty of ammunition in his past legal work and writings, such as his comparison of federal land management to the "tyranny" of King George, his denunciations of the Endangered Species Act, and his derisive references to environmental activists "mountain-biking to the courthouse...bent on stopping human activity wherever it may promote health, safety and welfare."
But some of the toughest questions Myers has faced in recent weeks focus on a deal that went down in the DOI solicitor's office during his watch there. In an effort to resolve years of court battles between a Wyoming rancher and the Bureau of Land Management, attorneys working under Myers agreed to a bizarre settlement that heavily favored the rancher at the expense of their "client," the BLM. Essentially, the deal forgave numerous alleged trespasses and grazing violations by the rancher, Frank Robbins; deprived the local BLM office of the ability to enforce the law in the event of further problems with Robbins; and allowed Robbins to continue to press a costly and punitive lawsuit against individual BLM employees, accusing them of racketeering and extortion.
Questioned by investigators from the DOI's Office of Inspector General about the settlement, Myers claimed that he was unaware of key details until after the deal was done. The IG's report -- completed last fall, but not publicly released until four months later -- is much more critical of the actions of Robert Comer, a political appointee who worked directly under Myers and is now the Rocky Mountain regional solicitor for the DOI, based in Lakewood. According to the report, Comer used "pressure and intimidation" to try to get the settlement done his way; misled or failed to inform senior officials about problems with the deal; and ramrodded it through "with total disregard for the concerns voiced by career field personnel."
Environmental groups appalled by the settlement believe the IG's report was entirely too kind to Myers and other senior DOI officials. "They centered on small fry, middle managers, and let the principals skate," says Jeff Ruch, executive director of Public Employees for Environmental Responsibility (PEER), an advocacy group for federal whistleblowers that had requested the internal investigation of the Robbins matter. "This deal was green-lighted at the highest levels."
Jon Marvel, executive director of the Western Watersheds Project, which filed a lawsuit challenging the settlement, agrees. "I have no doubt that Bill Myers was perfectly aware of what was going on and may have directed what was going on," he says. "Myers is one of the preeminent apologists for public-lands ranching, and the Robbins settlement is the quintessential example of that point of view in action -- where, because someone is rich and connected, they get treatment that nobody else ever got."
Robbins and his attorney also dispute the report's findings, saying they give a false picture of what went on in the negotiations, unfairly depict Comer as some kind of rogue agent, and ignore the substantial history of "wrongdoing" on the part of the government that led to the settlement. The deal was voided last year after alleged breaches of the terms by Robbins, but Robbins charges that the BLM caved to pressure from environmentalists -- and the BLM now faces additional lawsuits filed by his attorney in Cheyenne.
"It's a crucifixion, what's been taking place," the rancher says. "They have put me completely out of business now. The damages are huge. I'm talking about millions and millions of dollars. They had no reason to break that settlement agreement."
The report's scathing attack on Robert Comer seems to have satisfied no one. (It probably didn't satisfy Comer, either; he declined to be interviewed, saying that he was not authorized by the DOI to comment on the IG's findings.) But whether Comer was straying off the reservation or doing exactly what senior officials wanted, the misfired Robbins deal provides a rare glimpse into the inner sanctum of Norton's Department of the Interior. The strange saga of Robert Comer and his know-nothing bosses answers more than a few questions and leaves a big one on the table:
Just who are these guys working for, anyway?
Transfixed by the demons of Iraq, terrorism and the economy, the national media has paid little attention to the Bush administration's record on the environment. That's just the way the administration likes it: Major policy shifts involving the opening of formerly pristine areas to energy exploration or the weakening of pollution laws tend to be announced late on Friday afternoons or right before major holidays, when they attract as little coverage as possible.
Not since the days of James Watt, Ronald Reagan's famously combative Secretary of the Interior, have so many industry foxes been appointed as stewards of the federal henhouse. But Secretary Norton, who long ago served as lead attorney for Watt's Mountain States Legal Foundation in Denver before becoming Colorado's attorney general, has advantages that her mentor did not, including a much more compliant Congress. With lawmakers' help, she's managed to open up public lands to development interests on a scale that Watt could never have hoped for.
In the Norton era, the staunch political opposition to drilling for oil and gas in the Arctic National Wildlife Refuge, a freeze-out that lasted 25 years, melts away in a matter of weeks. That's great news, the secretary proclaims -- even though the decision will have no effect on today's soaring gas prices, since commercial production is still at least a decade away and there's no guarantee that the oil companies will sell their spoils in this country, anyway.
In the Norton era, decades of federal protection for wild mustangs get wiped out by an obscure provision in a 3,000-page spending bill that effectively turns thousands of the animals into horseburgers. Now wild horses and burros that are more than ten years old or have struck out on three adoption attempts can be sold "without limitation" to the highest bidder at auction; those bidders are generally dealers representing one of three foreign-owned slaughterhouses in the U.S. that prepare horsemeat for human consumption abroad. It's a win-win deal for everybody but the horses: Grazing interests get thinner herds of the pesky ponies to compete with, and Belgians get a slice of the American West on their breakfast table.
In the Norton era, buzzwords such as "consultation" and "cooperation" mask a top-down approach to partnering with industry, and even seemingly innocuous references to a "cleaner" and "healthier" environment conceal Orwellian doublespeak. Thus, the Healthy Forests Restoration Act gives a giant boost to commercial logging in national forests, all in the name of fighting wildfires. The Clear Skies Initiative vows to reduce smokestack emissions but actually allows twice as much crud in the air as Bill Clinton's plan.
Major policy moves that open up public lands to commercial use are supposed to be based in sound science, not politics. But in the Norton era, staff scientists find that their non-partisan research -- on, say, how many off-road vehicles it takes to squash the desert tortoise population, or the true extent of the Florida panther habitat -- is routinely ignored.
In fact, it is now possible to stroll into a National Park Service bookstore and purchase a work of Bible-based "natural history," explaining that the Grand Canyon is merely 6,000 years old. Religious symbols and Bible verses are receiving more prominent display in the parks, over the protests of local managers and apparently at the instigation of political appointees within the DOI.
The tilt toward industry and "faith-based parks" has been a difficult adjustment for many of the department's field personnel, particularly those engaged in resource protection and public land management. A recent report by the Office of the Inspector General, based on a survey sent to more than 25,000 DOI employees, concluded that there was a "culture of fear" within the department; more than one-quarter of respondents stated that they feared retaliation if they reported problems.
"The grade level of our intake is way up," says PEER's Ruch, referring to the type of whistleblowers within the DOI who contact his organization. "It's gone from range conservationists to field office managers and state directors."
The solicitor's office is one of the most politically charged components of the Department of the Interior, since it offers more political-appointee positions than any other -- including the solicitor, deputy solicitor and six associate solicitors. Under Myers, it became a hotbed of former lobbyists and litigators accustomed to challenging the government's regulatory "excesses" on behalf of grazing associations and mining and energy companies -- the same regulations that they were now sworn to uphold.
One of the stars of the new regime was Robert Comer, associate solicitor for the Division of Land and Water -- a post that oversaw legal matters dealing with the Bureau of Land Management and the Bureau of Reclamation, among other agencies. A Denver attorney who'd worked as a field ecologist, done a previous stint in the regional solicitor's office in Lakewood, represented mining giant Asarco as in-house counsel and served on the board of the Colorado Mining Association, Comer came to Washington with impeccable credentials as a warrior for the cause. There was talk around the office that he was "pretty tight" with then-Deputy Secretary Steven Griles (another former energy lobbyist, now back in the private sector); that he was "going places"; even a rumor that he could be the next director of the BLM.
But judging from the comments of staffers who worked with Comer in Washington and in the regional solicitor's office in Lakewood, he was also disliked in some quarters -- and feared. "He was thought of as someone who could send you to Nebraska," says one insider, who requested anonymity out of concerns about retaliation. "The agenda was clear -- to de-emphasize protection of public lands. People learned to back off rather than push the law."
"He would tell attorneys what conclusion he wanted them to reach, rather than asking their legal opinion," says another. "That's not the way it's supposed to work. His biases were very apparent. They weren't based in the law, and he didn't represent the positions of the agencies he was supposed to represent. Usually, if it was something that favored the feds, it was automatically bad."
Comer was known as a hard worker who often put in long hours. He was also frequently out of the office, observers say -- visiting his family, speaking at conferences or otherwise engaged. But then, Myers was often absent, too. In contrast to the DOI solicitor in the Clinton years, John Leshy, a high-profile scholar who'd literally written the book on public-land regulations (Coggin, Wilkinson and Leshy's Federal Public Land and Resources Law), Myers was an elusive boss.
"It wasn't like Bill was a strong figure, and Bob was carrying out his business," says one source. "There was no one leading the office, and Bob had free rein. He was acting on his own judgment a lot of the time, in my opinion."
Comer was a key player in one of the DOI's most startling policy turnabouts: the decision to settle a dispute with the State of Utah over whether the BLM could continue to make recommendations for wilderness designation of any of its lands. The deal threw out years of wilderness studies and opened up millions of acres of BLM land across the West to possible development -- including Colorado's wildlife-rich Roan Plateau, now targeted for hundreds of natural-gas wells ("Raiding the Roan," January 1, 2004).
The Utah deal outraged environmentalists, since it signaled the end of a process that dated back to the days of Jimmy Carter and had survived the administrations of both Reagan and George Bush the First. But among advocates of greater commercial use of BLM lands, it was hailed as an unequivocal triumph.
Given the Utah case and other momentous work that Comer was engaged in, some insiders thought it was curious that he'd be asked to resolve an ugly but very local dispute between a single rancher and a BLM office in Wyoming. But then, very little about the Robbins matter was typical. And the solution that Comer devised was odder still, even by the odd standards of the Norton era.
Frank Robbins talks like a man who's been running cows through Wyoming all his life. He has the lingo, the drawl -- and the wariness of outsiders that comes with riding the range and hassling with bureaucrats.
"The environmentalists created the whole problem," he says. "They see cows as one of the worst environmental hazards, and the rancher is the biggest criminal there is. That's the war we're in here."
Actually, Robbins is a relatively recent arrival to the Cowboy State. His family hails from Alabama, where the E.S. Robbins Company, a manufacturer of office products, is a major employer and Frank's father and uncle are known as prominent Republican donors. Robbins moved to Wyoming in 1994, when he bought the High Island Ranch and Cattle Co. near Thermopolis. Over the next six years he acquired two more ranches. Today his properties total around 55,000 acres, mingled with BLM lands totaling another 55,000 acres.
Robbins's operations included raising cattle, operating a dude ranch and taking guests on cattle drives -- all activities that depended on access to the federal lands interlaced with his own. But his relationship with the BLM field office in Worland soon became strained, then nuclear. The rancher locked horns with local regulators over a host of alleged infractions, including cows trespassing on neighbors' BLM allotments; bringing more cattle to his allotments than the permits allowed, or bringing them too early or too late; and refusing to follow drought restrictions or obtain proper permits for his cattle drives.
By some accounts, local BLM staff first made "informal attempts" to resolve the disputes with Robbins -- no formal trespass actions were issued for two years, despite continuing reports of violations -- but the rancher's refusal to cooperate led to a tougher stance and increasing trespass citations.
The Robbins version, contained in lawsuit pleadings in Cheyenne and Denver, is that things turned nasty after the rancher declined to grant the BLM an easement across his property to replace one approved by the previous owner that had lapsed. Such reciprocal arrangements are common between ranchers and the BLM; Robbins needed a similar easement from the BLM just to maintain a road that led to the High Island. But Robbins claims the BLM tried to "extort" an easement from him by throwing its weight around.
The situation came to a head in the summer of 1997, when two BLM employees encountered Robbins on their way to repair a fence on one of the rancher's allotments. Robbins tore up the easement document they showed him, which allowed them access to the area. In response, the U.S. Attorney's Office in Cheyenne charged him with a misdemeanor: interfering with a federal officer. Robbins was acquitted at trial, and he then filed suit against several employees of the BLM's Worland office, claiming violations of his constitutional rights and extortion under the Racketeering Influenced and Corrupt Organizations (RICO) Act. He's also filed administrative appeals on almost two dozen BLM actions against him.
Just how much of a problem Robbins's operations posed to public lands is a matter of debate. One 2002 BLM report stated a concern that unauthorized grazing by his livestock during a time of drought was causing "sustained, long-term ecological damage."
"It was clear that Robbins didn't know what he was doing," says Marvel of the Western Watersheds Project, who toured the area with Robbins and BLM officials in 2002. "Not that many ranchers do, but he was an especially bad one because of the damaged condition of the riparian areas and even the stripped nature of the uplands. He's the worst kind of hobby rancher -- irresponsible, arrogant and much too rich."
However, a University of Wyoming professor who studied Robbins's operation at his request came away with a less alarming impression. Michael Smith, who teaches in the renewable-resources department at Laramie, believes that many of the conflicts arose from trying to coordinate grazing permits associated with different ranches that had never been run as one entity before. "There is no fundamental resource condition problem on the ranch, just fundamental personal differences among various individuals," he says. "I think a reasonable grazing plan could be developed for that operation if the two parties were willing to start over."
Robbins himself bristles at the notion that he's some kind of hobby rancher. He estimates he's spent $800,000 on legal fees in the past eight years defending his livelihood against the BLM. "This is my life out here," he says. "They've destroyed my life. I haven't made money in this operation since 1997. Every dime this ranch makes goes to lawyers. How many years are you willing to work for nothing?"
The rancher says he took his complaints about the Worland BLM office "to the congressional people, to the governor, to anybody who would listen." After Bush's election, he finally found a receptive audience at DOI headquarters. On February 8, 2002, he was granted a meeting with senior BLM officials in Washington, during which he recited a long list of alleged misdeeds by the Worland office, including harassment, blackmail, perjury and bad faith.
"I looked at everybody in that room," Robbins recalls. "There were twelve or fifteen people in there, and six or eight on the speaker phone, a bunch of lawyers from the Department of Justice. I said, ŒIf you folks had perjury on me, y'all would put me in jail. I have proven to you today perjury by your own people, and you're not gonna do a thing to 'em.'"
Environmental groups have speculated that the "juice" for this unusual assembly came from the Robbins family's ties to powerful Alabama politicians, including Senator Richard Shelby. But Robbins says the meeting was arranged by Conrad Lass, the BLM's chief of staff. "Con Lass was a Wyoming boy," Robbins says, "and we put the pressure on him to get us a meeting up there."
The IG's report supports Robbins's account. Lass told investigators that the meeting was attended by a friend of Robbins's father whom Lass knew from his days as a lobbyist in Alabama; the friend now runs a political consulting business in Washington. Lass added that he "decided to distance myself from any significant involvement" in the dispute, since he was a native of Worland and his family was active in politics there. But the BLM's chief of staff continued to be party to some discussions about the Robbins matter several months after the February meeting.
The BLM's initial response to Robbins's complaints was to conduct an internal review, which concluded that the Worland office had not exceeded its authority in its dealings with him. The review even recommended the possibility of taking criminal action against the rancher "based on documented violations." But in a meeting with BLM director Kathleen Clarke and Robert Comer, one member of the review team said that he didn't think the Worland office was "acting as objectively or neutrally as they should be" in dealing with Robbins. (Robbins regards the admission as tantamount to a confession of mistreatment.) According to the team member, Clarke then turned to Comer and asked him to work out a settlement that would resolve the dispute.
The IG's report heaps much of the blame for what happened next on Comer. The deal that took shape, through months of negotiations between Comer and Robbins's attorney, suspended enforcement actions against the rancher for his numerous alleged grazing violations; set up an "informal dispute resolution" process that removed enforcement authority from the local office, so that only BLM director Clarke or her designee could authorize new actions against Robbins; required the BLM to grant to Robbins a right-of-way on the contested road without requiring a reciprocal easement; and even raised the possibility of a land swap with the feds that would add to Robbins's holdings in the area.
The report suggests that various officials who should have had more input on the settlement either didn't learn of its terms until after the fact, or raised objections that were largely disregarded by Comer. For example, Tom Roberts, then an assistant U.S. attorney in Cheyenne, protested that the agreement treated Robbins differently from every other BLM permit-holder in the state, making it harder to cite Robbins for future violations and giving him an unusual degree of control over the government's right to access public lands. Roberts says he received a short, "antagonistic, unpleasant, in-my-face" phone call from Comer, letting him know that his objections weren't well received.
But the biggest sticking point was the RICO suit that Robbins had filed, suing eight BLM employees individually for their actions. Roberts insisted that the suit, which sought potential damages as high as $12 million, should be dismissed with prejudice as part of any deal with the rancher. The IG report claims that Comer not only failed to get the RICO suit withdrawn but failed to inform his superiors of Roberts' objections; yet drafts of the agreement show that Comer did propose various ways of addressing the RICO problem, short of the dismissal Roberts wanted -- and that several BLM officials were briefed on those efforts.
In the end, the U.S. Attorney's Office did not sign off on the deal, which was finalized in early 2003 and approved by BLM deputy director Fran Cherry. News of the settlement leaked out the following summer, prompting a request for an investigation by PEER and a lawsuit from the Western Watersheds Project, arguing that the agreement was illegal. Both organizations blasted the DOI for its "sweetheart deal" with Robbins.
"These things don't happen out of the blue," says the WWP's Marvel. "They happen because, it's clear, people in Washington pushed aside the local administrators to get Frank Robbins off the hook."
Robbins's contention that the BLM's own misconduct had prompted the conciliatory agreement doesn't pass the laugh test, adds Jeff Ruch. "The range staff in Wyoming BLM is the furthest thing you can get from anti-cattle," he says. "People in other BLM offices are threatened with transfers to Wyoming to get an attitude adjustment. For this staff to bust their pick in a case, this must be a completely extreme situation."
Robbins denies that he received preferential treatment. "That's just hogwash," he says. "They've been beating me over the head with a stick and kicking me in the ass for years. How I get preferential treatment after eight years of hell, I don't know. It's ridiculous."
Robbins's Cheyenne attorney, Karen Budd-Falen, was so incensed by the IG report's "politically motivated" account of events that she issued her own ten-page rebuttal. "I have done lots of settlements with the BLM with these kind of provisions," says Budd-Falen, who, like Secretary Norton, once worked for the Mountain States Legal Foundation. "What the government got out of it was not having to spend zillions of dollars and huge amounts of time to litigate a whole bunch of cases."
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.
Asked by Wisconsin senator Russ Feingold if he thought Comer had misled him, Myers responded, "I believe there was additional information about the course of the negotiations that should have been brought to my attention by Mr. Comer."
The performance neatly omitted any mention of the information that Comer did bring to his attention. Documents not released with the public version of the IG's report include an acknowledgment by Myers that he "was periodically briefed by Comer on the progress" of the settlement. According to Budd-Falen, Myers was notified when the RICO case was dropped out of the agreement. He also was the one of the recipients of a "briefing paper" Comer wrote, explaining his actions after the DOI started to get heat over the settlement in the summer of 2003. Shown a copy of that document by the IG investigator, Myers said he couldn't recall having ever received it.
Myers's claims of being several steps removed from the Robbins mess haven't persuaded the environmental groups keen on blocking his appointment to the bench. "What we know from his testimony is that he hired Comer, that he specifically authorized Comer to negotiate this deal, and that this is the only settlement of its kind that he ever authorized an associate solicitor to negotiate," says Doug Kendall of the Washington-based Community Rights Counsel. "Why get a senior political appointee involved in a settlement between a single rancher and a local BLM office?"
Myers's defenders argue, not implausibly, that he was far too distracted by a massive lawsuit against the DOI over its handling of Indian trust accounts to be concerned about Robbins. One could also make a case that Comer, caught between an intransigent rancher and zealous field officers, tried to cut a pragmatic (if lopsided) deal that would get Robbins -- whose lawsuits required an ongoing response that amounted to full-time work by two staffers in the regional office -- off the department's back. But that isn't the way the Inspector General saw it.
"The conduct in this report cries out for administrative action," states the IG's findings, yet no such action has been forthcoming. The only administrative move Comer has endured is his transformation from political appointee in Washington to regional solicitor in Colorado -- a process known in federal circles as "burrowing in," since a civil-service post offers greater job security than a tenuous appointee position.
"We were all amazed that he was able to burrow in," says one of Comer's former colleagues. "What he did would never fly in private practice. If you represent the wife in a divorce and you do everything in the case to favor the husband, she could bring a malpractice case against you."
Seven years after it began, Frank Robbins's lawsuit against the BLM employees who tasked him is still limping through the courts, a source of great frustration to both sides. Some of the employees are approaching retirement, and at least one has died since it all started.
"It's incredible that people trying to do their job have been treated this way," says Jon Marvel. "Letting that RICO suit continue is a black, black mark on the government."
But an attorney for the Department of the Interior has many different kinds of clients. The agencies. Senior officials. Their employees. The land, wildlife, minerals and other resources. And, of course, the public.
It just happens that, in the Norton era, some of the clients are a lot more important than others.