text:
A report by People for the American Way Foundation
Table of Contents
- Executive Summary
- Introduction
- I. Myers' Disregard and Disrespect for Native Americans' Concerns
- II. Myers' Hostility Toward Federal Environmental Protection Efforts and His Continued Promotion of Industry Interests
- III. Myers' Troubling Legal Philosophy
- Conclusion
- Endnotes
- Organizations Opposed to the Confirmation of William Myers
Executive Summary
President Bush's nomination of William G. Myers III to a seat on the federal judiciary is emblematic of his commitment to corporate interests. This time his loyalty is at the expense of our nation's natural treasures and the rights of Native Americans.
The President has nominated Myers to the Ninth Circuit Court of Appeals. Myers, a former lobbyist for the mining, grazing and cattle industries who recently served as Solicitor and chief attorney for the Interior Department under the Bush Administration has spent his career promoting corporate interests over the common good. A hearing on Myers' nomination is scheduled for February 4, 2004 before the Senate Judiciary Committee.
The Ninth Circuit includes Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington, states that contain many of America's natural treasures, making the issue of environmental protection particularly significant in considering nominations to that court.
Over the years, Myers has taken deliberate and specific actions to undermine federal environmental protection, conservation, and the protection of Native American lands.
- Myers has compared the federal management of public lands to King George's tyrannical reign over the colonies, asserting that public land safeguards are promoting "a modern-day revolution" in the West
- Myers has demonstrated a dangerous legal philosophy that would sharply narrow the power of Congress to protect the rights of Americans and elevate private property rights. For example, Myers has said that there is "no constitutional basis" for federal authority to protect wetlands under the Clean Water Act.
- In perhaps the most egregious example, Myers painfully twisted the meaning of a landmark piece of land management legislation to try to pave the way for a 1,600 acre open-pit gold mine that would undermine the Quechan Tribe's ability to practice their sacred traditions as a living part of their community life and development and leave a 30-storey waste-rock piles in its wake. Recently, a D.C. federal district court repudiated key elements of Myers' opinion, and the National Congress of American Indians said his actions in the Glamis matter "reveals an activist point of view that disrespects tribal values that should not be reflected on the federal bench.
William Myers treated his time at the Interior Department as another influence-peddling assignment for his industry clients. In two short years with the government, he overturned decisions and erased regulations, effectively giving the mining and grazing industries free rein over our precious natural resources. Myers' unwillingness to put private corporate interests aside when he assumed the very different role as Interior solicitor, coupled with his embrace of a dangerous neo-federalist legal philosophy, should lead to the rejection of his nomination.
President Bush's nomination of former Interior Department Solicitor William G. Myers to the United States Court of Appeals for the Ninth Circuit has generated substantial concern from many Americans dedicated to protecting the environment, civil rights, and a truly independent judiciary. The Ninth Circuit includes Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington, states that contain many of America's natural treasures, making the issue of environmental protection particularly significant in considering nominations to that court. But Myers has spent most of his career challenging or undermining, rather than defending, laws and rules that seek to protect our environment, even at the Department of the Interior. He has shown an alarming insensitivity to the heritage and traditions of Native Americans and demonstrated a strong hostility toward federal environmental protection, including the power of Congress to enact laws to protect the environment, leading to a recent rebuke by a federal judge. Indeed, his views on limiting Congress' authority and elevating private property rights, as well as his favorable comments about rejected Supreme Court nominee Robert Bork, raise serious concerns about his legal philosophy.
Myers has dedicated much of his career to advocating on behalf of grazing, mining, and other interests seeking to use federal lands for their own benefit, sometimes at the expense of the environment. From 1993 – 1997, he was employed as Director, and later Executive Director, of the National Cattlemen's Beef Association and the Public Lands Council.1 From 1997 – 2001, he was of counsel to the firm of Holland & Hart, spending most of his time representing the interests of public lands industries and serving as corporate counsel for Cattlemen Advocating Through Litigation (CATL), the litigation branch of the Public Lands Council. During this time, Myers was also a registered lobbyist for a number of resource extracting interests, including Arch Coal and Peabody Coal. 2 He served as Solicitor for the Department of the Interior from 2001 – 2003, when he resigned to return to Holland & Hart. It may be that Myers' focus on lobbying, rather than significant litigation or other actual practice of law, is among the reasons why the American Bar Association's Standing Committee on the Federal Judiciary gave Myers its lowest passing grade – Qualified, with a minority voting Not Qualified. 3
Unfortunately, the evidence strongly suggests that Myers did not leave his pro-industry, anti-environmental advocacy behind when he left private practice for public service. As Solicitor for the Department of the Interior, Myers continued to aggressively advocate on behalf of miners, cattlemen, ranchers and others who wish to exploit public lands for their own benefit. In evaluating his career at Interior, an Idaho Statesman editorial found that "Myers sounds less like an attorney, and more like an apologist for his old friends in the cattle industry." 4 This conclusion is central to the most troubling aspects of Myers' record, both inside and outside of government: his disregard and disrespect for Native American concerns; his continued promotion of industry interests at Interior and his hostility toward federal government protection of the environment; and his disturbing legal philosophy. Just as his record shows that Myers brought his anti-environmental views with him when he assumed the very different role of a federal official, so is there every reason for concern that he will bring his troubling views and legal philosophy with him if he becomes a powerful federal appellate judge. For these reasons, as discussed in detail below, Myers' confirmation to a lifetime position on the important Court of Appeals for the Ninth Circuit should be rejected.
I. Myers' Disregard and Disrespect for Native Americans' Concerns
One of the many important responsibilities of the Department of the Interior is to provide for the protection of Native American lands. Unfortunately, in his pro-industry zeal, Myers has frequently shown disrespect for Native American tribes. His actions led the National Congress of American Indians, the nation's oldest and largest organization of Native American and Alaskan tribal governments, to take the unprecedented step of adopting a formal resolution in opposition to Myers' nomination to the Ninth Circuit. The organization's November 2003 resolution cited Myers' "deep lack of respect and understanding of the unique political relationship between the federal government and tribal governments" as well as his "demonstrated [] inability to set aside personal bias to act in a neutral and objective manner . . ." 5 The resolution also notes that the Ninth Circuit is home to "well over one hundred Indian tribes, millions of Indian people, millions of acres of public land and important federal and tribal lands management issues," making Myers' appointment to this court particularly disturbing. 6 Two significant matters at Interior demonstrate the reasons for the National Congress' resolution: the Glamis Mine matter and the Oil-Dri case.
A. The Glamis Mine and the 2001 Regulations
One of the main reasons discussed by the Council for opposing Myers was his involvement in and handling of the Glamis Imperial Gold Mine matter. The proposed Glamis Imperial Mine Project would be a 1,600-acre open-pit gold mine located in the environmentally sensitive and culturally significant California Desert Conservation Area (CDCA) and infringing on parts of the Quechan Indian Nation's sacred ancestral lands. Opponents contended that the project would irreparably damage part of the Quechan Tribe's religiously significant Trail of Dreams and cause massive disruption to the area, leaving "an open pit deep enough to swallow Devils Tower National Monument" and "waste rock piles as tall as 30-story buildings." 7 Yet, for all the destruction it would require, Glamis' own estimates reportedly reveal that the mine would produce only one ounce of gold for every 280 tons of rock disturbed. 8 The Advisory Council on Historic Preservation, an independent federal agency that advises the President and Congress on historic preservation matters, concluded that the project would be so damaging that "the Quechan Tribe's ability to practice their sacred traditions as a living part of their community life and development would be lost." 9 California Senators Barbara Boxer and Dianne Feinstein have openly opposed the project. 10
The Glamis Mine and the 2001 Regulations
One of the main reasons discussed by the Council for opposing Myers was his involvement in and handling of the Glamis Imperial Gold Mine matter. The proposed Glamis Imperial Mine Project would be a 1,600-acre open-pit gold mine located in the environmentally sensitive and culturally significant California Desert Conservation Area (CDCA) and infringing on parts of the Quechan Indian Nation's sacred ancestral lands. Opponents contended that the project would irreparably damage part of the Quechan Tribe's religiously significant Trail of Dreams and cause massive disruption to the area, leaving "an open pit deep enough to swallow Devils Tower National Monument" and "waste rock piles as tall as 30-story buildings." 7 Yet, for all the destruction it would require, Glamis' own estimates reportedly reveal that the mine would produce only one ounce of gold for every 280 tons of rock disturbed. 8 The Advisory Council on Historic Preservation, an independent federal agency that advises the President and Congress on historic preservation matters, concluded that the project would be so damaging that "the Quechan Tribe's ability to practice their sacred traditions as a living part of their community life and development would be lost." 9 California Senators Barbara Boxer and Dianne Feinstein have openly opposed the project. 10
The Leshy Opinion and the 2000 Regulations
Like any mine to be established on public lands, the proposed Glamis mine is subject to approval under the terms set forth in the Federal Land Policy and Management Act (FLPMA). The FLPMA requires, as a general rule for all public lands, that "the Secretary [of the Interior] shall, by regulation or otherwise, take any action necessary to prevent unnecessary or undue degradation of the lands." 11 Because the Glamis mine would be located in the CDCA, Congress has mandated that its approval be subject to an even higher standard of protection. In considering projects in this particularly sensitive area, the Secretary must also take reasonable measures to "protect the scenic, scientific, and environmental values of the public lands of the California Desert Conservation Area against undue impairment . . ." 12
During the Clinton Administration, Interior Secretary Bruce Babbitt refused Glamis a permit for the mine, invoking his authority under the FLPMA and its subsection dealing with the CDCA. Babbitt made this decision relying in part on then-Solicitor John Leshy's reading and interpretation of the FLPMA's requirements. Leshy's opinion interpreted the FLPMA language mandating that the Secretary "shall . . . prevent unnecessary or undue degradation" of public lands (emphasis added). Leshy found that, while Congress did not define "unnecessary or undue degradation," its clear intent was to require the Secretary to refuse not only development that involved "unnecessary" degradation not required for mining, but also "undue" degradation that would cause "substantial irreparable harm" to the public lands. This interpretation, strengthened by the heightened requirements for projects on CDCA lands, gave Babbit clear authority to deny the Glamis permit, which, while it proposed no "unnecessary" activities beyond those required for mining, would be so devastating as to clearly cause "undue" damage and "substantial irreparable harm" to the Quechan land.
Leshy's interpretation of Congress' intent was later codified in regulations adopted in 2000 by the Department of the Interior, which included in the definition of "unnecessary or undue degradation" activity that would result in "substantial irreparable harm" to the "significant" scientific, cultural, or environmental value of the public lands. This came to be known as the SIH standard. 13
The Myers Opinion
The 2000 Regulations were short-lived, however. In October 2001, the Bush Administration's new Interior Solicitor, William Myers, issued an opinion re-visiting the issues considered by the Leshy opinion. 14 In one of only three formal opinions he issued as Solicitor, Myers drew dramatically different conclusions from those drawn by Leshy. As recently explained by a federal district court, Myers' opinion eviscerates not only the Leshy opinion, but also the clear intent of Congress in adopting the FLPMA.
Initially, Myers examined the general requirement prohibiting any mining on public lands that will cause "unnecessary or undue degradation." Myers made the improbable determination that, in this instance, "or" was actually intended to mean "and." Therefore, Myers opined, mining projects would have to cause degradation that was both "unnecessary" and "undue" before the Department could refuse a permit for the project. From this, Myers concluded that the Secretary is not free to reject a permit so long as the proposed environmental damage is "necessary" to the mining operation. 15 In this way, Myers effectively read out of the regulations any duty to protect federal lands from the environmental devastation of mining operations. His determination held that the Secretary was utterly powerless to prevent any degree of environmental harm, however severe, if the actions of the perpetrator were "necessary" for mining.
In addition to redefining "or" to mean "and," Myers rejected the 2000 regulations' definition of "unnecessary or unreasonable degradation." He found "substantial irreparable harm" to be an overly vague definition, lending itself to arbitrary permit issuing practices. 16 Accordingly, Myers found that "relevant legal authorities require removal of the 'substantial irreparable harm' criterion from both the definition of 'unnecessary or undue degradation . . . and the list of reasons why BLM may disapprove a plan of operations in . . . the 2000 regulations." 17
Myers' opinion went even further, however, turning its attention to the subsection of the FLPMA that gives special protection to the CDCA. In the FLPMA, Congress ordered the Secretary to act to prevent "undue impairment" of the CDCA's "scenic, scientific, and environmental values," though Congress did not specifically define what constituted "undue impairment." Myers concluded that, because Congress did not define "undue impairment," the BLM was not authorized to do so without promulgating a definition, rendering the heightened protections Congress mandated for the CDCA meaningless and unenforceable. 18
Secretary Norton adopted the Myers opinion, overturning the Leshy opinion, and rescinded the Department's previous rejection of the Glamis permit, re-opening the application for consideration. Incredibly, neither Myers nor Norton engaged the Quechan Tribe in government-to-government consultation before implementing this decision with such a devastating impact on the tribe's way of life. 19 In sharp contrast, Glamis executives were granted high-level meetings within the Interior Department prior to the policy change. 20 Senator Barbara Boxer strongly criticized the reversal, stating that "[a]lthough the initial permit denial took 6 years and hundreds of hours of consultation, the decision to reopen the permit involved no public input and only took a few months." 21 Tribal leaders branded the determination as "an affront to all American Indians." 22
The Myers opinion was a major victory for resource-extracting companies, which now apparently had free rein to mine wherever and however they wanted on public lands so long as the activities the company undertook were not "unnecessary" for the purpose of mining. The opinion was a major blow to Native American tribes, scientific researchers, conservationists, and anyone valuing the protection of the environment, as these groups apparently now had no protection from any company wishing to mine federal lands using any arguably acceptable method. Myers' opinion was codified in the regulations adopted by the Department of the Interior in 2001. Following Myers' direction, the regulations removed "substantial irreparable harm" from the definition of "unnecessary or undue degradation" as well as from the list of reasons why the Secretary could deny a mining permit.
Mineral Policy Center v. Norton and the Myers opinion
Recently, a D.C. federal district court repudiated key elements of the Myers opinion. Myers' interpretation of the FLPMA regulations was at issue in the case of Mineral Policy Center v. Norton, 23 in which a group of non-profit environmental organizations challenged the legality of the 2001 Regulations. The plaintiffs charged several illegal shortcomings in the 2001 regulations, chief among them being Myers' interpretation of "unnecessary or undue degradation." 24
In Judge Henry Kennedy's November 18, 2003 decision, he found that, under the FLPMA, the government was responsible for preventing "unnecessary" as well as "undue" degradation to the public lands. In a harshly worded rebuke of the Myers opinion, Kennedy declared that Myers "misconstrued the clear mandate of the FLPMA" which "by its plain terms, vests the Secretary of the Interior with the authority – and indeed the obligation – to disapprove of an otherwise permissible mining operation because the operation, though necessary for mining, would unduly harm or degrade the public land." 25 Kennedy noted that the proper interpretation of the FLPMA was made obvious by "well-established canons of statutory construction," including the principle that Congressional language should be given its ordinary meaning and every word should be given effect whenever possible. 26 Kennedy concluded that "in enacting FLPMA, Congress' intent was clear: Interior is to prevent, not only unnecessary degradation, but also degradation that, while necessary to mining, is undue or excessive." 27
Kennedy went on to uphold the Regulations' removal of the "substantial irreparable harm" definition of "unnecessary or undue degradation," finding that, since Congress did not define the term, Interior was free to define it in any reasonable way it wished. 28 Kennedy did note, however, that removal of the definition was only acceptable because he found that the "decision to . . . abolish the SIH standard, while influenced by the Solicitor's (erroneous) opinion concerning the illegality of the SIH standard, was not based primarily upon it." (parenthetical in original) Kennedy also noted that Myers' opinion did "tend to undermine" claims that the "substantial irreparable harm" standard had been properly removed from the Regulations and made the question "extremely close." 29 This severe judicial criticism of Myers' opinion reinforces the serious concerns about Myers' 2001 opinion and the Glamis Mine Project. As the National Congress of American Indians concluded, "Solicitor Myers' actions and legal advice in the Glamis matter . . . reveals an activist point of view that disrespects tribal values that should not be reflected on the federal bench." 30
B. The Oil-Dri Case
The Oil-Dri case, also known as the "kitty litter case," is another example of both Myers' disregard for Native American lands and culture and his extraordinary sympathy for corporate interests. In that case, Oil-Dri, the world's largest manufacturer of cat litter, sought a permit to mine open clay pits on 340 acres of federal land neighboring the Reno-Sparks Indian Colony, approximately ten miles from downtown Reno, Nevada. 31 The clay would then be processed at a plant to be constructed for that purpose on adjacent private land. Local residents were concerned the operation would bring noise, air and ground water pollution, as well as increase truck traffic near a school. The Reno-Sparks Indian Colony was also concerned about possible damage to its ancestral burial grounds. 32
Though Oil-Dri's plan involved operations on both federal and private land, the company sought a single permit from the Washoe County Commission. The Commission voted to deny the permit because of environmental and land-use concerns. The Commission claimed authority to do this because Oil-Dri sought only one application for operations on both federal and private lands, and the Commission has the authority to deny applications for uses of private land. 33 Oil-Dri refused to submit separate permit applications or re-draw its plans to avoid construction on the private lands subject to the Commission's approval, maintaining that the Commission had no right to deny their permit application since it also involved mining on federal land. 34
In 2002, Oil-Dri filed suit against Washoe County in the U.S. District Court in Reno, seeking damages stemming from rejection of the permit. Soon thereafter, Oil-Dri lobbied the government to intervene on its behalf. Documents obtained by the Reno Gazette-Journal pursuant to a Freedom of Information Act request show "a series of written and verbal communication" between Oil-Dri officials and Secretary Norton and other Interior and BLM officials urging the Department to "take whatever steps are necessary" to support Oil-Dri's interpretation of the mining law. 35 Commenting on Oil-Dri's requests for intervention, local activist Tom Myers of Great Basin Mine Watch said, "[t]o me, it shows just how close the industry is with the Norton Department of Interior . . . It shows they are snuggling with the industry." 36 In early November of the same year, the National Congress of American Indians adopted a resolution asking Secretary Norton not to intervene in the case. The resolution cited the threat the mine poses to the colony's health and traditions and the fact that the "Secretary of the Interior has a legal trust obligation to protect the lands of Indian Tribes." 37
On November 18, Solicitor Myers sent Reno-Sparks Indian Colony Chairman Arlan Melendez a letter explaining that the government had a "vital interest" in ensuring that local governments did not usurp federal authority over federal land, apparently failing to consider the significant private land impacted by the project. 38 Just nine days after the Myers letter to Melendez, the Department of Justice filed an amicus brief on behalf of the mining interests at the request of the BLM. The Government's brief asserted that when a proposed mining project impacts both federal and private land, the local government has no authority to restrict mining activities on federal land. The brief accused the County Commission of "in fact, issu[ing] a de facto ban on mining on the federal land." Bob Vetere, vice president and general counsel for Oil-Dri praised the government brief, saying, "[i]t's one I could have written myself." 39 Great Basin Watch's Tom Myers noted the irony of the governments' filing: "The feds are preaching local control, but I think they mean local control only when its pro-industry." 40
In March of 2003, U.S. District Judge Edward Reed dismissed Oil-Dri's case against Washoe County, finding that Oil-Dri's claims of federal preemption were not central to its case for damages, thus making the matter more suitable for the state courts. Melendez reported that he was "very pleased" with the decision. "We've always maintained that local governments have some say in the developments that are around them." 41 Myers' advocacy in favor of Oil-Dri's position remains deeply troubling.
II. Myers' Hostility Toward Federal Environmental Protection Efforts and His Continued Promotion of Industry Interests
When he became Interior Department Solicitor, Myers' loyalty should no longer have been to the corporate and anti-environmental interests he sought to promote as a lobbyist and advocate in the private sector. Instead, his very different role as Interior Solicitor was to represent the interests of the United States and help preserve and protect its great natural resources. 42 But the record demonstrates that Myers did not leave his troubling anti-environmental views and advocacy behind when he became a federal official. This is reflected both in his general speeches and writings at Interior and in the private sector, as well as in a number of specific actions he was involved in and had responsibility for at Interior.
A. Myers' Hostility Toward Federal Environmental Protection and Conservation Policy
Before coming to Interior, Myers strongly criticized federal conservation and environmental protection efforts, questioning even whether the federal government is an appropriate body to enact environmental policy and regulation. In an article he authored, Myers mocked "the fallacious belief that centralized government can promote environmentalism." 43 He has compared the federal management of public lands to King George's tyrannical reign over the thirteen colonies, asserting that public land safeguards are promoting "a modern-day revolution" in the West. 44 Myers has denounced the California Desert Protection Act, a law supported by Senators Feinstein and Boxer45 as an "example of legislative hubris." 46
When he joined the Department of Interior, however, Myers continued to disparage federal environmental protection efforts. In a speech to the Cattlemen's Association given during his tenure as Interior Solicitor he told the audience, "[t]he biggest disaster now facing ranchers is not nature . . . but a flood of regulations designed to turn the West into little more than a theme park." 47 At another Cattlemen's Association meeting, he "promised to ease Clinton-era restrictions on livestock grazing, repeated a Bush administration pledge to look at rolling back environmental reviews" and insisted "we should not be using the Endangered Species Act . . . as a land management tool. It is not there as a tool for zoning federal lands." 48 An Idaho Statesman editorial described Myers' comments on the Endangered Species Act as "naïve, and downright misleading," pointing out the National Parks Service, BLM, and U.S. Fish and Wildlife Service are all required to ensure the lands under their control provide adequate habitat for endangered species. "That is clearly a land management role." 49 Myers' comments to the Cattlemen's Association echoed arguments he made in the private sector in his amicus brief in the SWANCC case (discussed further below), where he decried "multiple layers of restrictive regulations" which have "impaired [farmers'] ability to farm and ranch efficiently," 50 and described environmental regulations as placing a "stranglehold" on farmers. 51 In short, in the words of leading environmental action group Earthjustice, "Myers's official actions and his statements attacking environmental protections indicate that he is an ideologue who would use his position on the court to promote his personal anti-environmental agenda." 52
B. Specific Examples of Myers' Continued Promotion of Industry Interests at Interior
Myers' failure to leave his pro-industry, anti-environmental advocacy behind when he became Interior Solicitor is reflected in much more than his speeches. In addition to the Glamis Mine and Oil Dri cases discussed above, Myers' relatively short two-year tenure at Interior saw several other troubling episodes in which he was involved or had responsibility that demonstrated continued promotion of industry interests. Two of these resulted in government ethics investigations, one of which is still continuing. Even assuming that Myers did not actually violate formal ethical rules in these cases, they clearly document a failure to carry out his responsibilities as a federal official and continued advocacy of industry interests that should not be rewarded by approval of his nomination to be a powerful federal appellate judge.
Myers' Opinion on Retiring Grazing Permits
One example of Myers' hostility toward federal efforts to enhance conservation and continued promotion of industry interests at Interior is the opinion he wrote as Solicitor finding it illegal to permanently retire grazing permits. According to the Grand Canyon Trust, a non-profit organization dedicated to preservation of the area, overgrazing of land may "pollute scarce desert water sources, spread exotic plant species and disease organisms, expose soils to erosion, compete with wildlife for food, and damage archaeological and paleontological sites." 53 In recent years, conservationists had begun using the market system to reduce grazing on public lands. Conservationists would purchase grazing permits and then not use them, or would negotiate with ranchers to relinquish their permits to BLM on the condition that BLM retire the grazing permit Permits can only be retired if BLM, after a public assessment process, decides to accept retirement of the allotment. Many conservationists had praised the technique as a means of using the market system to protect the environment, and many ranchers were eager participants as the prices they were paid for their allotments were adequate to help them pay down substantial debt on their farms.54
Remarkably, Myers acted as Solicitor to thwart conservation efforts in this area, in accord with the views of the grazing industry, even in the absence of legislative action. He wrote a formal opinion making it much more difficult for environmental groups to employ the free market in promoting their cause. In 2002, Myers issued an opinion providing that the BLM cannot retire a permit even if it meets BLM's statutory requirements for retirement unless the agency determines that the land of concern is not "chiefly valuable for grazing." Even then, he wrote, retirements can be reconsidered by BLM at any time and no retirement can be regarded as permanent. Any surrendered permit on land BLM deems "chiefly valuable for grazing" would remain "subject to applications from other permittees" regardless of the intent of the party initially relinquishing the permit for retirement. 55 Several months later, Myers issued a "clarification" of the opinion, providing that there is a "presumption that grazing in a grazing district should continue" even in the absence of a "chiefly valuable for grazing" determination. 56 Myers told the 2002 Convention of the Nevada Cattlemen'sAssociation, "the BLM . . . has no authority to set any allotment aside . . . Before that could be done, we'd have to have such a program written into the regulations, or get congressional authority for it." 57 Grand Canyon Trust ceased its permit buy-out activity after Myers' opinion, citing significant uncertainty as to the fate of the lands that it was trying to protect. 58 At this time, environmental groups are seeking legislation that would effectively reverse the Myers opinion and set up a congressionally mandated system for retiring grazing permits.59 "Meanwhile," the Grand Canyon Trust laments, "ranchers continue to ask whether we will buy their permits so they can get out of debt and save their private lands. Until the administration establishes a regular procedure for considering and implementing grazing closures, the answer is, 'No.'" 60 Myers' opinion is largely responsible for that result.
The Robbins Grazing Settlement
The Interior Department Inspector General is currently investigating an alleged ethical violation concerning a settlement reached between the Department of Interior's Bureau of Land Management and rancher Frank Robbins. Mr. Robbins is a Wyoming rancher with a long history of grazing violations, "includ[ing] dozens of trespassing notices, cancellation of permits, charges of unauthorized use of public land, attempts to block BLM workers from monitoring the land, alleged violations of cease-and-desist orders and defiance of emergency closures to protect the environment during drought." 61 Robbins has also had a number of run-ins with BLM officials. In 1997, Robbins stood trial for assaulting BLM employees, though he was acquitted on the charges. 62 Robbins also filed a RICO complaint against individual employees of BLM, claiming they conspired against him after he refused to give BLM an easement over his land. 63
Due to Robbins' numerous grazing violations, BLM officials cancelled two of his grazing permits. 64 In an internal memo, Darrell Barnes, manager of the Worland, Wyoming BLM office, stated that "Mr. Robbins has shown a complete disregard for the terms and conditions of the permits and of the authority of the BLM to manage public lands . . . His conduct was so lacking in reasonableness or responsibility that it became reckless or negligent and placed significant undue stress/damage on the public lands resources." Robbins appealed the decision, and the cancellations were stayed pending judicial review. 65
In 2002, Robbins went to Washington to meet with top Interior officials to discuss his concerns. The discussions soon became settlement negotiations, and though BLM staff continued to document Robbins' multiple violations, they were instructed not to pursue the violations while negotiations were taking place. 66
The resulting settlement, in the words of the Billings Gazette, "is highly unusual within BLM and appears to depart from long-running requirements spelled out in federal law about who can receive grazing permits." 67 Rather than punish Robbins for his repeated violations, the settlement awarded him absolution for past wrongs as well as a remarkable degree of new autonomy. Under the terms of the settlement: ten trespassing violations and six other cases against Robbins were conditionally stayed and BLM agreed not to use them as evidence in any future trespass proceedings against Robbins; Robbins was given "additional management flexibility" regarding lands in which the government holds less than 50% ownership; he was conditionally awarded a new grazing permit; Robbins was granted a non-reciprocal right of way, which allows him to cross public lands without allowing government officials similar authority to enter his land; and Robbins was awarded a special billing rate on his grazing fees. The settlement also gives Robbins a special status by which only the Director of BLM can cite Robbins for grazing violations, stripping local officials of their authority over him. In exchange, Robbins agreed to put on hold his claims that BLM violated the Freedom of Information Act. Oddly, Robbins did not have to agree to drop his RICO suit against BLM employees. 68
The extraordinarily one-sided agreement was contentious even within Interior. One internal memo is described as "spend[ing] eight pages documenting several points on which the agreement seems to violate federal law, significantly altering the Taylor Grazing Act, the Federal Land Policy and Management Act, the Federal Advisory Committee Act and the Code of Federal Regulations." 69 The memo reportedly notes that "[o]ne of the mandatory requirements is that all applicants and any affiliate of the applicants have a satisfactory performance record. The foregoing is not discretionary." 70
Concerned about the settlement, Public Employees for Environmental Responsibility (PEER) launched its own investigation. After a lengthy analysis, PEER determined that the settlement contains seven distinct violations of the law, including: a) it is illegal to grant a private party an easement over federal land without obtaining a reciprocal easement when obtaining such a reciprocal easement is in the public interest, b) "conditional" grazing permits are not recognized in the C.F.R., and grazing permits can only be awarded after a consideration of the applicant's prior record, c) no law or precedent allows a private party to exercise "additional management flexibility" over lands with less than 50% federal ownership, and d) the procedure by which Robbins could only be sanctioned by Washington officials violates the procedures set forth in the C.F.R. for public lands management. 71
The settlement's implications with respect to Myers are troubling. Myers' office reportedly wrote and helped negotiate the settlement agreement. 72 In fact, Myers' calendar and a recent IG report show that he personally attended meetings concerning the settlement. 73 The Interior Inspector General is investigating the settlement, including Myers' role in developing and approving it. It is not certain when the investigation will be completed or when its results will be released. Regardless of the extent of his personal involvement, however, Myers' office's responsibility for this "sweetheart deal" provides yet another example of effective promotion of the needs of industry over protection of federal lands and even over the law during his tenure.
Other Promotion of Grazing Interests by Myers
The Inspector General recently concluded an investigation, at the Office of Government Ethics' request, into allegations that Myers had inappropriately failed to recuse himself from a variety of matters during his first year at Interior. Though the OGE determined that Myers had avoided formal ethics violations, the findings of the investigation raise a number of troubling concerns about his nomination. 74
Before being confirmed as Solicitor, Myers entered into a recusal agreement that was intended to prevent "any actual or apparent conflict of interest" 75 in the new post. In addition to pledging to avoid appearances of impropriety or using the office for his own financial gain, Myers agreed that he would not participate in matters involving Holland & Hart or its clients for a period of one year. This agreement took effect the day he resigned from Holland & Hart and terminated one year later. Myers also agreed that he would not tend to matters involving his own former clients until one year had passed since he last acted as the client's attorney. Finally, Myers agreed to an open-ended recusal from "participat[ing] personally and substantially in my official capacity in any of the specific cases and other specific matters that I handled while Of Counsel to Holland & Hart, LLP. [sic]" 76
In August 2003, PEER and Friends of the Earth (FOE) filed a complaint with the Office of Government Ethics, claiming that Myers had repeatedly violated various sections of his recusal agreement. 77 The organizations had obtained documents through a FOIA request that appeared to show that Myers had repeatedly met with Holland & Hart attorneys and clients and had attended numerous meetings concerning matters he had handled while at the firm. 78 Most notably, Myers apparently played a substantial role in revising grazing regulations he had been actively involved in challenging during the Clinton administration, both at Holland & Hart and as director of Public Lands Council, 79 which had been upheld by the Supreme Court in Public Lands Council v. Babbitt80. At OGE's request, the Interior Inspector General headed an investigation into Myers' conduct.
The investigation detailed a total of 37 meetings that PEER and FOE suspected were in violation of Myers' recusal agreements. Though the OGE eventually concluded that none of the incidents constituted a formal conflict of interest, in the words of FOE's Kristen Sykes, "these issues are broad and it's open to interpretation." 81
For example, one meeting with Holland & Hart attorneys detailed in the investigation report was a reception the firm held at the exclusive Hay Adams Hotel in Washington, D.C. to celebrate Myers' new post. Notable guests included Vice President Dick Cheney, who attended the festivities to swear Myers into office in the presence of his former colleagues. 82 The report also discusses a number of meetings with Holland & Hart partners, as well as extravagant dinners paid for by Holland & Hart or its partners, at which participants contend that no "Holland & Hart business" was discussed. 83 Though the report details steps Myers and Holland & Hart took to seek compliance with applicable ethics standards, Myers' attendance at such meetings and events could easily be seen as a violation of his promise to avoid "taking any actions that may create the appearance of impropriety." 84
Perhaps of greater significance, however, are at least seven documented occasions in which Myers participated in meetings at which proposed revisions to Clinton-era federal grazing regulations were discussed. 85 As director of the Public Lands Council, Myers had been actively involved in challenging those regulations in federal court. 86 While at Holland & Hart, Myers authored an amicus brief on behalf of the Farm Credit Institutions challenging the regulations before the U.S. Supreme Court. 87 During his first year as solicitor, Myers participated in a number of meetings with grazing advocacy groups, as well as meetings with high-level Interior officials to discuss possible regulation changes. Last March, during Myers term as Solicitor, Interior gave notice of its intent to revise the Clinton-era regulations. 88 In a letter to PEER and FOE explaining the results of the investigation, however, the OGE's office stated that Myers' recusal agreement "does not prohibit [him] from meeting with anyone on matters of general applicability, i.e. matters that effect an entire class of entities or interests similarly rather than specific entities in a unique or differential matter." 89 Apparently, because grazing regulations impact many people, and because Myers did not act to change the grazing regulations he had challenged in private practice at the sole request of his former, paying clients, the OGE found no formal ethics violations. It remains clear, however, that Myers spent much of his professional life challenging the regulations on behalf of a number of clients, and then took actions to change them almost as soon as he accepted his new government post. Regardless of whether Myers' conduct constitutes a technical violation of the recusal agreement, Myers' direct involvement as Solicitor in matters pertaining to revising the very regulations that he challenged in private practice remains extremely disturbing. Myers' continued promotion of industry interests while at Interior is conduct that should be deemed unacceptable for a federal appellate judge.
III. Myers' Troubling Legal Philosophy
Though most of Myers' legal work has focused on environmental issues, some of his writings raise serious concerns about his legal philosophy more generally. For example, in the amicus brief Myers authored in the case of Solid Waste Agency of Northern Cook County (SWANCC) v. Army Corps of Engineers,90 Myers advocated a very limited view of Congressional power under the Commerce Clause – a view with implications far beyond the environmental policy field.
SWANCC was a wetlands case dealing with the federal government's authority under the Clean Water Act (CWA) to prevent the destruction of wetlands. The Corps argued that regulation of wetlands used by migratory birds was authorized by the Act, which was properly adopted by Congress pursuant to the Commerce Clause, even when the waters were intrastate bodies of water, due to their substantial impact on interstate commerce. In his brief, Myers argued on behalf of the American Farm Bureau Federation, National Cattlemen's Beef Association, and North Dakota Farm Bureau against the Corps' authority to engage in such regulation and for an extremely narrow interpretation of Congress' authority under the Commerce Clause.
Though Congress enacted the Clean Water Act pursuant to its powers under the Commerce Clause, Myers found "no constitutional basis" 91for federal jurisdiction over the wetlands and criticized the Corps' "over-zealous interpretation of its authority under the CWA and the Constitution's Commerce Clause." 92 Myers warned that, if the Corps was allowed to regulate the dredging and filling of the wetlands, then "land use planning, an area of regulation traditionally within state and local jurisdiction, will be usurped." 93 Myers also sharply criticized the Seventh Circuit's ruling in the case, which found for the Corps on the grounds that hunting and trapping migratory birds that use the wetlands was sufficient to prove a substantial effect on interstate commerce and authorize Congressional legislation under the Commerce Clause. Of the Seventh Circuit opinion, Myers said "citing human exploitation of migratory birds as support for the Corps' assertion of jurisdiction over isolated, intrastate waters for wildlife 'protection,' the court not only contradicted itself, but showed just how farfetched the migratory bird rule is." 94 Myers concluded his argument by insisting that allowing such regulatory authority "would amount to unauthorized federal regulation of land use." 95
In a 5-4 decision, the Court found that the Clean Water Act itself did not authorize the Corps to regulate waste disposal in the wetlands, a result Myers' brief supported, thus avoiding the Commerce Clause question altogether. The Court did not adopt the restrictive view of the Commerce Clause advocated by Myers. In fact, four Justices did address the Commerce Clause arguments raised by Myers and others, and dismissed the theory that Congress did not have power to regulate the disputed wetlands as having "no merit." 96 These Justices also explained that it was not accurate to classify the destruction of the wetlands as a "local" problem, even when the disputed habitat is contained completely within one state, because "the protection of migratory birds is a textbook example of a national problem." 97
Myers' advocacy for a very narrow Commerce Clause has implications that reach far beyond environmental law. Diminishing congressional authority under the Commerce Clause is a primary goal of the modern "federalism" movement, which advocates limited federal powers and severely limiting congressional authority, even to the extent of literally rolling back the New Deal. 98 A number of the Administration's most controversial appellate court nominees have embraced such a philosophy. 99 Myers' arguments in SWANCC would not only remove many of our nation's most valuable resources from the umbrella of federal protection, but could also be used to strike down a broad range of federal laws protecting the health, safety, and rights of all Americans.
Myers has also embraced another key tenet of modern "federalist" legal philosophy: elevated protection for private property "rights" as a method to invalidate environmental and other government regulation. In Babbitt v. Sweet Home Chapter of Communities for a Great Oregon,100 the Supreme Court considered an Interior Department regulation that implemented the Endangered Species Act by prohibiting significant habitat modification on private property that kills or injures endangered species. Myers filed an amicus brief in the case on behalf of cattle ranchers that not only argued that the regulation was invalid under the Act, but also claimed that it was unconstitutional because it violated cattle ranchers' property rights. Indeed, the very first argument in the brief claimed that the regulation "Takes the Private Property of Ranchers Without Just Compensation in Violation of the Fifth Amendment." 101 In support of his argument, Myers claimed that the property rights of a rancher were constitutional rights that are "as fundamental as his right to freedom of speech or freedom from unreasonable search and seizure." 102
The Supreme Court upheld the Endangered Species Act regulation in Babbitt. Not a single Supreme Court justice, not even dissenting justices Scalia, Rehnquist, and Thomas, accepted Myers' constitutional argument. Myers' claims echo the extreme property rights rhetoric of California Supreme Court Justice Janice Rogers Brown, who was criticized by her court majority as attempting to impose a "personal theory of political economy on the people of a democratic state" for making a similar argument against a San Francisco housing ordinance. 103 The property rights philosophy apparently embraced by Myers is far out of the mainstream and could be used to invalidate a wide range of important environmental and other regulation.
Serious questions about Myers' legal philosophy are also raised by his writings in support of the nomination of Judge Robert H. Bork to the United States Supreme Court. In an article Myers published on the subject in 1988, he argued that "Judge Bork's judicial philosophy was well within the parameters of acceptable constitutional theory, worthy of representation on the Supreme Court." 104 This was despite the resounding bipartisan 58 - 42 vote rejecting Bork's nomination, which was premised on the bipartisan conclusion that Bork's legal philosophy was "out of the mainstream." 105
In fact, since the Senate rejected his nomination to the Supreme Court, Robert Bork has described the current Court as a "band of outlaws" 106 who have shown America "what it means to be ruled by an oligarchy." 107 He has claimed that the Justices "are not following any law" 108 and have made decisions so illogical that "constitutional law is useless to study and impossible to teach." 109 Previously, he even advocated radically restructuring our Constitution so that the Court's decisions could be overturned by simple majority votes of both Houses of Congress. 110 He has since abandoned this idea, not because of the incalculable damage it would cause our system of checks and balances, but because he has concluded that the change would not have the desired result. 111 For Myers to describe a man with such views about the current, conservative Court as holding ideas "well within" the mainstream of judicial thought is an exceptionally troubling statement, and raises serious concerns about Myers' own legal philosophy.
As the National Congress of American Indians has concluded, William Myers' "demonstrated [] inability to set aside personal bias" 112 makes him an inappropriate candidate for the Ninth Circuit Court of Appeals. His disregard for Native American interests makes him a poor guardian of the rights of the millions of Native Americans who call the Ninth Circuit home. His willingness to read the law and act as Interior Solicitor in the way that best serves the cattle and mining industries, without regard for the intent or the authority of Congress or his proper role at Interior, demonstrates an ideology not likely to be tempered by a seat on the federal bench. His embrace of neo-federalist views and the judicial philosophy of Robert Bork raises extremely troubling concerns about his own legal philosophy. For these reasons, People For the American Way urges the Senate not to consent to the confirmation of William Myers to the United States Court of Appeals for the Ninth Circuit.
1 Answer 6 by Myers to the United States Senate Judiciary Committee Questionnaire.
2 Id.; 2000 lobbying reports of Holland & Hart, available at http://sopr.senate.gov.
3 Ratings of Article III Judicial Nominees: 108th Congress, available at http://www.abanet.org/scfedjud/ratings108.pdf. (The American Bar Association Standing Committee on the Federal Judiciary is the arm of the ABA that rates the qualifications of the President's judicial nominees. According to its mission statement, the ABA restricts its ratings to consideration of a nominee's professional credentials, and does not consider a nominee's ideology or judicial philosophy.)
4 Op-Ed, Our View: A Rancher's Advocate, or the People's Attorney?, Idaho Statesman, Nov. 22, 2002.
5 National Congress of American Indians, Resolution #ABQ-03-061, Opposition to Nomination and Confirmation of Interior Solicitor William G. Myers III To Ninth Circuit Court of Appeals, Nov.21, 2003. (hereinafter Resolution #ABQ-03-061)
6 Id.; See also, Indianz.com, Appeals Court Nominee Favored Industry Over Tribes, Dec. 18, 2003, available at http://www.indianz.com/News/archives/003073.asp.
7 Charles Levendosky, Is Gold More Sacred than Religion?, Casper Star-Tribune, May 5, 2002.
8 Id.
9 Id.
10 Id.; Faultline, Feinstein, Boxer, Reps Oppose Nortion on Gold Mine, Dec. 14, 2001, available at http://www.faultline.org/news/2001/12/Glamisdec.html.
11 43 U.S.C. § 1732(b).
12 43 U.S.C. § 1781(f).
13 65 Fed. Reg. at 70,115 (formerly codified at 43 C.F.R. § 3809.5(f) (2001).
14 Office of the Solicitor, Memorandum M-37007, Surface Management Provisions for Hardrock Mining, Oct. 23, 2001.
15 Id. at 9 – 12.
16 Id. at 14.
17 Id. at 15.
18 Id. at 18.
19 Resolution #ABQ-03-061.
20 Testimony of Sen. Barbara Boxer before the Indian Affairs Committee Hearing on Sacred Sites, July 17, 2002.
21 Id.
22 Faultline, Gale Norton's Broken Treaties: Interior Secretary Breaks Promise to Tribes, Oks Imperial County Mine, Oct. 26, 2001, available at http://www.faultline.org/news/2001/10/quechanmining.html.
23 292 F. Supp. 2d 30.
24 The groups also claimed the regulations illegally renounced the government's responsibility to apply higher standards to those seeking to mine unclaimed or improperly claimed lands and to provide for public review of mines that would disturb under five acres of public land. Judge Kennedy found that while "the 2001 Regulations, in many cases prioritize the interests of miners . . . over the interests of persons . . . who seek to conserve and protect the public lands," the Regulations were for the most part a "reasonable" application of FLPMA that the court could not strike down. Kennedy remanded one portion of the Regulations, which he said failed to ensure that the United States was fairly compensated when industry alters public land in the course of resource extraction. Mineral Policy Center v. Norton, 292 F. Supp. 2d 30 (D. D.C. 2003) at 79 – 81 (hereinafter Mineral Policy Center).
25 Mineral Policy Center at 35.
26 Mineral Policy Center at 35 – 38.
27 Mineral Policy Center at 38.
28 Mineral Policy Center at 43 – 45.
29 Mineral Policy Center at 44, note 18.
30 Resolution #ABQ-03-061.
31 Cat Litter Maker Sues County in Nevada Over Clay Mine Claim, Las Vegas Sun, April 11, 2002; Legal Dispute: Parties Ask to Join Cat Litter Mine Lawsuit, Las Vegas Review-Journal, May 15, 2002.
32 Scott Sonner, Cat Litter Battle Seeks Intervention, Associated Press, Oct. 31, 2002; National Congress of American Indians, Resolution #SD-02-030, Request for Interior Secretary Norton to dissuade the Bureau of Land Management from initiating an Amicus Brief on Behalf of Oil-Dri Mining, Nov. 10 – 15, 2002 (hereinafter Resolution #SD-02-030); Scott Sonner, Northern Nevada: Foes Call Litter Plant a Dirty Deal, Las Vegas Review-Journal, June 29, 2001.
33 Jeff DeLong, Oil-Dri Plant Rejection Could Ignite Legal Battle, Reno Gazette-Journal, Feb. 27, 2002.
34 Id.; Las Vegas Sun, supra note 31; Jeff DeLong, Feds: Washoe Out of Line to Reject Oil-Dri Permit, Reno Gazette Journal, Dec. 6, 2002.
35 Jeff DeLong, Oil-Dri Lawyer Says Government Should Seek Reversal on Washoe Rejection, Reno Gazette-Journal, Feb. 3, 2002.
36 Id.
37 Resolution #SD-02-030.
38 Jeff DeLong, supra note 35.
39 DeLong, supra note 34.
40 Jeff DeLong, Feds Likely to Weigh In on Lawsuit, Reno Gazette-Journal, Nov. 1, 2002.
41 Jeff DeLong, Oil-Dri Lawsuit Rejected, Reno Gazette-Journal, Mar. 6, 2003.
42 See United States Department of the Interior, Mission Statement, available at http://www.doi.gov/doimissn.html (explaining that the Department's mission includes "[r]estoring and maintaining the health of federally managed lands, waters, and renewable resources" as well as "[p]reserving our Nation's natural and cultural heritage for future generations").
43 William Myers III, Environmental Command and Control: the Snake in the Public Lands Grass, Farmers, Ranchers and Environmental Law 191 (1995) at 201.
44 William G. Myers III, Western Ranchers Fed Up with Feds, Forum for Applied Res. & Pub. Pol., Winter 1996 at 22.
45 Sierra Club, Feature: California Desert Protection Act Passes, Planet Newsletter, Jan. 1995, available at http://www.sierraclub.org/planet/199412/ftr-cadesert.asp.
46 Myers, supra note 43, at 200.
47 Mother Jones, Behind the Curtain, Sept./Oct. 2003, available at http://www.motherjones.org/news/feature/2003/09/ma_534_01.html.
48 Op-Ed, supra note 4.
49 Id.
50 Brief for American Farm Bureau Federation et. al. in Support of Petitioners, Solid Waste Agency of Northern Cook County (SWANCC) v. United States Army Corps of Engineers, 531 U.S. 159 (2001) at 2 (hereinafter Brief).
51 Brief at 3.
52 Earthjustice, The Nomination of William G. Myers III to a Lifetime Federal Judgeship Threatens Environmental Protections, available at http://www.earthjustice.org/policy/judicial/pdf/Myers_discussion_10-8-03.pdf
53 Grand Canyon Trust, Grand Canyon Trust Grazing Retirement Program, available at http://www.grandcanyontrust.org/arches/grazing.html.
54 Id.
55 Office of the Solicitor, Memorandum M-37008, Authority for the Bureau of Land Management to Consider Requests for Retiring Grazing Permits and Leases on Public Lands, Oct. 4, 2002.
56 Office of the Solicitor, Clarification of M-37008, May 13, 2003 at 1, 6.
57 Patricia McCoy, Official: It's Illegal to Permanently Retire Grazing Permits, Capital Press, Nov. 27, 2002.
58 Grand Canyon Trust, supra note 53.
59 Mark Salvo and Andy Kerr, Federal Grazing Permit Retirement: Permits for Cast: A Fair and Equitable Resolution to the Public Land Range War, available at http://www. Fguardians.org/permit-retire.html
60 Grand Canyon Trust, supra note 53.
61 Mike Stark, BLM, Rancher Settle Grazing Dispute, Billings Gazette, June 13, 2003.
62 BLM Says Alleged Violator Treated Fairly, Billings Gazette, Oct. 2, 2001.
63 Stark, supra note 61; Don Bowman, Wyoming Rancher Files a Racketeering Lawsuit, Nevada Rancher, Oct. 2003.
64 Stark, supra note 61.
65 Id.
66 Id.
67 Id.
68 PEER letter to Senators Orrin G. Hatch and Patrick J. Leahy, Sept. 3, 2003 (hereinafter PEER letter), attachment II.
69 Stark, supra note 61.
70 Id. As of January 31, 2004, this memorandum has not been released to the public.
71 PEER letter, attachment III.
72 Id; Brodie Farquhar, Top Interior Officials Impose Settlement, Casper Star-Tribune, June 23, 2003.
73 PEER letter, attachment IV (obtained through FOIA request). The IG report investigating Myers' contact with former clients also documents Myers' attendance at a number of meetings where a "Wyoming rancher settlement" or a "dispute between BLM and a Wyoming rancher" were discussed. These would appear to be references to meetings discussing the Robbins settlement. Office of the Inspector General, Report of Investigation: William G. Myers, III, Case Number PI-NM-03-0309-I, Nov. 24, 2003 (hereinafter IG Report) at 26, 32.
74 Robert Gehrke, IG, Ethics Office, Clear Interior Solicitor of Conflict Charges, San Francisco Gate, Jan. 9, 2004.
75 Myers letter to Wendell K. Sutton, Deputy Assistant Secretary for Human Resources, U.S. Dept. of the Interior, May 1, 2001 at 1 (hereinafter Recusal Letter).
76 Id.
77 IG Report at 1.
78 Id.
79 929 F. Supp. 1436 (D. Wyo. 1996). In addition to being director of PLC at the time, Myers is listed in the decision as appearing at trial "Of Counsel for Petitioners." Brief for Farm Credit Institutions in Support of Petitioners in Public Lands Council v. Babbitt, 1998 U.S. Briefs 1991 (Dec. 3, 1999). In fact, the Supreme Court unanimously rejected Myers' argument against the regulations. 529 U.S. 728 (2000).
81 Gehrke, supra note 74.
82 IG Report at 6 – 7.
83 IG Report at 5 – 6, 8 – 13, 33 – 40, 43 -- 48.
84 Recusal Letter at 1.
85 IG Report at 20 – 33.
86 See note 79.
87 See note 79.
88 Jack Newfield, More Bad Judges, The Nation, Jan. 26, 2004. In December, the Bush administration proposed new regulations, reversing much of the Clinton-era regulations. The new proposed regulations are currently in their 60-day public comment period. See Ted Monoson, Interior Rolls Back Babbitt Grazing Changes, Casper Star-Tribune, Dec. 6, 2003.
89 Letter from Amy Comstock, Office of Government Ethics, to Dan Myers of PEER and Kristen Sykes of FOE, Dec. 5. 2003 at 3.
91 Brief at 16.
92 Id. at 4.
93 Id.
94 Id. at 17.
95 Id. at 18.
96 531 U.S. at 197 (Stevens, J., dissenting).
97 531 U.S. at 195 (emphasis in original).
98 See People For the American Way Foundation, The Federalist Society: From Obscurity to Power, Aug. 2001 (updated Jan. 2003), at 17 – 22.
99 See People For the American Way, Report of People For the American Way in Opposition to the Confirmation of Jeffrey Sutton to the United States Court of Appeals for the Sixth Circuit, Jan. 24, 2003 at 1, 6 – 8, 13 – 15; People For the American Way, Report of People For the American Way In Opposition to the Confirmation of William H. Pryor to the United States Court of Appeals for the Eleventh Circuit, June 10, 2003 at 4 – 11; People For the American Way and the NAACP, Loose Canon: Report in Opposition to the Confirmation of Janice Rogers Brown to the United States Court of Appeals for the D.C. Circuit, Aug. 28, 2003 at 34 – 39, all available at http://www.pfaw.org. In fact, in his short time on the bench, Judge Sutton has already issued one dissenting opinion that would have severely limited the scope of federal arson law on "federalism" grounds. United States v. Laton, 2003 U.S. App. LEXIS 24770 (6th Cir. 2003). See also People For the American Way Foundation, Confirmed Judges, Confirmed Fears, Jan. 23, 2004 at 11 – 12, 19 – 21, available at http://www.pfaw.org.
101 Brief for the National Cattleman's Association and the CATL Fund in Support of Defendants in Babbitt v. Sweet Home Chapter of Communities of Oregon, 1994 U.S. Briefs 859 (March 24, 1995) at 2.
102 Id. at 3.
103 San Remo Hotel L.P. v. City and County of San Francisco, 41 P.3d 87, 110 (Cal. 2002). See also People For the American Way and the NAACP, Loose Canon: Report in Opposition to the Confirmation of Janice Rogers Brown to the United States Court of Appeals for the D.C. Circuit, Aug. 28, 2003 at 23, 35.
104 William G. Myers, III, Advice and Consent on Trial: The Case of Robert H. Bork, 66 Denver L. Rev. 1 (1988) at 25. It is also disturbing that, in that same article, Myers praised what he termed the Supreme Court's "retreat" from the privacy protections established by Griswold v. Connecticut, 381 U.S. 479 (1965), and Roe v. Wade, 410 U.S. 113 (1973), due to opinions like Bowers v. Hardwick, 478 U.S. 186 (1986). Bowers, of course, has been overturned by Lawrence v. Texas (123 S.Ct. 2472 (2003)). 66 Denver L. Rev. at 24 – 25. See also, William G. Myers, III, The Role of Special Interest Groups in the Supreme Court Nomination of Robert Bork, 17 Hastings Const. L. Q. 399 (1990) at 419, where Myers decries the "senatorial collusion with interest groups in reviewing the qualifications of Supreme Court nominees."
105 Ronald Rotunda, Symposium: Separation of Powers: The Confirmation Process for Supreme Court Justices in the Modern Era, 37 Emory L.J. 559 (quoting Lawrence Tribe). See also Jeff Miller, Bork Backs Toomey for Senate. Allentown Morning Call (Jan. 6, 2004) (referring to conclusion by Senator Arlen Specter that his questioning of Judge Bork during Senate hearings demonstrated that Bork's views were "outside the mainstream").
106 Robert H. Bork, Our Judicial Oligarchy, 67 First Things 21 (1996).
107 Id.
108 Id.
109 Independent Women's Panel, Ex Femina, Supreme Court Decisions and the Culture War, (Oct. 2002), at http://www.iwf.org/pub/exfemina/October2000e.shtml.
110 Robert H. Bork, Slouching Toward Gomorrah 175 (1st ed. 1996) at 117.
111 Robert H. Bork, Editorial Letter, N.Y. Times, Dec. 12, 2000.
112 Resolution #ABQ-03-061.
Organizations Opposed to the Confirmation of William Myers
Over 140 local, state and national organizations formally oppose the Confirmation of William Myers to the U.S. Court of Appeals for the Ninth Circuit. A number of others have also expressed concern about Myers' nomination.
National Groups (46)
ADA Watch/National Coalition for Disability Rights
Alliance for Justice
American Lands Alliance
American Planning Association
American Rivers
Americans for Democratic Action
Association on American Indian Affairs
Bazelon Center for Mental Health Law
Campaign to Protect America's Lands
Citizens Coal Council
Clean Water Action
Coast Alliance
Community Rights Counsel
Defenders of Wildlife
Disability Rights Education and Defense Fund
Earth Island Institute
Endangered Species Coalition
Environmental Working Group
First American Education Project
Forest Service Employees for Environmental Ethics
Friends of the Earth
Leadership Conference on Civil Rights
League of Conservation Voters
Mineral Policy Center/Earthworks
The Morning Star Institute
National Congress of American Indians
National Environmental Trust
National Forest Protection Alliance
National Organization for Women
National Partnership for Women and Families
National Senior Citizens Law Center
National Tribal Environmental Council
National Wildlife Federation
Natural Heritage Institute
Natural Resources Defense Council
New Leadership for Democratic Action
The Ocean Conservancy
People For the American Way
Progressive Jewish Alliance
Public Employees for Environmental Responsibility
Sierra Club
Society of American Law Teachers
U.S. Public Interest Research Group
The Wilderness Society
Regional, State and Local Groups (95)
Action for Long Island
Advocates for the West
Alaska Center for the Environment
Alaska Coalition
Alaska Rainforest Campaign
Arizona Wilderness Coalition
Audubon Society of Portland
Buckeye Forest Council
Cabinet Resource Group
California Nations Indian Gaming Association
California Native Plant Society
Californians for Alternatives to Toxics
California Wilderness Coalition
Cascadia Wildlands Project
Center for Biological Diversity
Citizens for the Chuckwalla Valley
Clean Water Action Council
Coast Range Association
Committee for Judicial Independence
Confederated Tribes of the Colville Reservation in Washington State
Cook Inlet Keeper
Desert Survivors
Endangered Habitats League
Environmental Defense Center
Environmental Law Caucus, Lewis and Clark Law School
Environmental Law Foundation
Environmental Protection Information Center
Eugene Free Community Network
Florida Environmental Health Association, Inc.
Forest Guardians
Friends of Arizona Rivers
Friends of the Columbia Gorge
Friends of the Inyo
Friends of the Panamints
Georgia Center for Law in the Public Interest
Gifford Pinchot Task Force
Grand Canyon Trust
Great Basin Mine Watch
Great Old Broads for Wilderness
Greater Yellowstone Coalition
Hells Canyon Preservation Council
High Country Citizens' Alliance
Idaho Conservation League
Inter Tribal Council of Arizona
Kamakakuokalani Center for Hawaiian Studies
Kentucky Resources Council, Inc.
Kettle Range Conservation Group
Klamath Forest Alliance
Klamath Siskiyou Wildlands Center
Kootenai Environmental Alliance
The Lands Council
McKenzie Guardians
Mining Impacts Communication Alliance
Montana Environmental Information Center
Native Hawaiian Leadership Project
Northwest Ecosystem Alliance
Northwest Environmental Advocates
Northwest Environmental Defense Center
Northwest Indian Bar Association
Northwest Old-Growth Campaign
Oilfield Waste Policy Institute
Okanogan Highlands Alliance
Ola'a Community Center
Olympic Forest Coalition
Oregon Natural Desert Association
Oregon Natural Resources Council
Pacific Environmental Advocacy Center
Pacific Islands Community EcoSystems
Quechan Indian Nation
Reno-Sparks Indian Colony
Rock Creek Alliance
San Juan Citizens Alliance
Save the Valley, Inc.
Selkirk Conservation Alliance
Siskiyou Project
Sitka Conservation Society
Southern Utah Wilderness Alliance
Southwest Environmental Center
St. Lucie Audubon Society
Tennessee Clean Water Network
Umpqua Watersheds
Valley Watch, Inc.
Waipa Foundation
Washington Environmental Council
Waterkeeper Alliance
Waterkeepers Northern California
Western Environmental Law Center
Western Land Exchange
Western Watersheds Project
West Virginia Rivers Coalition
Wildlands CPR
Wild South
Wyoming Outdoor Council
Organizations That Have Expressed Concern About the Myers' Nomination
American Association of University Women
Catholics For a Free Choice
Feminist Majority
Human Rights Campaign
NARAL Pro-Choice America
National Abortion Federation
National Council of Jewish Women
National Family Planning and Reproductive Health Association
Now Legal Defense and Education Fund
National Women's Law Center
Planned Parenthood Federation of America
Religious Coalition for Reproductive Choice
Sexuality Information and Education Council of the United States
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Portland Becomes First Salmon-Safe City
Mayor Hales issues Salmon-Safe challenge to other West Coast citiesRead More…
Phone: 503-823-4120
1221 SW 4th Avenue, Room 340, Portland, OR 97204
The city has created an electronic "Suggestion Box" to solicit ideas for the budget.
The form can be found by clicking here.
FRIDAY, APRIL 26 2013 -- The city of Portland will hold three forums to hear citizens' input on city spending in May, before the City Council adopts the 2013-14 budget.
Mayor Charlie Hales, city commissioners and city staff will listen to residents' ideas on potential budget cuts and spending increases.
Those will be:
• Thursday, May 16, 6:30 to 8:30 p.m., Council Chambers, City Hall, 1221 S.W. Fourth Ave.
• Saturday, May 18, 3 to 5 p.m., Warner Pacific College, 2219 S.E. 68th Ave.
• Thursday, May 23, 6:30 to 8:30 p.m., Jackson Middle School, 10625 S.W. 35th Ave.
To review budgets requested by city bureaus: www.portlandoregon.gov/cbo/article/437463
WEDNESDAY, APRIL 10, 2013 – An analysis of finances for the city of Portland suggests moderate good news in the weeks ahead.
A projected shortfall of $25 million for the 2013-14 fiscal could fall to $21.5 million, according to City Economist Josh Harwood.
His analysis comes a few weeks before the budget forecast, which is scheduled for the end of April.
"Final forecast figures have yet to be compiled," Harwood said. "We're looking at some moderately improving economic indicators. Right now, they point to a slightly better forecast for the end of April."
The city also could have an estimated $800,000 in one-time resources available for use, he said.
Mayor Charlie Hales aid he was cautiously pleased. "While the budget preview is good news, the city still faces a shortfall and we still cannot use deficit funding," Hales said. "The new projection, if accurate, softens the impacts of the decisions we face."
Upon taking office in January, Hales asked every bureau to submit a budget for 2013-14 that is 10 percent below current budgets, in order to address the projected shortfall.
Harwood met with Hales and his staff last week. He said causes for the April uptick include:
• The consumer price index is down for the region.
• Health care premium costs are lower than expected.
• The real market value of property is up.
• An increase in property affects "compression," the rule created by a series of tax measures in the 1980s and '90s designed to reduce property taxes. Compression reduced funds for the city ofPortland, in part, to pay for a Multnomah County library levy OK'd by voters last November.
"This is just a step in the process," added Andrew Scott, budget director for the city. "The full forecast, including that of the volatile business licenses tax, will be released at the end of the month."
Mayor Hales and the City Council are in the midst of the budget-crafting process, which is expected to extend into May.
The city is looking at a shortfall of at least $25 million. Want to help?
Suggestions are needed on ways to trim money or to generate more revenue. Send suggestions via e-mail to:
Address: email@example.com
Subject Line: Budget Help
Copies of the proposed budgets are in the link below. The budget calendar can be found by clicking here.


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Dishing Up Healthier Portions
By Health Day
If you've ever dieted...you've probably heard that it's a good idea to use smaller plates, so there's less room to load up. Studies have shown that this trick helps adults consume less ...Researchers in Pennsylvania wanted to know if plate size affects how much kids eat, too.
So, they designed an experiment, and tested it out with first graders in a school cafeteria. Children were allowed to serve themselves an entree and side dishes using either child- or adult-size plates and bowls.
The results? Students using the larger dishes not only filled them up...but also ate almost 50 percent of the extra calories they piled on. On average, children served themselves 90 extra calories at lunch when using adult size dishes.
There was one nugget of good news- Kids with the larger plates also took more fruit. Though the same could not be said for vegetables.
The researchers suggest parents try using smaller dishes at home to control calories during meals.
I'm Dr. Cindy Haines of HealthDay TV bringing you another ounce of prevention.
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Exercise IX: Squat
Sets: 2 Reps: 8 Rest: 75 Seconds
Set up a barbell on the supports of a squat rack. Step underneath the bar, squeeze your shoulder blades together, and let the bar touch your upper traps. Grab the bar with your hands about 8 to 12 inches wider than shoulder width. Nudge the bar off the rack, take one step backward, and stand with your feet just a bit wider than shoulder-width apart and toes turned slightly outward [1]. Take a deep breath, and bend your hips and knees, lowering your body as far as you can [2]. Extend your hips to return to the starting position. That's one rep.
The Eternal Beach-Body Plan: Phase II was shot at Gold's Gym, Manhattan—Wall Street


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I think we all know the outcome of this game.
Dallas Mavericks (13-8) vs New York Knicks (6-13)
7:30p.m. ET live on MSG
Im your host Jazzy Jeff and its time to take a look at my pregame strategy for a difficult matchup against one of the best teams in the West. Dallas is coming off an impressive 125-117 victory over the Utah Jazz. Josh Howard led the way with 47 points and 10 rebounds, maybe the best player on the Mavericks even ahead of last years MVP Dirk Nowitzki. The Knicks will have to play a near-perfect game if they want to win.
Lets take a look at the starting lineups:
Dallas Mavericks
pg = Devin Harris
sg = Jason Terry
sf = Josh Howard
pf = Dirk Nowitzki
C = Erick Dampier
New York Knicks
Point Guard - Stephon Marbury
Shooting Guard - Jamal Crawford
Small Forward - Quentin Richardson
Power Forward - Zach Randolph
Center - Eddy Curry
What do the Knicks need to do to win?
- Defend the perimeter: Dallas has 3 or 4 guys who can hit 3's all night so the Knicks need to contest those shots.
- Play half court game: This will protect the Knicks from falling behind real big, a slower pace will not allow Mavs to put points on board in a hurry.
- Play hard defense: The Mavs turn the ball over more then the Knicks, they need to pressure on defense and try to force turnovers
Lets take a look at each matchup:
Stephon Marbury vs Devin Harris
Two solid point guards going head to head, They both are averaging similar numbers. I think Marbury can outplay Harris assuming hes gotten some rest, Harris does not do anything special but he does what he needs to do. He's a good defender, but Marbury is stronger and when hes determined to get to the hoop, few point guards can get in his way. Stephon needs to outplay Harris. There will be matchup problems for the Knicks at other positions so Marbury needs to outplay Harris. One other note, Devin Harris is only shooting 23% from downtown.
Jamal Crawford vs Jason Terry
Jason Terry is small, but quick. He'll be a tough cover for Jamal Crawford because of his speed. He's shooting about 47 percent from behind the stripe so Crawford needs to at least get a hand in his face. Most likely, Crawford will not bring anything defensively so he needs to take advantage of a smaller opponent on offense. Jamal needs to be efficient on offense, take care of the ball, and look to pass. I would like to see him attack the hoop and shoot a better percentage then normal. I'm giving him the pass on defense as long as he is productive on offense.
Quentin Richardson vs Josh Howard
If Josh Howard can score 47 points against Andre Kirilenko, the Knicks could have a big problem tomorrow night. Q-Rich will have to do his best to stay in front of Howard and contest every single one of his shots. He needs to give it 100% and nothing less. If Richardson cannot get anything going on offense, he needs to stop shooting and put all his focus on defense and rebounding. Howard is shooting almost 50% from the field and he will be a tough player to stop.
Zach Randolph vs Dirk Nowitzki
Dirk Nowitzki is one of the best powerforwards in the league. He scores, rebounds, passes, and hes not a bad defender averaging a block a game. Dirk plays with alot of heart and passion. He will be a tough cover for Zach because of his inside-outside game. Z-Bo needs to take away Dirks inside game by using his strength advantage. Nowitzki should not be able to back down Zach, but things don't always happen the way they are supposed to.
Eddy Curry vs Erick Dampier
Curry will have a tough time on offense so for the 4th straight game its another good oppertunity for Curry to work on his defense and rebounding. DeSagana Diop is a good backup center who will also give Curry a tough time. Dampier might be even tougher then Dalembert because hes not only a good shotblocker but hes also stronger, which will allow him to hold his position better against Curry.
Knicks bench vs Mavs bench
Jerry Stackhouse, DeSagana Diop, Brandon Bass, and Trenton Hassel are the biggest names off of Dallas's bench. Brandon Bass is a young, talented player who is a very good defender. Hassel is also capable of slowing down a good scorer, and Stackhouse can quickly put some points on the board. Isiah needs to bring Lee and Balkmen into the game as soon as the starters start to look not interested. Instead of falling behind early, maybe the bench can bring their energy and keep the Knicks in the game.
This will be a tough game for the Knicks, but in my opinion Dallas is a very good team but they are overrated. They can score, but their defense and rebounding is average. The Knicks are capable of at least being a better rebounding team then they have shown, and they need to show it if they want to somehow beat Dallas and makeup for those 2 bad losses against Philadelphia.
Thanks for joining me and remember that you can catch the Knicks Monday night, 7:30p.m. on MSG.
I think we all know the outcome of this game.
yea man I can say it now but I cant say it in the thread, we're gonna get raped by Dallas.
Jose Juan Barea drops 101 points on the Knicks.
well idk...anywun remember the game in Dallas last season...one of the best games...well hopefully i can be like that 1...BUT threw all the shyt were going threw expect a 30 point blowout
Im expecting a win and a 10 year contract extension afterward for isiah.
If Boston can beat us by almost 50 then i think Dallas could get about that.
I would like to see Lee get a crack at Nowitzki, obviously Dirk is a better player but hell at least he would be able to run and jump with him.
Is there a Webcast of the game that i can watch from here in Australia?
don't think steph is playing tonight.
by the way - anyone going to the game?
I'll be in the 400s area and booin' like a motherf#cker!!
Got me some $10 seats lol
Where there is hope, there can be faith
Where there is faith, miracles can occur
On a serious note, Kirilenko is a sick defender and thats a good point. Hopefully the fact that Q is a little more stocky than Howard and Kirilenko, he'll be able to push him around a little, box out better.
But overall I see myself disgusted and yelling at the TV again. Fire Isiah.
P.S. You do look like the will smith.
Let's...Go...Lottery! Let's...Go...Lottery!!! Say it with me Knicks fans!
Is anyone actually going to be foolish enough to waste their time and energy watching this game?
Do yourself a favor.
Spend more time with the kids, wife, girlfriend, do Christmas shopping etc.... Do anything but waste your time watching this team until Isiah is gone, the team has some players on it that haven't already thrown in the towel, or the team is taken away from Dolan (or he dies). There is no point in continuing to suffer until there is some hope. There is no hope the way things are now.
We have hit bottom. Like all addicts, we have to admit the problem and then go forward. GO COLD TURKEY!
I think Im at that point, I dont know why I keep watchin them. Im wastin my time, this team is goin nowhere until player/coach/management changes are made.
KNICKS PRE GAME Hype.
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I never seen this kind of emotion from Isiah Thomas EVER..


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McMillan's Bar-B-Q & Catering hasn't had too many customers over the past 17 years complain about the food. But McMillan, 67, still values his customers' opinions and has learned not to commit the mistake of cooking according to his own tastes.
See the rest of the story in this week's Advance-Guard.


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2012 AL East Predictions
Opening Day is fast approaching, spring training camps are set to open any day now, and many teams have begun selling individual game tickets. Fans all around the country are getting ready for baseball season and offering their opinions on how their team is going to do. I've decided to do the same. Rather than do a team-by-team break down, I'll offer my predictions by division.
I've also included 2012 Predicted statistics from the 2012 Major League Baseball Yearbook and Fantasy Guide
I'll start with the American League East.
In 2011, the Yankees took the division, while the Rays capitalized on the Red Sox epic collapse to earn second place and a wild card spot. Toronto played decent ball in baseball's toughest division, finishing with as many wins as losses, and Baltimore brought up the rear of the division.
So, here's my picks:
1st place: New York Yankees (My projection 96-66)
The Yankees made a major move during the offseason, acquiring Michael Pineda from the Mariners to shore up their rotation. Their rotation is anchored by CC Sabathia, who along with Ivan Nova, Phil Hughes, Freddy Garcia, and Pineda, should be about average.
The Yankees have a great offense. C Russell Martin is not much of an offensive threat, but the Yankees have Mark Teixeria, Robinson Cano, Alex Rodriguez, Curtis Granderson, and Nick Swisher to provide the firepower – all of who have 25+ home run potential. It will be interesting to see how Derek Jeter does as he enters his age 38 season. Might this be his last as a starting shortstop before age necessitates a position switch to the outfield or DH? Speaking of Jeter, will he still hit leadoff, or will Girardi put speedster Brett Gardner there?
Of course, the Yankees have a weapon that no other team has in Mariano Rivera, the best closer in Major League Baseball history.
Here's the Yankees 2012 Statistical Projections (AVG-HR-RBI):
C Russell Martin .242-15-59
1B Mark Teixeira .253-36-108
2B Robinson Cano .308-28-114
3B Alex Rodriguez .271-26-101
SS Derek Jeter .297-8-65
LF Brett Gardner .261-6-37
CF Curtis Granderson .258-35-103
RF Nick Swisher .268-23-84
SP CC Sabathia 21-8, 3.12 ERA, 231 IP, 213 K
SP Hideki Kuroda 15-12, 3.49 ERA, 211.1 IP, 171 K
SP Ivan Nova 14-7, 4.10 ERA, 167 IP, 101 K
SP Freddy Garcia 12-7, 4.13 ERA, 153 IP, 96 K
SP Phil Hughes 13-9, 4.60 ERA, 172 IP, 134K
SP Michael Pineda 13-12, 3.96 ERA, 200 IP, 203 K
RP Mariano Rivera 1.78 ERA, 61 IP, 57 K, 40 Saves
RP David Robertson 2.19 ERA, 66 IP, 98 K, 2 Saves
2nd Place: Tampa Bay Rays (My prediction 90-72)
I kept going back and forth between the Rays and Red Sox for my second place pick. I ultimately decided that the Rays had a better pitching staff that the Red Sox along with miracle worker Joe Maddon.
The Rays offense isn't nearly as strong as the Yankees and Red Sox. They have Evan Longoria, but besides him, there's not much else that makes me say, 'wow.' BJ Upton has been up and down his whole career, but there's some in the business who think that he could break out in a big way in 2012 – just like Matt Kemp did for the Dodgers last year.
I really like the Rays pitching staff. All five starters are dependable and should keep the Rays in the game day in and day out.
Here's the Tampa Bay Rays' 2012 Statistical Projections:
C Jose Molina .266-8-39
1B Carlos Pena .236-32-93
2B Ben Zobrist .264-18-91
3B Evan Longoria .268-36-91
SS Sean Rodriguez .229-9-51
LF Desmond Jennings .269-15-50
CF BJ Upton .241-20-72
RF Sam Fuld .266-2-23
OF Matt Joyce .270-21-86
DH Luke Scott .249-22-59
SP James Shields 14-13, 3.57 ERA, 227 IP, 226 K
SP David Price 15-11, 3.12 ERA, 219 IP, 216 K
SP Jeremy Hellickson 15-9, 2.92 ERA, 219 IP, 145 K
SP Matt Moore 12-10, 3.99 ERA, 160 IP, 163 K
SP Wade Davis 11-10, 4.09 ERA, 189 IP, 114 K
RP Kyle Farnsworth 2.30 ERA, 23 saves, 55 IP, 51 K
RP Joel Peralta 3.44 ERA, 5 saves, 71 IP, 73 K
3'rd place: Boston Red Sox (My prediction 87-75)
The Red Sox crashed and burned in 2011, missing the playoffs despite holding a nine game advantage heading into September. I believe that they will narrowly miss the playoffs again in 2012. Red Sox nation is excited to have Bobby Valentine at the helm. A new manager will bring a new voice and hopefully hold all of the players accountable for their actions. Are the Red Sox players too whiny? How will they take to Bobby V? The Red Sox have an offense that rivals that Yankees, but they're pitching staff isn't as good. And my bold predictions are the Kevin Youkilis absolutely tanks this year while Carl Crawford rebounds from a poor 2011.
2012 Red Sox Statistical Projections:
C Jarrod Saltalamacchia .230-18-62
1B Adrian Gonzalez .337-34-136
2B Dustin Pedroia .308-24-101
3B Kevin Youkilis .282-24-99
SS Mike Aviles .275-9-45
LF Carl Crawford .274-13-68
CF Jacoby Ellsbury .316-25-81
RF Ryan Sweeney .272-4-53
DH David Ortiz .292-26-96
SP Jon Lester 16-9, 3.43 ERA, 194 IP, 197 K
SP Josh Beckett 13-9, 3.67 ERA, 191 IP, 176 K
SP Clay Buchholz 13-7, 3.27 ERA, 154 IP, 112K
SP Alfredo Aceves 12-7, 3.72 ERA, 172 IP, 122 K
SP Daniel Bard 4-3, 3.03 ERA, 62.1 IP, 65 K
SP Daisuke Matsuzaka 6-5, 4.89 ERA, 96 IP, 80 K
RP Andrew Bailey 2.52 ERA, 38 SV, 54 IP, 49 K
RP Mark Melancon 3.39 ERA, 4 SV, 72 IP, 67 K
4th Place: Toronto Blue Jays (My prediction 79-83)
I am the least familiar with the Toronto Blue Jays of the five teams in the AL East. Their only player that I keep an eye on is Jose Bautista, who for a while was my favorite player on the Pirates. I loved that he was versatile and played infield and outfield for the Buccos. He used to play center field and toss balls into the stands between innings. I caught his 10th career home run on the fly. I've loved the guy ever since. Of course, the Pirates traded him for some bum named Robinzon Diaz, and then he became arguably the best player in the MLB after he left town.
Here's their 2012 statistical predictions:
C JP Arencibia .223-25-83
1B Adam Lind .246-25-83
2B Kelly Johnson .238-22-59
3B Brett Lawrie .304-13-70
SS Yunel Escobar .298-10-53
LF Eric Thames .257-13-40
CF Colby Rasmus .254-18-62
RF Jose Bautista .284-41-99
DH Edwin Encarnacion .268-21-65
SP Ricky Romero 15-10, 3.30 ERA, 213 IP, 170 K
SP Brandon Morrow 13-12, 4.65 ERA, 201 IP, 230 K
SP Brett Cecil 10-14, 4.08 ERA, 212 IP, 146 K
SP Henderson Alvarez 10-9, 4.13 ERA, 146 IP, 105 K
SP Dustin McGowan 7-8, 4.10 ERA, 123 IP, 102 K
RP Sergio Santos 3.64 ERA, 29 saves, 59 IP, 88 K
RP Casey Janssen 2.78 ERA, 1 save, 58 IP, 53 K
5th Place: Baltimore Orioles (My prediction: 69-93)
The Baltimore Orioles haven't had a winning season in years. Fourteen years to be exact. They've toiled at or near the division for all these years, not able to succeed with the big spending Yankees and Red Sox in their division. You have to feel bad for them. I can relate. My favorite team, the Pirates, haven't had a winning record in 20 years. However, I do believe the Pirates have a better chance of a winning season that the Orioles since the Buccos don't play the Yankees, Rays, and Red Sox 18 times. That's tough. Frustratingly tough.
The Orioles have a few decent players in Matt Wieters, Adam Jones, and Nick Markakis, but not much else. Their rotation looks dreadful.
2012 Statistical Projections:
C Matt Wieters .280-23-74
1B Mark Reynolds .219-36-85
2B Brian Roberts .260-8-42
3B Josh Bell .260-9-40
3B Wilson Betemit .286-9-44
SS JJ Hardy .266-28-82
LF Nolan Reimold .247-21-72
CF Adam Jones .285-27-83
RF Nick Markakis .286-15-72
DH Chris Davis .273-9-35
SP Jake Arrieta 12-11, 5.05 ERA, 162 IP, 118K
SP Tsuyoshi Wada 11-11, 4.23 ERA, 202 IP, 136 K
SP Zach Britton 11-10, 4.76 ERA, 144 IP, 91 K
SP Brian Matusz 7-15, 5.97 ERA, 146 IP, 118 K
RP Jim Johnson 2.63 ERA, 22 SV, 82 IP 66 K
RP Kevin Gregg 4.25 ERA, 12 SV, 59 IP, 56 K
So, to summarize, I've got
Red Sox
Blue Jays
How do you think they'll finish?
Leave a comment. Thanks to Frank Peavy for pointing out several roster moves that weren't reflected in this post. They've since been edited.
49 days until opening day, 2 days until pitchers and catchers report to Spring Training, and 3 days left to win this Dustin Pedroia T-Shirt.
21 Comments
very generous HR projections for some of the O's. hope they can do that.
My only issue is with some omissions on your part: Kuroda in the Yankees rotation, Scutaro is now with Colorado (Aviles will start at SS for the Red Sox), Daniel Bard will be in Boston's rotation, Wilson Betemit will likely get the lion's share of 3B start in Baltimore, Chen is likely the 2-3 in Baltimore, and you left him off your list..
I'd go:
Red Sox
Blue Jays
I can see the Rays being up top but eventually fizzling out.
I think it is
Its probably not too realistic but that is how I would like it to go.
How on earth can you have the Jays beating out the Rays, pitch for the Jay is almost non existent.
My predictions are..
1- Red Sox
2- Jays
3- Yankees
4- Rays
5- Orioles
You are clearly the least familiar with the Jays as you pointed out. They will surprise and they will compete in the A.L. East. They will be an above .500 team and I believe they eclipse the 85 win mark. Being the "Canadian team", the Jays are often overlooked and/or underestimated, but their rotation will prove to be solid and they will benefit from a couple of bounce back years from position players. You'll see.
Extreme disappointment in this article. You're credibility is tarnished when you said Stephen Drew had a down year last year without the mention that he broke his ankle half way through and didn't return. Down year? Duh! But of course, you didn't know this, looked at his stats, and assumed he played the whole year with these stats. This is nothing more than an article reflecting your emotion as a fan.
you should get to know the Jays…. if you researched them, you'd change your order. Also, thanks for Jose. 😉


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I had my baby 3 1/2 months early and she's currently still in the NICU. She is up to 19 mls evey 3 hours. Problem is, I'm only pumping/expressing 15 mls at max using a Lactina Select model and pumping every 2-3 hours. I'm on the Fenugreek tablets, and mothers milk tea as well as eating oatmeal twice everyday and snacking on oatmeal cookies throughout the day. For the past week or so I've also been doing some extra hand expressing to better empty the breast and hope that stimulates a higher supply but with all this, I've not seen an increase.
I'm frustrated with my lactation consultant, as when a nurse said I should be getting ounces I panicked and went to her and told her I really hadn't gotten much of a supply. She stated not to worry, as long as I was producing more than the baby was eating I was alright and shouldn't fret (as it can make it more difficult) So the next time I saw her I mentioned I still wasn't getting much. This was past 21 days after the baby was born and she told me I should be worried, after 21 days what you have is usually what you have. (I feel like that was poor information communication on her part, I was told not to worry and got no warning to what to be looking for) I feel like this can't be right, as the baby grows it would stimulate your body into producing more milk, wouldn't it? And now I'm reading that the fenugreek isn't recommended for use in pumping for preemies.
Is there still hope that I can get a supply? She's been in the NICU for a month now and I will probably be able to put her to breast even just in recreation in the next week or two and I'm determined to do this. Either I dry up or I feed her. I'd just don't want to supplement as I'd rather be sufficient in feeding her on my own. Advice please? I'm trying not to be discouraged but it's starting to get difficult.


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By Edward Marshall
Journal Staff Writer
MARTINSBURG – A jury deliberated for about two hours Wednesday before finding a Gerrardstown man guilty of sexually abusing a 3-year-old and 4-year-old boy he was supposed to be babysitting more than five years ago.
The jury returned with a verdict at about 6 p.m., convicting Christopher Michael Jensen, 21, of Gerrardstown Road, on two counts of sexual abuse by a custodian and one count of first-degree sexual assault.
Jensen, who is not related to the two victims, was found not guilty of a remaining count of first-degree sexual assault following the trial in Berkeley County Circuit Court.
He was accused of sexually abusing the two victims at their residence in Berkeley County in November 2007.
Sentencing is scheduled for April 15 before West Virginia 23rd Judicial Circuit Judge Christopher C. Wilkes. Jensen faces a maximum possible sentence of 35 to 75 years in prison. The case was prosecuted by Berkeley County Assistant Prosecuting Attorney Gregory K. Jones.
Jones said the victims, now 8 and 9, came forward and reported the abuse to their parents last year. Jensen, who was 16 years old at the time of the abuse, was originally charged in juvenile court, but the state moved to have the case transferred to adult status. Senior Status Judge Thomas W. Steptoe transferred the case to adult jurisdiction in September and Jensen was indicted a month later by a Berkeley County grand jury on two counts of first-degree sexual assault and two counts of first-degree sexual abuse.
Jones said jurors also heard testimony from another juvenile who accused Jensen of sexually abusing him when he was 4 years old in March 2008. That child is now 9. The case was recently investigated by the West Virginia State Police and Jones said charges haven't yet been filed.
In an unrelated case, Jensen is charged with sexually assaulting a 20-year-old woman last year. The alleged incident occurred Sept. 22. Jensen was arraigned Oct. 3 on warrants charging him with second-degree sexual assault, first-degree sexual abuse and battery in connection with that case.
Jensen is incarcerated at Eastern Regional Jail while awaiting sentencing.
– Staff writer Edward Marshall can be reached at 304-263-8931, ext. 182, or firstname.lastname@example.com.