Administrative Crimes: Testimony of Professor Jonathan Turley

Environmental Law & Property Rights Practice Group Newsletter - Volume 3, Issue 1, Spring 1999

May 1, 1999

Jonathan R. Turley

[Testimony of Professor Jonathan Turley Before the Judiciary Committee of the House of Representatives Subcommittee on Commercial and Administrative Law May 7, 1998]

Mr. Chairman, members of the Subcommittee, I appreciate the opportunity to speak with you today. The subject of this hearing is enormously important to many individuals, communities and agencies in this country. I will not be able to do justice to the myriad of issues raised by this hearing in my short appearance before the Subcommittee. I was invited to appear before this Subcommittee only two days ago while out of town on litigation. Nonetheless, I felt strongly that some issues should be raised during the hearing, albeit in an abbreviated form. Mr. Chairman, with the permission of the Subcommittee, I would like to submit my complete written statement into the record and to submit a supplemental statement at a later date.

I am a professor of law and the Director of Environmental Law Advocacy Center at George Washington University. The Environmental Law Advocacy Center contains a variety of projects, including the Environmental Crimes Project and the Shapiro Environmental Law Clinic. In addition to drafting environmental and sentencing legislation, my students and I represent victims of environmental crimes as well as federal whistleblowers in this area. My students and I also litigate cases against the federal government to enforce environmental laws. In all of these cases, my students and I work only pro bono and do not accept fees from our clients who are often indigent or under considerable financial strain. We often see, in the most personal terms, the physical and financial damage caused by environmental crimes.

Mr. Chairman, the subject of this hearing is a serious and appropriate question for oversight review: allegations of agency abuse. I am highly sympathetic to such concerns since I have represented individuals who have been victimized by agencies ranging from the workers at Area 51 in Nevada to the current nuclear couriers in Tennessee. No one is more outraged than my students and I when citizens are run to ground by callous or hostile federal agents.

It is important, however, to address such problems in a balanced and focused way. In this sense, I come to these questions with all of the standard bias of an academic. I prefer empirical over anecdotal evidence when considering legislation. With all due respect to some of our prior witnesses, including my good friend Roger Marzulla, I believe that there is a danger of losing sight of the forest from the trees. This Subcommittee can have a meaningful deterrent effect but, to do so, the Subcommittee must go beyond the mere rhetorical or symbolic and address the substantive underlying problems.

While there has been considerable attention to the exercise of agency interpretation of civil and criminal provisions, there can be little question that agencies are allowed to, and expected to, interpret statutory provisions enacted by Congress. All legislation is necessarily general and vague. To carry out the purpose of a statutory provision, an agency must interpret and apply that provision to countless individual cases. In Chevron, USA, Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), the United States Supreme Court articulated a highly deferential approach to such agency interpretations with the understanding that, if Congress does not agree with an agency interpretation, it can enact corrective and binding legislation. However, the need for agency interpretation of federal statutes is beyond serious debate—and presumably not seriously questioned by this Subcommittee.

When hearing the type of testimony today, it would be easy to assume that agencies act both unilaterally and without serious restraints in the imposition of civil and criminal penalties. Clearly, this is not the case. Many agency regulatory interpretations first appear in a lengthy process of review and public comment. These agency actions are often subject to litigation before they are actually applied against any citizen. If an interpretation is a purely legal issue, it is usually reviewed by the agency's Office of General Counsels (OGC) and often the Department of Justice (DOJ).

Once these interpretations pass muster, an agency can apply the standards or processes to actual cases. When an agency engages in excessive or unfounded interpretations, any civil or criminal sanctions based on such interpretations are subject to judicial review. Federal courts routinely bar prosecution or civil penalties based on constitutional principles of vagueness or overbreadth as well as statutory interpretive principles. Most federal judges in the country follow a fairly narrow construction of federal statutes that do not permit significant departures from the stated language or purpose of an Act. When a federal court agrees with an agency's interpretation, Congress always reserves the right to correct any judicial opinion misinterpreting its legislative intent under an Act. It is unnecessary to explain the obvious value of this system and the value of agencies in the interpretation and execution of federal mandates.

Just as the Subcommittee cannot seriously question the need for agency interpretations, the Subcommittee presumably does not seriously question the need for civil and criminal enforcement of these laws. Administrative orders and agency enforcement remain the primary method of protecting the purity of our food supply, the safety of our workplace, and the environment of our communities. For most agencies, this presents a daunting if not impossible task. Agencies cannot expect to enforce these laws against more than a small percentage of violators in an economy of this size. As a result, compliance with these federal laws is a question of the deterrent effect of agency actions. Deterrence itself is a relationship between the rate of detection and the size of a penalty. Agencies such as the Department of Agriculture and the Department of the Interior struggle with areas with extremely low detection and, accordingly, low deterrence. Agencies must use administrative orders and agency enforcement to create a minimal level of deterrence to achieve the purposes of health, environmental and worker safety statutes. In this process, the agency must use its expertise and discretion in setting relative fines or penalties for misconduct falling under its jurisdiction. It is in this discretionary conduct that agency abuse often occurs when officials fail to police their own personnel or review their conduct in individual cases.

This leaves us with the cases presented to the Subcommittee and their significance to a larger legislative purpose. Considering the foregoing, I do not see the significance of these cases as a basis for legislative action. The only case on which I was given details before my appearance was the case of Mr. Unser. I must confess that my review of this case suggests that the agency and the court acted entirely properly with regard to Mr. Unser. In reading the details in this case, I do not find that Mr. Unser is a particularly compelling or heroic figure. To the contrary, Mr. Unser appears outraged that a federal law enforced against many citizens has been enforced against him. While Mr. Unser may consider such enforcement to be "worse than KGB," I would submit that the exemption of wealthy, powerful citizens from such enforcement would be the very definition of the type of the system that he publicly abhors.

Let's review the facts of the case. In this country, a small percentage of public land in designated "wilderness" and protected from motor vehicles and other destructive influences. Snowmobiles are one of the most destructive forms of recreation in our forests and particularly harmful to wilderness areas. Individuals, however, continue to engage in this conduct due to the low level of detection guaranteed by the remote location of these areas. Rather than recreate in the many areas which allow for snowmobiling, these individuals insist on violating the laws to enjoy the experience of snowmobiling through pristine areas. An example of the problem and the low detection rate can be found in studies conducted in wilderness areas. In one such area, the AbsarokaBeartooth Wilderness, the government recorded 472 violations but only 7 violators were actually caught and cited.

Section 551 of Title 16 of the United States Code is a statutory provision enacted by Congress and given to the Secretary of the Department of Agriculture to interpret and enforce. This is not an obscure provision but the central legal mechanism used to protect wilderness areas from their greatest threat: motorized recreational vehicles of various types, including snowmobiles. Since 1985, the Forest Service has banned the possession or use of a motor vehicle, motorboat, or motorized equipment in an area designated as a National Forest Wilderness. 36 C.F.R. 261.16(a). This regulation was subject to a long public notice, hearing, and commentary before it was promulgated.

Mr. Unser chose one of the nation's most sensitive areas to violate the law: the South San Juan Wilderness near the New MexicoColorado border. This is an area that is at considerable risk due to snowmobiles and other motor vehicles. Unfortunately for Mr. Unser, during this illegal incursion, he found himself stranded deep into the Wilderness area. In an impressive feat, Mr. Unser succeeded with his colleague in fighting the elements for two days until they were rescued. In this sense, Mr. Unser is not unique. Many areas are restricted to protect citizens as well as the ecosystem from harm. It is often the case that individuals will go illegally into restricted areas only to require rescue. By the time the Service reaches such individuals it is often a question of body identification rather than individual citation. As Special Agent Charles Burd stated at Mr. Unser's trial, the Service "told him [they] were glad he had survived his ordeal and that [they] weren't going after a corpse, as [they] often do in these situations." While these individuals are not required to bear the high costs of such rescues, they are often given citations for their misconduct. This is a minimal deterrent response by the Forest Service. The men and women who searched for two days to rescue Mr. Unser in often dangerous conditions were not "Nazis" or "KGB," but professionals who work for long hours and for little pay to protect citizens from their own folly.

At this trial, witnesses testified that Mr. Unser was a longstanding snowmobile enthusiast who had been recreating in the area since the mid1960s. Mr. Unser was not only aware of the restrictions that came into effect in the 1980s but he was specifically aware of the designated wilderness area. Witnesses testified that the two snowmobiles were found far into the Wilderness area near Red and Dipping Lakes, and not (as has often been suggested) along the edge of the area. Moreover, Mr. Unser could have been sent to jail for six months and given a $5,000 fine for his misconduct. Instead, noting the dire circumstances that he faced in his ordeal, the court imposed a merely symbolic fine of $75 for this misdemeanor.

It is not clear what Mr. Unser would have had the court or the agency do in light of his misconduct. Mr. Unser violated an important federal law which applies equally to all citizens without exception. Mr. Unser was not facing "Nazis," but a conservative judge who applied the lowest possible penalty. Mr. Unser, however, has now been the focus of two congressional hearings and a prolonged litigation.

If I sound somewhat incredulous, it is because I have represented serious victims of agency abuse who could not get a return telephone call, let alone a hearing from Congress. For example, when I received the call from this Subcommittee two days ago, I was meeting with over twenty special agents who transport nuclear weapons for the Department of Energy (DOE). These nuclear couriers have been treated as criminals by the Federal Bureau of Investigation (FBI) after they raised safety and security concerns. Despite the fact that these concerns were found justified in a federal whistleblower action, the DOE called for a criminal investigation in retaliation. When the Fraternal Order of Police (FOP) sought counsel to help the workers, the FBI became increasingly abusive and passed around a list of any workers represented by counsel as presumptively guilty of something. The FBI refused to interview represented workers and demanded that workers turn in colleagues for any offense as the basis for being "cleared" for employment at Oak Ridge. As a result, any worker who spoke with a lawyer was placed on administrative leave and other workers were told that they were targets of investigation due to their represented status.

I mention the nuclear couriers because it is difficult to work up a sense of outrage over Mr. Unser's $75 fine when over twenty families are facing ruin over a common form of abuse by the FBI. They are neither famous nor wellconnected. They were not punished for recreational excess. They were trying to do their job and found themselves at the center of an investigation in search of a purpose.

This Subcommittee is exercising a meaningful oversight function. I would submit, however, that there are hundreds of average citizens who would be better subjects of your attention than Mr. Unser's snowmobiling difficulties. Moreover, the most serious problem is not the agency interpretations, but individual agent abuses. The vast majority of abuses in this area can be traced to individual officials or agents who grow abusive or callous in their positions of authority. This occurs because they do not fear a serious deterrent in the form of review. Agents are accountable to review by Inspector General (IG) offices, Offices of Professional Responsibility (OPR), and the Office of Special Counsel (OSC). All three of these offices are notoriously lax and bureaucratic in their reviews of agency misconduct. While given a mandate to police such misconduct, these offices are mere paper tigers that are often the source of derision among federal employees. This leaves us with the very problem of deterrence addressed earlier. Citizens are abused by individual agents because there is neither a high likelihood of detection nor serious penalty for such misconduct.

If this Subcommittee wants to deter the most prevalent form of agency abuse, it would be an easy matter. Congress must restructure the IG, OPR, and OSC offices to mandate more aggressive action in these cases. If these internal watchdog offices were functioning property, citizens could file for review of misconduct before litigation to seek relief. These changes would drive at the heart of the greatest source of abuse for average citizens. Agents would then be subject to a meaningful deterrent if their actions are excessive or abusive. Families like those of the nuclear couriers could then seek help before their lives were ruined by misconduct.

In conclusion, you may count my voice and those of my clients in calling for change. We need help from this Subcommittee. But this help must come in a meaningful form. Congress should not reduce the deterrence of citizens who violate our laws but rather create deterrence for government officials who do so. There is neither a significant detection rate nor penalties for agents who abuse their authority at the cost of innocent citizens. This Subcommittee can change that deterrence equation and, in the process, protect the most vulnerable of our population.

Once again, Mr. Chairman, thank you for allowing me this opportunity to appear today.


* Jonathan Turley is Professor of Law and Director of the Environmental Law Advocacy Center at George Washington University Law School.