TESTIMONY OF PROFESSOR JONATHAN TURLEY
PROFESSOR OF LAW
DIRECTOR OF THE ENVIRONMENTAL LAW ADVOCACY CENTER
GEORGE WASHINGTON UNIVERSITY LAW SCHOOL
WASHINGTON, D.C.
BEFORE THE
SUBCOMMITTEE ON COMMERCIAL AND ADMINISTRATM LAW
COMMITTEE ON THE JUDICIARY
UNITED STATES HOUSE OF REPRESENTATIVES

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 Counsel’s (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
Absaroka-Beartooth 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
Mexico-Colorado 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 to 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
long-standing snowmobile enthusiast who had been recreating in
the area since the mid-1960’s. 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 well-connected. They were
not punished for recreational excess. They were trying to do
their job and found themselves at thc 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 (OS C). 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 properly, 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. I would be happy to respond to any
questions that the Subcommittee may have.