[House Hearing, 114 Congress]
[From the U.S. Government Publishing Office]
ACCOUNTABILITY, POLICIES, AND TACTICS OF LAW ENFORCEMENT WITHIN THE
DEPARTMENT OF THE INTERIOR AND THE U.S. FOREST SERVICE
=======================================================================
OVERSIGHT HEARING
before the
SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS
of the
COMMITTEE ON NATURAL RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED FOURTEENTH CONGRESS
FIRST SESSION
__________
Tuesday, July 28, 2015
__________
Serial No. 114-17
__________
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COMMITTEE ON NATURAL RESOURCES
ROB BISHOP, UT, Chairman
RAUL M. GRIJALVA, AZ, Ranking Democratic Member
Don Young, AK Grace F. Napolitano, CA
Louie Gohmert, TX Madeleine Z. Bordallo, GU
Doug Lamborn, CO Jim Costa, CA
Robert J. Wittman, VA Gregorio Kilili Camacho Sablan,
John Fleming, LA CNMI
Tom McClintock, CA Niki Tsongas, MA
Glenn Thompson, PA Pedro R. Pierluisi, PR
Cynthia M. Lummis, WY Jared Huffman, CA
Dan Benishek, MI Raul Ruiz, CA
Jeff Duncan, SC Alan S. Lowenthal, CA
Paul A. Gosar, AZ Matt Cartwright, PA
Raul R. Labrador, ID Donald S. Beyer, Jr., VA
Doug LaMalfa, CA Norma J. Torres, CA
Jeff Denham, CA Debbie Dingell, MI
Paul Cook, CA Ruben Gallego, AZ
Bruce Westerman, AR Lois Capps, CA
Garret Graves, LA Jared Polis, CO
Dan Newhouse, WA Wm. Lacy Clay, MO
Ryan K. Zinke, MT
Jody B. Hice, GA
Aumua Amata Coleman Radewagen, AS
Thomas MacArthur, NJ
Alexander X. Mooney, WV
Cresent Hardy, NV
Vacancy
Jason Knox, Chief of Staff
Lisa Pittman, Chief Counsel
David Watkins, Democratic Staff Director
Sarah Parker, Democratic Deputy Chief Counsel
------
SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS
LOUIE GOHMERT, TX, Chairman
DEBBIE DINGELL, MI, Ranking Democratic Member
Doug Lamborn, CO Jared Huffman, CA
Raul R. Labrador, ID Ruben Gallego, AZ
Bruce Westerman, AR Jared Polis, CO
Jody B. Hice, GA Wm. Lacy Clay, MO
Aumua Amata Coleman Radewagen, AS Vacancy
Alexander X. Mooney, WV Raul M. Grijalva, AZ, ex officio
Vacancy
Rob Bishop, UT, ex officio
------
CONTENTS
----------
Page
Hearing held on Tuesday, July 28, 2015........................... 1
Statement of Members:
Dingell, Hon. Debbie, a Representative in Congress from the
State of Michigan.......................................... 6
Prepared statement of.................................... 8
Gohmert, Hon. Louie, a Representative in Congress from the
State of Texas............................................. 1
Prepared statement of.................................... 6
Statement of Witnesses:
Brown, Dave, Sheriff, Skamania County, Washington............ 9
Prepared statement of.................................... 11
Ehnes, Russ, Executive Director, National Off-Highway Vehicle
Conservation Council, Great Falls, Montana................. 17
Prepared statement of.................................... 19
Larkin, Paul Jr., Senior Legal Research Fellow, Edwin Meese
III Center for Legal and Justice Studies, The Heritage
Foundation, Washington, DC................................. 27
Prepared statement of.................................... 28
Schoppmeyer, Christopher, Vice President for Agency Affairs,
Federal Law Enforcement Officers Association, Washington,
DC......................................................... 20
Prepared statement of.................................... 22
Questions submitted for the record....................... 25
Additional Materials Submitted for the Record:
ACLU--American Civil Liberties Union, Washington, DC, July
28, 2015 letter to Chairman Gohmert and Ranking Member
Dingell.................................................... 43
List of documents submitted for the record retained in the
Committee's official files................................. 52
Utah to BLM: Rein in your cops, Brian Maffly, The Salt Lake
Tribune, October 19, 2014.................................. 2
OVERSIGHT HEARING ON ACCOUNTABILITY, POLICIES, AND TACTICS OF LAW
ENFORCEMENT WITHIN THE DEPARTMENT OF THE INTERIOR AND THE U.S. FOREST
SERVICE
----------
Tuesday, July 28, 2015
U.S. House of Representatives
Subcommittee on Oversight and Investigations
Committee on Natural Resources
Washington, DC
----------
The subcommittee met, pursuant to notice, at 10:30 a.m., in
room 1324, Longworth House Office Building, Hon. Louie Gohmert,
[Chairman of the Subcommittee] presiding.
Present: Representatives Gohmert, Westerman, Hice,
Radewagen, Mooney, Bishop (ex officio); Dingell, Huffman, and
Gallego.
Mr. Gohmert. The Subcommittee on Oversight and
Investigations will come to order.
This subcommittee is meeting today to hear testimony on
accountability, policies, and tactics of law enforcement within
the Department of the Interior and the U.S. Forest Service.
Under Committee Rule 4(f), any oral statements at this
hearing are limited to the Chairman and Ranking Minority
Member. This will allow us to hear from our witnesses sooner
and let Members keep to their schedules.
Therefore, I ask unanimous consent that all other Members'
opening statements for this meeting be made part of the hearing
record if they are submitted to the Subcommittee Clerk by 5:00
p.m. today.
Hearing no objection, so ordered.
Also, I politely ask that everyone in this hearing please
silence your cell phones. Make sure that there is nothing that
goes off. When I was a judge, I would have my bailiff
confiscate any phones that went off; and then you had to do a
couple hundred hours of community service to get it back. I do
not have a bailiff here as such; so I just have to ask that you
keep your cell phone silent, please. Thank you.
All right. I will now recognize myself for 5 minutes for an
opening statement.
STATEMENT OF THE HON. LOUIE GOHMERT, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF TEXAS
Mr. Gohmert. Today we are discussing the accountability of
law enforcement within our land management agencies. I would
like to recognize from the start the important work of hundreds
of law enforcement employees from the Department of the
Interior to the U.S. Forest Service. These men and women risk
everything to protect our iconic landmarks, natural resources,
as well as critical energy infrastructure.
Just last year, 38-year-old Forest Service Officer Jason
Crisp and his K-9 partner were killed while pursuing an armed
murder suspect. That was a horrible tragedy, and his sacrifice
should be remembered by all of us.
Clearly, there are many, many excellent officers out there
just doing their job day in and day out. Unfortunately, we have
come to learn of situations that place local law enforcement
officers at odds with their Federal counterparts.
I would like to enter into the record an article from the
Salt Lake Tribune published in October of 2014, entitled ``Utah
to BLM: Rein in Your Cops.''
The article begins, ``Public Enemy No. 1 for rural Utah
sheriffs just happens to be a fellow peace officer named Dan
Love, the Bureau of Land Management's special agent in
charge.''
[The article submitted for the record by Mr. Gohmert
follows:]
Utah to BLM: Rein in your cops
By Brian Maffly
The Salt Lake Tribune
Published October 19, 2014 10:12 am
Law enforcement Sheriffs say federal rangers overstep their
authority and blame Utah-Nevada special agent for escalation of
conflicts.
Public Enemy No. 1 for rural Utah sheriffs just happens to be a
fellow peace officer: Dan Love, the Bureau of Land Management's special
agent in charge.
Elected law enforcement officers from Nephi to Blanding call him an
arrogant and dishonest bully who has little regard for local authority
and dodges accountability, derailing a collaborative approach to police
work on the state's federal lands.
Love reportedly just laughed when Garfield County Sheriff James
``Danny'' Perkins relayed ranchers' complaints about federal officers
removing plastic feed tubs from the range and threatening the ranchers
with litter citations.
He drew early controversy during an undercover probe of artifacts
trafficking in Blanding in 2009. More recently, Love led the BLM's
aborted roundup of Cliven Bundy's cattle following an armed standoff
with anti-government protesters at the Utah-Nevada border.
While tensions with federal authority are hardly new to Utah, local
officials say friction has intensified with Love at the helm of BLM law
enforcement in Utah and Nevada.
Now top state officials want Love gone. ``This is untenable,'' said
Lt. Gov. Spencer Cox. ``There comes a time when personalities get in
the way of productivity.''
For his part, Love is not talking.
Local officials may share some of the blame for the poor relations.
According to court filings, elected leaders and even deputies have
confronted BLM rangers, publicly challenging their authority.
But Love's critics say his intimidating attitude and unwillingness
to consult with counties exemplify a ``culture of arrogance'' that
undermines cooperation in Utah's remote reaches. The public loses,
safety is compromised and tax dollars are wasted, Utah's rural sheriffs
say.
``This refusal to coordinate, coupled with a lack of any meaningful
oversight, has created a perfect environment where the abuse of federal
law enforcement powers can occur,'' Perkins recently testified before a
congressional committee.
For example, Perkins and San Juan County Sheriff Rick Eldredge say,
rangers pull over citizens without probable cause, even in areas where
they have no jurisdiction, ``bully'' ranch hands, berate tourists for
parking vehicles off dirt roads and illegally close roads. Federal
officers refuse to help with searches and rescues, or when they do,
they get in the way.
BLM law enforcement officials would not speak on the record, but an
agency spokeswoman said BLM does takes complaints seriously.
``When we receive specifics regarding these allegations, we look
into the incidents and take corrective action if appropriate,'' Celia
Boddington said. ``However, it is difficult for us to address
allegations when they are either not reported to us or reported several
months after the event.''
Still, the agency is revising its command structure to make law
enforcement responsive to local concerns.
``We enjoy positive and constructive relations with the majority of
sheriffs,'' Boddington said, ``and couldn't get our job done without
working closely with them and their teams.''
----
Broken accords One recent flap surrounding Love stems from
the contracts the BLM signs with some sheriff's departments,
compensating them for patrolling public lands and conducting searches
and rescues.
State and local officials allege Love recently ``terminated'' such
contracts with five counties as retribution for the state's enactment
last year of HB155, which limits the authority of officers employed by
federal land agencies.
While discussing the contracts with BLM's top law enforcement
official, Salvatore Lauro, recently, Cox asked him to assign a new
special agent in charge for Utah.
``They are not willing to make that replacement at this time,'' Cox
said, ``but they are willing to work toward improving those
relations.''
The lieutenant governor said he and other state officials have
negotiated face to face with Love, and have gotten nowhere.
``If I was going to battle, I'd want him beside me,'' Cox told a
recent meeting of Utah's Commission on Federalism. ``But I don't want
him instigating a war.''
Love has declined lawmakers' invitation to speak at legislative
committees. BLM officials won't discuss individual employees and
wouldn't make Love available for an interview.
But they denied retribution played any role in the contract
decisions.
According to Boddington, the BLM allowed the contracts to expire
after higher-ups found them legally defective during routine reviews.
Agreements with Kane, San Juan, Emery, Juab and Grand county sheriffs--
worth about $178,000 a year--expired in 2012.
``The BLM's review of the contracts was underway prior to the bill
introduction,'' she said. ``There is no connection of any kind between
our review and HB155.''
To patrol Utah's 23 million acres of public lands, the BLM employs
15 uniformed rangers or field officers. Seven special agents who
investigate violations of federal law related to public lands and
natural resources also work for BLM, which administers about 40 percent
of Utah's land base. All report in varying degrees to Love, who has
served in the top spot for less than a decade.
----
Threat to public safety? The situation has become so
tense, or perhaps juvenile, that federal and local officers sometimes
threaten to arrest each other.
Garfield and at least three other counties have passed resolutions
declaring federal authority unwelcome, alleging BLM law enforcement
presents a threat to ``health, safety and welfare.''
Retired rangers say the tensions date back to the 1970s, when the
BLM began assigning field rangers. Controversial BLM operations, such
as the artifact raids in Blanding or the Bundy standoff at Bunkerville,
Nev., bring ``long-simmering'' resentments to the surface, said Ed
Patrovsky, who patrolled the 3.2-million-acre Craig district spanning
parts of nine northwest Colorado counties.
``The problems lie on both sides,'' Patrovsky said. ``Some sheriffs
are territorial. They see federal officers as competitors rather than
cooperators. Some of the federal officers come in with the same
attitude.''
He said the BLM's hiring patterns in the past two decades have
contributed to the problem. Instead of recruiting rangers from other
land agencies, it now tends to tap agencies such as the Border Patrol
and Bureau of Prisons.
``They are hiring rangers that don't have the natural resource
ethic that ties them to the land,'' Patrovsky said.
Still, today's widespread anti-federal sentiment complicates
rangers' jobs.
``Things can snowball and gather their own momentum without any
fault on the part of the ranger,'' said Patrovsky, who was deputized by
the Moffat County sheriff during his years in Craig. ``There is an
atmosphere of fear and intimidation out there and rangers are afraid to
speak out.''
It is common for Utah sheriffs to deputize U.S. Forest Service and
National Park Service officers, but no BLM rangers are currently
deputized in Utah.
----
`He had no jurisdiction' BLM arrest statistics seem to
undermine claims of an overbearing presence. Rangers made just three
arrests in Utah in 2012, and issued 27 citations and 110 warnings.
County officials, however, say they are more concerned with
incidents that don't wind up in court, but illustrate a lack of respect
toward the sheriff's role as a county's chief law enforcement officer.
At a recent congressional hearing, Garfield County Commissioner Leland
Pollock likened BLM law enforcement operations to ``the Gestapo.''
Perkins said tourists have complained they will never return to
Garfield County after their treatment by rangers in the Grand Staircase
Escalante National Monument.
In his legislative testimony, Eldredge said a BLM ranger confronted
him on his family's property adjacent to BLM land and the Ute Mountain
Ute community. The ranger, who didn't recognize the sheriff,
erroneously admonished Eldredge against driving on tribal land. The
ranger backed off and apologized when Eldredge identified himself, but
the sheriff was in no forgiving mood.
``He didn't even know whose land it was,'' Eldredge told lawmakers
earlier this month. ``He just wanted to give me a bad time. Even if it
was [land administered by Bureau of Indian Affairs], he had no
jurisdiction to tell me stay off.''
Many county leaders don't hesitate to praise BLM Utah Director Juan
Palma, regarded as a warm public servant committed to bridging the
federal-state divide.
But whatever goodwill Palma builds, Love and officers under his
command put a match to it, local officials say.
Pollock points to an effort by Garfield County officials to hammer
out a law enforcement contract with the BLM, similar to the agency's
agreement with neighboring Kane County. Garfield County is also home to
the Grand Staircase monument, and last year, its six-deputy department
spent $70,000 on helicopter time and 265 staff hours rescuing monument
visitors.
Love refused to execute a contract, according to Pollock.
``We budgeted based on my negotiations with Juan Palma, and all of
the sudden he said he couldn't do it,'' Pollock said. ``That's sick and
wrong. We hired a deputy that would have made the Grand Staircase a
safer place, and this one guy killed it.''
Meanwhile, Perkins contends the BLM ranger assigned to the county
refuses to coordinate with deputies on searches and rescues. He once
prematurely called in a helicopter, Perkins said, which sat idle for
four hours before it returned to base, refueled, and came back with
another pilot.
----
BLM cops and civilians Counties also complain that BLM law
enforcement operates at cross purposes with its own civilian land-
management staff.
Perkins and Pollock cited an incident where a ranger posted roads
with closed signs shortly before the opening of a limited entry hunt.
Locals complained to the BLM field manager, who determined that the
roads should be open, according to the sheriff.
But when the manager took down the signs, the BLM ranger threatened
to arrest him. The ranger kept his hand on his holster as if preparing
to draw his service weapon, Perkins said, and the BLM manager told the
sheriff he felt his life was in danger.
In a more documented case, BLM law enforcement clashed with
civilian colleagues in Garfield County over a dead body.
Love and a team of FBI agents unearthed human remains discovered in
the national monument in 2008, reasoning the site could be a crime
scene. The monument archaeologist objected, however, believing the site
was likely historic and any excavation should have been led by
scientists.
The archaeologist was baffled that law enforcement did not notify
him of their plans, and that Love failed to return his phone calls,
according to BLM documents obtained through a records request.
The archaeologist was excluded as the cops dug up the body with a
TV crew filming. The remains turned out to be that of an American
Indian who died in the 19th century.
All sides agree better cooperation would minimize such
disagreements and make the job of law enforcement easier. The challenge
will be re-establishing trust.
______
It may seem improbable that a single officer could become
so notorious, but hearings right here in this committee have
confirmed that the BLM is able to ignore the authority of local
sheriffs and other elected officials without repercussions.
One county commissioner described their issues with BLM as
``bullying, intimidation and a lack of integrity.''
Appeals from the highest levels of the Utah state
government were met with open ears from Bureau officials, but
zero action was taken. This particular officer continues to
make new friends and has popped up in the news again for his
adoration of Choco Tacos and demands for superstar treatment at
outdoor hippie festivals.
We could easily conclude that this was just one rogue
officer and surely he will be dealt with, but that is not the
case. If we have a system that allows this to continue, then
these accountability issues will remain unchanged and repeated.
In fact, I have heard surprising stories from local authorities
and government officials in my own district regarding abuses or
callous ignoring of the needs of local officials who have
difficulty getting needed cooperation from Federal authorities
in charge of land within their county.
Once we come to a better understanding of how these
problems have been able to persist, we can move to a suitable
corrective action. We have four witnesses today offering a
variety of perspectives with experience we value. From their
testimony we will hear how something in the implementation of
this ``stove-piping'' of authority is foiling responsive,
efficient, and accountable performance. I invite our witnesses
to tell us how this can be better understood and addressed.
I am also concerned that Federal law enforcement have
actively usurped state authority. I want to know how this
occurs and how it must stop. Local sheriffs are elected and
held accountable by their constituents. Regardless of the party
in the White House, Federal officers' accountability only seems
to be present if there is adequate congressional oversight and
if congressional consequences exist for any impropriety. Even
so, it is nearly impossible to dismiss a Federal employee.
At some point, we will welcome input from the
Administration; but it is my understanding that they were
unwilling to send representatives from the sub-agencies we
requested to testify at this hearing. That type of callousness
is the very type that we must either stop, or defund the
noncompliant bureau, agency, or department.
Nevertheless, we will continue to dialog and look forward
to uncovering ways to bring accountability to Federal law
enforcement.
[The prepared statement of Mr. Gohmert follows:]
Prepared Statement of the Hon. Louie Gohmert, Chairman, Subcommittee on
Oversight and Investigations
Today we are discussing the accountability of law enforcement
within our land management agencies. I'd like to recognize from the
start the important work of hundreds of law enforcement employees from
the Department of the Interior to the U.S. Forest Service. These men
and women risk everything to protect our iconic landmarks, natural
resources as well as critical energy infrastructure. Just last year,
38-year-old Forest Service Officer Jason Crisp and his K-9 partner were
killed while pursuing an armed murder suspect. That was a horrible
tragedy and his sacrifice should be remembered by all of us.
Clearly there are many, many excellent officers out there just
doing their job day in and day out. Unfortunately, we have come to
learn of situations that place local law enforcement officers at odds
with their Federal counterparts.
I'd like to enter into the record an article from the Salt Lake
Tribune, published in October of 2014, entitled ``Utah to BLM: Rein in
Your Cops.'' The article begins, ``Public Enemy No. 1 for rural Utah
sheriffs just happens to be a fellow peace officer: Dan Love, the
Bureau of Land Management's special agent in charge.''
It may seem improbable that a single officer could become so
notorious, but hearings right here in this committee confirmed that the
BLM is able to ignore the authority of local sheriffs and other elected
officials without repercussions. One county commissioner described
their issues with BLM as ``bullying, intimidation and lack of
integrity.'' Appeals from the highest levels of the Utah state
government were met with open ears from bureau officials, but zero
action was taken. This particular officer continues to make new friends
and has popped up in the news again for his adoration of Choco Tacos
and demands for superstar treatment at outdoor hippie festivals.
We could easily conclude that this is just one rogue officer and
surely he'll be dealt with. But that isn't the case. If we have a
system that allows this to continue, then these accountability issues
will remain unchanged and repeated.
In fact, I have heard surprising stories from local authorities or
government officials in my district regarding abuses or the calloused
ignoring of the needs of local officials who have difficulty getting
needed cooperation from Federal authorities in charge of land within
their county.
Once we come to a better understanding of how these problems have
been able to persist, we can move to a suitable corrective action. We
have four witnesses today offering a variety of perspectives with
experience we value. From their testimony we will hear how something in
the implementation of this ``stove-piping'' of authority is foiling
responsive, efficient and accountable performance. I invite our
witnesses to tell us how this can be better understood and addressed.
I'm also concerned that Federal law enforcement have actively
usurped state authority. I want to know how this occurs and how it must
stop. Local sheriffs are elected and held accountable by their
constituents. Regardless of the party in the White House, Federal
officers' accountability only seems to be present if there is adequate
congressional oversight, and congressional consequences for any
impropriety. Even so, it is nearly impossible to dismiss a Federal
employee.
At some point we will welcome input from the Administration, but it
is my understanding they were unwilling to send representatives from
the sub-agencies we requested to testify at this hearing. That type of
callousness is the very type that we must either stop, or defund the
non-compliant bureau, agency, or department. Nevertheless, we will
continue to dialog and look forward to uncovering ways to bring
accountability to Federal law enforcement.
______
Mr. Gohmert. At this time I would like to call upon our
Ranking Member, Mrs. Dingell, for her opening statement.
STATEMENT OF THE HON. DEBBIE DINGELL, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF MICHIGAN
Mrs. Dingell. Good morning and thank you, Mr. Chairman.
I want to give my thanks to all the witnesses this morning
for taking the time and the trouble to testify, and I want to
give particular thanks to Sheriff Brown and Mr. Schoppmeyer for
their service.
Law enforcement within Federal land management agencies is
no easy task. Conservation law enforcement officers face
challenges that are significantly different than those faced by
non-conservation law enforcement. The breadth of the crimes
that they confront and the laws that they enforce are unlike
any other.
As the Chairman has raised, there may be some problems; but
we need to respect and understand the importance of what law
enforcement is doing in these conservation areas.
A study of the crimes confronted by the Forest Service law
enforcement officers found that they fall into three
categories. The first is urban-associated crime, which includes
arson, body dumping, gang activity, and other types of criminal
behavior.
The second is drug activity, like armed defense of
marijuana cultivation on Forest Service land, or
methamphetamine labs--that is always a hard word.
The third is violence perpetrated by members of extremist
and nontraditional groups, like satanic cults, survivalists,
and militia/supremacy groups. These groups are tough.
The law enforcement officers there protect the resources we
depend on every day and provide for public safety. While these
officers' mandates are unique, the officers and the work that
they do is under attack.
We will hear today about a proposal to weaken enforcement
mechanisms for the Lacey Act by decriminalizing it, despite the
use of illegally harvested plant or animal products, like
ivory, to fund terrorist groups.
Like I do every night before our hearings, I was doing my
late night study. The Chairman raised the issue of ``stove-
piping.'' So I learned last night that it was instituted after
years of pressure from watchdogs and Congress and was
implemented to make Forest Service law enforcement more
effective, fair, and independent.
So I want to make sure, as we are looking at it, that we
are fair and objective on all of it, while I recognize that
there may be issues.
And we will hear about the FOCUS Act, which would remove
the ability for the Fish and Wildlife Service and NOAA
enforcement officers to carry firearms.
The work performed by land management agency law
enforcement is just as challenging, just as important, and just
as dangerous as other law enforcement jobs. These Americans put
their lives on the line whenever they report for work in an
effort to protect us and our natural resources.
The Chairman mentioned Jason Crisp. I want to talk more in
detail about him. Before starting with the U.S. Forest Service
as a law enforcement officer in 2004, Jason Crisp served with
the McDowell County Sheriff's Office in North Carolina for 7
years. He developed a reputation as a selfless person who was
eager to provide assistance.
In 2014, Officer Crisp was investigating the case of a
couple found dead in their home. There was evidence of a
struggle and a missing vehicle. Police soon began to suspect
that the couple's son was the killer. Over 100 officers from
six agencies joined the manhunt. At about 3:00 p.m., the
suspect purportedly ambushed Officer Crisp and his K-9 partner.
He shot the dog and Officer Crisp, took Crisp's gun, and kept
running.
An Avery County Sheriff's Deputy, and troopers assigned to
Burke County who were near the shooting, attempted to save
Officer Crisp's life, but they were unable to.
Soon after, the suspect was found and refused to drop his
weapon. The suspect died of a self-inflicted gunshot wound.
U.S. Forest Service Officer Jason Crisp is survived by his
wife, Amanda and his sons, Garrett and Logan. He was 38 years
old.
I hope as we undertake these hearings that we will always
remember the contributions and sacrifices of our law
enforcement officers.
I yield back the balance of my time.
[The prepared statement of Mrs. Dingell follows:]
Prepared Statement of the Hon. Debbie Dingell, Ranking Member,
Subcommittee on Oversight and Investigations
Good morning and thank you, Mr. Chairman. I want to give my thanks
to all the witnesses for taking the trouble to testify today. And I
also want to thank both Sheriff Brown and Mr. Schoppmeyer for their
service.
Law enforcement within Federal land management agencies is no easy
task. Conservation law enforcement officers face challenges that are
significantly different than those faced by non-conservation law
enforcement. The breadth of crimes they confront and the laws they
enforce are unlike any other.
A study of the crimes confronted by Forest Service law enforcement
officers found that they fall into three categories. The first is
urban-associated crime, which includes arson, body dumping, gang
activity, and other types of criminal behavior. The second is drug
activity, like armed defense of marijuana cultivation on forest service
land, or methamphetamine labs. The third is violence perpetrated by
members of extremist and nontraditional groups like satanic cults,
survivalists, and militia/supremacy groups. They protect the resources
we depend on every day and provide for public safety.
While these officers' mandates are unique, the officers and the
work they do is also under attack.
We will hear today about a proposal to weaken enforcement
mechanisms for the Lacey Act by decriminalizing it, despite the use of
illegally harvested plant or animal products like ivory to fund
terrorist groups. We will hear about why we should remove a management
structure called stove-piping that was instituted after years of
pressure from watchdogs and Congress, and which was implemented to make
Forest Service law enforcement more effective, fair, and independent.
And we will hear about the FOCUS Act, which would remove the ability
for Fish and Wildlife Service and NOAA enforcement officers to carry
firearms.
The work performed by land management agency law enforcement is
just as challenging, just as important, and just as dangerous as other
law enforcement jobs. These Americans put their lives on the line
whenever they report for work in an effort to protect us and our
natural resources.
Before starting with the U.S. Forest Service as a law enforcement
officer in 2004, Jason Crisp served with the McDowell County Sheriff's
office in North Carolina for 7 years. He developed a reputation as a
selfless person who was eager to provide assistance.
In 2014, Officer Crisp was investigating the case of a couple found
dead in their home. There was evidence of a struggle and a missing
vehicle. Police soon began to suspect the couple's son to be the
killer. Over 100 officers from about six agencies joined the manhunt.
At about 3 p.m., the suspect reportedly ambushed Officer Crisp and
his K-9 partner. He shot the dog and Officer Crisp, took Crisp's gun
and kept running. An Avery County Sheriff's deputy and troopers
assigned to Burke County, who were near the shooting, attempted to save
Officer Crisp's life, but were unable. Soon after, the suspect was
found and refused to drop his weapon. He died of a self-inflicted
gunshot wound.
U.S. Forest Service Officer Jason Crisp is survived by his wife,
Amanda, and his sons, Garrett and Logan. He was 38 years old.
I hope we will always remember the contributions and sacrifices of
our law enforcement officers. I yield back my time.
______
Mr. Gohmert. I thank the Ranking Member very much for her
opening statement.
Now I will introduce the witnesses. We are very pleased
that you arrived here, and have done so voluntarily; and
obviously, you do not come for the big bucks because you do not
even get reimbursed. That is why we appreciate so much your
appearance here today, all four of you. Thank you.
First we have Sheriff Dave Brown of Skamania County,
Washington. We also have Mr. Russ Ehnes, who is the Executive
Director at the National Off-Highway Vehicle Conservation
Council. Next is Mr. Christopher Schoppmeyer, who is the Vice
President of Agency Affairs at the Federal Law Enforcement
Officers Association. And finally, we have Mr. Paul Larkin,
Jr., who is the Senior Legal Research Fellow with the Edwin
Meese Center for Legal and Justice Studies at The Heritage
Foundation.
Let me remind the witnesses that, under our Committee
Rules, oral statements are limited to 5 minutes. You have a
timer in front of you. Your written statements--I know that my
colleague and I both do late night work in preparation, and we
have read your statements. We are greatly appreciative of your
written statements, and those will be entered as part of the
record, regardless of whether you get that finished within 5
minutes or not. If you care to expand on that within your 5
minutes and bring up something that is not in the written
testimony, it will still be part of the record.
When you begin the light on the witness table will be
green. When you have 1 minute remaining, the yellow light will
come on, and when your time has expired, the red light comes
on. At that time it will be gaveled to complete.
So the Chair recognizes Sheriff Brown for your opening
statement. You are recognized for 5 minutes, Sheriff. Thanks
for being here.
STATEMENT OF DAVE BROWN, SHERIFF, SKAMANIA COUNTY, WASHINGTON
Sheriff Brown. Thank you, Chairman Gohmert, Ranking Member
Dingell, members of the committee.
I am here today to testify on behalf of the Western States
Sheriffs' Association and the more than 800 sheriffs in the 15
states that we represent.
The nearly 200 million acres of Federal forestland managed
by the U.S. Forest Service represents a national treasure of
incredible value, the treasure of natural beauty and resources
deserving sound management and protection. U.S. Forest Service
has been tasked with that management and protection to include
the dedicated law enforcement officers, or LEOs, who enforce
resource protection laws.
With over 28 years of law enforcement experience in
Skamania County, including 9 years patrolling the Gifford
Pinchot National Forest, I routinely worked with district
rangers and LEOs. The productive working relationships I
developed in the late 1980s and early 1990s changed in 1993
when U.S. Forest Service law enforcement investigations became
an independent entity under central direction from Washington,
DC.
This restructuring, commonly called the ``stove-pipe
effect,'' took place just 1 year prior to the implementation of
the Northwest Forest Plan. The effect of this over time has
served only to distract LEOs from their primary responsibility
of resource protection by shifting their focus to law
enforcement functions traditionally addressed by county
sheriffs.
Additional LEOs were added to patrol efforts. K-9 units and
radar enforcement capabilities were added. Traffic enforcement
off national forest system roads became common, and individuals
were often arrested on state warrants.
Funding also provided to sheriffs for cooperative law
enforcement contracts declined. It became evident the Forest
Service law enforcement was no longer focused on resource
protection. While Skamania County has no Bureau of Land
Management, or BLM, managed land, sheriffs across the western
states struggle with similar issues in witnessing the BLM
migration away from resource protection.
These actions were recognized by county sheriffs as being
outside the scope of authority and jurisdiction of both the
Forest Service and the BLM.
The failure of the ``stove-piping'' of Forest Service law
enforcement was the subject of a congressional hearing in 1998.
The issues we are discussing here today are the same issues
that were discussed without resolution 17 years ago.
There have, however, been some successes in the past 4
years. We began building stronger relationships with the Forest
Service. The Western States Sheriffs' Association has worked
together with the Director of Forest Service Law Enforcement
and Investigations to create a Memorandum of Agreement,
including a template when sheriffs are considering providing
state authority to an LEO.
In the agreement, the Forest Service acknowledges the
sheriff is the chief law enforcement officer in the county. As
such, the sheriff is accountable and responsible to the
citizens for promoting a law enforcement philosophy for their
county, including our public lands. County sheriffs, the
managers of Federal law enforcement agencies, and the public
deserve a positive working relationship and open lines of
communication.
I submit there are five immediate remedies to accomplish
this.
First, eliminate the stove-pipe structure of the Forest
Service law enforcement. Reintegrate the Special Agents in
Charge and the LEOs into the regional and local structure to
reconnect the Forest Service law enforcement with the county
sheriff and the lands they protect.
Two, create a local law enforcement council chaired by the
sheriff to include Forest Service and BLM representatives for
effective local oversight.
Three, review the Code of Federal Regulation and eliminate
language that assimilates state crimes or state statutes into
Forest Service and BLM enforcement.
Four, examine staffing levels of the Forest Service and the
BLM law enforcement agencies and align those levels to the
management activities on the lands they protect.
Five, expand cooperative law enforcement agreements with
the county sheriff.
While these hearings are important to expose the issues and
openly debate them, right now is the time for action. Now is
the time to take substantive steps to rebuild trust among
sheriffs and our Federal partners.
I urge this committee to examine all of the written
testimony. I am confident you will reach a course of action to
improve our public safety services for all citizens who live
near and/or visit our treasured national forestlands. It is
they we all serve.
Thank you for your time, and I am available for questions.
[The prepared statement of Sheriff Brown follows:]
Prepared Statement of Sheriff Dave Brown, Skamania County, Washington;
President, Western States Sheriffs' Association
Mr. Chairman, Ranking Member Dingell, and members of the committee:
my name is Dave Brown and I serve as the Sheriff in Skamania County in
Washington State.
I am here today to testify on behalf of the Western States
Sheriffs' Association, and more than 800 Sheriffs in the 15 states we
represent.
The nearly 200 million acres of Federal land managed by the U.S.
Forest Service represent a national treasure of incredible value. A
treasure that deserves sound management and resource protection.
The U.S. Forest Service has been tasked with that protection,
including the dedicated Law Enforcement Officers (LEOs) who enforce
resource protection laws.
Historically those LEOs were assigned to the District Ranger and
worked closely with local law enforcement, particularly the elected
county Sheriffs. My nearly 29 years of law enforcement experience
includes 9 years of patrolling the Gifford Pinchot National Forest in
Washington State, where I routinely worked with LEOs and district
rangers.
The productive working relationships I developed in the late 1980s
and early 1990s saw a dramatic change after 1993 when USFS Law
Enforcement and Investigations became an independent entity within the
Forest Service, under central direction from Washington, DC. This
restructuring has commonly been called the stove-pipe effect. The
result of this restructuring quickly created a disconnect with local
communities and, in essence, created a national police force.
The District Ranger and Forest Supervisor as well as the Regional
Forester no longer had budgetary authority, supervisory or operational
control over law enforcement activities on the forest. When this
happened, the local county Sheriff had no incentive to meet with the
District Ranger or Forest Supervisor to discuss operational objectives
for law enforcement on national forest system lands within the county
and expect any reasonable progress on addressing enforcement concerns.
The negotiation of cooperative law enforcement agreements was no longer
in the purview of the District Ranger as the stove-pipe provided that
the Special Agent in Charge (SAC) was solely responsible for this
effort. The SAC can often be responsible for oversight on multiple
national forests spread out over as little as two states and sometimes
across four to five states. The ability for a county Sheriff to have a
strong working relationship with the SAC became an impossible task for
most sheriffs due to distances between the Sheriff's Office and the
forest headquarters where the SAC is assigned.
This stove-pipe served only to distract LEOs from their primary
responsibility of resource protection by shifting their focus to other
policing functions best left to local law enforcement. As time
progressed through the 1990s and into the early 2000s, additional LEOs
were added to the patrol efforts of the USFS and funding that was
provided to Sheriffs for cooperative law enforcement contracts
continued to decline.
Over time, the USFS law enforcement and investigations division
began to add K-9 units and radar enforcement capabilities. Traffic
enforcement both on and off National Forest System roads became a
common occurrence. LEOs began seeking assistance from county Sheriffs
to house arrestees on Federal charges in the local jail. It became
evident in many counties across the West that the USFS law enforcement
component was no longer focused on resource protection and timber
related issues.
In some instances, LEOs began arresting individuals on state
warrants and transporting them to the local jail. These actions were
recognized by county Sheriffs as being outside the scope of authority
and jurisdiction of the USFS law enforcement component.
Most western states only recognize a Federal LEO to have authority
over Federal crimes on federally managed lands. It became apparent to
sheriffs in many jurisdictions that some USFS LEOs were generating a
multitude of citizen complaints. Those complaints were most often filed
with the Sheriff. The Sheriff, having no supervisory authority over a
Federal officer was obligated to pass the information on to a patrol
captain or SAC. In many cases, there was never a response back or any
apparent investigation into the actions of the LEO. I experienced this
specific scenario in Skamania County throughout the late 1990s into the
early 2000s. The point here is that there appeared to be no
accountability within the structure of the USFS law enforcement
component and no willingness to communicate with the local sheriff or
the community regarding the actions of the LEOs. As these actions
continued, citizens began to express concerns for their personal
safety, feeling as if they were being harassed and targeted. While
additional complaints were forwarded to the local supervisors and
sometimes directly to the Washington Office, in my particular case,
there appeared to be no desire to deal with the officers' actions.
This new order was, for all intents and purposes, a Federal police
agency attempting to patrol and enforce the Code of Federal Regulation,
a code that had been revised to assimilate state crimes in a manner
that mirrors those responsibilities mandated to the county Sheriff.
This failure of the `stove piping' of the USFS Law Enforcement and
Investigations was the subject of a congressional hearing in 1998. A
copy of that hearing has been submitted as a part of the written
testimony and supporting documents packet. The very issues we are
discussing today are the same issues that were discussed 17 years ago.
While I am aware the committee is seeking information from Sheriffs
regarding BLM law enforcement, my county has no BLM managed land. I
have, however, spent much time listening to Sheriffs across the other
western states regarding similar issues. There are examples out of the
state of Utah that illustrate a heavy handed approach by the BLM
rangers and Special Agents in more than one case. The tactics and
operations utilized in these cases go well beyond the boundaries of
decent, professional and appropriate conduct of any law enforcement
officer. There have been specific issues arising out of San Juan
County, Utah that eventually led to the deaths of three citizens of
that county. These were instances of suicide and one can argue that it
was the result of the manner in which the BLM approached the case and
how they interacted with those involved. These cases were related to
the closure of a trail in the Recapture Canyon area of San Juan County
Utah and an alleged artifacts theft case in San Juan County, Utah.
These cases deserve review by Congress and should well articulate the
lack of oversight and accountability of the part of the BLM law
enforcement.
There should be no question as a matter of state statute as to who
the Chief Law Enforcement Officer of the county is. The elected sheriff
is responsible for determining the law enforcement philosophy of the
unincorporated land mass of the county including our national forests
lands.
There can be no argument that there are some county Sheriffs who do
not recognize the USFS law enforcement as a legal and legitimate
entity. Some go as far as to dispute the constitutional basis that
allows this organization to exist. The Western States Sheriffs'
Association does not dispute the legitimacy of the USFS law enforcement
component but does hold the belief, based on state law, that the
Sheriff is the Chief Law Enforcement Officer of the county.
That belief is firmly held by our membership. The county Sheriff,
an elected representative of the people, is responsible for determining
the law enforcement philosophy as it relates to the protection of life
and property within their jurisdictional boundaries.
It should be stated that there have been many successes in the past
5 years. The Director of Law Enforcement and Investigations for the
USFS has genuinely reached out to the Western Sheriffs since 2011.
Together we have built a stronger working relationship with both the
Director and the Deputy Director. There has been an ongoing effort to
unite the Sheriffs across the West with the Special Agent in Charge
responsible for the Federal law enforcement activities on the public
lands in their county. It has been evident that recent complaints
regarding the actions of individual LEOs are being heard now and in
some cases there appears to be a concerted effort to address those
complaints. The Western States Sheriffs' Association worked together
with the Director to create a Memorandum of Understanding that provides
a template for Sheriffs to use when considering providing state
authority to a LEO. In the agreement, the USFS recognizes the Sheriff
as the Chief Law enforcement Officer of the county. There is language
that provides the ability to house Federal inmates at local jails and
to incorporate LEOs into the Sheriffs training programs.
This philosophy should extend to all policing efforts on federally
managed lands. This philosophy should be instilled into the leadership
of the USFS and the BLM. We cannot serve the county residents and
visitors who use our Nation's public lands when we are divided on the
philosophy, method, and manner in which we treat the people we serve.
Both county Sheriffs and the managers of Federal law enforcement
agencies deserve a positive working relationship and open lines of
communications. I submit there are a number of effective remedies that
must be considered:
1. The first of these remedies can be found in the recently signed
Memorandum of Understanding (MOU) between the Western
States Sheriffs' Association and the USFS Director of Law
Enforcement and Investigations. This document calls for the
creation of local Law Enforcement Councils (LECs). In this
model, the county Sheriff chairs the Council which is
comprised of adjoining county Sheriffs and local USFS law
enforcement leadership. These LECs provide the greatest
opportunity for open communication on a variety of issues
and all occurs at the local level where it stands the best
chance of being effective.
2. Eliminate the stove-pipe structure of the USFS LE&I. Reestablish
the operational structure that inserts the Special Agent in
Charge back under the supervision and direction of the
Regional Forester. At the same time, put the LEOs back into
the command structure of the local district ranger. By
reintegrating the SAC and the LEOs into the regional and
local structure, there will be a greater opportunity to
reconnect USFS law enforcement with the county Sheriff and
create the necessary local focus in order to conduct the
important work of protecting our treasured National
Forests.
3. Conduct a widespread review of the Code of Federal Regulation
currently in use by USFS and BLM law enforcement. Every
effort should be made to eliminate all language that
assimilates state crime or state statutes into USFS and BLM
enforcement. The enforcement of crimes against persons and
personal property crimes is, and should continue to be, the
primary role of the county Sheriff.
4. Examine the staffing levels of the USFS and BLM law enforcement
agencies. It is the belief of the Western States Sheriffs
that the LEO and Ranger positions are across the two
agencies could be reduced. The costs savings recognized
through the reduction should be distributed back to the
county Sheriff through the cooperative law enforcement
agreements. This additional funding would potentially allow
the county Sheriff a better ability to respond to and
investigate criminal activity on our public lands.
While it seems we have made progress in alleviating some concerns
of Western Sheriffs, we continue to be vigilant to ensure there is no
expansion of authority and that the USFS law enforcement continues to
recognize the authority and responsibility of the county Sheriff.
The Sheriff is chosen by the people of the county to serve as their
elected law enforcement representative. The people did not choose the
Forest Service or the Bureau of Land Management for this function. If
the local sheriff desires the assistance of the Federal law enforcement
officers, there is a mechanism in place to accomplish this. Sheriffs,
under state statute, have the authority to cross-deputize LEOs. As
mentioned earlier, this can also be accomplished through MOUs such as
the one in place now.
The health of our national forests has been on the decline for the
past 20 years. Since the implementation of the Northwest Forest Plan
the annual timber harvests on National Forest lands in the Pacific
Northwest has dropped dramatically. This effect has led to a decline in
local economies, a reduction in local and state government services,
and has had a severe impact on public safety services in many counties
across the West.
Is it merely a coincidence that in 1993 the stove-pipe structure
for USFS Law Enforcement was created? Perhaps it was intentional that
this was done in order to protect the jobs of the law enforcement
officers within the agency. Traditionally funded through timber
receipts and general appropriations, the law enforcement division was
now its own entity and no longer dependent on timber harvests. This
would prove to be beneficial for the LE&I division considering the
decline in timber funds after the Northwest Forest Plan was
implemented. Since that time, the ability of the Forest Service to
carry out its mission has declined and many positions have been lost
due to lack of funding. At the same time, the law enforcement division
has expanded, creating more positions and increasing their budget for
many years.
The original function of resource protection and timber related
criminal investigations were no longer the priority due to decline in
management of our national forests. However, the desire to morph into a
traditional police force has been realized and perpetrated in counties
across the West. It is possible this stove-pipe structure was
intentionally carried out to preserve and grow the USFS law enforcement
component during a time when the normal, recognized functions of the
agency were and have continued to suffer.
While these hearings are important in order to expose the issues
and openly debate them, right now is a time for action. Now is the time
to take a substantial step to rebuild trusts among Sheriffs and our
Federal partners. Now is the time to truly evaluate the levels of
enforcement capabilities of our national forests law enforcement
providers and to finally realize that the county Sheriff is in the best
position, from a matter of law, to effectively deal with crime on our
Nation's forest. I urge this committee to take the time to review all
of the written testimony. I am hopeful that you will recognize and
appreciate our position and reach out to our leadership and the USFS
law enforcement leaders. By doing so, we will continue to have
opportunities to dialog with each other and hopefully reach consensus
regarding a course of action that improves our public safety services
to citizens who recreate and visit our national forestlands.
Attachment
*****
Supporting Documentation Provided by Kane County Utah Sheriff Tracy
Glover
I am the Sheriff of Kane County Utah. I have about 4,000 square
miles that borders Arizona to the south. I have about 90 percent
Federal land in my county including the Dixie National Forest, part of
Bryce Canyon National Park, Zion National Park, Glen Canyon National
Recreation Area and the Grand Staircase Escalante National Monument. I
regularly work with Federal law enforcement including the U.S. Forest
Service, the BLM and the National Park Service. I have been in Law
enforcement for the past 18 years. I took office as the elected Sheriff
January 5, 2015 after serving as the Undersheriff for Sheriff Lamont
Smith for 15 years. The comments shared in this document are my
opinions based on my own personal experiences.
I could tell many sad war stories but I think it is more useful to
discuss the broad issues in order to solve the broad problem.
I think it is important to start with the basics in Federal law
enforcement. We must always discuss jurisdiction separate from
authority.
We must separate the agencies instead of making the common mistake
of lumping them all together under the ``Federal law enforcement''
label.
Authority
The USFS, BLM and National Park Service each have law enforcement
divisions that are unique and different in their roles and
responsibilities. Each Agency has been created by some piece of
enabling legislation that lays out the legislative intent of Congress
at the time of their creation. Each respective piece of enabling
legislation is where the individual agency draws their unique law
enforcement authority.
Jurisdiction
The National Park Service works under three types of jurisdiction:
Exclusive (Yellowstone, Yosemite, etc.); Concurrent (Grand Canyon,
etc.); and Proprietary (Zion National Park, Bryce Canyon National Park,
Glen Canyon NRA, etc.).
The USFS and the BLM only work under proprietary jurisdiction,
which is limited in scope to the basic jurisdiction of a landowner. As
opposed to exclusive and concurrent jurisdictions, the scope of
proprietary Jurisdiction does not include Federal criminal enforcement
or prosecution and does not allow the assimilative crimes act (18
U.S.C. 13) to be used for the Federal prosecution of assimilated state
crimes.
It is important that sheriffs, legislators, upper level managers
and cabinet officials understand that not all Federal agencies are
created equal. Federal agency philosophies must be adjusted to fit the
type of authority and jurisdiction each respective agency is working
under.
Because I am aware of your vast knowledge of USFS practices, I am
going to focus my comments toward the BLM.
The Problem(s)
Over the past 15 years, the law enforcement philosophies of the BLM
seem to be transforming at a rapid pace. I would only be speculating if
I were to state where the changes are being driven from, but there is
no question that there have been marked changes. One explanation might
be a response to the designation of large tracts of land under the
BLM's management as National Monuments. Another might simply be a new
and more aggressive philosophy that arrived with personnel changes in
the upper levels of law enforcement within the BLM. Either way, we as
sheriffs have good reason to be concerned with the duplication of our
traditional duties. What used to be a routine call to the county
sheriff is often a call to a Federal LEO. What used to be a handful of
friendly Federal rangers protecting natural resources has now turned
into thigh-rigs, riot gear, Federal K-9 units and tactical teams with
POLICE written down their sleeves and on their backs. Line managers are
now encouraged to only call the Sheriff as a last resort and to rely on
rangers as much as possible.
Across Utah, successful long-term law enforcement contracts were
cut with no reasonable explanation. We were told that the BLM State
Director wanted to keep the contracts in place, as did the local BLM
managers, the sheriffs and county commissioners. We were told that the
decision to cut the contracts was made by the Special Agent in Charge
and were not given any opportunity to revise practices or review the
scope of work.
Since Bill Woody resigned as the director of law enforcement for
the BLM, trust between rural Utah sheriffs and BLM LEO leaders has
eroded significantly. There have been a series of botched law
enforcement raids, protest events and public meetings that have
undermined the Sheriff's role in his community all across southern Utah
and Nevada. There are many solid officers that work under the BLM, USFS
and NPS umbrella. Public trust for the men and women that serve in BLM
law enforcement is at an all time low. Sheriff's are constantly being
urged to step up and exercise our authority as the lead law enforcement
agent in the county. The aggressive change in philosophy on the Federal
level continues to cause state, local and Federal relationships to
struggle. And the sad thing is that it does not have to be this way.
The Solution
If possible, we must find our way back to a place where the Federal
agencies have unwavering confidence in their local sheriff. I often
remind the folks at my local BLM office that I am their sheriff too. We
must convince the Federal LEO leaders that we are not a threat to them
but instead we are passionate about fulfilling our statutory
responsibilities as the County Sheriff. We are proud of what we do and
we want them to be proud to be forest rangers, park rangers and BLM
rangers. Resource protection is what they signed up for. It should not
feel degrading for them to pass along law enforcement duties to us.
Their reluctance to rely on us is a learned behavior. As sheriffs we
are willing to work together in partnerships as long as we all respect
the traditional law enforcement roles that have been successful for
hundreds of years. The philosophy of BLM law enforcement should be
adjusted from the aggressive and confrontational style that is becoming
more common, to more of a focus back on resource management.
Coordination and cooperation with the local sheriff in all law
enforcement matters should be the ultimate goal and Federal LEO
personnel should be made to feel comfortable in doing so. Line managers
should also be encouraged to coordinate and cooperate with their local
sheriff regarding needs and concerns that exist in their respective
management areas. Contracts for additional local law enforcement should
be reviewed and offered where appropriate, effective, efficient and
desirable. The intent of Congress in FLPMA to achieve maximum feasible
reliance on local law enforcement is pretty clear. This concept should
be the shared desire of sheriffs and Federal agencies alike.
It has been my experience that when this model is followed,
problems cease to exist and progress is sure to follow. I have never
been more frustrated than when my BLM contract was cut and my local
manager was not sure whether he could still call me or not. It took
years and great effort to develop the successful, effective
relationship that existed and only one poor decision to call it into
question.
What we need is simple shift in the aggressive philosophy and newly
established practices of Federal law enforcement personnel accompanied
by some good old-fashioned effort on the part of the county sheriffs.
Sheriff Tracy Glover
Kane County Utah
Additional Supporting Material for the Record; Submitted on Behalf of
Sheriff Tracy Glover, Kane County, Utah
When I mentioned ``an aggressive change in philosophy on the
Federal level continues to cause state, local and Federal relationships
to struggle'' I was referring to both the appetite for expansion within
BLM law enforcement as well as specific experiences we have shared over
the past several years. It seems that the goal is to have enough BLM
law enforcement to handle POLICE issues on public lands without the
need to involve the local Sheriff. I believe it is mandatory under the
rules of FLPMA that the BLM ``achieve maximum feasible reliance on
local law enforcement'' and this concept is what I would like to get
back to.
Over the past 15 years, the management of BLM lands has taken on a
much different look in Southern Utah and Northern Arizona. As national
monuments have been created and resource and travel management plans
have been amended, closures and restrictions have been steadily
increasing. Tensions have also increased as people feel they are losing
their access and heritage. Counties have pursued litigation to protect
rights of way which has created the appearance of an adversarial
relationship between entities.
Through all of this, my BLM experience on a local level has been
mostly positive. Somewhat surprisingly, we have managed to maintain a
very successful law enforcement contract with local BLM officials. We
have been very responsive to their needs and they have developed great
confidence in the Sheriff's Office. Even with that, there have been
times during the contract years that BLM law enforcement seemed
threatened by our ability to work with our local managers. What was
once a relaxed relationship based on a level of respect for the Office
of Sheriff shifted to a strained relationship with BLM law enforcement
management.
Example:
On one occasion, I was made aware of a OHV protest and counter
protest that was to occur on the Grand Staircase Escalante National
Monument (GSENM) in Kane County. After contacting the leaders of both
sides and in the spirit of coordination, cooperation and mutual
respect, I contacted the GSENM office in Kanab. I had short notice as
the ride was set for Saturday morning. I set up a meeting with the
monument manager and upper management as well as law enforcement
officials on the previous Thursday. The meeting was joined
telephonically by officials from the BLM State Office. I informed the
group of the intent of both sides of the protest. I told them of my
meetings with both leaders and that I had laid out ground rules to keep
the conflict peaceful. I was completely forthcoming with them and asked
that they hold back the BLM law enforcement presence as I was
assembling a large contingent of deputies to handle any problems and
conflicts that might arise. Everyone at the table and on the phone
agreed that this would be the proper approach agreeing that adding BLM
law enforcement may escalate the situation.
By the next day, I received a phone call from a BLM law enforcement
official stating that the U.S. Attorney wanted them to document the
activity at the protest and stating that they would have a few plain
clothes investigators present with cameras. I thought this was
reasonable and agreed that we would watch for them and work with them
as needed. Then Friday evening at about 9:00 p.m., I received a call
from a BLM investigator informing me that they had changed their minds
and that they were going to have a large contingent of uniformed BLM
rangers present for the protest. I felt completely undermined and
wished I had never contacted the BLM in the first place. As Saturday
morning came, BLM rangers and investigators showed up. Some of them
were wearing tactical gear with POLICE written down their sleeves and
across their backs. At least one of them was wearing his handgun in a
tactical thigh holster with many extra magazines exposed. All were
holding cameras and photographing each protestor as they passed on the
road. It was then that I first asked myself, when did the BLM rangers
become the POLICE?
There have been a few other recent examples of BLM law enforcement
officers gearing up in tactical gear and taking POLICE action. Some of
these have been highly publicized. There are many BLM law enforcement
rangers that I have worked closely with and have great respect for.
These officers understand their role in the system and respect the
other disciplines that are in place. I continue to be concerned that
the selection and training processes employed by the BLM is now
centered around a more hardcore, tactically capable, police officer
rather than a friendly ranger who's primary reason for signing up was
to protect the resource managed by the agency.
Relationships have remained solid between my office and local land
managers while strained with BLM law enforcement leaders. At one point,
about 3 years ago, the BLM elected to discontinue all law enforcement
contracts in Utah. There is much speculation about why this happened
but the bottom line is that it was a very unfortunate move. BLM
managers have complained about the lack of contracts, Sheriff's have
complained, County Commissioners have complained as well as state
elected officials. For me, the contracts were much more than a quality
service for a discounted fee. The contracts represented the ability for
the BLM to rely on the local Sheriff for law enforcement services and
that is just what they accomplished. Shortly after cutting the
contracts, the BLM expanded their law enforcement division to include a
mid level law enforcement regional manager.
I would like to see the law enforcement leadership within the BLM
shift their philosophy. I would like to get back to a place where they
recognize the sheriff as the law enforcement official in the county. I
would like to see BLM law enforcement leadership genuinely come from a
position of support for the County Sheriff and follow the direction in
FLPMA in achieving maximum feasible reliance without feeling like it
threatens their position. I would like to see less of a tactical, hard
core BLM officer hired and trained but instead, a friendly ranger that
knows he/she can call on the Sheriff to provide whatever level of law
enforcement is needed at any given time. Every sheriff has access to
the tactical resources and technical assets that may be required to
handle any law enforcement incident within our respective counties. We
are happy to step up and do our jobs even when it is awkward.
Sincerely,
Sheriff Tracy Glover,
Kane County Sheriff's Office.
*****
The following item was submitted by Sheriff Brown for the record and
will be retained in the Committee's official files:
-- Transcript of June 23, 1998 Oversight Hearing on Forest Service
Law Enforcement, Subcommittee on Forest and Forest Health
______
Mr. Gohmert. Thank you very much, Sheriff. I appreciate
that statement.
At this time we will now hear from Mr. Ehnes. You are
recognized to testify for 5 minutes, sir.
Thank you.
STATEMENT OF RUSS EHNES, EXECUTIVE DIRECTOR, NATIONAL OFF-
HIGHWAY VEHICLE CONSERVATION COUNCIL, GREAT FALLS, MONTANA
Mr. Ehnes. Mr. Chairman, Ranking Member, and members of the
committee, thank you for the opportunity to testify on the
accountability, policies, and tactics of law enforcement within
the Department of the Interior and the U.S. Forest Service.
My name is Russ Ehnes, and I am the Executive Director of
the National Off-Highway Vehicle Conservation Council, or
NOVCC. We are a 501(c)(3), nonprofit, educational foundation.
We have a 25-year history of working in partnership with the
U.S. Forest Service to improve the management of off-highway
vehicles' opportunities nationwide.
Through that period, NOVCC has conducted dozens of off-
highway vehicle management workshops across the Nation in every
Forest Service region. We have also published a book entitled,
Management Guidelines for Off-Highway Vehicle Recreation; and
we will soon release a comprehensive off-highway vehicle trail
design, construction, maintenance and management guidebook.
The common theme in all of these workshops and publications
is the ``four E's,'' and the ``four E's'' are engineering,
education, enforcement, and evaluation. The concept is simple.
If managers apply proper engineering to trails and facilities,
educate the public about how to use them responsibly, use
enforcement when needed to address compliance issues, and
evaluate the results and make adjustments, then OHV use will be
successfully managed, sustainable, and fun.
The ``four E's'' are a simple and proven technique, and it
has resulted in high quality, sustainable off-highway vehicle
recreation opportunities across the Nation.
NOVCC is a strong proponent of enforcement, which is one of
the ``four E's'' and one of the most important tools in the
land manager's toolbox. Enforcement is critical not only for
compliance, but is also an important educational tool. Not
every encounter with the public results in a citation, nor
should it.
Enforcement also contributes to visitor safety and to
visitor sense of security while recreating on public lands. For
the off-highway vehicle community, issues arise when the Forest
Service supervisor and the district rangers cannot use
enforcement to augment their management programs.
My personal example is similar to examples that NOVCC hears
about across the country. I am currently the President of the
Great Falls Trail Bike Riders Association, or GFTBRA. We have a
very robust and successful partnership with the Lewis and Clark
National Forest. GFTBRA contributes hundreds of hours of
volunteer work every year, has a dozen certified sawyers, and
employ two full-time seasonal workers to maintain trails. We've
published over 80,000 maps in partnership with the U.S. Forest
Service. The result is one of the best managed trail systems in
the country.
In spite of these efforts, we still have compliance issues
on holiday weekends in several locations. The few people
causing the problems tend to be less involved in clubs. They're
typically very casual users who show up once or twice a year on
a holiday weekend and ride near campgrounds illegally. We know
where they will be. We know when they will be there, and we
know what they will be doing. Several years ago we asked the
Forest Supervisor for help. We asked him to have the
enforcement officers visit three key areas at key times.
He agreed that the timing was right and that the need for
enforcement was critical, but could not promise that it would
happen since he was not sure that this would be the top
priority for his law enforcement person. He could only ask to
see if it was the top priority of his LEO.
I mentioned we have a very strong partnership with the
Lewis and Clark National Forest. Several years ago, we had a
GFTBRA sponsored trail ride that was permitted in the Little
Belt Mountains. At those rides, we inspect each and every
vehicle to make sure they are in compliance with state sound
limits, spark arresters, and to make sure that each vehicle is
registered with its OHV decal. We also require the participants
to wear helmets even though it is not required by state law.
Unbeknownst to us at that ride, and also unbeknownst to the
recreation planner that we had worked with to coordinate the
event, the U.S. Forest Service LEO set up a check station on a
route leading into and out of the event. He did not issue any
citations. Everyone was legal. However, the level of trust that
we had worked to build with the Forest Service was damaged.
Many of the riders wondered, ``Why didn't the LEO just stop at
our staging area to check us? '' Many riders felt ambushed.
The issue is pretty simple as I see it. Forest supervisors
are charged with managing national forests, and one of the most
important tools in their toolbox is not dependably at their
disposal. While cooperation between the supervisors and the law
enforcement officer is generally the rule, it is the exception
that causes problems for our community.
[The prepared statement of Mr. Ehnes follows:]
Prepared Statement of Russ Ehnes, Executive Director, National Off-
Highway Vehicle Conservation Council (NOHVCC)
Mr. Chairman, Ranking Member and members of the committee, thank
you for this opportunity to testify on the Accountability, Policies,
and Tactics of Law Enforcement within the Department of the Interior
and the U.S. Forest Service.
My name is Russ Ehnes and I'm the Executive Director of the
National Off-Highway Vehicle Conservation Council or NOHVCC. NOHVCC is
a 501c3 non-profit educational foundation with a 25-year history of
working in partnership with the U.S. Forest Service to improve
management of off-highway vehicle opportunities nationwide. Through
that period NOHVCC has conducted dozens of Off-Highway Vehicle
Management Workshops across the Nation in every Forest Service Region.
We have also published a book entitled, Management Guidelines for OHV
Recreation and will soon release a comprehensive OHV trail design,
construction and maintenance guidebook.
The common theme in all these workshops and publications is the
``four E's,'' which are Engineering, Education, Enforcement, and
Evaluation. The concept is simple: if managers apply proper engineering
to trails and facilities, educate the public about how to use them
responsibly, use enforcement when needed to address compliance issues,
and evaluate the results and make adjustments, OHV use will be
successfully managed, sustainable and fun. The ``four E's'' are simple
and proven and have resulted in high-quality, sustainable OHV
opportunities across the country.
NOHVCC is a strong proponent of enforcement, which is one of the
``four E's'' and one of the most important tools in the land manager's
toolbox. Enforcement is critical not only for compliance but is also an
important educational tool. Not every encounter with the public results
in a citation, nor should it. Enforcement also contributes to visitor
safety and the visitor's sense of security while recreating on our
public lands.
For the OHV community, issues arise when the Forest Supervisor and
District Rangers can't use enforcement to augment their management
programs. My personal example is similar to other examples that NOHVCC
hears about across the country.
I'm currently the President of the Great Falls Trail Bike Riders
Association or GFTBRA. We have a very robust and successful partnership
with the Lewis and Clark National Forest. GFTBRA contributes hundreds
of hours of volunteer work, has a dozen certified sawyers, employs two
full-time seasonal workers to maintain trails, and publishes maps in
partnership with the USFS. The result is one of the best managed trail
systems in the country.
In spite of all these efforts, we still have compliance issues on
holiday weekends in several locations. The few people causing the
problems tend to be less involved in clubs. They are typically casual
users who only ride once or twice a year on holiday weekends and ride
near campgrounds illegally.
We know where they will be, we know when they will be there, and we
know what they will be doing. Several years ago we asked the Forest
Supervisor for help. We asked him to have the enforcement officers
visit three key areas at key times. He agreed that the timing was right
and that the need for enforcement was critical but couldn't promise
that it would happen since he wasn't sure that this would be the top
priority for his law enforcement people. He could only ask to see if
his top priority was also the top priority of the Law Enforcement
Officers.
As I mentioned, GFTBRA has a strong partnership with the Lewis and
Clark National Forest. Several years ago GFTBRA sponsored a permitted
trail ride in the Little Belt Mountains. We inspect each vehicle for
sound limit and spark arrester compliance and to be sure each vehicle
has an OHV decal. We also require helmet use even though it is not
required by law. Unbeknownst to us and the recreation planners we
worked with to coordinate the permit and event, the USFS Law
Enforcement Officer set up a check station on a route leading into and
out of the event. He issued no citations. Everyone was legal. However,
the level of trust we had built with the local Forest Service managers
was damaged. Riders wondered ``why the LEO wouldn't just stop at our
staging area to check us? '' Many riders felt ``ambushed.''
The issue as I see it is pretty simple. Forest Supervisors are
charged with managing our National Forests and one of the most
important tools in their toolbox is not dependably at their disposal.
While cooperation between the Supervisors and the Law Enforcement
Officers is generally the rule, it is the exception that causes
problems for the OHV community.
______
Mr. Gohmert. Thank you. I appreciate your testimony.
At this time we will hear from Mr. Schoppmeyer. You are
recognized for 5 minutes for testimony.
STATEMENT OF CHRISTOPHER SCHOPPMEYER, VICE PRESIDENT FOR AGENCY
AFFAIRS, FEDERAL LAW ENFORCEMENT OFFICERS ASSOCIATION,
WASHINGTON, DC
Mr. Schoppmeyer. Thank you, Chairman Gohmert, Ranking
Member Dingell, and members of the Subcommittee on Oversight
and Investigations.
Good morning, and thank you for the opportunity to provide
testimony relative to this hearing.
My name is Chris Schoppmeyer. My retirement last year
marked 34 years of service as a Federal law enforcement
officer. My service to the country included time in the U.S.
Fish and Wildlife Service as a wildlife inspector and refuge
law enforcement officer and as Special Agent within NOAA,
National Marine Fishery Service, Office of Enforcement.
I also served in local government for 25 years as a
conservation commissioner and then chairman of the town's
Forensic Oversight Committee for the town of Newmarket, New
Hampshire.
This provides me with decades of experience with local
government issues and conservation issues. I understand and can
talk about the Federal land use and law enforcement issues from
both Federal and local government perspectives.
In addition to my government work, I serve as the Vice
President for Agency Affairs for the Federal Law Enforcement
Officers Association, where I created the Federal Law
Enforcement Officers Association Environmental and Natural
Resource Working Group composed of all land management agencies
in the Departments of the Interior and Agriculture, as well as
the Environmental Protection Agency and the NOAA Fishery
Service Office of Enforcement. This working group was created
to address agency and legislative issues specific to
nontraditional law enforcement.
With regards to my testimony, I am going to address three
points that directly and adversely affect our members who are
Federal law enforcement officers from the Forest Service, BLM,
the U.S. Fish and Wildlife Service, National Park Service, and
the Environmental Protection Agency, Criminal Investigation
Division.
The first issue I will address is the need for expanded use
of off-highway recreational vehicle use on our national forests
and other public lands. The use of the OHRVs has skyrocketed in
recent years to include the use of seasonal machines, such as
snowmobiles. This increase has been documented on both state,
county, and local lands, as well as private lands.
In many states you must attend and successfully pass the
mandatory OHRV course before you can legally operate an OHRV on
any lands. OHRVs provide access to environmentally sensitive
and designated wilderness tracts that are set aside to protect
flora and fauna species that are in decline or at risk of
becoming imperiled or extinct.
The use of checkpoints applies to all OHRV users,
regardless of their being permitted or not. The fact is that
the use of the checkpoint is not limited to just the permit; it
involves checking for proper safety equipment, awareness of
regulations specific to the area, and safe operation of the
OHRV for the protection of the rider and the public in the
area. This could include detecting individuals who may be
operating an OHRV or snowmobile under the influence of alcohol
or narcotics.
Expansion of OHRVs on our national forests and other public
lands presents other problems for the scarce number of Forest
Service officers, whose uniformed officer numbers have
decreased from 750 FTEs to less than 450 officers, according to
senior managers of the Forest Service LE&I.
The cultivation of marijuana groves in remote locations by
DTOs, namely the Mexican cartel and other elements of organized
crime, have significantly increased over the past decade, with
evidence of marijuana groves being discovered as far north as
the Upper Peninsula of Michigan.
The expanded use of OHRVs is already negatively impacting
both public and private lands. I cite my home state of New
Hampshire where OHRV regulations are enforced by conservation
officers of New Hampshire Fish and Game. Despite the
requirement of successful completion of the OHRV course, the
number of fatalities increases and compliance is still an
issue.
The second issue I will discuss just briefly is how
dangerous conservation law enforcement is. Conservation law
enforcement officers are nine times more likely to be assaulted
with a dangerous weapon than traditional police officers. I
only have to cite the two examples that the Ranking Member
already did; and for the sake of time, I will only briefly
mention that Officer Jason Crisp and his K-9, Maros, were
brutally murdered in North Carolina.
The same on January 1, 2012. The National Park Service Law
Enforcement Ranger Margaret Anderson was shot and killed while
attempting to stop a fleeing suspect in Mount Rainier National
Park. Unbeknownst to her, he was already wanted for serious
felony crimes in the Seattle, Washington area.
The last point that I would like to discuss is on the
regulations. I will address the premise that the Forest Service
regulations do not require intent when violating, and result in
over-criminalization of these regulations. Whether knowingly or
unknowingly violating Forest Service regulations is the basis
for enforcement action, it is usually based on the facts at
hand, observations made, previous violation patterns, and the
discretion of the Forest Service officer as to the level of
action imposed.
The majority of regulatory offenses are petty in nature,
but can range from a verbal warning to an arrest in the most
extreme cases.
What I would suggest here, Mr. Chairman, is that--in my
part, in the eastern side of the United States, we have very
good relations between Federal, state, county, and local. I
cite the other day a carry-out by New Hampshire Fish and Game
in the White Mountain National Forest where we had the
cooperation of the Forest Service, the Carroll County Sheriff's
Department, and Pinkham Notch Rescue Squad. We had all of these
local volunteers and, I have to say, that it is really
astounding to me that we have such problems out West.
That concludes my testimony and I'm happy to take any
questions you have. Thank you, sir.
[The prepared statement of Mr. Schoppmeyer follows:]
Prepared Statement of Chris J. Schoppmeyer, Vice President for Agency
Affairs, Federal Law Enforcement Officers Association
Chairman Gohmert, Ranking Member Dingell, and members of the
Subcommittee on Oversight and Investigations, good morning and thank
you for the opportunity to provide you testimony relative to this
hearing.
My name is Chris Schoppmeyer and I am the Federal Law Enforcement
Officers Association, Vice President for Agency Affairs. I have served
in this position as a National Officer for 7\1/2\ years. During my
tenure I created the FLEOA Environmental & Natural Resources Working
Group composed of all the Land Management agencies in the Department of
Interior, as well as the Environmental Protection Agency and NOAA
Fisheries Service, and the U.S. Forest Service within the Department of
Agriculture. This Working Group was created to address agency and
legislative issues specific to non-traditional law enforcement.
I mandatorily retired at age 57 in February of 2014, after having
served for 33\1/2\ years in Federal fisheries & wildlife law
enforcement with both the U.S. Fish & Wildlife Service and NOAA
Fisheries Service. I also served in local government of 25 years as
Conservation Commissioner and then Chairman of the Forensic Oversight
Committee for the town of Newmarket, New Hampshire, which provides me
with decades of experience in local government conservation issues. I
understand and can talk about Federal land use and law enforcement
issues from both the Federal and local government perspectives.
Concerning my testimony, I am going to address several points that
directly and adversely effect our members from the U.S. Forest Service,
Bureau of Land Management, U.S. Fish & Wildlife Service, National Park
Service and the Environmental Protection Agency.
The first issue I will address is the use of Off High Recreational
Vehicles (OHRV) on our National Forests and other public lands. The use
of OHRVs has sky rocketed in recent years to include the seasonal use
of snowmobiles. This increase has been documented on both state, county
and local lands as well as private lands. In many states you must
attend and successfully pass a mandatory OHRV course before you can
legally operate an OHRV on any lands. OHRVs provide access to
environmentally sensitive areas and designated wilderness tracts that
are set aside to protect species of flora and fauna that are in decline
or at risk of becoming imperiled or extinct.
As a regular method employed to ensure the safety of all public
land participants, the use of checkpoints applies to all OHRV users,
regardless of their being permitted or not. The fact is that the use of
a checkpoint is not limited to just the permit, it involves checking
for the proper safety equipment, awareness of regulations specific to
the area and safe operation of the OHRV for the protection of the rider
and the public in the area. This could include detecting individuals
who maybe operating an OHRV or snowmobile under the influence of
alcohol or narcotics.
Expansion of OHRVs on National Forests and other public lands
presents other problems for the scarce number of Forest Service
Officers, whose uniformed officer numbers have been decreased from 750
FTEs to less than 450 officers, according to senior managers at the
Forest Service LE&I.
The cultivation of marijuana groves in remote locations by Drug
Trafficking Organizations (DTO) namely the Mexican cartel and other
elements of organized crime has increased significantly over the past
decade, with evidence of marijuana groves being discovered as far north
as the Upper Peninsula in Michigan. OHRVs provide easier access to
these remote locations and present detection problems for the Forest
Service as well as the Border Patrol and Customs & Border Protection
agents. Many times these DTO are heavily armed and can present not only
a danger to law enforcement but also the unsuspecting public who could
be recreating in the area.
The expanded use of OHRVs is already negatively affecting both
public and private lands. I will cite my home state of New Hampshire
where OHRV regulations are principally enforced by the Conservation
Officers of the New Hampshire Fish and Game Department. Despite the
requirement for successful completion of the mandatory OHRV course, the
number of OHRV fatalities has steadily increased. In some areas of the
state, Conservation Officers spend over 50 percent of their time
enforcing OHRV regulations at the detriment of fish and wildlife
protection.
There is no reason to believe that these problems would not be the
same on Forest Service and other national lands.
With the scarce funds available for the Forest & National Park
Service's legislatively mandated law enforcement programs, both
agencies struggle to accommodate the public's needs while protecting
the natural resources they are entrusted with. Congress needs to look
at better funding the land management agencies so they can effectively
manage their programs while protecting the visiting public and the
natural resources for everyone to enjoy.
On another issue entirely, there are some who question the Forest
Service and other land management agencies exceeding their authority,
and question the need for appropriate arms and equipment. This same
argument was fought in the Congress before through the Fear of Over-
Criminalization and Unjust Seizures legislation, also known as the
FOCUS Act. Embedded in the legislation was an attempt to disarm the two
agencies that principally enforce the Lacey Act, that being the U.S.
Fish & Wildlife & NOAA Fisheries Service's Offices of Law Enforcement.
On behalf of FLEOA's FWS and NOAA members, we introduced documents in
the Congressional Record justifying the need for these agents being
armed. This critical truth remains. Removing criminal law from public
land regulation enforcement will cripple the good guys in the fight to
keep visitors safe, and our greatest national treasures accessible to
all.
In 1984, the U.S. Fish & Wildlife Service, Law Enforcement Division
sanctioned and published a study on the Assault Rate on Conservation
Law Enforcement Officers in the United States. The study was supported
by the Federal Bureau of Investigation as part of their Uniformed
Crimes Statistics Program and completed under the direction of then
Fish & Wildlife Chief of Law Enforcement, Clark Bavin. Since then the
study has been updated several times with the National Park Service
annually publishing assault rates on their Law Enforcement Park
Rangers.
Non-traditional law enforcement officers in the state and Federal
Government were nine times more likely to be assaulted with a dangerous
weapon then traditional police officers, who focus primarily is on the
enforcement of laws and regulations involving the protection of life
and property.
The study suggested that the assault rate could be tied to state
and Federal non-traditional law enforcement officers having contact
with recreational hunters and commercial and recreational fishers who
possess firearms and edged tools and knives. This is complicated by
other factors including felons in possession of a firearm while
hunting, people homesteading in remote locations on national lands and
DTO on public lands and the high seas.
In Federal law enforcement, the National Park Service Law
Enforcement Rangers continue to have one of the highest assault rates
amongst the 65 Federal law enforcement agencies represented by FLEOA.
These statistics in part lead to increased specialized training for
non-traditional law enforcement agencies who have to play a duel role
when interacting with the recreating public. They must be Ambassadors
who are expected to always be friendly and courteous while maintaining
a professional image and demeanor.
Many times news accounts paint non-traditional law enforcement
officers as being over-dressed and armed with heavy weaponry while
executing arrests or search warrants. It is a reality in today's
society that ALL law enforcement officers receive standardized training
in areas such as the use of firearms and defensive training.
Standardized training is also cost effective as many Federal law
enforcement agencies don't have the manpower or material resources to
carry out their missions.
There are instances in high-risk situations where non-traditional
law enforcement officers may carry automatic weapons and employ other
specialized tools that they normally would not carry in the performance
of their duties. This also includes the wearing of agency issued raid
jackets and clothing for identification purposes and officer safety
concerns. This is not only done for liability reasons but for when
agencies create task forces or conduct inter-agency operations. Sharing
of assets is essential to the efficiency and effectiveness of many
smaller Federal law enforcement agencies.
Two examples of how dangerous non-traditional law enforcement can
be are:
On March 12, 2014, Forest Service Officer Jason Crisp and his K-9
Maros were ambushed and killed by a double murder suspect hiding in the
Pisgah National Forest in Burke County, North Carolina. Officer Crisp
had served with the U.S. Forest Service for 16 years. He is survived by
his wife and two children, his parents, sister, and two brothers.
Read more about Officer Crisp and Maros at: http://www.odmp.org/
officer/22038-officer-jason-m-crisp#ixzz3gr1pKDSy
On January 1, 2012, National Park Service Park Law Enforcement
Ranger Margaret Anderson was shot and killed while attempting to stop a
fleeing suspect near the Longmire Ranger Station in Mount Rainier
National Park, in Pierce County, Washington.
Another park ranger had attempted to stop the suspect at a snow-
chain checkpoint near the Paradise Ranger Station, but the suspect fled
before being intercepted by Ranger Anderson, who had set up a
roadblock. Unbeknownst to Ranger Anderson, the suspect was wanted in
connection to a shooting the previous day where four people were
wounded. When the suspect reached Ranger Anderson's roadblock, he made
a U-turn, exited his vehicle, and opened fire. Ranger Anderson was shot
before she was able to exit her patrol car.
After being shot, Ranger Anderson radioed for help as the suspect
fled on foot. Responding units attempting to reach Ranger Anderson were
held at bay for approximately 90 minutes as the suspect continued to
fire on them. The suspect's vehicle was recovered with additional
weapons and body armor inside. The suspect's body was found the
following day about 6 miles from the initial shooting scene.
Ranger Anderson had served with the National Park Service for 12
years. She is survived by her husband and two young children. Her
husband also serves as a park ranger in the park and was on duty at the
time. Read more about Ranger Anderson at: http: // www.odmp.org /
officer / 21076-park-ranger-margaret-a-anderson#ixzz3gr35 BZqE
In conclusion, the Federal agencies called into question are not
here and cannot discuss their perspectives on our conversations today.
Before passing judgment on this and the myriad of other issues related
to their protocols and perceived conduct, I encourage anyone to
consider spending more time with the thousands of state and local
authorities that have a productive and effective working relationship
with Federal conservation law enforcement. What I strongly discourage
is the furtherance of unfounded emotions or baseless theories that only
serve to embroider and amplify those who only seek to diminish Federal
authority.
There are people out there that refuse to believe that the Earth
revolves around the Sun, and because of this simplistic belief, they
are willing to exchange an authority controlled by the American people
for one of their own, or none at all. This kind of personal conviction
is a contagion that does not serve the American people well, and it
does even less to preserve public places that are accessible and
enjoyable to the average visitor and family.
Federal authority is ultimately an expression of the will of the
people and in the case of conservation law enforcement, it is intended
to preserve and keep public lands accessible to everyone, not just a
few for personal gain. This is not to say that the Federal Government
is insensitive to the hardships of local economies. There are plenty of
assistance programs to prove it is very helpful in this regard. The
Federal agencies work diligently to formulate and respect relationships
with state and local entities, and they rely on them heavily for back
up and joint rescue and law enforcement operations. This is a time-
honored tradition that will never change.
Last, earlier in this testimony I cited only two of many law
enforcement officers who were killed in the line of duty protecting our
nation's lands and its visitors. While it may be politically popular or
advantageous to show law enforcement in a negative light, every time
this occurs it adds fuel to an unjustified fire that leads society's
weakest minds down a dangerous path. These weak minds identify with
messages of false-tyranny and other hateful rhetoric and it provokes
them to assault or kill officers for no more reason that what they
chose to do as a profession--helping their community and their country.
Ambushes against law enforcement officers are growing in this country,
as are assaults and other deadly encounters because of the uniform they
wear or their lawful duties. In this country, we have a history of
shameful treatment against our military women and men during the 1960s
and 1970s. Eventually we learned our lesson and now would not think of
treating them that way again. We are embarking on the same journey with
law enforcement. Must we always learn the hard way? Why do the women
and men who serve their communities and their country have to pay for
it with their lives? I think there is a better way.
Mr. Chairman, this concludes my testimony at this time and I would
be happy to take questions from the Subcommittee on Oversight and
Investigations. Thank you for your time and consideration.
______
Questions Submitted for the Record by Debbie Dingell to Chris
Schoppmeyer, Vice President for Agency Affairs, Federal Law Enforcement
Officers Association
Question 1. How are the majority of agency investigations and cases
pursued or prosecuted (civil versus criminal)?
Answer. It depends on the agency. The Interior agencies (FWS, BLM,
NPS, BOR & BIA) use the Central Violations Bureau (CVB) for petty
offenses, similar to a traffic ticket or summons from a traditional
police agency. These CVB tickets can be issued by uniformed officers or
special agents of the DOI agencies. For more complex long-term
investigations, agencies such as the FWS and their special agents will
use the criminal system and have the cases prosecuted by 1 of the 92
DOJ U.S. Attorney's Office. The Dept. of Agriculture's Forest Service
handles their cases and investigations similar to the DOI, a
combination of petty offense summons through the CVB system while more
complex investigations are prosecuted by the DOJ U.S. Attorney's
Office. For the Environmental Protection Agency (EPA) they use a
combination of civil and criminal remedies for their cases and
investigations.
Question 2. Describe the relationship between agencies and the U.S.
Attorney's Office related to prosecutions and investigations. How
closely do agencies and the AUSA work together?
Answer. In the majority of the 92 DOJ judicial districts, where
they deal with environmental and natural resources investigations, the
relationship is excellent. Where there may be issues it usually is
related to a personality conflict between the uniformed officer or
special agent and the prosecuting Assistant U.S. Attorney (AUSA).
Question 3. Can any sheriff do the job of a Forest Service law
enforcement officer or agent as Sheriff Brown suggested in the hearing
when he said we should reduce Forest Service officers and give sheriffs
the savings because they can better respond to and investigate criminal
activity?
Answer. The simple answer is no. Deputy Sheriffs are the county law
enforcement officers and are trained as traditional police officers,
with their principal focus being on protection of life and property.
They are not trained in environmental and natural resource law
enforcement techniques and investigations. I believe that Sheriff Brown
is concerned more with his revenue stream than protecting natural
resources. The decrease in revenues received from timber sales on
National Forest lands is impacting his operating budget and by
decreasing the number of Forest Service law enforcement officers and
assuming their jurisdictional role, he stands to increase his budget.
That is not just my opinion, it is shared by the majority of our Forest
Service members. The question to ask Sheriff Brown is what plan does he
have in place to assume the Forest Service law enforcement role and
protect the natural resources on Forest Service lands. Deputy Sheriffs
will have vast geographic areas to cover with no additional personnel,
resources or plan in place.
Question 4. Do you members see themselves primarily as law
enforcement officers, caretakers of Federal assets or conservationists?
Answer. Forest Service uniformed officers see themselves as a
combination of all three. As I testified during the hearing, ``These
statistics in part lead to increased specialized training for non-
traditional law enforcement agencies who have to play a duel role when
interacting with the recreating public. They must be Ambassadors who
are expected to always be friendly and courteous while maintaining a
professional image and demeanor.''
Question 5. For those law enforcement officers and agents
supervised by civilians, do they think that is a suitable and safe
arrangement?
Answer. You are referring to a management style employed already by
the National Park Service. The NPS has over 450 sites which are managed
by Superintendents. This style of management can be effective for the
law enforcement program as long as the Superintendent supports the law
enforcement program. What you refer to in Congress and by the other
three witnesses during the hearing as ``Stove piping'' is actually
known as ``Line Authority''. Line authority is structured so the chain
of command is entirely within the law enforcement ranks from uniformed
officer or special agent up to the Chief or Director of Law
Enforcement. The upper management levels above the Chief or Director of
Law Enforcement are typically non-law enforcement managers. Line
authority can be more effective as long as you have strong leaders in
the law enforcement leadership positions.
Question 6. How have law enforcement programs within Federal
agencies reacted to budget cuts over the last few years?
Answer. All 65 Federal law enforcement agencies have been radically
impacted by Federal budget cuts since 2008. From the threat of
Sequestration to current day, Congress has done a miserable job funding
Federal law enforcement programs. The number of unfunded mandates has
put Federal law enforcement agencies in a various tenuous position,
where less dollars are spread out over more programs in order to meet
the mission responsibilities. It has affected the morale in every
agency, with many Federal law enforcement officers leaving Federal
service for more lucrative and higher paying positions in the private
sector.
Question 7. Describe, in general terms, the relationships between
Federal law enforcement agencies and state and local law enforcement
and other entities? Please focus on coordination and cooperation of
operations and enforcement.
Answer. Relationships between Federal law enforcement agencies and
their state, county and local counterparts largely depend on
individuals and geographic locations. In the eastern part of the United
States, relations are generally very cooperative. This may be in part
due to there being less land locked up by the Federal Government's land
management agencies. For instance in the eastern region of the United
States, there are virtually no public lands managed by the BLM. Out in
the western United States, lands managed by BLM for grazing have been
the source of much contention. One only has to look at the Cliven Bundy
situation to see the source of consternation. Bundy refuses to pay his
grazing fees on Federal lands while other ranchers complain that they
have been paying grazing fees for years and threaten to stop paying the
grazing fees unless Cliven Bundy comes into compliance. Before Congress
takes a position with regards to Federal relationships out West, you
should hold a second hearing and invite a Sheriff from the eastern half
of the United States where Federal lands occupy a large percentage of
their county. I would seek out a Sheriff from a county in the Green
Mountains National Forest in Vermont or the White Mountains National
Forest in New Hampshire. I'm sure after they testify Congress will have
an entirely different perspective on this issue.
Question 8. How does it affect law enforcement officers in Federal
agencies when Members of Congress introduce bills or amendments, or
vote for bills or amendments that undermine what they do? How does it
affect them when they hear incendiary rhetoric from lawmakers?
Answer. It not only affects morale but it is a multi-faceted issue.
Continual budget cuts, lack of staffing and equipment resources are all
contributing to the larger issue of employee retention. Congress is
quick to criticize how Federal law enforcement agencies conduct
business but fail to find real solutions to problems. FLEOA members
generally feel that Congress is more about pomp & circumstance than
drilling deep into issues and solving problems. An example of this is
the aftermath of the Michael Brown shooting involving Police Officer
Daryn Wilson. Although Congress' intentions were good in proposing
expanded use of body cameras, they failed to provide oversight on how
the program would be administered. The DOJ, Bureau of Justice
Assistance, responsible for administering the expanded body worn camera
program, recommended a grant program for the state, county and local
governments, failing to recognize the uniformed components of the
Federal law enforcement agencies such as CBP, Border Patrol, and all
the land management agencies. Congress needs to do a better job in
assisting Federal law enforcement agencies with funding and other
priorities and not be so quick to criticize or introduce legislation
without adequately investigating the issues at hand.
______
Mr. Gohmert. Thank you.
I will now hear from Mr. Larkin. You are recognized for 5
minutes to testify, sir.
Thank you.
STATEMENT OF PAUL LARKIN, JR., SENIOR LEGAL RESEARCH FELLOW,
EDWIN MEESE III CENTER FOR LEGAL AND JUSTICE STUDIES, THE
HERITAGE FOUNDATION, WASHINGTON, DC
Mr. Larkin. Thank you, Mr. Chairman, Madam Ranking Member,
and other members of the subcommittee.
I am a 1980 graduate of the Stanford Law School and have
spent the bulk of my legal career involved in the criminal
justice system in one capacity or another. Among the positions
I have held are the following: an attorney in the Organized
Crime and Racketeering Section of the Criminal Division at the
U.S. Justice Department; Assistant to the Solicitor General in
the Office of the Solicitor General at the Justice Department;
counsel to the Senate Judiciary Committee when it was under the
Chairmanship of Senator Orrin Hatch; and Special Agent in
Charge in the EPA Criminal Investigation Division.
I have also written on some of the subjects that this
committee will address today and perhaps in the future.
I would like to make just a few brief points today. First,
it is generally a mistake to use the criminal law for
regulatory enforcement. For most of Anglo-American legal
history, society has used the criminal law to punish crimes
that violated local, cultural mores or norms. The result was
that everyone in the community knew what was a crime.
Unfortunately, that is not always the case anymore. Over
the last 150 years, American law has started to use the
criminal process as an enforcement mechanism in the
administrative agencies' enforcement of regulatory programs.
While there is no problem with doing that through an
administrative or civil process, there is a problem created
when you try to use the criminal process.
The problem is, it can be extraordinarily difficult for
people to know exactly where the line is between what is
permitted and what is prohibited; and the result is you can
have the same problems that arise from an unduly vague statute,
namely, the average member of the public may not know exactly
what is and is not a crime.
Second, even if Congress wants to use law enforcement to
enforce regulatory regimes, the job will be better handled, I
believe, by traditional law enforcement agencies, such as the
Federal Bureau of Investigation and the U.S. Marshal Service.
The public is fully aware of those agencies, but the
public, however, is oftentimes completely unaware of other more
specialized law enforcement agencies, like those you see at
particular regulatory agencies. The result is likely to lead to
mistakes of identity, as well as perhaps the sort of problem
you talked about, Mr. Chairman, in the overuse of Federal
authority.
But equally important is that it runs the risk that
regulatory agencies will use their law enforcement agencies on
trivial cases in order simply to justify their budget and their
existence. That is a problem throughout law enforcement
generally. It is not limited just to these agencies, but it has
perhaps become most acute when it is.
Third, overuse of SWAT teams and dynamic entries and the
like has led to unfortunate results. Witness what happened when
county officers made a dynamic entry into the home of the
Berwyn Heights, Maryland mayor who was mistakenly suspected to
be a drug trafficker. The officers shot and killed his two
Labrador Retrievers and terrorized him and his family.
Different Federal agencies with regulatory responsibility
have sought this sort of authority as well, and giving it to
them, I think, is only likely to lead to more of these sorts of
problems.
Given that--I think it was the Ranking Member who mentioned
the Lacey Act--let me add just one last point and then I will
give my remaining time to you. The Lacey Act raises a host of
constitutional problems because of the way it is drafted. What
the Lacey Act does is grant Federal lawmaking authority to
foreign officials, people who are neither legally nor
politically accountable to the public or by the courts.
The result is that the Lacey Act, for those reasons,
violates Articles I and II of the Constitution as well as the
due process clause.
I have explained this at length in an article that was
recently published by the Harvard Journal of Law and Public
Policy. I have a copy with me, and if you would like, I would
be glad to give it to you for submission into the record.
With that, Mr. Chairman, Madam Ranking Member, I give you
back my remaining time. I'm glad to answer any questions you
have.
[The prepared statement of Mr. Larkin follows:]
Prepared Statement of Paul J. Larkin, Jr., Senior Legal Research
Fellow, The Heritage Foundation
Mr. Chairman, Mr. Ranking Member, members of the subcommittee, my
name is Paul J. Larkin, Jr. I am a Senior Legal Research Fellow at The
Heritage Foundation. The views I express in this testimony are my own
and should not be construed as representing any official position of
The Heritage Foundation.\1\
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\1\ The title and affiliation are for identification purposes.
Members of The Heritage Foundation staff testify as individuals
discussing their own independent research. The views expressed here are
my own, and do not reflect an institutional position for The Heritage
Foundation or its board of trustees, and do not reflect support or
opposition for any specific legislation. The Heritage Foundation is a
public policy, research, and educational organization recognized as
exempt under section 501(c)(3) of the Internal Revenue Code. It is
privately supported and receives no funds from any government at any
level, nor does it perform any government or other contract work. The
Heritage Foundation is the most broadly supported think tank in the
United States. During 2013, it had nearly 600,000 individual,
foundation, and corporate supporters representing every state in the
U.S. Its 2013 income came from the following sources: 80% from
individuals, 17% from foundations, and 3% from corporations. The top
five corporate givers provided The Heritage Foundation with 2% of its
2013 income. The Heritage Foundation's books are audited annually by
the national accounting firm of McGladrey, LLP.
---------------------------------------------------------------------------
Thank you for the opportunity to testify about law enforcement
issues that arise in connection with the Federal land management
agencies. I have written on some of the issues relevant to the
Committee's hearing,\2\ and I will draw on those publications for this
testimony. I will address three issues identified in the headings
below.
---------------------------------------------------------------------------
\2\ See, e.g., Paul J. Larkin, Jr., The Dynamic Incorporation of
Foreign Law, and the Constitutional Regulation of Federal Lawmaking, 38
Harv. J.L. & Pub. Pol'y 337 (2015) (hereafter Larkin, Dynamic
Incorporation); Paul J. Larkin, Jr., Strict Liability Offenses,
Incarceration, and the Cruel and Unusual Punishments Clause, 37 Harv.
J.L. & Pub. Pol'y 1065 (2014) (hereafter Larkin, Strict Liability);
Paul J. Larkin, Jr., Prohibition, Regulation, and Overcriminalization:
The Proper and Improper Uses of the Criminal Law, 42 Hofstra L. Rev.
745 (2014) (hereafter Larkin, Prohibition, Regulation, and
Overcriminalization); Paul J. Larkin, Jr., Taking Mistakes Seriously,
28 B.Y.U. J. of Pub. L. 71 (2014); Paul J. Larkin, Jr., Public Choice
Theory and Overcriminalization, 36 Harv. J.L. & Pub. Pol'y 715 (2013)
(hereafter Larkin, Overcriminalization); Paul J. Larkin, Jr., A Mistake
of Law Defense as a Remedy for Overcriminalization, 26 A.B.A.J.
Criminal Justice 10 (Spring 2013).
---------------------------------------------------------------------------
I. The Problem of Using the Criminal Law for Regulatory and
Nontraditional Crimes
a. the differences between common law crimes and regulatory or
nontraditional crimes
1. Using the Criminal Law to Enforce Regulatory Schemes
The threshold question is whether it is sensible to use the
criminal law to enforce a regulatory program. In my opinion, the answer
is ``No'' unless there are special circumstances present. The reason
why is that the two enforcement schemes differ in several important
ways that make any attempt to marry the two likely to fail in most
cases. Resorting to criminal law to enforce regulatory programs poses
numerous problems not present in the case of traditional ``blue-
collar'' offenses or even standard ``white-collar'' crimes. Those
problems stem from several defining features of regulatory laws that
increase the difficulty placed on an average person to understand
precisely where the line is drawn between lawful and illegal conduct.
The criminal law prohibits conduct in order for civil society to
exist and avoid bellum omnium contra omnes.\3\ By and large the
criminal code addresses the moral code that every person knows by heart
and that the private components of a civil society--families, friends,
neighbors, members of religious or social organizations, and so forth--
teach the young to incorporate into their everyday behavior. By
contrast, contemporary regulatory schemes have a very different history
and purpose. Regulatory programs grew up, largely in the twentieth
century and seek to efficiently manage industries and activities via
regulations, policy statements, civil rules, rewards, and penalties to
incentivize desirable behavior without casting aspersions on violations
attributable to ignorance or explanations other than defiance. Statutes
creating those regulatory schemes define the circumstances in which
regulated conduct may and may not be undertaken, delegate authority to
agencies to promulgate regulations filling out statutory terms,
establish permitting and monitoring protocols to ensure that the amount
and type of regulated activity does not exceed tolerable limits. Almost
without exception, regulatory programs authorize administrative
agencies to pursue enforcement through civil processes, not
criminal.\4\
---------------------------------------------------------------------------
\3\ See Thomas Hobbes, Leviathan 80 (1651).
\4\ See Max Minzner, Why Agencies Punish, 53 Wm. & Mary L. Rev.
853, 858-59 (2012).
---------------------------------------------------------------------------
The distinction between the civil and criminal laws is an ancient
one, with state-administered punishment traditionally reserved only for
a violation of the latter.\5\ Yet, today many contemporary regulatory
programs define unlawful conduct not just as a civil wrong, but also as
a crime, and empower the government to penalize regulatory infractions
through the same criminal process historically used to investigate,
prosecute, and imprison parties for murder, rape, robbery, theft, and a
host of other offenses known today as ``street'' crimes or ``blue-
collar'' crimes. In fact, regulatory criminal laws have become a
settled feature of modern-day statutory codes, and they often impose
criminal liability for a host of actions that historically would have
been considered only civil infractions.
---------------------------------------------------------------------------
\5\ See Jerome Hall, Interrelations of Criminal Law and Torts, 43
Colum. L. Rev. 753, 757-58 (1943).
---------------------------------------------------------------------------
2. Using the Criminal Law to Create Nontraditional Crimes
The second category of problematic uses of the criminal law is in
the case of what I will call ``nontraditional crimes.'' I would use the
term ``traditional crimes'' to refer to three subsets of offenses: (a)
the crimes that existed at common law--such as murder, rape, robbery,
and the like, (b) the similar offenses that contemporary society has
added to that list--such as kidnapping, child abuse, peonage, and so
forth, and (c) and the crimes that everyone knows are part of today's
penal codes, but are not strictly analogous to the type of violent
offenses or ``street crimes'' that that would fit into the two subsets
just noted--such as trafficking in controlled substances like heroin.
The offenses in this category could overlap with the category of
regulatory crimes discussed above, because agency rules may define
relevant terms or set limits to the amount and type of such conduct
that may permissibly be done. But some nontraditional crimes will be
defined by statute without the assistance of supporting regulations.\6\
The common denominator for crimes that fit into this category is that
they address conduct that is not always unlawful.
---------------------------------------------------------------------------
\6\ The Computer Fraud and Abuse Act (CFAA), 18 U.S.C. Sec. 1030
(2012), is an example. It prohibits only certain uses of computers and
does not delegate authority to an administrative agency to define
precisely what uses are impermissible. See generally Paul J. Larkin,
Jr., United States v. Nosal: Rebooting the Computer Fraud and Abuse
Act, 8 Seton Hall Cir. Rev. 257, 260-261 & nn. 11-13 (2012) (collecting
authorities interpreting the CFAA).
---------------------------------------------------------------------------
b. the importance of those differences
Resorting to criminal law to enforce regulatory programs poses
numerous, difficult compliance problems not present in the case of
traditional ``blue-collar'' offenses or even standard ``white-collar''
crimes. Those problems stem from several defining features of
regulatory laws that increase the difficulty placed on an average
person to understand precisely where the line is drawn between lawful
and illegal conduct. Treating regulatory crimes as if they were no
different than ``street crimes'' ignores the profound difference
between the two classes of offenses and puts parties engaged in
entirely legitimate activities without any intent to break the law at
risk of criminal punishment. In fact, many of the features that make
the administrative process a desirable, and sometimes necessary, means
for implementing acts of Congress render inappropriate use of the
criminal process as an enforcement mechanism.
Consider this example. Congress may, and often does, use a broadly
defined term (for example, ``solid waste'') in a statute (for example,
the Resource Conservation and Recovery Act) that delegates to an agency
(for example, the EPA) the power to implement that law by elaborating
or refining the definition of a term (for example, ``hazardous
waste''), by creating a list of specific examples of what that term
means (for example, ``listed hazardous wastes''), or by specifying
exemptions from the term (for example, ``recyclable materials'').\7\ By
legislating in that fashion, Congress can grant the executive branch
considerable regulatory flexibility. An agency can adapt existing
regulations or promulgate new ones whenever necessary to address
worsening or newly emerging hazards without having to return to
Congress for specific supplemental regulatory authorization. That
practice also enables the agency to invoke its superior technical and
scientific expertise regarding a particular substance, production
process, or medical risk whenever a new problem pops up or an old one
takes a turn for the worse. Broadly written regulatory statutes
granting administrative agencies room to maneuver are valuable because
society wants agencies to be able to respond quickly (for instance) to
serious health threats by revising the rules necessary to forestall or
remedy a problem. At the same time, the freedom to respond quickly can
place individuals at risk of criminal punishment for guessing
mistakenly about what the law requires because regulatory developments
can outpace their knowledge of the law.
---------------------------------------------------------------------------
\7\ See Larkin, Strict Liability, supra note 1, at 1088-89.
---------------------------------------------------------------------------
The evolving nature of regulations, however, is only one aspect of
the notice problem. An elementary principle of criminal and
constitutional law is that the government must clearly identify
particular conduct as criminal so that the average person, without
resort to legal advice, can comply with the law.\8\ Historically, that
requirement posed little difficulty. The government ordinarily could
satisfy that obligation simply by enacting and making public a statute
that was written in terms the average person could readily understand.
Throughout Anglo-American legal history, contemporary mores condemned
certain conduct as harmful, dangerous, or blameworthy, such as murder,
rape, robbery, and burglary.\9\ A legislature could readily draft a
straightforward, easily comprehensible ordinance outlawing those
actions by drawing on language widely understood in the community. That
is not the case, however, in fields that are subject to regulation or
that criminalize nontraditional conduct.
---------------------------------------------------------------------------
\8\ See, e.g., Rogers v. Tennessee, 532 U.S. 451, 459 (2001).
\9\ See, e.g., Livingston Hall & Selig J. Seligman, Mistake of Law
and Mens Rea, 8 U. Chi. L. Rev. 641, 644 (1941) (``[T]he early criminal
law appears to have been well integrated with the mores of the time,
out of which it arose as `custom.' ''); Larkin, Dynamic Incorporation,
supra note 1, at 382 (collecting authorities).
---------------------------------------------------------------------------
Start with the quantity of relevant laws. The total number of
Federal statutes and regulations relevant to criminal conduct is
unknown but likely is immense.\10\ Some commentators have estimated
that there are more than 4,450 Federal criminal statutes and more than
300,000 Federal regulations that define conduct as criminal or
otherwise bear on the proper interpretation of the laws that do.\11\ No
one--no lawyer, no judge, no law professor--has that knowledge. As the
distinguished academic and late Harvard Law School professor William
Stuntz put it: ``Ordinary people do not have the time or training to
learn the contents of criminal codes; indeed, even criminal law
professors rarely know much about what conduct is and isn't criminal in
their jurisdictions.'' \12\ Permitting the government to rest criminal
liability on the fiction that the average person is conversant with the
ins and outs of Federal regulatory statutes, let alone the thousands of
potentially relevant regulations, borders on the obscene.
---------------------------------------------------------------------------
\10\ See Michael B. Mukasey & Paul J. Larkin, Jr., The Perils of
Overcriminalization, The Heritage Foundation, Legal Memorandum No. 146,
at 1-2 & nn. 6-7 (Feb. 12, 2015), http://thf_media.s3.amazonaws.com/
2015/pdf/LM146.pdf; see id. at 1-2 nn. 6-8.
\11\ See id.
\12\ William J. Stuntz, Self-Defeating Crimes, 86 Va. L. Rev. 1871,
1871 (2000).
---------------------------------------------------------------------------
If it is unreasonable to expect that everyone already knows the
law, people must be able to find it. Yet, even finding every pertinent
regulation can be an onerous task. Few people are aficionados of the
U.S. Code, let alone the Code of Federal Regulations or the Federal
Register. Given the massive increase in the number of Federal
regulations over the last century, there is a potentially enormous
number of ways that someone can violate criminal statutes today. The
result makes it almost certain that the average person will be
completely unaware of some of those ways that he or she can break the
law.
There is an additional complicating factor. Federal Government
officials responsible for implementing domestic statutory programs
often construe relevant acts of Congress and agency regulations in
publicly issued ``guidance documents'' or ``compliance manuals,'' as
well as in internal memoranda.\13\ Interpretations that have not been
promulgated as regulations do not have the same legal status as agency
rules, of course, but they still may have considerable legal effect. An
agency's construction of its own regulations is generally deemed
controlling on the courts unless that interpretation is
unconstitutional or contrary to the plain text of the rule itself.\14\
An agency's interpretive memoranda that are not publicly available are
tantamount to a form of ``secret'' or ``underground'' law.\15\
---------------------------------------------------------------------------
\13\ See, e.g., Larkin, Dynamic Incorporation, supra note 1, at
384.
\14\ See Auer v. Robbins, 519 U.S. 452, 461-62 (1997).
\15\ See Kathleen F. Brickey, Environmental Crime at the
Crossroads: The Intersection of Environmental and Criminal Law Theory,
71 Tul. L. Rev. 487, 502-03 (1996).
---------------------------------------------------------------------------
Even if the average person can find all of the pertinent
regulations and internal agency guidance documents, however, there is
no guarantee that he or she can understand them, given the often-
recondite rules that agencies adopt for subjects that are technical or
scientific in nature. The relevant statutes vest broad authority and
discretion in the expert agencies in order to permit them the
flexibility deemed necessary for them to respond to advances in
scientific and medical knowledge and changes in manufacturing or other
productive mechanisms. Regulations promulgated by agencies can form
highly reticulated networks demanding a sophisticated understanding of
technical subjects beyond the ken of the average person.\16\ The result
often is that agency rules, such as the ones promulgated under the
Federal environmental laws, can be extraordinarily abstruse, demanding
almost as much scientific or technical knowledge as legal skill to
ensure their proper interpretation.\17\ Yet, fair notice of what the
law forbids is a longstanding requirement for imposing criminal
punishment. It is settled law that the government cannot criminally
enforce a law that cannot be understood by a person ``of ordinary
intelligence.'' \18\ A technical set of rules thus can create the same
notice problems that we already acknowledge to exist when a statute is
unduly vague. In both cases the average person would not know what has
been made a crime. Just as the criminal law does not require a person
to consult with an attorney in order to avoid liability, so, too, it
should not demand that an individual resort to a biologist, geologist,
or hydrologist before undertaking facially reasonable activity in a
legitimate business.
---------------------------------------------------------------------------
\16\ See Larkin, Strict Liability, supra note 1, at 1092-93.
\17\ For a good example, see Vidrine v. United States, 846 F. Supp.
2d 550, 561-69 (W.D. La. 2011) (involving the issue whether used oil
was a recyclable product or hazardous waste).
\18\ United States v. Harriss, 347 U.S. 612, 617 (1954).
---------------------------------------------------------------------------
Another complicating factor with regulatory or nontraditional
crimes is that their prohibitions may not apply across the board.
Murder is always a crime; the criminal law prohibits every instance of
this conduct, not merely the ones that exceed a defined limit. Every
rape is a crime; other factors may aggravate that offense, but the
basic crime exists in every criminal code. Robbery fits into the same
category; no one can apply for a permit to commit robberies. By
contrast, not every use of a computer is a Federal offense, the
disposal of household garbage is not the same as the dumping of
hazardous waste, and a party can apply for a permit to pollute the
nation's waterways.
The raison d'etre of a regulatory program is that certain conduct
cannot or should not be forbidden in all circumstances and so must be
managed, controlled, or supervised to limit the instances in which it
occurs or poses a hazard. A statute may empower an agency to issue a
permit to conduct certain activity, and the agency's rules may define
when, where, how, and by whom that conduct may be done. But it is more
difficult to comply with a carefully nuanced rule than with a diktat
forbidding any and all instances of identified conduct. Even the
lawyers who practice in a regulated industry may not know all of the
statutes, rules, regulations, and agency interpretations--which makes
hopeless the plight of the average person who lacks legal training, or
ready and inexpensive access to an attorney.\19\ The result is that it
can be difficult for the average person to know when he or she has
crossed over the line into forbidden territory.\20\
---------------------------------------------------------------------------
\19\ See Edwin Meese III & Paul J. Larkin, Jr., Reconsidering the
Mistake of Law Defense, 102 J. Crim. L. & Criminology 725, 742-43
(2012).
\20\ See United States v. McNab, 331 F.3d 1228 (11th Cir. 2003)
(defendant sentenced to 8 years in prison for importing undersized,
egg-bearing lobsters from Honduras in violation of Honduran law). In
the Gibson Guitar case, the Department of Justice investigated Gibson
Guitar for a violation of the laws of Madagascar even though at least
one of the relevant laws had to be translated into English. See Letter
Containing a Deferred Prosecution Agreement from Jerry E. Martin, U.S.
Attorney, M.D. Tenn., et al., to Donald A. Carr & William M. Sullivan
Jr. App. A, at 6 (July 27, 2012) [hereinafter GIBSON GUITAR DPA]
(referring to ``the Department's translation of Interministerial Order
16.030/2006''), http://www.legaltimes.typepad.com/files/gibson.pdf
[http://perma.cc/RQV9-F2WB].
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Historically, mens rea requirements have mediated between the need
for flexibility and the duty to notify the public what the law forbids
by limiting criminal liability to someone who intentionally violates a
known legal duty or commits easily recognizable blameworthy conduct. At
common law, a crime consisted of ``a vicious will'' and ``an unlawful
act consequent upon such vicious will.'' \21\ That principle still has
resonance today.\22\ The criminal law traditionally has looked askance
on negligence as a basis for liability and has treated strict liability
crimes with outright scorn.\23\
---------------------------------------------------------------------------
\21\ 4 William Blackstone, Commentaries on the Laws of England 21
(1979).
\22\ See, e.g., McFadden v. United States, 135 S. Ct. 2298, 2304
(2015); Elonis v. United States, 135 S. Ct. 2001, 2008-10 (2015).
\23\ See, e.g., Henry M. Hart, Jr., The Aims of the Criminal Law,
23 L. & Contemp. Probs. 401, 421-22 (1958); Larkin, Strict Liability,
supra note 1, at 1079 n. 46 (collecting authorities).
---------------------------------------------------------------------------
Regulatory programs, however, often do not treat scienter with the
same respect.\24\ The reason for that slight is that regulatory laws
see their goal as protection of the public against particular insults
or hazards, such as carcinogens, that cause insidious short- or long-
term harm regardless of the intent or knowledge of the party
responsible for their creation or misuse.\25\ Public health programs,
for example, seek to empower agencies such as the Food and Drug
Administration or the Environmental Protection Agency to intervene in
the manufacturing, distribution, or disposal processes in order to
prevent adulterated drugs from entering the stream of commerce, or to
keep hazardous waste from poisoning the water supply, regardless of
whether the party involved was aware of or oblivious to the dangers
that his conduct posed.\26\ Injunctive remedies are reasonable devices
for preventing public injury, and after-the-fact civil or
administrative fines serve reasonable educative and deterrent
purposes.\27\ But the criminal law is society's most powerful weapon
against conduct deemed unlawful and traditionally has been brought to
bear on an individual only when he acted with a wicked intent, rather
than merely negligently, let alone when no blame at all can be
attributed to him. Regulatory laws do not see it that way. That creates
serious notice and compliance problem for small businesses and
individuals.
---------------------------------------------------------------------------
\24\ See Meese & Larkin, supra note 20, at 744-45.
\25\ Id. at 744.
\26\ See id.
\27\ Hudson v. United States, 522 U.S. 93, 102 (1997) (``all civil
penalties have some deterrent effect'').
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II. The Multiplication of Federal Law Enforcement Agencies
Most Americans have heard of a small number of Federal law
enforcement agencies, such as the Federal Bureau of Investigation
(FBI), the Drug Enforcement Administration (DEA), the Secret Service,
the U.S. Marshal's Service, and perhaps one or two others. What they do
not know is that there is ``a dizzying array'' of other Federal
investigative agencies,\28\ more than 100 of them. The total number of
agents could fill out 10 divisions of armed Federal law enforcement
officers. The multiplication of Federal law enforcement agencies can
lead to numerous problems.\29\
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\28\ Louise Radnofsky, Gary Fields & John R. Emshwiller, Federal
Police Ranks Swell to Enforce a Widening Array of Criminal Laws, Wall
St. J., Dec. 17, 2011, at A1 available at http://online.wsj.com /
article/SB10001424052970203518404577094861497383678.html#project%3DREG
S121520111215%26articleTabs%3Darticle (``For years, the public face of
Federal law enforcement has been the Federal Bureau of Investigation.
Today, for many people, the knock on the door is increasingly likely to
come from a dizzying array of other police forces tucked away inside
lesser-known crime-fighting agencies. They could be from the
Environmental Protection Agency, the Labor or Education Departments,
the National Park Service, the Bureau of Land Management or the
National Oceanic and Atmospheric Administration, the agency known for
its weather forecasts.'').
\29\ The General Accounting Office and its successor the Government
Accountability Office have conducted several studies of the issues
posed by numerous Federal law enforcement agencies. See, e.g.,
Government Accountability Office, Federal Law Enforcement: Survey of
Federal Civilian Law Enforcement Functions and Authorities, GAO-07-121
(Dec. 19, 2006), available at http://www.gao.gov/new.items/d07121.pdf;
Government Accountability Office, Results of Surveys of Federal
Civilian Law Enforcement Components, An E-Supplement To GAO-07-121,
GAO-07-223SP (Dec. 19, 2006), available at http://www.gao.gov/
special.pubs/gao-07-223sp/index.html; General Accounting Office,
Federal Law Enforcement Training Center: Capacity Planning and
Management Oversight Need Improvement, GAO-03-736 (July 24, 2003),
available at http://www.gao.gov/assets/240/239049.pdf; General
Accounting Office, Inspectors General: Comparison of Ways Law
Enforcement Authority is Granted, GAO-02-437 (May 22, 2002), available
at http://www.gao.gov/assets/240/234071.pdf; General Accounting Office,
Federal Law Enforcement: Investigative Authority and Personnel at 32
Organizations, GAO/GGD-97-93 (July 22, 1997), available at http://
www.gao.gov/assets/230/224401.pdf; General Accounting Office, Federal
Law Enforcement: Investigative Authority and Personnel at 13 Agencies,
GAO/GGD-96-154 (Sept. 30, 1996), available at http://www.gao.gov/
assets/230/223212.pdf.
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a. the number of federal law enforcement agencies and officers
The Bureau of Justice Statistics (BJS), a component of the U.S.
Department of Justice, conducted a census in September 2008 of 73
agencies and 33 inspector general's offices. BJS concluded that there
were approximately 120,000 full-time Federal law enforcement officers,
parties authorized to make arrests and carry firearms in the United
States.\30\ The bulk of those officers--roughly 45,000 or 37 percent--
conducted criminal investigations and enforcement duties. The second
largest category consisted of police response and patrol officers--
about 28,000 officers or 23 percent of the total. Next came immigration
or custom inspection officers--approximately 18,000 in number or 15
percent--followed by officers performing correctional or detention-
related duties--about 17,000 or 14 percent.\31\
---------------------------------------------------------------------------
\30\ See U.S. Dep't of Justice, Bureau of Justice Statistics,
Federal Law Enforcement, 2008, NCJ 238250, at 1 (June 2012).
\31\ Id.
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Putting aside inspector generals' offices, 24 Federal agencies
employed 250 or more full-time law enforcement personnel--that is,
personnel with arrest and firearms-possession authority--with the four
largest agencies fitting into two parent organizations; the Departments
of Homeland Security and Justice. The U.S. Customs and Border
Protection (CBP) (36,863 full-time officers) and the U.S. Immigration
and Customs Enforcement Agency (ICE) (12,446) are components of the
Homeland Security Department, while the Federal Bureau of Prisons (BOP)
(16,835) and the FBI (12,760) are units within the Justice Department.
The Homeland Security Department also contains the U.S. Secret Service
(5,213) and the Federal Protective Service (900). The Justice
Department also housed the DEA (4,308), the U.S. Marshal's Service
(3,313), and the Bureau of Alcohol, Tobacco, Firearms, and Explosives
(2,541), three other agencies in the 24 largest Federal law enforcement
agencies. In addition, 16 Federal agencies employ fewer than 250 full-
time officers.\32\ Among them are the Environmental Protection Agency
(EPA) and the Food and Drug Agency (FDA).\33\
---------------------------------------------------------------------------
\32\ Id. at 5 Tbl. 2.
\33\ Id. at 3, 5 Tbl. 2.
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Several Federal law enforcement agencies appear to be within the
Committee's jurisdiction. A few of them are listed among the agencies
employing 250 or more full-time law enforcement personnel: the National
Park Service Rangers (1,404), the U.S. Forest Service (644), the U.S.
Fish & Wildlife Service (598), the National Park Service Park Police
(547), the Bureau of Indian Affairs (277), and the Bureau of Land
Management (255).\34\ Two agencies among those with fewer than 250
full-time officers also appear to fit within the Committee's
jurisdiction: the National Oceanic and Atmospheric Administration's
(NOAA) National Marine Fisheries Service (149) and the Bureau of
Reclamation (21).\35\ Finally, the Office of the Inspector General for
the Department of the Interior (66) would seem to fit within the
Committee's jurisdiction.\36\ In sum, there are approximately 3,700
officers under this Committee's oversight jurisdiction.
---------------------------------------------------------------------------
\34\ Id. at 2 Tbl. 1, 4.
\35\ Id. at 5 & Tbl. 2.
\36\ Id. at 6 Tbl. 3.
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b. problems created by granting federal regulatory agencies law
enforcement authority
Congress could use civil investigative units for Federal agencies
and grant them the power to compel private parties to submit to on-site
civil inspections.\37\ Civil compliance officers, however, lack the
authority and respect given to Federal agents. In comparison to civil
inspectors, FBI agents wearing ``raid jackets'' emblazoned with the
Bureau's logo will receive far more deference from a judge, a
corporation, and the public. To take advantage of the nimbus that law
enforcement officers radiate, Congress may create a minor crime (that
is, a misdemeanor or minor offense) so that a regulatory agency can
call on the full Federal investigative apparatus for inspection
purposes, instead of being forced to show up at a plant with hat in
hand to negotiate with a corporation's lawyers over the scope of an
inspection. Adding criminal statutes to an otherwise entirely civil
regulatory scheme allows Congress to cash in on the leverage that a
criminal investigation enjoys with the public and the media.\38\
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\37\ See, e.g., the Antitrust Civil Process Act of 1962, Pub. L.
No. 87-664, 76 Stat. 548 (codified in various sections of 15 U.S.C.
Sec. 1311) (authorizing Justice Department attorneys to issue civil
investigative demands to obtain documents from the target of a civil
antitrust investigation); New York v. Burger, 482 U.S. 691 (1987)
(upholding state law authorizing the warrantless search of the premises
of vehicle dismantlers and junkyards).
\38\ See Gerard E. Lynch, The Role of Criminal Law in Policing
Corporate Misconduct, 60 Law & Contemp. Probs. 23, 37 (1997). That
phenomenon may explain the provenance of the criminal provisions of the
Federal environmental laws. Initially, those laws created only
misdemeanors. See Richard J. Lazarus, Meeting the Demands of
Integration in the Evolution of Environmental Law: Reforming
Environmental Criminal Law, 83 Geo. L. J. 2407, 2446-47 (1995)
(footnotes omitted).
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A closely related factor is the growth of specialized Federal
investigative agencies. Federal law enforcement agencies differ from
state and local police departments with respect to the scope of their
authority. As an incidence of a state's ``police power,'' a state can
authorize state and local police forces to investigate any and all
violations of state law. This is not the case for Federal
investigators. Just as the Federal Government is a polity of limited
powers, so too, Federal law enforcement agencies have only the
authority that Congress grants them. Most people are familiar with
agencies, such as the FBI, which has broad investigative authority.\39\
The creation of specialized law enforcement agencies, however, raises a
problem analogous to one that existed with respect to the independent
counsel provisions of the Ethics in Government Act of 1978 \40\: loss
of perspective.\41\ Agencies with wide-ranging investigative
responsibility see the entire range of human conduct and can put any
one party's actions into a broad perspective. Agencies with a narrow
charter see only what they investigate. If the only tool that one has
to use is a hammer, everything looks like a nail. The result is that
specialized agencies may wind up pursuing trivial criminal cases to
justify their existence and continued Federal funding.\42\
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\39\ The FBI has the broadest authority of any Federal law
enforcement agency. The Secret Service and Marshals Service are close
behind. See Larkin, Overcriminalization, supra note 1, at 739 n. 95.
\40\ Ethics in Government Act of 1978, Pub. L. No. 95-521, 92 Stat.
1824.
\41\ Cf. Morrison v. Olson, 487 U.S. 654, 727-32 (1988) (Scalia,
J., dissenting).
\42\ ``Federal prosecutors already operate under an incentive
structure that forces them to focus on the statistical `bottom line.'
Statistics on arrests and convictions are the Justice Department's
bread and butter. They are submitted to the department's outside
auditors, are instrumental in assessing the `performance' of the U.S.
Attorneys' Offices, and are the focus of the department's annual
report. As George Washington University Law School professor Jonathan
Turley puts it, `In some ways, the Justice Department continues to
operate under the body count approach in Vietnam . . .. They feel a
need to produce a body count to Congress to justify past appropriations
and secure future increases.' '' Gene Healy, There Goes the
Neighborhood: The Bush-Ashcroft Plan to ``Help'' Localities Fight Gun
Crime,'' in Go Directly to Jail: The Criminalization of Almost
Everything 105-06 (Gene Healy ed., 2004).
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It also is difficult to change a criminal investigation into a
civil inquiry midstream. Differences in evidentiary rules, sources of
information, and the certainty required to impose sanctions all
complicate a hand off between Federal agents and administrators. Crimes
committed in regulated industries are generally ``white-collar'' in
nature, which means that Federal investigators need to wade through a
sea of documents. The easiest way to get documents from the target of
an investigation is by issuing the company a grand jury subpoena
because a Federal grand jury has broad investigative authority and
there is little that a firm can do to challenge a subpoena.\43\ Once
the Federal Government gets its mitts on subpoenaed documents, however,
it is extremely difficult for the government to transfer them to civil
enforcers.\44\ Federal law enforcement officers cannot routinely
disclose grand jury materials to their civil colleagues; the government
must instead make a showing of ``particularized need'' for grand jury
materials in order to make use of them in a civil proceeding.\45\ This
difficulty gives the government a strong incentive to maintain as a
criminal investigation any inquiry begun as such.
---------------------------------------------------------------------------
\43\ See Fed. R. Crim. P. 6, 17(c); United States v. R.
Enterprises, Inc., 498 U.S. 292, 297 (1991).
\44\ See Peter C. Yeager, The Limits of Law: The Public Regulation
of Private Pollution 35 (1991).
\45\ See United States v. Sells Eng'g, Inc., 463 U.S. 418, 443
(1983).
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c. problems created by having multiple federal law enforcement agencies
The large number of Federal law enforcement agencies can lead to a
variety of problems.
First, the large number of agencies makes it difficult for the
public to know whether a particular Federal officer in fact is a
Federal agent. The public can readily identify local law enforcement
officers. Whether police officers or deputy sheriffs, state and local
police officers dress in easily recognizable uniforms, they interact
with the public during the course of official business, and they often
are friends or neighbors in the community. The public is also familiar
with officers performing purely investigative functions, such as
``detectives'' or ``inspectors,'' because numerous films and television
shows have portrayed those officers in action. As far as Federal law
enforcement officers go, the public also knows about the FBI, the DEA,
the U.S. Marshal's Service, and perhaps one or two others, but is
wholly unaware that a vast number of other Federal agencies, such as
the EPA, the FDA, and NOAA, also employ agents with criminal
investigative authority. To most members of the public, those are
purely regulatory agencies with responsibilities that have nothing to
do with the criminal law (for NOAA, the public thinks of dolphins) or
that are more a source of amusement than respect (for the EPA, the
public thinks of Walter Peck in ``Ghostbusters''). The public's
inability easily to identify as legitimate members of the law
enforcement community parties claiming to be Federal agents working for
nontraditional law enforcement agencies, to my knowledge, has led to
dangerous confrontations and, in my view, is certain to ultimately
result in an unfortunate incident where one party or the other is shot.
Second, the large number of agencies leads to needless waste. Keep
in mind that agents are not the only personnel at a law enforcement
agency. The problem with more than 100 Federal law enforcement agencies
is that they may be considerable overlap or ``slack'' in the system
that should be alleviated by combining functions. For example, while it
is important to have lawyers dedicated to working exclusively with
agents, there may be no need for a separate cadre of lawyers at each
Federal law enforcement agency. Consolidating agencies could eliminate
expenditure on needless resources.
Third, adding criminal divisions to regulatory agencies is hardly a
guarantee that regulatory crimes will be adequately investigated. That
is true for several reasons. To start with, there is no guarantee that
the agency will have the necessary resources to investigate crimes.
There may be an equal or greater number of ancillary support personnel
who perform missions critical to the success of the agency. As far as
personnel goes, any agency must have lawyers, evidence collection
experts, laboratory technicians, training officers, and administrative
personnel in addition to the parties authorized to make arrests and
carry firearms. (Of course, some agents also will perform supervisory
functions and therefore would not be available for fieldwork.) Agencies
must also have offices, vehicles, computers, and other equipment.
Moreover, criminal investigation units may not even be welcome in a
regulatory agency. They may be seen as a drain on agency resources, as
a sop to whatever parties want the relevant conduct to be made a crime,
or as a diversion from the agency's primary mission of pursuing the
requisite scientific, technical, or economic inquiries necessary to
justify promulgating regulations to govern private conduct. Some
regulatory agency criminal programs may be little more than Potemkin
Villages, units designed to display an interest in criminal enforcement
that is not genuine, or serve as the threatened agency component to
which a matter will be referred if a party refuses to accept a civil or
administrative settlement of a matter.
Fourth, the large number of agencies makes congressional oversight
difficult, particularly when different congressional committees have
jurisdiction over different Federal agencies.
III. The Overmilitarization of Federal Law Enforcement
Media images of tanks and armored personnel carriers in urban
streets, heavily armed government agents clad in helmets, BDUs, and
other military-style gear, and sharpshooters waiting patiently for
``Execute'' orders bring to mind images of the Russian Federation's
annexation of the Crimea in 2014 or the former Soviet Union's invasions
of Hungary in 1956, Czechoslovakia in 1968, and Afghanistan in 1979.
Unfortunately, the images also occasionally describe stories about the
civil unrest that has periodically rent our society or the unnecessary
and unwise use of SWAT units for law enforcement purposes. Traditional
Federal law enforcement agencies--the FBI, the Secret Service, the
Marshal's Service, for example--have need of SWAT units for the
different type of work they do. Entering structures where terrorists
are plotting their crimes, where violent criminal are ``holed up,'' or
where large quantities of controlled substances are being held for
distribution--those and some other instances are classic examples of
the need for the specialized training and equipment that SWAT units
have. Unfortunately, however, other Federal agencies may also seek to
have comparable units of their own. The proliferation of these units
can create terrible problems for Federal law enforcement, not the least
of which is the increasing perception of the American public that law
enforcement officers have taken on the image and attitude of military
Special Forces units.
Militarization of law enforcement will inevitably lead to incidents
that no one wants to see happen but that everyone, if honest, knows
will inevitably occur. Once an agency has a SWAT team, the team will
deploy frequently. The team members will want to work in that capacity
as often as possible because it is far more fun to break down a door
than to review the boxes of papers that are the grist for the mill in a
white-collar criminal investigation. The unit's supervisors will want
to deploy the team to prove that it is a necessity. But there are only
so many heavily fortified biker meth labs, so agency SWAT units will
wind up being deployed in settings where there is no good reason for
them to be called out--like the incident in which suburban Maryland
officers mistakenly made a dynamic entry into the home of the local
mayor and shot his two Labrador Retrievers.\46\ The result will be
needless deaths.
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\46\ See, e.g., Radley Balko, Rise of the Warrior Cop: The
Militarization of America's Police Forces (2014).
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There are a few additional points to keep in mind. First, there is
likely to be a very small number of instances in which regulatory and
nontraditional crimes need the special skills of a SWAT team and only a
small number of Federal agencies that need such a unit on call. Second,
there are several Federal agencies, such as the FBI and Marshal's
Service, with officers dedicated to the work done by a SWAT team. A
Federal agency that believes a SWAT team is necessary can call on one
of those agencies for assistance.\47\ Third, Federal agencies need to
accept the fact that going without your own SWAT team does not make you
an inferior law enforcement agency. There is nothing remotely degrading
about working in a field that is dedicated to the investigation of
white-collar crimes. Keeping your neighbors safe from grifters is a
noble undertaking. Fourth, despite what Ben Franklin said, we need to
make a trade-off between security and freedom. Militarizing Federal law
enforcement agencies will engender suspicion, hostility, and
resentment, all of which will poison the relationship that the Federal
agents need in order to carry out their investigative responsibilities.
---------------------------------------------------------------------------
\47\ In some instances, a Federal regulatory agency also may be
able to enlist state or local police officers for assistance. For
example, the New York City Police Department has an Emergency Services
Unit that functions as a SWAT unit.
---------------------------------------------------------------------------
Does this mean that there never will be an occasion in which a SWAT
team is necessary to enforce a regulatory scheme or a nontraditional
crime? Of course not. Whether such a unit is necessary must be answered
in each case based on its own facts. After all, violent criminals can
commit regulatory or nontraditional crimes. But there are Federal
agencies with trained personnel, like the FBI and Marshal's Service,
which can assist when such units are necessary.
Conclusion
Thank you for the opportunity to offer the subcommittee my views on
these law enforcement issues. I am glad to answer any questions that
members of the subcommittee may have, and I also am willing to help the
subcommittee in its work.
*****
The following item was submitted by Mr. Larkin for the record and will
be retained in the Committee's official files:
-- Article: Public Choice Theory and Overcriminalization. Paul J.
Larkin, Jr. Harvard Journal of Law & Public Policy, (2013).
______
Mr. Gohmert. Thank you very much, Mr. Larkin.
We appreciate all of your testimony today. At this time we
are going to move into questioning by the Members. I am going
to be here for the duration of the hearing, so I am going to
recognize first my colleague and my friend from Georgia, Mr.
Hice, for 5 minutes for questions.
Dr. Hice. Thank you very much, Mr. Chairman, and I
appreciate this hearing to, frankly, examine the accountability
of enforcement divisions of the Department of the Interior as
well as the U.S. Forest Service.
Before I begin my questions, like a number of other Members
here on the subcommittee, my home state of Georgia was directly
impacted by the very issue that we are dealing with this
morning. Both north Georgia and the western portion of North
Carolina were recently the focal point of a 4-year, multi-
Federal and state joint operation called ``Operation Something
Bruin.''
I do not know if you are familiar with that, but it
involved the Forest Service, Fish and Wildlife Service, Park
Service, the Georgia Department of Natural Resources, and the
North Carolina Wildlife Resources Commission, and what they
were trying to do was to stop a group of individuals who were
illegally killing bears in that portion of our country.
``Operation Something Bruin'' came to a head in February of
2013 with the prosecution of 51 different individuals on both
Federal and state charges. Last month our colleague, Mark
Meadows, who is on the Oversight and Government Reform
Committee, but chairs within that committee the Government
Operations Subcommittee, held a field hearing in Waynesville,
North Carolina, on that particular operation and how it
transpired. It involved testimony from private citizens as well
as Federal and state agencies.
What was found was alarming to me. Media reports as well as
individual testimony found that at least three of our agents,
undercover officers, actually killed bears during that, and
they were actively involved in trying to entrap other hunters
in that whole ordeal.
There were also accounts of our Federal raids--our agents
federally raiding and seizing personal property, damaging
property that was unrelated to the whole ordeal.
I commend Chairman Meadows on that particular operation,
and, Chairman, I would like to ask unanimous consent to include
letters from Mr. Meadows to the Inspectors General of the
Department of the Interior and Agriculture and those responses
in the record if I can, sir.
Mr. Gohmert. Without objection, so ordered.
Dr. Hice. With that, let me begin, Mr. Larkin, with you.
Are you familiar, by the way, with ``Operation Something
Bruin'' ?
Mr. Larkin. I am not as familiar as you are. I have read an
article about it; so I am generally familiar with it, but not
with the specifics.
Dr. Hice. OK. Based on what I just shared with you about
that, it is an extremely, to me at least, elaborate example of
Federal agencies working with state officials in this regard.
There were a lot of controversies, as I mentioned.
Do you believe this is a wise use of Federal law
enforcement resources?
Mr. Larkin. No, I do not. I think enforcement of the fish
and game laws and the like should be left to state and local
authorities. Generally speaking, they have the authority even
if the property that is at issue is in the concurrent
jurisdiction of the Federal and state governments.
If the property happens to be within the exclusive
jurisdiction of the Federal Government, then the regulations
promulgated by the U.S. Marshal Service allow the Marshal to
designate state and local law enforcement officers as Special
Deputy U.S. Marshals, so that they can then enforce the state
laws in that area.
Now, the problem here is also a more general one. Federal
law enforcement agencies have grown up in a haphazard manner
over the course of the Nation's history. Originally we started
with the Marshal Service and the Customs Service--the Marshal
Service because we needed someone like a sheriff; the Customs
Service because the only way we made any money was through the
taxes imposed on importation and exportation.
All of the other agencies have grown up without Congress
ever stepping back and asking itself this question: What are
the crimes that only the Federal Government can handle? And
there are some.
Only the Federal Government can handle espionage,
international terrorism, state and local political corruption,
civil rights violations, environmental crimes, interstate
complex or very sophisticated fraud. Those are the sorts of
crimes that the Federal Government should focus on; and it
should limit its assets devoted to law enforcement to those
sorts of matters, not the Fish and Game matters.
Dr. Hice. OK, sir. Thank you.
I did have some other questions for the sheriff, but my
time has expired. I yield back. Thank you.
Mr. Gohmert. Thank you.
At this time we will recognize the Ranking Member,
Congresswoman Dingell, for 5 minutes.
Mrs. Dingell. Thank you.
Let me just ask one question following up on that, and then
I have some questions for Mr. Schoppmeyer.
From what you just said, are you saying that state and
locals should be in charge of law enforcement on Federal lands?
Mr. Larkin. They should handle the law enforcement crimes
that state and local law enforcement officers can handle. It
does not mean that we should denude Federal law enforcement
officers of all their ability on Federal land.
For example, were a Marshal or were an FBI agent to see a
violent crime committed in his or her presence, that agent
should step in and handle that; but Federal agents are trained
and are qualified to handle crimes that only the Federal
Government can. So, whenever you divert their time and their
assets and their resources to handle crimes that state and
local people can handle, you take away from what they can do.
You see, the problem often in law enforcement is not that
there is not a law that deals with the problem. The problem
often is there are not enough people to investigate the case.
Take fraud, whether it is an international fraud, an
interstate fraud, or a fraud that is committed entirely on Wall
Street. It is a very resource intensive investigation. You do
not oftentimes need new laws to deal with those sorts of
crimes. What you need are more agents, more accountants, more
lawyers, more assets like that to look into the problem.
If you take the people that you need to investigate those
crimes that only the Federal Government can handle away from
that responsibility and give them the responsibility of
handling things that the state and locals can handle, you are
hurting the Nation's interest in law enforcement.
Mrs. Dingell. Well, I want to ask Mr. Schoppmeyer a
question because my concern is that state and local governments
are already complaining about the lack of resources to do what
they do, and I do believe it is critical that we keep our
Federal lands safe. So where is this delicate balance?
Congress, I believe, has not done an adequate job of
funding our land management agencies overall, and it has had an
impact on law enforcement.
Mr. Schoppmeyer, would you describe some of the negative
consequences of the budget cuts that we have seen over the
years and perhaps give your observations as to what would
happen if state and local were to have responsibility for
Federal lands as well?
Mr. Schoppmeyer. Well, with all due respect to Mr. Larkin,
I think some of the points that he is missing here are that the
Lacey Act, we will take for instance, is the oldest
conservation law in the United States. It goes back to 1900.
Specifically the Lacey Act regulates the interstate or foreign
commerce of illegally taken fish, wildlife, and plants. In
such, as Mr. Larkin talks about, sophisticated complex civil
and criminal cases involving the Lacey Act, the states are ill
equipped to deal with it. The county is ill equipped to deal
with it.
Quite honestly, if you did not have NOAA agents and Federal
Fish and Wildlife agents enforcing the Lacey Act, it would not
get done.
The other issue that came up with the FOCUS Act that was
introduced by Senator Rand Paul is that, specifically, why
don't we just create individual acts to protect rhinos and
elephants. Well, you just cannot do that. I mean, it has to be
wide-sweeping legislation.
You know, questions are asked, ``Well, why do we enforce
other country's laws? '' Because they are even more ill
equipped than we are to deal with these issues.
I personally would like to be able to know, even if I have
never seen one in the wild, that a rhino exists and that an
elephant exists. When it comes to the resources, the one thing
that Mr. Larkin and I disagree on is you will never--and we
represent the FBI, by the way; they have their own agents'
association, but I am the Agency Affairs President--I can tell
you that you will never see an FBI agent unless he is asked
into an investigation, because there may be other things going
on with terrorism funding and things like that, that are their
other jurisdiction. You are not going to see an FBI agent out
in the woods. It is just not going to happen.
Mrs. Dingell. Well, let me ask you as our time is running
out. Why is being a law enforcement officer for a land
management agency different than other law enforcement jobs?
Mr. Schoppmeyer. We go through the same training at the
Federal Law Enforcement Training Center, and then we branch off
to go to our individual agencies for training. It is entirely
different. It is called nontraditional law enforcement.
We protect natural resources. We also protect the public
that visits these parks. Visitor safety protection is a high
priority with the Forest Service, with the Park Service, and
with Fish and Wildlife.
It really does come down to the fact that it is a
specialized area, and you've got to want to be a natural
resource law enforcement officer.
Mrs. Dingell. I am out of time, Mr. Chairman.
Mr. Gohmert. Thank you.
At this time I will recognize Mrs. Radewagen for 5 minutes.
Mrs. Radewagen. Thank you, Mr. Chairman and Ranking Member.
Mr. Ehnes, one of our witnesses is very critical of the
impact your hobby has on the environment. Is this the sort of
hostility you face from Federal law enforcement, or would this
be an example of a rare exception that poisons the well at a
time when you are trying to build trust with the agencies?
Mr. Ehnes. Mr. Chairman, Congresswoman, it is an attitude
that does exist in some agencies, and we have done, I think, a
very good job in many areas of building very strong
relationships with the Forest Service.
The stove-piping is helping damage those recreations from
the standpoint that we have good communications with the Forest
supervisors, the district rangers, the recreation staff; and in
my personal experience with the Lewis and Clark, I will call
all of those people friends. We work very closely to make sure
that our resource for our recreation is managed well and the
people are educated.
In the example that I gave of the checkpoint that the LEO
set up at one of our rides, it was perplexing to our riders
because we as an organization feel as though we have a very
strong relationship and did not understand why that had to
happen that way. It would have been a great opportunity for the
LEO to introduce himself to our riders and actually enhance the
relationship had that person come into the camp.
If the communication or the direction from the Forest
supervisor or the district ranger would have been in place,
that's probably what would have happened because it would have
heard about the strength of that relationship.
Mrs. Radewagen. Thank you.
Sheriff Brown, as an elected sheriff, you have a
fundamental level of accountability that your colleagues in the
Forest Service do not. How does this undermine your ability to
keep your constituents safe?
Sheriff Brown. The difference is exactly that. Much like
all of you are elected and you have a responsibility to the
citizens that put you here in Washington, I have that same
responsibility. When there are problems in my county, those
phone calls come to my office.
I cannot deal with either disciplinary issues or officer
conduct issues with the Forest Service LEO in my county.
However, if we have a good relationship, and I will tell you
that I do today; and I can tell you that 15 years ago I did
not. Things have changed for me in my county, and I have the
ability to work with the Special Agent and the ability to speak
directly with the Director here in Washington.
If there are issues, we can talk those things through; and
I have to be able to assure the people that elected me, that
put me in the position that I am in, that those issues are
being addressed. Much like I would hold my deputies
accountable, I expect the Forest Service to hold their officers
accountable as well.
Mrs. Radewagen. Mr. Larkin, are there examples of
decriminalizing regulatory offenses, or is this a genie out of
the bottle situation where reversing course is near impossible?
Mr. Larkin. I cannot think of any specific instances where
Congress had decriminalized existing criminal programs in
regulatory agencies, but it does mean that Congress should not
consider this a worthwhile effort.
For example, it is often the case that Congress adds small-
scale criminal provisions to different pieces of legislation,
maybe making something a misdemeanor or a minor offense so they
can then draw on the existing law enforcement agencies to do
the work.
Over time then you will see that people will try to
accumulate these crimes into larger crimes and felonies and add
to the authority of agencies by creating some new programs.
In my view what Congress should do is reconsider the entire
allocation of Federal criminal investigation responsibilities
and transfer the authority that regulatory agencies' criminal
programs currently have, transfer these to the FBI.
Mrs. Radewagen. Thank you, Mr. Chairman. I yield back.
Mr. Gohmert. Thank you very much.
At this time the Chair recognizes Mr. Gallego for 5
minutes.
Mr. Gallego. Thank you, Mr. Chairman.
Mr. Schoppmeyer, I apologize. Did I say that correctly?
Mr. Schoppmeyer. Yes.
Mr. Gallego. What is the feeling among some of our agents,
at least how they are feeling especially with the kind of
rhetoric that Cliven Bundy is putting out there--not the racist
rhetoric but the anti-government, anti-environmental rhetoric
that basically I believe puts a lot of our men and women in a
very weird and awkward position when trying to enforce what we
understand are our grazing laws?
Mr. Schoppmeyer. Well, I can say this. With regards to the
Cliven Bundy situation, our agents and officers that were
involved in that situation, BLM and the other agencies, they
are concerned. They are concerned about personal safety, they
are concerned for their families; and that is not an
understatement.
As far as the relationship goes, I find it so bizarre that
we can have local and county law enforcement be at odds with
Federal law enforcement in the Cliven Bundy situation during
that incident; yet several months later during Police Week
here, right here in Washington, DC, that we can have those
officers standing shoulder to shoulder to respect those that
have fallen. It is bizarre to me that that situation can occur.
Again, with respect to your question, I think there is
great concern by all of the land management agencies.
Mr. Gallego. Thank you.
This question is for Mr. Larkin and Mr. Schoppmeyer.
I am glad that we are starting to focus on just the law
enforcement questions regarding the agency, but I also agree
that there are overall serious questions that must be answered.
We are dealing with human lives as well as, I guess, animal
lives too. But one of the things I think we are missing, is
instead of talking about removing criminal penalties from a
very effective conservation law and taking away firearms of
those tasked to enforce the law, I want to talk about some of
the weapons that are coming down.
More specifically, I want to talk about the 1033 Program
that brings surplus heavy weaponry onto local and state law
enforcements, as well as Federal land management agencies.
Right now about 8,000 agencies currently get material through
the 1033 Program from the Department of Defense, including the
National Park Service. The program was brought to wide
attention by the shooting of Michael Brown in Ferguson.
Since then, we have learned that the 1033 gear has been
given to schools and colleges. We have also learned that some
local law enforcement wants to return the equipment, but the
Department of Defense will not take it back.
The program was originally intended to focus the materials
on counter-narcotics operations, and it is not working. There
is enough common ground that I think in this committee that we
can dig into the over-militarization question in a very
bipartisan way, and I hope we do, and I hope it does.
Mr. Larkin, you have written a lot about over-
criminalization. Do you think the 1033 Program is only a
problem for land management agencies, or are there problems
with the program beyond that, and the whole concept of it?
Mr. Larkin. The latter.
Mr. Gallego. Say again. I am sorry.
Mr. Larkin. The latter.
Mr. Gallego. The latter. Thank you.
Mr. Larkin. I think what you have is an unfortunate
circumstance where we have had an over-proliferation of SWAT
teams and military equipment used by law enforcement
departments. There are not nearly the number of instances where
that is necessary.
The problem is, once you start creating SWAT teams,
everybody wants one. You could call it the curse of
testosterone, if you will. You have this problem not only by
giving this authority to Federal regulatory agencies, but by
giving military equipment to too many state and local agencies.
The proliferation or over-militarization of law enforcement
is only going to endanger the relationships that law
enforcement needs with the public.
I was a Federal agent. I worked in the EPA criminal
program. I could not have gotten my job done without the work
of state and local law enforcement. If law enforcement damages
that relationship, and if both of them damage the relationship
with the public, no one is going to benefit.
Mr. Gallego. Thank you.
Mr. Schoppmeyer, the same question to you.
Mr. Schoppmeyer. Yes, I would say that it is on a case-by-
case basis with the natural resource agencies. We know that
there is DTO activity up as far as the Upper Peninsula of
Michigan; and quite honestly, your only enforcement up there
besides Border Patrol and Customs and Border Protection is your
land management agencies.
I, as an agent or officer, would not want to confront
somebody from the Mexican cartel or something with just a
standard firearm that is issued to me as a sidearm.
Then there is the whole issue of the visiting public up in
that area who quite honestly could run into a very dangerous
situation.
So I think it is a case-by-case basis.
Mr. Gallego. Thank you.
I yield back my time.
Mr. Gohmert. Thank you.
Along those lines, we received a letter from the American
Civil Liberties Union; and, after consulting with the Ranking
Member, I ask unanimous consent that this letter be added for
the record. It is interesting when The Heritage and ACLU agree
on a subject like this.
[The letter from the American Civil Liberties Union offered
by Mr. Gohmert follows:]
ACLU--American Civil Liberties Union,
Washington, DC,
July 28, 2015.
Hon. Louie Gohmert, Chairman,
House Subcommittee on Oversight and Investigations,
Committee on Natural Resources,
1324 Longworth House Office Building,
Washington, DC 20515.
Hon. Debbie Dingell, Ranking Member,
House Subcommittee on Oversight and Investigations,
Committee on Natural Resources,
1324 Longworth House Office Building,
Washington, DC 20515.
Re: ACLU Requests Examination of Interior's Acquisition of Military
Weapons and Equipment
Dear Chairman Gohmert and Ranking Member Dingell:
The American Civil Liberties Union (ACLU) commends the Oversight
and Investigations Subcommittee of the U.S. House Natural Resources
Committee for holding a hearing on ``Accountability, Policies, and
Tactics of Law Enforcement within the Department of the Interior (DOI)
and the U.S. Forest Service.'' We ask that the Committee examine the
relationship between DOI and the Department of Defense (DOD) 1033
program, which provides military weapons and equipment to federal,
state, and local law enforcement agencies. We have concerns with the
militarization of DOI bureaus like the National Park Service (NPS),
which has acquired 4,100 pieces of military equipment worth
approximately $6 million over the past 25 years.\1\
---------------------------------------------------------------------------
\1\ Matthew Renda, Does Yosemite Really Need $435,000 of Military
Equipment?, The Edge, January 7, 2014.
---------------------------------------------------------------------------
The ACLU believes that the line between military and law
enforcement cannot be blurred. Our opposition to militarization is
consistent with the ACLU's nearly 100 year old mission to defend and
preserve the individual rights and liberties that the Constitution and
the laws of the United States guarantee everyone in this country. As
the nation's guardian of liberty, and with more than a million members,
activists, and supporters nationwide, the ACLU advances the principle
that every individual's rights must be protected equally under the law,
regardless of race, religion, gender, sexual orientation, disability,
or national origin.
The DOD 1033 Program is authorized by Section 1033 of the National
Defense Authorization Act of 1997. It permits the Secretary of Defense
to transfer, without charge, excess DOD supplies and equipment to
federal, state, and local law enforcement agencies.\2\ Since the 1990s,
the Defense Logistics Agency has transferred excess military equipment
to approximately 8,000 federal and state law enforcement agencies and
has provided $5.1 B in total property.\3\ This equipment includes but
is not limited to, military-grade vehicles, grenades, assault rifles,
and night vision equipment.
---------------------------------------------------------------------------
\2\ The White House, Review: Federal Support for Local Law
Enforcement Equipment Acquisition, December 2014, available at https://
www.whitehouse.gov/sites/default/files/docs/
federal_support_for_local_law_enforcement_equipment_acquisition.pdf.
\3\ Id.
---------------------------------------------------------------------------
We have concerns that this program has led to militarized policing,
which we raise in our recent report, War Comes Home: The Excessive
Militarization of American Policing \4\. As the nation watched Ferguson
Missouri, in the aftermath of the death of Michael Brown, it saw a
dangerously militarized response by law enforcement. However,
militarized policing is not limited to state and local law enforcement.
For example, in 2010, a multi-agency taskforce, including armed
officers from the Food and Drug Agency, raided a Venice, California
organic grocery store suspected of using raw milk.\5\ The following
year, armed federal agents with the Department of Education's OIG
smashed down the door of a Stockton, California home and handcuffed a
man suspected of student financial aid fraud.\6\
---------------------------------------------------------------------------
\4\ See ACLU, War Comes Home: The Excessive Militarization of
American Policing, June 23, 2014, available at https://www.aclu.org/
sites/default/files/assets/jus14-warcomeshome-report-web-re11.pdf.
\5\ P.J. Huffstutter, Raw-food raid Highlights a Hunger, The Los
Angeles Times, July 25, 2010.
\6\ Elizabeth Flock, Education Department Agents Raids California
Home, The Washington Post, June 8, 2011.
---------------------------------------------------------------------------
We are concerned by the relationship between the DOD 1033 program
and some of the Department of Interior agencies. While the National
Park Service handbook explicitly limits the agency's ability to acquire
firearms ``to the minimum needed for an effective law enforcement
program,'' the service has obtained thousands of handguns, high-powered
assault rifles, bayonets, and shotguns through this program. And
unfortunately, an exact accounting of these thousands of weapons is not
known as a 2013 Inspector General report identified a poorly managed
inventory.\7\
---------------------------------------------------------------------------
\7\ Supra note 1.
---------------------------------------------------------------------------
We fear that the acquisition of military weapons and equipment
increases the potential for excessive policing, such as the 2013 raid
of a small mining operation in Chicken, Alaska. During this raid, a
heavily armed and armored multi-agency taskforce, including officers
from the National Park Service and Fish and Wildlife Service, descended
upon several mines to search for Clean Water Act violations.\8\ Alaska
Governor Sean Parnell voiced his deep concern, noting that the use of
armed and body-armor-wearing officers who were relatively unfamiliar
with the area put people at risk.\9\ We worry that these events will
only become more frequent and dangerous with the continued acquisition
of military equipment by law enforcement at all levels.
---------------------------------------------------------------------------
\8\ Valerie Richardson, EPA Facing Fire for Armed Raid on Mine in
Chicken, Alaska: Population 7. Washington Times, October 11, 2013.
\9\ Sean Doogan, Probe Into Raid of Chicken Miners by Gun-toting
EPA Investigators Finds No Laws Broken. Alaska Dispatch News, March 13,
2014.
---------------------------------------------------------------------------
The ACLU understands the desire to ensure the safety of both
federal employees and civilians but we question the necessity of
military-grade equipment in achieving that end. Through greater
transparency, more oversight, policies that encourage restraint, and
limitations on federal incentives, we can foster a law enforcement
culture that honors its mission to protect and serve.
We appreciate the Subcommittee's commitment to ensuring
accountability in law enforcement as demonstrated by the call for a
hearing and respectfully request an examination of the relationship
between DOD 1033 and the Department of the Interior. If you have any
questions, please feel free to contact Kanya Bennett, Legislative
Counsel.
Sincerely,
Michael W. Macleod-Ball,
Acting Director.
Kanya Bennett,
Legislative Counsel.
______
Mr. Gohmert. At this time the Chair recognizes Mr. Mooney
for 5 minutes.
Mr. Mooney. Thank you, Mr. Chairman.
Mr. Ehnes, in your testimony you singled out an experience
where law enforcement set up a check station. Can you elaborate
on what created an issue there and possibly damaged trust with
the Forest Service?
Mr. Ehnes. Mr. Congressman, yes; and I want to be clear
that check stations are an important tool in the right areas. I
live in Montana and have recreated there for 45 years on public
land, and I nor anybody that I am acquainted with has ever
encountered a check station on a trail anywhere. So, it is not
a tool that gets applied in Montana on a consistent basis.
There are places where it is appropriate. In this
situation, the permitted event was with the Great Falls Trail
Bike Riders and Montana Trail Vehicle Riders. As I mentioned,
we go through a great deal of effort to make sure that
compliance is perfect, that our people are examples, and that
we use those events to educate anybody that we run into.
I think that had we had the opportunity for enforcement to
be informed about our relationship with the Forest and have
them engaged with us at the trail head, it could have been an
opportunity for us to build a strong relationship. We really
want to work with enforcement to help them do a better job,
understand how to report crimes, all of those things that could
have resulted in a better outcome.
The fact that they were out just a little ways from the
trail head with clearly the intent of checking our members who
are the shining stars, if you will, of the OHV community, did
damage their trust because they felt a little bit ambushed.
Mr. Mooney. Thank you for expanding on that.
Sheriff Brown, a question for you. I have one of the U.S.
Fish and Wildlife Service Training Centers in my district,
actually in the county I live in, and I have toured it. They
are good people; but I also understand you've got to have as
clear as possible lines of delineation of whose job is what,
who enforces what, where your demarcations are.
In your opinion, what do you view as the proper role of
Forest Service law enforcement officers?
Sheriff Brown. Well, I think everything that they do that
is consistent with their mission. There is no imaginary line
where the national forest starts and the county ends. The
county's boundaries surround the national forest. The sheriff
has complete authority and jurisdiction on all state laws
within that national forest.
We typically will not enforce Code of Federal Regulation;
Forest Service will do that. It typically and traditionally was
timber theft, resource protection issues, especially when there
was a great deal of logging occurring, which there is not
today. So, one might argue there is not a great deal of timber
theft, but there are a lot of resource issues.
In addition to that, I think sheriffs across the West
concur that these armed officers--and by no means are we
suggesting we disarm the Forest Service--but these armed
officers have responsibility if they are going to be out there
to make sure that if something is happening that is a detriment
to a forest user or forest visitor, that they are authorized
and trained to take action.
But, we also want recognition of the sovereignty of the
Office of Sheriff, and we want the Forest Service to recognize
and work with sheriffs and communicate with sheriffs. I think
that the suggestion of the local oversight, the law enforcement
councils for local oversight are going to give us that
opportunity to work together and communicate very specifically
on issues that have come out of Montana on this trail ride.
If law enforcement is communicating with the users of the
forest, with the sheriff in that county, we are going to have a
much, much better working relationship.
Mr. Mooney. And we have a minute left on my time, Sheriff,
but a follow-up.
In addition to understanding the proper roles,
accountability would also be important. It appears sometimes
issues between law enforcement agencies can boil down to
personalities, but they fester on because of lack of
accountability from various Federal agencies.
So in your view, what are the options available to increase
accountability?
Sheriff Brown. Two things. The local councils are the first
thing. If the Special Agent in Charge in my particular case has
Oregon, Washington, and Alaska. If we are regularly meeting,
and through the Western States Sheriffs' Association we created
a Memorandum of Agreement, the Forest Service has signed onto
it, and it calls for that accountability issue.
When a sheriff can make a complaint to a captain or a SAC,
and that SAC or captain comes back and says, ``Sheriff, here is
how we have addressed it. Here is the resolution.'' We then can
go back to our constituent and say, ``Listen. It is taken care
of. I can assure you of that.''
Those are the kinds of things I think through local
oversight that we will be able to resolve much quicker than we
have in the past.
Mr. Mooney. Thank you.
I yield back my second.
Mr. Gohmert. I thank the gentleman.
At this time the Chair recognizes the gentleman from
Arkansas, Mr. Westerman, for 5 minutes.
Mr. Westerman. Thank you, Mr. Chairman, and thank you for
coming here today for this important hearing.
I will add that I have a lot of national forests in my
district, and I spend a lot of time driving through them. Last
year on the campaign trail, there was a one-vehicle accident in
a very remote area; and Forest Service law enforcement were the
first ones on the scene. They were the first responders. It was
in an area where there was no cell phone reception, but they
were able to use their radios and get other emergency personnel
there.
So, they often work in remote areas by themselves, and I
think the folks on the ground are doing a fantastic job at
least in the national forest where I live.
Mr. Larkin, in his testimony Mr. Schoppmeyer explained that
decriminalizing the Lacey Act would cripple the good guys in
the fight to keep visitors safe and our greatest national
treasures accessible to all. Could you give us your perspective
on this view?
Mr. Larkin. I think he is wrong for several reasons. In the
first place, the Lacey Act is unconstitutional. As I explained
in my written statement, the Lacey Act delegates authority to
foreign officials, officials of foreign governments, to define
elements of crimes that can be prosecuted in the U.S. courts.
That violates Articles I and II of the Constitution, as well as
the due process clause.
Second, the U.S. Marshal Service or the FBI also have
authority in the areas that now the Fish and Wildlife Service
works. I believe that it would be better to transfer the
authority that we have now given to different agencies, such as
the Fish and Wildlife Service, to the U.S. Marshal Service or
the FBI, so that you can take advantage not simply of economies
of scale, but of the greater long-term experience and greater
access to SWAT units and the like when it is necessary in order
to enforce the laws that are necessary in those areas.
Third, state and local law enforcement officers can be made
Special Deputy U.S. Marshals in areas that are subject to
either exclusive or concurrent Federal jurisdiction, and so
state and local law enforcement officers can be used to deal
with those sorts of crimes.
Fourth, the Lacey Act is a very specialized statute. The
Federal Assimilative Crimes Act incorporates, for any
particular area that is within Federal jurisdiction, state and
local offenses. So Federal law enforcement officers can enforce
those state and local offenses even if there is not a similar
Federal crime on the books.
So, eliminating the Lacey Act will in no way endanger the
lives or safety of the people who benefit from using our
national parks.
Mr. Westerman. Thank you.
Sheriff Brown, I appreciate your suggestions to improve law
enforcement with the Forest Service. Some would suggest that
they are merely a paranoid attempt to reduce the authority of
the Federal Government. Without legitimizing that opinion, can
you speak to why this is a question of safety and not just
political theater?
Sheriff Brown. The issue really stems, I guess, or goes
back to the basic understanding of our community--what does the
sheriff do and what does the Forest Service do? When it comes
to safety, the calls that I am getting, the calls that I have
received have been, ``Sheriff, I got stopped,'' or, ``I was
stopped,'' or, ``I was contacted by a Forest Service guy
wearing a gun. Does he have jurisdiction? Does she have
jurisdiction?'' It is that confusion in some of the minds of
the people that have had to deal with that.
Then an explanation, I think, that is warranted that says,
``OK. Let me try and explain to you. Here is what they can do.
Here is how they enforce it under Code of Federal Regulation,
and here is where their authority starts or stops.''
Well, if that continued contact, in my particular case,
rises to a point where somebody feels they are being harassed
or constantly picked on, et cetera, and I cannot get resolution
through the local patrol captain or the local SAC, which for a
lot of years we could not, then I think it creates a safety
issue.
Until we open up those lines of communication and we get an
understanding from all sides that are involved in this, we will
not resolve these issues. Things are better today than they
have been in the last 5, 6, 7 years, and I think it is directly
tied to the relationship that the Western State Sheriffs has
developed with the Director of Law Enforcement for the Forest
Service.
We have a new Director at the BLM. We are working on that
relationship as well. Ninety percent of the public lands in
this country are out West. I think things for the most part are
good, but there are places where we have to work on
relationships, communication, and an understanding of
authority.
Mr. Westerman. Thank you, Mr. Chairman.
Mr. Gohmert. Thank you.
At this time, I will recognize the Chairman of the Full
Committee, the distinguished Chairman Bishop, for 5 minutes.
Mr. Bishop. Thank you. Louie, I appreciate that.
Sheriff Brown, let me ask you a couple of questions if I
could, because I think this is a significant issue; and I
appreciate all four of you for being here talking about it. I
think we need to go into greater detail on this particular
issue at the same time.
You talked about how your situation is better than it was
15 years ago. Is that due to the personalities involved or is
there a structural reason for that?
Sheriff Brown. It is not structural because the Forest
Service structure for their command has not changed in 15
years. It is people.
Mr. Bishop. So it is the personalities?
Sheriff Brown. In my case, it is a person. There was no
accountability for that person in my county. That person has
since retired, and things began to get a little bit better.
Mr. Bishop. It would be nice if we can guarantee that and
not just rely on the personalities of individuals involved,
recognizing that if you have the right people almost anything
can be done. If you do not, everything screws up somehow.
Sheriff Brown. That is right.
Mr. Bishop. So, Sheriff, I understand that each Forest
Service, BLM, and other Federal law enforcement agencies have
to go through several months of training at a training center,
different ones. Are you aware of any training modules that
teach interaction with local law enforcement in these training
centers?
Sheriff Brown. That is a great question. I am not, and in
fact, that is something the Western Sheriffs have begun talking
about, and especially with a service provider that may be able
to assist us in establishing either on-line or in-person
training courses that will talk about that very thing, that
interaction, that scope of authority, the jurisdiction, how we
intermingle within our public lands, within our counties.
Mr. Bishop. So obviously, if we do not have those modules
going, the sheriffs' organizations have not had any input into
that. That would be something structurally that we could do to
improve the situation.
What would your view be of having a national law
enforcement review board for each agency that would include not
only the Federal line officers, but the county sheriffs that
could review specific concerns and policy changes?
Sheriff Brown. My first thought about that is one more
layer of bureaucracy is going to muddy the water even more than
it may already be. I think the best chance for oversight comes
at the local level; and I think establishing these law
enforcement councils at the local level where the sheriff,
Special Agent from the BLM, Special Agent from the Forest
Service, the patrol captains and commanders from both of those
public agencies are involved are going to be our best
opportunity for oversight.
Mr. Bishop. OK. If I ask you probably the most important
reason why we ``de-stovepipe'' these organizations, if we could
do that--that is not a word, but it is the best I could come up
with--``de-stovepipe'' these organizations if they would
provide better coordination with county sheriffs and serve the
public?
Sheriff Brown. My answer to that is back when the Forest
Service was, I guess, a strong agency both financially and
people-wise--the district rangers, the Forest supervisors, the
regional foresters, those people lived in our communities;
their kids went to school with our kids; they went to the same
churches together. We knew each other, we worked with each
other, and who best knows what needs to happen on the national
forest or that particular ranger district than a district
ranger or a Forest supervisor?
Those people used to be within the line of authority of the
law enforcement component as well. When the structure changed,
that changed, and our relationships began to change. We no
longer negotiate co-op agreements with our district ranger. We
no longer sit and talk about operational planning for law
enforcement or functions on the national forest with our Forest
supervisor or our district ranger. They are not in that chain
of command anymore.
I know there are particular reasons why maybe ``de-
stovepiping,'' if you will, will not work; but I think that
there has to be a reintegration somehow at the local level of
the law enforcement.
Mr. Bishop. We need to try that. I realize we have had a
lot of conversation about Forest Service, but BLM has the same
situation. In my state, it is even more significant; and once
again, dealing with personality, I would like to have some kind
of structural concept in there that could minimize those
personality conflicts when they do exist, or at least resolve
them much quicker than they have--even to the example when we
had some hearings a couple of years ago on Park Service law
enforcement, to realize you have a couple of different
entities, one law enforcement, that only actually the Park
Service does not even have any control over; they are all on
their own that deal with only three sections of this country.
All those issues need to be resolved in some particular
way, so I am glad we are starting this process of trying to
find out some ways that we can solve these issues without
relying on simply the right people having the right
personalities at the right time.
Thank you, Mr. Chairman.
Mr. Gohmert. I thank the Chairman.
I recognize myself for 5 minutes.
Following that up, it does seem rather ridiculous that
there would be any area in the country where a resolution of
conflict would be resolved after many years or even decades of
service by one individual, that he finally retires and that
makes things better.
I know Mr. Schoppmeyer mentioned that you do not find FBI
in the woods. But in east Texas, in my own personal
experience--having been a prosecutor, a judge, and a chief
justice, I have seen and read lots of testimony; I have talked
to law enforcement officers. We often have FBI in the woods
because, Sheriff, they do exactly what you are talking about
you would like to see between locals and Federal officers, and
that is they meet together and they talk, and when there is a
problem, they get together and they coordinate.
But here again, that also, as you being law enforcement
would know, takes sometimes a trust. With the FBI, that
suffered back during the Bush administration under Director
Mueller, who back then had a 5-year ``up or out'' policy. We
would get somebody good, the local law enforcement would start
to trust him, and then they would be up or out.
I complained bitterly about that policy. It has changed
now, but, Sheriff, do you have any formal proposal as to how
that structure might be set up between local and Federal
officials to coordinate better?
Sheriff Brown. There are models across, I am sure, many
states. In my particular region, we have two law enforcement
councils that the membership is made up of all of the local
police departments and the county sheriffs within a three- to
four-county region. And those issues are really to talk about
common problems.
In one particular county, it is a county with nine
different police departments with one prosecuting attorney.
That particular prosecuting attorney is dealing with various
issues, whether it is tied to pursuits, or drug cases, or child
sex abuse cases; so there is some uniformity in discussions at
these local law enforcement councils.
I am suggesting we can accomplish much the same thing if we
are meeting with our Federal land manager or law enforcement
agencies to talk about operational planning--whether the
Rainbow Festival is coming to your county next year, or whether
it is off-road vehicle use, or trail use, or trail
construction, that's happening a lot in my county that is
illegal.
But those things, I think, have to be talked about. I do
not want to do the job of a Federal law enforcement officer. I
do not want to do resource protection issues. By default, we do
some of that under state law, but I do not have either the
resources or the time to do that.
But if they are going to be out there doing it, there are
going to be times when they are coming across things that are
primarily and traditionally the role of the sheriff, and we
need to de-conflict those.
Mr. Gohmert. Sheriff, my time is running out, but let me
direct you specifically to the Gibson guitar case, where as I
understand, that was a Lacey Act enforcement; and you have
Federal law enforcement come busting in, armed to the teeth,
and people are just making guitars.
If, in a situation like that, you were notified that in
your county somebody was manufacturing guitars and there was
concern that they were using wood that was not properly
imported, would you be willing to send a deputy along with
people in suits and no weapons as they went in and asked for
records from the guitar maker?
Sheriff Brown. Not only would I be willing, but I would
demand it in my county.
Mr. Gohmert. So, that can be done without arming the
Federal people to the teeth, correct?
Sheriff Brown. Yes, sir.
Mr. Gohmert. I agreed with so much in the letter from the
ACLU and so much that conforms to what, Mr. Larkin, you have
said with one exception. I have seen the difference that it can
make when local law enforcement, and I would also presume with
Federal officials, if they have defensive equipment from the
military, say, bulletproof vests.
Would you have a problem with defensive equipment being
provided?
Mr. Larkin. Not at all. That is entirely appropriate.
Mr. Gohmert. All right. Thank you.
My time has expired. Let me consult with the Ranking
Member.
I recognize the Ranking Member for a unanimous consent.
Mrs. Dingell. I would ask unanimous consent to enter into
the record the testimony of Marcus Asner to the Fishery
Subcommittee in 2013 on why Americans should have to comply
with foreign law.
Mr. Asner testified that other U.S. laws reference foreign
laws and clarified that the Lacey Act does not penalize those
that violate foreign law nor implement it.
As to earlier comments about the Lacey Act, which was
passed in 1900, being unconstitutional, the Supreme Court has
not directly addressed it or taken up any challenges. Every
circuit court that has been asked to consider the issue has
upheld the Lacey Act against constitutional challenges.
The argument that the Lacey Act's reliance on foreign laws
is unconstitutional has been described as patently frivolous,
without merit, and neither original nor meritorious by courts
that it has been brought up in.
Mr. Gohmert. So the request was for the testimony?
Mrs. Dingell. To enter this testimony into the record.
Mr. Gohmert. Without objection, so ordered.
Mrs. Dingell. Thank you.
Mr. Gohmert. And the ACLU letter, without objection, is
entered as part of the record.
Hearing nothing further at this time, we appreciate all of
your testimony. We appreciate your time here. If you have
anything additionally you would like to have entered into the
record, then please submit that. The record will be open for 10
business days for these responses, and that is under Committee
Rule 4(h).
If there is nothing further in the way of further business,
without objection, the committee stands adjourned. Thank you.
[Whereupon, at 11:49 a.m., the subcommittee was adjourned.]
[LIST OF DOCUMENTS SUBMITTED FOR THE RECORD RETAINED IN THE COMMITTEE'S
OFFICIAL FILES]
-- Letter dated January 30, 2014 from Congressman Mark
Meadows to Phyllis Fong, Inspector General at the
Department of Agriculture, and Mary Kendall, Deputy
Inspector General with the Office of the Inspector
General at the Department of the Interior regarding
the legality of law enforcement actions taken by
the U.S. Fish and Wildlife Service and U.S. Forest
Service during ``Operation Something Bruin.''
-- Response Letter dated March 25, 2014 from Mary Kendall,
Deputy Inspector General with the Office of the
Inspector General at the Department of the
Interior, to Congressman Mark Meadows regarding his
inquiry on the legality of law enforcement actions
taken by the U.S. Fish and Wildlife Service and
U.S. Forest Service during ``Operation Something
Bruin.''
-- Response Letter dated March 26, 2014 from Phyllis Fong,
Inspector General at the Department of Agriculture,
to Congressman Mark Meadows regarding his inquiry
on the legality of law enforcement actions taken by
the U.S. Fish and Wildlife Service and U.S. Forest
Service during ``Operation Something Bruin.''
-- Letter dated August 4, 2015 from the North American
Wildlife Enforcement Officers Association to
Chairman Gohmert and Ranking Member Dingell in
regards to the Oversight hearing dated July 28,
2015.
-- Testimony of Marcus Asner before the Committee on Natural
Resources, Subcommittee on Fisheries, Wildlife,
Oceans and Insular Affairs for hearing titled,
``Why Should Americans Have to Comply with the Laws
of Foreign Nations? ,'' dated July 17, 2013.