Professor Jonathan Turley*
[Testimony of Professor Jonathan Turley Before the Judiciary Committee
of the House of Representatives Subcommittee on Commercial and Administrative
Law May 7, 1998]
Mr. Chairman, members of the Subcommittee, I appreciate the opportunity
to speak with you today. The subject of this hearing is enormously
important to many individuals, communities and agencies in this
country. I will not be able to do justice to the myriad of issues
raised by this hearing in my short appearance before the Subcommittee.
I was invited to appear before this Subcommittee only two days ago
while out of town on litigation. Nonetheless, I felt strongly that
some issues should be raised during the hearing, albeit in an abbreviated
form. Mr. Chairman, with the permission of the Subcommittee, I would
like to submit my complete written statement into the record and
to submit a supplemental statement at a later date.
I am a professor of law and the Director of Environmental Law Advocacy
Center at George Washington University. The Environmental Law Advocacy
Center contains a variety of projects, including the Environmental
Crimes Project and the Shapiro Environmental Law Clinic. In addition
to drafting environmental and sentencing legislation, my students
and I represent victims of environmental crimes as well as federal
whistleblowers in this area. My students and I also litigate cases
against the federal government to enforce environmental laws. In
all of these cases, my students and I work only pro bono and do
not accept fees from our clients who are often indigent or under
considerable financial strain. We often see, in the most personal
terms, the physical and financial damage caused by environmental
Mr. Chairman, the subject of this hearing is a serious and appropriate
question for oversight review: allegations of agency abuse. I am
highly sympathetic to such concerns since I have represented individuals
who have been victimized by agencies ranging from the workers at
Area 51 in Nevada to the current nuclear couriers in Tennessee.
No one is more outraged than my students and I when citizens are
run to ground by callous or hostile federal agents.
It is important, however, to address such problems in a balanced
and focused way. In this sense, I come to these questions with all
of the standard bias of an academic. I prefer empirical over anecdotal
evidence when considering legislation. With all due respect to some
of our prior witnesses, including my good friend Roger Marzulla,
I believe that there is a danger of losing sight of the forest from
the trees. This Subcommittee can have a meaningful deterrent effect
but, to do so, the Subcommittee must go beyond the mere rhetorical
or symbolic and address the substantive underlying problems.
While there has been considerable attention to the exercise of
agency interpretation of civil and criminal provisions, there can
be little question that agencies are allowed to, and expected to,
interpret statutory provisions enacted by Congress. All legislation
is necessarily general and vague. To carry out the purpose of a
statutory provision, an agency must interpret and apply that provision
to countless individual cases. In Chevron, USA, Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837 (1984), the United
States Supreme Court articulated a highly deferential approach to
such agency interpretations with the understanding that, if Congress
does not agree with an agency interpretation, it can enact corrective
and binding legislation. However, the need for agency interpretation
of federal statutes is beyond serious debateand presumably
not seriously questioned by this Subcommittee.
When hearing the type of testimony today, it would be easy to assume
that agencies act both unilaterally and without serious restraints
in the imposition of civil and criminal penalties. Clearly, this
is not the case. Many agency regulatory interpretations first appear
in a lengthy process of review and public comment. These agency
actions are often subject to litigation before they are actually
applied against any citizen. If an interpretation is a purely legal
issue, it is usually reviewed by the agency's Office of General
Counsels (OGC) and often the Department of Justice (DOJ).
Once these interpretations pass muster, an agency can apply the
standards or processes to actual cases. When an agency engages in
excessive or unfounded interpretations, any civil or criminal sanctions
based on such interpretations are subject to judicial review. Federal
courts routinely bar prosecution or civil penalties based on constitutional
principles of vagueness or overbreadth as well as statutory interpretive
principles. Most federal judges in the country follow a fairly narrow
construction of federal statutes that do not permit significant
departures from the stated language or purpose of an Act. When a
federal court agrees with an agency's interpretation, Congress always
reserves the right to correct any judicial opinion misinterpreting
its legislative intent under an Act. It is unnecessary to explain
the obvious value of this system and the value of agencies in the
interpretation and execution of federal mandates.
Just as the Subcommittee cannot seriously question the need for
agency interpretations, the Subcommittee presumably does not seriously
question the need for civil and criminal enforcement of these laws.
Administrative orders and agency enforcement remain the primary
method of protecting the purity of our food supply, the safety of
our workplace, and the environment of our communities. For most
agencies, this presents a daunting if not impossible task. Agencies
cannot expect to enforce these laws against more than a small percentage
of violators in an economy of this size. As a result, compliance
with these federal laws is a question of the deterrent effect of
agency actions. Deterrence itself is a relationship between the
rate of detection and the size of a penalty. Agencies such as the
Department of Agriculture and the Department of the Interior struggle
with areas with extremely low detection and, accordingly, low deterrence.
Agencies must use administrative orders and agency enforcement to
create a minimal level of deterrence to achieve the purposes of
health, environmental and worker safety statutes. In this process,
the agency must use its expertise and discretion in setting relative
fines or penalties for misconduct falling under its jurisdiction.
It is in this discretionary conduct that agency abuse often occurs
when officials fail to police their own personnel or review their
conduct in individual cases.
This leaves us with the cases presented to the Subcommittee and
their significance to a larger legislative purpose. Considering
the foregoing, I do not see the significance of these cases as a
basis for legislative action. The only case on which I was given
details before my appearance was the case of Mr. Unser. I must confess
that my review of this case suggests that the agency and the court
acted entirely properly with regard to Mr. Unser. In reading the
details in this case, I do not find that Mr. Unser is a particularly
compelling or heroic figure. To the contrary, Mr. Unser appears
outraged that a federal law enforced against many citizens has been
enforced against him. While Mr. Unser may consider such enforcement
to be "worse than KGB," I would submit that the exemption
of wealthy, powerful citizens from such enforcement would be the
very definition of the type of the system that he publicly abhors.
Let's review the facts of the case. In this country, a small percentage
of public land in designated "wilderness" and protected
from motor vehicles and other destructive influences. Snowmobiles
are one of the most destructive forms of recreation in our forests
and particularly harmful to wilderness areas. Individuals, however,
continue to engage in this conduct due to the low level of detection
guaranteed by the remote location of these areas. Rather than recreate
in the many areas which allow for snowmobiling, these individuals
insist on violating the laws to enjoy the experience of snowmobiling
through pristine areas. An example of the problem and the low detection
rate can be found in studies conducted in wilderness areas. In one
such area, the AbsarokaBeartooth Wilderness, the government recorded
472 violations but only 7 violators were actually caught and cited.
Section 551 of Title 16 of the United States Code is a statutory
provision enacted by Congress and given to the Secretary of the
Department of Agriculture to interpret and enforce. This is not
an obscure provision but the central legal mechanism used to protect
wilderness areas from their greatest threat: motorized recreational
vehicles of various types, including snowmobiles. Since 1985, the
Forest Service has banned the possession or use of a motor vehicle,
motorboat, or motorized equipment in an area designated as a National
Forest Wilderness. 36 C.F.R. 261.16(a). This regulation was subject
to a long public notice, hearing, and commentary before it was promulgated.
Mr. Unser chose one of the nation's most sensitive areas to violate
the law: the South San Juan Wilderness near the New MexicoColorado
border. This is an area that is at considerable risk due to snowmobiles
and other motor vehicles. Unfortunately for Mr. Unser, during this
illegal incursion, he found himself stranded deep into the Wilderness
area. In an impressive feat, Mr. Unser succeeded with his colleague
in fighting the elements for two days until they were rescued. In
this sense, Mr. Unser is not unique. Many areas are restricted to
protect citizens as well as the ecosystem from harm. It is often
the case that individuals will go illegally into restricted areas
only to require rescue. By the time the Service reaches such individuals
it is often a question of body identification rather than individual
citation. As Special Agent Charles Burd stated at Mr. Unser's trial,
the Service "told him [they] were glad he had survived his
ordeal and that [they] weren't going after a corpse, as [they] often
do in these situations." While these individuals are not required
to bear the high costs of such rescues, they are often given citations
for their misconduct. This is a minimal deterrent response by the
Forest Service. The men and women who searched for two days to rescue
Mr. Unser in often dangerous conditions were not "Nazis"
or "KGB," but professionals who work for long hours and
for little pay to protect citizens from their own folly.
At this trial, witnesses testified that Mr. Unser was a longstanding
snowmobile enthusiast who had been recreating in the area since
the mid1960s. Mr. Unser was not only aware of the restrictions that
came into effect in the 1980s but he was specifically aware of the
designated wilderness area. Witnesses testified that the two snowmobiles
were found far into the Wilderness area near Red and Dipping Lakes,
and not (as has often been suggested) along the edge of the area.
Moreover, Mr. Unser could have been sent to jail for six months
and given a $5,000 fine for his misconduct. Instead, noting the
dire circumstances that he faced in his ordeal, the court imposed
a merely symbolic fine of $75 for this misdemeanor.
It is not clear what Mr. Unser would have had the court or the
agency do in light of his misconduct. Mr. Unser violated an important
federal law which applies equally to all citizens without exception.
Mr. Unser was not facing "Nazis," but a conservative judge
who applied the lowest possible penalty. Mr. Unser, however, has
now been the focus of two congressional hearings and a prolonged
If I sound somewhat incredulous, it is because I have represented
serious victims of agency abuse who could not get a return telephone
call, let alone a hearing from Congress. For example, when I received
the call from this Subcommittee two days ago, I was meeting with
over twenty special agents who transport nuclear weapons for the
Department of Energy (DOE). These nuclear couriers have been treated
as criminals by the Federal Bureau of Investigation (FBI) after
they raised safety and security concerns. Despite the fact that
these concerns were found justified in a federal whistleblower action,
the DOE called for a criminal investigation in retaliation. When
the Fraternal Order of Police (FOP) sought counsel to help the workers,
the FBI became increasingly abusive and passed around a list of
any workers represented by counsel as presumptively guilty of something.
The FBI refused to interview represented workers and demanded that
workers turn in colleagues for any offense as the basis for being
"cleared" for employment at Oak Ridge. As a result, any
worker who spoke with a lawyer was placed on administrative leave
and other workers were told that they were targets of investigation
due to their represented status.
I mention the nuclear couriers because it is difficult to work
up a sense of outrage over Mr. Unser's $75 fine when over twenty
families are facing ruin over a common form of abuse by the FBI.
They are neither famous nor wellconnected. They were not punished
for recreational excess. They were trying to do their job and found
themselves at the center of an investigation in search of a purpose.
This Subcommittee is exercising a meaningful oversight function.
I would submit, however, that there are hundreds of average citizens
who would be better subjects of your attention than Mr. Unser's
snowmobiling difficulties. Moreover, the most serious problem is
not the agency interpretations, but individual agent abuses. The
vast majority of abuses in this area can be traced to individual
officials or agents who grow abusive or callous in their positions
of authority. This occurs because they do not fear a serious deterrent
in the form of review. Agents are accountable to review by Inspector
General (IG) offices, Offices of Professional Responsibility (OPR),
and the Office of Special Counsel (OSC). All three of these offices
are notoriously lax and bureaucratic in their reviews of agency
misconduct. While given a mandate to police such misconduct, these
offices are mere paper tigers that are often the source of derision
among federal employees. This leaves us with the very problem of
deterrence addressed earlier. Citizens are abused by individual
agents because there is neither a high likelihood of detection nor
serious penalty for such misconduct.
If this Subcommittee wants to deter the most prevalent form of
agency abuse, it would be an easy matter. Congress must restructure
the IG, OPR, and OSC offices to mandate more aggressive action in
these cases. If these internal watchdog offices were functioning
property, citizens could file for review of misconduct before litigation
to seek relief. These changes would drive at the heart of the greatest
source of abuse for average citizens. Agents would then be subject
to a meaningful deterrent if their actions are excessive or abusive.
Families like those of the nuclear couriers could then seek help
before their lives were ruined by misconduct.
In conclusion, you may count my voice and those of my clients in
calling for change. We need help from this Subcommittee. But this
help must come in a meaningful form. Congress should not reduce
the deterrence of citizens who violate our laws but rather create
deterrence for government officials who do so. There is neither
a significant detection rate nor penalties for agents who abuse
their authority at the cost of innocent citizens. This Subcommittee
can change that deterrence equation and, in the process, protect
the most vulnerable of our population.
Once again, Mr. Chairman, thank you for allowing me this opportunity
to appear today.
* Professor of Law, Director of the Environmental Law Advocacy Center,
George Washington University Law School.