Administrative Crimes

Bobby Unser*

[Excerpts of Testimony and Questioning of Bobby Unser Before the Judiciary Committee of the House of Representatives Subcommittee on Commercial and Administrative Law May 7, 1998]

Thank you, sir. First of all, I'd like to just say that I'm happy that you asked me here and I'm proud to be here. I hope it does some good.

I went snowmobiling one day—got a new snowmobile—late December. I have a ranch up in the northern part of New Mexico—a little town called Chama. So I went to Chama; took a race driver friend of mine from Albuquerque. So we went snowmobiling up into the mountains and left late that day because it was a beautiful day out. I had about a 20-30 minute ride up in my truck. We trailered the machines up. We went to a place where we could climb hills. It was just the two of us. In fact, there was nobody else basically up on the mountain that day that I saw. The mountains are high up there.

We both snowmobiled for a bit around the trailer and got him kind of acclimated on how the snowmobile works, how to turn it on and off, and things like that. I know the country quite well up there, too. We got up to where we could climb the hills. [My friend] had gotten stuck quite a few times and it was only about six miles from the trailer where we were snowmobiling, in a place that's totally legal. For sure, I knew there was a wilderness area, but I, like many thousands of people who snowmobile up there, have no idea where the wilderness is.

So we were climbing the hills. I was up on top — just recreating is all, just having fun. Sun shining, beautiful weather, and all of a sudden the wind came up, as it often does in that part of the world. Because it's a flat type of mountain up there, it makes it like a venter in a carburetor — the wind speeds up by the natural terrain of the mountains. So a snowstorm came up, a windstorm — in other words a complete white-out. It does it in just a couple of minutes. The wind comes; the snow blows.

There had been a lot of snow, and a powdery, dry snow that time of the year. So instantly, we can't see where we are. So it makes no difference where you are; you're lost. Because there's canyons every place and big dropoffs all around the place, just like we've been going up, only a lot worse than that.

So ultimately, we had to spend the night up there. One snowmobile got stuck — the one that [my friend] was riding. That was kind of a blessing because, if he didn't stay attached to me — in other words, really close, the two of us together — he would have split off and he wouldn't have known how to survive in the mountains. He would have surely died; he would have died the first night.

So, at any rate, I put him on behind mine which was good; mine was a brand new sled, the first time I had ever ridden it. We took off on it and I was trying my best to go in one direction — the machine started getting mechanical problems and quitting. As it would quit, we would get it restarted and try to keep going. Well, it did this until we were running out of daylight. It gets dark about five o'clock. We didn't start until about noon.

So by the time that had happened, there was only one thing to do, and that was to spend the night. So we left that machine — the wind was blowing a good 50-60 miles an hour — so we left that machine and walked as much down as I could find down. We got into some timbers, dug a snow cave, and spent the night — survived through the night. The wind never quit blowing.

We got up the next morning and I saw that my tracks were already covered. There was no way to backtrack the snowmobile because we could have used the gasoline to build a fire, and we needed that. So we started walking. I could see a general direction of which way to walk. It turned out we walked for 18 hours. [My friend] almost didn't make it. I got very sick and almost didn't make it myself, but we did make it out after 18 hours of walking. That meant two nights and two days that we spent up there — and that was not a problem.

Ultimately, what happened is I wanted to go back and find my [snowmobile]. I had talked to a lot of people. They said, you know, your machine — one machine was out and the other was still up there someplace. I wanted to go back and find it. So I did what I thought would be the right thing to do, which was kind of sad. I could have easily just gone up — there's nobody up there — I could have gone up there anytime and just tried to find my snowmobile. I would have found it in good weather.

But instead, I went to the Forest Service and told them that in case that I needed to go into this wilderness, wherever it was, I would like to have a letter or their permission to be there — just not to cause anybody to be mad. Which, later on, they had two people come down from Colorado. They called me up at my house and said, "Come down and talk to us; we'll help you find your snowmobile."

I did. I didn't take an attorney. I didn't take anybody with me. I just went — just like anybody that was doing the innocent thing should do. I went down and they went under pretense, didn't even tell me that they were investigators. They went under the pretense with maps to help me find my snowmobile. We backtracked where I walked out; eventually we figured out between the three of us which canyons I'd gone out through; ultimately, decided by the canyons where I spent the night — not exactly, of course, but at least in a rough area.

From that, they determined that my snowmobile should have been in some area and possibly could have been into the wilderness. So, therefore, a lady sitting over there with the investigators reaches into her briefcase and pulls out a ticket and hands it to me, a pre-written ticket, one that had been written in the State of Colorado. They are now in Albuquerque. The ticket was written when they didn't even know. They had never seen my snowmobile. They didn't even know where it was, didn't even know truly what the stories were, with the exception of the press. Plus, even after that, even when we went to court, they had pictures of the snowmobile. Now remember, I had described to probably no less than 200 million people that had heard about and read my accounts of where the snowmobile was, and yet none of those described as being in a wooded area, and yet they showed up with pictures of the snowmobile beings in a tight wooded area—I couldn't even have missed the trees in a blizzard.

They all admit there was a blizzard. They all admit I wouldn't have done this just for the fun of it. I wouldn't have walked out for 18 hours, just nearly died—80 percent of the people thought that we would die up there.

So at any rate, every time the Forest Service let out something in the news, it was always that Bobby Unser was faced with a $5,000 fine and/or six months in jail—or in other words, calling me a criminal.

They have no set fine; they have no value on what it should be. So my question would always have been, why were they so sneaky about it? I was the one that was being fair. They had a total written record of everything I did which came out in all the court proceedings. Yet, they had pre-written the ticket and they had also threatened me with six months in jail, $5,000 fine, and they had—according to the judge of Denver, Colorado, it came out to where he said that I had to prove that I was innocent; they did not have to prove that I was guilty. Now that totally goes against whatever I was taught when I was a young kid going to school.

So I think it's bad for a good, taxpaying citizen —and I've paid over millions of dollars, many millions of dollars in taxes in my life to the States and the Federal Government. I think it's an unfair situation to be called a criminal, be threatened with six months in jail. Nobody wants to go to jail for trying to save their life. Nobody thinks that $5,000 is a justified thing for trying to save their life. I didn't do anything wrong. They never had to prove that I did something wrong. I, instead, according to the judge, had to prove that I was innocent. That's un-American.

Question from Jerald Nadler (D.-N.Y.)

Nadler: Mr. Unser, we appreciate—I appreciate at least—what you went through. But I'm not clear what your complaint is in terms of the law. Let me see if I understand this correctly. You went with your snowmobile into an area. You knew there was a wilderness area. You didn't know exactly where it was. You wound up with a snowmobile in a wilderness area, which is against the law. Then there was a blizzard. Then you had all these adventures, and then they gave you a ticket. What exactly is wrong with either the law or the administrative action?

Oh, and the other thing is that you were upset that the news reports kept saying that you were subject possibly to a $500—or whatever it was —to a fine and to a six-month jail sentence. But all they were doing is reporting the possible penalty under the law. The actual penalty was $75, not jail.

So forgetting the question of what the news media reported—they can report anything they want and we can't say anything against it—the fact that the agency, when asked, said, well, the statute provides for up to six-month jail sentence and a fine of "x" dollars; exactly what do you think was wrong? Was it wrong that you were prosecuted, in effect, under the law because you didn't know it was a wilderness area—or something else?

Unser: No sir. I'm sorry I had to go through that so fast, too, but that's the rule that you guys have. I could have explained it all a lot easier than that with a little more time. But that it is that I didn't know that there was wilderness anywhere near Cloaks. Thousands of other people recreated up there.

Nadler: I thought you said you knew there was a wilderness, but you didn't know where it was.

Unser: That's right, sir. But a wilderness could be like a thousand miles away and I wouldn't know where it was. In this particular case, the wilderness was a considerable distance away from where I was recreating, where I was snowmobiling.

Nadler: Then how did you get into the wilderness— because of the blizzard?

Unser: Because of the blizzard. Because I was totally lost. I didn't go in there—

Nadler: Okay. Let me ask you the following then: We have a law that says the Secretary of Agriculture is instructed to protect the forests, the national forests, and to set out regulations to do so. Reasonable law, I think. You're not saying that's a bad law?

Unser: Right.

Nadler: Okay. The Secretary of Agriculture puts out regulations that, among other things, say you can't use a snowmobile in a wilderness area.

Unser: Any motorized equipment.

Nadler: Any motorized equipment, which includes a snowmobile. Reasonable regulation?

Unser: Yes.

Nadler: Okay. So far, so good. What was unreasonable? In other words, what you're saying is what was unreasonable is—oh, and then you have the law that says that a violation of the law or regulation pursuant to the law has a certain penalty structure. That's also reasonable, but maybe it should be three months, you know, or less or whatever. But the law—Congress determined that when they passed the law. So far no criticisms?

Okay. What you seem to be saying is that the agency, or the official of the agency, should have understood and been more reasonable in the particular circumstance because you got lost and violated the law inadvertently because of the blizzard. That's the real crux of your complaint?

Unser: No, sir, I did not violate a law. The law doesn't say that. The law says that you have to have intent. That was taken away from me. I did not intend to go into the wilderness—

Nadler: Yes, correct. To violate a law you have to have intent. You're saying that you didn't have any intent because you didn't know you were in the wilderness area?

Unser: I did not know I was in the wilderness area. I still don't know today that I was there.

Nadler: That's why you didn't have the intent, because you didn't know you were going into the wilderness area?

Unser: I was trying to save my life.

Nadler: Okay, but you're saying you didn't have the intent. So your real complaint—now, so they charge you and maybe they were unreasonable in doing so. I mean, that's an individual decision by an enforcement officer. But the real question —I mean, that sounds to me like a standard complaint. The cop gave me a ticket when I didn't really go across the light or—let me just finish— and isn't that the kind of defense you make to the judge, and the judge says yes or no. If you don't like his decision, you appeal it?

What I'm trying to get at—I'm not saying you were wrong; it sounds like you very well may have been right. My question is, aside from the fact that what you're really saying is this agent of the agency was unreasonable and that argument you're going to make to the judge, "I didn't know." The judge didn't rule that way and that's an argument to make to the appeals court.

In what way is this different from any other case under any other law in which somebody says, well, I didn't have the criminal intent because of circumstances A, B, or C, and that's an argument to make to the judge? In what way does that rise to an agency disobeying the will of Congress or persecuting people beyond the will of Congress? It's a simple question of fact in a case. What I'm trying to say is, how is that different from any other question of fact in any enforcement proceeding?

Unser: Can I just give one example on that? You've said so many things. If I could answer each one at a time, I could debate it with you easily. But let me just try to answer it this way, sir:

If you were flying your airplane over a wilderness area, the engine quit, and you went down into the wilderness area, you certainly would have to admit that you had no intent in being there and you couldn't, in fact, help it. See, that was no different than my case. I did not intend to go there. I didn't go there because I had any choice.

Nadler: I hear you. I hear you. But you're not understanding my question.

Unser: Now, the Congress has also laid out laws that say that, if you have any emergency, that overcomes their laws. I was also told that the Sierra Club in Washington, D.C.—or wherever they are back here—phoned up the National Forest Service; told this by the National Forest Service arresting officer, or the ticket-giver, whatever you want to call him, that the Sierra Club pushed it because I was Bobby Unser, a celebrity who wanted to get the attention. Demanded, according to him, Charlie Burke demanded that I get a ticket if they found the snowmobile to be in the wilderness.

Nadler: Fine. That argument is either correct or not correct. But isn't it for the court to decide whether the argument is correct or not? Whatever the court ultimately decides—how does that give—in what way? In other words, you may be saying that the agency, the individual agent, was wrong or unreasonable. Maybe the judge is wrong or unreasonable. But how does that—but that's the standard question in any enforcement proceeding: Is the cop wrong or unreasonable or right? Is the judge wrong or unreasonable or right? How does that rise to the level of saying that there's something that Congress ought to do something about?

Unser: Sir, that is an abuse of power.

Statement of George Gekas (R-Pa.) (Chairman)

Gekas: Will the gentleman yield? It might be helpful for the witness to frame your questions in the mode of whether or not this was strict liability or as interpreted by the agency, or whether intent ever had a role in determining whether the gentleman violated that law. The gentleman from New York is pursuing this on a basis that intent is to be considered, when under strict liability, it is not.

Nadler: Mr. Chairman, I'm aware of that distinction. Let me just answer your question. The law, as I understand it, is strict liability. Mr. Unser seems to be under the mistaken impression that it is not. The reason that I'm pursuing this line is that, even under his assumption—in other words, even if he were correct that the law is not strict liability that intent is necessary, I'm trying to understand how this is any different from any case where you may have an unreasonable or mistaken police officer or judge; why it's a question for Congress as opposed to saying we could have more intelligent enforcement officers.

Gekas: That's exactly what we're inquiring, whether or not the Congress should be applying strict liability in cases where citizens inadvertently—in cases like the ones that Mr. Unser has enunciated —should have relief when there was no intent, when there was an emergency situation, when there are exigent circumstances. Still, in spite of all of those—or because of them in some cases —the strict liability is applied with no recourse to the citizen. That's exactly what the Congress, in our judgment, must inquire, to determine whether it's the proper way to devolve power onto the agencies.

Nadler: Mr. Chairman, let me just comment on that briefly. That is very different. In which case, we shouldn't be talking about what Mr. Unser knew or didn't know, because it's irrelevant since it's strict liability. That question is the question of maybe we should change the law because it shouldn't be strict liability, and that's a perfectly good question. It doesn't seem to bear much relationship to the topic of the hearing, which is agencies running wild.

Gekas: If the gentleman would further yield, then the attendant question comes: Shouldn't the Government agency, in looking over this situation, as the Forest Service, should they not apply discretion in the application of the law, or whatever agency it was? To apply discretion, meaning that to see that this was a strict liability case, but under no circumstances could anyone contemplate that the gentleman intended to violate the law. To find the discretion on strict liability is just as important as whether or not there's strict liability.

Nadler: Mr. Chairman, let me just comment on what you said. First of all, observing the actions of Mr. Ken Starr, we all know that people should use discretion. An agency, as well as Mr. Starr, should use discretion.

Gekas: And they have.

Nadler: I'd simply say the following: Should agencies be intelligent and use discretion? Yes, obviously. I don't think we need a hearing for that. Are they using it properly and should we change the law? Maybe that's a subject of a hearing.

Gekas: Then the gentleman approves of the hearing.

Nadler: But the law here is strict liability. That's not the agency's decision. That was Congress'decision. If we want it at a hearing by the way—

Unser: Well, that's wrong. That is not the case. Congress didn't lay the law out that way.

Nadler: Excuse me, sir, excuse me. If we want to have a hearing on whether the law should be strict liability, that might be a good subject for a hearing, but it's not this hearing. I give back the balance of my time.

Gekas: The Chair reiterates that what the gentleman has just questioned justifies this hearing to see whether or not Congress should be looking into situations where, in applying strict liability, that the Congress has given too much power to a particular agency, to apply strict liability without discretion to use in emergency situations or exigent circumstances. Thus, what we are doing here is examining the very thing that we ought to be doing.

* Mr. Unser, a former professional race-car driver, is a three-time winner of the Indianapolis 500.


2001 The Federalist Society