[Senate Hearing 115-516]
[From the U.S. Government Publishing Office]
S. Hrg. 115-516
LAW ENFORCEMENT PROGRAMS AT THE BUREAU OF LAND MANAGEMENT AND U.S.
FOREST SERVICE, COORDINATION WITH OTHER FEDERAL, STATE AND LOCAL LAW
ENFORCEMENT, AND THE EFFECTS ON RURAL COMMUNITIES
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HEARING
BEFORE THE
SUBCOMMITTEE ON
PUBLIC LANDS, FORESTS, AND MINING
OF THE
COMMITTEE ON
ENERGY AND NATURAL RESOURCES
UNITED STATES SENATE
ONE HUNDRED FIFTEENTH CONGRESS
SECOND SESSION
__________
MAY 9, 2018
__________
Printed for the use of the
Committee on Energy and Natural Resources
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://www.govinfo.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
30-283 WASHINGTON : 2020
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COMMITTEE ON ENERGY AND NATURAL RESOURCES
LISA MURKOWSKI, Alaska, Chairman
JOHN BARRASSO, Wyoming MARIA CANTWELL, Washington
JAMES E. RISCH, Idaho RON WYDEN, Oregon
MIKE LEE, Utah BERNARD SANDERS, Vermont
JEFF FLAKE, Arizona DEBBIE STABENOW, Michigan
STEVE DAINES, Montana JOE MANCHIN III, West Virginia
CORY GARDNER, Colorado MARTIN HEINRICH, New Mexico
LAMAR ALEXANDER, Tennessee MAZIE K. HIRONO, Hawaii
JOHN HOEVEN, North Dakota ANGUS S. KING, JR., Maine
BILL CASSIDY, Louisiana TAMMY DUCKWORTH, Illinois
ROB PORTMAN, Ohio CATHERINE CORTEZ MASTO, Nevada
SHELLEY MOORE CAPITO, West Virginia TINA SMITH, Minnesota
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Subcommittee on Public Lands, Forests, and Mining
MIKE LEE, Chairman
JOHN BARRASSO RON WYDEN
JAMES E. RISCH DEBBIE STABENOW
JEFF FLAKE JOE MANCHIN III
STEVE DAINES MARTIN HEINRICH
CORY GARDNER MAZIE K. HIRONO
LAMAR ALEXANDER CATHERINE CORTEZ MASTO
JOHN HOEVEN TINA SMITH
BILL CASSIDY
SHELLEY MOORE CAPITO
Brian Hughes, Staff Director
Patrick J. McCormick III, Chief Counsel
Lucy Murfitt, Senior Counsel and Public Lands & Natural Resources
Policy Director
Lane Dickson, Professional Staff Member
Mary Louise Wagner, Democratic Staff Director
Sam E. Fowler, Democratic Chief Counsel
David Brooks, Democratic General Counsel
Bryan Petit, Democratic Senior Professional Staff Member
C O N T E N T S
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OPENING STATEMENT
Page
Lee, Hon. Mike, Subcommittee Chairman and a U.S. Senator from
Utah........................................................... 1
WITNESSES
Perry, Tracy, Director, Law Enforcement and Investigations, U.S.
Forest Service, U.S. Department of Agriculture................. 3
Steed, Brian, Deputy Director for Policy and Programs, Bureau of
Land Management, U.S. Department of the Interior............... 10
Noel, Hon. Mike, Member, Utah House of Representatives........... 15
Brossy, Jackson, Director, Navajo Nation, Washington Office...... 33
Larkin, Jr., Paul J., John, Barbara, and Victoria Rumpel Senior
Legal Research Fellow, The Heritage Foundation................. 38
ALPHABETICAL LISTING AND APPENDIX MATERIAL SUBMITTED
Begaye, Hon. Russell:
Written Testimony............................................ 35
Brossy, Jackson:
Opening Statement............................................ 33
Federal Law Enforcement Officers Association (FLEOA):
Letter for the Record........................................ 113
Kortlander, Chris:
Statement for the Record..................................... 115
Book titled ``Arrow To The Heart'' by Christopher Kortlander. 118
Office of Inspector General, U.S. Department of the Interior,
Investigative Report of Ethical Violations and Misconduct
by BLM Officials posted on January 30, 2017................ 121
Office of Inspector General, U.S. Department of the Interior,
Investigative Report of Misconduct by a Senior BLM Law
Enforcement Manager posted on August 24, 2017.............. 137
Article titled ``3 BLM state directors removed in
reorganization--sources'' by Scott Streater, E&E News
reporter, dated June 27, 2017.............................. 148
Excerpted pages from BLM Law Enforcement Year-End Review 2009 151
Article titled ``Utah Official Named BLM Law Enforcement
Director'' posted August 8, 2003 on KSL.com................ 160
Larkin, Jr., Paul J.:
Opening Statement............................................ 38
Written Testimony............................................ 40
Lee, Hon. Mike:
Opening Statement............................................ 1
Murkowski, Hon. Lisa:
Statement for the Record..................................... 104
Noel, Hon. Mike:
Opening Statement............................................ 15
Written Testimony............................................ 17
Perry, Tracy:
Opening Statement............................................ 3
Written Testimony............................................ 5
Responses to Questions for the Record........................ 107
Redd, Jay (Family of Dr. James Redd):
Statements for the Record:
Email: Information for the Congressional Record regarding
BLM Special Agent Dan Love............................. 162
Email: Information regarding Special Agent Dan Love...... 168
Email: Summary of what happened to Dr. James Redd........ 184
Steed, Brian:
Opening Statement............................................ 10
Written Testimony............................................ 12
Letter to Senator Mike Lee dated May 8, 2018, from Bureau of
Land Management............................................ 72
Responses to Questions for the Record........................ 111
Wyden, Hon. Ron:
Statement for the Record..................................... 207
LAW ENFORCEMENT PROGRAMS AT THE BUREAU OF LAND MANAGEMENT AND U.S.
FOREST SERVICE, COORDINATION WITH OTHER FEDERAL, STATE AND LOCAL LAW
ENFORCEMENT, AND THE EFFECTS ON RURAL COMMUNITIES
----------
WEDNESDAY, MAY 9, 2018
U.S. Senate,
Subcommittee on Public Lands, Forests, and Mining,
Committee on Energy and Natural Resources,
Washington, DC.
The Subcommittee met, pursuant to notice, at 10:11 a.m. in
Room SD-366, Dirksen Senate Office Building, Hon. Mike Lee,
presiding.
OPENING STATEMENT OF HON. MIKE LEE,
U.S. SENATOR FROM UTAH
Senator Lee [presiding]. The hearing of the Senate Energy
and Natural Resources Subcommittee on Public Lands, Forests,
and Mining will now come to order.
I appreciate each of you for being here.
Today we are going to hear about the law enforcement
activities of agencies with jurisdiction over public lands and
examine whether it is time to return law enforcement on federal
lands to traditional law enforcement agencies or simply
delegate those functions to local law enforcement officials, as
originally envisioned under FLPMA, the Federal Land Policy
Management Act.
This issue is of great concern to communities throughout
the West, including many in my state and in neighboring states
that have long struggled against the constraints imposed by
vast federal land holdings that are especially prevalent in the
Western United States.
Increasingly, the communities find themselves as targets of
overly zealous, federal law enforcement operations. In a twist,
these operations are not undertaken by traditional law
enforcement agencies, but rather by militarized criminal law
enforcement agents of the proprietary agencies tasked with
managing federal public lands, namely, the Bureau of Land
Management (BLM) and the United States Forest Service.
In recent decades as the number of federal laws and of
federal regulations, many of which function essentially as
criminal laws themselves, have been proliferating, law
enforcement has become a growth industry within these federal
agencies. The BLM and Forest Service have followed this trend
by expanding their criminal investigative activities, often
with unsparing results for those who happen to be unfortunate
enough to fall into their crosshairs.
Whatever sense this attempt might have made as an effort to
enhance funding or an institution's prestige, it is incumbent
on this Subcommittee to ask whether combining resource
management and criminal law enforcement has resulted in a
profound disservice to both.
Undeniably, our federal land management agencies have
drifted far from their intended purpose. The stated mission of
the Bureau of Land Management is, ``to sustain the health,
diversity and productivity of the public lands for the use and
enjoyment of present and future generations.'' Similarly, the
mission of the U.S. Forest Service is, ``to sustain the health,
diversity and productivity of the nation's forests and
grasslands to meet the needs of present and future
generations.''
Now the authors of these mission statements could not have
imagined year long, cloak and dagger investigations that use
informants to capture undercover video inside private homes on
private land. The authors of these mission statements would
have recoiled at the very thought of BLM employees executing
coordinated pre-dawn search warrants on homes in a private,
residential neighborhood. The founders, surely, would have had
concerns of their own. And yet, in the small town of Blanding,
Utah, this is what happened during the last Presidential
Administration.
To be clear, these agency's missions necessarily involve
managing natural resources and nationally significant sites.
But I fear the BLM and the Forest Service have expanded their
operations far beyond this proprietary mission to include the
exercise on private land of police powers that the founders
expressly reserved to the states.
I understand these problems have been festering for a long
time and that they did not start with this Administration. In
fact, I am very appreciative of the work this Administration
has done with the help of some of our witnesses here on the
panel today, to correct some of the past problems and abuses
within the BLM and within the U.S. Forest Service law
enforcement agencies. I look forward to hearing more about the
Administration's efforts from Mr. Steed and from Mr. Perry.
But just as these problems did not start with this
Administration, they also cannot be expected to end with this
Administration. Because of the nature of executive action in
our government and because of human nature itself, whatever
good work this Administration might do could quickly, easily be
undone by a future administration, one that is, perhaps,
indifferent or maybe even downright hostile toward local law
enforcement, toward federalism, toward local control. To guard
against this possibility, it is imperative that Congress and,
particularly, this Committee, examine permanent legislative
reforms to land management agency's law enforcement
authorities.
Mr. Perry and Mr. Steed have already provided valuable
perspectives on this issue. I hope that they will continue to
work with this Subcommittee, with the Committee as a whole and
with Congress as a whole in our efforts to reform law
enforcement on federal land, especially enforcement of federal
law by law enforcement agencies of those land management
entities.
I do want to thank all of you for being here today. We are
pleased to have a great panel.
I will do some quick introductions, and then we will hear
your opening statements. First, we will hear from Mr. Tracy
Perry, who is the Director of Law Enforcement and
Investigations at the Forest Service. Then we will hear from
Mr. Brian Steed, who is the Director of Policy and Programs at
the Bureau of Land Management and also a fellow Utahan, who I
am glad to have here. Then we will hear from my longtime friend
and Utah State Representative, the Honorable Mike Noel, member
of the Utah House of Representatives, representing the 73d
District. Mr. Noel just got back from a trip to China and
immediately hopped on a plane in Salt Lake City to be here with
us today. So welcome, and I hope you got some sleep at least on
the airplane. If not, our gratitude to you is that much more
profound. We appreciate your dedication, Mr. Noel. After
Representative Noel, we will hear from Mr. Jackson Brossy,
Executive Director of the Navajo Nation, Washington Office.
Finally, we will hear from Mr. Paul Larkin, who is a Senior
Research Fellow at the Heritage Foundation. Thanks to all of
you, once again, for being here.
In the interest of time and to make sure that we have time
to ask and answer any questions, please try to limit your
remarks to five minutes and your full written testimonies will
be, of course, submitted and accepted for the record.
We will start with you, Mr. Perry.
Thank you.
STATEMENT OF TRACY PERRY, DIRECTOR, LAW ENFORCEMENT AND
INVESTIGATIONS, U.S. FOREST SERVICE, U.S.
DEPARTMENT OF AGRICULTURE
Mr. Perry. Good morning, Chairman.
Chairman Lee, thank you so much for the opportunity to
speak with you this morning.
My name is Tracy Perry. I'm the Director of Law Enforcement
and Investigations for the United States Forest Service.
There are two things you're going to hear from me today.
One is the unique law enforcement mission of the United States
Forest Service. The other is the importance of cooperation and
collaboration with our federal, state, local and tribal law
enforcement partners.
The Forest Service Law Enforcement and Investigations
program is charged with providing a safe environment for the
public and employees as well as providing the nation's
resources on approximately 193 million acres of National Forest
System lands.
Our program provides a highly visible, uniformed patrol
presence that educates the public and enforces federal laws and
regulations essential to the effective management of National
Forest System lands. We also provide special agents with
complex criminal and civil investigations, including
investigations related to wildland fire, timber theft, resource
damage, illegal marijuana cultivation and cultural resource
protection.
We recognize the critical importance of maintaining strong
and mutually beneficial relationships with our federal, state,
local and tribal partners. Successful management of forest
lands is simply not possible without effective relationships
with our cooperators, communities and the public. We have been
reminded of this valuable lesson in recent times as there have
been occasions where these relationships were not as strong as
they needed to be.
Unfortunately, there have been instances where poor
relationships have led to questions concerning law enforcement
actions, mission priorities and jurisdiction on Forest Service
law enforcement personnel. We accept responsibility for our
role in failing to maintain these critical relationships, and
we have taken significant steps to change that.
The most significant of those steps was the development of
an MOU with the Western States Sheriffs' Association. The MOU
establishes a template for an operational agreement between
Forest Service Law Enforcement and Investigations and County
Sheriffs. And it can be utilized to define operational
procedures and establish protocols for cooperation. Even more
importantly, the collaborative process utilized to develop this
MOU has vastly improved communication and trust. We currently
maintain nearly 500 cooperative law enforcement agreements with
our federal, state and local partners. Over $5 million in
funding is provided through these agreements to our
cooperators. Many of these agreements also confer state
authority to our law enforcement agents and our law enforcement
officers.
We have taken additional steps to improve our program. Last
week, we released our Strategic Plan for 2018 through 2022.
This plan will help increase efficiencies, prioritize work and
ensure the LEI activities are aligned with the mission and
priorities of the Forest Service and the Department of
Agriculture.
A key theme of the plan is the emphasis on the natural
resource law enforcement mission of our organization.
Prioritizing work activities that are essential to our mission
will also help focus our limited resources.
Finally, we have established an Office of Professional
Responsibility to help ensure that we continue to maintain the
high levels of professionalism and integrity expected of a law
enforcement organization. Establishment of the Office of
Professional Responsibility will increase transparency,
accountability and responsiveness to elected officials,
cooperators and the public we serve.
Mr. Chairman, that concludes my testimony. I am happy to
answer any questions that you may have.
[The prepared statement of Mr. Perry follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senator Lee. Thank you, Mr. Perry.
Mr. Steed.
STATEMENT OF BRIAN STEED, DEPUTY DIRECTOR FOR
POLICY AND PROGRAMS, BUREAU OF LAND MANAGEMENT, U.S. DEPARTMENT
OF THE INTERIOR
Mr. Steed. Good morning, Mr. Chairman. I, like you, am
happy to be seated here with my Utah friends today. And it's
always nice to be seated next to Representative Noel.
I'm Brian Steed, the Bureau of Land Management's Deputy
Director for Policy and Programs. Thank you for the opportunity
to discuss BLM's law enforcement program today. The dedicated
men and women who make up the program play an integral role in
ensuring public safety and fulfilling the BLM's multiple use
mission.
Nationally, the BLM manages a wide variety of resources
spread over 245 million acres of public lands and over 700
million acres of subsurface mineral estate. These public lands
and resources include timber, forage, energy and minerals,
recreation areas, archeological sites and many others. Under
the Federal Land Policy Management Act (FLPMA) of 1976, the
Secretary of the Interior is authorized to stand up a law
enforcement body to enforce federal laws and regulations with
respect to public lands and their resources. As a result, BLM
has been given specific resource protection and law enforcement
responsibilities that further its multiple use mission.
While the BLM law enforcement rangers and agents have
accomplished important work protecting public lands and
resources, the law enforcement program itself has experienced a
number of challenges in the recent past. These challenges
include very serious allegations of employee misconduct,
including destruction of records requested by members of
Congress, mishandling of evidence in criminal investigations
and misappropriation of government funds, among others. This
behavior shocks the conscience and is entirely unacceptable.
Moreover, these actions--in some cases perpetrated by a small
number of individuals--have prevented the BLM from living up to
the expectations of the American people.
In the short time I've been in my position, the BLM has
taken a series of actions to begin addressing these problems.
Over the past several months, for example, the BLM law
enforcement program has directed officers to focus on case work
with direct ties to public lands such as curbing the resource
and public safety impacts generated by cross-border smuggling
activities and reducing theft of mineral materials,
archeological and historical objects, timber and forest
products and other resources. BLM law enforcement has also made
a concerted effort to improve working relationships with
partner organizations including the Western States Sheriffs'
Association which is composed of sheriffs and their command
staff from 16 Western states. As part of this process the BLM
is also analyzing the benefits of moving our law enforcement
program to a location in the West and is evaluating whether it
should be restructured to better fit organizational needs.
These measures could potentially enhance interaction and
communication with sheriffs on public safety and enforcement of
natural resource rules and regulations. They could also better
position BLM law enforcement officers for interaction with
external user groups and other BLM staff, the vast majority of
which are stationed in the Western United States.
Finally, over the past several months, the BLM has
reinforced the need for accountability and professional ethics
within the law enforcement program and has been diligent in
taking administrative, civil or criminal action in relation to
conduct issues. For example, the BLM has significantly
increased staffing of the Office of Professional Responsibility
to help ensure the thorough investigation of complaints of
serious misconduct involving BLM employees, including law
enforcement officers and managers.
As stated earlier, the BLM takes allegations of employee
misconduct, particularly those associated with its law
enforcement officers, extremely seriously. We are committed to
maintaining a professional program with only the highest
ethical standards. Restoring the public's trust in the BLM's
law enforcement program is a top priority of Secretary Zinke
and this Administration. The BLM is taking significant steps to
make this goal a reality and will continue to do so in the
months ahead.
Thank you again for the opportunity to provide testimony
today, and I would gladly answer any questions that you may
have.
[The prepared statement of Mr. Steed follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senator Lee. Thank you, Mr. Steed.
Mr. Noel.
STATEMENT OF HON. MIKE NOEL, MEMBER,
UTAH HOUSE OF REPRESENTATIVES
Mr. Noel. Thank you, Mr. Chairman. It's a pleasure to be
here.
I've given extensive testimony in my written testimony
which you can read. It outlines the event that you mentioned
with Dr. Redd's family and what happened in Blanding, Utah, in
2009.
One individual that I key my testimony on is apparently no
longer working for the agency. I don't know the full status of
his employment right now, but we're very happy to see that.
The problem that I see though, and you mentioned it in your
initial statement, is the concept of federalism and where my
District, the largest legislative House District in the State
of Utah comprising seven rural counties made up of over 90
percent of federal land in a little, small portion, 9 to 10
percent of private property. That area contains tremendous
amounts of public land. Public land that is dotted with also
state land and also private property.
Having law enforcement be the local law enforcement is what
my testimony is about today. It's imperative. It's important.
It's critical that we go back to the concept of the county
sheriff.
I was happy to hear that Mr. Perry and also Mr. Steed have
interfaced with the Western County Sheriffs' Association. Mr.
Perry, in fact, has worked directly with my son, who is the
Past President of the Utah Sheriffs' Association, so we
appreciate that.
However, in looking at what happened with this particular
officer, the Special Agent-in-Charge for Utah and Nevada and
Idaho, that should never have happened. It would not have
happened under traditional law enforcement with an elected
sheriff, accountable to the people in his community with
oversight by the State Attorney General's Office. With
oversight by the State Legislature, that would never have
happened. Time after time, since this employee has been in
place, we went back to DC. We talked to his superiors. We
talked to the Head Director of the Bureau of Land Management,
told him of these egregious actions by this individual, and we
got nothing out of it, zero out of it.
Now, as you go back and you read the record and you see
some of the things that he's done, particularly one family that
resulted in the suicide death of a well-known physician, a good
friend, Dr. James Redd. It's very, very tragic.
My good friend, Phil Lyman, who will now take my place in
the legislature, we believe, because he is the Republican
nominee for that position, was also subjected to this law
enforcement action.
I would like to see further investigations into this, into
the BLM law enforcement and the actions that resulted. I would
like to see those cases where people were prosecuted,
illegally, be reviewed again because in fact, if the evidence
that was presented was done in a corrupt manner, if it was
collected illegally, if it was done improperly, which we can
see from the Wooten letter, from his associate, then we should
have an opportunity for them to go back to court.
And therein lies one of the main problems that we have.
When you break a federal regulation under the Federal Land
Policy Act of 1976, you don't get a jury of your peers. You get
a federal magistrate. You don't have an opportunity to defend
yourself. And going to federal court and trying to defend
yourself in federal court is a no-win situation. It costs
hundreds and hundreds of thousands of dollars, and most people
are willing to take a plea bargain with lesser charges just to
get out of this system that's broken.
And so, I hope my testimony today and I hope my testimony
in the record highlights the fact that the most important thing
we can do is to go back to the concept that the county sheriff
is the one that's in charge. If these law enforcement officers
have proprietary jurisdiction, they do not have concurrent
jurisdiction and the state legislature has never given them
exclusive jurisdiction for law enforcement on the public lands
in the State of Utah. They should confine their law enforcement
activities to the resources on those public lands. They should
deal specifically with those. If it gets into an area or an
arena where it involves state laws, they should not be able to
assimilate our state laws and stop my citizens and my
constituents on state highways. They should not be able to
arrest them for not having their tail lights on their cars
functional. They should not be allowed to do anything that a
state law enforcement officer, a duly elected sheriff by the
people of that county, can do adequately.
So I would appreciate further investigation, and I could
provide additional information about how the FBI was involved
with this too. We need some more investigation into that arena
with Mr. Love and an FBI agent.
Thank you.
[The prepared statement of Mr. Noel follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senator Lee. Thank you, Mr. Noel.
Mr. Brossy.
STATEMENT OF JACKSON BROSSY, DIRECTOR,
NAVAJO NATION, WASHINGTON OFFICE
Mr. Brossy. [Speaking Native Navajo language.]
Chairman Lee, thank you for the opportunity to present
today on the law enforcement programs at the Bureau of Land
Management and the U.S Forest Service.
My name is Jackson Brossy. I'm the Director of the Navajo
Nation Washington Office, and I'm from the community of Red
Mesa which straddles the Utah and Arizona border. President
Russell Begaye regrets he cannot be here and has asked that I
stand in his place.
The Navajo Nation spans across 27,000 square miles in
Arizona, New Mexico and Utah. Our ancestral territory, however,
is much larger, ranging from southern Colorado and radiating
through the current boundaries throughout the Four Corners
region, including the Chaco Canyon region and the Bears Ears
region. These places are rich with the Navajo people's cultural
resources.
Accordingly, much of our ancestral land is now managed by
the BLM and the U.S. Forest Service. In fact, three of our four
sacred mountains are managed by the National Forest Service.
The Navajo Nation, therefore, has a significant interest in how
law enforcement is conducted on these lands.
I'm here to discuss the importance of federal law
enforcement and the protection of tribal resources in the Bears
Ears region of southern Utah.
Tribal artifacts have been looted in southeast Utah,
indiscriminately, for decades. In 2009, after years of
undercover work and coordination between the BLM and FBI
agents, a sting operation on a multimillion-dollar black market
tribal antiquities trade led to 19 arrests. The arrests were
possible because of the work of BLM agents who curbed decades
of unchecked stealing of resources in direct violation of
federal laws such as NAGPRA, the Archeological Resources
Protection Act and the National Historic Protection Act.
Despite the federal crackdown in 2009, looting, grave
robbing and blatant lawbreaking has continued and is a problem
today. Between 2011 and 2015, the BLM documented 26 incidents
of cultural resource damage in San Juan County, Utah. And there
were likely much more. During this time, the BLM has had only
one law enforcement agent assigned to the Bears Ears area.
I noted there were several instances. I want to provide
some examples of the instances that have happened since 2011.
In 2012, campers tore down a 19th-century Navajo hogan and used
it for firewood. In 2013, looters desecrated a burial site in
Butler Wash, and in 2014, a 2,000-year-old pictograph in Grand
Gulch was vandalized. We've had reports of petroglyphs being
removed from rock walls with chisels and saws. We've had
reports of rock art being vandalized with people's names etched
into the walls; 2,000-year-old to 3,000-year-old materials
being used to build fires; and we've even had reports of people
using guns to shoot rock art off of canyon walls.
We'd hoped the establishment of the Bears Ears National
Monument would provide additional law enforcement personnel to
the region. However, while we may not be able to stop
completely the desecration of tribal cultural resources and
antiquities, we will make active efforts to protect them to the
best of our abilities.
In summary, it is critical for federal law enforcement
personnel to patrol and enforce federal law on BLM and U.S.
Forest Service land.
In America we value the rule of law; therefore, we should
engage in as much deterrence and there should be consequences
for crimes. As our trustee, we expect the Federal Government to
work with the Navajo Nation and the other tribes in the region
to protect tribal cultural resources on the nation's public
lands. It's unacceptable that in 2018 federal laws continue to
be broken with such disregard at such a high rate.
We look forward to working with Congress on this very
important issue.
[Speaks Navajo Native language.]
[The prepared statement of Mr. Begaye follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senator Lee. Thank you, Mr. Brossy.
Mr. Larkin.
STATEMENT OF PAUL J. LARKIN, JR., JOHN, BARBARA, AND
VICTORIA RUMPEL SENIOR LEGAL RESEARCH FELLOW, THE HERITAGE
FOUNDATION
Mr. Larkin. Thank you, Mr. Chairman.
The Los Angeles Times and my colleague, Representative
Noel, have described what happened in Blanding, Utah. And based
on what I have read, it seems to me that the tragedy that
occurred there had at least three causes.
One was the mistaken decision by a BLM Special Agent to
treat Dr. James Redd as if he were Pablo Escobar and to conduct
an assault and takeover of the Redd's home as if they were
members of a biker gang cooking meth.
Now that problem is not something Congress can fix.
Congress can neither appoint nor train federal agents, but
there are two other causes of that tragedy that Congress can
fix.
One is overcriminalization. It's a neologism that describes
the phenomenon of the overuse, the abuse and the misuse of the
criminal law. One form that it takes is the use of the criminal
law rather than the civil or administrative law as a
predominately regulatory tool.
Now the focus of this particular hearing may not be on
overcriminalization, but it is at the heart of the problem
here. I've written a great deal about this in my position at
the Heritage Foundation. And what happened is a classic example
that is, what happened in Blanding, is a classic example of
what happens when we overcriminalize the Federal Code.
The second factor is the government's decision to create
criminal investigative divisions in proprietary and regulatory
agencies. The problem with that is similar to the problem with
the now expired, Ethics and Government Act of 1978, a loss of
perspective. General law enforcement agencies, like the New
York Police Department in the city where I grew up, see the
full range of conduct and can put in better perspective
individual instances of misfeasance, malfeasance and wrongdoing
than agents can when they only have a narrow specialty to
investigate.
Why is that? Because federal law enforcement operates on
the same type of body count method that we used during the
Vietnam War to measure success. Federal law enforcement
considers, particularly during the budget and appropriations
processes, the number of cases opened, cases closed, cases
referred for prosecution, arrests, charges, indictments,
convictions, length of sentences, total amount of fines and
total amount of money that is forfeited to the United States.
That is the standard measure of success. You know it better
than I because you have to vote on the budget of federal law
enforcement agencies.
The problem with that is we are measuring outputs not
outcomes. We are measuring what is used with the dollars
Congress gives to the agency and what the agents actually do
with that, but we are not measuring what effect it has had on
the communities or on the rate of commission of crimes in any
particular area or in any particular field.
That creates a problem. Agencies need to justify past
budget appropriations and certainly have to justify even more
future ones. Unless they can use statistics to make that case
out, what you will see, unfortunately, are tragedies like this
happen because a statistic in an important case on a sheet of
paper shows up to be just as big a case as a small case which
means you can make three small cases and get three credits for
it even though the cases are, in fact, quite trivial.
Using the criminal law to enforce regulatory procedures, to
enforce regulatory schemes, inevitably leads to that, sort of,
problem. In part, because the average person doesn't know what
every regulation is out there. Most people don't know what the
Code of Federal Regulations is or the Federal Register or where
to find it.
And that's just not me talking, that's what former Supreme
Court Justice Lewis Powell said in an opinion for the court. If
they don't know what the law is, they can't comply with it. And
even if they make a mistake, it is oftentimes far better to use
civil or administrative mechanisms then criminal to go after
someone who has broken such a rule.
The criminal justice system has a powerful effect on the
society. I've been involved in the criminal justice system for
most of my career and getting arrested, getting charged, going
through trial, has an enormous effect. It should be reserved
for the most serious crimes people can commit, not the sort of
ones that were issued in the Blanding tragedy.
[The prepared statement of Mr. Larkin follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senator Lee. Thank you all very much for your testimony
this morning.
Now we are going to start a series of five-minute rounds of
questions, and I appreciate you being here for those.
Mr. Steed, let's start with you.
Tell me if you can, what law enforcement functions your
office performs that could not be accomplished just as well but
perhaps with the greater degree of discretion and concern for
local communities by a combination of local law enforcement and
traditional federal law enforcement agencies?
Mr. Steed. So, Senator, I appreciate the question.
If I'm understanding correctly, you're asking what we do
that's different than anyone else?
Senator Lee. Yes, what do you do that could not be done
just as well, or perhaps in some ways better, by a combination
of local sheriffs and, as necessary, the FBI?
Mr. Steed. It's a difficult question to answer and I'll
tell you why.
FLPMA, the Federal Land Policy and Management Act, gave
discretion to the Secretary to stand up a law enforcement
agency within the BLM, specifically to enforce the, well, those
items in FLPMA that are addressed, that's been added on to in
the time since--the Archeological Resource and Protection Act,
Native American Graves Protection and Repatriation Act and
others. And I think by default, based on our proximity to the
land, we've been tasked with doing those jobs.
As to whether we are unique within the law enforcement
community to do it, I don't have an answer for that besides to
say that I think in enforcing federal law, generally, based on
jurisdictional issues, federal law enforcement would be tasked
rather than state law enforcement, unless they went through the
training that's required to be qualified as a federal law
enforcement agent.
Senator Lee. Yet nothing in federal law precludes them from
using local law enforcement and in some ways it encourages it.
It at least acknowledges it as a legitimate alternative that
should be used, unless there's a reason not to.
Mr. Steed. And to that extent, we rely on a number of
contractual relationships with local counties as well as other
local law enforcement agencies to involve local communities as
much as possible.
Senator Lee. Okay.
Mr. Perry, how would you answer the same question?
Mr. Perry. Thank you, Chairman Lee.
What I would say to that question is that the Forest
Service, we have a unique law enforcement mission and we have
unique training and skills related to natural resource law
enforcement that is unique to our agency.
Wildland fire investigations, timber theft investigations,
illegal marijuana cultivation-related investigations, cultural
resource protection investigations; we're the best in the world
at that. We train specifically to do those things, and I think
that differentiates us from our other federal, state and local
partners. We work collaboratively with them on public
protection and protection of the public in a lot of ways, but
those specific skills are unique to us.
Senator Lee. Yet local law enforcement authorities are not
strangers to cases involving theft, to cases involving arson?
Surely you are not describing them as inadequate.
Mr. Perry. I think that the training that we provide,
specific to wildland fire investigations, cultural resource
theft violations, I just think many of those investigations are
very complex, and I think it takes a lot of training and a lot
of specialized experience to be successful in prosecuting those
types of cases.
Senator Lee. Mr. Noel, could the local law enforcement
authorities in your district, the largest legislative district
in Utah that includes, what did you say, seven counties, right?
Could the local law enforcement officials in your district
handle most functions or duties performed by BLM law
enforcement?
Mr. Noel. Yes, they could.
And I'm not just relaying that directly just to our local
law enforcement because our local law enforcement is also tied
in with the state. It's tied in with our Attorney General's
Office. They work very closely with the DEA.
And so, when we talk about marijuana growing, our local law
enforcement is very, very involved with that. They rely heavily
upon the local people in that area to report marijuana growth,
to report the things that are happening because those are the
people that are out of the land. So, it's important that we
have that relationship with them.
I don't necessarily disagree with Mr. Perry that they've
had some extensive training, but in effect, a lot of the BLM
officers don't have the type of training that our law
enforcement officers do.
We get this idea that's Barney and Andy law enforcement.
It's a whole different situation now with millions of visitors
visiting the public lands, and our agents, our law enforcement
agents, are trained very, very well.
They do a lot of drug interdictions. They deal with things
that happen on the public lands now with rape, with theft--all
those things happen. They're all prosecuted in our offices. And
I don't think that the BLM nor the Forest Service agents have
that type of training that is something different, that's what
it is.
They do have resource training, I agree with that, and
timber management and fire suppression. Those things, I think,
they can do a good job there.
As far as the archeological theft, we have the help of the
State Historic Preservation Officer, even the federal agencies
have their own archeologist who work closely with the SHIPO,
within the State of Utah.
So again, we have the Native American Liaison Committee in
the House with the Native American. I, myself, have passed
numerous laws on Utah Native American Graves Repatriation Act
just this last two sessions ago. I passed a law that allowed
for any remains to be buried on state and state park areas
instead of site areas because the Native Americans in my area
want them to be buried as close as possible to where they find
the remains. And if those are on private property, if we can
move those remains to an area in that locality, they would
prefer that. That was accepted by the Native Americans.
And so, I appreciate Mr. Brossy in his comments, but again,
we do consider grave digging and grave robbing as a very
serious crime. We do respect your culture and respect the fact
that we shouldn't have people out digging on those lands.
That was not the case in Blanding. We can go into that in
great detail, but that was not the case that occurred. There
were 26 people that were arrested. I believe there were two
people that plead and no one really served any time. So it was
140 law enforcement agents that came in the community. They
could have had a citation and a request to appear in court, and
they would have all appeared in court. It was an overkill by
the federal agencies, even the federal agencies themselves said
it was an overkill to go through that and to do the type of
tactics that occurred there. And this is what's happening with
federal law enforcement, Mr. Chairman.
There's this buildup and this militarization. The weapons
and things that they use now, automatic weapons, fully
automatic weapons with police dogs and with tactical gear. It's
not necessary. It's intimidation, and it's inappropriate for a
rural area like my district.
Senator Lee. If the BLM law enforcement or Forest Service
law enforcement were to enter into agreements with your local
law enforcement officials, wouldn't those local law enforcement
officials be willing and even eager to work with them to make
sure the law was enforced within their jurisdiction?
Mr. Noel. They absolutely would and they would be willing
to be trained. And I think it would save the taxpayer a
tremendous amount of money.
The differences in pay scale between local law enforcement
and state law enforcement and federal law enforcement are
astronomical. A federal law enforcement officer is in excess of
$100,000 a year whereas a state or a county law enforcement
officer is somewhere around $45,000 to $50,000 a year.
So with contracts, I think we can do a better job, have a
better connection. It's no different than on the Navajo Nation
or on the Paiute. They have their own law enforcement people,
and they work with their own people. And this would be the same
thing.
I understand these are ancestral lands, but they're also
lands where people live and it's part of our state government.
The elected official in San Juan County, Rebecca Benally,
she is responsible, partially, for the funding of law
enforcement within that county and working with the local
county sheriff. If there are problems there, she is the one
that can actually say, we need to work on this more.
So, again, the training is there. We're much more
sophisticated. It's not just one sheriff, it's the Utah
Sheriffs' Association. It's the State of Utah. It's the
Attorney General's Office.
But again, it goes back, Mr. Chairman, to the concept of
federalism. We feel like we can do better as a state in
managing our law enforcement affairs than the Federal
Government.
Senator Lee. Mr. Steed, Representative Noel makes a good
point, especially when you consider the differences in the pay
scale. We are not talking about a slight difference there. That
is a very significant difference.
If you could, in fact, get as good of an outcome, perhaps
even better for something that he describes as, in some cases,
maybe even less than half of the cost, why wouldn't you do
that, especially given how much money that would save that
could be put into other things you do within the Bureau of Land
Management to make sure things are well maintained?
Mr. Steed. Senator, we're happy to take a look at that. I'm
certainly not saying no.
What I would say is we're already engaged in a number of
contracting arrangements with local and law enforcement
agencies.
I provided you a letter earlier today, at least I provided
it to your staff, I hope it filtered up to you. Sorry for it
being a little slow.
[The information referred to follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senator Lee. Better late than never.
Mr. Steed. Better late than never.
Detailing those arrangements that we have ongoing and we're
proud of the work we do jointly with local law enforcement.
I think, to answer your question though, the one question
that we have to address is whether or not we'd have to send
local law enforcement officials through the Federal Law
Enforcement Training Center, or FLETC, and that's an open
question that's never truly been addressed in order to be
federal law enforcement officials or qualified in enforcing
those federal laws. To date, that's been the standard. And we
haven't been, to my knowledge, we haven't been approached by
the local sheriff's office asking for that authority. So it's
something we can look at, but I think there are open questions
there.
Senator Lee. Mr. Perry, same question.
Mr. Perry. Yes, Mr. Chairman.
I think, you know, we work very well with our county
partners. We value them. I mean, the sheriff, we recognize the
sheriff as the supreme law enforcement official in the counties
they serve in, and we want to work collaboratively with them.
We just feel like our missions can work in conjunction with
each other.
As it relates to the, again, the training and the ability
of them to do our jobs, currently the Forest Service doesn't
have a mechanism to confer federal authority onto our county
partners. And most of the sheriffs that I've spoken with don't
have an interest in enforcing federal law anyway. They would
prefer to handle crimes that occur on National Forest System
lands through their authorities of the state, which I think is
certainly appropriate.
The Secretary has to have the ability to enforce rules and
regulations that he promulgates and know the concern is that if
there is no law enforcement mechanism within the Forest
Service, then how does that get accomplished?
Again, I think that working collaboratively with our
partners is exactly the way to go. I spent a lot of time
traveling to the West to make sure that those relationships are
strong. I've developed a lot of great friendships with the
county sheriffs in the Western State Sheriffs' Association and
the National Sheriffs' Association. Again, we recognize them
for their authority and what they bring to the table. They're
essential. We can't do the job without it.
We have roughly right now about 613 law enforcement
personnel for 193 million acres of National Forest System
lands. There's absolutely no way we can do that without their
support.
Senator Lee. Mr. Steed, can you tell me about how many BLM
law enforcement officers have been fired upon in the last five
years?
Mr. Steed. That letter or that information is contained in
the letter. I don't have it in front of me right now. There is
a number of people who have been fired on.
Senator Lee. A number?
Mr. Steed. I can't remember the exact. It's----
Senator Lee. Single digits?
Mr. Steed. Yes.
Senator Lee. Okay.
Mr. Steed. It's not a huge amount.
Senator Lee. Okay, so very rarely. If it is in the single
digits, we are talking about no more than one or two a year.
Mr. Steed. Although, if you're the law enforcement officer
receiving fire----
Senator Lee. I understand that. No, I understand that. It
is very, very serious. But it is nonetheless important to keep
that number in mind.
How many traffic citations have BLM law enforcement
officers issued in the past year?
Mr. Steed. And again, that number is contained in the
letter that we submitted to you. I don't have that in front of
me. It's a lot. I mean, it's----
Senator Lee. More than five or ten?
Mr. Steed. Correct. Correct.
Senator Lee. Are we talking hundreds?
Mr. Steed. Let me see if I've got those numbers in front of
me. I may.
Senator Lee. I do have them. You submitted the letter this
morning----
Mr. Steed. I apologize.
Senator Lee. ----just moments before the hearing so I did
not have a chance to go through them.
Mr. Steed. Absolutely.
Senator Lee. We are talking about thousands, right?
Mr. Steed. It could be, correct.
Senator Lee. Okay, but we are talking about thousands of
traffic citations being issued every year and yet in the last
five years, we can count maybe five times in which a BLM law
enforcement agent has been fired upon. Given that profile of
activity why are armed BLM law enforcement agents wearing flak
jackets, no less, executing search warrants in the private
homes of artifact collectors?
Mr. Steed. We've been charged through our mandate to
enforce federal law. Part of that federal law is archeological
resources protection.
I believe that the case you're referring to is in--the case
has been referenced previously. Is that accurate? Which was a
multiyear effort, is my understanding which yielded 14 search
warrants, 27 indictments, 12 felony convictions, 5 misdemeanor
convictions and 10 collections served or seized, 10 collections
seized of illegal artifacts. We currently have those artifacts
in a warehouse, and we're working diligently to repatriate
those. It was a large operation.
So as to tactics and approach, I'm not here to defend
tactics taken. I can say that one of the things that we're
doing in terms of our review is a uniform rules review. We
specifically want to look at the necessity of those external
flak jackets. In some cases, they may be well needed,
especially in our operations along the southern border, but
certainly that shouldn't be how we present ourselves on a day-
to-day basis.
Senator Lee. Is there any reason why that warrant had to be
executed in the manner it was? Why the raid had to happen the
way that it did? And why it had to be done by these specialized
federal law enforcement agents within a proprietary federal
agency?
Mr. Steed. And again, this is before my time and,
unfortunately, I don't know the details of why they decided to
execute the warrants in the manner in which they did.
Senator Lee. Mr. Noel, in your opinion based on what you
know about that instance, would local law enforcement have
carried out the same procedure the same way?
Mr. Noel. No. In fact, I talked to numerous individuals in
the legislature, several which have a history. One was a
federal or a state judge and just uncalled for--that type of an
action was uncalled for. They could easily have asked people to
appear. They had the evidence. There was no reason to go in, in
the middle of the night.
If you read my full report and what happened and also,
again, with the OIG report, you'll see what an extreme measure
to have snipers on top of the Redd's roof and to hold him for
six hours in chains. When he went in to use the restroom, to
have two agents at one knee and make him use the restroom and
not even allow him to clean himself.
To do those types of things is dehumanizing and
humiliating. If you go back and you talk to the Native
Americans in that area and the many, many years that Dr. Redd
served them, their families, their children, delivered babies.
He was very well loved there by both Native Americans and by
the Caucasian community in that area. And so, it was just
uncalled for, and it has had severe ramifications on the
family. And it was an incident that should never ever happen
again.
Again, I do not condone, in any way shape or form, of going
in and digging into Native American graves. I think that is
highly inappropriate. And I think it's, I strongly believe that
anyone that's in a law enforcement capacity would stop that
from happening and people would be prosecuted for it whether
civilly or criminally, I don't know, but that case was
definitely something that should not have happened in that
manner.
And if you go back and you read this, Mr. Love and with his
kill list and with his statements, you had a very deranged
person in charge of this agency for many, many years. We tried
to point it out and, prior to Mr. Steed, it fell on deaf ears
on his supervisor, on the head of the agency, and this is the
result that you have now and knowing what's happened and
transpired since then, and all the information is now coming
out.
We need to investigate this further because he didn't do it
on his own. He was complicit with other federal people. In one
case, in my discussions with a retired FBI agent, over two-hour
discussion, two other individuals relayed to me this individual
when he first started to work for the agency these
characteristics were coming out in the very, very beginning.
It's a very sordid affair that went on between him and another
FBI agent that needs to be investigated, Mr. Chairman.
Senator Lee. If someone like him had been employed with the
local law enforcement agency, I would imagine the outcome would
have been different.
Mr. Noel. It definitely would have been different. There
would have been more oversight.
This was one of the things that we don't hear, who
dispatches BLM? They're dispatched through the county. They
work with county dispatching. Who does the search and rescue
portion of it? The county does that. So as Mr. Perry said and
also Mr. Steed said, the county is actively involved in all of
these issues.
It's just the matter of, again, it goes back to the
federalism, the proprietary jurisdiction that the agencies have
as opposed to the exclusive jurisdiction which is well set out
in the Constitution of the United States and the concept of
federalism. With the concurrence of the state legislature they
can have exclusive jurisdiction or concurrent jurisdiction. But
in this case, it's proprietary.
I would certainly say to you, Mr. Secretary, under Section
303, part (c)(1), ``When the Secretary determines that
assistance is necessary in enforcing Federal laws and
regulations relating to public lands or their resources he
shall offer a contract to appropriate local officials having
law enforcement authority within their respective jurisdictions
with the view of achieving maximum feasible reliance upon local
law enforcement officials in enforcing such laws and
regulations.''
Now, whether that requires some federal training, I don't
know, but it certainly seems to me--and the fact that it's laid
out specifically in FLPMA in 1976 that they highlighted that
they would have a uniformed desert ranger force in the
California desert. For the first ten years of the agency of BLM
we had no rangers, they were only in the California desert.
That tells me that the intent of Congress in that law was not
to have federal law enforcement agencies using state law
arresting people for traffic citations, arresting people for
crimes such as rape and murder and other crimes that would
normally be done by a state and should be done by a state.
If you were in New Jersey or Delaware and someone came up
to give you a traffic citation and you didn't recognize the
uniform and he told you, well, I'm a BLM agent and I'm not even
on federal land. I'm in your county on private property, and
I'm issuing you a citation. And that has happened.
Anyway, I'm sorry. Go on, Mr. Chair.
Senator Lee. No, thank you. It is helpful insight.
When I was a teenager I was a big fan of a movie called,
Fletch. In that movie the lead character, played by Chevy
Chase, claims at one point, falsely, to be part of the federal
mattress police, and he instructed someone that he was speaking
to that they should be concerned because the ``do not remove''
tags on the mattress had, in fact, been removed when they
weren't supposed to be.
I have thought many times since then, it is very fortunate
that we do not have a federal mattress police in part because a
law enforcement agency with such a confined, narrow stovepipe
into the world, such a confined, precise mission would look
around, sort of, like the person holding a hammer to whom
everything looks like a nail. And all they see is perhaps
opportunity for a raid. If that is all they are focusing on is
enforcing the ``do not remove'' tags and the laws applicable to
mattress tags, then perhaps everything would be a raid,
complete with flak jackets and snipers on the roof.
Mr. Larkin, you have witnessed some of these problems
firsthand while at EPA. For those of us who have not witnessed
firsthand some of these problems, could you illustrate for us
some of the perils associated with giving regulatory or
proprietary agencies law enforcement powers, particularly in a
narrow-scoped area?
Mr. Larkin. Sure, let me give you an example of a case of
my own, a case that actually happened here in the District of
Columbia.
I got a report that there was a business in the District of
Columbia that was in the process of manufacturing glue and they
had illegally stored hazardous waste in the yard right outside.
I went there and, in fact, it was. It was all over. If I had
wanted, I could have wound up hooking up the woman who was in
charge of the business and she would have been charged, et
cetera. But as I looked into the investigation, I found out
that the business was actually run by her husband, who had died
a few months before. She had only been down there one time to
find out what the business was doing and while she was there
she got mugged. So she had never been back again and had no
idea what was going on. I decided this is something the civil
people can handle. They can do the remediation. If they want,
they can fine her, civilly or administratively. But this is not
the sort of person that we need to use to make an example of
for the purpose of protecting the public health. The civil side
can adequately do that.
And in my office, all the other agents said, why are you
doing that? It's a cheap stat. Now, I had a career before I
became an agent at the EPA and maybe that's why I didn't see
any need to use that as a way of getting a statistic. But even
in the environmental area I think you have to make reasonable
judgments.
I mean, I had another case where I helped send to prison a
physician who went down to a homeless shelter and with the use
of a dope dealer to get people at the homeless shelter doing
asbestos rip and strip. He didn't give any training. He didn't
give any protective gear. He didn't even tell them it was
asbestos. Essentially, these people are all a manslaughter in
progress because they're all going to die from the work they
did. That's a very different case. This was a doctor who did
this. He knew that it was illegal, and he knew the harm it
would cause. That's the sort of person who you need to go after
whether it's an environmental crime or something else.
But what we had here in the Blanding case seems to me, just
to be, unfortunately, an overreaction. Even if they thought the
people here were involved in some great black-market scheme to
rob graves and do everything else, once they found out that
that wasn't the case, they should have just ended it right
there.
The problem in federal law enforcement is once you invest
all these resources, everybody wants something to show for it.
Nobody wants to just close a case and get heat from their
supervisors about spending all this time and resources and
getting nothing out of it.
You want in on a secret? Take a look at cases where people
have plead guilty to misdemeanors. It is not uncommon to find
that where people plead guilty to a misdemeanor, it's because
there really isn't much of a case there to begin with, but they
needed something to show for it.
Senator Lee. So it should not be the presumption that when
somebody has done something wrong that the only solution, every
time, is always just do criminal action. In many cases it could
be handled by a combination of fines, civil action, perhaps
seeking an injunction in some cases, in other cases, civil
monetary penalties.
Mr. Larkin. I worked in the organized crime and
racketeering section of the criminal division as one of the two
offices I was involved in at the Justice Department. There are
seriously bad people out there. We don't need to manufacture
them.
Senator Lee. Let's talk about the different jurisdictional
situations in which different landowners find themselves.
If we were talking about a private landowner, a private
landowner has authority, obviously, to control what goes on,
who enters and who doesn't enter onto his property and what
they do there. He can ask people not to smoke on his property
and ask them to leave, if they do it. If they're misbehaving,
if they come onto the property without authority or if they
come onto the property and disobey some request of the
landowner, the landowner at that point can ask them to leave.
If they don't leave, they can call the police. But the private
landowner doesn't, it is not normally someone we would think of
as someone who can, at that point, slap handcuffs on the person
and book them himself and then bring charges.
Is that something we should take into account in looking at
the fact that we are dealing with a land agency? I am not
necessarily talking about the existing structure of federal law
which does, in fact, report to authorize the creation of these
jurisdictions. But if we were looking at it as a matter of
first principles on a blank slate, wouldn't it be appropriate
in some ways to view this as being a distinction between a
proprietary interest in the federal land and having a law
enforcement agency enforcing violations that someone commits as
a condition of being on that property?
Mr. Larkin. You grew up in Utah.
Senator Lee. Yes, sir.
Mr. Larkin. I grew up in New York City. In New York City we
don't make landlords into the police, okay? We have a police
department for that.
And at a time, they even had a separate component just for
public housing. It's now all part of the NYPD. We used local
police to deal with local problems. In this circumstance, you
could do, as my colleague, Mr. Noel said, and use the locals to
do it.
Why? There are two types of knowledge you need to be an
investigator. You need to know how to investigate a case, and
you need to know what the law is. If the Sheriff's Department
doesn't know what the special laws are, they can be taught
those, and it's not going to take a long period of time. The
Federal Law Enforcement Training Center probably could put the
course together for them and they might even be able to do out
in the different states in the West. After all, there is a
federal law enforcement, at least when I was an agent, there
was a Federal Law Enforcement Facility in Artesia, New Mexico.
That's where I went to Firearms Instructor Training School.
They could run a course there, even just to save on the costs
of having everybody travel from all over. So that can be done.
They could teach them what they need to know because the
essential investigative skills they already have. They learned
those when they went through their state or local academy.
In terms of being able to acquire the knowledge necessary
to enforce these laws, you know, putting aside that whole
question of overcriminalization, but they can be taught that.
But you also have another option that's the U.S. Marshal
Service. The U.S. Marshal Service is a federal agency. They go
through the same criminal instructor training program at FLETC
that the people from the Forest Service and Bureau of Land
Management do. It's the same course. FLETC trains everybody in
that program with the exception of the FBI and the DEA. Even
the Secret Service agents, at least when I was an agent, did
their first round of training at FLETC in the criminal
investigator training program before they went on to Beltsville
to learn protection. So the Marshal Service has been trained up
in all the investigative skills. If they needed some additional
knowledge of what the particular laws are, again, FLETC could
offer that for them. The Marshals work with the locals all the
time and they, to my knowledge when I was an agent, had a great
relationship with the locals.
Now the Marshals, I think, are an underutilized law
enforcement component in the Federal Government. They
principally work to serve the courts, but historically, at
least in the 19th century, they had general law enforcement
duties in many places in the West. I'm sure they did in Utah.
In fact, the U.S. Marshals are still appointed by the
President, so they're accountable and they have to be confirmed
by the Senate so the Senate has room to play in deciding who
becomes a U.S. Marshal. So there is that type of
accountability.
Plus, to the extent you can hold people accountable through
the budget process, you have an advantage with the Marshals
that you don't with local law enforcement which is you control
the budget. You don't control the budget for the sheriffs in
Utah, but you do for the U.S. Marshal and you do for the
Marshal Service, generally. Okay?
Finally, to the best of my recollection, the Marshal
Service in the statute that creates them and empowers them,
gives them the same sort of authority that the state law
enforcement officers have. So they could, at least perhaps when
they're working on a joint investigation, use whatever state
law enforcement authority their counterparts have. In fact, I
think the Marshal Service can also deputize state and local law
enforcement officers in order to exercise federal law. Now I
would ask the Director of the Marshal Service for that opinion
or somebody at DOJ to confirm it, but to the best of my
knowledge you can make people into, essentially, Deputy U.S.
Marshals, Special Deputy U.S. Marshals, particularly on an as
needed basis in a particular case.
So yes, my colleague talked about using state and local law
enforcement and state and local law enforcement might be one
way to go, but I think another option to consider is using the
Marshal Service.
Since everybody at BLM and National Park Service has
already been trained, you can transfer the people, Congress
that is, could transfer the law enforcement programs from
Agriculture and Interior to the Marshal Service without even
costing people jobs.
It's another option to consider and to the extent that
people are concerned that the Secretary of the Interior and the
Secretary of Agriculture want to have their authority enforced,
the Marshal Service is certainly going to be responsive to
their concerns.
Senator Lee. I appreciated what you said earlier about the
overcriminalization issue and noting that although that is not
the precise focus of this hearing, it is closely related to the
overcriminalization problem.
It reminds me a little bit of something described in
Federalist 62 which, I believe, was written by Madison, where
he says in essence, it will be of little avail to the American
people if their laws are written by those of their own
choosing, if those laws are so voluminous and complex if they
can't reasonably be read and understood and understand what the
law is today and understand what it will be tomorrow.
How does this contribute then to your concern about these
agencies, the fact that they are handling, among other things,
a number of regulatory criminal offenses? Does that concern
you?
Mr. Larkin. Very much so.
The very first Congress passed the first criminal law act
in the United States and made about 30 offenses. All those were
ones necessary to get the new government up and running. They
dealt with the courts, they dealt with the inspectors for the
customs service and the like, and they dealt with piracy and
other things dealing with trade because there was no income tax
to fund the operation of the Federal Government.
It was basically through revenue from imports that the
Federal Government got funded, as well as selling land later.
Nowadays, there are so many criminal statutes, federal
ones, that nobody knows how many are out there. The Justice
Department looked. It couldn't find the answer. The Library of
Congress looked. It couldn't find the answer. The American Bar
Association looked. It couldn't find the answer.
Now, add to this----
Senator Lee. They said that essentially that it is not only
unknown, but it is unknowable.
Mr. Larkin. Right.
Add to that the fact that there are many statutes that
authorize agencies to promulgate regulations that amount to
crimes. And you have, potentially, thousands of laws out there.
No lawyer, no judge, no law professor can know them all.
And to make it worse still, many of them do not require
that the government prove someone knew he was breaking the law
in order to step across the line. If no reasonable person knows
where the line is dividing criminal from, you know, permissible
conduct, people are going to step across it unwittingly. That
creates terrible problems because you allow then for
discriminatory enforcement. You can pick who you're going to
enforce the law against.
It also creates disrespect for the law. Normally people
think lawbreakers are people who know what the law is and defy
it. They go ahead and they break it anyway. If people can
unwittingly break the law, you lose respect for the law because
then the people who get arrested feel that it's more the result
of happenstance than it is of intentional violation of a known
legal duty.
It creates a terrible problem for businesses and,
particularly, small businesses. If you're the CEO of Dow
Chemical you have an entire legal department and have lots of
white-shoe law firms on speed dial. If you're the local dry
cleaner, you don't. Probably the only time you deal with a
lawyer is maybe when you deal with a contract to get supplies
or maybe when you're getting your will done or something like
that.
Yet, you can violate the federal environmental laws, in
good faith, by trying to dispose of materials that violate
regulations. Those people don't know what the law is and yet,
what happens when you allow regulations to become crimes, is
you essentially force people to consult lawyers before they
take certain acts.
Neither the English Common Law nor American Law ever
contemplated that. Basically, the criminal law was designed to
deal with conduct that everyone knows in his or her heart is
harmful, is wrongful and should not be engaged in.
Granted, we no longer have a criminal code that parallels
the Decalogue, but the criminal code we have today, buttressed
by the regulations that have been adopted over the course of
decades now, make it impossible for the average person to know
what the law is.
There are different ways of dealing with that. Former
Attorney General Ed Meese and I have urged Congress to adopt a
mistake of law defense that would exculpate someone if neither
he nor any reasonable person would have thought that the
conduct charged against him is a crime. That's one way to deal
with it. There are others, but it's a serious problem and this
case typifies some of what can happen when you do that.
If an agency is tasked with enforcing, you know, the anti-
nail law and the only thing you give them is the hammer that
you mentioned, then every case is a big case.
Senator Lee. In that respect, the problem of
overcriminalization through legislative means and through the
proliferation of regulatory offenses becomes even more
pronounced when you combine that with a very specialized law
enforcement agency because the disparity between the
information available to the person, the citizen who is subject
to those, and the very specialized agent who is in charge of
those things, is that much greater.
Mr. Larkin. Absolutely.
Senator Lee. Mr. Steed, BLM rangers have a long history of
contributing to the stewardship and the effective management of
federal lands.
Tell me how the job of ranger differs from that of the job
of special agent.
Mr. Steed. So if I was going to make an analog to a
traditional law enforcement, I would say, rangers are more the
uniformed police officers on the beat. Special agents are more
the detectives.
Senator Lee. Can you walk us through the history of when
BLM began hiring agents, the number of agents and how they were
equipped has changed over time?
Mr. Steed. So, unfortunately, I'm unaware of how that's
changed over time. I can say that we've had a uniformed
presence since 1978. Other than that, I can't provide specifics
on the buildup. I'm sure we could follow up on that.
Senator Lee. That is fine.
[The information was not provided at the time of printing.]
What about today? Setting aside the historical context, how
are special agents today equipped differently than rangers?
Mr. Steed. I don't think that there's any difference in
equipment. They may appear without the same brown uniform that
you frequently see with the rangers, but I think they're issued
the same equipment.
Senator Lee. Do the rangers have flak jackets?
Mr. Steed. In some cases, they do, sir.
Senator Lee. Do the rangers have machine guns?
Mr. Steed. I don't know. I haven't done a full inventory. I
can't say to this end, I mean we're doing a full uniform
review, as I said earlier in the testimony, as well as to
figure out what equipment we need and which we don't.
Senator Lee. I want to get back to a point Mr. Noel made a
few minutes ago. I will preface this question with the fact
that BLM, I think you would agree, has suffered significant
reputational damage due to its officers, its agents, engaging
in misconduct and their overzealous use of some really heavy-
handed tactics.
Now FLPMA, as Representative Noel alluded to earlier,
directs the Secretary of the Interior to delegate law
enforcement on public lands to local law enforcement officials,
``when the Secretary determines that assistance is necessary.''
Given the lack of trust that exists between local
communities and BLM law enforcement, couldn't BLM really
benefit in a lot of ways from having the help of local law
enforcement officials, helping any federal agents who might be
involved?
Mr. Steed. So, two points.
First of all, just to clarify. Listen, I've been around the
agency, interact with a lot of our law enforcement personnel,
and I just don't want to paint with too broad a brush. We have
many good people working for the agency. People who care deeply
about their jobs and put themselves in harm's way every day.
And I'd be remiss in not acknowledging that. We have identified
a handful of bad actors, and based on that we're trying very
hard to make those personnel actions.
Senator Lee. I want to be very clear, Mr. Steed. I agree
that that is true. That is absolutely true. But there is still
a big difference between the fact that these things have
happened within your agency. federal land management law
enforcement agents have done stuff that just would not happen
in Kane County, that just would not happen in Garfield County
or in any of the other areas represented by Representative
Noel, in most of the other parts of my state and the
Intermountain West. They just would not happen like this or
they would occur with far less regularity because local law
enforcement officers have something in common. They are all
accountable, either directly to the people, as is the case with
many sheriffs for instance, or to someone else who is
accountable to the people--perhaps it is through the local
police department that, in turn, is answerable to a mayor, who
is herself elected. But these things just don't happen.
Sure, there are other problems that might arise. No law
enforcement agency is going to be perfect as long as it is run
by mortals, and we do not have access to angels to run our law
enforcement agencies. But it seems to me that the particular
species of heavy-handed abuse is far more prevalent with a law
enforcement agency like yours than it is with the, say, the
Kane or Garfield County Sheriff's Office.
Mr. Steed. And I've acknowledged that we've had a problem.
And in addressing that problem I can do three things: I can
address personnel, I can address proximity, I can address
policy. As to personnel, I think I've mentioned that we're
pursuing, actively, civil, criminal and administrative actions
against some of those bad actors. In proximity, we're trying to
get law enforcement closer to those who we interact with and
who we serve which is why we're looking to move BLM law
enforcement headquarters to the West. And then policy, we're
quite active right now in reviewing all policies regarding our
law enforcement.
One of the first things I did in my current position with
regards to law enforcement on March 3rd, I put out an
information bulletin encouraging just what you're suggesting,
to work closely with local law enforcement based on the unique
attributes that local law enforcement brings to bear. I think
we should do that, and I think we will continue to do that and
increase our effectiveness in those collaborative agreements.
Senator Lee. I understand that.
I want to make very clear, I appreciate what you're doing
and what Mr. Perry is doing. I appreciate your efforts in this
area, and I appreciate the efforts of the many personnel who
work under your supervision who are doing things right.
As my late father, who like me was an attorney, used to
say, especially when speaking to groups of attorneys, ``it's a
shame when our entire profession is disparaged on the basis of
only eight or nine hundred thousand bad apples.''
[Laughter.]
I am sure the ratio of reputational harm among these agents
is more favorable within your agency than it is of the legal
profession.
Mr. Steed. As a member of the legal profession, can I take
offense?
Senator Lee. Right, right.
My dad also had this little sign in his office that said,
yes, I'm a lawyer, but don't tell my mother because she thinks
I play the piano in a bordello.
[Laughter.]
The point is, there are some environments in which certain
people of certain professions are going to be more inclined
toward misbehavior than others.
This, as a very specialized federal law enforcement agency
within a federal land management agency, it seems to me is
particularly prone toward these types of missteps,
notwithstanding the fact that most of them are very good
people. It is just that the inputs are different.
I think that is one of the reasons why we have to be
concerned here, one of the reasons why FLPMA favors, encourages
and arguably creates a strong presumption in favor of bringing
in local law enforcement to assist with the day-to-day
management of public safety issues on federal lands and why it
certainly would not contemplate this army of quasi-militarized
federal police handing out traffic citations to the tune of
thousands and thousands a year just because those citations
happen to have occurred within federal land.
On a related note, as you are aware, a federal judge
recently declared a mistrial in the criminal trial of Cliven
Bundy and his sons based on the U.S. Attorney's failure to
produce exculpatory material before the trial. I am sure you
would agree that the BLM-led standoff at the Bundy ranch, out
of which those particular criminal charges arose, was ill-
conceived and was poorly executed.
If BLM does law enforcement, doesn't it have a
responsibility to set the tone for federal law enforcement down
the chain?
Mr. Steed. In terms of the specifics on the Bundy case, I
can't get into it. There's an appeal pending, unfortunately,
and at the risk of being prejudicial to those cases, I just
can't get into it.
Senator Lee. Okay, what about in the abstract?
I understand----
Mr. Steed. In the abstract, absolutely, which is exactly
why I say that we absolutely are trying to increase our
accountability to the American people by having the right
personnel at the helms. We're absolutely trying to change
policy to make sure that we're as accountable and as responsive
and as good at our job as possible.
And I think if the Secretary were here, he would tell you
that this is one of his strong priorities as well. I mean, he
doesn't want people to fear Department of Interior law
enforcement. He wants people to see that they're out there
trying to do their jobs and manage resources as FLPMA and other
laws have encouraged.
Senator Lee. Okay, but the judge's order in this instance
said that the material related to the use of snipers which BLM
had denied aggressively. Isn't that the case?
Mr. Steed. Again, I can't get into to the specifics of the
case.
Senator Lee. But I think they are referring to an
undisputed fact. I do not think that part of it is under
dispute. If you have been instructed by legal counsel that you
should not answer, then far be it for me to tell you otherwise.
I would just say that to the extent that BLM is not doing a
good job of making sure that things are being handled
correctly, not only within BLM but down the chain and
particularly where, as I believe to be the case here, BLM
denied rigorously, aggressively, what had in fact happened. I
think to that extent in those instances BLM law enforcement
agents are failing to do their job appropriately.
Tell me when the assistance of local law enforcement
officials is not necessary?
Mr. Steed. Oh, I think that the default position should
always be to incorporate local law enforcement.
Senator Lee. And to the extent it can achieve that, it
saves the taxpayer money.
Mr. Steed. Yes.
And I think if you were to look at our cases at large, I
mean, I recently read a report out of Alaska where on some BLM
property we had auto thefts. Apparently, the investigation was
conducted jointly with the local law enforcement. Regarding
those and it was a theft out of automobiles, arrests were made
and prosecution sought in state court without ever involving
that. So I think there are many, many cases in which that type
of relationship plays out on a day-to-day basis.
Senator Lee. Mr. Larkin, let's get back to you.
There is a bill in the House of Representatives that has
been introduced by my friend and colleague from Utah,
Congressman Chris Stewart. It is called the Local Enforcement
for Local Lands Act.
This is a bill that would eliminate criminal law
enforcement offices within BLM and within the Forest Service
and would use the funds saved by the elimination of those
offices to provide grants to local law enforcement so that
local officials within the area of lands managed by the Forest
Service or the Bureau of Land Management could enforce criminal
law, federal criminal law, relating to federal public lands. Is
this approach something that you would support based on my
description of it?
Mr. Larkin. Yeah, I have to say at the outset I can't take
a position in favor or against any particular legislation so, I
can't say that is a good bill or a bad bill. What I can say is
that it always makes sense to have local law enforcement
involved. Why? Local law enforcement knows the people involved.
There's a famous case that happened in the suburbs of DC
where in Maryland there were police that conducted a raid on a
home and wound up shooting the two dogs that were there. The
police that did the raid never contacted the locals to find out
anything about the people inside. It turns out the home was the
local mayor. Okay? And somebody, what had happened, as is
practice, it happens in drug trafficking, they will ship the
narcotics to an unsuspecting person and say you can leave it on
the porch, and then they'll come by and pick it up, because if
it gets intercepted en route they're not responsible. It wasn't
their home they were having it shipped to. So that's what they
did in this case. They had it shipped to the mayor, and
somebody found out about it. The cops conducted this raid. They
go in and they treat the mayor like he's, you know, a member of
a Columbian cartel.
Well, if they had contacted the local police, the local
police would have said, no, wait a minute, you don't need to go
in this strong in this case. This is the mayor. Just knock on
the door and talk to him, and he'll tell you he's not going to
shoot you. You don't have to go in like you're breaking into a
meth lab. It always makes sense to talk to the locals.
Now, of course, there are exceptions where maybe if you're
dealing with a public corruption problem, et cetera, you have
to exclude the people who may be the object of the search. But
generally speaking, you know, in matters like the Redd case and
in matters like the one that I just mentioned that happened in
suburban Maryland, you want to include the locals because, if
you're the Feds, because they have a much better feel for the
people involved, the community, et cetera.
The case I mentioned earlier, the investigation I conducted
of the physician who violated the environmental laws by doing
an asbestos rip and strip, I worked with a police officer from
Stanton, who was one of the best cops I've ever worked with.
And I couldn't have made the case without her involvement. And
it's going to be the case by and large that you want to get the
locals involved because they have more intel than you do. And
they may even have more assets than you do because they have
people that can be involved. So it is always sensible to try to
get the locals involved, if you can.
If you're dealing with, like I say, a problem because the
objects of the investigation themselves may be police or
politicians or if you're dealing with a national security
matter where you may feel that you can't disclose the
information surrounding the case to the locals, who haven't got
the security clearances, those are different cases. Those are a
very small number of them. By and large, you want to get the
locals involved.
Senator Lee. Going back to my earlier question.
Suppose Congress were to decide as a matter of policy and
pass a law deciding that it was unnecessary or unwise for land
management bureaucracies to control undercover criminal
investigations or to execute search warrants or undertake raids
or make arrests. Are there ways to organize those functions to
ensure that federal law is still being respected on federal
lands?
Mr. Larkin. Yes.
Senator Lee. That would not be Armageddon. It would not
produce an Armageddon type environment. Dogs and cats living
together in the streets.
[Laughter.]
Book of Revelations stuff.
Mr. Larkin. Yeah, yeah, yeah.
No, I mean if you want proof of that, this was created by
FLPMA which was passed in the 1970s for more, you know,
probably for 200 years we got by without having a law
enforcement program in the Bureau of Land Management and the
Department of the Interior. If that was when it got started,
everything that happened up until then was able to work with
just state or local law enforcement or the Marshal Service or
the FBI, as need be. It wasn't as if all of a sudden there was
some tremendous need just for law enforcement at a regulatory
or proprietary agency. For a very long time we got along
without it.
Senator Lee. Mr. Steed, following up on a previous question
I asked you relating back to some of the other FLPMA provisions
that Representative Noel referenced. FLPMA says that contracts
must be offered, ``with the view of achieving maximum feasible
reliance upon local law enforcement in enforcing federal laws
and regulations.'' Why do you think FLPMA envisions maximum
feasible reliance on local law enforcement?
Mr. Steed. Senator, I think that we can all acknowledge
that local law enforcement has a unique tie to local
communities that probably can't be replicated to the same
degree from a federal law enforcement perspective. And if I
were to hypothesize on that, my guess is that those who
authored FLPMA certainly were, not in their head, to that
notion.
Senator Lee. What would you say in response to the question
of whether BLM is achieving maximum feasible reliance on local
law enforcement?
Mr. Steed. I can tell you our intent is to achieve maximum
feasible reliance on local law enforcement.
I can't speak to the past. I can say that what we're doing
here is trying to work very closely with our state and local
partners and meet the needs that we face in managing public
lands.
Senator Lee. Representative Noel, I assume you heard my
question a moment ago to Mr. Larkin about Congressman Chris
Stewart's bill. What is your reaction to that bill?
Mr. Noel. I think this is the same bill that Congressman
Chaffetz started on and actually was one of the bills that I
proposed in the legislature. We've actually been able to, in
the Utah State Legislature, limit what we call the assimilation
of state laws, the traffic laws, et cetera. That bill went to
Federal Court and one of the judges ruled it unconstitutional,
and we had to revise it but it actually did go out.
It's interesting, Mr. Steed talks about he wasn't sure what
happened when FLPMA was passed. I was actually working for the
agency prior to FLPMA being passed and when it was passed. And
that was when it went from an agency that was disposing of the
public lands and managing them for disposal to one of we were
now going to retain the public lands and ownership with an
opportunity to dispose of lands still. There was no thought at
the beginning of that agency for federal law enforcement. There
was never any federal law enforcement in the State of Utah.
There was a Special Agent-in-Charge, Marty and Skip. I can't
even remember their last names, but they were exclusively with
local law enforcement.
I don't think we got a BLM ranger for probably ten years
into my BLM career from September 1976 and that agent was
actually doing mainly resource protection things, someone is
stealing wood, someone trespassing cows. Even then they used
the brand inspector. So that was the way it worked then. And
Skip and Marty would come down. They would work with local law
enforcement when there were problems and they would take care
of the situation.
When the first BLM law enforcement officer was hired, he
didn't do anything in terms of ticketing or any type of thefts.
He would work mainly on resource damage issues. In fact, the
local sheriff at the time actually deputized him and made him a
deputy sheriff along with his federal authority to be able to
do and exercise the laws as a deputy sheriff which, I think, is
very appropriate. I think that's happened in other parts of the
State of Utah. But then he's under control in the
accountability.
That is the whole key here, Mr. Chairman, is the
accountability. The fact that when we see collusion with NGOs.
This was some of the case with the Dr. Redd situation. There's
a direct connection to an organization that wanted to seek
prosecution and after eight years when there was no prosecution
when this supposed million-dollar black market was out there.
I would ask the question, was any money recovered? No. It
was simply a false narrative that was out there that this
million-dollar trafficking of artifacts was going on in San
Juan County. It's not true. It's never been true. There may
have been some sold but it was very, very minor.
So, I think that's exactly the way things should work. I
think we should, in fact, have local law enforcement.
Again, the Forest Service has specific duties with fire
suppression and being able to stop fires and timber harvesting
and theft. But again, those could be handled mostly civilly in
penalties and fines and, again, if you get into it, it's when
they cross over. We have lots of times where even the Park
Service will have a situation where there was a rape that
occurred in Glen Canyon National Recreation Area. The people
involved there at the park had no, absolutely no, background to
prosecute that case and to go forward and investigate that
case. And when they got involved, the sheriff basically said,
no, you're not going to do this. And they backed off of it. So,
if you have the right sheriff and the right person involved
that said, we're going to do it.
It goes really back to the fact that what is your right as
a citizen to have a jury of your peers, not a federal
magistrate in some court 200, 300 miles away when you get
charged with a crime. Not having to go to Federal Court and
deal with the cost, the high cost of the federal attorneys and
what happens in a Federal Court, you go to your local court.
You have a jury of your peers. You have an opportunity to go to
court and to have an attorney, a local attorney handle those
things.
This is a case that if you're, even if you're innocent by
the time you go through that process, you have spent hundreds
of thousands of dollars. I know this personally in my help with
Mr. Lyman, who will soon be the representative. His entire
case, his entire case on that road trespass, was based on a
false premise on the road, and the federal judge would not
allow the evidence to come forward. We went to the U.S.
Attorney. We showed him the evidence that they--the actual case
file showed it was not a Title V road, it was an RS 2477 and
they just blew us off. And so, the arrest, the investigation,
all the things that happened subsequent to that, should never
have happened in the way that it did. It should never have
happened. It would never have happened.
This is something I would like to see happen out of this,
again, any of these cases that were prosecuted and ended up in
people going to court, they should be allowed to have those
cases re-looked at and evidence brought forward in a manner
that would actually show the true story.
It goes back to what Senator Hatch said to Lorretta Lynch
with the Ted Stevens case and he held up the book, License to
Lie, by Sidney Powell and what happened to Ted Stevens, Senator
Stevens, in his case when he was eventually exonerated after
years and years and years. But he said, I want you to read this
book because just like my friend to the left here said, you
don't even know the crimes that are in there. You don't even
know what you have to go through. It's all based on how many
convictions, how many people get prosecuted, how many go to
jail. And then when you get out, then you can go to work and
say, hey, I can get you out of jail because I was able to put
all these other people in jail when I was a federal prosecutor.
So it's a system that's broken and we are facilitating it
in Utah by the Federal Land Policy and Management Act and
having federal law enforcement stepping into areas and arenas
where it should be a state court, it should be local law
enforcement.
That's my main purpose of flying from China at, it was
actually at eight in the morning. I left from Seattle last
night and got here and went to bed at one o'clock in the
morning because I wanted very much to get this on the record.
It's a huge problem in the State of Utah and in the West.
And I really appreciate you, Chairman, bringing this forward.
It's something we've got to solve.
So I support Chris Stewart's bill.
Senator Lee. Thank you very much, Representative Noel, and
I appreciate your making the trip and providing your very
significant perspective and your unique perspective as someone
who has worn a number of different hats, all of which are
relevant to this topic.
I have one final question for Mr. Larkin. I am not sure you
will know the answer to this question. I don't, but something
you said earlier peaked my curiosity.
You referred to the fact that in the first set of criminal
laws passed by Congress at the time of the founding there were,
I think you said, a few dozen, maybe 30 federal, criminal
statutes. Do you know how those were typically enforced at the
time? They did not have the FBI then. They did not have a swarm
of federal officers then. How were those typically enforced?
Mr. Larkin. My belief is they probably were enforced by
people in the customs service.
Senator Lee. Okay.
Mr. Larkin. That is, if you're dealing with the laws that
made it a crime to cheat the government out of customs duties
that it was due.
To the extent you had it a crime to assault a federal judge
or the like, those would have been enforced by the Marshal
Service because the Marshal Service and the Customs Service
were, effectively, the first law enforcement agencies the
Federal Government had. And the Marshal Service was the
equivalent of the sheriff's departments, if you will, that they
had in England and that we continue to have in this nation,
particularly in your neck of the woods. So that would have been
my understanding as to how those would have been done.
The Secret Service didn't come into existence until after
the Civil War, and that was really at the outset to address
counterfeiting rather than provide protection to the President.
The FBI was the Bureau of Investigation initially, then
later became the Federal Bureau of Investigation.
What we had since then, unfortunately, is the development
of various different federal law enforcement agencies without
Congress or the President ever taking a look back to see how
best this should all be organized. You know, is there
jurisdiction that one has that actually is better with the
other, et cetera, and the like.
I mean, we have two different types of protective services,
three actually, if you will. The Secret Service protects a
limited number of people, like the President, foreign Heads of
State, et cetera; we have a Diplomatic Security Service that
protects people from foreign governments at the next level
down; and then the Marshal Service protects people if there are
particular individuals, say, in the Federal Government who are
at risk. But Congress hasn't ever stepped back and said, we've
got this entire fleet of criminal investigative agencies out
there and maybe it makes sense to consolidate or move things
around.
So it's a very long-term project, but it's one that I've
always hoped that somebody would take the laboring on because
the public would be better off, I think. And I think it would
also help address the overcriminalization problem because, like
I've said, when people have the full range of wrongdoing to
look at, they get a better perspective on what is and is not
important. So the overall organization of federal law
enforcement has been a haphazard development. I think it's
something that Congress and the President should look at.
But like I said, to answer your question, I think, with
respect to violations of the customs laws it would have been
Customs Service agents. With respect to the federal courts, it
would have been the Marshals.
Senator Lee. Thank you. That is a helpful perspective.
It seems to have been something of a one-way ratchet with
federal authority and I think, as you say, it is important from
time to time to look at whether what we have created makes
sense. It is one of the reasons why we have oversight hearings
like this one, I think, because Congress needs to do a better
job of providing oversight in a big picture view with regard to
what we need and where resources might be better spent
elsewhere.
Okay, a couple of housekeeping items.
I have a statement for the record that has been submitted
by Senator Lisa Murkowski from Alaska, who happens to be the
Chairman of the Senate Energy and Natural Resources Committee
of which this hearing is operating as a Subcommittee.
That will be admitted for the record without objection.
[Written statement from Chairman Murkowski follows:]
[GRAPHIC] [TIFF OMITTED] T0283.070
Senator Lee. I want to close by pointing out that I think
we all seem to agree, based on our discussions today, that
there should be more local law enforcement involvement in this
area. I have not heard any disagreement to that point. I think
that is a good point of agreement or relative consensus that
has come out of today's hearing.
The question that remains, as I see it, is whether law
enforcement authority for federal land management agencies are,
by their nature, so wrongly placed or at least situated in such
a way that they are so prone to abuse that Congress should
consider amending or perhaps revoking their authority. That is
a question that, I think, needs ongoing discussion, but today's
hearing has been very helpful in exploring this issue.
I really want to thank each of you for coming and for the
very valuable testimony that you provided.
Seeing that there are no additional questions, I will
indicate that members will be allowed to submit written
questions while the record remains open. The record will remain
open for an additional two weeks.
This hearing is hereby adjourned. Thank you.
[Whereupon, at 11:55 a.m. the hearing was adjourned.]
APPENDIX MATERIAL SUBMITTED
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