[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

=======================================================================

                                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
                                 
                                 
                                 ------                                

           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

                              ----------                              

                           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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