Introduction by Bobby Unser:
I never imagined myself becoming a spokesman in the ongoing controversy over the government's regulatory policies. My life, after all, has been dedicated to the sport of auto racing. But, like so many other Americans, I have been thrust against my will into the middle of the debate because of the government's unfair efforts to punish me for just trying to stay alive. My story began in December 1996 when I went snowmobiling with a friend in the New Mexico countryside. We were recreating in the Rio Grande National Forest which thousands of other snowmobilers have done and continue to do so today. There is no law prohibiting snowmobiling in the national forest. But then without warning, in the middle of our trip, a fierce ground blizzard occurred. Winds of 60-70 miles per hour stirred up so much snow you could barely see in front of you. My friend, inexperienced in the operation of a snowmobile, soon got stuck in the snow and got on the back of mine. But, in attempting to escape I too got lost in the whirling storm or "whiteout" as it is commonly called. Our situation got even more desperate when my snowmobile broke down. With night falling and the temperature dropping, I knew we would have to find shelter if we were to survive. That night, we stayed in a snow cave we dug ourselves. The next day we began walking in search of help and after 18 hours of trudging through the wilderness we located a barn where we called for help. My friend and I had to be hospitalized for exposure and I still suffer from the effects of spending the night in the brutal cold. However, we were both grateful to be alive and thankful that our ordeal was over. But as it turned out, it wasn't over. Soon after I left the hospital, the United States Forest Service charged me with illegally taking my snowmobile into a federally-designated wilderness area where such machinery is prohibited. They threatened me with a $5,000 fine and/or a six-month jail sentence. I was stunned. My friend and I were literally driving in circles desperately trying to save our lives. The last thing on our minds was whether we were illegally entering a wilderness area. Worse, the Forest Service didn't even know if I had in fact entered a wilderness area. My snowmobile was never recovered, and, to the best of my knowledge, it is still lying up there, lost in the forest. What bothers me the most, however, is that the government would even think of citing me when all I was doing was trying to save my life and the life of a friend from a dangerous blizzard. Yet, the Forest Service has chosen to spend $600,000 in prosecuting their unjust case against me. That is why I have chosen to fight this regulatory abuse of power. Unfortunately, I have come to discover that my case is hardly unique. This book documents the most egregious examples of the government's unjust persecution of decent, hard-working Americans whose only crime is that they were simply trying to earn an honest living or, like me, had the misfortune of being in the wrong place at the wrong time. I actually count myself one of the more fortunate victims of regulatory abuses. There are all too many stories, detailed here, where innocent people weren't just fined but lost everything they had - their homes, their businesses, their livelihoods. Some lost the use of their property because it was deemed a wetland and they couldn't sell it for the value at which they bought the property. Others, like a couple in Massachusetts, lost their home and their business because politicians used zoning laws to mercilessly persecute them. Yet others, like a farmer in California, still owns his land and pays taxes on it but is prevented from farming because federal agencies can't agree if he has wetlands on his property. Like my story, there are several examples of the government simply ignoring common sense and persecuting individuals for doing what they had to do to stay alive. Such was the experience of the Montana sheep herder who was fined $5,000 by the Interior Department for shooting a Grizzly Bear that was threatening his life on his own property. Then there are the sad examples of entire communities which have had their economies wrecked because of the misguided application of endangered species regulations and other environmental laws. The reasons why many of these individuals become victims are varied. Some are the victims of poorly-written laws, while others are victimized by a web of confusing and sometimes contradictory regulations. Then there are those who are simply the targets of abusive government officials. There are many compelling statistics on how much regulations cost the American economy. I could tell you about the 65,000 pages of federal regulations and how they keep growing. Or, I could tell you that these regulations cost the economy as much as $1 trillion per year. Yet, these facts do not begin to tell the human story - the wrecked dreams, shattered hopes, and endless legal nightmares experienced by decent people. This book, which includes my case, begins to tell the human story. -Bobby Unser Bobby Unser is one of America's most accomplished race car drivers, winning the Indy 500 three times in 1968, 1975 and 1981. He is also: a two-time National Champion winner, a two-time winner of the International Race of Champions, a 14-time winner of the Pikes Peak Hill Climb, winner of eight 500-Mile victories (three Indy 500s, four California 500s, one Pocono 500), and winner of 35 Indy Car victories. Unser is a member of the Indy 500 Hall of Fame. In 1993, he set a new land speed record of 223.709 mph at the Bonneville Salt Flats. Currently, Unser is ABC Television's chief analyst on the network's auto racing telecasts. He lives in Albuquerque, New Mexico and has four children, Bobby Jr., Cindy, Robby and Jeri.
National Parks and Forests Woman Wages Costly Legal War with Forest Service to Save Property Rights
For more than 50 years, the Stupak family rented cabins and boats to vacationers on Crooked Lake in Michigan's remote upper peninsula - that is until the United States Forest Service (USFS) told the Stupaks they could no longer use the lake for boating. It seems that all but 40 of the lake's 600 acres were made a part of the Sylvania Wilderness Area, which had been established by Congress in 1987. In 1990, USFS officials claimed that all boats, whether gas-powered or sailboats, would be prohibited to protect the wilderness area. Kathy Stupak-Thrall argued that the wilderness act violated property owners' right to use the lake for recreational purposes. Michigan law has clearly stated for more than 170 years that every owner along a lake, including Stupak-Thrall and the USFS, has the right to use the entire lake. A tortuous legal fight ensued that still rages to this day. In the case involving the use of sailboats, a federal district judge ruled for the USFS. The Sixth Circuit split 7-7 on the validity of the ruling, thereby upholding the district judge's decision. Stupak-Thrall even asked the United States Supreme Court to hear the case. It declined in the fall of 1996. However, another federal judge recently ruled that the USFS's attempt to deny waterfront property owners access to the lake represented a clear violation of the Fifth Amendment. Stupak-Thrall has had to spend nearly $300,000 to fight what amounts to a government seizure of her property. Commenting on the USFS's action, she says: "This is ridiculous. . . These people are civil servants. They are not tyrants. They work for us." Another waterfront owner is Michael Gajewski. A retired Army major suffering from multiple sclerosis, Gajewski says that if the prohibitions are upheld, he and his wife will probably go bankrupt. "It will cost us 95 to 98 percent of our business," he said. Source: Mountain States Legal Foundation
Forest Service Places Higher Value on Wildlife Than Human Life
While hiking with his scout troop in the New Mexico wilderness, a 14-year-old boy became separated from his troop. As it turns out, the youth was attempting to run away from home. Upon discovering his absence, the troop alerted the authorities so that a helicopter could conduct a search. A helicopter did locate the youth. Incredibly, however, the boy had to spend an extra day in the wilderness because the United States Forest Service (USFS) denied the helicopter the right to land and bring him to safety. USFS bureaucrats believed that regulations implementing the Wilderness Act precluded the helicopter from landing even if it was a rescue attempt. The next day, rescue personnel reached the boy on foot. The USFS shows a markedly different attitude when it comes to saving protected species, however. Recently, in Idaho, ranch hands notified park rangers that a Gray Wolf had been injured inside the Frank Church River of No Return Wilderness area. A recovery biologist with the United States Fish and Wildlife Service determined that a helicopter would be needed to transport the wolf to safety. The USFS wasted no time in immediately granting the request. Source: Testimony of Perry Pendley before the Subcommittee on Forest and Forest Health, U.S. House of Representatives Committee on Resources, April 15, 1997
Efforts to Save Two Lives Earns Indy Winner a Fine The United States Forest Service
(USFS) threatened to fine three-time Indy 500 winner Bobby Unser $5,000 because, in saving his life and the life of a friend in a dangerous blizzard, he allegedly took his snowmobile through a federally-designated wilderness area. Unser's ordeal began in December 1996 when he and a friend went snowmobiling in the Rio Grande National Forest, an area where snowmobiling is permitted. Without notice, a terrible blizzard moved in, and the two men quickly got lost in the 60- to 70-mile an hour winds. While the men were driving around in circles trying to escape, one of the snowmobiles broke down. Then, a few hours later, the second snowmobile broke down. With darkness approaching and the temperature falling, Unser and his friend knew they needed to find shelter. The two dug a snow cave where they slept for the night. The next day, the two managed to walk out of the woods and call for help. Both Unser and his friend had to be hospitalized for exposure. After leaving the hospital, USFS officials invited Unser to come to their office, ostensibly to offer assistance to him in finding one of the snowmobiles that was still missing. Incredibly, they instead served Unser a citation alleging that, in the course of his harrowing experience, he had taken his snowmobile into a wilderness area where such equipment is prohibited. Unser was told that, because he is a celebrity, the Sierra Club pressured the USFS to cite him if they thought he may have been in a restricted area. What Unser finds most galling is that not only was the USFS oblivious to the fact that he was lost and trying to save his life, they don't even have evidence he entered the wilderness area. Unser's snowmobile was never recovered, leaving no evidence where he was that night. He is currently fighting the fine in court. The government is so determined to prosecute Unser it has taken the highly unusual position of arguing it doesn't matter if Unser had "criminal intent" when he allegedly entered the wilderness area. Source: Subcommittee on Forest and Forest Health, U.S. House of Representatives Committee on Resources, April 15, 1997
U.S. Forest Service Antics in South Park, Colorado South Park County, Colorado
the setting for a popular cartoon, is also the scene of the latest attempt by the United States Forest Service (USFS) to ruin hardworking miners. The Forest Service decided to designate a longstanding mining district in Park County as the Hoosier Ridge Natural Resource Area (NRA). This prohibits all multiple-use activities such as mining from taking place within the NRA. However, in establishing the NRA, the USFS completely ignored federal regulations which state that only "virgin" or "unmodified" lands are eligible for NRA status. The USFS had no legal right to create a resource area out of land that is clearly not virgin. The small miners who stand to be run out of business by this capricious act are suing the government to have the ruling overturned. In the first round of the legal fight, a federal district court sided with the USFS, which maintains that although the land is not virgin or unmodified, the land could be managed as if it were virgin in the future. Obviously, this interpretation makes a mockery of the regulation and would allow the government to run off anybody it wanted from federally-owned land. The case has been appealed to the Tenth Circuit Court of Appeals. Source: Mountain States Legal Foundation
Interior Department Violates 200-Year-Old Land Grant
In the early 1980s, the federal government took several hundred acres of land that the Beggerly family owned on Horn Island, Mississippi. Implementing a law passed by Congress, the Interior Department wanted the land to create the Gulf Island National Seashore Park. However, Interior refused to compensate the Beggerlys on the basis that the federal government already owned the land through the Louisiana Purchase of 1803. In 1982, the government compensated the Beggerlys for a sum equivalent to $200 an acre. The family judged this to be completely inadequate since the property was worth at least $6,000 an acre. Not giving up, the Beggerlys hired a genealogist to research the validity of the government's prior ownership claim. They discovered that the land was actually private property at the time of the famous 1803 purchase. In 1781, 22 years before the purchase, the Spanish colonial governor issued a land grant establishing private ownership of the property. The Interior Department, however, refused to recognize the Beggerlys' title. The family filed a lawsuit in 1994 asserting that the government had violated their Fifth Amendment rights. The Fifth Circuit Court of Appeals held that the family owned the property and ordered the government to pay just compensation. The government appealed the decision to the United States Supreme Court, which ruled against the Beggerlys, saying that the Fifth Circuit did not have the jurisdiction to rule in the Beggerlys' favor. Source: Defenders of Property Rights
National Park Service's Refusal to Surrender Land Threatens Lives
Local officials in Prince William County, Virginia are angry with the National Park Service for refusing to cede land to widen a dangerous intersection within the Manassas National Battlefield. The Route 29/234 intersection, which is in the middle of the largely rural park, has become increasingly dangerous in recent years due to a population boom in the area. In fact, the teenage daughter of a Prince William supervisor lost her life in a crash at the site. After state and federal transportation officials designated the intersection as "very hazardous," Prince William County's congressman, Frank Wolf, sought permission to add turn lanes. But the Park Service is opposed to releasing historic land for development and refuses to cede any property. Park officials claim that adding turn signals is unnecessary. Congressman Wolf sharply criticized the position as irresponsible. "I don't want to see someone's child get killed or maimed just because the Park Service won't be reasonable on this," said Wolf. Source: Dan Eggen, "History and Traffic Battle in Manassas," Washington Post, March 30, 1998.
Federal Law Enforcement Jurisdiction of the Department of Interior and Agriculture
Summary of Federal Law Enforcement Jurisdiction
1. There has never been a general grant of law enforcement authority to the federal government.
2. Except in federal enclaves as defined by Article 1, Section 8, Clause 17 of the U.S. Constitution, the several states retained legislative jurisdiction over all lands within their borders, including lands to which the federal government owns the underlying naked title. In Kansas v. Colorado 206 U.S. 46, 27 S.Ct. 655, the Court noted in referring to federally owned property that “each state has full jurisdiction of the lands within its borders...” The Court further stated, “As to those lands within the limits of the states, at least of the Western states, the national government is the most considerable owner and has power to dispose of and make all needful rules and regulations respecting its property. We do not mean that its legislation can override state laws...” (Emphasis added)
3. In instances where the Federal government owns the underlying naked title, specifically lands managed by the U.S. Forest Service and Bureau of Land Management, the Federal government has only a “Propriotorial Interest” in those lands, wherein the Federal Government has acquired some right or title to an area in a State, but has not obtained any measure of the State’s authority over the area.
4. The savings clause of the Federal Land Policy and Management Act is consistent by specifically protecting state civil and criminal jurisdiction. “Nothing in this Act shall be construed . . . as a limitation upon the police power of the respective States, or as derogating the authority of a local police officer in the performance of his duties, or as depriving any State or political subdivision thereof of any right it may have to exercise civil and criminal jurisdiction on the national resource lands . . .” (Emphasis added)
5. Congress protected state jurisdiction in FLPMA by recognizing that the federal government employees could contract with the local sheriff to provide law enforcement assistance.
Problems That Arise When Federal DOI and USDA Employees Impersonate Law Enforcement Officers
1. Under the perceived force and authority of the federal government, these employees intimidate not only the local population, whether they be ranchers, hunters, campers, or hikers, but often local elected officials including the sheriff, district attorney and county commissioners.
2. In numerous instances, where the federal government was contemplating a law enforcement action and the sheriff notified the federal agencies that they do not have law enforcement jurisdiction within his county, the agency proceeded to seek the aid of the U.S. attorney to contact local sheriffs and district attorneys to “urge” them not to “interfere” with a federal law enforcement action. Several sheriffs have complained that they have been pressured, threatened with lawsuits and the loss of their retirement fund should they stop the BLM or Forest Service action.
3. Private citizens are regularly deprived of Due Process of Law as a result of federal law enforcement actions.
4. Campers, hunters and other recreationists are being stopped for petty offenses, cited by the federal agencies, and then forced to pay the fine or defend themselves in Federal District Court.
5. In instances where the federal agencies have succeed in intimidating the local sheriff, the county becomes liable to its citizens for the failure of the sheriff to keep the peace and protect Due Process of Law.
6. Individual citizens are left defending their right to use their property against the full force and power of the federal government in Federal District Court, where there is a 6% change of success, or in the U.S. Court of Federal Claims.
7. Rural counties are going bankrupt due to the loss of lawful production from the resource base. For instance, the loss of a 1,000-cow ranching operation in Esmeralda County, Nevada cost the local county one million dollars in lost revenues from taxes, and direct and indirect economic contributions.
8. The e ncroachment of federal law enforcement also occurs on private land in the mid west where the Soil Conservation Service conducts law enforcement actions to enforce the Clean Water Act.
9. When an abuse of law enforcement power occurs at the hands of a federal employee, there is no accountability to the citizens. If a sheriff abuses his power, the citizens can address the problem in the next election.
Questions for Congress
1. Has Congress authorized the employees of the Department of Interior and Agriculture to wear police uniforms, be issued guns, and drive law enforcement vehicles beyond their lawful delegated authority?
2. How much money has Congress appropriated for federal employees to purchase equipment and vehicles to conduct law enforcement actions beyond their lawful delegated authority?
3. Is it the policy of Congress to authorize federal employees to violate the Constitution’s accepted rule that this is a government of enumerated powers in which police power clearly rests with the states?
BUREAU OF LAND MANAGEMENT CHALLENGE TO STATE JURISDICTION
On May 3, 2003, the state office of the Bureau of Land Management (BLM) in Nevada posted notice in the Federal Register of the intent to engage in enforcement of alcohol and drug laws on “public land” within the state of Nevada. The proposal by state BLM Director, Robert Abby, is a continuation of BLM’s ongoing challenge to the state’s exclusive jurisdiction in law enforcement matters. A BLM summary of the proposed rules posted in the Federal Register at Volume 69, Number 85; pages 24185 – 24188 reads as follows:
“The Bureau of Land Management, (BLM) is establishing these proposed supplementary rules for application to the public lands within the State of Nevada. The rules relate to the illegal use of alcohol and drugs on public lands. The BLM needs supplementary rules to protect natural resources and the health and safety of public land users. These supplementary rules will allow BLM Law Enforcement Officers to enforce regulations pertaining to alcohol and drug laws on public lands in a manner consistent with current Nevada State laws as contained in the Nevada Revised Statutes.”
Mr. Abby fails to discuss the fact that Congress has never given a general grant of law enforcement to the federal government and that law enforcement with very narrow exceptions, is within the exclusive jurisdiction of the several States. The proposition that law enforcement and civil and criminal jurisdiction is exclusively within the power of the individual states is well attested to by decisions of the United States Supreme Court, the Constitution for the United States of America and fully recognized in the laws and statutes of Nevada State. The United States Supreme Court opined in United States v. Alphonzo Lopez, April 26, 1991 Case #93-1265:
“Under our federal system, the ‘States possess primary authority for defining and enforcing the criminal law’ Brecht v. Abrahamson, 507 U.S., 1993 (Slip op., at 14) quoting Engle v Isaac, 456 U.S. 107, 128 : see also Screws v United States, 325 U.S. 91, 109 : “Our National government is one of delegated powers alone. Under our federal system the administration of criminal justice rests with the States except as Congress, acting within the scope of those delegated powers, has created offenses against the United States. When Congress criminalizes conduct already denounced as criminal by the States, it effects a ‘change in the sensitive relation between federal and state criminal jurisdiction; United States v Enmons, 410 U.S. 396, 411-412  (Quoting United States v Bass, 404 U.S. 336, 349 ) “Although we have supposedly applied the substantial effects test for the past 60 years, we always have rejected . . . . the scope of federal power that would permit Congress to exercise police power; our cases are quite clear that there are real limits to federal power. See New York v United States, 505 US. (1992) (slip op., at 7: ‘No one disputes the proposition that the Constitution created a federal government of limited powers’” Quoting Gregory v Ashcroft, 501 U.S. 452, 457 (1991); Maryland v Wirtz, 392 U.S. 183, 196 (1968); NLRB v Jones & Laughlin Steel Corp., 301 U.S. l, 37 (1937), Chisholm v Georgia, 2 Dall. 419, 435 (1793) (Iredell, J.) ‘Each State in the Union is sovereign as to all the power reserved. It must necessarily be so, because the United States have no claim to any authority but such as the States have surrendered to them’”
The Constitutional aspects of federal versus state jurisdiction was fully explored in the publication by the United States Government Printing Office in 1956. The report, entitled: Jurisdiction Over Federal Areas Within the States: Report of the Interdepartmental Committee for the Study of Jurisdiction Over Federal Areas Within the States, Part 1, explores four types of jurisdiction exercised by the federal government on property it holds. Those four types of jurisdiction are exclusive jurisdiction, concurrent jurisdiction, partial jurisdiction and proprietorial status. This very extensive, in-depth report, states, in pertinent part:
“The Federal Government has only a proprietorial interest without the right to exercise legislative jurisdiction in the Clause 17 sense, in vast areas of land which it owns . . . (pg. 2)” “It should be noted that lands already under the proprietorship of the United States, when the general consent statutes were enacted, such as the lands of the so called public domain, were not affected by the statutes, and legislative jurisdiction with respect to them remained in the several states. Curiously, therefore, the vast areas of land which constitute the Federal public domain generally are held by the United States in a proprietorial status only.” (pg. 8) (Emphasis added) “Proprietorial interest only – This term applies to those instances wherein the Federal Government has acquired some right or title to an area in a State, but has not obtained any measure of the State’s authority over the area . . . . “(pg. 14) Subject to these conditions, in the case where the United States acquires only a proprietorial interest, the State retains all the jurisdiction over the area which it would have if a private individual rather than the United States owned the land. (pg. 21) “Agencies preferring a proprietorial interest only – “. . .Among the agencies in this group are the Department of Interior as to the great bulk of its lands, (and) the Department of Agriculture . . .” (pg. 34) Characteristics of Proprietorial Interest Status – When the United States acquires land without acquiring over such lands legislative jurisdiction from the State in which they are located, in many respects the United States holds the lands as any other landholder in the state. However the State cannot tax the Federal Government’s interest in the lands or in any way interfere with the Federal Government in carrying out of proper Federal functions upon the land. The relation of the states with persons resident upon such Federal lands, with all its rights and corresponding obligations, is undisturbed. Both the civil and criminal laws of the State are fully applicable. (pg. 65) (Emphasis added)
On October 21, 1976, Congress passed the Federal Land Policy and Management Act (FLPMA). In holding to the same constitutional principles, the Act states in Section 701 (g)(6) of the Session Laws of 1976 in the Savings Provisions:
Nothing in this Act shall be construed . . . as a limitation upon the police power of the respective States, or as derogating the authority of a local police officer in the performance of his duties, or as depriving any State or political subdivision thereof of any right it may have to exercise civil and criminal jurisdiction on the national resource lands . . . (Emphasis added)
Statutes of the state of Nevada, 1955, Chapter 22, Page 300 relating to Federal land acquisitions state in pertinent part: Sec. 4: Service of process – The State of Nevada reserves the right to serve or cause to be served, by any of its proper officers, any criminal or civil process upon such lands or within such premises for any cause there or elsewhere in the state arising, where such cause comes properly under the jurisdiction of the laws of this state or any legal subdivision thereof.
The Constitution for the United States of America, the Courts and Nevada statutes all agree that the enforcement of drug or alcohol laws as well as all other civil and criminal laws of the state of Nevada are the responsibility and obligation of the State and not a jurisdiction to be usurped by the BLM, USFS or any other federal agency. The County Sheriff is the primary law enforcement officer in the state, backed by the County District Attorney, the State Attorney General and the laws, statutes and constitution of the State.
Nevada Revised Statutes 248.90 relating to General Duties – Sheriff states:
Sheriffs and their deputies shall keep and preserve the peace in their respective counties and quiet and suppress all affrays, riots and insurrections for which purpose and for the service of process in civil and criminal cases, and in apprehending or securing any person for felony or breach of the peace, they may call upon the power of their county to aid in such arrest or in preserving the peace. (1861, 1873, 1885, 1900, 1912, 1929)
When state and county law enforcement jurisdiction is usurped by armed federal employees acting under color of office, it places the citizen in the difficult position of submitting to an unlawful act by the federal employee or resisting under threat of bodily harm and/or death. As citizens in Nevada become increasingly aware of the fact that the armed employee of the BLM or USFS most likely exercises only the power of citizen’s arrest, a right vested in all citizens, the opportunity for a major breach of the peace increases.
NRS 200.200 Oppression under color of office 1. An officer or a person pretending to be an officer, who unlawfully and maliciously, under pretense or color of official authority: (a) Arrests another or detains him against his will; (b) Seizes or levies upon another’s property; (c) Dispossesses another of any lands or tenements; or (d) Does any act whereby another person is injured in his person, property or rights, commits oppression. 2. An officer or person committing oppression shall be punished. . . where physical force or the immediate threat of physical force is used, for a category D felony as provided in NRS 193.130.
It is their duty and obligation under the law for state and county officials to reverse the trend toward a federal police force in Nevada which is an usurpation of the power and authority lawfully delegated to the county sheriff. A major reason the citizens of Nevada elect county sheriffs is to avoid the tyranny and anarchy which will ensue if unelected and uncontrollable armed federal employees are allowed to prey on Nevada citizens.
FLPMA provides a remedy for federal agencies such as the BLM and USFS if they, in fact, need law enforcement assistance. Sec. 303 ©(1) of the Act in the Session Laws states in pertinent part:
When the Secretary determines that assistance is necessary in enforcing Federal laws and regulation relating to the 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. . . . (2) . . , Such cooperation may include reimbursement to a state or its subdivisions for expenditures incurred by it in connection with activities which assist in the administration and regulation of use and occupancy of the public lands.
Mr. Abby has a lawful remedy to his problems. He does not need to defy the well settled law of jurisdiction which has served Nevada and the nation so well for over one hundred and forty years.