You're wrong, Mr. Babbit

The Los Alamos ''brush-clearing'' fire set by the U.S. Park Service on May 4 burned 47,000 forest acres, destroyed 405 homes, caused several days of evacuation for 25,000 area residents and created an estimated $150 million clean-up bill for the Los Alamos National Laboratory. Early reports indicate numerous errors and deficiencies in judgment by Park Service personnel responsible for the burn, including disregard for existing high winds and dry weather, and failure to put fire personnel on standby before starting the fire.

Calling the man-made disaster a ''systematic failure,'' Interior Secretary Bruce Babbitt said: ''It's clear there were large mistakes of agency oversight,'' but ''(t)hese are mistakes. There's nobody out there conspiring to burn down the forests. You don't prosecute people for making mistakes.''

Most Americans would agree with Babbitt's humanist-sounding sentiment that it is unfair to criminally prosecute someone for making a negligent mistake.

Most Americans embrace the notion that criminal intent is required before one can be convicted of a crime.

But public statements by government officials are not always as they sound, and Babbitt's comment is no exception. When he said ''you don't prosecute people for making mistakes,'' what Babbitt disingenuously omitted was, ''when those people are government bureaucrats, even if they make large mistakes.''

The truth is, bureaucrats within Babbitt's Interior Department - unarguably with his knowledge and approval - do criminally prosecute individuals and businesspeople for simple, minor, and benign mistakes.

Take Ed Hanousek, for example.

As road master for the White Pass & Yukon Railroad in Alaska, Hanousek was in charge of an ongoing rock removal project near the company's rail bed. One day in 1994, while Hanousek was off duty and at home in bed, a backhoe operator employed by an independent contractor accidentally struck and cracked an oil pipeline, causing a small oil spill in a nearby stream. The damage was minor, and the spill was quickly cleaned up. Yet, for this minor transgression, enforcement officers within Babbitt's Interior Department criminally charged, prosecuted, and convicted Ed Hanousek in federal court of a violation of the Clean Water Act and had him sentenced to six months in jail, six months in a halfway house, six months on probation, and fined $5,000.

The Hanousek story is not an isolated example of federal enforcement officers prosecuting people for a simple mistake. While snowmobiling in Colorado in 1996, race car driver Bobby Unser lost his way in a sudden, blinding snowstorm. Although his misadventure nearly cost him his life and caused him serious cold-induced ailments, none was as painful as having Babbitt's enforcement officers criminally charge, prosecute, and convict him for violation of a Forest Service regulation prohibiting motorized vehicles in a Wilderness Area. Only judicial mercy allowed him to avoid the jail sentence imposed on Hanousek.

In their separate appeals, Hanousek and Unser each argued, to paraphrase Babbitt's words, that ''he was not out there conspiring to damage the environment.'' Indeed, Hanousek was home in bed when the backhoe operator inadvertently cracked the pipeline, while Unser would not have been in the Wilderness area, but for his disorientation from the snow and wind. But Babbitt was not moved by the ''mistake'' argument. Apparently, Babbitt's bureaucrats may cause a massive environmental and personal disaster with impunity, but they had better not catch a private citizen making a an environmental mistake of next to no consequence.

If the only good to come from the government-caused fire at Los Alamos is the shedding of public light on the continuing practice of government agencies to criminally prosecute people for simple mistakes, perhaps that is some solace. Better yet would be a rider to the legislation aimed at compensating people who lost their homes or businesses in the Los Alamos fire, prohibiting the government from criminally prosecuting people unless there is evidence of criminal intent. If his comments are sincere, Babbitt can make this happen.

(David Stirling is vice president of the Pacific Legal Foundation and can be reached at mds(at) PLF's Web site is



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