Oregon State Bar Bulletin — DECEMBER 2011
Law & Life
A Christmas Story:
Crime and Punishment in Rural Oregon
By Hon. David Gernant

Call them Jesus, Maria and Jose. Mexicans. None speaks English. Jesus mid-20s, handsome, single. Maria and Jose married, she 20-something, shy, plain; he broad-beamed, mustachioed and, like an extra in a ’50s Hollywood movie, ready to do bodily harm to any passing gringo. Of which there are two nearby, as I hear the story second-hand: the deputy at the next table and me, the judge, at a desk opposite the four of them that, because it is raised slightly, is referred to as a “bench.” It is late Christmas Eve afternoon when their case is called.

Let’s call their nemesis Deputy Sheriff Nunn. He’s on forest patrol, hunting down people for unauthorized cutting and removing of forest products. His first clue is a pickup bed with five buckets full of wild mushrooms. He knows that much of the nearby land is privately owned by Weyerhaeuser Corp. and that they never grant permits to take products from their soil. He also knows, as it develops, that much of the land is also federal land and that the Bureau of Land Management does grant permits. He starts tracking into the woods and shortly comes upon the trio emerging with more buckets of precious cargo.

The deputy inquires about a permit. He tells me that Jesus understood a little English and could answer simple questions. Turns out all three have permits. From BLM, not Weyerhaeuser. The deputy says that they’re on Weyerhaeuser land, not BLM’s.

I ask him why he’s bringing up the BLM issue at all, since he is a county deputy sheriff and I am a state judge. He says Weyerhaeuser has asked him, when he finds people in the woods with a BLM permit that they are (in the deputy’s opinion) violating, to take the people’s BLM permits. I ask (mildly, I hope) if BLM has deputized him for a federal law-enforcement function. He says no. I ask him if he sends BLM’s permits back to them. Again, no; he attaches the permits to his county police report.

By now I am both bemused and beginning to feel a little hot. “So you have the permits?” I ask. Why, sure; and he hands them up. I look at them.

Incredibly (to me), these simple Mexicans, who do not know English, and who may or may not be here legally (I never asked, and if the deputy knew he didn’t say), knew enough about federal bureaucracy and the ways of taking products from the forest that they knew that they had to have a government permit.

And each had a permit, with his name and address, carrying beginning and ending dates and limiting their activity to weekend days. I asked Deputy Nunn what day of the week he’d stopped them. Saturday. I asked him how far they were from BLM land. He said about half a mile. “Easy to make a mistake?” I asked. “No, I don’t think so,” he said.

And with that he introduced a bright yellow sign, with black lettering, about a foot by five inches, saying “Entering BLM Land.” What about when you’re leaving? I asked. There’s another sign, “Leaving BLM Land”. What about Weyerhaeuser’s land? Their property is marked with their distinctive logo signs, he said. The deputy said there was a map attached to the permits. “May I see it?” I asked. Why, sure. It showed several blue-shaded areas for BLM property, like a checkerboard with Weyerhaeuser’s. The map was like a topographical map, with no markings or words. “So how do they know on the ground where they are?” I asked. Again, he said by the bright yellow-and-black signs.

“Well,” I said again, “we’re not here to enforce BLM regulations or to decide if the three have violated a BLM permit. So why did you introduce the BLM evidence?” I asked. He said, to show that they were not even anywhere near where they would have to have been if they’d been exercising their BLM permit.

“But how do you know that the mushrooms in the truck came from Weyerhaeuser land?” I asked. He didn’t really; but the mushrooms in the truck led him to come across the three of them, and at the moment he saw them they were taking mushrooms from Weyerhaeuser land. And it was only on that charge that he had arrested them, and of course only over that charge that I as a state judge had any authority.

I asked again what the deputy’s authority was to seize the BLM permits. He said his supervisor had told him to comply with the BLM’s request that he do so. I said that didn’t make much sense to me. I compared it to a local constabulary enforcing the federal immigration laws and that I thought it was clear that local police had no business doing that. (This was years before Arizona and Alabama began mucking things up.)

I said that the permits belonged either to BLM or to the three accused, and since the deputy was not an agent of the BLM and since I wasn’t presiding in a U.S. court to enforce BLM regulations, they were not evidence before me and I would return the permits to the accused. And so the deputy, looking as bemused as I felt at this point, cheerfully handed them over.

With that I turned to the three Mexicans, who of course through their court-provided interpreter had heard this tutorial in American bureaucracy and parallel state and federal authorities (surely not a new concept to folks native to Mexico), and asked if they had any questions for the deputy. Jose stood as their spokesman. “I’d like to know why he didn’t stop and arrest the Americans who were there at the same time as us. They had buckets of mushrooms too. Did he stop us just because we’re Mexicans?” he inquired through the interpreter.

Unsurprisingly, the deputy said he hadn’t seen any other people there by the time he saw the three people now in court. Jose, still loudly upset by their arrest, had other questions and concerns. When he wound down I asked the other two if they had anything to ask.

Jesus stood up and wondered about his buckets. “Where are the buckets?” he asked. The deputy said he’d seized the mushrooms and sold them and recovered $129 — which he’d sent to Weyerhaeuser — in effect, restitution to the victim prior to a court determination that there was a victim.

“Yes,” I said, “but what about the buckets” (echoing Jesus’ question)? Bemused again, Deputy Nunn said that the mushrooms were contained in the buckets and that the buckets went with the mushrooms. “Well,” I said, “you may have had authority to seize the mushrooms as forest products unlawfully removed, but what about the buckets?”

Sheepishly, he said he guessed he could replace the buckets. “How would you do that?” I asked. “Well,” he said, “I guess I could just go and buy some more buckets.” Wondering to myself if that money would come out of his pocket or if he intended to go to the county commissioners for a special appropriation, I decided to turn back without comment to ask if the accused had any more questions or statements.

Maria stood up. More charming than her compadres and more concerned with putting the best face on things, she apologized if they took anything from Weyerhaeuser or in violation of their permits, but she said they thought they were on BLM lands.

Then Jose, a bit mollified, said that they’d relied on a friend who had been there before to tell them where the BLM lands were. Both he and Jesus acknowledged that they didn’t see or pay any attention to any signs. But, he said, although it’s true that they took a few mushrooms from Weyerhaeuser lands, the vast majority of what they’d taken were from BLM lands.

When everyone had run out of things to say, I told Jesus, Maria and Jose that the evidence from both them and the deputy was that they’d been on Weyerhaeuser lands illegally and taken some mushrooms from those lands, so I had to find them guilty.

I said, “The mushrooms are gone. More than that, your buckets are gone.” I asked them what the buckets had cost, if they had bought them, or if they had gotten them free. Jesus said four of them had cost him $20 for all four. When I asked about the several other buckets, both Maria and Jose said that they didn’t know and they didn’t want to guess because they wanted to tell the truth and they simply didn’t know.

I told them I was impressed that, without knowing English, they had known enough to get a BLM permit. And that I believed they had tried to take mushrooms only from BLM lands. But because some of them had been taken from Weyerhaeuser lands they were guilty of a violation.

The prosecutor had reduced what would otherwise be a B misdemeanor charge to a violation. I explained to them that this was therefore not a crime and that they were not criminals; that it was like getting a speeding ticket and that they would have to pay a fine. Because I thought that they had tried to follow the law and that nobody had been damaged very much I would impose only a small fine, $100.

But there was still the matter of the buckets — tools of their trade. I said there’s no way at this point you can get your buckets back. I told them that I thought the deputy did not have authority to take the buckets (I’m not sure of that; perhaps they could be considered instruments of a crime; but of a violation?), but I would, in effect, give them credit for their value by reducing the $100 fine.

Deputy Nunn had cited each separately, so I imposed separate fines of $20 on each of them and asked whether they could pay that right away to the clerk’s office, or if they would need time. Each said that they could pay before they left the courthouse, and they thanked me.

After almost an hour of what amounted to community mediation, did I see a Santa-like twinkle in the deputy’s eye and a slow smile playing over the face of the Weyerhaeuser agent as they contemplated the rough justice sometimes possible at the lowest rung of the American court system?

The Hon. David Gernant, formerly of Portland, is retired and now lives in his native Kalamazoo, Mich. He served as a Multnomah County Circuit Court judge from 1993 to 2006.

© 2011 Hon. David Gernant

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