Constitutional Law

Bureaucratic memories

The comment to the previous post reminds me of an experience when I worked in Interior's legal shop. Understand, to a bureaucrat "we've always done it this way" is sacred, safe; "we've never done it that way" means it's dangerous and unwise.

Early one morning my boss and I are attending the staff meeting of the Deputy Director, US Fish and Wildlife Service, when an Ass't Director brings up a strange issue. There was a statute that only applied to importing fish "taken" outside the US, with no definition of "taken."

A fellow wanted to construct an oil-tanker sized ship as a giant floating aquarium. He'd steam up to somewhere in Canada where salmon are taken, load the ship with them, and steam to Los Angeles. Along the way the salmon would be fed and fattened up. At Los Angeles they'd be killed and sold.

Question: within the meaning of the statute, were the fish "taken" when they were captured in Canada and put into the ship, or were they "taken" when removed from the ship and killed? Everyone in the meeting spoke of how this was a strange situation, nobody else had ever come up with the idea, etc.,etc..

The Deputy Director asked my boss for his legal opinion. I forget which way he went, but he ended with "because we've always treated that way."

There was silence in the room.

The Deputy Director said -- everyone here just agreed nobody has ever come up with an idea like this. If this is the first time the idea has ever come up, how can we "always have treated it that way"?

My boss thought for a few seconds (it was very early in the morning) and allowed he might have been misinformed.

Full post as published by Of Arms and the Law on February 15, 2010 (boomark / email).