Pig Fight

Jacobus “John” Tielen is fighting felony charges that claim he knowingly, intentionally or recklessly violate an environmental management law, rule, standard, permit or order in operating his farm near Eaton, about 10 miles north of Muncie.

Defense attorney Scott Shockley has asked a judge to dismiss the charges, arguing that the law was “hopelessly broad” and vague. Shockley also argued that the state Legislature - not state agencies - needed to define criminal acts.

A hearing on the motion was scheduled for Monday, but was delayed by Delaware Circuit Court Judge John Feick until April 12 at the request of prosecutors.

The law he questions “purports to criminalize” hundreds of pages of regulations promulgated by the Indiana Water Pollution Control Board, Shockley complains.

As a result, it’s difficult, if not impossible, for citizens like Tielen to understand what conduct is a crime, Shockley said. The law doesn’t give “fair notice” to citizens, who are “entitled to statutes that specifically identify prohibited conduct,” he said.

§ 13-30-6-1. Felony offenses 

(a) A person who intentionally, knowingly, or recklessly violates:

(1) environmental management laws;
(2) air pollution control laws;
(3) water pollution control laws;
(4) a rule or standard adopted by one (1) of the boards; or
(5) a determination, a permit, or an order made or issued by the commissioner under environmental management laws or IC 13-7 (before its repeal);
 
commits a Class D felony.

I would like to get a copy of the brief Shockley filed in support of his motion to dismiss last week. I do not think that the constitutional challenge will get very far. Indiana has had a lot of experience dealing with crimes that are determined by reference to regulations passed by boards or bodies under state law. Think about the tax regulations. In this context, the Court of Appeals once said: “An administrative agency may adopt rules and regulations to enable it to put into effect the purposes of the law, but it may not by its rules and regulations add to or detract from the law as enacted.” Johnson County Farm Bureau Cooperative Ass’n v. Indiana Dep’t of State Revenue, 568 N.E.2d 578, 587 (Ind. Tax 1991), aff’d, 585 N.E.2d 1336 (Ind. 1992).

This entry was posted on Tuesday, February 28th, 2006 at 3:19 am and is filed under environment. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.