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ericedw
03-08-2016, 05:17 PM
Sounds like great news coming out of CA, congrats to CHC and everyone that worked on this.

Something I received earlier from AFC...

"California Fish and Wildlife attorney confirms that unannounced inspections of falconers’ property are in violation of 4th Amendment and California Constitution.

California falconry regulations are up for a revision in order to iron out some of the issues that were not worked out in time to meet the federal deadline during the last revision. In the last several months there has been substantial concern expressed by California falconers that the residential administrative searches of birds, facilities and paperwork is a violation of federal law as shown in the AFC YouTube video production revealing the assault on the 4th Amendment. The debate was at times contentious amongst falconers, some feeling that since they have nothing to hide the regulation is a bona fide part of wildlife management; others do not like the regulation but are of the belief that the regulation is the law, therefore they have no choice but to submit; while others feel that bird ownership is not sufficient justification to surrender 4th Amendment protection from having one’s property and papers searched at home when there is no compelling public interest at stake such as health, safety or security, which are typically the benchmarks for justification of such intrusion.

In an attempt to resolve this debate in early February 2016, California Hawking Club (CHC) President Glenn Stewart asked attorney and CHC member Ryan English to prepare a legal opinion brief of residential searches of falconers to be submitted to an upcoming meeting with California Fish & Wildlife (CF&W) Chief of Law Enforcement. Having viewed the recent AFC Assault on the 4th Amendment video, English requested the research and analysis conducted by the AFC in order to assist in the writing of the CHC opinion brief. The paper was completed and submitted by Glenn Stewart to California Fish & Wildlife law enforcement Chief who then forwarded it to their legal department.

It came as a pleasant surprise to hear that the CF&W attorney for law enforcement phoned Mr. English last week to say that he absolutely agreed with the analysis provided in the opinion letter. The call was friendly and he stated that his advice to the Chief of the division was they can't perform the inspections. He also said that the Fish & Game Commission has just recently been assigned their own lawyer this week and that it would be best for English to contact him once he is settled in. In closing he said the regulations are going back to the Commission soon so it would be an appropriate time to address the same in official objections.

AFC is delighted that we were able to provide some assistance to CHC in such an important matter. We will repost the legal opinion paper after it has been published in the CHC newsletter. Once that is done AFC Directors should make this information available to state clubs in their region so that they can use this as a model if they so chose.

We applaud the efforts of California Hawking Club in this ground breaking endeavor. As responsible citizens it is incumbent upon us to remain watchful and ensure that the rule of law is adhered to by all, most importantly by government officials, otherwise law becomes meaningless.
Troy Morris
AFC President"

sharptail
09-14-2016, 11:53 AM
Bump.

frigginchi
09-14-2016, 12:08 PM
California Fish & Game Commission Hearing

Last Thursday I attended the California Fish & Game Commission hearing for the vote to publish the intent to amend the falconry regulations. The hearing gave the falconry community an opportunity to discuss the many issues that are still not ironed out in California’s falconry regulations. We were supposed to have an opportunity to clean up regulations that were put through hastily in order to meet the Federal requirement for state falconry regulations, but what we were presented with was worse than the regulations already in play. Based upon this round of discussions we cleared up only a few points of contention and the big one still under discussion is the warrantless residential inspection of falconers.
As everyone knows, California is the lion’s den of animal rights extremists, which is why I feel it is imperative to eliminate the warrantless residential inspections of falconers here. The last thing we want to see is a card carrying PETA member with a gun and a badge entering our premises.
As a reminder the AFC had filed a separate petition to repeal the inspection language in the regulations. Rather than debate whether the state can violate the 4th Amendment in our absence or presence is much like rearranging the deck chairs on the Titanic. The first requirement of California rulemaking is that the agency publish the statutory authority for the proposed rule and it must be published in the California Code of Regulations, which was never done. As a result this regulation is illegal on its face.
The AFC’s petition to repeal was approved for the Agenda, but to my dismay was ultimately refused to be discussed as a separate issue by the Board since the general falconry regulations were already up for Board consideration. Although they would not discuss the petition as a separate issue they did receive the documentation and it gave me another opportunity to address the Commissioners on the record.
Speaking of speakers, I want to take the opportunity to offer my thanks to the following falconers who spoke before the Board: Eric Ariyoshi, California Hawking Club Directors Pete Martin and Marten Benatar, Karl Kerster, Doug Alton and of course the Dense Beard of Justice Peter Stavrianoudakis! I was delighted to have an opportunity to work with them on this issue and we will post some video clips soon. In the meantime you can view the entire meeting at http://www.cal-span.org/media.php?folder[]=CFG and click on August 28, 2016. The falconry section starts at 5:13:00.
Based upon the objection that the authority for inspection language in the falconry regulations was not provided in our state law, the question was asked of Ann Malcolm the Assistant Chief Counsel for the California Department of Fish and Wildlife (CDFW). Below is her response:
“If I remember the question correctly it was, does the department have the authority to conduct inspections when the member of the regulated community is not present? The answer is yes. The authority to conduct inspections without a warrant really derives not just from statute, but a body of case law that deals with what are called highly regulated industries…… Falconry, along with hunting, fishing, daycare centers, and nursing homes are all heavily regulated industries that the courts have acknowledged give law enforcement the authority to enter into premises…..”
Frankly I was shocked to hear a state lawyer proclaim that the 4th Amendment protection from warrantless searches does not extend to those that have purchased a hunting and/or fishing license. I thought that since falconry is such a small community, fish and game officials felt emboldened to step on our rights, but that they would never dare take on such a large constituency as hunters and fisherman. Times have changed and I certainly was proven wrong!
It is worth noting that she never did answer the question. In the regulatory rule making process the term “authority” means the state statute which permits an agency to adopt a regulation. She did not cite the statute authorizing the residential searches of hunters and fisherman because it does not exist. This clearly demonstrates how far our wildlife officials have strayed from the law.
Fortunately it does appear that our cries of a 4th Amendment violation may have finally been heard. CDFW Director Bonham and the Commission have now said they are committed to carefully vetting this issue. We feel confident that in order to comply with state statute and the 4th Amendment, this language will need to be removed from regulation. The next meeting with the Commission is scheduled for October 20th. I will let you know if there is any significant development before that time.
Troy Morris
AFC President

Saluqi
09-14-2016, 01:07 PM
I'm a little confused, how are the CA falconry regulations different than what is in the federal regulations regarding searches?

I cut this from the federal regs:

"(ii) You must submit to your State, tribal, or territorial agency that regulates falconry a signed and dated statement showing that you agree that the falconry facilities and raptors may be inspected without advance notice by State, tribal (if applicable), or territorial authorities at any reasonable time of day, but you must be present. If your facilities are not on property that you own, you must submit a signed and dated statement showing that the property owner agrees that the falconry facilities and raptors may be inspected by State, tribal (if applicable), or territorial authorities at any reasonable time of day in the presence of the property owner; except that the authorities may not enter the facilities or disturb the raptors unless you are present."

I don't see how the CA regulations can be less restrictive than the federal regs, so what changes are being sought in CA?

wyodjm
09-14-2016, 01:58 PM
Based upon the objection that the authority for inspection language in the falconry regulations was not provided in our state law, the question was asked of Ann Malcolm the Assistant Chief Counsel for the California Department of Fish and Wildlife (CDFW). Below is her response:
“If I remember the question correctly it was, does the department have the authority to conduct inspections when the member of the regulated community is not present? The answer is yes.

Troy Morris
AFC President




I'm a little confused, how are the CA falconry regulations different than what is in the federal regulations regarding searches?

I cut this from the federal regs:

"(ii) You must submit to your State, tribal, or territorial agency that regulates falconry a signed and dated statement showing that you agree that the falconry facilities and raptors may be inspected without advance notice by State, tribal (if applicable), or territorial authorities at any reasonable time of day, but you must be present. If your facilities are not on property that you own, you must submit a signed and dated statement showing that the property owner agrees that the falconry facilities and raptors may be inspected by State, tribal (if applicable), or territorial authorities at any reasonable time of day in the presence of the property owner; except that the authorities may not enter the facilities or disturb the raptors unless you are present."

I don't see how the CA regulations can be less restrictive than the federal regs, so what changes are being sought in CA?

Hi Paul:

I think the discrepancy between the two is if the person is home or not. The federal regs say the person must be home and the search must be a reasonable time of day. That's how I read it anyway.

I underlined the two discrepancies for your review.

All my best,

frigginchi
09-14-2016, 02:02 PM
CA wanted to be able to inspect your "premises" and come whenever they want without your presenc or notice.

Saluqi
09-14-2016, 02:20 PM
Thanks, I thought that might be it. I found this document months ago when I was doing some research, it was written by an attorney in CA, and it pertains to people who have/breed dogs, but there is some good information here.

http://www.lgd.org/when_animal_control_comes_knocking.pdf

Below is a passage which might useful information pertaining to searches.

"5. In some locations dog owners may have obtained special "breeder or rescue
permits" that stipulate that Animal Control has your permission to enter at any
time. If you have signed such a permit they still cannot enter against your
wishes, since you can revoke the permission at any time. However, if you
refuse permission it may allow them to cancel your permit, so you have to
weigh the consequences."

wyodjm
09-14-2016, 03:08 PM
Thanks, I thought that might be it. I found this document months ago when I was doing some research, it was written by an attorney in CA, and it pertains to people who have/breed dogs, but there is some good information here.

http://www.lgd.org/when_animal_control_comes_knocking.pdf

Below is a passage which might useful information pertaining to searches.

"5. In some locations dog owners may have obtained special "breeder or rescue
permits" that stipulate that Animal Control has your permission to enter at any
time. If you have signed such a permit they still cannot enter against your
wishes, since you can revoke the permission at any time. However, if you
refuse permission it may allow them to cancel your permit, so you have to
weigh the consequences."

This is mind boggling to me. These are not elected officials or the courts making these decisions. These are career bureaucrats implementing and administering policy. In some cases these policies are more restrictive than rules and regulations and perhaps the actual legislation. In many cases, there isn't even any opportunity to appeal.

Bureaucrats do not like to be challenged when it comes to their administrative authority and the implementation of their arbitrary policies. It is extremely important to note that policy does not come under public scrutiny and review. They just show up one day. And if gone unchallenged, policies may even evolve into formal, promulgated regulations.

Saluqi
09-14-2016, 03:22 PM
This is mind boggling to me. These are not elected officials or the courts making these decisions. These are career bureaucrats implementing and administering policy. In some cases these policies are more restrictive than rules and regulations and perhaps the actual legislation. In many cases, there isn't even any opportunity to appeal.

Bureaucrats do not like to be challenged when it comes to their administrative authority and the implementation of their arbitrary policies. It is extremely important to note that policy does not come under public scrutiny and review. They just show up one day. And if gone unchallenged, policies may even evolve into formal, promulgated regulations.

I agree Dan it's out of hand. I don't want to derail this thread, but look what's going on here in New Mexico:

http://www.akc.org/government-relations/legislative-alerts/santa-fe-proposal-hearing/

This was posted to facebook and a guy in New Mexico commented that it didn't affect him because he doesn't live in Santa Fe county, people need to wake up and understand that this kind of BS spreads like a disease.

sharptail
09-14-2016, 05:35 PM
I agree Dan it's out of hand. I don't want to derail this thread, but look what's going on here in New Mexico:

http://www.akc.org/government-relations/legislative-alerts/santa-fe-proposal-hearing/

This was posted to facebook and a guy in New Mexico commented that it didn't affect him because he doesn't live in Santa Fe county, people need to wake up and understand that this kind of BS spreads like a disease.That was a slick move...not wanting to derail the thread but switching the subject to dogs in Santa Fe county.

Saluqi
09-14-2016, 06:44 PM
That was a slick move...not wanting to derail the thread but switching the subject to dogs in Santa Fe county.

Sorry Jeff, I thought it was obvious that the point I was making was that the erosion of our rights is widespread and not limited to falconry and falconers, so I provided an example. Please forgive me for not elaborating.

This is cut out from the link I provided above:

Licensing and inspections of all breeders. Anyone who breeds dogs must obtain a Breeder’s permit, which is $150/year. This permit must include a list and description of all dogs intended to be bred in the coming year. This permit may be amended, so long as it is amended prior to the breeding taking place. An Animal Services Officer must be granted access “at any reasonable time” to inspect the premises and ensure compliance. If the inspection is not allowed, then the permit may be suspended or revoked, and the dogs may be impounded.

Since this includes those who breed just one litter in their homes, this means that the animal services officers would be permitted to enter private residences at any time. If no one is home, the officer may come back with a warrant.

If the litter was unintentional, then a litter permit must be obtained unless all dogs are relinquished to the local animal shelter.

tony123abc
09-14-2016, 09:04 PM
Regulators regulate. It is what they do. Their livelihoods depend on it. All I can suggest is that you vote locally and keep at it up thru the federal level. Be vociferous in your views. But not an A-Hole. A bunch of little guys can create a movement. Don't be shy about the things in life you hold dear. Try to put forth good common sense judgement. Be proud of who and what you are. Stand tall in the things you do. And when needed vote the idiots out of office. And for the last time, stay of my damn lawn!

sharptail
09-30-2016, 12:27 AM
As you all know the California Falconry regulations are currently up for revision. One of the items of importance to many California members is the question of the legal authority to conduct administrative inspections of falconers. The Law Enforcement department of the California Fish & Wildlife (CDFW) wants the regulations to state not only that they may inspect, but do so when you are not home. They claim they have this authority over all hunters and fisherman (see video) and this has caused some concern here in California.

At the last Game Commission hearing California falconer and legal public defender Peter Stavrianoudakis (affectionately known as the Dense Beard of Justice) stated in no uncertain terms he is of the opinion that the regulatory inspections in the proposed regulation are in violation of both state and federal law. His opinion is synonymous with the opinion paper submitted by CHC attorney Ryan English.

California falconers, hunters and fisherman face some very serious challenges ahead. Jim Kellogg, the last, and one of the first, pro-hunting California Fish and Game Commissioners, turned in his resignation in January out of frustration. Kellogg stated “As an example, people that come on the Commission may have given the perception that they are in favor of hunting and fishing, but really weren't. So they were appointed…….” This is part of what appears to be a mass exodus of long-time pro-hunting state employees from the CDFW and the F&G Commission. The CHC has reported that this agency is still attempting to add numerous restrictions and conditions upon falconry, far above the federal standards and CHC has chosen not to challenge the inspection issue at this time.

Since the Migratory Bird Treaty Act clearly prohibits warrantless inspections, a number of concerned falconers still want the Game Commission to provide the specific statute or law that provides law enforcement the authority to conduct warrantless home searches or inspections of falconers, hunters and fisherman.

Peter decided it would be most effective for him to discuss this matter as it relates to the law with CDFW Director Bonham and the Director has agreed. I am honored that Peter and has invited me to attend the meeting as well in order to represent the membership of AFC. I will be joining Peter in discussing this important issue with the CDFW on the 28th of this month.

Best regards,

Troy Morris
AFC President