Quote Originally Posted by goshawkr View Post
Then why have you not tipped your hat? The scope of the 4th amendment argument is LASER focused on the administrative inspections after permitting, and does not affect the inspections before getting the license. It also seems that NAFA missed that point in their response, because they seemed to be focusing a lot of energy on how important inspections were as part of the permitting process.



So do I! Its called a warrant. Any cop that cannot convince their pal the judge that they have enough probable cause to give someone a sniff shouldn't have their badge in the first place. Its not hard to do that little bit of homework. That is a key tenant to the US legal system - get some evidence of wrong doing, then go harass someone when you are close to being ready to make a case. NOT harrass first and build the case later, which is what the US FWS and some state wildlife agencies have been doing.

The core nefarious problem with Administrative inspections is that it empowers the enforcement officers to just go fishing for problems. It is also all to easy for this to be used punitively by officials who want to punish someone (this has happened a few times in the last ~15 years), or by falconers who want to trigger an inspection to "get" at another falconer. Both of these problems were exactly why the fourth amendment was instituted in the first place!

This made even worse in our case because the rules are so ridiculously complex that no one really understands them well - not the officers doing the inspections, not the paper pushing permit issuing beurocrats, and especially not the falconers. Simple transgressions very easily get blown way out of any sane proportion.



The core problem is that the conservationists have taken the pendulum WAAY too far down the protection spectrum. No one disputes that it is important to protect resources for future generations. But an overall hands off approach is not the correct way to go either.

Conservation and liberty and access to resources are not mutually exclusive concepts. There is tension between them, and compromises must be reached. However, there is no conflict between the 1st amendment and the 4th amendment and raptor conservation. Absolutely none whatsoever.



And exactly how does the fact that this regulation is higher up in the tier does it magically become constitutional?

You are quite right that we need to look at several places in 50 CFR, and section 13 is a particularly imporant area that applies to all permits, not just MBTA permits.
Because they petitioners are not asking for a nuanced change to the inspection criteria. Secondly Im not sure that the legal distinctions about inspection types have been made clearly or are even recognized by the agencies as legally distinct.

As for the pendulum...thats your opinion but I disagree. The big bad federal rules in place (like CWA, CAA, ESA, NEPA, MBTA amendments, and others) were passed during Republican administrations with broad support from Congress and the public. THe fact is that conservation was bipartisan then. Did you know how many US Senators voted for the Wilderness Act of 64 and The Land and Water Conservation Act? 99 with the dissenting 1 vote thinking they didnt go far enough. Different times. Real conservatives voted for and in many cases, devised these laws....The republicans of that era were losing a lot of other arguments like, well.....the whole Civil Rights argument, war argument, even economic arguments during CLinton's booming economy...so what to do?

Just say government itself is bad. Its a poisonous, deplorable platform as it destroys trust in everything. If a candidate doesnt believe in the measured role of government services and the government's responsibility to follow and enforce democratic laws, and they are in power, they can strip funds to agencies themselves, watch them fail their mission, then say I told you so. Reagan and others picked up this anti-environmental rhetoric and defunding tactic as a key strategy. Its been an effective tool.

Anyway the fact is there has been a lot of nuanced case law behind public trust concepts and reasonable law enforcement access to private land as it related to taking of fish and wildlife.

As for 50 CFR my point is this rule was not arbitrarily thrown at the falconry community - it was always going to be a prerequisite to any special possession permit under the MBTA. Officers dont need a court order to obtain the identity of all drivers and occupants of a moving vehicle without digressing into a constitutional thing...as such wildlife officers can assess the identity of protected wildlife in private holding and the license of the person holding it. To claim its constitutional issue is a failed argument, which will play out in this case shortly.