Sorry, Geoff, I did not know this. And, yes, NAFA does have their own forum, but it is no where as active as this one; that's for sure.Originally Posted by goshawkr
Bill Boni
NAFEX Supporting Member
Sorry, Geoff, I did not know this. And, yes, NAFA does have their own forum, but it is no where as active as this one; that's for sure.
Bill Boni
NAFEX Supporting Member
Geoff,
With all due respect, I think that you are making some sort of assumption(s) here. That is not entirely your fault since I searched and cannot find any sort of rule
that says you are NOT correct but I also could not substantiate that you ARE correct.
Chris sets up these forums for a number of reasons. One is for sponsor companies like MRT and Western Sporting to interface with customers and potential customers.
I would agree that with the exception of legitimate product gripes (I bought an xyz and it does not in fact core a apple as advertised) doing stuff like talking about
a competitor would be in poor taste. Those vendors pay for advertising to support our ability to pontificate and share the 999 opinions per 1000 falconers.
With respect to NAFA and AFC forums it is somewhat less clear. As far as I can tell neither pays for their respective sub forum and what Chris's intentions are
I cannot say. Perhaps we need some clarification from him as to what the rules are.
Are these sub forums for open discussions relevant to issues pertaining to NAFA and AFC or are they for those organizations to thump their chests free of
someone calling "BS" on them so their dues paying members can have a nice warm feeling of money well spent?
Chris?
Ron N1WT Vermont
Moderator
Ron:
I don't think anyone has a problem with people chiming in on any threads, club-oriented or not. Not everyone has to agree. But when the same few people consistently, and over the course of several years, reply to every single post on a forum with a chorus of declamations? When it becomes impossible to make announcements of club activities without being subsumed by an avalanche of negative posts by the same few people? That's called 'hijacking a forum', and it's a well-documented phenom. I can't speak for Chris, but I'm pretty sure he did not mean for club forums to become dog-fighting pits.
Bridget
"We have met the enemy and he is us."
Pogo Possum
NAFEX Supporting Member
I see your point but there is a big difference between announcing a meet or a picnic and having a fringe legal group file a lawsuit against a federal agency purportedly on behalf of all falconers. My opinion was the same when I was paying dues to the AFC. Your actions may affect my falconry and I am entitled to both disagree and say so.
As a matter of note, I believe that your and AFC's intentions are honorable. I cannot say the same for PLF. They are using AFC and
Falconry to further their own agenda. Possibly at the expense of the sport of falconry. I can only hope that I am wrong.
Ron N1WT Vermont
I understand, it’s kinda like how your trying to hijack a persons freedom of speech because they may not be on par with your club or post on to many threads. I have not seen anywhere in the forum rules that says a person can only post on certain threads or only so many. Throughout history delegation of negative points of topic have diverted disaster.
NAFA, on a legal note has set the stage for an affirmative defense, it will probably work out.
Moderator
First Amendment rights cannot be hijacked on internet forums, because they don't exist there. There is nothing in forum rules about how often or on what topics one may post. However, hijacking threads is a well-known tactic. Those who call it out are not depriving anyone of their Constitutional rights. Thanks for playing.
Bridget
"We have met the enemy and he is us."
Pogo Possum
first amendment rights exist anywhere any time. Including this forum. Upon signing up you’ve read the rule agreed to terms of conditions. By doing this you agree to waive your free speech and agree not to talk about religion or politics. Along with harassment or flaming on other forum members. Violation in your agreement You can be penalized. It’s a fundamental right to ones own expression in many ways. The only time that freedom dose not exist is when you knowingly and willingly, for whatever ever reason are coerced or are willing to give that right away.
AFC Moderator
Like inspections on a falconry permit??
Eric Edwards
I would believe so, I’m pretty sure everyone read the regulations upon signing on as part of the permit Your are basically asked to waiver your right to unwarranted search and profitable use of raptors held on your permit. No one was tricked or lead to believe otherwise. It’s the same as if your sitting in a courtroom being tried and your asked if you want a attorney and you say no, and the records show you waived this right.
Sure, you can pound somebody’s face into the construction, and probably win these kinds of cases. It’s not a for sure thing. Especially if the sole purpose is to nullify your agreement. And no wrong or harm was done to you and the letter of law followed with lawful procedures as stated it the regulations you agreed to when signing your permit application.
If the falconry community finds this issue more than unbearable, a legislative approach would probably be far more productive.
AFC Moderator
Legislative approaches have been tried on both the federal and state level, didn't work. Next step it seems would be to let the courts decide, we'll see how it turns out. Personally, I hope the plaintiffs win. And I applaud their courage.
Eric Edwards
Well if it dose work its going to go from what’s considered a unwarranted search that you agreed to could happen at anytime to mandatory inspections. How many of you you here have actually had usfws or state wildlife officers show up at your door? Minus the California incident!
AFC Moderator
Me, 3 times in the past 3 years. Our state agency has decided to inspect all "captive wildlife" permit holders every 2 years, falconry falls under that group.
So, sounds like if it's not your problem then it doesn't matter?
Eric Edwards
Member
The general misconception is that any statute passed by legislators bearing the appearance of law constitutes the law of the land. The Constitution of the United States is the supreme law of the land, and any statute, to be valid, must be in agreement. It is impossible for both the Constitution and a law violating it to be valid; one must prevail. This is succinctly stated as follows:
The general rule is that an unconstitutional statute, though having the form and name of law, is in reality no law, but is wholly void, and ineffective for any purpose; since unconstitutionality dates from the time of its enactment, and not merely from the date of the decision so branding it.
An unconstitutional law, in legal contemplation, is as inoperative as if it had never been passed. Such a statute leaves the question that it purports to settle just as it would be had the statute not been enacted.
Since an unconstitutional law is void, the general principals follow that it imposes no duties, confers no rights, creates no office, bestows no power or authority on anyone, affords no protection, and justifies no acts performed under it . . .
A void act cannot be legally consistent with a valid one.
An unconstitutional law cannot operate to supersede any existing valid law.
Indeed, insofar as a statute runs counter to the fundamental law of the land, it is superseded thereby.
No one is bound to obey an unconstitutional law and no courts are bound to enforce it.
— Sixteenth American Jurisprudence, Second Edition, Section 177. (late 2nd Ed. Section 256)
Chi M.
No. It at all, I was just curious! If they are doing mandatory now then if the pull the reasonable search regulations they will probably replace it with a mandatory search.
NAFEX Supporting Member
As a person who agrees completely with Martin Niemoller it most certainly is of concern though whether or not it is a "problem" the jury is still out.
What constitutes an inspection? Do they make an appt at a reasonably convenient day and time? What exactly do they feel they are entitled to inspect? Is this a 15 minute deal where you show them your 3-186's, they see if you have a reasonable mews and equipment and then vanish or is it some sort of witch hunt? I am banking on you being reasonable in assessing the witch hunt thing because there are some who feel that if a cop drives by their house the man is trying to keep them down.
I suspect that 3 times in 3 years is a bit excessive but how do they decide who gets inspected and how often? For example I would contend that if an apprentice gets ditched by their sponsor who says they are a disaster and their bird is not well cared for then that might be a reasonable cause to take a peek.
Ron N1WT Vermont
Member
What about the lady that is making it her crusade to end falconry drops a dime on every falconer in the state just to hassle falconers? https://stopfalconry.com
Chi M.
NAFEX Supporting Member
Chi, dude, expand your thoughts a little bit, and think this through. If this rehabber has it out for falconers you had better believe that the state G&F is well aware of her and her hatred of falconers, so do you really think the FLG&F is going to take her word for anything? I don't think so. Rehabbers create much bigger headaches for G&F, at least here, than falconers do, by a long shot.
Paul Domski
New Mexico, USA
NAFEX Supporting Member
We have a lot of those irrational tree hugging granola munching types here. In fact, National Audubon told me that they consider our state chapter to be a "fringe element".
What we do have going for us is a strong field sports tradition and in recent years our relationship with F&W has become more cordial to the extent that they would likely
view a nut like that as abusing state resources by trying to use F&W for her personal crusade against falconry.
It would seem to me that falconers encouraging law enforcement to come and see that they have nothing to hide would let some air out of her zeppelin of stupidity.
That is precisely the sort of lunatic that I worry about when I think about falconry deregulation. If there are no rules which we participate in making to abide by then emotional ideas about what we should
and should not do with animals become the only test. Poor regulations that are livable are, IMO, preferable to being subject to the emotional dandruff of lunatics.
Ron N1WT Vermont
NAFEX Supporting Member
To your first (quoted) point, I believe that it is naive to think that when said enforcement officers show up that they will 1) understand suitable falconry facilities, even were some to jump up and punch them in the nose and 2) understand esoteric and complex and a lengthy body of rules about a subject in which they have no expertese and even less interest. It is not a rare scenario for citations and seizures of birds to happen during administrative inspections for either or both of those reasons. Of the adminstrative inspections I am aware of, I believe ~10% resulted in seizure or a citation, which is a shockingly high rate.
To your second point, just exactly how is it going to empower these types if the provisions are removed from the rules that allow enforcement to drop by on a whim? You have expressed some concern about this court case attracting attention, but the groups that want to do away with falconry are already well aware of us.
There have been scenarios where that proverbial whim was created by members of the public. Indeed, it could even be easily argued that Operation Falcon was created by complaints from the general public - although in that fine example of abused enforcement power they had warrants when they dropped by. I know of a few cases where the
Realistically, its only a minor inconvience to an enforcement officer to get a warrant if they really think something is afoot.
Geoff Hirschi - "It is better to have lightning in the fist than thunder in the mouth"
Custom made Tail Saver Perches - http://www.myrthwood.com/TieEmHigh/
NAFEX Supporting Member
Come on Geoff, I am not naive. I understand that most LE people have little comprehension of falconry or the nuances of how the regulations apply. That is why those of us who would rather avoid unfortunate confrontation reach out and try to educate them. Build a relationship with members of their community and all of a sudden you start to gain respect through association.
Remember when your parent's told you not to hang out with the wrong kind of kids? When I moved here a warden showed up to inspect me. He was courteous and informed me up front that
he knew little to nothing about falconry other than what he had read in My Side of the Mountain as a kid. Then he proceeded to start taking photos. I asked him if his report was so detailed that
he needed photos and he said "No, if you don't mind these are for my grandson. He will think this is cool".
We have started an initiative to do falconry boot camps for our wardens and we have taken our falconry coordinator hawking with an open invitation to all to come out with us or come visit if they would like to learn about falconry.
Your thought process also has a bit of an indictment of the law enforcement community in general as being inept or generally abusing power. I realize that you probably did not intend to
carry it that far but as a fire chief I work with LE people all the time. The vast majority are dedicated and reasonably easy to get along with if you take into account that they spend their day
dealing with assholes and most people treat them poorly just because they have a badge and gun. Yes, there are bad apples but making that assumption going into an interaction with LE
is likely to make things go the wrong way fast.
With respect to the second point, cruise around NAFEX and you will find more than a couple of threads where falconers have used the fact that the sport is regulated both federally and at the state level to weave their way around local regulations, zoning problems and HOA rules. The same is true of the animal rights nitwits. If you are conducting your falconry within the bounds of
the regulations they can whine and "drop a dime" on you but inevitably you will be judged by the letter of the law rather than their emotional drool. You and I know that no matter how bad the
rules are (yes, I realize you think they are worse than I do) but I know you are smart enough to know that you stand a better chance with the regs than defending yourself against a
posse of irrational emotionally driven nuts who think that wildlife should be "lookie no touchie".
Your final point is a very good one. With respect to all of that PLF crap, if CA law enforcement operating in their climate of over regulation wants to harass you they will simply get a judge with animal rights activist sympathies to issue a warrant.
Ron N1WT Vermont
Member
This is a concept that critics of NAFA and government have generally overlooked. That fact that we are couched within a wildlife management paradigm means we have been given a legal open road by wildlife agencies who, by definition, support our enterprise in the face of a myriad of obstacles. It is fortuitous to say the least compared to say the British model. Overall, most of the falconers I know have had at least one unfortunate interaction with LE's but the net experience has been either benign or positive. I would have tip my hat to AFC if they were just trying to make a nuanced change to inspections - whereby the inspection to certify a new falconer's facilities (and falconers that moved to the state) was mandatory, but any re-inspection would have some more sideboards to it.
I think that once a falconer is vetted with permits and inspections, maybe it would be nice to have a slightly higher bar. As I have mentioned before, the problem is that there is a larger regulatory norm for all migratory bird permits under Subchapter B of 50CFR. So breaking into this requirement is a bigger hurdle that just falconry, and the reasoning behind MBTA regs, are, in my opinion, are not unreasonable if you have a broader view of conservation vs looking through a straw at "rights".
Furthermore - if you look into the history of the 1970's development of the federal regs between NAFA leaders and the USFWS - you will see that the reason we have legal falconry and the abundance access to wild birds is largely due to a strategic argument on the part of our forefathers. Two early leaders of our community in the US (the first NAFA president) and in Canada were raptor perpetrators straight up. THe US person was literally busted in a falcon smuggling scheme and was associated with McPartlin. No matter how much we want to feel like we are a largely victimized community, this event was a very unfortunate, damaging situation. Added to that there were a number of advocacy groups that were poised to fight legalized falconry. So these NAFA regs authors had a needle to thread and did so deftly. By the 1980's regs update, the feds even acknowledged in writing the role of falconers in conservation and our benign impact. This trend of acceptance just increased more and more....and this is directly based on the sophistication and leadership of this small group of NAFA leaders who negotiated falconry in the context of our Wildlife Model of Conservation. Its a fact.
Of course the paradigm behind PLF and their ideological funders is the opposite of our own conservation paradigm. They take a fundamental opposition to the very idea of a public resource, democratic access, and conservation in general. They fight time-tested conservation model by using "rights" arguments - suggesting it is the manifest destiny of folks (especially industry) to be able to take what they want and benefit from it financially without interference or consequence. They see mainstream conservation practices as extreme government over-reach.
Subchapter B of 50CFR Part 13 set the over-arching terms for all permits such as Taxidermy, Education, Falconry, rehab etc. In 13.47 you will see that the inspection requirement is an umbrella requirement for all permits relating to bird possession
§ 13.47 Inspection requirement.
Any person holding a permit under this subchapter B shall allow the Director's agent to enter his premises at any reasonable hour to inspect any wildlife or plant held or to inspect, audit, or copy any permits, books, or records required to be kept by regulations of this subchapter B.
John
Bend, OR
NAFEX Supporting Member
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.I think that once a falconer is vetted with permits and inspections, maybe it would be nice to have a slightly higher bar. As I have mentioned before, the problem is that there is a larger regulatory norm for all migratory bird permits under Subchapter B of 50CFR. So breaking into this requirement is a bigger hurdle that just falconry, and the reasoning behind MBTA regs, are, in my opinion, are not unreasonable if you have a broader view of conservation vs looking through a straw at "rights".
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.Of course the paradigm behind PLF and their ideological funders is the opposite of our own conservation paradigm. They take a fundamental opposition to the very idea of a public resource, democratic access, and conservation in general. They fight time-tested conservation model by using "rights" arguments - suggesting it is the manifest destiny of folks (especially industry) to be able to take what they want and benefit from it financially without interference or consequence. They see mainstream conservation practices as extreme government over-reach.
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?Subchapter B of 50CFR Part 13 set the over-arching terms for all permits such as Taxidermy, Education, Falconry, rehab etc. In 13.47 you will see that the inspection requirement is an umbrella requirement for all permits relating to bird possession § 13.47 Inspection requirement. Any person holding a permit under this subchapter B shall allow the Director's agent to enter his premises at any reasonable hour to inspect any wildlife or plant held or to inspect, audit, or copy any permits, books, or records required to be kept by regulations of this subchapter B.
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.
Geoff Hirschi - "It is better to have lightning in the fist than thunder in the mouth"
Custom made Tail Saver Perches - http://www.myrthwood.com/TieEmHigh/
Member
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.
John
Bend, OR
Member
No they can not just pull you over just to identify you or the occupants of your car. No they can not come to your home to see what birds you have in possession absent your consent. They can ask you for your falconry license if you are in public with your bird. https://www.nolo.com/legal-encyclope...er-reason.html
Chi M.
Member
nice try changing my words. oh brother....all cops need to have some reason to pull you over, just like they might have some reason to do an inspection. Yes they can ask for the ID's of occupants...and yes they can enter your raptor facilities during reasonable hours. If you keep your birds in your house then they can go inside your house.
John
Bend, OR
NAFEX Supporting Member
They can ask sure, but they cannot require that they are produced with the exception of the driver without further probable cause of wrongdoing. And in fact they are only able to demand the driver's ID to confirm that the driver is legally authorized to operate a dangerous piece of machinery on public roads. The first line of police work is quite often to see if you can get someone to incriminate themselves by divulging information.
It is not unusual to find police officers who are not aware of their limitations to be able to demand the IDs of the other occupants, and it is even not unusual for a judge to go along with it, but there have been SCOTUS cases that have addressed this.
Well, that is currently up for the courts to decide. Your interpretation is not anywhere near as rock solid as you believe it to be. I have spoken to a number of attorneys, some constitution specialists, that are absolutely astounded that this requirement is in place. Their opinion is that the 4th amendment argument raised by the AFC/PLF is a slam dunk cinch.and yes they can enter your raptor facilities during reasonable hours. If you keep your birds in your house then they can go inside your house.
Geoff Hirschi - "It is better to have lightning in the fist than thunder in the mouth"
Custom made Tail Saver Perches - http://www.myrthwood.com/TieEmHigh/
Member
Well if it dose work its going to go from what’s considered a unwarranted search that you agreed to could happen at anytime to mandatory inspections. How many of you you here have actually had usfws or state wildlife officers show up at your door? Minus the California incident!
I have. State and Federal at the same time, shortly after 6:00 am. I invited them in, made coffee and consented to let them search my house. The federal agent was rude, put his hands on my wife, to prevent her from going up the stairs before him. When he lied and falsely accused me of wrong doing, I backed them out of the front door with my finger in their chests. I told them not to come back without a warrant. This was shortly before 'Operation Falcon' broke on the scene and they were obviously trying to include me without cause.
Geoff listed a few instances of state and federal enforcement abuses. There have been many in my 50+ years of falconry but 2 that stand out, here in Wy. The first is the Jason Jones case, where he filed paperwork listing the raptors he was importing form Utah, upon moving to Wyoming. I was told that the falconry contact person at Game and Fish missed the whole second page of birds listed and admitted the fact in an interoffice memo. Jason was criminally charged with illegal possession of all of the raptors he had listed on the second page and only after he was able to present a copy of the memo, in court, were charges dropped. Jason told me that he was called to give testimony in the state House of Reps.. He was present when congressmen grilled and chastised the director of Game and Fish. His was one of two cases influencing the decision to withhold funds at budget time. The second case is Dave Franke. He was federally charged over a paper work filing mistake. The Feds. were pressing him to plead guilty and upon multiple occasions dropped the charges as the trial was about to begin, as in the day of, only to refile them the next day. Just pure harassment. His case dragged on for years.
Jeff,
Northern Black Hills, Wyoming
Member
https://supreme.justia.com/cases/federal/us/387/523/
U.S. Supreme Court
Camara v. Municipal Court, 387 U.S. 523 (1967)
Camara v. Municipal Court of the City and County of San Francisco
No. 92
Argued February 15, 1967
Decided June 5, 1967
387 U.S. 523
Syllabus
Appellant was charged with violating the San Francisco Housing Code for refusing, after three efforts by city housing inspectors to secure his consent, to allow a warrantless inspection of the ground-floor quarters which he leased and residential use of which allegedly violated the apartment building's occupancy permit. Claiming the inspection ordinance unconstitutional for failure to require a warrant for inspections, appellant while awaiting trial, sued in a State Superior Court for a writ of prohibition, which the court denied. Relying on Frank v. Maryland, 359 U. S. 360, and similar cases, the District Court of Appeal affirmed, holding that the ordinance did not violate the Fourth Amendment. The State Supreme Court denied a petition for hearing.
Held:
1. The Fourth Amendment bars prosecution of a person who has refused to permit a warrantless code enforcement inspection of his personal residence. Frank v. Maryland, supra, pro tanto overruled. Pp. 387 U. S. 528-534.
(a) The basic purpose of the Fourth Amendment, which is enforceable against the States through the Fourteenth, through its prohibition of "unreasonable" searches and seizures is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials. P. 387 U. S. 528.
(b) With certain carefully defined exceptions, an unconsented warrantless search of private property is "unreasonable." Pp. 387 U. S. 528-529.
(c) Contrary to the assumption of Frank v. Maryland, supra, Fourth Amendment interests are not merely "peripheral" where municipal fire, health, and housing inspection programs are involved whose purpose is to determine the existence of physical conditions not complying with local ordinances. Those programs, moreover, are enforceable by criminal process, as is refusal to allow an inspection. Pp. 387 U. S. 529-531.
(d) Warrantless administrative searches cannot be justified on the grounds that they make minimal demands on occupants;
Page 387 U. S. 524
that warrant in such cases are unfeasible; or that area inspection programs could not function under reasonable search warrant requirements. Pp. 387 U. S. 531-533.
2. Probable cause upon the basis of which warrants are to be issued for area code enforcement inspections is not dependent on the inspector's belief that a particular dwelling violates the code, but on the reasonableness of the enforcement agency's appraisal of conditions in the area as a whole. The standards to guide the magistrate in the issuance of such search warrants will necessarily vary with the municipal program being enforced. Pp. 387 U. S. 534-539.
3. Search warrants which are required in nonemergency situations should normally be sought only after entry is refused. Pp. 387 U. S. 539-540.
4. In the nonemergency situation here, appellant had a right to insist that the inspectors obtain a search warrant. P. 387 U. S. 540.
237 Cal.App.2d 128, 46 Cal.Rptr. 585, vacated and remanded.
Chi M.
NAFEX Supporting Member
Just noticed something that you said here John.
That is precisely what is so nefarious about the regulations as they are written right now. As they regs are on paper, the US FWS does not need to have any reason whatsover to do an inspection. Most states just copied the federal language, including mine. My State agency is currently respecting the 4th amendment and is stating that drop in inspections require a warrant first.
There was a flurry of inspections here in the Seattle area a bit over 10 years ago by US FWS agents. I am not sure how the first inspection got started, beyond that it was around the time that the regulations had changed, and they wanted to go sniff around and see who was violating the rules. I personally know 4 people who were visited. The first one that I am aware that was visited was a rather naive kid at the time that had a friendly chat with the agents. One question that was asked is "What are the names of the falconers you know and that you go hunting with?" Most of the people who were mentioned also got a visit. And none of them had any reason to be visited beyond the whim of the agency.
No citations were issued, no seizures of birds happened, but that is quite beside the point.
Geoff Hirschi - "It is better to have lightning in the fist than thunder in the mouth"
Custom made Tail Saver Perches - http://www.myrthwood.com/TieEmHigh/
NAFEX Supporting Member
Hi Geoff,
Could you post a link, or the text from your state regs that specify that LE must have a warrant? I think that could be very useful. Thanks.
Paul Domski
New Mexico, USA
NAFEX Supporting Member
Hey Paul.
Its not in our regs. It is the interpretation of our State Fish and Game agency that the 4th amendment restricts the ability to perform inspections. I find this mildly unsettling because down the road we could get another set of lawyers/beaurocrats who would see things differently. Also, the US FWS expressly retained the ability to perform their own enforcement activities, including inspections, when they handed administration of falconry down to the states, and they commonly see themselves as being "above" any state law or any state interpretation of federal law.
Here is the link to our inspections regulations - no mention either way of a warrant. https://apps.leg.wa.gov/WAC/default....ue#220-420-270
Geoff Hirschi - "It is better to have lightning in the fist than thunder in the mouth"
Custom made Tail Saver Perches - http://www.myrthwood.com/TieEmHigh/
Member
The MBTA requires a search warrant.
SEC. 5. ø16 U.S.C. 706 That any employee of the Department of Agriculture authorized by the Secretary of Agriculture 4 to enforce the provisions of this Act shall have power, without warrant, to arrest any person committing a violation of this Act in his presence or view and to take such person immediately for examination or trial before an officer or court of competent jurisdiction; shall have power to execute any warrant or other process issued by an officer or court of competent jurisdiction for the enforcement of the provisions of this Act; and shall have authority, with a search warrant, to search any place. The several judges of the courts established under the laws of the United States, and United States commissioners may, within their respective jurisdictions, upon proper oath or affirmation showing probable cause, issue warrants in all such cases. All birds, or parts, nests, or eggs thereof, captured, killed, taken, sold or offered for sale, bartered or offered for barter, purchased, shipped, transported, carried, imported, exported, or possessed contrary to the provisions of this Act or of any regulation prescribed thereunder shall, when found, be seized and, upon conviction of the offender or upon judgment of a court of the United States that the same were captured, killed, taken, sold or offered for sale, bartered or offered for barter, purchased, shipped, transported, carried, imported, exported, or possessed contrary to the provisions of this Act or of any regulation prescribed thereunder, shall be forfeited to the United States and disposed of by the Secretary of the Interior in such manner as he deems appropriate.
https://legcounsel.house.gov/Comps/M...eaty%20Act.pdf
Chi M.
NAFEX Supporting Member
No, the USFWS turned all of the inspections over to the state, no where do they expressly retain the ability to perform their own inspections. This was one of the big changes that came about in these new regulations, all law enforcement was turned over to the states. That said, individual states could add more restrictive language and grant federal law enforcement the ability to perform inspections.
From 50 CFR 21.29
(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.
(9) Inspections. Falconry equipment and records may be inspected in the presence of the permittee during business hours on any day of the week by State, tribal, or territorial officials."
Paul Domski
New Mexico, USA
Member
although this has been brought up before...this section you are referencing here is unrelated to falconry and similar permitting. Permits are exceptions to the basic statute and these are detailed in Subchapter B of 50CFR. In section 704 of this link....it gives Authority to the Secretary to set permitting rules etc.
John
Bend, OR
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