Preliminary Injunction Filed

[Montucky]

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 [IMG]file:///C:/Users/JMGOOD~1/AppData/Local/Temp/msohtmlclip1/01/clip_image001.gif[/IMG]) 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".

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.

[goshawkr]

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.

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.

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".

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.

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.

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.

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.

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.

[Montucky]

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.