CA Fish and game inspections

[rkumetz]

Ron,

It's not just the left coast... Does your state game department have the power to search private property without a warrant or probable cause? As far as I know all state game departments have declared the power to do so in falconry regulations. I am willing to bet that nothing in any state law authorizes such a violation of privacy.

This is not strictly a falconry issue, administrative agencies of all types have overreached thier authority and created regulation that extends beyond the law. This is simply more repugnant in that it involves the rape of one of our core Constitutional rights.

Troy,
I am infuriated as much as anyone else about governmental overreach when it comes to privacy. I don't fear terrorists nearly as much as politicians and megalomaniacal law enforcement officials with paramilitary capabilities.

Having said that, the court will support the position of CA F&W simply because when you sign up for the permit you are essentially giving permission for that search to occur. Signing up for the permit is somewhat akin to waiving your Miranda rights. I don't agree that you should have to grant that permission and waive your 4th amendment rights but that is another issue altogether.

Unfortunately we live in a society which is increasingly willing to sacrifice their constitutional rights in an attempt to make someone else responsible for protecting them from the boogie man. I don't know how old you are but when I was a kid our television poked fun at the totalitarian Soviet and Nazi regimes with actors having bad accents saying "your papers please". It is unfortunate that we are moving in that direction and it is no longer funny. You and I are horrified by what is taking place while the vast majority of people are more concerned about the fact that they can't watch TV via 4G all the way to work.

Ron

[wyodjm]

Troy,
I am infuriated as much as anyone else about governmental overreach when it comes to privacy. I don't fear terrorists nearly as much as politicians and megalomaniacal law enforcement officials with paramilitary capabilities.

Having said that, the court will support the position of CA F&W simply because when you sign up for the permit you are essentially giving permission for that search to occur. Signing up for the permit is somewhat akin to waiving your Miranda rights. I don't agree that you should have to grant that permission and waive your 4th amendment rights but that is another issue altogether.

Unfortunately we live in a society which is increasingly willing to sacrifice their constitutional rights in an attempt to make someone else responsible for protecting them from the boogie man. I don't know how old you are but when I was a kid our television poked fun at the totalitarian Soviet and Nazi regimes with actors having bad accents saying "your papers please". It is unfortunate that we are moving in that direction and it is no longer funny. You and I are horrified by what is taking place while the vast majority of people are more concerned about the fact that they can't watch TV via 4G all the way to work.

Ron

Are you familiar with the frog in the cooking pot concept? Many of the changes we're seeing today didn't happen overnight!

[rkumetz]

Are you familiar with the frog in the cooking pot concept?

No but it sounds interesting. Do tell!

[wyodjm]

No but it sounds interesting. Do tell!

Put a frog in a pot of hot water and it will jump out. Put a frog in a pot of water at room temperature and gradually turn up the heat, and it will sit there and cook to death. Apparently not noticing the change until it's too late.

[rkumetz]

Put a frog in a pot of hot water and it will jump out. Put a frog in a pot of water at room temperature and gradually turn up the heat, and it will sit there and cook to death. Apparently not noticing the change until it's too late.

I attribute it to having screwed up priorities. We respond to fire calls all the time where the dwelling is a mutilated single wide leaning on the blocks with the door hanging off and the whole place is a shambles with the kids eating bags of M&M candies for supper but they have a 60" plasma TV and 4 different game consoles. I have to think it is the same thing. People do not value their freedom. In many ways I think that the terrorists won the moment that we started to change the way we go about our lives because some of us are afraid of them.

Some people are not all that bright and that is not their fault. Others are simply apathetic and that is a far more reprehensible quality.

To paraphrase Aldo Leopold, I am glad that I will not be young in a world without freedom.

[wyodjm]

I attribute it to having screwed up priorities. We respond to fire calls all the time where the dwelling is a mutilated single wide leaning on the blocks with the door hanging off and the whole place is a shambles with the kids eating bags of M&M candies for supper but they have a 60" plasma TV and 4 different game consoles. I have to think it is the same thing. People do not value their freedom. In many ways I think that the terrorists won the moment that we started to change the way we go about our lives because some of us are afraid of them.

Some people are not all that bright and that is not their fault. Others are simply apathetic and that is a far more reprehensible quality.

To paraphrase Aldo Leopold, I am glad that I will not be young in a world without freedom.

I'm a big fan of Aldo Leopold. My father used to say "If you don't know where you're going, any road will take you there "

I'm really glad I got to personally trap, man, train, and fly all the passage golden eagles I wanted. At a high level, in classic style that I'll never forget. It's a shame future American falconers won't have the same opportunities.

All my best Ron and Merry Christmas.

[WILL HUNT]

Troy,

Having said that, the court will support the position of CA F&W simply because when you sign up for the permit you are essentially giving permission for that search to occur. Signing up for the permit is somewhat akin to waiving your Miranda rights. I don't agree that you should have to grant that permission and waive your 4th amendment rights but that is another issue altogether.



Ron

I disagree since the Ca Supreme Court has already looked at this claim of authority by F&G as was stated in the video. Below are the findings of the CA Supreme Court Justice in People v. Maikhio:

"Section 1006 is derived from former section 23 of the original Fish and Game Code as enacted in 1933 (Stats.1933, ch. 73, § 23, p. 396). Former section 23 provided in relevant part: “The commission shall inspect regularly (1) all boats, markets, stores and other buildings, except dwellings, and all receptacles except the clothing actually worn by a person at the time of inspection, where birds, mammals, fish, mollusks, or crustaceans may be stored, placed, or held for sale or storage....” (Italics added.) In providing for the regular inspection of the specified locations, former section 23 was evidently intended to authorize game wardens to conduct repeated inspections of places where fish and game were likely to be kept for sale or storage, and was not primarily directed at more ad hoc, in-the-field stops of noncommercial anglers and hunters by game wardens seeking the display of required licenses or any fish or game that have been caught or taken."

There is no way a judge will find this authority is intended to search the homes and business of every citizen in the state without cause or warrant.

[rkumetz]

I disagree since the Ca Supreme Court has already looked at this claim of authority by F&G as was stated in the video. Below are the findings of the CA Supreme Court Justice in People v. Maikhio:

"Section 1006 is derived from former section 23 of the original Fish and Game Code as enacted in 1933 (Stats.1933, ch. 73, § 23, p. 396). Former section 23 provided in relevant part: “The commission shall inspect regularly (1) all boats, markets, stores and other buildings, except dwellings, and all receptacles except the clothing actually worn by a person at the time of inspection, where birds, mammals, fish, mollusks, or crustaceans may be stored, placed, or held for sale or storage....” (Italics added.) In providing for the regular inspection of the specified locations, former section 23 was evidently intended to authorize game wardens to conduct repeated inspections of places where fish and game were likely to be kept for sale or storage, and was not primarily directed at more ad hoc, in-the-field stops of noncommercial anglers and hunters by game wardens seeking the display of required licenses or any fish or game that have been caught or taken."

There is no way a judge will find this authority is intended to search the homes and business of every citizen in the state without cause or warrant.

I agree that simply having a fishing or hunting license does not confer any implied waiver of one's 4th amendment rights.

I base my previous statement upon the premise that if you have any sort of license to do business (let's say you are a restaurant) the permitting authority may stipulate that they can inspect your place of business without giving notice. In the case of a health inspection I am not sure that I disagree with that line of thinking.

In a similar fashion if you are hold a falconry or breeding permit would the court not support the idea that your "place of doing business" (which in most cases is our homes) as indicated on your permit is not fair game for an inspection?

I am not saying that I agree with this or that I think it is a good idea but I have observed that our courts tend to be more and more inclined to side with intrusive government actions on the basis of allegedly insuring the welfare of the public.

[WILL HUNT]

I agree that simply having a fishing or hunting license does not confer any implied waiver of one's 4th amendment rights.

I base my previous statement upon the premise that if you have any sort of license to do business (let's say you are a restaurant) the permitting authority may stipulate that they can inspect your place of business without giving notice. In the case of a health inspection I am not sure that I disagree with that line of thinking.

In a similar fashion if you are hold a falconry or breeding permit would the court not support the idea that your "place of doing business" (which in most cases is our homes) as indicated on your permit is not fair game for an inspection?

I am not saying that I agree with this or that I think it is a good idea but I have observed that our courts tend to be more and more inclined to side with intrusive government actions on the basis of allegedly insuring the welfare of the public.

#1006 makes no mention of ANY permit to be a requirement for inspection (although as the Supreme Court indicated it was clearly intended to inspect commercial fish processing plant and commercial fish markets, which are businesses that deal in wild harvested meat products), if you choose to ignore the intent of the legislator and the opinion of the Supreme Court then your claim is that this authority is for everybody, including hunters, fisherman, office workers, Supreme Court Judges, factory workers, EVERYBODY. I might add that sport falconry which was not a recognized sport in 1933 when this code was enacted is a personal endeavor (not a business).

[rkumetz]

#1006 makes no mention of ANY permit to be a requirement for inspection (although as the Supreme Court indicated it was clearly intended to inspect commercial fish processing plant and commercial fish markets, which are businesses that deal in wild harvested meat products), if you choose to ignore the intent of the legislator and the opinion of the Supreme Court then your claim is that this authority is for everybody, including hunters, fisherman, office workers, Supreme Court Judges, factory workers, EVERYBODY. I might add that sport falconry which was not a recognized sport in 1933 when this code was enacted is a personal endeavor (not a business).

First let me say that it is MY opinion that they do not have the right to inspect nor do they have the right to stipulate that searches without probable cause are a requirement of a permit.

What I am saying is that in 1933 the courts were less activist and more prone to digging in their heels on the grounds of protecting both the letter and spirit of the constitution - in essence to err on the side of protecting the rights of the individual. I am sorry to say that I do not believe that the same case would, in 2015, yield the same result. The new mantra of the left leaning activist court is that the interests of the masses always outweigh those of the individual which was not the mindset of those who wrote and signed the Constitution and Bill of Rights.

Perhaps I am simply more cynical than you are. It probably has something to do with watching the news while I ate my breakfast this morning listening to endless diatribes on how the government needs to disarm us and make sure that we can't use encryption software to send emails that they can't read. That kind of stuff makes me cranky. I was taught that though I may disagree with someone's opinion it is my obligation to die if necessary to defend their right to say it. Why? Because that and our other rights are sacred. Where did that mindset go?

Cranky guy signing off.....

[WILL HUNT]

First let me say that it is MY opinion that they do not have the right to inspect nor do they have the right to stipulate that searches without probable cause are a requirement of a permit.

What I am saying is that in 1933 the courts were less activist and more prone to digging in their heels on the grounds of protecting both the letter and spirit of the constitution - in essence to err on the side of protecting the rights of the individual. I am sorry to say that I do not believe that the same case would, in 2015, yield the same result. The new mantra of the left leaning activist court is that the interests of the masses always outweigh those of the individual which was not the mindset of those who wrote and signed the Constitution and Bill of Rights.

Perhaps I am simply more cynical than you are. It probably has something to do with watching the news while I ate my breakfast this morning listening to endless diatribes on how the government needs to disarm us and make sure that we can't use encryption software to send emails that they can't read. That kind of stuff makes me cranky. I was taught that though I may disagree with someone's opinion it is my obligation to die if necessary to defend their right to say it. Why? Because that and our other rights are sacred. Where did that mindset go?

Cranky guy signing off.....

The Supreme Court citing FGC #1006 was in 2011 (: It is ironic that in 1933 when #1006 was written that raptor were not protected and shot as vermin.

Judge Low in BETCHART v. DEPARTMENT OF FISH & GAME who determined that such home inspections by f&G would be threat to citizens personal security was 1984. His words are still on the departments web site today (:

[WILL HUNT]

I agree that simply having a fishing or hunting license does not confer any implied waiver of one's 4th amendment rights.


In a similar fashion if you are hold a falconry or breeding permit would the court not support the idea that your "place of doing business" (which in most cases is our homes) as indicated on your permit is not fair game for an inspection?

I think you would might want to review the following CA Court opinion which is the very case the CFWS staff used as proof that these inspections are allowed. Its REALLY FUNNY that this is what the staff claim justifies home inspections of falconers and that this is posted on the departments web site.

BETCHART v. DEPARTMENT OF FISH & GAME [158 Cal.App.3d 1104]
Hunters are required to be licensed. By choosing to engage in this highly regulated activity, there is a fundamental premise that there is an implied consent to effective supervision and inspection as directed by statute.
Wild game hunting is not a commercial enterprise (as are the liquor and firearms industries). Nevertheless, hunting takes place in "open fields" whether publicly or privately owned; this is a convincing factor that plaintiff's expectation of privacy while hunting is unreasonable. [7] Open field sites are regarded as so public in nature that searches are justifiable without any particular showing of cause or exigency. (People v. Dumas (1973) 9 Cal.3d 871, 882 & fn. 10 [109 Cal.Rptr. 304, 512 P.2d 1208].) "This hierarchy of protection arises not from the application of differing constitutional standards to various locales, but rather from an application of a single standard of reasonableness to all places in accordance with a fundamental understanding that a particular intrusion into one domain of human existence [such as the home] seriously threatens personal security, while the same intrusion into another domain does not."
The entries by the wardens are for the purpose of regulating and managing a state-owned resource……………The warrantless entries by authorized fish and game personnel onto open fields constitute only a minimal intrusion into the private use of the property. Such entries are permitted where game is present and hunting occurs. The inspections may not exceed the specific limited purpose of enforcing wild game regulations, absent probable cause.

[WILL HUNT]

I agree that simply having a fishing or hunting license does not confer any implied waiver of one's 4th amendment rights.

I base my previous statement upon the premise that if you have any sort of license to do business (let's say you are a restaurant) the permitting authority may stipulate that they can inspect your place of business without giving notice. In the case of a health inspection I am not sure that I disagree with that line of thinking.

And the Health Department has no "authority" to create regulation that would allow them to force a home inspection of your kitchen. Which is a great example of what has taken place in falconry. They created regulation but no basis of authority exists in the law.

[rkumetz]

And the Health Department has no "authority" to create regulation that would allow them to force a home inspection of your kitchen. Which is a great example of what has taken place in falconry. They created regulation but no basis of authority exists in the law.

Agreed but under normal circumstances you don't have a permit for your kitchen either. I would love to be confident that the courts would uphold our right to privacy today as they did 31 years ago but the judicial climate has changed more than global warming. The assertion they use to justify this
(in my opinion unlawful) search is that they are managing game animals
(or in our case birds of prey) which are the property of the state and as such they can check on their property the same way you look in on your kids while they are sleeping.

As I read it, the key is this sentence "The inspections may not exceed the specific limited purpose of enforcing wild game regulations, absent probable cause." I would interpret this as saying that the only thing that
law enforcement (aka the wardens) may be looking for is things that would be a violation of the game laws such as a stockpile that exceeded the limits, species with no legal take, etc. It excludes things like the property owner's pot plants, bomb making supplies and other things which are not relevant to the game laws.

I assume that the decision in that case had something to do with some lower court decision where someone was convicted of a hunting regulation? It appears that this decision upheld that earlier decision.

[WILL HUNT]

[QUOTE=rkumetz;364265]Agreed but under normal circumstances you don't have a permit for your kitchen either. I would love to be confident that the courts would uphold our right to privacy today as they did 31 years ago but the judicial climate has changed more than global warming.

Building permits are typically required for kitchens. Nothing in statute authorizes administrative agencies to invade the privacy of the home because one is in possession of a state permit. EXAMPLE: Driving requires a permit but nothing in law authorizes LE to come to your home and submit your vehicles and papers to searched, additionally the state and US Constitutions forbid it just as they do for falconry.

The assertion they use to justify this
(in my opinion unlawful) search is that they are managing game animals
(or in our case birds of prey) which are the property of the state and as such they can check on their property the same way you look in on your kids while they are sleeping.


That a is laughable. Birds in lawful possession by falconers are not a state resource. Nothing in law indicates the birds are not our property. AFC disputed this issue with USFWS several years ago when they attempted to write in regulation they they are not our property. The USFWS consequently publicly declared that they were mistaken and that the birds (wild and domestic bred) are our property. The matter is settled and I will not entertain all the "what if's" that one can imagine.

As I read it, the key is this sentence "The inspections may not exceed the specific limited purpose of enforcing wild game regulations, absent probable cause." I would interpret this as saying that the only thing that
law enforcement (aka the wardens) may be looking for is things that would be a violation of the game laws such as a stockpile that exceeded the limits, species with no legal take, etc. It excludes things like the property owner's pot plants, bomb making supplies and other things which are not relevant to the game laws.

Yes, when they are inspecting a commercial cannery or fish processing facility etc. this is what they are restricted to look for. Not applicable to my office or home.

[rkumetz]

[QUOTE=WILL HUNT;364271]

Agreed but under normal circumstances you don't have a permit for your kitchen either. I would love to be confident that the courts would uphold our right to privacy today as they did 31 years ago but the judicial climate has changed more than global warming.

Building permits are typically required for kitchens. Nothing in statute authorizes administrative agencies to invade the privacy of the home because one is in possession of a state permit. EXAMPLE: Driving requires a permit but nothing in law authorizes LE to come to your home and submit your vehicles and papers to searched, additionally the state and US Constitutions forbid it just as they do for falconry.

The assertion they use to justify this
(in my opinion unlawful) search is that they are managing game animals
(or in our case birds of prey) which are the property of the state and as such they can check on their property the same way you look in on your kids while they are sleeping.


That a is laughable. Birds in lawful possession by falconers are not a state resource. Nothing in law indicates the birds are not our property. AFC disputed this issue with USFWS several years ago when they attempted to write in regulation they they are not our property. The USFWS consequently publicly declared that they were mistaken and that the birds (wild and domestic bred) are our property. The matter is settled and I will not entertain all the "what if's" that one can imagine.

As I read it, the key is this sentence "The inspections may not exceed the specific limited purpose of enforcing wild game regulations, absent probable cause." I would interpret this as saying that the only thing that
law enforcement (aka the wardens) may be looking for is things that would be a violation of the game laws such as a stockpile that exceeded the limits, species with no legal take, etc. It excludes things like the property owner's pot plants, bomb making supplies and other things which are not relevant to the game laws.

Yes, when they are inspecting a commercial cannery or fish processing facility etc. this is what they are restricted to look for. Not applicable to my office or home.

I hope you don't think I am actually arguing with you. I believe 100% that the searches that CA says they can do (and those in the language of many falconry permits) are prohibited by the 4th amendment. On the other hand I also believe that DUI "checkpoints" (though I do not endorse driving while impaired) and seatbelt checks are also a violation of the same amendment. My refusal to accept the court will agree with us is based on the fact that the legality of those and similar searches have been upheld.