Amazing, What A Small Club Can Do!

[Montucky]

For those falconers following this, there is some nuance to this that goes beyond a simple Constitutional argument. As many folks know, one of the key tenets of the American conservation model (another way of saying the sum of our wildlife laws) is that wildlife is held in the public trust no mater what property it is on. This is called the Public Trust Doctrine and has been codified by case law and is easy to look up online. As a member and leader in The Wildlife Society, I will offer this link but there are many more http://wildlife.org/wp-content/uploa...5/ptd_10-1.pdf

IN essence wildlife cannot be privately owned just because it resides on private land - it is owned or stewarded by the States in Trust for current and future generations. If you have ever talked to hunters from other countries - or been to other countries - you know how good we have it. Thus the Pubic Trust Doctrine is a key foundation to protecting wildlife from commercial exploitation - which has proven to be the most pernicious force against sustainable management. Also privatization of wildlife can lead to the wealthy owning wildlife - which comes to another tenet of our Model : Democratic access to fishing and hunting.

Another issue that appears to be of concern to the plaintiffs in this case is the prohibition on commercial gain a falconer can receive using migratory birds in their possession. This prohibition is, of course, a fundamental tenet of the Migratory Bird Treat Act which was created to stop the commercial exploitation of certain birds specifically, but may be allowed with special permits like abatement permits.

I would encourage anyone here interested to do some homework on the Public Trust Doctrine, and related wildlife law in the U.S. and decide for yourself. Consider the bigger picture and who gains the most by such cases and look up who is funding the Pacific Legal Foundation (attorneys in the case). Whatever you think, the fact remains that this subject is very nuanced and there is a lot more case law behind it that the MBTA alone. I for one prefer the delicate and sometime annoying dance we have with the agencies to precedent setting changes to the protection of wildlife.

The Pacific Legal Foundation took this case (lawyers for the plaintiffs) because they are interested in precedent setting case law advancing libertarian/conservative principles as they relate to government. They are not interested in falconry and its future and they are not interested in the implications case law may have toward wildlife conservation - as they have a history of fighting environmental regulation. they are explicitly trying to weaken conservation. They are funded by tobacco, oil/gas, Koch Brothers and similar interests and have aggressively worked to stop the Sage Grouse conservation plan among a myriad of other environmental issues. Just a message of caution. Its really important to dig into the details on this one.

Some links to information on the PLF -
http://polluterwatch.org/edit-profil...foundation-plf

https://www.sourcewatch.org/index.ph...gal_Foundation

[Captain Gizmo]

John,

Thank you for injecting a little non-emotion based reality into this discussion.
With issues like this we need to remember to be careful what we wish for.

High Regards,
Thomas of the Desert

[goshawkr]

For those falconers following this, there is some nuance to this that goes beyond a simple Constitutional argument. As many folks know, one of the key tenets of the American conservation model (another way of saying the sum of our wildlife laws) is that wildlife is held in the public trust no mater what property it is on. This is called the Public Trust Doctrine and has been codified by case law and is easy to look up online. As a member and leader in The Wildlife Society, I will offer this link but there are many more http://wildlife.org/wp-content/uploa...5/ptd_10-1.pdf

IN essence wildlife cannot be privately owned just because it resides on private land - it is owned or stewarded by the States in Trust for current and future generations. If you have ever talked to hunters from other countries - or been to other countries - you know how good we have it. Thus the Pubic Trust Doctrine is a key foundation to protecting wildlife from commercial exploitation - which has proven to be the most pernicious force against sustainable management. Also privatization of wildlife can lead to the wealthy owning wildlife - which comes to another tenet of our Model : Democratic access to fishing and hunting.

That is not quite correct, although this is commonly touted as what the Public Trust Doctrine (PTD) body of principals entails, particularly by those on the extreme fringe of conservation and even animal rights nut jobs. Those elements will even extend this line of argument to contend that hunters are "thieves" by "stealing" wildlife into private possession, which is a crucial aspect of the general error in your argument John.

The tenant of the PTD is that everyone has the right to access wildlife (and several other resources such as the air, water), and that the role of the government is to protect this access for everyone (the stewardship angle you mentioned). You are right, that the PTD principals mean that the wildlife is not owned by the landowner where it occurs. While it is in its wild and free state, wildlife is not owned by anyone, the State (in this context "state" refers to both state and federal wildlife agencies) included. Until the turn of the 20th century, many of the conservation rules we now hold dear were actually challenged as being a violation of the PTD, but those concepts have now been enfolded into the current implementation of the PTD and its overall concept because it became quite clear from a number of wildlife population extinctions and other nearly catastrophic population crashes that access to the wildlife resource needed to be limited so that a few greedy or otherwise inconsiderate parties would not take more than their fair share of the resource.

At the instant wildlife is lawfully rendered into private possession, it becomes the property of the individual who took possession. There are a number of court cases, including SCOTUS rulings, that have affirmed this. All of the wildlife agencies are aware of this. However, falconry birds have them confused because it is one of the very few examples of wildlife being rendered into private property and remaining alive, whereas the vast mojority of the methods for wildlife transitioning into private possession involve the death of that wildlife. I have been engaged in debates with both my state officials and USFWS officials that insisted that the PTD meant that falconry raptors were the property of the State because they were live wildlife. In one of those debates, I trumped their argument by stating "so all i have to do to own my goshawk is kill it then..." If you carefully look into the current federal regs, its pretty clear that your ownership of your dead falconry birds is not disputed by the FWS. In some of the more nefarious examples of this gross misunderstanding of how PTD applies to falconry birds, the USFWS was stating on permit paperwork that they "....retained ownership..." of falconry birds and that they may be "...recalled at any time..." (this was added to several eagle falconry permits in the '90s)

And the insistence on inspections is also another example of the agencies misapplying the PTD to falconry. It is the corner stone of their argument for having those inspections, because they need to make sure that "their" property is being well treated by the permittees. Rather interesting, since the Migratory Bird Treaty Act expressly prohibits the FWS from conducting inspections.

Another issue that appears to be of concern to the plaintiffs in this case is the prohibition on commercial gain a falconer can receive using migratory birds in their possession. This prohibition is, of course, a fundamental tenet of the Migratory Bird Treat Act which was created to stop the commercial exploitation of certain birds specifically, but may be allowed with special permits like abatement permits.

While you are fundamentally correct, I think it warrants a closer look at the commercial exploitation that the MBTA was crafted to protect against. Namely unregulated lethal harvest of birds to be used as decorations on ladies hats in the early part of the 20th century. There is not even a glimmer of comparision between that and the USFWS arbitrarily prohibiting you from using your privately held, privately owned raptor in a commercial venture.

It does not take much examination of the core issue to really see the insanity here. Consider this: I can go out with a camera and photograph any species of bird including raptors in its wild state and charge anything I want for the footage or the commercially prepared end product of that footage, and the USFWS - quite correctly - thinks it is none of their business. With that same camera, I can go out and photograph anyone else's falconry bird and I can still charge anything I want for the footage or the commercially prepared end product of that footage. In this case, the USFWS thinks it is their business if I compensate the falconer for using them in my production, but otherwise it is fully legal. But according the USFWS I cannot go out and film my own privately owned and held falconry raptors and be compensated for the footage.

This is a pretty basic infringement of my first amendment rights, along with every other falconer's. And while it is overly simplistic to state that free speech can never be infringed, the legal standard is that they government needs to prove a compelling reason to do so. I did have a friend who is an attorney review the case we are talking about, and he seemed to think their argument as it currently stands is skating on some pretty delicate ice.

The Pacific Legal Foundation took this case (lawyers for the plaintiffs) because they are interested in precedent setting case law advancing libertarian/conservative principles as they relate to government. They are not interested in falconry and its future and they are not interested in the implications case law may have toward wildlife conservation - as they have a history of fighting environmental regulation. they are explicitly trying to weaken conservation. They are funded by tobacco, oil/gas, Koch Brothers and similar interests and have aggressively worked to stop the Sage Grouse conservation plan among a myriad of other environmental issues. Just a message of caution. Its really important to dig into the details on this one.

What does that have to do with anything? But as long as your brought it up, the Koch brothers are not the boogey men they are commonly portrayed by the lunatic left. They actually are a quite moderating influence on the right wing fringe.

Neither of the core legal principals they are addressing here have ANY impact on wildlife conservation. This is all about legal aspects of privately held, private owned wildlife once it has already been rendered into private possession.

[Peregrinus]

Hi John, and thank you for your reply-

This suit is actually quite simple, so let's go Occam's Razor on it. When you get a falconry permit, your 4th Amendment rights vanish. It's not a "delicate and sometimes annoying dance". It's unconstitutional. The end. Armed state or federal agents can show up on your property and conduct searches without a warrant or probable cause. The nuance or sophistry that can adequately defend that eludes me.

I encourage any who are interested to research 'The Public Trust Doctrine'. Find out about its original intent, and how the term has been co-opted, reinterpreted, and expanded upon over the years. It is a doctrine, not law, so you don't have to wander too far off into the weeds about it, though it is interesting.

Whether or not raptors- wild taken or captive-bred- are private property was settled long ago, so there's no need to re-hash it here. (Hint: they are).

The Pacific Legal Foundation is not a conservation organization, or an environmentalist NGO. They are a non-prof dedicated to civil rights; kind of like the ACLU, but with a decidedly libertarian bent. I didn't know that the Koch brothers donated to them. If true, that's great to hear- it makes me like them even more.

I'm not posting here to debate stuff that has been argued about for years. Many made up their minds on private property/public trust/gov't regs a long time ago. I'm merely posting this news, because I think it's pretty darn cool. If you are not a Constitutional conservative or libertarian type, there's probably not much in this suit that you'll like. If you are, it'll be like angels singing. (Cue: heavenly choir)

[Captain Gizmo]

Whether or not raptors- wild taken or captive-bred- are private property was settled long ago, so there's no need to re-hash it here. (Hint: they are).

Hint: In the case of the Tule Elk and the Los Angeles Zoo the court ruled that no matter how many generations removed from the original wild stock native wild animals are property of the state held in stewardship by the organization in possession.

Regards,
Thomas of the Desert

[goshawkr]

Hint: In the case of the Tule Elk and the Los Angeles Zoo the court ruled that no matter how many generations removed from the original wild stock native wild animals are property of the state held in stewardship by the organization in possession.

Citation?

Wildlife is not the property of the State. It is not property at all until it is rendered into private possession.

[goshawkr]

IN essence wildlife cannot be privately owned just because it resides on private land - it is owned or stewarded by the States in Trust for current and future generations.

Too late for me to edit my earlier post, but I wanted to further clarify this.

No one is making the claim that you own your falconry bird because it resides on (or in) your private land [home]. You own it because you rendered it into private possession at the time you lawfully bought or trapped it. And in much the same way, you relinquish your ownership when you release it back to the wild - although the way the federal falconry regulations are spelled out, they clearly recognize your ownership even after that event because you can retrap your bird at any time with absolutely no time limits.