Monday, August 20, 2007

Joe Socrates and DNR Dave Talk about Rational Distinctions and "Leveling the Playing Field"

If DNR regulations fail to distinguish between private property and public property doesn't that reduce private property to public property? Does the DNR avoid this distinction by design to increase its descretionary power over activities on private land? And, in turn, is this all about the myth of "leveling the playing field"?

Joe Socrates is a new bear hunter who owns private property in the MN arrowhead region. He wants to make sure that he is compliant with the DNR regulations so he asks for clarifications of the regulations, confident that the DNR believes in the rule of law, not man. Of course the rule of law requires laws and regulations that are clear and distinguished -- regulations that recognize logically and contingently possible distinctions like that between private and public property. But these kinds of distinctions tend to eliminate a great deal of DNR discretion. Maybe one day we'll get there.

Joe:
I want to set up a bear hunting station on my private land. I have lights I've wired up near my bait station so I can gut the bear in tbe dark in case I down it late in the day, and since it's my private land I've got barrels at the station storing my bait. I figure if its legal to have bait barrels anywhere I want on my private land to store bait, it should be okay to have them at the station even though they are not biodegradable. Obviously I am not creating a dump on public land. What would be the point of prohibiting them at my bait station if I can have them anywhere else on my private land?

DNR Dave:
Well, the lights sound okay, as long as you don't use them to shine or view any game after dark. After dark, for gutting game, they're no different from flashlights in their function. But I don't like the barrels. The regulation prohibiting non-biodegradable containers at bait stations doesn't distinguish between public and private land.

Joe:
Hm. Well, maybe it should. My lights are not biodegrable. If biodegradability is the issue, and if I can have the lights wired up anywhere I want on my property, as long as I don't use them to shine game then why can't I have the pails or barrels at a hunting station on my private land?

DNR Dave:
All I know is that the regulation prohibiting non-biodegradable containers doesn't distinguish between private and public land. So you shouldn't use them.

Joe:
Hm. Don't you think the failure to make the distinction between stations on public land and stations on private land, leads to irrational consequences and arbitrary power?

DNR Dave:
I'm not following you.

Joe:
Would you agree that I am clearly not otherwise prohibited by any unit of government from neatly storing bait in barrels anywhere on my private property as long as they don't house some toxic substance?

DNR Dave:
Yes, that seems to be the case. And I wouldn't expect you to store it anywhere else. We certainly don't want you storing it on public land.

Joe:
So what would be the point of keeping me from storing it right at my bait station, on my private property?

DNR Dave:
Well, the regulation just doesn't make the distinction.

Joe:
And you think this lack of a distinction is rational?

DNR Dave:
I don't see that it's irrational.

Joe:
Okay, in reviewing all laws and regulations there's one question which initiates the test of reasonableness, that is, non-arbitrariness: What is the purpose of the law or regulation? What public good does it engender? What public good results from my not having my bait storage right at my bait station on private property?

DNR Dave:
Well, it levels the playing field. People without private property have to carry their bait in.

Joe:
So you think its important for me to have to carry my bait from the containers to the hunting station just to make it harder for me?

DNR Dave:
Well, I don't think it's just about making it harder for you. That's not a public good.

Joe:
Well then what is it?

Dave stitches his brow, and Joe decides to help him with the logical possibilities.

Joe:
All right. Let me ask you this: How many feet from my hunting station should my bait barrels be in order NOT to be considered a part of the station? Five feet? Twenty feet? One hundred feet?

DNR Dave:
Well, I would think they would have to be a ways a way so it's clear they are not a part of the station.

Joe:
What's clear? One foot is clear to me as long as the bait is on the ground. Is that good enough?

DNR Dave:
Let's say 100 feet!

Joe:
Who says 100 feet? You? The guy in the back room? Is this part of the law, or are you just making this up as you go? Is this real law, or just someone's arbitrary invention?

DNR Dave:
Well, I have to agree that any distance would seem to be arbitrary.

Joe:
I have to agree, unless the purpose of the distance is just to make it harder for me to carry the bait. Is that the purpose of this new instant rule? To make it harder for me and "level the playing field?"

DNR Dave:
Do you have an ATV?

Joe:
No.

DNR Dave:
Well, it would be easier for you if you had an ATV. You can use that on private land to carry your bait the 100 feet. I would be happy to let you do that.

Joe:
Fortunately, I don't think you could prevent that on my private property and I really don't think your legal department is that bananas. So the purpose of this instant regulation is NOT to level the playing field, because it wouldn't make it so hard if I had an ATV anyway?

DNR Dave:
No I guess it wouldn't be the rational purpose of the distance to level the playing field. People with ATVs will have it easier than you. Or if you had one, you could use it.

Joe:
So once again, what is the rational purpose if this new, instant regulation?

Dave stitches his brow obsessively.

Joe:
All right, let me ask you a more general question then Dave, as long as we're on the subject. Why would the purpose of any of your regulations be to "level the playing field"?

DNR Dave:
I don't understand. Obviously we want our hunting policies to be fair.

Joe:
That's a nice motivation. But how could you ever succeed in leveling the playing field? Not only do I have private property with a lot of bears on it which most bear hunters don't, I have a better gun. I'm also a better shot than most. My blind is more expensive and more comfortable. My lights make things easier. I can afford better ammo. I can afford to hire baiting help. I have more time to read about best bear hunting practices. I have blueberry's surrounding my hunting station. Do you want to somehow start regulating all of those advantages to suppress them?

DNR Dave:
Certainly not. This is America!

Joe:
So the purpose of not allowing me to have bait barrels at my bait station on my private land, is NOT to level the playing field?

DNR Dave:
Well, I confess that would not appear to be a rational, or realizable purpose for the policy.

Joe:
I agree. So what, pray you, is the rational purpose of not letting me have barrels, at my bait station, on my private land?

DNR Dave:
I've already told you: The regulation simply does not make that distinction.

Joe:
I don't think you're following me yet Dave. You agree that I have the right to neatly store bait anywhere I want in barrels on my private land?

DNR Dave:
Yes, I agree.

Joe:
And you agree that there is no clear purpose to making up a rule requiring those barrels to be some distance from my station to make it harder for me?

DNR Dave:
I agree.

Joe:
So why don't you simply take the position that these barrels, on my private land, are simply not regulated by the DNR? That although the regulation does not make the distinction, DNR regulations do not preempt existing rights and priveleges on private property to be using barrels wherever the county or city otherwise let's the property owner use them? Or better yet, why not simply regard such barrels on private property as being "attended" by virtue of being on private property? If I wanted to spend the money on a court case, there's a good chance I could get at least the former if not the latter decision. DNR regulations should not preempt the rights and priveleges I would otherwise have on private property whether I am hunting or not. The DNR tells me when I can actually take an animal -- a public resource. But the city and the county are primarily the overseers of the deportment of my property. In effect, the DNR is really encroaching on the rights and priveleges other units of government may wish to explicitly preserve for property owners.

DNR Dave:
Hm. I don't know. This is getting complicated.

Joe:
So why don't you simplify it? Go back to your shop and start making things clearer in your regulations and base their further development on this standard: The regulation must have a clearly rational, attainable purpose and it shouldn't encroach on the traditional power of other units of government which may be aimed at preserving property rights and even priveleges. Rationalize all of the regulations. If they can't be rationalized, toss them. It all starts with making key distinctions like that between private and public property.

DNR Dave:
But if we started making things that simple and clear, wouldn't that result in regulations that are either too permissive or too restictive? Don't we need our discretionary power to keep things in the middle and stay in control?

Joe:
The people are supposed to be in control. And too permissive or too restictive from who's point of view? Look Dave, if we're going to have the rule of law, instead being subject to the discretionary power of any agency, then you may just have to live with some laws that someone is always going to consider too restrictive or too permissive. I think the key thing is, watch out for the too restrictive side. If you go that route, you're going to bump into the people and the legislature, big time. Let me give you an example.

DNR Dave:
What's that?

Joe:
Well you just told me that I can't have non-biodegradable containers at my bait station on private property. On the other hand, you say my non-biodegradable lights are okay, and, by the way, I have a non-biodegradable hunting stand -- a blind on a dock platform. And the DNR does not want to prohibit me from building hunting stands on my own land, correct?

DNR Dave:
No, it doesn't.

Joe:
So if in order to simplify the regulations you were to say that nothing non-biodegradable will be allowed at my bear hunting location on my private land, that would be too restrictive to the point of just being crazy, right?

DNR Dave:
I have to agree.

Joe:
But if you say that on private land, it's okay to have all of these non-biodegradable items, including bait barrels, someone -- I don't know who really -- but someone perhaps jealous of private property owners, might whine that it's too permissive, right?

DNR Dave:
Yes. That's what we want to avoid.

Joe:
But you know you can't level the playing field for that whiner anyway?

DNR Dave:
Yes, I think that's clear.

Joe:
So as a general policy, it's best to insure the rule of law, and the avoidance of irrational restrictions that serve no clear public interest, by erring on the side of more permission, less restriction.

DNR Dave:
I guess so. It would be quite rigid, without obvious gain, to have you remove even your hunting stand, from your private property.

Joe:
Thank you Dave. Next time we'll talk about the irrationality of the pre season baiting restrictions in general. I'd also like to talk to you about the fact that during bow hunting season, a poacher will take a deer with a gun no matter what the regulations say, and a law-abiding citizen will not do so even if he is otherwise carrying a hand gun for protection. So what's with the irrationality of the regulation that prohibits hand guns during bow season?

DNR Dave (smiling):
I'm sure you'll be able to answer your own question Joe!

3 comments:

James said...

Quoting from the blog: "The explicit definition of a "bait station" is that it is a place where hunting is going to take place. This kind of station is not supposed to be less than 300 feet from where bait, simpliciter, has been placed prior to the official start date of baiting season."

Huh? That means that a bait station can't be where the bait is/was. It has to be at least 300ft from where the bait is/was. This should be called a hunting station and the bait station should be where the bait is/was.

Did you paraphrase this daffynition correctly?

Gadfly said...

James, here's some further analysis starting with the verbatim statement of the regulations in the winner's handbook:

(A) A bear "bait station" is any location where bait is placed for the **purpose of hunting**.
(B) A person may not establish, service, maintain or place a sign for any **bait station** prior to August 17, 2007. A person may not establish a **bait station** within 100 yards of any site where **bait** has been placed before August 17, 2007.

If we substitute the definition provided in (A) for the phrase “bait station” used in (B), regulation (B) reads:

“(B) A person may not establish, service, maintain or place a sign for any bear hunting station prior to August 17, 2007. A person may not establish a bear hunting station within 100 yards of any site where bait (simpliciter) has been placed before August 17, 2007.”

I was once a professor of logic. I wish I had had this example for the freshman.

(A) and (B) taken together, provide no deductive implication that feeding bears is prohibited where it does not constitute a hunting station. If anything, it implies just the opposite by mentioning the placement of bait versus the establishment of a “bait station” (hunting station).

I believe there is at least one conservation organization in northern Minnesota that feeds bears all the time. More generally, I believe people feed bears quite often in Minnesota without fear that the DNR has an interest in fining them for establishing hunting stations out of season. The DNR would be eliminating these naturalist organizations and citing a lot of people if it prohibited feeding stations prior to bear hunting season and after bear hunting season. Obviously these feeding stations are not considered “bait stations” (hunting stations), establishing the fact that the DNR, de facto, DOES make this distinction. In that case, why are a bear hunter’s feeding stations vulnerable to being ticketed as “bait stations” (hunting stations) where it seems clear there was no intent to hunt over the feeding station?

jim said...

I am so ready for bow hunting, I just gotta get all my gear together and clothes cleaned and I am ready to roll! Whenever I see the deer out and about it gets me going!

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