Another Story about the Rule of the Conservation Officer, NOT Law: Send Your Story

In another story on this blog I describe a phone call with an assistant commissioner of the DNR in which I was told that the practical application of the regulations in the field, "case by case" is pretty much up to the local conservation officer. So apparently, you might be guilty in front of one of them, and innocent in front of another, for doing the same thing, where the regulations are subject to substantial interpretation. If you have a story illustrating this kind of discretionary power, send it to tomdahlberg5000@aol.com.

Here's a story that I received recently.

A private landowner's agricultural field was being assaulted on a grand scale by black bears. According to reports, close to 20 different bears appeared in about 3 days.

Several hunters acquired nuisance bear permits from the local CO who insisted to the land owner: "You have to shoot the first bear you see, no hunting for big bears".

Now considering the fact that for some guys a 150 pound bear would be a dream come true, and for others a 400 pound bear might be a disappointment, the CO's order wasn't exactly useful to begin with.

Nevertheless, he apparently repeated his warning over and over again, even visiting the landowner on a couple of occasions to check up on how the hunters with nuisance tags were doing around the field in question. Two hunters shot bears over 400 pounds, and the CO was upset about it.

At least one hunter decided to wait until season opener rather than hunt using the nuisance tag because the CO seemed to be on the warpath.

The problem here is that once the nuisance tags are issued, because the bears (plural) are destroying the crop, how can the CO start micro-managing who shoots or does not shoot which bear? What if all one sees is a bear's rump as it enters the field? What if the bear is walking vs. standing? What if the bear is 400 yards away vs. 100 yards away, and so on? With dozens of bears hammering an agricultural field, why would the DNR care which bear anyone shoots as long as they shoot a bear? Why issue the tags and then behave as if it's a crime to use them?

Would the CO, in order to prohibit big bear hunting, have endorsed the taking of cubs -- say, with a .300 Winchester magnum? And if only the land owner himself could do that, why that exception? It's just ad hoc regulation without a foundation in legislation. Were the tag holders just supposed to shoot at anything that looked like a bear? How smart would that be?

By trying to regulate the situation after the fact, all the CO could do is make the law up as he went. This is bad law-making. Any number of theoretical situations that would prevent a hunter from harvesting any given bear can be imagined and, given enough COs, micro-managed if the unlawful, undocumented premise is that a big bear (whatever that means) should never be taken with a nuisance permit. If it's a big bear that happens to BE the nuisance bear, should the CO require that the tag holder feel extremely sorry after shooting him? Would that make it all good? Is the CO just looking for some kind behavior or deportment from the hunter that says: "I'm so sorry that the nuisance is a large bear by my standards. And even though you, the CO, agreed that this is a nuisance bear, I understand that you should be extremely irritated about that because....well, just because."

In this case, if the CO was actually anti-hunting, he shouldn't be working the beat. Apparently the CO made the hunters feel that they were guilty until proven innocent of wanting a big bear -- some kind of thought crime.

What was the land owner supposed to do? Tolerate the loss of thousands of dollars worth of his crop so no one could get a big bear under a nuisance tag?

The Meaning of the Exercise and Just How Absurd the Regulations Can Get

We're going through an exercise here that will illustrate that the modern regulatory state does NOT in fact have to leave its regulations unspecified, but does so in order to maximize discretionary power. It has no incentive to do otherwise until the people complain. After reformation, the regulations will clearly work better, AND maximize the rule of law, while minimizing the rule of men. This exercise is also testing whether or not the modern agency is ready to examine itself without a court case. That's where the modern agency should be going from a populist perspective. But this will be a tectonic change for regulatory culture.

This is an examination (just part of it) of a DNR regulation that conveniently fails to distinguish between public and private property and therefore fails to specify itself for private property in a manner that would be more obviously coherent with the whole corpus of MN law, tradition, or the legitimate expectations of property owners (the people). We can see how the failure to distinguish between public and private property in any regulation, let alone ones that can be made up in the field, is an instantaneous and STRATEGIC REDUCTION OF PRIVATE PROPERTY TO PUBLIC PROPERTY. This is called "socialism".

Think about that. The DNR obviously has not and has no incentive to do so. The application of the lesson is wide-ranging and should be of intense interest to all policy makers.



What the DNR said to me: "2. The buckets or containers can't be directly in contact with the bait or they are considered part of that bait."

My reply:
(A) There are bear hunters, and guides, all over the state of MN, including right here in the Arrowhead STORING bait in non-biodegradable containers on their private property. So the buckets and containers you are referring to here must be ones that are AT the hunting station. That is, the definition of "bait" is "food that is actually at the hunting station". Otherwise you would be ticketing people in Wayzata who are preparing for their bear hunt by storing bait behind the garage. I have bait stored in barrels on my driveway which do not dispense the bait. I take it those are okay. There are bait dealers who have bait stored in large containers on their private property. All of these containers are in contact with "bait" but I know of no one who believes this violates any regulation. If it were wrong to both store bait and have a bait station (hunting station) on the same parcel of private property, you would be keeping me from a use of my private property that you would allow Joe in Wayzata.

What the DNR said to me: "Placed out of contact with the bait on private property they are your equipment...."

My reply: (B) Since storage containers with bait in them are clearly, de facto, okay, this section of your reply must mean that either full or empty containers on my private property are okay. In the case of the former, they should not dispense bait. Here again, the definition of "bait" must be "the food that is actually at the hunting station".

What the DNR said to me: "on public property they are litter."

My reply: (C) This one, of course is easy and blatantly sensible. Whether full or empty, leaving non-biodegrable containers on public land, unattended, is littering.

What the DNR said to me: "The intent is to prevent litter and trash from ending up throughout the woods."

My reply: (D) That is, the intent to is to keep people from littering, which, by definition is leaving this junk on public property. On private property, as noted above in (A) and (B) above, it is not litter. Bottom line: You want my storage barrels, at my bait station (hunting station), on my private property, to NOT dispense the bait, just store it. The bait itself, should be on the ground or in biodegradable bags and not touching the storage barrels. So if I keep my storage barrels a few yards away, NOT dispensing bait, they're okay. Correct?

I never got a reply to my conclusion that I should be able to store bait, on my private property, just feet away from the "biodegradable" bait station on my private property.

You can see, that if the DNR had agreed, or ever does agree, with my perfectly rational conclusion, the next step is point out how utterly absurd it is to recognize my right, as a property owner, keep the bait storage barrels wherever I want, but NOT allow them to dispense bait. It's just silly, bureaucratic nonsense. People have non-biodegradable deer feeders en masse and bears are often interested in the food they dispense. There is simply no consistency here.

Questions the DNR Apparently Refuses to Answer

Here are several policy and practice questions concerning certain bear hunting regulations.

I have asked the DNR for the answers to these questions in writing because they will be posted to this public blog. So far I have received no response.

And, I have asked the agency to please NOT take the liberty of addressing all of these questions together in one policy statement that could only, therefore, be relatively abstract. We need the answers question by question. The whole point here is that the regulation addressed below by these questions is not specified enough.

Alternatively, the DNR could take the position that it is the natural and appropriate behavior of a modern regulatory agency to leave its regulations unclear, incoherent, or even irrational, until they are reformed by court tests or legislation thus maximizing the discretionary power of the agency for as long as possible.

That answer too, of course, would be posted on this public blog.

The rule of law seems to imply simplicity, clarity, coherence, and rational purposiveness.

Here are the so-far-unanswered questions:

1. The DNR regulation prohibiting the use of non-biodegradable containers at bear bait stations does not appear to distinguish between private and public property. Is this distinction in fact lacking in the regulation?

2. Is the purpose of the prohibition on the use of non-biodegradable containers on public land to prevent, in effect, a private use of public land – the storage or dumping of anything, including bear bait in containers?

3. The bear hunting regulations apparently allow for “attended” non-biodegradable containers on public land. Are non-biodegradable containers on private land NOT considered attended, and, if so, why not? What is the definition of “attended”? Why wouldn’t containers be considered “attended” on private land by definition?

4. Is storage of bear bait on private property in non-biodegradable containers prohibited altogether? If not, why would the DNR take an interest in precisely where those containers are on private land? Where does the DNR’s power to regulate this come from?

5. If the storage of bear bait on private property in non-biodegradable containers is not prohibited, why would the use of non-biodegradable containers be prohibited specifically at a bait station on private property?

6. A Conservation Officer has provided an ad hoc opinion that property owners should keep their non-biodegradable bear bait containers “at least” 100 yards from a bait station on private property. Is there a foundation in law for this, or is this just an exercise of discretionary power? If it is the latter, please identify the state law that gives the DNR this specific power.

7. If property owners otherwise have the right to deploy non-biodegradable containers on their private property, what purpose is served by requiring substantial separation from the hunting station? Does this, for example, serve the purpose of making it harder for them to resupply the station? What, in turn, would the purpose of that be?

8. If someone had only one acre of private land to both store bait on and hunt on, would this 100 yard ad hoc standard still apply?

9. Is it the goal of DNR regulations to make both the access to and difficulty of bear hunting equivalent between all hunters? If so, how could this be accomplished without interference to an absurd degree? Someone might have private land full of bears. Very few have that advantage. Someone might have a better gun and be a better shot. Only some can afford better bait. And so on. Is adding 100 yards of difficulty to the resupply of a bait station on private land, meant to level the playing field? What would the purpose of this be?

10. If the separation of bear bait storage barrels from a hunting station on private land is meant to simply make things more difficult, would one be violating your goal by using an ATV, which is also only allowed on private land, to bring the bait to the hunting station?

11. In prescribing the location of non-biodegradable containers on private land, the DNR is clearly intruding upon the details of the deportment of private property. Is this the intent? If it is not the intent, why is it happening?

12. Does the DNR disagree that the details of the deportment of containers on private property would normally be regulated by the city and the county, and not the DNR?

Protecting the Majority from the Bureaucracy

The design of this country was originally focused on the need to protect the minority from the majority. But in modern bureaucratic democracy, we need, primarily, to focus on protecting the majority from the bureaucracy. The will of the non-ideological majority, and the will of the bureaucracy, steeped in ideology, is often in conflict. The bureaucracy has primarily ideological grounds for claiming hegemony, including the theory of “expertise” which is now mostly defunct along with rationalism and “scientific certainty”. Populism embraces the will and the wisdom of the people and rejects ideology as the genuinely vicious tool of the elite, applied by the modern bureaucrat (including the legislator, the government executive, and the business executive) to induce the state of fear which founds the bureaucrat’s power. There is always something to be extremely afraid of, according to the bureaucrat, if we allow the majority to have its way.

Global warming, and the vision of ecological disaster generally, is a perfect example of bureaucratic ideology, based on the myth of scientific certainty. It is designed to induce the state of fear, and recommend the hegemony of the elite classes, who position themselves as prophets and saviors, and who create and manage the modern bureaucracy. This performance may become so blatant and melodramatic that it can produce our first example: a figure like Al Gore – a bleeding, pleading prophet of doom who implores the majority to crown him with the authority to make it all right.

Some layers of this modern panoply of fear and anxiety are less dramatic than others, but may be even more important to the common man by virtue of controlling the details of his daily existence, in which, in his state of relative innocence, he places great significance and sentiment. The most important example is the significance the common man places in having and controlling his own castle. This control, including the emotional investment in it, is the state-inhibiting characteristic which the left, above all else, hopelessly dreams of rooting out of nature. If it could root this natural craving out of the majority, the state would be in a position to control the totality.

The control of private property is worked out in the most quotidian details of “administrative law”, maximizing bureaucratic discretion and chipping away at the majority’s power which is rooted in private property. The bureaucracy need not publicly destroy the idea of private property. All it has to do is incrementally and steadily reduce the majority’s right to use and dispose of private property as it sees fit.

It makes perfect sense that the ridiculous, but very effective application of this sublime stratagem, would turn up in the very bureaucracy, state by state, which lays claim to protecting the whole -- the environment which subsumes all property both public and private and upon which everything temporal supposedly hangs. The increasingly intrusive regulation of the disposition of private property by departments of natural resources and other departments of the environment is a process that seems morally ordinary, even obvious, but which may be used to incrementally strip the common man of his natural vision – the hisness of what is his; his property as an extension of his body and its moral status as part of him. The common man feels that his control of what is his, no matter how modest his holdings, is holy. The brilliant, diabolical strategy, is to get the common man to worship the environment at his own expense. The left writhes like a demon when impressed by the religious doctrine that the world was made for man. It shrieks from the pain of the constraint on the bureaucracy. The modern bureaucracy is possessed by ideology, having started out, in the first place, vulnerable to this possession by nature. It longs for a rationalized foundation for faith in its own claim to power.

In order to protect the majority from the bureaucracy in the modern regulatory state, the ideology itself must be mocked, dismantled, and defied by the people until the bureaucracy is driven to institutional insanity. This is how we regulate the regulators. We drive them insane. Institutional insanity is the public display of bureaucratic frustration to the point of apoplexy. It is the disintegration of the bureaucrat into a grasping wraith who cannot contain his desperation and is outed as such.

This is exactly what has happened to New York Mayor Bloomberg as he has attempted to impose his own desperate will on other states like Virginia, other mayors across the nation, and every American gun owner and dealer. In fact, this is true of the whole community of bureaucrats, public and private, that long to strip the average American of another dramatic constraint on state power – the common man’s guns. Bloomberg cannot dispel his own illusions of power and privilege, and cannot accept the wholesale rejection of his noblesse. In making it clear that he cannot, in his own mind and in his own wealth, be constrained or contained by the Republican Party, the boundaries of New York City, other states, federal law, the administration, the Second Amendment, the courts, etcetera, etcetera, his claim to the rational position becomes a self-satire. It is the implosion of the bureaucrat whose voice is strung high with the tension of being ignored as he declares the danger that only he can eliminate.

This is how God applies justice to the modern ideological agency and agent. Amen.