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.

Will the DNR Hang its COs Out to Dry?

Let me start out by saying that we are collecting information about instances where the DNR has incurred on private property without permission and without a warrant. Send the details to Tomdahlberg5000@aol.com.

The US Supreme Court is more conservative than ever after the retirement of Sandra Day O'Connor and the installation of Chief Justice John Roberts. A delightful sign of where things are going includes the recent reversal of key aspects of the McCain-Feingold act because of its direct attack on our First Amendment rights.

The MN DNR no doubt assures its conservation officers that legal precedent and law in Minnesota protects them when they search your property without a warrant. But it seems clear that the new US Supreme Court would probably take a very dim view of this. If one of these cases was pushed all the way to THE court, MN might be surprised and taken aback again as it was in the Greg Wersal case. (Google "Greg Wersal".) I bring this case up simply because it's one of those instances where the supreme confidence and the patronizing attitude of the MN Supreme Court and its agencies were proven completely naive, blind, and self-serving. The elite will not allow themselves to believe that the people are smarter and wiser. It frightens them too much.

Under federal law (42 U.S.C. 1983), the CO, personally, can be sued if he violates someone's civil rights. Unlawful search or seizure would be an example of this.

http://www.law.cornell.edu/uscode/html/uscode42/usc_sec_42_00001983----000-.html

The 4th Amendment to the US Constitution reads:
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Prima facie, both the searching of our private property without a warrant and the data privacy laws protecting the anonymity of disgruntled neighbors violate the 4th Amendment. (Citizens are obligated to report real crimes and then face the accused. It's a duty of citizenship. The "Data Privacy" laws encourage unaccountable, anonymous harassment. Citizens should take responsibility for their accusations, otherwise we encourage big brother surveillance -- everybody spying on everybody for the state.)

In a recent phone conversation with the DNR, an assistant commissioner seemed to make a point of the idea that enforcement decisions are really in the hands of the CO in the field. It's up to the CO, on a case by case basis, to decide what to do he told me -- to decide what the law means in a given situation. The regulations are so unspecified that the CO becomes the law. See the other articles on this blog about that problem.

COs are adults of course, and have to decide what's right and what's wrong, and which side they are on in the long run. No one will be allowed to just sit on the fence in the long run. And this is exactly the message that COs should be sending to the head office. Is it conceivable that the guys in the head office will just hang their enforcement officers out to dry by insisting that they are the ones who really make the decisions and have therefore decided on their own to violate someone's civil rights?

If I was a CO in MN today, or any state, I would start refusing to search anyone's private property without a warrant no matter what sanctions the head office might impose upon me. With the Supreme Court we have today, the wisdom of getting a warrant every time, is perfectly obvious.

How I Learned My Lesson: My DNR Story

In August of 2007 the DNR searched my property without a warrant, while I was gone, and subsequently fined me for feeding bears out of season.

I believe they were tipped off by a trespasser who obviously, and pompously, believed he knew my intent better than I did. Of course, MN "data privacy" laws protect the identity of my accuser notwithstanding the Constitution. But that is another topic.

I had food of a type attractive to bears, as well as deer, 273 (the DNR's measurement) feet from my bear hunting station which was absolutely clean. The bear baiting season had not begun.

The DNR regulation governing the feeding of bears, reported in the winner's notification handbook for years, does not clearly distinguish between feeding stations and hunting stations. It states that a bait station, defined as a place where one intends to hunt, must be 300 feet from where bears have otherwise been fed. This has often suggested to bear hunters, like me, that one can feed the bears at bear feeding stations, as long as they are 300 feet from where one intends to hunt. The failure in the report of the regulation to clearly distinguish between feeding stations and hunting stations, and then prohibit both, is a real source of confusion.

Here's 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 make a simple logical substution of the semantically equivalent phrase, i.e. the definition provided in (A) for the phrase “bait station”, regulation (B) then 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 wonderful 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).

And of course, there is a de facto distinction between hunting stations and feeding stations which serves as the obvious background of this interpretation of the regs.

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?

Although I was actually ticketed for a violation that the language of the regulation, as it is reported in the handbook, does not clearly imply (the prohibition of feeding bears out of season altogether), the 300 foot rule was so clear, that I was happy to pay the fine at the time. I felt it was my responsibility to make sure that my feeding station was at least 300 feet from my hunting station. I respected that clarity even if the violation was therefore based on a technicality of 27 feet.

But subsequently, I realized that even the CO's decision about what constituted feeding bears was completely discretionary. I had dumped left over bear bait from the last year's hunt at the location in question which I had otherwise believed was 100 yards from my hunting station.

The intent was to attract any wildlife -- bear, deer, pine martens, ravens and squirrels for that matter, for viewing from my back windows. This feed was primarily granola, and the deer ate it as avidly as the bears. The CO decided it was bear feed because it had a few candy hearts in it. But what if it hadn't? She could have still decided it was bear feed because, of course, the bears will eat almost anything! It was up to her discretion. I could have insisted that it was deer feed (I knew it would primarily attract the does on my property and that the bears rarely showed up within such clear site of the cabin) and she could still decide either way. The facts of the case, including intent, made the charge of non-compliance discretionary on the CO's part, not compelled by clarity in the regulation or the the defacto enforcement practices of the agency which allow wildlife feeding in general. When I ruminated upon all of this, I realized we have a problem with DNR regulations. I realized why, in spite of the failure to keep my feeding station another 27 feet distant from where I intended to hunt (and often fed the deer as well as the bears) the whole experience seemed disturbingly arbitrary.

If you take a look at the article in this blog about the "Rule of Law Test" you'll see how I realized that in the end, the conclusion that I was not in compliance, was really completely discretionary on the part of the CO because of the vagueness and obscurity of the regulations and because of the de facto legality of wildlife "feeding stations". Curiously, the DNR admits to this discretionary approach. An assistant Commissioner explained to me over the phone that a charge of non-compliance is really up to the CO on a "case by case basis". The agency takes this discretion for granted. When I brought up the rule of law, my comments seemed to be zooming over his head.

Apparently this year's regulations (2007) about deer baiting are another demonstration, according to recent news stories, of the the agency's mediocrity with respect to drafting something clear and simple. The 2007 deer baiting regulations have inspired a lot of phone calls to the DNR by confused deer hunters. Par for the course.

I am thankful for these events because it drew my attention to how completely unspecified, unclear, unnecessary, and even irrational some DNR regulations can be. In analyzing the bear baiting regulation, I began to realize that the most important fault in the regulation was that it failed to distinguish, probably by design, between private and public property. An analysis of the implications of this regulation, insofar as it does NOT distinguish between private and public property, teaches us that it is a direct attack on property rights. Any regulation that conveniently fails to distinguish between private and public property results in a strategic reduction of private property to public property. That is, from a regulatory perspective, no differences are allowed. This is called "socialism".

In general the lack of specification in any regulatory regime maximizes the discretionary power of the agency and minimizes the rule of law. As the DNR and I went back and forth about what would guarantee my future compliance on my private property as such, increasingly absurd conclusions on the part of the DNR began to accumulate. Without the distinctions that would specify the regulation and turn it into good law, it degenerated into arbitrary nonsense that had to be invented by the CO off the top of her head. What else could she do? Once again, the whole paradigm is in direct conflict with the rule of law. See the other articles in this blog for more analysis.

One example of a patent absurdity, imposed arbitrarily by the CO, based on this failure of a distinction between public and private property, is that in my back yard, on my private property, I am not even allowed a small plastic device that drips bear lure at my bait station, on the grounds that it is not biodegradable. Remember, this is my private property we are talking about where I otherwise have the right to have all kinds of non-biodegradable equipment just yards away from the food! I have an equipment box, a non-biodegradable blind, a non-biodegradable platform for the blind, and so on.

Another example is the arbitrary decision that my bait storage barrels had to be 300 feet from my bait station. So on the one hand, I have the right to store bait in non-biodegradable containers on my own property, but I can't have them close to my hunting station. Remember, this is not a littering issue. This is my private property. What's the point?

Although in the whole corpus of MN state law, there is no prohibition on my storing unthreatening things, like bait, in non-biodegradable containers, this obvious use of private property was nevertheless in danger when the CO opined that the containers must not be in contact with the bait -- the very thing I was storing. In other words, the DNR was so intellectually disengaged, that if I had taken its instructions literally, even this common use of my private property would have been prohibited by the instructions I was being given.

By failing to clearly distinguish between private and public property, bait storage, and feeding stations, and feeding stations and hunting stations, the lack of specifity and clarity in the regulation puts the CO in position where absolutely absurd conclusions can be imposed on a "case by case" basis. The rule of men, as opposed to the rule of law, will always become this dangerous -- and silly.

I actually had to point out to the regulators that storing otherwise legal substances in non-biodegradable containers is a common use of private land, and that if the CO meant that this sort of thing was prohibited a lot of people were about to get fined -- especially all the bear guides with their storage barrels deployed on private land. Or someone storing bait behind their garage in Edina.

I got nowhere by pointing out to the DNR that my hunting equipment, on my private property, including a blind, lights on a pathway, an equipment box, and so on, were not biodegradable, and rested very close to the bait station. Why would it make any difference, on private land, if we added non-biodegradable bait containers to that list of equipment? And if it was not right in the first place to have such containers around, why would it help to simply stipulate that they must be any given distance, on my private property, from where I was hunting on my private property?

Obviously, the point of the regulation, insofar as it is reasonable and necessary, is to prevent the littering of public land. By failing to make a distinction between public and private property, a series of ad hoc regulations was being created on the spot, by the local CO, which could NOT avoid becoming absurd. There was really no practical, rational point to them at all.

It's up to you and I, as the people of Minnesota, to change this. The lesson is simple and clear. By failing to specify its regulations, and in particular, by failing to respect the distinction between private and public property, the modern regulatory state maximizes it's discretionary power and minimizes the rule of law. This involves blatantly absurd, arbitrary, and irrational outcomes inherent in the rule of men. Alternatively, the specification of the regulations, starting with key distinctions that protect existing rights and enforce coherence with the rest of the law, will not threaten the success of our natural resources management. It will simply guarantee the rule of law.

See the article in this blog on the "Rule of Law Test" to see how we, the people, can begin to manage the whole bureaucracy back to sanity.

Joe Socrates and DNR Dave Talk about the Second Amendment

Joe has been mulling over DNR regulations constraining his Second Amendment right to self-defense and wonders if DNR Dave can help him understand why the agency is attempting to regulate that right as such.

Joe:
Dave, I've been looking over this regulation which prohibits me from carrying a hand gun, or any gun, while I am bow hunting for deer. I think it raises a lot of questions about the agency's role in my life and, of course, I'm wondering if this is a truly rational policy.

Dave:
No doubt!

Joe:
But in order to start our dialogue, I think we have to lay down a solid foundation about the Second Amendment. By this I simply mean that I hope I won't have to argue with you about whether or not the second amendment protects an individual right. If it did not do so it would be the only right in the entire bill of rights which is not an individual right. The scholarship seems to be predominantly in favor of the conclusion that the Second Amendment is an individual right, and based on that, a federal court in Washington DC, just this last year, has ruled against the District of Columbia, which was petitioning to retain it's anti-gun laws. That was Parker v. District of Columbia. The court actually said in its decision that the Second Amendment protected the individual right of city residents to protect themselves with a fire arm. Perhaps it's worth mentioning that even the New York Times has been professional enough to report that erstwhile liberal scholars, like Harvard Law professor Laurence Tribe, have come to understand that the Second Amendment has always, and was always meant, to protect my individual right to keep and bear arms.

Dave:
Joe! You are insulting me. You don't have talk to me like I am some kind of fascist! I am a firm believer in your individual Second Amendment right to keep and bear arms.

Joe:
My apologies my friend. I should have known. But we haven't talked about this before.

Dave:
You are forgiven. But you WILL have to explain to me why you think that any DNR regulation interferes with that right, or is otherwise irrational. Because I don't see that yet.

Joe:
That is exactly what I intend to do. The taking off point is this blatantly irrational regulation which prohibits me from carrying, say, a hand gun with me while I bow hunt for deer. Where I bow hunt for deer there are wolves, bears, moose, including mean cows with calfs, and a cougar. Frankly I am not very concerned about the wolves and bears, although I have been bluff charged by a black bear and consider them very unpredictable. I am especially wary of the cougar after bloodying up a deer with an arrow and advertising the kill. The cougar has no compunction about stalking either the deer or me for food after tracking to the blood.

Dave:
All right. I hear you. I don't think it's for the DNR to decide whether or not there is risk here. How could we know? I can't know what you might run into out there, including a crazy person. After all, that happened big time in Wisconsin just a few years ago. So I would not try to argue that it's the business of the DNR to deny any need here.

Joe:
Excellent. That is entirely rational of you. You are at least admitting that you cannot guarantee my safety out there. Neither can any government unit. Only I can do that, or at least leverage it, by carrying a gun.

Dave:
Yes, we remain on the same page. The agency isn't God. We won't promise you that you won't need a gun. But, in the case of bow hunting, you have to admit that we have not left you unarmed. You have the bow and arrows.

Joe:
But if you would allow me to kill the cougar with the bow and arrow, why not a gun? In other words, as soon as you've admitted my right to self-defense, why try to constrain the convenience and effectiveness of that defense? The key point here is that you have admitted to my right to self defense? Why inhibit it?

Dave:
Because the gun makes it so easy for you to poach a deer.

Joe:
Ah! So you are in agreement that the gun is in fact a much easier, more effective weapon than the bow! Better for self-defense by far! If it's more powerful and easier to use for the deer, it's obviously very much to be desired for use on the cougar.

Dave:
Hm. Well, I would have to admit that people are rarely good enough with their bows to react quickly and effectively if anything charges them -- let alone a cougar. I guess that's what you are getting at presently. It's probably phony on our part to take the position that the bow actually realizes your right to self-defense in the woods or anywhere else. The gun is the great equalizer. Without one, most people are just NOT going to deal effectively with a bear charge, or a cougar charge, let alone a cow moose trying to stomp them into the dirt. Besides, the gun just makes them more confident and comfortable, which is a good thing in itself.

Joe:
Exactly. When you prohibit the bow hunter from carrying a gun you are effectively taking away, on average, his right to self-defense. But remember, even if I was the best shot in the world with a bow, at short notice, you have already agreed with my right to defend myself, so why choose the weapon for me? If it's okay to kill a charging bear, why not let me do it with my gun?

Dave:
Well, in this case, as I said before, I just don't want it to be easy for you to poach a deer.

Joe:
But out of season, I could poach a deer with the bow, right?

Dave:
Right, but I'm not following you yet.

Joe:
Well, when it comes to poaching, what's the real issue? The poaching itself, or the weapon used?

Dave:
Well, the poaching itself of course.

Joe:
Well, in that case, if you really wanted to make all poaching difficult to engage in, you would not allow people to carry either bows or guns into the field at all out of season. You see what I mean? I am currently allowed to carry my hand gun for protection in the woods just about any time I want, except during bow hunting season if I am bow hunting. Correct?

Dave:
Yes. Well there's another period just before rifle season I think, but not even I understand that regulation, and for the sake of this argument I don't think it matters. Yes, you can carry a gun in the woods during periods when there is no hunting season. And I can see that since you can carry a gun even during bow hunting season, if you do not also have a bow, the idea that we have in any way inhibited the temptation to poach with a gun during bow hunting season, is just nonsense on the face of it. I just thought of that because I remember that I have never ticketed anyone for carrying a shotgun, with slugs on the side for self-protection, or a hand gun for self-protection, while they were grouse hunting. Hm. This inconsistency is so blatent it's embarrasing.

Joe:
I know what you mean! If the argument for not allowing me to carry a gun during bow season is that it makes it more convenient for me to poach, then why would you allow me to carry any weapon, let alone the gun, in the woods, in or out of season? Doesn't this make it equally convenient for me to poach?

Dave:
Yes, it obviously does.

Joe:
So why, if I can carry the gun at all in the woods, supposedly tempting me to poach deer fifty-two weeks out of the year, would we think it was so important to NOT allow me to carry it, in support of my right to self-defense, just during bow hunting season? Remember, I can carry a gun in bow season if I don't also have a bow. Why bother with the bow anyway if I'm going to poach?

Dave stitches his brow in his usual fashion. Suddenly a light goes off in his eyes.

Dave:
Let's slow down. I think that when you're bow hunting, it's even more tempting to use the gun to take the deer.

Joe:
You've got to be kidding.

Dave:
No, I'm not.

Joe:
Dave, are you telling me that you can't predict the obvious reply to this?

Dave:
No I can't.

Joe:
Well that explains why DNR regulations are sometimes so irrational. Just a pure lack of analysis. Just intellectual laziness. Come on Dave -- you predict the reply and prove that the DNR can actually engage intellectually and analyze this junk before it becomes law -- before we have to analyze it for you.

Dave looks down thoughtfully.

Dave:
Okay. I guess on the face of it, our attempt to estimate degrees of temptation that might apply in any given situation would be pretty subjective, maybe even silly, and not worth the constraint it puts on law abiding citizens. I mean, if you have deer coming to your back door every day out of season, and you have your guns right in the house, it's probably even more tempting to down one than when you are sitting in a stand with a gun as well as a bow. The convenience of poaching might be more intense in any number of situations than it is just during bow hunting season. In fact it might be considered more convenient without the cover of bow hunting. But we're not keeping you from your guns in those contexts. If we were consistent in our ambition to manage temptation we would be trying to dictate every minute, every conceivable situation when you could have a gun. That's what anti-gun nuts do.

Joe:
Good work. Does the DNR actually propose to make regulatory law based on subjective generalizations about the temptation to break the law? This isn't the role of government. Your job is to make clear, simple laws. It's not your job to engineer my individual context or the degree of temptation that I might or might not be subject to. It's all too relative and complicated. You manage the law, not my feelings. Not my temptations. The plain fact of the matter is that law abiding citizens are never going to shoot a deer with their guns while bow hunting. And poachers will shoot the deer no matter what, in any number of contexts. Government is not here to fine tune the details of my life so as to engineer lesser degrees of temptation. The whole project is implicitly based on authoritarian, even totalitarian theory. You should not be taking away my second amendment rights just because you have an utterly controversial, non-verifiable theory about how to manage my individual level of temptation. Can you imagine what would happen to our otherwise free society if this approach was applied carte blanche? People would not be allowed to live! Life is brimming with temptations, every day, every hour, to break the rules! The law cannot manage this even in principle and shouldn't try. The project would violate our rights twenty-four hours a day. And that is exactly what this regulation does! It violates my right by trying to manage my temptation. It's political nonsense based on a dangerous legal theory.

Dave:
Obviously the simple law prohibiting poaching and specifying the punishment, is the government's legitimate method, and should be the only method used to repress the poacher's temptation. Law abiding citizens don't even have the temptation. It's not helping therefore to remove the rights of the law-abiding.

Joe:
Exactly. Once again, the regulation under examination seems to be irrational and inconsistent not only with our Second Amendment rights, but with the rest of the law, which allows me to carry a gun in any number of contexts where the temptation to poach might be even more severe for all you know.

Dave:
But wait a second. I just thought of one good reason why we would not want you to carry a gun while bow hunting, which is not some silly, illegitimate attempt to manage your degree of temptation, let alone measure it in the first place. Isn't it easier for us to know that a poaching has taken place out of season, than in season? I mean, during bow hunting season, people can openly transport deer, so it's easier to poach. Out of season, we have the advantage of the poacher not being able to display the game openly. If we see it, we know we got a poacher. In bow hunting season, it's very hard to get evidence of the crime because the poacher could run an arrow through the gun shot wound, or obscure it when dressing the animal out. During bow hunting season, just seeing the animal is not enough to know we have a poacher.

Joe:
Even if there was a forensic advantage -- and I think you'll see there isn't -- would it be worth taking away my Second Amendment rights? In America we are constantly constraining forensic advantages and processes in order to protect people's rights. I mean just the constitutional prohibition on search and seizure is a huge constraint on the forensic process. So even if I thought it was true that there was some meager forensic advantage to the policy I could probably convince most people that it isn't worth it. It simply cannot even in principle trump a right under our system.

But there is no forensic advantage. You said it yourself. It may be easy to obscure a gun shot wound in a deer anyway, during bow hunting season. So what you are saying is that this is a non-operational forensic method in any event. So we're back to just the argument about trying to constrain the temptation. There's no forensic advantage in effectively taking my gun away from me during bow hunting season, because poachers, who will shoot the deer whether or not this regulation is in place, can always obscure the gun shot wound, making it of no forensic advantage to restrict anyone from carrying a gun during bow hunting season. If you are going to allow the bow hunting at all, and therefore the unsuspicious appearance, in public, of deer carcasses, then the prohibition of the guns is not going to result in any added forensic advantage. You have simply given up the forensic advantage by having the season in the first place. During deer hunting seasons, the forensic advantage of any dead deer being evidence in and of itself, disappears. No real forensic advantage is afforded by taking away the guns of law abiding citizen's during bow hunting season.

Dave:
And it occurs to me, that during rifle season, a poacher will shine a deer and shoot it with a gun of course. We'll never know that the deer was actually poached after dark from a purely forensic point of view. I just mean that this is another example of giving up on forensic advantages the moment we choose to allow hunting activity at all. The only effective way to disincent the poacher, if we think it's all about temptation, is to have no hunting seasons at all, because the most obvious and useful evidence of poaching, is always just going to be a dead animal out of season. Even then, it can get difficult.

Joe:
Exactly. So making things overly complicated, or overly restrictive for law abiding people, when there is little or no enhancement of the forensic process, makes no sense at all. And remember, even if it did, a right is a right. A free society pays a huge price in process for freedom. I can only assume that we all agree that it should do so.

Finally Dave, let me ask you this: Why would the DNR want to get involved at all in regulating my gun rights? For example, why even have a regulation that tells me that I CAN carry a handgun in the woods? Why wouldn't I have that right whether or not the DNR says so? In saying so, the DNR clearly implies that it has the right to regulate this. I think the Second Amendment says different. It says I have the right to open carry my gun in the woods no matter what the DNR says. Why would the DNR want to meddle in this by saying anything at all?

Dave:
Well, obviously because it thinks that your right to carry the gun has an impact on the agency's obligation to manage the resources -- like the deer.

Joe:
But now clearly, the regulation asserting my right to carry the hand gun in the woods is there in part as a recognition of my right to do so, correct? I mean it's unlikely that the DNR would have established a regulation that completely prohibited me from carrying a gun in the woods at all except while being thoroughly regulated during hunting seasons. If the DNR had done that, you know what would have happened. The people of Minnesota would have responded, along with the NRA, very, very decisively.

Dave:
I agree.

Joe:
So if the DNR is implicitly recognizing the right with a regulation that permits me to carry the gun, why not simply recognize that it's none of the DNR's business? And what I mean by that, is that the DNR, if it recognizes my Second Amendment rights at all, can keep things simple by not attempting to regulate that right at all -- especially on the feeble theory that it is managing my level of temptation to commit the crime of poaching.

Dave:
Well, it would certainly make things simpler, and clearer, to just keep the DNR out of the business of regulating when people can and cannot have guns in the woods or field. City's obviously have laws that already prohibit the discharge of weapons except in self-defense, and which otherwise support gun ownership. Here again, we may be overreaching. I have to confess, I see no reason for the DNR to be regulating the Second Amendment. All we need to do is articulate clear laws about when it's legal and illegal to take game and in what fashion. If you want to carry a gun during bow season, that should be your business. Just don't use the gun to kill the deer. That's our vested interest. We give up any interest in regulating the right. We stay focused.

Joe:
Exactly. At the end of the day, it's very difficult to identify any value flowing from any approach more complicated than that, which is even remotely worth the interference with the right.

Dave:
As I said earlier Joe. I'm no fascist. I adore the Second Amendment and I believe in your gun rights. So let's work together to reform this regulation.

Joe:
Amen.

Joe Socrates Dialogues with DNR Dave about Feeding the Animals

As usual, Joe has a lot of questions for DNR Dave about some DNR regulations, or the manner in which they are communicated. Joe has been feeding the deer, and discovers that bears are omniverous. They like the deer feed just fine, and even go after bird seed. Trying to keep the beasts and the regulations clear of one another is becoming difficult!

Joe:
Dave, I need to talk to you about feeding the wildlife. I've been looking at the bear baiting regulations in particular, and I don't think I understand them.

Dave:
What seems to be the problem?

Joe:
Well, let's look at the way the baiting regulation is communicated in the winner's notification booklet.

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.

By explicitly defining a bait station as a place where hunting is going to take place, this report of the regulation very clearly implies the other logical possibility -- a feeding station where hunting is not going to take place. In fact, the regulation seems to be regulating the proximity of the former to the latter.

Obviously, food could be put in places where there is no intention to hunt over it. It happens all the time. People feed the deer. They feed the birds. And bears will eat both deer food and bird seed. Apparently there's no regulations specifying the ingredients of bear food, bird food, and deer food.

De facto, there's a lot of wild life feeding going on that the DNR allows for. I think there's an organization that feeds the bears here in Minnesota any time it wants. I don't think they've been fined. There is a de facto recognition, and a common sense recognition, of the distinction between feeding stations and hunting stations.

But I am told that in the formal regulations there is no distinction made between places where one just intends to feed animals and places where one intends to hunt. This, of course, would not resolve any confusion. It's a further cause of confusion.

In logic, we call this an inconsistent triad:

1. De facto and de jure we recognize that some feeding is for hunting.
2. De facto and de jure we recognize that some feeding is not for hunting.

Deer hunting regulations explicitly speak to cleaning up deer feeding stations before hunting over the place where the feeding station existed, clearly exercising the concept of a feeding station versus a hunting station for wild life.

3. We recognize no distinction between feeding for hunting and just feeding.

You can't have it all three ways and call the law "coherent", "complete", and "rational".

Either the DNR needs to make the distinction explicit in the law or shut down all feeding of the wildlife to make things simple and clear, or allow carte blanche feeding of the wild life to make things simple and clear.

Dave:
Wow! Look Joe, we can't just allow anyone to feed the bears and the deer anytime they want. That's obviously too permissive!

Joe:
How is it too permissive? You might allow feeding at any time and not allow hunting at any time over bait for either deer or bear. This would constitute at least a small advance in clarity and simplicity.

Dave:
But that would be too restrictive! We certainly want to let people hunt bears over bait.

Joe:
Well then! Why not just let them?

Dave:
You mean without any restrictions on bait stations?

Joe:
Define "bait stations".

Dave:
It's already defined -- a pile of food where you intend to hunt.

Joe:
Well that's already unrestricted except for timing right? I can hunt bears over bear food in season. Why not just let me feed them even if it's not hunting season as long as I don't hunt over the food? What's the reason for this restriction if there is in fact such a restriction -- which is not clear from the statement of the regulation in the winner's handbook.

Dave:
Well, there might be a couple of reasons. First, we don't want people feeding bears regularly and turning them into problem bears. Secondly, some people will be able to feed the bears more than others -- especially people who live in bear country. This gives them an unfair advantage during bear hunting season.

Joe:
Dave, I believe it will be easy to convince you that both those reasons are pure nonsense -- at least in the sense that they completely contradict the de facto behavior and policies of the DNR. If you don't want the bears fed regularly you should shut down any organization that does that in support of bear research, viewing and appreciation. And you should shut down all deer feeding because the bears will eat the deer food. They even eat bird food. They'll eat just about anything. And as far as the "unfair advantage" is concerned, we've been over that nonsense before. You can't level the playing field even in principle if that means equalizing the opportunity and effectiveness of each hunter. It's a hopeless, left wing, egalitarian vision. And it's not the mission of the DNR to worry about that kind of mythical equality. It's the mission of the DNR to scientifically manage the population.

Dave:
Well maybe you're right. Maybe all the feeding should be shut down, at least out of season because it can create problem bears. Maybe the only thing that should be allowed is bear baiting during the hunting season. And no other wild life feeding at all.

Joe:
So you don't think that baiting during hunting season creates problem bears? Many of the bears that feed at these stations are not shot and killed. And they've been taught that humans may mean food. They know very well where it's coming from. So it seems rather hypocritical or inconsistent to worry over the feeding in general. If you think that feeding bears can create problem bears then maybe they should not be fed at all.

Dave:
We have to control the bear population. In Minnesota you'll never see a bear on a spot and stock hunt. We have to have bear baiting to control the population.

Joe:
Well, you could allow hunting over dogs, but that's another dialogue. In the mean time, if you really thought that feeding bears was a serious source of problem bears then we should not be feeding them at all. Apparently you understand that feeding them during hunting season is a compromise that must be exercised in order to prevent the REAL problem bear issue: WAY TOO MANY OF THEM. The real problem is not that feeding creates problem bears. The real problem is that more and more bears creates problem bears. In fact feeding bears, in order to hunt them, may be a way of identifying and killing the bears with the most potential for becoming problem bears.

Dave:
Wait a second. I just thought of the real problem with unrestricted feeding: It may happen in residential areas. It's probably okay to be feeding bears in the wild, but we don't want this attracting bears to residential areas.

Joe:
Dave, if we have so many bears in residential areas that they are available to feed there, then the management policy has already failed. In that case you'd better allow more and more feeding and more and more hunting in the hunting areas -- that's all. If not, then once again, you'd better shut down all the deer feeding in residential areas. If they're there, and if they are really a problem, they'll eat all the stuff people are trying to feed deer and birds. In any event, what's a residential area? Would you say there are now a lot of homes on the North Shore?

Dave:
Certainly. More than ever.

Joe:
And are these homes in hunting areas, full of bears?

Dave:
Yes, many of them if not most of them.

Joe:
And are the bears not there whether or not they get fed?

Dave:
Yes they are.

Joe:
And are you going to shut down all the deer feeding, or even bird feeding, which could turn bears into problem bears in those areas?

Dave:
I don't think so.

Joe:
So basically in those areas, people have to understand the country they're living in, or they shouldn't be there. There's always the possibility of a problem bear, whether or not the bears are fed, and the bears are going to be attracted to most anything, including the wafting of fumes from my summer kitchen on the porch when I fry bacon every morning. Do you want to shut down my outdoor cooking?

Dave:
No. I wouldn't want to outlaw all the cooking and barbecues in these areas that certainly smell delicious to the bears. And there's no question the bears are right there. If they get hungry enough, whether or not they have been fed in the past, they could get aggressive.

Joe:
So what I'm saying Dave is that you seem to be sweating over the wrong things here. The real issue is not feeding bears in or out of hunting season -- it's just how many bears there are and how many bears there should be in a given area. People who live in bear country have assumed risks that people in the city don't. If bear hunters feed bears outside of the season, and increase the number of bears they take as a result, then that just becomes part of the planning input for season length, season frequency, and the number of animals that can be taken each season.

Dave:
But it's unethical.

Joe:
Unethical?! Dave, this is the height of hypocrisy. How could the DNR sponsor hunting bears over bait at any time, and then take the position that it's unethical to train the bear to the bait? What are you saying? That it's ethical to train the bear to bait for six weeks out of the year, but not any additional weeks? This is pure nonsense. And why would the DNR want to get into the ethics business? Phony ethics is going to get this even more complicated. The state of Minnesota obviously thinks its okay to hunt bears over bait AND EVEN NECESSARY AS A MANAGEMENT METHOD. So the DNR should not be regulating the process for ethical outcomes, just legal, management outcomes. There is only one scientific, not ethical question that the DNR needs to manage to: How many bears do we need to harvest in a given area? There's no ethical question. We have to harvest them to keep everything in balance. We're probably harvesting the potential problem bears in many cases -- eliminating them before they reach the "residential areas". The ethical question exists for the individual hunter, not the DNR. In most cases bear hunters simply don't have a strictly ethical question about bear hunting over bait. Instead, it's more just a question about the quality of the hunting experience: Is it sporting enough for me? This isn't a question that the DNR should wax unctuous about. It's just a question for sportsman about their options for hunting bear. If there is no other option, like hunting over hounds, or spot and stock, we're happy to get what we can from the experience of hunting over bait. By the way, this leads to hunting deer over bait. Ethical objections to that is nonsense as well. The DNR can fold the effects of deer hunting over bait into its management plan. It should be strictly up to the hunter whether he finds this method challenging enough. After all, farmers and other land owners hunt over corn and hay and sunflower seeds -- it's an unfair advantage to those of us in the big woods! Ethically speaking what is superior about hunting a buck that's trained to the corn the farmer left in the field on purpose and me baiting deer in the big woods? This ethics talk when it comes to the hunting method is all just unnecessary, complicating nonsense.

Dave:
I confess I always have thought that the regulations about hunting over agricultural plantings or otherwise baiting deer are a bit dainty. I mean I just can't figure out how to make it all fair and equitable without becoming too restrictive. What are we supposed to do? Make farmers and other land owners clean out all of the natural and agriculture products that make it so easy for them? I can see that we sort of allow some priveleged deer hunters to feed out of season, right where they may hunt, but we don't allow the bear hunters to do the same.

Joe:
That's right Dave. Our current approach is just hypocrisy and exacerbates the lack of a level playing field if that's what you're really aiming for. We cannot level the playing field without taking away freedom. So we shouldn't try to do that. But that doesn't mean we have to exacerbate the lack of levelness by design. Instead we should just increase the overall freedom to hunt.

Dave:
There's still something that irritates me about your arguments which, I otherwise confess, seem to be very rational and compelling. Why is it that we don't hear this kind of stuff from more people? Maybe you're the only one that's unhappy Joe.

Joe:
I'm glad you asked Dave. Let me explain something to you. People aren't stupid. My fellow hunter's aren't stupid and neither are the people in your legal department. Both of these groups of people know that the modern, bureaucratic regulatory regime is geared toward maximizing discretionary power. A regulating agency has no clear vested interest in regulations that are clear, simple, or even rational. It's not that I'm the only one frustrated by complexity, unreason, or vagueness, in the regulations. We all know implicitly what your legal department knows. Only court tests can force the bureaucracy to do what it will not otherwise do voluntarily -- resolve the questions. Why would you expect people in general to bear the expense and the emotional baggage of going to court? Everyone just hunkers down and hopes that the discretionary power of government will not grow.

Dave:
Sounds pretty depressing. But I have to admit, I have nearly as many questions about the regs as you do. And I think I understand our lack of an incentive to clarify things if people don't defend themselves in court.

Joe:
That's right Dave. But there may be a solution yet if you agree that it's immoral and anti-democratic for bureaucrats to maximize their discretion by design -- that it's just plain wrong because it serves the bureau and not the people.

Dave:
What's that?

Joe:
The people don't have to take the DNR to court to get relief. We can use the alternative media to expose this stuff and put pressure on the legislature to recognize the relief needed. I believe that the legislature -- people we actually elect -- would take an interest in this problem if we the people start using the alternative media to expose it daily.

Dave:
Sounds democratic enough. I guess I'm comfortable with that.

Joe:
Excellent. A sure sign that you are not interested in power, but in serving the people. We'll have to make sure that we keep you moving up the ranks! But here's one more idea about how to turn things around which is an extension of the people coming together over these regs right on the internet. We should have a law that requires the DNR to submit to arbitration when an accused voluntarily pays a fine. If the accused is convinced the regulation that got him is vague, irrational, too complicated, or otherwise gives the DNR too much discretionary power, the accused can demand, after paying the fine, that a neutral, objective arbitrator review his concerns with the regulations. The arbitrator, if convinced that the accused has identified a problem, can then order the DNR to revise the regulations to be reviewed by an administrative committee appointed by the governor. By law, the committee would be charged with advancing the simplicity, clarity and coherence of the regulations and reducing the agency's discretionary power. The committee would have the power to put the new regulations into force.

Dave:
Hm. Sounds like the committee would be relatively left or right winged depending upon the adminstration.

Joe:
That's true. But remember its a new degree of oversight by the people most affected and elected officials like the governor. So it's a step in the right direction. And remember the law would commission the committee with reducing discretionary power as a goal that both democrats and republicans should agree on. In any event, it would smoke out legislators and others who want to keep increasing the discretionary power of government.

Dave:
I wouldn't mind these regulatory reviews at all if it will make my life simpler. As you know Joe, I don't want any arbitrary power over anyone. I just want to enforce clear, coherent, and just laws.

Joe:
I know my friend. This would make it easier for you in many ways. But we'll have to detail this another day. I have to put some deer feed out so the bears stay away from the blueberries right in my back yard. I don't want them to become a problem. So I have to feed them. Or, do you think I should just destroy the blueberries in my back yard?

Dave:
Not at all Joe. I've tasted your blueberry pie!

DNR Announces New Policy Impacting Your Private Property

The MN DNR just announced a new policy/regulation yesterday via email to me. If they don't want this sort of thing announced in places like this first, they'll just have to come up with a more rational, controlled process.

Since I am sure that the DNR wants to avoid discrimination, it must want this policy to apply to everyone. So the decision needs to be announced publicly even though it was made up instantly right in the field.

By the way, I would never blame the conservation officer for making up the policy subjecting me to the rule of men, not law. Since the regs are not clear, or even rational in some cases, and since the legal department may be slow in responding, what can the field officer do except tell you, directly, what to do? In fact, I am increasingly convinced that both the conservation officers and we, the people, are victims of the natural tendency of any government unit to assume power through fog. The field conservation officers have a rough job, made rougher by regulations that may be irrational, ambiguous, over complicated, overly intrusive. See the other postings in this blog. Don't ever imagine that I am criticizing the field officers in this blog. I am blaming the DNR leadership. I also think the legislature is responsible. The legislature should make sure that the DNR is actually serving people, not lording it over people.

My property was searched by the DNR, while I was not there, without a warrant. I wonder if the DNR even asks its trainees to read the constitution. I take it for granted that DNR lawyers would dismiss out of hand the idea that there is any constitutional violation. But in the end, all that matters is whether or not we, the people, think there is a constitutional violation. If the legal department does not convey concern about unwarranted search and seizure to the officers in the field, then why would they worry about it?

And if the the DNR, as a consequence, starts meddling in the details of the deportment of my private property, maybe the only solution will be legislative.

The new policy is that if you are hunting bear on your private property, you will have to move non-biodegradable bait storage containers at least 100 yards from your hunting station. This ad hoc policy results from two inputs:

1. The regs do not distinguish between private and public property when prohibiting unattended and non-biodegradable bait containers.
2. Of course you can still have non-biodegradable containers on your private property.

So the idea is that the containers must be far enough away from a hunting location on private property so as not to be mistaken for a bait station.

Now on the face of it, the farther away these containers are from one bait station, the more likely, it seems to me, they would be mistaken for another bait station. So is this a another irrational policy? Once again, don't blame the field officer. What can he/she do without rational regulations to begin with?

Here's a few other problems:

What if someone has only a few acres of private land? What if they don't have 100 yards to separate the containers from the hunting station? Or, what if this new rule would necessitate placing the containers someplace far from the driveway? My barrels are 400+ pounds. Are people supposed to move that sort of thing into the brush on the far corner of their property by hand to squeeze out 100 yards of separation? If the private property is next to public property should the hunter move the barrels onto public property to comply with the new regulation? Is it okay under these circumstances to in fact leave non-biodegradable containers on the public land? Which reg trumps which reg?

Obviously what's happening here, by virtue of naturally craving a hands-on approach to private property, the DNR ends up meddling in the details of the deportment of our private property. The DNR should have nothing to say about where I store bait on my private property. As soon as it thinks it should have something to say, the intrusion starts to grow.

Some people rightly complain that the government should stay out of their bedrooms. I feel just as violated by an agency that will search my property without a warrant, when I am not even there, and which starts handing down ad hoc policies about the details of the deportment of my private property. This is NOT working. And the people need to do something about it.

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!