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.
Showing posts with label bear hunting. Show all posts
Showing posts with label bear hunting. Show all posts
Friday, August 31, 2007
Tuesday, August 21, 2007
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!
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.
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.
Monday, August 20, 2007
Joe Socrates and DNR Dave Talk about Rational Distinctions and "Leveling the Playing Field"
If DNR regulations fail to distinguish between private property and public property doesn't that reduce private property to public property? Does the DNR avoid this distinction by design to increase its descretionary power over activities on private land? And, in turn, is this all about the myth of "leveling the playing field"?
Joe Socrates is a new bear hunter who owns private property in the MN arrowhead region. He wants to make sure that he is compliant with the DNR regulations so he asks for clarifications of the regulations, confident that the DNR believes in the rule of law, not man. Of course the rule of law requires laws and regulations that are clear and distinguished -- regulations that recognize logically and contingently possible distinctions like that between private and public property. But these kinds of distinctions tend to eliminate a great deal of DNR discretion. Maybe one day we'll get there.
Joe:
I want to set up a bear hunting station on my private land. I have lights I've wired up near my bait station so I can gut the bear in tbe dark in case I down it late in the day, and since it's my private land I've got barrels at the station storing my bait. I figure if its legal to have bait barrels anywhere I want on my private land to store bait, it should be okay to have them at the station even though they are not biodegradable. Obviously I am not creating a dump on public land. What would be the point of prohibiting them at my bait station if I can have them anywhere else on my private land?
DNR Dave:
Well, the lights sound okay, as long as you don't use them to shine or view any game after dark. After dark, for gutting game, they're no different from flashlights in their function. But I don't like the barrels. The regulation prohibiting non-biodegradable containers at bait stations doesn't distinguish between public and private land.
Joe:
Hm. Well, maybe it should. My lights are not biodegrable. If biodegradability is the issue, and if I can have the lights wired up anywhere I want on my property, as long as I don't use them to shine game then why can't I have the pails or barrels at a hunting station on my private land?
DNR Dave:
All I know is that the regulation prohibiting non-biodegradable containers doesn't distinguish between private and public land. So you shouldn't use them.
Joe:
Hm. Don't you think the failure to make the distinction between stations on public land and stations on private land, leads to irrational consequences and arbitrary power?
DNR Dave:
I'm not following you.
Joe:
Would you agree that I am clearly not otherwise prohibited by any unit of government from neatly storing bait in barrels anywhere on my private property as long as they don't house some toxic substance?
DNR Dave:
Yes, that seems to be the case. And I wouldn't expect you to store it anywhere else. We certainly don't want you storing it on public land.
Joe:
So what would be the point of keeping me from storing it right at my bait station, on my private property?
DNR Dave:
Well, the regulation just doesn't make the distinction.
Joe:
And you think this lack of a distinction is rational?
DNR Dave:
I don't see that it's irrational.
Joe:
Okay, in reviewing all laws and regulations there's one question which initiates the test of reasonableness, that is, non-arbitrariness: What is the purpose of the law or regulation? What public good does it engender? What public good results from my not having my bait storage right at my bait station on private property?
DNR Dave:
Well, it levels the playing field. People without private property have to carry their bait in.
Joe:
So you think its important for me to have to carry my bait from the containers to the hunting station just to make it harder for me?
DNR Dave:
Well, I don't think it's just about making it harder for you. That's not a public good.
Joe:
Well then what is it?
Dave stitches his brow, and Joe decides to help him with the logical possibilities.
Joe:
All right. Let me ask you this: How many feet from my hunting station should my bait barrels be in order NOT to be considered a part of the station? Five feet? Twenty feet? One hundred feet?
DNR Dave:
Well, I would think they would have to be a ways a way so it's clear they are not a part of the station.
Joe:
What's clear? One foot is clear to me as long as the bait is on the ground. Is that good enough?
DNR Dave:
Let's say 100 feet!
Joe:
Who says 100 feet? You? The guy in the back room? Is this part of the law, or are you just making this up as you go? Is this real law, or just someone's arbitrary invention?
DNR Dave:
Well, I have to agree that any distance would seem to be arbitrary.
Joe:
I have to agree, unless the purpose of the distance is just to make it harder for me to carry the bait. Is that the purpose of this new instant rule? To make it harder for me and "level the playing field?"
DNR Dave:
Do you have an ATV?
Joe:
No.
DNR Dave:
Well, it would be easier for you if you had an ATV. You can use that on private land to carry your bait the 100 feet. I would be happy to let you do that.
Joe:
Fortunately, I don't think you could prevent that on my private property and I really don't think your legal department is that bananas. So the purpose of this instant regulation is NOT to level the playing field, because it wouldn't make it so hard if I had an ATV anyway?
DNR Dave:
No I guess it wouldn't be the rational purpose of the distance to level the playing field. People with ATVs will have it easier than you. Or if you had one, you could use it.
Joe:
So once again, what is the rational purpose if this new, instant regulation?
Dave stitches his brow obsessively.
Joe:
All right, let me ask you a more general question then Dave, as long as we're on the subject. Why would the purpose of any of your regulations be to "level the playing field"?
DNR Dave:
I don't understand. Obviously we want our hunting policies to be fair.
Joe:
That's a nice motivation. But how could you ever succeed in leveling the playing field? Not only do I have private property with a lot of bears on it which most bear hunters don't, I have a better gun. I'm also a better shot than most. My blind is more expensive and more comfortable. My lights make things easier. I can afford better ammo. I can afford to hire baiting help. I have more time to read about best bear hunting practices. I have blueberry's surrounding my hunting station. Do you want to somehow start regulating all of those advantages to suppress them?
DNR Dave:
Certainly not. This is America!
Joe:
So the purpose of not allowing me to have bait barrels at my bait station on my private land, is NOT to level the playing field?
DNR Dave:
Well, I confess that would not appear to be a rational, or realizable purpose for the policy.
Joe:
I agree. So what, pray you, is the rational purpose of not letting me have barrels, at my bait station, on my private land?
DNR Dave:
I've already told you: The regulation simply does not make that distinction.
Joe:
I don't think you're following me yet Dave. You agree that I have the right to neatly store bait anywhere I want in barrels on my private land?
DNR Dave:
Yes, I agree.
Joe:
And you agree that there is no clear purpose to making up a rule requiring those barrels to be some distance from my station to make it harder for me?
DNR Dave:
I agree.
Joe:
So why don't you simply take the position that these barrels, on my private land, are simply not regulated by the DNR? That although the regulation does not make the distinction, DNR regulations do not preempt existing rights and priveleges on private property to be using barrels wherever the county or city otherwise let's the property owner use them? Or better yet, why not simply regard such barrels on private property as being "attended" by virtue of being on private property? If I wanted to spend the money on a court case, there's a good chance I could get at least the former if not the latter decision. DNR regulations should not preempt the rights and priveleges I would otherwise have on private property whether I am hunting or not. The DNR tells me when I can actually take an animal -- a public resource. But the city and the county are primarily the overseers of the deportment of my property. In effect, the DNR is really encroaching on the rights and priveleges other units of government may wish to explicitly preserve for property owners.
DNR Dave:
Hm. I don't know. This is getting complicated.
Joe:
So why don't you simplify it? Go back to your shop and start making things clearer in your regulations and base their further development on this standard: The regulation must have a clearly rational, attainable purpose and it shouldn't encroach on the traditional power of other units of government which may be aimed at preserving property rights and even priveleges. Rationalize all of the regulations. If they can't be rationalized, toss them. It all starts with making key distinctions like that between private and public property.
DNR Dave:
But if we started making things that simple and clear, wouldn't that result in regulations that are either too permissive or too restictive? Don't we need our discretionary power to keep things in the middle and stay in control?
Joe:
The people are supposed to be in control. And too permissive or too restictive from who's point of view? Look Dave, if we're going to have the rule of law, instead being subject to the discretionary power of any agency, then you may just have to live with some laws that someone is always going to consider too restrictive or too permissive. I think the key thing is, watch out for the too restrictive side. If you go that route, you're going to bump into the people and the legislature, big time. Let me give you an example.
DNR Dave:
What's that?
Joe:
Well you just told me that I can't have non-biodegradable containers at my bait station on private property. On the other hand, you say my non-biodegradable lights are okay, and, by the way, I have a non-biodegradable hunting stand -- a blind on a dock platform. And the DNR does not want to prohibit me from building hunting stands on my own land, correct?
DNR Dave:
No, it doesn't.
Joe:
So if in order to simplify the regulations you were to say that nothing non-biodegradable will be allowed at my bear hunting location on my private land, that would be too restrictive to the point of just being crazy, right?
DNR Dave:
I have to agree.
Joe:
But if you say that on private land, it's okay to have all of these non-biodegradable items, including bait barrels, someone -- I don't know who really -- but someone perhaps jealous of private property owners, might whine that it's too permissive, right?
DNR Dave:
Yes. That's what we want to avoid.
Joe:
But you know you can't level the playing field for that whiner anyway?
DNR Dave:
Yes, I think that's clear.
Joe:
So as a general policy, it's best to insure the rule of law, and the avoidance of irrational restrictions that serve no clear public interest, by erring on the side of more permission, less restriction.
DNR Dave:
I guess so. It would be quite rigid, without obvious gain, to have you remove even your hunting stand, from your private property.
Joe:
Thank you Dave. Next time we'll talk about the irrationality of the pre season baiting restrictions in general. I'd also like to talk to you about the fact that during bow hunting season, a poacher will take a deer with a gun no matter what the regulations say, and a law-abiding citizen will not do so even if he is otherwise carrying a hand gun for protection. So what's with the irrationality of the regulation that prohibits hand guns during bow season?
DNR Dave (smiling):
I'm sure you'll be able to answer your own question Joe!
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!
Subscribe to:
Posts (Atom)