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.
Showing posts with label hunting regulations. Show all posts
Showing posts with label hunting regulations. Show all posts
Tuesday, August 21, 2007
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!
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