Dear California Falconer:
As most of you might know by now, Wild Raptor Take Conservancy's attorney, William Horn, spoke with Solicitor Bernhardt of the Department of the Interior (DoI) and the Assistant Secretary of Fish, Wildlife & Parks of the DoI . Horn sent me an email stating “Just off the phone with Interior and FWS and I’m pleased to report that we have prevailed on the ‘ownership’ issue. The Solicitor’s office concurred with our analysis and agreed that federal assertions of ownership are not supported by law. FWS now intends to republish the proposed rules and accept another round of comments. It appears that the republished notice will be cleaned up to drop the ownership claims.”
We went into great detail as to what we need to do next. Horn wants to review the present falconry regulations we work under as well as what was in the proposed regs to determine what is appropriate for the feds to have oversight authority over and where they’ve gone too far. His firm will research other MBTA regulatory regimes as well as other wildlife related statutes and their subsequent regulations to determine what the best approach for us might be. As he researches those issues, WRTC is forming a committee that will review both the present and proposed falconry regs as well to put a list of concerns together to present to Horn.
In discussing the role the FWS should play in implementing falconry regulations, we discussed the separation of power between the State and feds. I will paraphrase what Horn provided: The feds should exercise oversight over the State programs, but the direct interaction with the regulated public should be primarily through State agents as opposed to federal agents (when it comes to the act of taking wild raptors, however, both State and federal agencies will have direct authority over the individual, the same as in duck hunting). There are presently other regulatory regimes that work in this manner. If the feds see a problem at the State level or if they see a problem with an individual, they should call the State and say, ‘You have primacy here; you take the appropriate law enforcement action.’ The recourse for the federal government is the threat that if a State chooses not to comply with the regulatory structure, the feds can take the program back or eliminate it. This relationship creates a form of insulation between federal law enforcement officials and the individual citizens.
Horn and I discussed the attitude the FWS has regarding the boundaries of our activities with our raptors. He informed me that the MBTA has, in essence, a closed-until-open approach, i.e. if the agency does not take affirmative action to provide for some form of take of migratory birds, there can be no take. In addition, no one can engage in any form of take unless they have authorization from the FWS to do so. From this, the FWS takes the position that “you can’t do anything with raptors unless it’s provided for in regulation.” Horn responded to this by saying “We’ve got to get them back on a more minimalist type of approach” in other words we need to get them out of micromanaging. Wildlife issues at a universal scale, such as the health of raptor populations, require the Service’s undivided attention. However, issues at the level of individuals – both the citizens and their birds – are of a more remote concern to the FWS. Therefore we need to identify concerns that are primarily under the purview of the FWS and separate this from that which belongs to the States. There are other federal regulations under various statutes that follow this form of management, and we can use these as examples.
The Service's micromanagement mentality stems from their application of ESA principles force-fit onto falconry rather than looking at MBTA principles that are applied to waterfowl. We need to get the Service to back off their ESA management approach and to adopt a more sensible system that reflects common sense. While North American raptors used in falconry are not waterfowl, they are also not endangered species that require draconian controls. The Service needs to recognize that falconry is not detrimental to raptors, it is their savior. Given this truism, the Service should be asking us to write the regs and all they need to do is to make sure they are not in conflict with MBTA principles.
What Horn would like to see happen is for him to meet with DoI and FWS officials and come to an understanding of what would work for them and what would work for falconers. Then ask them to establish a regulatory proposal that would allow for a briefer comment period and timeframe for publishing the Final Rule (i.e. the final falconry regulations).
Horn’s work is expensive and to date we have expended approximately $14,000 in defense of your property rights as well as in the property rights of every other falconer, whether or not they believe in our rights. In economic jargon, those who do not contribute to the community’s needs are called free riders. Ask every falconer you know if they are going to contribute to furthering our interests or are they going to be free riders. If you believe in what we are doing is the right course of action, then please support our cause by sending in what you can to the WRTC Legal Fund, Bob Herrick, WRTC Treasurer, 3346 Ave. 248, Tulare, CA 93274.
Sincerely,
Bill Murrin President WRTC |
RAPTOR OWNERSHIP
From Bill Murrin, President, WRTC
This is the letter attorney, Mr. William Horn, has sent to the Solicitor of the U.S. Dept. of the Interior. The Solicitor is the head lawyer for Interior which means he also represents the Fish & Wildlife Service.
As you will read, Mr. Horn is informing Interior that FWS is acting arbitrarily when it denies falconers our property rights - i.e. ownership - in our birds and therefore its assertions are illegal. This is the first step in moving forward with minimizing regulations to a reasonable and justifiable level. This might be defined as wanting the government "to regulate only for good cause shown, not because it likes to do so" as expressed by Professor Epstein, Law Professor of the Univ. of Chicago.
Keep in mind, recognition of ownership does not mean that wild raptors can be sold commercially nor will anyone be able to possess an indigenous raptor without a permit, or any of the other ownership-goblins that have been haunting our community for the last few decades. Ownership simply means you will have all rights inherent in private property like all other animals and that they cannot be taken away without just cause. This is presently not the case. The FWS can take your bird away for any reason they care to dream up because they believe it is their property. The only remedy is to file an extremely expensive lawsuit; and as I was informed by Professor Epstein, "they use the scorch and burn approach", i.e. use every conceivable legal means at their disposal to delay the case until you run out of money. In other words, there is no remedy when you are denied your property rights.
You will notice that Mr. Horn references other statutes, such as the ESA etc., to make important points. Please understand that he is not suggesting that any of the regulations under these statutes be incorporated into falconry regulations. He references them as a means to demonstrate that the FWS does not deny ownership in any other case except falconry. This is arbitrary and therefore illegal.
I want to thank those falconers who contributed to the cost of Mr. Horn's legal fees. Without them, we would still be at a stand-still. I will publish their names in The Passager, with their permission, so that all may know who is responsible for recovering our property rights. Keep in mind that you can still be part of this list of contributors if you send your contribution to our Treasurer, Bob Herrick. Mr. Horn's letter is the first step in establishing ownership. Once our property rights are recognized we will then need funds to pay for his fees when it is time to communicate with the FWS about justifiable regulations. Therefore, any contribution you can send will be greatly appreciated and will certainly establish your name in falconry history! Make no mistake history is being made; you merely need to decide if you wish to be a part of it.
On behalf of the Board and the WRTC membership, I want to thank Hal Webster for his extremely generous donation and his long hours of campaigning to raise the funds necessary to get this ball rolling. Without Hal, it wouldn't have happened. Thank you Hal Webster for the present undertaking and all that you have done for falconry over the many decades you've been a falconer. I firmly believe that if it were not for you and Frank Beebe, in writing your book and founding NAFA, falconry would be practiced by a very select group of falconers if it would even exist at all. We are deeply in your debt.
I wish to leave you with one last thought. I expressed the Board's appreciation to Mr. Horn's staff for all that they are doing on our behalf and the following is what one of his lawyers said to me:
"Bill -- we're more than happy to help out. Regulatory proposals like this are a major threat to falconers' rights and sportsmen's rights in general, requiring the constant vigilance of the sporting community as a check on overextension of government power. Frequently groups like yours are the only check on this type of usurpation. We're always happy to be a part of that 'check." David Lampp
This is not written by a radical individual. It is from a natural resource lawyer who sees how the real world works and constantly defends those organizations whose rights are being ignored or abused. Those who believe our ownership claim is radical need to understand that it is their views that are radical. Property rights are as old as the hills; denial of these rights are a radical shift into very dangerous waters.
Please feel free to share this with any and all falconers. As always, I really look forward to your comments.
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