November 22, 2017

1973 Endangered Species Act: A return of the Dark Centuries?

Prof. Hamburger’s 2014 book “Is Administrative Law Unlawful?” is described by National Review as a “serious work of legal scholarship on the return of the prerogative to our government.”

The professor shows how the unlimited power of the administrative state comes from the King’s prerogative, a special power that the Constitution was designed to prevent.

Published in 1890, Bancroft’s Works* Vol. 38 Essays and Miscellany at page 284 describes the English-American jury trial right as the end to the King’s prerogative.

And that begs the question: Did the Nevada rancher get a jury trial with regard to the taking of his preference grazing rights? Will we get jury trials when the same bureaucrats impose encumbrances through the 1973 Endangered Species Act on private Texas land?

Bancroft: “The right of trial by jury comes to the Englishmen more directly in the form of a victory. During the dark centuries, prerogative or despotism denied such a right.” Bancroft refers to the “… subtleties of the royal prerogative, or the learned malevolence.” Malevolence is defined as a vicious ill will.

“But later, with increase in intellectual strength and material stability, the people intrenched[sic] themselves in their rights, and since the magna charta this privilege has been held the dearest of a progressive people. It was a right guarded with vigilant care, and for which intelligent freemen everywhere would fight and die. To America came this sentiment, and was embodied in the constitutions of several states.”

“The victory originally achieved by the people over the government by the establishment of the jury system was the right of participation in the administration of the law. No man might thenceforth be jeopardized in person or property without appeal to his fellows for redress.”

“It was a sign of the increasing purity of political character and growing love of honesty and fair play.”

Bancroft goes on to state that, “When the government and the people were one the victory was complete.”

But with the lesser prairie chicken land grab, there is no jury trial right. We are called to evening meetings to participate in our own centrally planned and controlled impoverishment, the systematic destruction of American exceptionalism, and are allowed only to make ignorable comments about confiscatory administrative regulations that routinely and stubbornly violate ancient state land law, the US Constitution and our human dignity.

Control equals wealth. State/centralized control equals wealth for a tiny few politically well-connected people who can sometimes be referred to as oligarchs. Decentralized control means decentralized wealth, the same system that allowed my family and many millions of others to prosper in America according to our personal industry, luck, decision-making, risk-taking and more. The wealth from decentralized control created the highest per capita income in the world for Americans since the early 1830’s. On the other hand, centralized control of the modes of production, as Karl Marx puts it, is a proven 180 year loser, not to mention some 100 million deaths, subhuman misery and enslavement.

The politically deadly characteristic of the reborn prerogative is that it can contain and disguise and impose any -ism, if you will, on the American people. The prerogative can harbor the cancer of Communism, fascist Nationalism, environmentalism, worship in Gaia, animal liberation, earth liberation and Satan’s attitude of scarcity, just whatever the King wants. And all the -isms except individualism rob us of our God-given rights as set out in the Constitution.

By keeping us under-educated, a nationalized American educational system can serve to keep us too ignorant to learn how to simply say No and to get things turned around. The idea of personal liability imposed on the errant bureaucrat as discussed by Prof. Hamburger is appealing and might be the exact place to start. Especially on those who turned loose the wolves. In my opinion, it is worth a try.

Livy, sharing thoughts and opinion from a bunkhouse on the southern high plains of Texas.

*Notice that this volume of Bancroft’s Works was once owned about the 1950’s by a Texas public high school.

HubertBancroft

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American enslavement to the Endangered Species Act in violation of Equal Protection and 13th Amendment

Antebellum USA: With slavery, we did the plantation owners’ bidding for nothing.
If we did not, we were punished.

21st Century USA: With the Endangered Species Act, we do the bureaucrats’ bidding for nothing.
If we do not, we are punished.

And we get to pick neither our plantation owners nor our bureaucrats.

And they both ignore our wishes, desires, dreams and rights.

Habitatism* is the priority of the habitat (the Marxist commune) over sacred individual Constitutional rights to be free from slavery. It’s a bad idea to get fatalistic and idly wait around to find out if modern slaves to habitatism can withstand $10,000 per day fines any better than 10 lashes per day for not doing the overseers’ bidding.

The time to rein in the Neo-Nazi Progressive Administrative State is now by changing a number of statutes in order to impose an effective two-strikes-and-you’re-out-of-a-government-job-for-life rule. No disbarment from the practice of law for administrative law judges whose decisions are overruled on constitutional grounds. If the judge is incapable of following the conceptually simple oath of office, then it’s time to find a private sector job.

Ayn Rand warned that the concept of the common good leads to enslavement. Now I see how.

*Habitatism is not a word right now, but we’ve been living under this concept for the past 40 years since the 1973 passage of the Endangered Species Act. Even in biblical times, 40 years is a long time. It’s time to find our way out of the wilderness.

Livy, sharing thoughts and opinion from a bunkhouse on the southern high plains of Texas.

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Discussion of Habitatism refined

To some, the stupid nonsense of the 1973 Endangered Species Act claims to elevate the habitat needs of the subhuman to the same level of human needs. But experience proves that compromise is not possible, that one or the other wins the irreconcilable conflict, and for the past 40 years the needs of the subhuman win out over the needs of some 315 million Americans.

For example, any one of the some 315 million Americans could own preference grazing rights in Nevada. And a Nevada rancher’s preference grazing rights were superior to any competing grazing rights of all other humans on the face of the earth. But under the ESA, the human rancher’s preference grazing rights were not superior to the needs of the subhuman tortoise in Nevada. In such dehumanizing struggles, it is instructive to note that the victims of the holocaust were also denied their property rights, their dignity, their human rights. While Marx described property as theft, our Founders described property rights as human rights.

Under the ESA, the concept of habitat for subhumans is indistinguishable from the dominance of the greater good of the fascist Communist commune over sacred individual human rights set out in the US Constitution. Those sacred individual rights include the strict forbiddance of the taking of private property without just compensation. A time may well return when bureaucrats who use regulation to violate the law will be held personally liable for conduct deemed unlawful. Such personal liability may well extend also to those who aid, abet, encourage and contribute to causes that promote the dehumanization of the American public. When one person’s rights are trumped by militaristic bureaucratic centralized control, the bell tolls for all 315 million of us.

Readings from “The Federalist and Other Constitutional Papers”, Scott, 1902, make clear that the fundamental law of our Constitutional form of government is based on a humans-first public policy that Congress has no authority to legislatively alter. Congress has no authority to fundamentally change humans-first public policy either by expressly setting out radically new public policy as it purports to do in the Endangered Species Act any more than it has the authority to put fascist Nationalism, the Communist commune, the environment, Mother Earth, Gaia, Martians or mythical characters in priority over our human civil rights.

Livy, sharing thoughts and opinion from a bunkhouse on the southern high plains of Texas.

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James Lovelock: Gaia Guru Quote

From Wikiquote:

Dr James Ephraim Lovelock CH CBE FRS (born July 26, 1919) is a British independent scientist, author, researcher, environmentalist and futurologist. He is most famous for proposing and popularizing the Gaia hypothesis, in which he postulates that the Earth functions as a kind of superorganism (a term coined by w:Lynn Margulis).

A Lovelock quote:

“Even the best democracies agree that when a major war approaches, democracy must be put on hold for the time being. I have a feeling that climate change may be an issue as severe as a war. It may be necessary to put democracy on hold for a while.”

Livy, sharing thoughts and opinion from a bunkhouse on the southern high plains of Texas.

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Have we cracked the nut of individual strict liability for gov’t bureaucrats involved in releasing dangerous animals in America?

It’s time to ask the question: Are wolves the chosen and specially selected de facto agents of the lawless bureaucrats? Shouldn’t the principle of strict liability apply to the individuals in their individual capacities for the negligent release of dangerous wild animals? Prof. Hamburger’s 2014 book “Is Administrative Law Unlawful?” sets out considerable legal research with court precedent and history questioning every aspect of bureaucratic overreach of the burgeoning Administrative State and also deals with holding individual bureaucrats in government liable. And don’t forget the deep pockets of the NGOs who are also instrumental in the release of dangerous wild animals. Also don’t forget the deep pockets of a lot of donors who have specific knowledge about wolf releases, going on hikes in the wilderness to see the wolves, verbally encouraging the wolf releases, an activity that many rightfully compare to criminality. Aiding, abetting and encouraging unlawful behavior, behavior they should have known was very risky toward innocent victims such as ranchers and their property, can have legal consequences.

http://www.cfact.org/2014/08/25/u-s-government-releases-predators-against-its-own-people/

Check out 3. in the link below summarizing Gerry Spence’s use of strict liability to make Kerr-McGee liable for the negligent release of a dangerous substance. How difficult could it be to apply strict liability for the classic purpose, that is, the intentional release of a dangerous wild animal……………….

http://online.wsj.com/news/articles/SB10001424052970203550604574360481932632724?mg=reno64-wsj&url=http%3A%2F%2Fonline.wsj.com%2Farticle%2FSB10001424052970203550604574360481932632724.html

Livy, sharing thoughts and opinion from a bunkhouse on the southern high plains of Texas.

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What is the magic of individualism vs. other -isms? Habitatism?

To begin with, adding -ism to the end of the word can denote the priority of the something.

To the non-law trained person, just exactly what is the expression of individualism of the American revolution referred to in an earlier writing that cited the encyclopedic reference to Hegel? Individualism is the priority of the individual. It is not dangerous egoism or anarchy as Vladimir Putin and his ilk would have you believe.

In fact, consider the peaceful society that we live in pursuant to the Constitution which sets out the individual right to free speech, the individual right to travel, the individual right to worship, the individual right to a jury trial, the individual right to cross-examine our accusers, the individual right to be paid just compensation for property taken for government purposes, the individual right to be free from unreasonable searches and seizures, the individual right to be free from the quartering of troops in our homes, the individual right to assemble and so forth.

Consider also that our public officials swear an oath to God to defend (an active verb) our Constitution.

J. Roberts elegantly described the freedom of speech as having benefits to the citizens that outweigh the burden on government in 559 US 460.

Now consider one of the opposite political philosophies, fascist nationalism for example, in which the nation comes first, usually in the form of the greater common good (the same thing that Texas’ own Office of Public Interest Council claims to represent).

The UN was quoted as saying regionalism must precede globalism. Think now of Texas’ own regional planning commissions planning our private property groundwater rights away.

If fascist nationalism is the priority of the nation, communism the commune, environmentalism the environment, then habitatism is the priority of the habitat over individual rights. In other words, habitatism rejects our sacred individual human rights. Those rights to privately control property make America the exception to the claimed inevitability of world-wide Communism.

Habitatism is functionally indistinguishable from regionalism, globalism, environmentalism, communism, fascist nationalism in that all of these -isms lead to the use of militaristic actions we saw in the 1980’s in Poland and in 2014 in the Nevada Ranch standoff.

If not for our watered-down constitutional law education, lawyers would have figured this out long ago. If not for my further self-education after law school I would not know that our Founders considered our individualism, our individual rights, to be sacred, and to be from our Maker, thereby establishing in the US Constitution a humans-first public policy that Congress has no authority to alter through the Endangered Species Act for as the Texas Supreme Court similarly found in 1943 in 173 S.W.2d 1022, 1024, “It is fundamental that the Constitution is the paramount law of the state and cannot be altered by legislative amendments.”

Habitatism attempts to create through extralegal, supra legal and in an unlimited way through the increasingly questioned Administrative State, encumbrances that unlawfully subordinate all manner of legal rights including without limitation first lien mortgages (Deeds of Trust) on privately owned land otherwise held in fee simple title in Texas according to, and governed exclusively, by ancient land title law.

In my opinion, by approving the Endangered Species Act, President Nixon capitulated more than Vietnam to the cancer of Communist ideology in 1973.

Livy, sharing thoughts and opinion from a bunkhouse on the southern high plains of Texas.

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Taxation without representation? Sure looks like it to me.

A discussion of the unlimited power of the Administrative State in light of law of thoughts and research presented by professor Phillip Hamburger’s book “Is Administrative Law Unlawful?”.
http://tomremington.com/2014/08/13/is-administrative-law-unlawful/

While considering the thoughts and opinion expressed in the link above, think about the following.

The prohibition against taxation without representation began with this country’s founding. This prohibition is the reason that local boards, be they hospital districts, groundwater districts, municipal utility districts, city councils, county commissioners courts or other subdivision created by state government, are elected. The elected members of those local governments, because they are elected, represent us as they tax us.

Now consider Texas Water Code sec. 36.303 which purports to authorize an appointed state level board, the Texas Natural Resource Conservation Commission, to remove the members of a local groundwater district and call a new election to replace the board.

Sec. 36.303. ACTION BY COMMISSION. (a) If Section 36.108, 36.301, or 36.302(f) applies, the commission, after notice and hearing in accordance with Chapter 2001, Government Code, shall take action the commission considers appropriate, including:
(1) issuing an order requiring the district to take certain actions or to refrain from taking certain actions;
(2) dissolving the board in accordance with Sections 36.305 and 36.307 and calling an election for the purpose of electing a new board;
(3) requesting the attorney general to bring suit for the appointment of a receiver to collect the assets and carry on the business of the groundwater conservation district; or
(4) dissolving the district in accordance with Sections 36.304, 36.305, and 36.308.
(b) In addition to actions identified under Subsection (a), the commission may recommend to the legislature, based upon the report required by Section 35.018, actions the commission deems necessary to accomplish comprehensive management in the district.

Added by Acts 1997, 75th Leg., ch. 1010, Sec. 4.36, eff. Sept. 1, 1997. Amended by Acts 2001, 77th Leg., ch. 966, Sec. 2.56, eff. Sept. 1, 2001.

Note that Chapter 2001, Government Code, mentioned above, is the Administrative Procedure Act.

In other words, 36.303 claims it can, again by administrative procedure, centrally control the local district, and if the local district resists, “dissolve” the board.

In other words, a board that was elected by the voters to represent the voters that it taxes can be “dissolved” if the board does not represent the Texas Natural Resources Commission, an appointed board that pays no taxes and is not accountable to the voters who are taxed in the district.

And where does the issue get litigated? In the kangaroo court system according to Chapter 2001, Government Code, set up by the Administrative State in Austin, Travis County, Texas that likes to tell the Administrative Law Judges that the Constitution limits nothing in the administrative system.

Taxation without representation is not legal by any stretch of the imagination. So, who would have ever thought that the Administrative State would have gone this far? To keep it from violating other Constitutional limitations must we proactively sue in local district court to enjoin the Administrative State from violating a list of remaining Constitutional limitations? Does the Constitution mean nothing without such judicial action? If the Administrative State has no limits, how many more of our federally protected civil human rights can it eliminate? It appears that the current state of administrative law says that the Administrative State can assume control of any property, private or otherwise, wheresoever located in the state, whenever the Administrative State gets around to centrally controlling the whole Texas economy the way Karl Marx and others of his ilk such as Stalin and Hitler envisioned it.

And it seems to me that the whole mess violates Jones v. Ross 173 S.W.2d 1022, 1024 (Tex. 1943) holding that “It is fundamental that the Constitution is the paramount law of the state and cannot be altered by legislative amendments.” I also add that our Constitution cannot be altered by long-ago discredited notions of economic central control that work no where in the world except to create subhuman misery and enslavement.

Livy writes from a bunkhouse on the southern high plains of Texas.

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“Is Administrative Law Unlawful?”

I am reading law Prof. Hamburger’s “Is Administrative Law Unlawful?” and he makes the case that administrative law is not new rather it is the old King’s absolute prerogative reborn, the same prerogative that the Framers sought to prevent with the Constitution’s system of divided government.

He sets out how administrative law is extra-legal (outside the law), supra-legal (above the law) and, because it is not limited by the Constitution, it is unlimited in power. That is, it is no different than the unlimited power of the King.

Notwithstanding a few cases that attempt to rein in the administrative state, there seems to be in Texas a conscious and clever effort at the legislative and administrative code level to protect the unlimited power of the administrative state from constitutional limitations.

In this first example, in order to test some of this thinking, let’s take a very extreme and hopefully very unlikely example. Assume that the administrative code says that anyone who fails to pay an administrative fine by the 10th day after issuance by the agent shall be lined up and shot by firing squad. (If you think this is too far out, consider Obama’s man who used Roman crucifixion of Christians as a parable to guide the mind set for those involved in environmental enforcement.)

At this point in our jurisprudence most can readily state that such a code provision violates Constitutional guarantees of substantive due process that protect our human right to life. But if today’s Administrative Code set out such a punishment, where would such an issue be litigated? Apparently, Travis County, Texas, in the administrative court system.

In this second example, let’s assume something more regular, for example, where the administrative code says that the owner of property shall submit to a central control of private property regulation of some sort or pay a daily fine of $10,000.00. One can argue that this administrative process creates its own ad hoc condemnation process whereby the rights of groundwater owners are denied for the “greater common good”, an argument that is made by the Office of Public (Government Ownership) Interest Counsel in administrative hearings.

Others might pick a better suited example.

[Please note that enforcement agents might well be violating an old common law prohibition against the combination of the duties of the Sheriff with the duties of the Judge. Such administrative law provisions destroy the ancient safeguard of the impartiality of the Judge who is supposed to hold the Sheriff to a burden of proof and to determine the innocence or the guilt and punishment. Today’s administrative law judges are there to simply rubber stamp the regularity of the combined actions of the enforcement agent.]

With regard to this second example, some argue that administrative central control of private property is not a clear violation of the Constitutional prohibition against takings without just compensation. Balderdash. Central control abolishes private property. In 1958 J. Edgar Hoover said that our exceptionalism is America’s exception from Communism. The exceptionalism that provides our great wealth comes from private control of property. Karl Marx wrote of the central control of private property and the modes of production similarly. Last two pages Chap. Two Communist Manifesto, 1848.

I suspect that 60 years ago or so an extreme example of administrative law would be what we are seeing today, the illegitimate supplanting of an administrative process for the Condemnation process. So, let’s jump to an example that might seem extreme today: violation of the prohibition against the establishment of a state religion.

I’ll go out on a limb here and say that I’ve had the passing thought, and I am not the only one who has noticed, that the fervor of the environmentalists and some adherents to Gaia as Mother Earth resembles a religion. Some might argue that we have already reached the point of an established de facto state religion in the environment (which is conceptually indistinguishable from Marx’ eschatological concept of the utopian commune), that is, earth and animal liberation and their derivatives embodied in legislation such as the 1973 Endangered Species Act together with corresponding overreaching administrative provisions.

If the power of the Administrative State is truly unlimited, then how many other provisions can be violated?

And where will those issues be litigated?

And, how much longer can the judicial branch safely ignore the holding in Jones v. Ross that states: “It is fundamental that the Constitution is the paramount law of the state and cannot be altered by legislative amendments.” 173 S.W. 2d 1022, 1024 (Tex. 1943).

Livy writes from a bunkhouse on the southern high plains of Texas.

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Fraud: IPCC Exposed

“As UN Intergovernmental Panel on Climate Change (IPCC) official Ottmar Edenhofer admitted in November 2010: “One has to free oneself from the illusion that international climate policy is environmental policy. Instead, climate change policy is about how we redistribute de facto the world’s wealth.”
Former Canadian Minister of the Environment Christine Stewart harbored no such illusion. In 1988, she told editors and reporters of the Calgary Herald, “No matter if the science of global warming is all phony … climate change [provides] the greatest opportunity to bring about justice and equality in the world.”
That justice and equality pitch serves as a central plank in the UN’s global governance platform to accomplish its wealth redistribution agenda.
In 1996, former Soviet Union President Mikhail Gorbachev emphasized the importance of using climate alarmism to advance Marxist objectives, “The threat of environmental crisis will be the international disaster key to unlock the New World Order.”
Former President Jacques Chirac of France shared that priority.”<<<Read More>>>

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Marx Slandered America

Adopting the terminology of our sworn enemies makes it harder to win the debate. Marx slandered our system of economic freedom as capitalism, which might be described by some as the priority of capital over everything else. However, that is not our system. Favoritism violates our Founders’ values that require equal protection for all of us under the law. Equality and individualism go together. Cronyism and oligarchy, are characteristics of Communist and fascist nationalist systems which are evil Hegelian twin philosophies that deny our system of individualism that is set out in our Constitution.

Americans have had the highest per capita income in the world since the 1830’s, a resounding economic success not only in comparison to other half-baked Marxist systems but also in the history of the mankind on earth. Anyone who points out China as an exception must explain how they would like to live in abject poverty and enslavement under the control of some 300 ultra-wealthy Communists who control the country and its un-redistributed $5 trillion dollar surplus.

Livy writes from a bunkhouse on the southern high plains of Texas.

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