August 28, 2014

“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.

Wolf Meeting and Talking Points Expanded Boundary

All content comes from an email source:

Wolf meeting tomorrow, 8-13-14 at the TorC civic center. Public input meeting at 6 PM; information session from fish nd wildlife service at 2 PM. [This is]About the new proposed draft rule and Environmental Impact Statement the rule is based on. Please come and speak if you can. Map and short zone explanation attached. Talking points attached.

Designate three wolf management zones with a larger Zone 1 within the expanded MWEPA:
• Zone 1 is an area within the MWEPA where Mexican wolves would be allowed to occupy and where wolves may be initially released or translocated. Zone 1 would include all of the Apache and Gila National Forests (the existing BRWRA) and any or all of the Sitgreaves National Forests; the Payson, Pleasant Valley, andTonto Basin Ranger Districts of the Tonto National Forest; and the Magdalena Ranger District of the Cibola National Forest.
• Zone 2 is an area within the MWEPA where Mexican wolves would be allowed to naturally disperse into and occupy and where wolves may be translocated. In Zone 2 initial releases of wolves on Federal land would be limited to pups less than five months old. Pups less than five months old, juvenile wolves and adult wolves could also be initially released on private land under Service and state approved management agreements with private landowners and on tribal land under Service approved management agreements with tribal governments.Zone 2 would include the area of the MWEPA not included in Zone 1or 3 south of I-40 to the international border with Mexico
• Zone 3 is an area where Mexican wolves would be allowed to naturally disperse into and occupy but where neither initial releases nor translocations would occur. Zone 3 would include the area of the MWEPA not included in Zone1 or 2 south of I-40 to the international border with Mexico.

ZoningMap

Mexican wolf Draft EIS and Rule Change

Talking points for Agriculture

1. Any population change in the wolf recovery program must be based on a recovery plan that has been published in the federal register and vetted by the public . The most recent recovery plan in place meeting those requirements is the 1982 plan. None of the ongoing attempts at recent planning have been subject to peer review in accordance with 59 Fed. Reg. 34207 July 1 1994

2. Recovery planning needs a defined number of wolves to allow the public to understand clearly the objectives of the recovery of Mexican wolves in the SW.

3. Livestock on federally administered grazing allotments are private property legally occupying the range to disallow take of wolves attacking livestock is wrong. Ranchers should be allowed to defend and protect their domestic animals regardless of land ownership, without having to beg for a permit.

4. FWS isn’t using best available science or information in the DEIS. Nowhere is there a requirement that county data and reports must be peer reviewed to be used by the agency in rulemaking. Thus far FWS has cited no data to support the finding of no significant impact to livestock community by this program, nor the harm that has been documented to the human element particularly the children in areas where wolves are present.

5. FWS failed to mitigate livestock depredation and ranch sales due to wolf depredation in wolf occupied areas. nothing in their draft suggests they will do so this time.

6. FWS has failed to mitigate the impacts to children in wolf populated areas, in fact have largely ignored the habituation problem of these wolves. There is very little in the DEIS and Draft Rule that allows for mitigation of these significant problems.

7. FWS has failed to consider cumulative effect of economic losses and social impacts when this program is coupled with all the other environmental planning that is going on in our state.

8. FWS has failed to address catastrophic affects on wolf habitat.

9. Cooperative agreements with private landowners to host wolves on private land can and likely will have significant impact on neighboring ranches domestic animals and the human element on adjacent private lands, this should not be available.

10. FWS must stay within the bounds of the DEIS and draft Rule, during the last rulemaking process, David Parsons significantly changed the draft rule and EIS and there was no public vetting of his teams decision-making. This DEIS cannot be significantly altered other than to incorporate ongoing comments in the current commenting cycle. Parsons now works for an environmental organization devoted to preserving predators.

Remember, DOW CBD WEG Sierra Club and all the other environmental and animal rights organizations, will be bussing in people to speak, crowding the comment session and complicating this meeting with public grandstandings perhaps even a howl in like they did in Albuquerque last year. It got them a cover on the Albuquerque Journal. If you are up to a little public grandstanding to ensure the media gets our side of the story feel free to do so, I have protest signs and we can stage a protest ourselves if necessary.

Public comment session, stick to realistic points similar to but not limited to those above, and the injustice and unfairness behind the management of the program.

There is no, No Wolves alternative, this program is far far beyond that issue the reality is, the courts have ruled this is legitimate. Even if there was a No Wolves alternative, and it was chosen, the population explosion we have now would allow the agency to immediately re-list this animal with full ESA status critical habitat and a no take policy under the ESA and there would be wolves out here forever with NO removals for problem animals and private property curtailment due to the critical habitat status.

Within the past year our association Gila Livestock Growers Assn. has tried to fulfill some basic scientific testing that would have allowed us the basis for petitioning for de-listing of this animal along with the de-listing of the northern population, our access to historic samples fell through and our time has run out to do it before the new rule is in place. We will have to undergo the rulemaking process and try to find historic samples for testing at a later date.

At this meeting, we have to show the agency they will not and cannot get away with pretending there is no significant impact to our communities and industries whether it’s tourism, ranching or outfitting. pick a subject stay on point ignore the hecklers. Prepare for bizarre and really bad behavior from the wolf support activists.

When I was in Albuquerque last November for the preliminary meetings someone sat next to me and handed me the prayer attached here. Please print it and take it with you if you need to.

Prayer

Impact on Ranchers by Wolves in New Mexico

What you will see in this video is a clear representation of the results of a perversion of ideals and a major screw-up of priorities. It should be viewed as a mental illness in order that some damned animal takes priority over human pursuit of happiness and the ability to protect property and run a business. It goes beyond perversion and enters the realm of criminal that mentally perverse sub-humans would issue death threats against others for protecting what is rightfully theirs.

And now the U.S. Fish and Wildlife Service wants to change the rules in the middle of the game. Please contact your government representative and tell them to stop dumping these mongrel, nasty, disease-carrying, killing machines into the landscapes of Arizona and New Mexico.

Have You Been Injured By The USFWS’s Listing of The Lesser Prairie Chicken?

DEPA Executive Director

As you know, one prong of our multi-tiered vigorous defense is in the legal arena.

We are actively collecting background stories from DEPA Investors who have been injured because of the Fish and Wildlife Service’s recent decision to list the lesser prairie-chicken as a threatened species under the Endangered Species Act.

Your specific description of injury will support our efforts to convince the court the Fish and Wildlife Service never should have listed the species as threatened, and it will spotlight devastating effects of the decision.<<<Read More>>>

American Life without The Endangered Species Act

A guest post by James Beers:

By passing The Endangered Species Act (ESA) Congress and the President (Nixon) did two things.

First they catered to the 5-year orgy of environmental hyperbole (much like the current global warming/cooling/climate change extravaganzas) that generated political support and energized the radical environmentalism and animal rights’ organizations and their agendas during the turbulence of the late 1960’s and early 1970’s.

Second, Congress and the President, cleverly like Pontius Pilate washing his hands after sentencing Jesus, gave the responsibility and authority for whatever happened to federal bureaucracies, especially the US Fish and Wildlife Service, and the “scientists” they would employ to justify the past 40 years of:

- Taking private property without compensation.
- Shrinking the timber, ranching, and farming economic sectors.
- Shrinking Local governments, their jurisdictional authority; and their revenue sources from shrinking rural economies.
- Stopping road projects and demanding the removal of dams used for power and irrigation.
- Subverting any State authority and jurisdiction over any plant or animal UNIT concocted by federal bureaucrats and their radical supporters to impede rural American prosperity and the “general Welfare” (per the Constitution) of rural communities and the rural families that compose them.
- The unjustified and unauthorized creation by bureaucrats of evil (the right word) “powers” to leap from saving “endangered” animals to a federal mission to “restore” the (imagined) “native ecosystem”; and the never-ending thread of absolute authority that even after “returning management of Listed endangered ‘species’ to the state” federal bureaucrats can set mandated conditions (that must be met at State and Local expense) or federal authority will be re-instituted by force.
- Creating Federal bureaucratic discretionary power to justify the elimination of highly desirable “non-native” or “out-of-(i.e. “native”)place plants and animals; steadily eliminate the management and use of renewable natural resources on and near Federally-controlled lands; and the unquestioned power to introduce and protect, or eliminate plants and animals at locations that serve other agendas from political pandering to current power structures to hidden agendas to achieve other goals from closing access and stopping new developments to further restriction of stressed rural communities that are subsequently purchased or eased with federal tax dollars.
- Inventing all manner of self-serving “science” from regulatory (yet legally-binding) concepts like “Distinct population segments” to arbitrary establishment of DNA definitions for Species, Subspecies, etc. distinctions that serve current and future bureaucratic agendas.
- Establishing an aura of “science says” that befuddles any honest judge and trumps any hope for an appeal by a citizen “deprived of life, liberty, or property, without due process of law” as guaranteed in the 5th Amendment.

I often remark in talks I give and in what I write that the ESA must be repealed or at a minimum drastically amended. Aside from snickers and smiles this recommendation is frequently used to demean what else I say as the ravings of an idiot. When I was asked by a young lady reporter a few months ago if I thought the ESA did any good at all, I was taken aback and after a minute or so I had to admit that I saw no good from the ESA in the past 40 years that could not have been achieved with far less harmful consequences without the ESA.

So what does “American life without the ESA” mean? I have taken this tack, no doubt, after reflecting on the movie “America” that my wife and I saw last week. While one, i.e. “life without America”, would be a great sadness and loss to the entire world: the other, i.e. “American life without the ESA” would be a great boon to all Americans by restoring the rule of law to invigorating the national economy by putting rural Americans back in charge of their own destinies and the natural resources that abound all around them.

WITHOUT the ESA:

- Citizens concerned about a certain fish or a bird would have access to the US Congress to seek some remedy. They could make their case and request funding or a new law within the confines of Section 8 of the US Constitution that defines the “Power” the “Congress shall have”.
- Any such proposed law or funding would be subject to review and a vote in the House and in the Senate, as well as concurrence (Veto Power) by the President.
- The review of such a proposal involves a PUBLIC Hearing including statements by the proposers, comments by bureaucrats, and the pros and cons of supporters and opponents. Unlike the rigged “public hearings” sponsored and conducted by bureaucrats (like the old Soviet “show trials”) of the past 40 years that simply rubber-stamp bureaucratic ESA plans; such public hearings before Congress give Americans a fair chance before-the-fact to expose, question, and either modify or defeat the sort of hidden ESA chicanery of the past 40 years.

Consider how such public Congressional Hearings might allow for those being targeted to address Congress and the sort of questions an honest Congressman or Senator might be briefed to ask:

- “What is the position of the State government?”
- “Who will pay for this after this federal subsidy ends in X years?”
- “What effect will this have on Local government authority and revenue?”
- “Do you have any statements of support from the affected Local governments? Why not?”
- “What is the estimate of the increased danger to humans posed by these animals?”
- “What will be the effect on ranchers and farmers? What will their costs be?”
- What effect will this have on disease transmissions to humans, livestock and dogs?”
- “Who will pay for the resulting damages?”
- “How will landowners and animal owners be compensated for reduced land values and other losses of their property?”
- “How will lost power generation or lost irrigation capacity be replaced?”
- “How will lost revenues to State and Local government be mitigated?”
- “What is the Cost/Benefit Ratio for the closure of this area and these natural resource uses versus the claimed perpetual increase in animal X?”
- “Where are the statements of Veterinarians and Agriculturalists about how these proposals will modify animal and plant health and communities?”
- “How do you propose to maintain hunting and fishing revenues and programs with this project in place and considering the necessary diversion of state fish and wildlife program funds?”
- “What is the position of Rocky Mtn. Elk, or National Cattlemen’s Assoc., or Southern Timber Owners Assoc., or Pheasants Forever, or United Great Lakes Fishermen, or the residents of Timbuktu who will see their roads closed and economies hard hit?”
- “What studies confirm that this project is necessary and that this recommendation will work? What if it does not work as stated? What are the other alternatives?”
- “Under what authority can you assign a federal responsibility like livestock loss compensation to a private organization like Defenders of Wildlife who is a supporter of this bill?”
- “Where, in Federal Statutes, is there authority for the federal government to restore the native ecosystem everywhere despite opposition from state governments, Local governments, private property owners, and/or rural American residents?”
- “Why do you propose we compensate livestock owners for losses but not dog owners?”
- “If we pass this proposal and some people are killed by these animals next year or several years down the road, are we liable for placing them there? If not; why not?”
- Why does access to or recreational use of these public lands need to be restricted in conjunction with this proposal?”
- “Are you seriously requesting that we devastate the (logging, farming, ranching, power) industry and the rural American communities they support because you cannot think of any other way to maintain this (owl, smelt, wolf, bear, darter, bat, etc.)? We need people that tell us how this animal can be maintained in OUR community: not how WE must be managed to exist in theirs.”

I could go on here for pages but you get the point. Yes it would be difficult for concerned citizens and time-consuming for Congress (if they entertained much of it). Yes the vaunted bureaucrat/biologists and their fellow-“scientists” would once again serve US and not the other way around. If something is REALLY and DEMONSTRABLY important Congress could baby it along and reap the grateful votes of supporters and a solution tested by open discourse and opposition would sink or swim on its’ own.

It’s the American Way!

Jim Beers
26 July 2014

If you found this worthwhile, please share it with others. Thanks.

Jim Beers is a retired US Fish & Wildlife Service Wildlife Biologist, Special Agent, Refuge Manager, Wetlands Biologist, and Congressional Fellow. He was stationed in North Dakota, Minnesota, Nebraska, New York City, and Washington DC. He also served as a US Navy Line Officer in the western Pacific and on Adak, Alaska in the Aleutian Islands. He has worked for the Utah Fish & Game, Minneapolis Police Department, and as a Security Supervisor in Washington, DC. He testified three times before Congress; twice regarding the theft by the US Fish & Wildlife Service of $45 to 60 Million from State fish and wildlife funds and once in opposition to expanding Federal Invasive Species authority. He resides in Eagan, Minnesota with his wife of many decades.

Jim Beers is available to speak or for consulting. You can receive future articles by sending a request with your e-mail address to: jimbeers7@comcast.net

Feds Declare Mouse Endangered. Move Toward Shutting Down Family Ranch

A family’s livestock enterprise in New Mexico is in danger of being completely shut down now that the U.S. Fish and Wildlife Service has declared the meadow jumping mouse to be an endangered species, Watchdog reports.

The new regulations came into effect from the U.S. Fish and Wildlife Service last month, and as a result, the U.S. Forest Service is considering installing 8-foot high fences to protect the mouse, which would permanently prevent the Lucero family’s livestock from grazing.<<<Read More>>>

Reverse Invasion of Property

Reverse invasion of property
Marxist central control abolishes private property rights

This morning I heard on the Chad Hasty Show talk about the “need” for some sort of environmental study regarding the sonic booms in Midland and their effect on the prairie chicken aka pinnated grouse.

Hunting with even light shotgun bird loads for dove in grouse habitat causes sonic booms as the projectile breaks the sound barrier, yet, I’ve never before heard any such ridiculous objection.

The recently proposed Federal Register regulations say that no invasion of the properties will occur as a part of their [Marxist top-down central] “planning” [and control].

Those proposed regulations, 79 Federal Register 27060 and 27052, can be easily found with a google or bing search. The comment period for one of them ends tomorrow, 11 July 2014.

Prohibiting sonic booms on land adjacent to grouse breeding grounds seems like a reverse invasion of property. I’ve never heard of a reverse invasion before but I have heard of reverse condemnation. In addition, their low-level population surveys invade private property, so the Fed Register regs are based on a lie. There I said it.

How are they going to cite people for violations without invading the private land? We know full well the regulations constitute an illegitimate Marxist taking.

If there are no meaningful remedies in the administrative system (Progressive Kangaroo Court), then the long term benefits of correctly tying Marxist Socialism (Communism) to the Endangered Species Act when applied to private property are obvious. Since 1973 this nonsense has been going on. Even for biblical times, 40 years is long enough to wander the communist wilderness. It’s time to find our way out. Learn how to say No.

Ludwig von Mises figured all this out and published his analysis in 1951. There is no point in reinventing the wheel. It’s not rocket science. It’s time to start saying No.

“Takings (E.O. 12630)

In accordance with Executive Order 12630, we have determined the
proposed rule does not have significant takings implications.
A takings implication assessment is not required because this rule
(1) will not effectively compel a property owner to suffer a physical
invasion of property and (2) will not deny all economically beneficial
or productive use of the land or aquatic resources. This rule would
substantially advance a legitimate government interest (conservation
and recovery of listed species) and would not present a barrier to all
reasonable and expected beneficial use of private property.”
http://www.gpo.gov/fdsys/pkg/FR-2014-05-12/html/2014-10503.htm

Will Feds Be Successful in Defining “Significant Portion of its Range?”

“The ESA defines an endangered species as “any species that is in danger of extinction throughout all or a significant portion of its range.” But the law didn’t define what qualifies as a significant portion.

Under this new policy, “significant” indicates that one portion of the species is so important to the survival of the species as a whole that, if it were lost, the species would likely go extinct.”<<<Read More>>>

USFWS Proposed Lynx Assessment: Increase Critical Habitat in Northern Maine/Wyoming on Private Land

“The lynx was protected under the ESA in 2000, when it was listed as threatened throughout its range in the contiguous United States, due to the inadequacy, at that time, of existing regulatory mechanisms. The Service designated critical habitat for the species in 2006 and revised the designation in 2009 to include habitat in six northern states. The current proposal includes most of the areas designated in 2009, as well as additional private timber lands in northern Maine, and Bureau of Land Management and National Park Service lands in northwestern Wyoming.”<<<Read More>>>

ESA Abuse Causing Desire Economic Destruction

“Curry County (71025MF), with heavily wooded tracts along the rugged Oregon coast, is verging on insolvency after U.S. officials designated the northern spotted owl as a threatened species, drying up area timber revenue and making the region reliant on federal subsidies that have ended.”<<<Read More>>>