December 16, 2018

Stay Off My Land You SOB

Or something like that. This morning I was reading George Smith’s article in which he stated that it was time for the Maine Legislature to enact two new laws. One would make it legal to provide “wild game” dinners and charge money for them.

Probably in this day and age, it is about time. But before Mainers go changing and/or creating more laws, they should understand that this law was first created in conjunction with commercial hunting. Lawmakers at the time believed that allowing commercial establishments to continue selling and serving “wild game” dinners, after the prohibition of commercial hunting, might promote illegal hunting. Perhaps those days are over? I dunno.

The second proposed law would be to make it illegal for people to enter private land and “pick crops on private land, such as mushrooms and fiddleheads.” He also suggests that, “No one else should be able to take those crops from our woodlot, without our permission.” And, “What gave him the idea that this was ok without asking us? Time to stop this bad behavior and show more respect for private landowners.

I’m not disagreeing with Smith’s notions. But is making a law that bans access to private land to “pick crops” the right choice and the direction Maine residents really want to go in? I would think and support an education program to teach people about respect of private land and the benefits all residents have by keeping private land accessible. Learning respect involves the act of seeking permission from a landowner – which is much more common today than ten or more years ago. What exists for education programs is working but more effort and time, and patience, is needed. Whatever is done, it will never stop them all. No law ever does.

Can we conclude that respectful people will seek permission, especially if it involves “taking” something from the land and that those, either ignorant or brazen enough to steal, probably will continue to do it even if a law is passed?

Maine is one of those rare states where private land is considered open to the public unless the landowner legally posts his/her property. This is a benefit to all people of the outdoors, some of whom may not fully understand that benefit, perhaps because they have never experienced locked-up private land. By forcing a law through the Legislature to prohibit access to private land to “pick crops,” steers the state in a direction toward reversal of the existing state of private land access. If a law is passed intended to prevent somebody from stealing mushrooms and fiddleheads, what is to stop the next person from seeking a law to prevent taking a walk, or fishing, etc.?

Outdoor recreation, including hunting and fishing, will drastically change when private land becomes closed and written permission needed to access it for any reason.

From my perspective, and yes, I am a landowner in Maine, Smith’s proposed law is a bit draconian. There is a difference between simple trespass and theft. There already exists laws on the books that make it illegal to take something that is not yours. What makes Smith believe that a law stating a specific event will make any difference?

Piling laws up on the books has proven to be a waste of time. There are so many laws now, few can or are ever enforced. This is a thoughtless reaction we often hear when someone says, “There ought to be a law!” In this case there doesn’t need to be a law, because there already is one. There needs to be some education that will target the disrespectful, but generally law-abiding people citizens, to learn that taking mushrooms and fiddleheads, apples, potatoes, Christmas trees, or any other privately owned property is already illegal.

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Of Public, Common, And Private Property

Edition Used:
The Law of Nations, Or, Principles of the Law of Nature, Applied to the Conduct and
Affairs of Nations and Sovereigns, with Three Early Essays on the Origin and Nature
of Natural Law and on Luxury, edited and with an Introduction by Béla Kapossy and
Richard Whitmore (Indianapolis: Liberty Fund, 2008).
Author: Emer de Vattel
Editor: Béla Kapossy
Editor: Richard Whitmore

Chapter XX, ppgs 141, 142

Besides the eminent domain, the sovereignty gives a right of another nature over all public, common, and private property,—that is, the empire, or the right of command in all places of the country belonging to the nation. The supreme power extends to every thing that passes in the state, wherever it is transacted; and consequently the sovereign commands in all public places, on rivers, on highways, in deserts, &c. Every thing that happens there is subject to his authority.

In virtue of the same authority, the sovereign may make laws to regulate the manner in which common property is to be used,—as well the property of the nation at large, as that of distinct bodies or corporations. He cannot, indeed, take away their right from those who have a share in that property: but the care he ought to take of the public repose, and of the common advantage of the citizens, gives him doubtless a right to establish laws tending to this end, and consequently to regulate the manner in which things possessed in common are to be enjoyed. This affair might give room for abuses, and excite disturbances, which it is important to the state to prevent, and against which the prince is obliged to take just measures. Thus the sovereign may establish wise laws with respect to hunting and fishing,—forbid them in the seasons of propagation,—prohibit the use of certain nets, and of every destructive method, &c. But as it is only in the character of the common father, governor, and guardian of his people, that the sovereign has a right to make those laws, he ought never to lose sight of the ends which he is called upon to accomplish by enacting them: and if, upon those subjects, he makes any regulations with any other view than that of the public welfare, he abuses his power.

A corporation, as well as every other proprietor, has a right to alienate and mortgage its property: but the present members ought never to lose sight of the destination of that joint property, nor dispose of it otherwise than for the advantage of the body, or in cases of necessity. If they alienate it with any other view, they abuse their power, and transgress against the duty they owe to their own corporation and their posterity; and the prince, in quality of common father, has a right to oppose the measure. Besides, the interest of the state requires that the property of corporations be not squandered away;—which gives the prince, intrusted with the care of watching over the public safety, a new right to prevent the alienation of such property. It is then very proper to ordain in a state, that the alienation of the property of corporations should be invalid, without the consent of the superior powers. And indeed the civil law, in this respect, gives to corporations the rights of minors. But this is strictly no more than a civil law; and the opinion of those who make the law of nature alone a sufficient authority to take from a corporation the power of alienating their property without the consent of the sovereign, appears to me to be void of foundation, and contrary to the notion of property. A corporation, it is true, may have received property either from their predecessors, or from any other persons, with a clause that disables them from alienating it: but in this case they have only the perpetual use of it, not the entire andfree property. If any of their property was solely given for the preservation of the body, it is evident that the corporation has not a right to alienate it, except in a case of extreme necessity:—and whatever property they may have received from the sovereign, is presumed to be of that nature.

All the members of a corporation have an equal right to the use of its common property. But, respecting the manner of enjoying it, the body of the corporation may make such regulations as they think proper, provided that those regulations be not inconsistent with that equality which ought to be preserved in a communion of property. Thus a corporation may determine the use of a common forest or pasture, either allowing it to all the members according to their wants, or allotting to each an equal share; but they have not a right to exclude any one of the number, or to make a distinction to his disadvantage by assigning him a less share than that of the others.

All the members of a body having an equal right to its common property, each individual ought so to manage in taking advantage of it, as not in any wise to injure the common use. According to this rule, an individual is not permitted to construct upon any river that is public property, any work capable of rendering it less convenient for the use of every one else, as erecting mills, making a trench to turn the water upon his own lands, &c. If he attempts it, he arrogates to himself a private right, derogatory to the common right of the public.

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Greg Abbott accuses federal agency of illegal land grab

“Our Constitution — the same Constitution you have taken an oath to uphold — rests on the principle that governments are created to protect private property owners’ rights, not destroy them,” Abbott wrote to Bureau of Land Management Director Neil Kornze. “This principle is enshrined in the Fifth Amendment of our founding document. The BLM should demonstrate that the federal government still respects private property rights and end this unconscionable land grab.”

Source: Greg Abbott accuses federal agency of illegal land grab | | Dallas Morning News

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Wyoming man files suit over massive EPA fines for building pond

A rancher is taking the Environmental Protection Agency to federal court, asking a judge to stop the agency from fining him more than $16 million because he built a small pond on his property.

Andy Johnson of Fort Bridger, Wyoming says he made sure to get the proper permits from his state government before building the pond.

Johnson is facing millions in fines from the federal government after the EPA determined his small pond — technically a “stock pond” to provide better access to water for animals on his ranch — is somehow violating the federal Clean Water Act.

Source: Wyoming man files suit over massive EPA fines for building pond | Fox News

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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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Ludwig von Mises on Marxist Socialism (Communism)

Ludwig von Mises said in 1951 what I have been trying to say about “planning”, “oversight” and other illegitimate options to the constitutional requirement of the payment of just compensation for the State’s exercise of Eminent Domain.

Whether the private property is land for the prairie chicken, or groundwater for the “common good”, central control abolishes private property ala the Communist Manifesto and as such violates prohibitions against communism.

On the nature of ownership:
“Regarded as a sociological category ownership appears as the power to use economic goods. An owner is he who disposes of an economic good.” Page 37.
“It is the aim of Socialism to transfer the means of production from the private ownership to the ownership of organized society, to the State.”
“If the State takes the power of disposal from the owner piecemeal, by extending its influence over production; if its power to determine what direction production shall take and what kind of production there shall be, is increased, then the owner is left at last with nothing except the empty name of ownership, and property has passed into the hands of the State.” Page 56, “Socialism, An Economic and Sociological Analysis”, von Mises, 1951, reprint 2009)

“It is fundamental that the Constitution is the paramount law of the state and cannot be altered by legislative enactment.” Jones v. Ross, 173 S.W.2d 1022, 1024 (Tex. 1943)

This is not rocket science.

Ludwig von Mises 1 001

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Seventh Grader Kicked Out of School For Shooting Air Gun in His Own Yard

Here it comes America. Still thinking some of us are nuts and insist on burying your head in the sand because truth hurts?

We have officially become more than a police state, I believe, and proof of that comes from an expulsion from school of a seventh grade boy because he was seen on his parents’ property, waiting for the bus, and shooting a toy air pistol. He didn’t bring the toy gun on the bus nor to school and yet the Virginia Beach City Public School System kicked him out of school anyway.

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