Moving Birds Nests-Derail

[Seth]

There is a loop of the Clark Fork that comes very close to Hwy 91. Within that loop there is a stand of cottonwoods. As long as I have been driving that hwy there has been an eagle nest in the cottonwoods. I have seen the birds and seen their babies. They are sitting in it right now. They don't seem to be bothered by the activity on the Hwy. As a matter of fact I see all kinds of wildlife all along that area, none of which seems to be bothered by the Hwy. It is all private ranch land. Cattle, sandhill cranes, foxes, beaver, porcupines, bears, deer, antelope, and eagles all tolerating each other and living in harmony.

But if you walk into that loop, even with the landowner's permission, you're subject to fine and imprisonment.

You know, they do make pills to help out with the paranoia.

Just saying.

Easy to say when it's not your ass on the line. I've interfaced with the feds, and they don't give a flying fuck about landowners or anyone else, and they will hammer anyone who "disturbs" an eagle if they can. They are about as arrogant and officious as it gets, and they think they own everything, or should.

[Gawdzilla Sama]

Easy to say when it's not your ass on the line. I've interfaced with the feds, and they don't give a flying fuck about landowners or anyone else, and they will hammer anyone who "disturbs" an eagle if they can. They are about as arrogant and officious as it gets, and they think they own everything, or should.

And don't we just hate it when someone acts like that. *cough*

[MrJonno]

Right so if you own land you can do whatever you want on it?, whether its knock down the local wildlife, build a house or turn into fairground?

Err I don't think so I assume even the US has planning permission laws?

[Gawdzilla Sama]

Right so if you own land you can do whatever you want on it?, whether its knock down the local wildlife, build a house or turn into fairground?

Err I don't think so I assume even the US has planning permission laws?

In some areas. Zoning laws are generally followed, though if you know somebody in City Hall...

[Seth]

Right so if you own land you can do whatever you want on it?, whether its knock down the local wildlife, build a house or turn into fairground?

Err I don't think so I assume even the US has planning permission laws?

Of course there are zoning and building laws. But the distinction between a valid zoning or building law and a governmental regulatory taking is the distinction between a regulation intended to prevent harm, particularly an exported harm, occasioned by the actions of the landowner, and a regulation that removes what the court calls an "essential strand" in the bundle of rights that the property owner has as a part of owning private property, without which the individual cannot reasonably use and enjoy his property. Some of those essential strands are the right to make a profit, the right to occupy, use and enjoy, the right to devise or sell, the right to be compensated if the government takes your property for public use, and the right to exclude others.

A zoning law that says "you can only build a house this big and this far from the property lines" is a valid police power exercise by the government intended to prevent the export of harm of jamming houses together, which causes safety and public health problems. A zoning law that says "you can only build a structure this high" is likewise rationally related to a legitimate police-power exercise by the government.

But a zoning regulation that says "in order to build your house adjacent to a public beach, you must grant permission (or give land) for a public pathway to the beach" violates the right to exclude others, which is a violation so fundamental that the Court has ruled that no other inquiry is necessary in order to rule it a taking. (Nolan v. California Coastal Commn.).

The issue of when a regulation goes "too far" and becomes a taking is, however, quite complex and not generally amenable to quick general answers, but it's based in the Constitutional notion that the government cannot take for public use without paying for what it takes.

In the Nolan case, the permission to build a house was conditioned upon providing a public right-of-way to the beach across private property. The crux of the case was the fact that the owner of the property had done nothing to necessitate such public access. There was no public access before he asked for a permit to build, and there were other places for the public to access the beach further down the road. So, according to the Involuntary Good Samaritan test, the evident purpose of the regulation was to require the homebuilder to become a "good Samaritan" against his will, even though his actions had not caused the need for the taking. The Coastal Commission wanted to IMPROVE the public's access to the beach and it tried to do so by essentially extorting permission for the public to cross private land without having to actually condemn and purchase the land at the fair market value using eminent domain, which it certainly could have done. But it didn't want to pay for the new access, and that's what ultimately caused the court to rule against it.

To illustrate the difficult nature of the issue, we can look at the case of a person building a commercial building along a busy highway who is required to donate land to the city in order to improve the adjacent street with turn lanes and signals. Is the government "taking" property from the business owner as a condition of approving the construction? Yes, but the difference is that he has necessitated the need for the land transfer because his commercial activity will cause traffic issues for the public that must be resolved at the business owner's expense if he is to be permitted to build. Otherwise, his commercial building would cause traffic problems and the public would be required to pay for the improvements, which would unfairly burden the public to the benefit of the businessman.

In the case of my ranch, I have done nothing to occasion the need to protect the eagles, and the evident purpose of the regulation is that the public wishes to make use of my property to satisfy some value that it has regarding eagles for which I'm not responsible. Like the Nolan case, I'm required to be an involuntary good Samaritan and donate the use of my land for the public's benefit without my having caused the need and without being compensated for the physical intrusion on my right to use and enjoy my property.

So yes, zoning laws exist, but they don't properly address this sort of problem, which is akin to the government physically ejecting someone from their land in order to turn it into a public park, which always requires just compensation because any physical invasion by the government, or by the public at the government's command, is automatically a taking.

[hiyymer]

Right so if you own land you can do whatever you want on it?, whether its knock down the local wildlife, build a house or turn into fairground?

Err I don't think so I assume even the US has planning permission laws?

Of course there are zoning and building laws. But the distinction between a valid zoning or building law and a governmental regulatory taking is the distinction between a regulation intended to prevent harm, particularly an exported harm, occasioned by the actions of the landowner, and a regulation that removes what the court calls an "essential strand" in the bundle of rights that the property owner has as a part of owning private property, without which the individual cannot reasonably use and enjoy his property. Some of those essential strands are the right to make a profit, the right to occupy, use and enjoy, the right to devise or sell, the right to be compensated if the government takes your property for public use, and the right to exclude others.

A zoning law that says "you can only build a house this big and this far from the property lines" is a valid police power exercise by the government intended to prevent the export of harm of jamming houses together, which causes safety and public health problems. A zoning law that says "you can only build a structure this high" is likewise rationally related to a legitimate police-power exercise by the government.

But a zoning regulation that says "in order to build your house adjacent to a public beach, you must grant permission (or give land) for a public pathway to the beach" violates the right to exclude others, which is a violation so fundamental that the Court has ruled that no other inquiry is necessary in order to rule it a taking. (Nolan v. California Coastal Commn.).

The issue of when a regulation goes "too far" and becomes a taking is, however, quite complex and not generally amenable to quick general answers, but it's based in the Constitutional notion that the government cannot take for public use without paying for what it takes.

In the Nolan case, the permission to build a house was conditioned upon providing a public right-of-way to the beach across private property. The crux of the case was the fact that the owner of the property had done nothing to necessitate such public access. There was no public access before he asked for a permit to build, and there were other places for the public to access the beach further down the road. So, according to the Involuntary Good Samaritan test, the evident purpose of the regulation was to require the homebuilder to become a "good Samaritan" against his will, even though his actions had not caused the need for the taking. The Coastal Commission wanted to IMPROVE the public's access to the beach and it tried to do so by essentially extorting permission for the public to cross private land without having to actually condemn and purchase the land at the fair market value using eminent domain, which it certainly could have done. But it didn't want to pay for the new access, and that's what ultimately caused the court to rule against it.

To illustrate the difficult nature of the issue, we can look at the case of a person building a commercial building along a busy highway who is required to donate land to the city in order to improve the adjacent street with turn lanes and signals. Is the government "taking" property from the business owner as a condition of approving the construction? Yes, but the difference is that he has necessitated the need for the land transfer because his commercial activity will cause traffic issues for the public that must be resolved at the business owner's expense if he is to be permitted to build. Otherwise, his commercial building would cause traffic problems and the public would be required to pay for the improvements, which would unfairly burden the public to the benefit of the businessman.

In the case of my ranch, I have done nothing to occasion the need to protect the eagles, and the evident purpose of the regulation is that the public wishes to make use of my property to satisfy some value that it has regarding eagles for which I'm not responsible. Like the Nolan case, I'm required to be an involuntary good Samaritan and donate the use of my land for the public's benefit without my having caused the need and without being compensated for the physical intrusion on my right to use and enjoy my property.

So yes, zoning laws exist, but they don't properly address this sort of problem, which is akin to the government physically ejecting someone from their land in order to turn it into a public park, which always requires just compensation because any physical invasion by the government, or by the public at the government's command, is automatically a taking.

What do you ranch, anyways? Sheep?

[Seth]

What do you ranch, anyways? Sheep?

Until quite recently, cattle.

[mistermack]

What you don't seem to understand is the word "own".
If you own something, that doesn't give you god-like rights.
You don't have unlimited rights. Even though you "own" something, your rights are limited by law. And owning something can also impose duties on the owner.

A lot of people just can't get their heads round that simple concept, but it applies to lots of things besides land.
if you buy cattle, or other livestock, you also acquire a duty to care for them.

If you own cattle country, the cattle are unlikely to evict the eagles.
.

[Gawdzilla Sama]

What you don't seem to understand is the word "own".
If you own something, that doesn't give you god-like rights.
You don't have unlimited rights. Even though you "own" something, your rights are limited by law. And owning something can also impose duties on the owner.

A lot of people just can't get their heads round that simple concept, but it applies to lots of things besides land.
if you buy cattle, or livestock, you also acquire a duty to care for them.

If you own cattle country, the cattle are unlikely to evict the eagles.
.

Hey, we have the right to set off nuclear weapons on our property! If it happens to spill over to the neighbor's, that's their problem. Same with driving the eagles to extinction. If we don't want them on our property, then extinction is a viable alternative. To hell with anybody who thinks they're important to a healthy ecology. By the time the ecology is dead in the water we probably won't be around. So there's no reason to be concerned about any "ecology" that doesn't make us a profit.

Don't make me tell you again.

[Seth]

What you don't seem to understand is the word "own".

I think I understand it far, far better than you do.

If you own something, that doesn't give you god-like rights.

And I've never claimed that it does, so this is a straw man argument.

You don't have unlimited rights. Even though you "own" something, your rights are limited by law. And owning something can also impose duties on the owner.

Something which I've acknowledged repeatedly and in detail, so, another straw man argument.

A lot of people just can't get their heads round that simple concept, but it applies to lots of things besides land.
if you buy cattle, or other livestock, you also acquire a duty to care for them.

Indeed, but it's a duty that I choose to undertake willingly. Government cannot impose that duty upon me, however, without my consent. I cannot be held responsible for the fate of feral range cattle because I do not own them.

If you own cattle country, the cattle are unlikely to evict the eagles.

Another straw man. It's not the cattle that do the evicting, it's potentially the actions that I must undertake as steward of the cattle, pursuant to the duty that you describe, that might. For example, if one of my heifers is having difficulty calving under the eagle's nesting tree, I take a substantial risk of violating federal law and being subject to fine and imprisonment if my attempts to save my cow and calf cause the eagles to abandon an egg or chick.

So, I'm burdened with a "damned if I do, damned if I don't" situation that is extremely unfair, given the fact that the tree, and the land under the tree, and the airspace over the surface of the land that the eagles fly are all things I paid for that belong to me, and that the government has no authority to turn to its own use for eagle breeding without compensating me for that taking.

[Seth]

What you don't seem to understand is the word "own".
If you own something, that doesn't give you god-like rights.
You don't have unlimited rights. Even though you "own" something, your rights are limited by law. And owning something can also impose duties on the owner.

A lot of people just can't get their heads round that simple concept, but it applies to lots of things besides land.
if you buy cattle, or livestock, you also acquire a duty to care for them.

If you own cattle country, the cattle are unlikely to evict the eagles.
.

Hey, we have the right to set off nuclear weapons on our property! If it happens to spill over to the neighbor's, that's their problem. Same with driving the eagles to extinction. If we don't want them on our property, then extinction is a viable alternative. To hell with anybody who thinks they're important to a healthy ecology. By the time the ecology is dead in the water we probably won't be around. So there's no reason to be concerned about any "ecology" that doesn't make us a profit.

Don't make me tell you again.

More straw man and red herring arguments.

[mistermack]

Government cannot impose that duty upon me, however, without my consent. I cannot be held responsible for the fate of feral range cattle because I do not own them.

That's where you are out of touch with reality. Government can do exactly that. How do you propose to stop them? And who's going to help you?
The power rests with the government, and the courts.
All you've got is a vote.
That's the reality. Take on the state if you like. You'll lose, and of course you know it, in the part of your mind that's still in touch with reality.

My family's farm has two rivers on it's border. There are trout, otters, cormorants ect. It's illegal to pollute those rivers, even though we have title to the land. It's illegal to poison the fish, or kill the otters. And so it should be. And nobody has ever expected compensation. Because that is ludicrous. It's part of the many duties you have, as a land-owner.

The property rights you are dreaming about have never existed.
Years ago, you held your land by permission from the local lord, he the same to a Baron, and the Barons to the King.
You are not a king, and never will be. Face it. It's called reality.

[Seth]

Government cannot impose that duty upon me, however, without my consent. I cannot be held responsible for the fate of feral range cattle because I do not own them.

That's where you are out of touch with reality. Government can do exactly that. How do you propose to stop them? And who's going to help you?
The power rests with the government, and the courts.
All you've got is a vote.
That's the reality. Take on the state if you like. You'll lose, and of course you know it, in the part of your mind that's still in touch with reality.

How do I propose to stop them? With the law, of course.

My family's farm has two rivers on it's border. There are trout, otters, cormorants ect. It's illegal to pollute those rivers, even though we have title to the land. It's illegal to poison the fish, or kill the otters. And so it should be. And nobody has ever expected compensation. Because that is ludicrous. It's part of the many duties you have, as a land-owner.

That's because you don't own the water or the wildlife, so for you to poison them would be to export harm from your property to someone else, which is an entirely different concept in the law. The state, however, cannot prevent you from farming on your land simply because there is wildlife that uses the stream, for that would be to take your land to use it to satisfy the needs of the public in preserving those wildlife resources without compensating you for that taking. You have a right to farm your land and use and enjoy it as you see fit short of exporting harm to others. So do I.

The property rights you are dreaming about have never existed.

Evidently you don't understand our Constitution or it's foundation.

Years ago, you held your land by permission from the local lord, he the same to a Baron, and the Barons to the King.
You are not a king, and never will be. Face it. It's called reality.

Not in this country it's not.

[mistermack]

For example, if one of my heifers is having difficulty calving under the eagle's nesting tree, I take a substantial risk of violating federal law and being subject to fine and imprisonment if my attempts to save my cow and calf cause the eagles to abandon an egg or chick.

I have to agree, in that situation, you are completely fucked. Because something like that calls for common sense.

[Seth]

For example, if one of my heifers is having difficulty calving under the eagle's nesting tree, I take a substantial risk of violating federal law and being subject to fine and imprisonment if my attempts to save my cow and calf cause the eagles to abandon an egg or chick.

I have to agree, in that situation, you are completely fucked. Because something like that calls for common sense.

So which do I choose? Save my property and risk a federal investigation and prosecution, or let my cows die? What "common sense" solution indemnifies me on my own property from being the target of the F&WS and federal prosecutors, pray tell? Am I supposed to file for a permit to enter that 33 acre exclusion zone and ask permission of the feds? By that time the cow and calf will be dead. What's the answer, Mr. Federal Law Expert? Please, I'd love to hear it, because the last time I asked the Feds that very question, their only answer was to point to the Eagle Protection Act and warn me that if I did ANYTHING to cause the "take" of an eagle, they could prosecute me.

So what's that "common sense" you seem to think is going to protect me on my own land, hm?

Or are you just pulling shit out of your ass again because you don't have a rational position to expound?