Sage Grouse

[Tero]

Seth, you can be fined $50 000, federal fine, for "taking" endangered species on your own property. Therefore, you and your state do not own them.

Wrong. The fine is for violating the federal proscription on taking endangered species. It has nothing to do with the ownership of the animal, which belongs to the several states. This has been long established in law, which is why, for example, Montana and Wyoming can have wolf hunting seasons now that the wolf is no longer an endangered species.

If the federal government took title to the species it would have plenary control over hunting, which it does not. The states do.

But the states can't give permits for endangered species. Those are no longer state species. There are in addition international treaties for migratory birds. You may not capture and domesticate them. Non of this has anything to do with you and hunting. They have scattered federal wildlife areas all over your state. You cannot shoot even deer there.

[Seth]

Seth, you can be fined $50 000, federal fine, for "taking" endangered species on your own property. Therefore, you and your state do not own them.

Wrong. The fine is for violating the federal proscription on taking endangered species. It has nothing to do with the ownership of the animal. This has been long established in law, which is why, for example, Montana and Wyoming can have wolf hunting seasons now that the wolf is no longer an endangered species.

If the federal government had title to the species it would have plenary control over hunting, which it does not.

But the states can't give permits for endangered species.

So what?

Those are no longer state species.

They are nobody's species actually. Upon review of some pertinent cases I must amend my statement.

There are in addition international treaties for migratory birds. You may not capture and domesticate them.

That doesn't control title.

Non of this has anything to do with you and hunting. They have scattered federal wildlife areas all over your state. You cannot shoot even deer there.

If it's federal property the ban on hunting is based on title to the property, not the wildlife. If a deer is standing on the federal side of the boundary, you can't shoot it, but if it steps over the line (or goes outside the National Park) then you can shoot it in accordance with STATE hunting regulations, even if it's on federal property otherwise open to hunting (national forests)

The issue of who controls the taking of game within a state was settled in 1896.

"A State does not stand in the same position as the owner of a private game preserve, and it is pure fantasy to talk of 'owning' wild fish, birds, or animals. Neither the States nor the Federal Government, any more than a hopeful fisherman or hunter, has title to these creatures until they are reduced to possession by skillful capture. . . . Geer v. Connecticut,161 U. S. 519, 161 U. S. 539-540 (1896)
...
The 'ownership' language of cases such as those cited by appellant must be understood as no more than a 19th-century legal fiction expressing 'the importance to its people that a State have power to preserve and regulate the exploitation of an important resource.' [Citing Toomer.] Under modern analysis, the question is simply whether the State has exercised its police power in conformity with the federal laws and Constitution." Hughes v. Oklahoma, 441 U.S. 322 (1979)

All unreserved natural resources of a state belong to the state, which is to say the people of that state, in common, and the state has the authority to regulate such resources so long as it does not do so in ways repugnant to the Commerce Clause.

This is why a state may regulate the taking of wild game, but may not prohibit the export of that game from the state once lawfully reduced to individual possession. Nor may a state discriminate against a non-state resident by forbidding such persons from taking game, although it may regulate that taking, including charging higher non-resident hunting license fees.

So I'm wrong in saying that wildlife is "owned by" a state, and you are wrong in saying it's "owned by" the federal government. Neither is true. Wildlife is "fera naturae and is a resource held in common by the people of the state until it is reduced to lawful possession, at which point it becomes private property.

While both the state and federal government may regulate the taking of wildlife, it is the act of taking that is regulated rather than any transfer of property rights from one governmental entity to the private individual. Title to the animal "appears" as a function of the "skillful capture" of the animal from the wild in accordance with the regulations pertaining thereto.

[piscator]

The issue of who controls the taking of game within a state was settled in 1896.

"A State does not stand in the same position as the owner of a private game preserve, and it is pure fantasy to talk of 'owning' wild fish, birds, or animals. Neither the States nor the Federal Government, any more than a hopeful fisherman or hunter, has title to these creatures until they are reduced to possession by skillful capture. . . . Geer v. Connecticut,161 U. S. 519, 161 U. S. 539-540 (1896)
...
The 'ownership' language of cases such as those cited by appellant must be understood as no more than a 19th-century legal fiction expressing 'the importance to its people that a State have power to preserve and regulate the exploitation of an important resource.' [Citing Toomer.] Under modern analysis, the question is simply whether the State has exercised its police power in conformity with the federal laws and Constitution." Hughes v. Oklahoma, 441 U.S. 322 (1979)

All unreserved natural resources of a state belong to the state, which is to say the people of that state, in common, and the state has the authority to regulate such resources so long as it does not do so in ways repugnant to the Commerce Clause.

This is why a state may regulate the taking of wild game, but may not prohibit the export of that game from the state once lawfully reduced to individual possession. Nor may a state discriminate against a non-state resident by forbidding such persons from taking game, although it may regulate that taking, including charging higher non-resident hunting license fees.

So I'm wrong in saying that wildlife is "owned by" a state, and you are wrong in saying it's "owned by" the federal government. Neither is true. Wildlife is "fera naturae and is a resource held in common by the people of the state until it is reduced to lawful possession, at which point it becomes private property.

While both the state and federal government may regulate the taking of wildlife, it is the act of taking that is regulated rather than any transfer of property rights from one governmental entity to the private individual. Title to the animal "appears" as a function of the "skillful capture" of the animal from the wild in accordance with the regulations pertaining thereto.

Mostly correct, tho the reason the Fed manages migratory waterfowl hunting is because migratory birds are migratory, and can't be said to be a resource of a single state. The inability of states to come to binding agreement wrt duck and goose management necessitated the Federal gov stepping in.
The ESA does not violate the takings clause of the 4th Amendment. The Fed typically manages hunting on Federal Wildlife reservations merely by controlling access.

[Seth]

The issue of who controls the taking of game within a state was settled in 1896.

"A State does not stand in the same position as the owner of a private game preserve, and it is pure fantasy to talk of 'owning' wild fish, birds, or animals. Neither the States nor the Federal Government, any more than a hopeful fisherman or hunter, has title to these creatures until they are reduced to possession by skillful capture. . . . Geer v. Connecticut,161 U. S. 519, 161 U. S. 539-540 (1896)
...
The 'ownership' language of cases such as those cited by appellant must be understood as no more than a 19th-century legal fiction expressing 'the importance to its people that a State have power to preserve and regulate the exploitation of an important resource.' [Citing Toomer.] Under modern analysis, the question is simply whether the State has exercised its police power in conformity with the federal laws and Constitution." Hughes v. Oklahoma, 441 U.S. 322 (1979)

All unreserved natural resources of a state belong to the state, which is to say the people of that state, in common, and the state has the authority to regulate such resources so long as it does not do so in ways repugnant to the Commerce Clause.

This is why a state may regulate the taking of wild game, but may not prohibit the export of that game from the state once lawfully reduced to individual possession. Nor may a state discriminate against a non-state resident by forbidding such persons from taking game, although it may regulate that taking, including charging higher non-resident hunting license fees.

So I'm wrong in saying that wildlife is "owned by" a state, and you are wrong in saying it's "owned by" the federal government. Neither is true. Wildlife is "fera naturae and is a resource held in common by the people of the state until it is reduced to lawful possession, at which point it becomes private property.

While both the state and federal government may regulate the taking of wildlife, it is the act of taking that is regulated rather than any transfer of property rights from one governmental entity to the private individual. Title to the animal "appears" as a function of the "skillful capture" of the animal from the wild in accordance with the regulations pertaining thereto.

Mostly correct, tho the reason the Fed manages migratory waterfowl hunting is because migratory birds are migratory, and can't be said to be a resource of a single state.

Or of a single nation for that matter.

The inability of states to come to binding agreement wrt duck and goose management necessitated the Federal gov stepping in.

Problem is I'm not sure that the federal government has the inherent constitutional power to step in to non-commerce interstate movement of game birds. They had to concoct the authority to do so by signing international treaties.

The ESA does not violate the takings clause of the 4th Amendment.

I disagree, at least insofar as it is applied in many cases. Excluding a landowner from a 34 acre circle around an eagle's nest on the threat of fine and/or imprisonment clearly violates the most fundamental of the bundle of rights a property owner has: the right to exclusive possession, occupation and use of his land. By crafting both the ESA and the Bald and Golden Eagle Protection Act (still in effect) so that a rancher cannot functionally access or use the acreage within 600 feet of an active eagle nest the federal government has clearly "taken" that property for use as an eagle-rearing site that it claims absolute dominion and control over.

The same is true of any government restriction on private property that effectively renders the property valueless through regulation. It's called "regulatory taking."

[Tero]

Sirry Seth, commerce clause is only 16 words. The ESA is not about hunting. International agreements trump all state laws and agreements with land owners. I'm sending Obama to collect all grouse and migratory burds (the international part) from your property. You may be poisoning coyotes there.

[laklak]

Obama couldn't catch a cold, let alone trap a bird. Putin, OTOH, could shoot the shit out of them.

[Seth]

Sirry Seth, commerce clause is only 16 words.

Right. "[The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;"

What part of "among the several States" is unclear. If the commerce does not cross state lines, the Congress has no power to regulate it.

The ESA is not about hunting.

Correct. It's (in part) about taking private property for public use without just compensation, which is unconstitutional.

International agreements trump all state laws and agreements with land owners.

No they don't. No international agreement or treaty that violates the constitutional rights of a citizen of the United States is valid or enforceable.




I'm sending Obama to collect all grouse and migratory burds (the international part) from your property. You may be poisoning coyotes there.[/quote]

[Tero]

We're sending the UN helicopters to collect your grouse.

[pErvinalia]

We're sending the UN helicopters to collect your grouse.

Thanks bro!