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August 28, 2008

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Discussion Topic: Property Rights Or Poaching?

From the Craig Daily Press:

Moffat County [Colorado] rancher Rodney Culverwell, 41, is charged with 80 poaching crimes for allegedly killing 16 elk this winter.

His defense attorney said Culverwell acted in defense of his property because the elk continually destroyed hay and fencing this winter—[and the Colorado Division of Wildlife did nothing to stop it.]

The 14th Judicial District Attorney’s Office maintains Culverwell did not exhaust legal remedies before shooting elk.

Check out the full story and tell us what you think. Should Culverwell be allowed to shoot elk that are damaging his property?

Comments

Jay

The elk do not belong to Culverwell; they belong to the state of Colorado. He didn't have a license; therefore he is a poacher. There is no just cause to do what he did; its just an excuse to poach elk.

he had legal means to get rid of the elk and he chose to break the law. Case closed, throw the jerk in jail.

Mike Diehl

Hard to know about animals on his land. Don't most states have a process whereby you can get permission to kill wildlife that persistently damage crops?

IMO if he shot some of the animals when they weren't on his property, that's poaching.

jcarlin

I'm always torn on this issue. Let's assume he really did it to protect his property. Let's ignore the big game value of the animal. What I'm trying to get at is if our opinions would be so strong if this were rats and rats were protected? I know elk aren't rats, but I'm trying to bring it back to a property owner's rights and what he should expect to be able to do in order to protect his property. I think we in the hunting community get fired up on the emotional because it's game we'd like to pursue, but lose track of the pragmatism behind a landowner removing a nuisance. I'm sure a majority of property owners in elk country alleviate the damage by accepting money for hunts or hunting leases. Where's the balance?

Mike Diehl

My point, however, is that there are legal remedies for wildlife damage. Most counties in Maine, for example, have designed people who are game control officers (not employees of the state, just permitted to cull animals that damage orchards). I don't know enough about Colorado to know whether or not good remedies were available.

I do know that if he shot animals that were not on his land, I'd convict on a poaching charge.

Mike Diehl

wups should be "designated" not "designed."

johnl

Elk don't just damage crops, a herd will wipe out a haystack in one night. If you drive through that country in dead of winter (this took place in February) you will see large wooden panels leaning up all around the stacks. An elk can stand on its hind legs and reach over 7-8 feet. When the snows are deep, as they were this winter, and the elk are driven down into the valleys, that's often the only feed there is, and they'll do anything to get to it. Elk, like buffalo, can also walk right through a fence, which means then your cattle have a way out.
If a rancher is trying to make a living off hay and cattle, is he supposed to feed them for nothing?
In cold, deep snow winters, that's what elk eat...rancher's hay, or if they are trapped somewhere the DOW often does airdrops of hay.

That being said, after living in those areas for many years, I don't want to be too quick to assign blame without more information.
Colorado's Division of Wildlife personnel are dedicated to wildlife, as are most ranchers I've known. But they are severely overstretched and underfunded, as in most states.
I knew DOW officers who would go out into the Gunnison valley with 12 gauge noisemaker shells to try to protect property, but when it's 20 below zero, and the snow's deep, it's darn hard to keep the elk away from your feed.
You go out there in the dark and see how many you can chase away.
I've seen them standing in ranch corrals eating with the cattle and horses, and almost was killed late one night on a blacktop road when I rounded a curve to find a whole herd bedded down on the road, because the blacktop had absorbed some heat from the sun they needed, it was -30 that night.
I don't think this is some punk going out with a few beers and shooting anything that moves.
I hope a reasonable solution can be found.
johnl

Scott

I still disagree with the notion of State ownership of game, this is a private property issue, you cannot poach on private property. Only the owner of ones property can decide what is best for his property. This man should not be charged with anything, he was fixing a problem that the State neglected to fix, which the State also claimed it had control of the situation. I'm proud that this man did not feel the need to loot his fellow citizens, so the State can pay someone to do what he did himself, and he and his nieghbors probably benifited from his solution, with less property damages and the meat from elk. Now if he went onto others private property he is definitely a poacher and a trespasser, he violated anothers right to thier private property and should be charged as such. To tell someone what they can and can't do with thier private property is Fascism, and we all must remember that all Govt. is, is coercion by force. Jcarlin hit it right on the head with the rat analogy.

Nate

The elk do not belong to Culverwell; they belong to the state of Colorado.


Why do they belong to the State?? Seems that since they were on Culverwells property that he owned them

Walt Smith

Jay nailed this one 100%. the elk belong to the state and if you exaust every possible source of goverment to rid them off your property you still do not have the right to kill them. Bad choice, maybe we should have used some fireworks instead. Or better yet maybe we should have allowed some hunters some access earlier in the year and he might not have had the problem.

Mike Diehl

"Seems that since they were on Culverwells property that he owned them."

Nope.

"Why do they belong to the State??"

Because according to the USSJC game are owned by the states in trust for the common use of their citizenry, not by the owner of the land on which non-livestock are standing.

Mike Diehl

"To tell someone what they can and can't do with thier private property is Fascism"

Baloney. Your claim demonstrates both a lack of understanding of the historical and practicial limitations on the use of property under the guise of "property rights" and also a lack of historical knowledge about fascism.

Brian T

I've seen what elk can do to haystacks overnight. Big pests. That's a direct economic loss to the rancher. Elk were around before Colorado was invented. So where's the balance in this conflict? I don't know. Legal means . . what was he supposed to do? Apply to the courts to have a restraining order served on the elk? Unreal.

Scott

Fascism:

1often capitalized : a political philosophy, movement, or regime (as that of the Fascisti) that exalts nation and often race above the individual and that stands for a centralized autocratic government headed by a dictatorial leader, severe economic and social regimentation, and forcible suppression of opposition
2: a tendency toward or actual exercise of strong autocratic or dictatorial control

As for the historical and pratical limitations on the use of property under the so called guise of "private property" my guess would be that you got your information from Karl Marx's "Communist Manifesto" or Wilsons and FDR's New Deal progressivism. Private Property is not a guise it is Natural Law, for the State to claim what you can and can't do without its permission is morally wrong, and if you ignore the state to use the definition above the State will forcibly oppress you by having a man with a gun show up to your house and either A: take your property, or B: throw you in a cage. Our country was founded on Aristolian philosophy of Individualism and Natural Law. Our Founding Fathers wrote the Constitution to supress the powers of the Federal Govt. (aka Central Govt.) in my copy of the Constitution I cannot find anywhere in Article III that gives the Supreme Court the power to make a judgement on the use of Game on ones own land.
Since I don't seem to know anything about history I wouldn't know about the Kentucky and Virginia Resoulutions of 1798 (written by Thomas Jefferson, but I wouldn't know that) which stated the States right to nullification, any law which they felt was Unconstitutional. Most frequently used by Texas in the putting to death of that Mexican fellow about a month ago.
As for the history of Fascism, to use quotes from the man himself (thanks to THomas Dilorezo) “The Fascist conception of life,” Mussolini wrote, “stresses the importance of the State and accepts the individual only in so far as his interests coincide with the State. It is opposed to classical liberalism [which] denied the State in the name of the individual; Fascism reasserts the rights of the State as expressing the real essence of the individual.”[6]

Mussolini thought it was unnatural for a government to protect individual rights: “The maxim that society exists only for the well-being and freedom of the individuals composing it does not seem to be in conformity with nature’s plans.”[7] “If classical liberalism spells individualism,” Mussolini continued, “Fascism spells government.”

also from the same article:
The U.S. Constitution was written by individuals who believed in the classical liberal philosophy of individual rights and sought to protect those rights from governmental encroachment. But since the fascist/ collectivist philosophy has been so influential, policy reforms over the past half century have all but abolished many of these rights by simply ignoring many of the provisions in the Constitution that were designed to protect them. As legal scholar Richard Epstein has observed: “[T]he eminent domain . . . and parallel clauses in the Constitution render . . . suspect many of the heralded reforms and institutions of the twentieth century: zoning, rent control, workers’ compensation laws, transfer payments, progressive taxation.”[8] It is important to note that most of these reforms were initially adopted during the ’30s, when the fascist/collectivist philosophy was in its heyday.

Try reading some Murray Rothbard, Ludwig von Mises, Thomas Dilorenzo, Richard Epstien, Lew Rockwell, Thomas Woods, Kevin Gutzman, Pat Buchanan, Ayn Rand even if you disagree with her philosophy she grew up in communist Russia, and the ever more important "The Federalist Papers" written by Alexander Hamilton, John Jay (the first Supreme court Justice), and James Madison, in which they further explained the Constitution in about as detailed a format as you can get. Read Patrick Henry's and George Mason's arguments against the constitution. They will all lead you down the path OF Individualism and Natural Law which the most prevalent law besides the right to life is the right to Property.

Scott

By the way the name of the article which I took those excerpts out of is called "Economic Fascism" by Thomas Dilorenzo, which he has all the facts footnoted well in. I also recommend Murray N. Rothbard's lecture entitled "Conservation, Ecology and Growth" which can be found at Mises.org. and Rothbard's lecture entitled "The problem with Land Theft"

nugget

ballz n weeners guys thats wut u gotta eat for breakfast

Mike Diehl

"As for the historical and pratical limitations on the use of property under the so called guise of "private property" my guess would be that you got your information from Karl Marx's "Communist Manifesto" or Wilsons and FDR's New Deal progressivism."

I would not have imagined it possible for you to guess with less acumen than you reason, but you've managed it.

Property rights give wide recognition to an owners rights to manage his own land, so long as his management of that land does not adversely affect others' property rights. You can't, for example, dump untreated effluent in a stream merely because it crosses your land, even if it's not a navigable stream and therefore lacks a public right of way. I figured trivial examples like this would be familiar to everyone, but occasionally I do encounter people who are willfully stupid.

Game animals are public property by the US Constitution according to several findings of the USSJC. It's one of the reasons why, for example, state G&F departments have any authority to manage game at all. The elk on Culverwell's property are publically owned. He could of course, get a livestock permit, buy some elk, brand 'em, and then they'd be his elk. But that's a completely different kettle of stew.

The problem here is, of course, obviously that the public property rights on the elk have bumped up against Culverwell's private property rights on his land. Not knowing Colorado law, I can't say whether or not he acted reasonably in shooting the elk on his land. Ya'd think some sort of compensation should be available for the elk eating his hay, or that some sort of other remedy exists (a permitting process, for example, that would allow him to legally shoot the elk). If such remedies exist, and he just shortchanged the process, then it's his own damb fault.

johnl

Mike D.
I don't want to enter the whole property rights debate.
I'd just like to add that the last paragraph you wrote is right on. That's what the courts have to decide in this case, and it's a tough nut.
By the way, how do we know those aren't Wyoming or Utah elk (if you look where the incident took place).
We just this spring had a bear wander into northwestern Nebraska for the first time since 1905, which was shot not during any season, but for protection in a farmyard.
Who's responsible for that, Wyoming, South Dakota? What DOW has jurisdiction there, as Nebraska has no statutes on the books regarding bears?

Ken C.

New York State issues nuisance permits to farmers to shoot antlerless deer on their property before the hunting season. One of these farmers practically eliminated all of the does in the town that I own land and hunt in! I notified the NYSDEC of an incidence in which another landowner killed 2 bucks during the archery season with a shotgun, claiming he had a nuisance permit, which he didn't, and they don't give out permits for bucks. I called the DEC poacher hot line several times to report it, but no one ever responded. I had to physically o to the local DEC office a month later to re-report the incidence to finally have someone investigate. At that time, the carcases were too deteriorated to tell when they had been killed. The NYSDEC poaching hot line is a joke!

Mike Diehl

"By the way, how do we know those aren't Wyoming or Utah elk (if you look where the incident took place)."

I suspect that under the commerce clause they belong to the public in the state on which they're standing. So an Utah elk that wanders into Colorado becomes immediately a Colorado elk, until it wander back into Utah or on to Arizona or wherever.

johnl

Mike D., you are most likely correct, I kinda just threw that out there.
Ken C., you touch on one of the problems inherent in this current lawsuit. The Departments of Wildlife are underfunded, understaffed, and way underpaid for the work we expect them to do. So you get fewer agents, covering larger territories, and out there in the west the territories they have to cover are huge, so some areas get more attention than others.
Throw in that there are unethical hunters (some), genuine poachers, and some true idiots out there, and there just aren't enough agents to stop or catch them all.
I've never known of a rancher (or a true sportsman) leaving gates open, cutting fences, or using signs for target practice.
I suspect (don't know, just guessing) that the Colorado incident happened due to frustration with lack of help.
I could be wrong, I don't know the guy.
I do know that when I lived in Colorado I had a couple ranchers tell me to go ahead and shoot as many antelope as I wanted, anytime, because they were eating all their alfalfa fields (they love it when they can get it).
I wouldn't and didn't, but the steaks they gave me from time to time were sure good.
I didn't begrudge the rancher for doing it, it was his ground. I would not have liked to hear that they slaughtered and left them lay.

Scott

"Property rights give wide recognition to an owners rights to manage his own land, so long as his management of that land does not adversely affect others' property rights. You can't, for example, dump untreated effluent in a stream merely because it crosses your land, even if it's not a navigable stream and therefore lacks a public right of way."
I agree with this statement, and for the fact that this example was not needed. Obviously dumping untreated effluent or any other pollutants into a stream regardless of a public right away, would be infringing on your nieghbor's Rights.

I also would like to know why I"m considered to have irrational reasoning, or to put in your words "stupid", when in reply to your arguements I gave many examples, quoted the Constitution, gave numerous sources, besides the USSCJ said so,(you could site particular cases, or any of the justices thoughts, theses are there for the public).

Once again I can find no where in the Constitution where it implicitly or explicitly says ANYTHING about game animals. As for the "commerce clause" giving them the authority how is that Websters definition of commerce is; n: the buying and selling of commodities: TRADE
You can get your own free copy of the Constitution, from the Heritage Foundation, its totally free you don't even have to pay shipping!
And also why should the other citizens of Colorado have to compensate this man for damages to his property, or why should they have to pay for the solution to this man's problems. Its your thinking that the State should take money from others for the benefits of another.
And please correct me if I"m wrong, but I do believe you posted on here before that you don't think people should be able to post thier land, and that you should be able to go onto whoever's property you please to freely hunt so called "public" game.
I really enjoy this debate and respect your opinions on it, my hope is to win you over, just like you hope to win me over (I presume). I truly enjoy intellectual converstaions, and I"d rather have them with someone who disagrees than have someone shaking thier head at me saying yeah yeah I agree with that (where's the fun in that)

Mike Diehl

"I also would like to know why I"m considered to have irrational reasoning, or to put in your words "stupid","

Because I can't imagine any explanation other than stupidity or provocation when someone surmises that I was working from something written by Karl Marx.

"you could site particular ... Once again I can find no where in the Constitution where it ..."

See "Public Trust Doctrine" and related articles. The USSJC in 1846 decided that via English Common Law implicit in the Constitution that game animals are owned by the people collectively and managed in trust. A more direct statement of same occurred in Greer v. Connecticut, 161 U.S. 519 (1896).

"As for the "commerce clause" giving them the authorit.."

You've conflated separate trains of thought. Commerce clause pertains to which state has authority for animals that cross state line, *I suspect.*

Public ownership of game and the issue of how Public Trust Doctrine applies has been a settled issue for more than 100 years, and most patriotic Americans recognize the need for it. They're separate issues. That game are publically owned is established by Public Trust Doctrine and various court rulings. *Which state* owns manages the game is, I suspect (but am not certain) is probably determined by the commerce clause.

"And also why should the other citizens of Colorado have to compensate this man for damages to his property, or why should they have to pay for the solution to this man's problems."

It would depend on Colorado state law, but via such rulings as Greer v Ct the elk are owned by Coloradans and managed in trust for them by Col Fish & Wildlife.

It may be, however, that he has no recourse under the law. Under extant cattle grazing laws for ex it is often the case that a person raising livestock and keeping them on free ranging land has no obligation to compensate a fellow if the cattle stray onto his unfenced private property and eat his corn -- and yet the property owner does not have ownership rights to said hypothetically straying cattle, and has no authority to shoot 'em.

"Its your thinking that the State should take money from others for the benefits of another."

Nope. It's my conjecture that Colorado might have rules that do same. It seems like a reasonable idea. If he doesn't have the authority to shoot 'em (and it appears he doesn't) and since the game are publically owned, it seems reasonable that he receive some compensation for damage cause by the publically owned game.

Of course, it's possible that the fellow simply impatiently short-circuited the process.

"And please correct me if I"m wrong, but I do believe you posted on here before that you don't think people should be able to post thier land,"

You're wrong. I said people who post their land perhaps should not be allowed to hunt publically owned game on their own land. I have yet to be convinced that is necessarily wrong, because posting land for the purpose of fabricating exclusive access to a publically owned resource would seem to obviate the public's interest inherent in the Public Trust Doctrine.

"and that you should be able to go onto whoever's property you please to freely hunt so called "public" game."

Nope. I have never under any circumstances made any claim remotely like that.

Scott

First I would like to apologize for my memory and misquoteing you, probably if I would have taken more time I could have looked back and gotten it for myself, my apologizes.

Second I concede to the Constitutionality of the Public Trust Doctrine being English common law, even written into the Magna Carta, but that Law alone doesn't give the State ownership of game. When the Supreme Court first ruled:

Scott

In 1842 the Supreme Court ruled that the Magna Carta had settled the question of who owns fish and wildlife and that King Charles II did not have the authority to give away the “dominion and property” of lands in colonial America. The court further ruled that since the American Revolution the people held public trust responsibilities for fish and wildlife except for rights specified in the U.S. Constitution.

I don't disagree with that but I do disagree with the Supreme Courts ruling in 1896 which ignored the 10th Amendment:

v In 1896, the Supreme Court declared that the states’ property right in game was to be exercised as a trust for the benefit of the people of the state.[5] Up until this ruling the 10th Amendment of the Constitution only appeared to give states jurisdiction over wildlife. This court case is considered by many to be the core ruling of states’ public trust authority over wildlife but it is somewhat controversial because it does so in terms of ownership.

The Federal does not give the States thier power, the States through the Constitution LIMIT the power of the Federal Govt. The Supreme Court has no authority in this matter.

As for the Marx comment (which how come you weren't so upset over Wilson and Roosevelt? they were just stepping stones for 'Bama, and hes pretty far out there on the lefty spectrum) it was out of provication, you know just stokin the fire, like I said before I enjoy other Individual's thoughts and arguments, I learned alittle something. But obviously calling someone a Marxist on a Field and Stream blog, will ilicit some fiery defenses.

Mike Diehl

Heh. Allright then, we're good.




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