John Galt…on the bench?
Tom Bowden suggests that, “for the first time in legal history,” a Justice has relied on Ayn Rand’s political theories in a judicial opinion, Wallace v. State. District Court Judge, Nels Swandal, sitting in for Justice Brian Morris, wrote what can only be called a scathing dissent in the Court’s decision that the Montana game farmers who were systematically put out of business are not entitled to compensation for a taking by the government.
Back to Ayn Rand:
Ayn Rand correctly observed that the right to life is the source of all rights-and the right to property is their only implementation. Without property rights, no other rights are possible. These principles are embodied in the Montana Constitution in Article II, Sections 3 and 29. I invite the majority to read them. The fundamental rights to acquire, possess, and protect property are not even given lip service by this Court. Under the majority’s opinion, the State suffers no consequences for the exercise of coercive and unreasonable power in destroying these businesses. There is no serious effort to balance benefits and burdens. It may be too early to start asking, “Who is John Galt?” but more decisions like this will seriously impact all private property and business owners in this State.
I am still working my way through the whole majority opinion, but the ease with which our Court blew off the claims of 80 plus years of hard work and industry should alarm all of us. Swandal was ticked off, and rightly so. As he dismantles the majority opinion, one realizes that, to a result-oriented court, legal theories are just words to be wrapped around the results without any real relationship to what is actually occurring. Justice Nelson in his dissent refers to the fee-hunting ban’s proponents as pulling an “end run” or “bait and switch,” but Judge Swandal seems to suggest it was the Court that committed the ‘end run’:
As written and passed, I-143 did not benefit the State. The State claims that some people in Montana were offended by fee hunting. Yet, it is remarkable that their only concern was the exchange of money, not the killing. In reviewing the Montana Constitution, I did not find a constitutional right not to be offended. It must be there because it is the only hook the majority can hang their hat on as suggesting a benefit. I-143 did not ban the existence of elk farms; it did not ban the shooting of elk within an elk farm; it did not change the amount of regulation; it did nothing to control disease or lessen contact between captive and wild animals; and it did nothing to preserve the State’s hunting heritage.
What I-143 did was prohibit fee hunting. It completely destroyed the value of the businesses, which includes the license and other intangible assets, and about 90% of the value of the livestock. This is after, as aptly described by Justice Nelson, the State facilitated and encouraged elk farms and the spending of hundreds of thousands of dollars in specialized capital expenditures. Considering that game farms had been sanctioned in this state for over 80 years, to claim now that these appellants had no reasonable expectation they would be allowed to operate their businesses for profit is offensive to any modicum of common sense. Apparently, the power to regulate, in the majority’s view, equals the power to destroy. I do not believe this is what the constitutional conventioneers had in mind.
Heaven forbid some organized group of activists decides that they don’t like what you do for a living.
(Hat Tip: Walter Greenspan)
Going Galt?
Could this be a trend?
I assume, Gregg, that if a pig farmer moves in next to your house, that you will gladly pay them to move.
Good grief! The public does have a right to protect its interests over private interests. Elk farms were detrimental – disease factories that threatened the wild game population. We don’t pay them for that.
By the way, rand was wrong about a lot of stuff. This is but a small cross-section.
Mark T Do you ever use references for what you say..or do you just fire off the first thing off the top of your head. Any scientific research on the disease issue?
Are you suggesting that by owning a domestic dog I infect the wild wolf population, by owning a pet duck I destroy the duck population? Maybe my heard of Buffalo are killing those in Yellowstone?
If the shooting of penned up elk was so offensive, and the elk themselves so detrimental to the environment–why do we still allow the shooting of penned buffalo? They both exist as wild animals in Montana, yet one can be harvested commercially while the other can’t.
Further questions; Can I raise dogs or cats and charge people to shoot them, or would that fall under the “cruelty to animals” laws. Are they so much more cuddly than buffalo that they don’t deserve death by a paid gun. How about horses or goats—where and why do you draw the line?
The law was applied unevenly to elk owners and upheld by the courts for one reason–money. Outfitters didn’t want the competition from the game farms.
The State doesn’t want to be on the hook for the millions of dollars that compensating elk farmers would cost. The little guy took it in the shorts.
Wow – that was really dense ‘n dumb. Owning a dog does not threaten the wolf population. But if you own a great number of dogs and confine them in pens, disease will incubate and spread. This is elementary! Diseases need incubation factories to germinate and reproduce, and then carriers to introduce them to others in the population. Elk farms were perfect vehicles. They were the source of chronic waste disease … Google it. I don’t feel like it.
Ever gotten a cold from your kid? Usually colds and flu go around right after school starts. There’s a reason … elementary. High school too.
If disease were the concern, then it would be illegal to keep elk domestically in Montana. But that isn’t the case, is it? It’s also not illegal to kill elk that are privately held in Montana, you just can’t charge someone for the ‘pleasure’ of pulling the trigger on the gun. I say this as I smell the roast from a pen raised elk cooking in my crock pot. If you don’t believe me, contact the Tribune’s classifieds department–they ran the ad, I bought the venison. BTW, they don’t process downer elk like some packing plants that utilize downer cows.Google that………
I find it interesting when people put a claim out there then do not defend it… I have always thought the burden of proof was on the person who threw out the accusation, not the other way around…
Mark, I think Swandal and Nelson made the point that, if disease was the issue, why just eliminate the fee?
“This is after, as aptly described by Justice Nelson, the State facilitated and encouraged elk farms and the spending of hundreds of thousands of dollars in specialized capital expenditures.”
Reminds me of the line from Animal House – “Face it Flounder, you F—ed up! you trusted us!”
They need to inscribe that over the chambers of the Supreme Court.
I beg you all, get off your duffs, put your fingers to work, Google elk farms/chronic wasting disease. I will not do it for you.
Steve – you mistake the misguided actions of a few in state government, who were later overruled by more prudent people, as permanent and unimpeachable. Last I saw, people can, do, and should change their minds when hard data suggests they were wrong.
And you want to pay these people? You’re on a lazy Susan, advocating one side of an issue, then the other. That’s a subsidy. They took a risk, it didn’t pay off. Who do you think they are? Citibank?
From Wikepedia:
Epidemiology
The origin and mode of transmission of the prions causing CWD is unknown, but recent research indicates that prions can be excreted by deer and elk, and is transmitted by eating grass growing in contaminated soil.[3][4] Animals born in captivity and those born in the wild have been affected with the disease. Based on epidemiology, transmission of CWD is thought to be lateral or from animal to animal; although maternal transmission may occur, it appears to be relatively unimportant in maintaining epidemics. Research has recently shown that an infected deer’s saliva is able to spread the CWD prions.[5]
In the mid-1980s, CWD was detected in free-ranging deer and elk in contiguous portions of northeastern Colorado and southeastern Wyoming. Soon after diagnosis of the disease as a TSE, Colorado and Wyoming wildlife management agencies stopped the movement of deer and elk from their research facilities; wild cervids have not been translocated from the endemic area. In May 2001, CWD was also found in free-ranging deer in the southwestern corner of Nebraska (adjacent to Colorado and Wyoming) and later in additional areas in western Nebraska. The limited area of northern Colorado, southern Wyoming, and western Nebraska in which free-ranging deer, moose, and/or elk positive for CWD have been found is referred to as the endemic area. The area in 2006 has expanded to six states including parts of eastern Utah, southwestern South Dakota, and northeastern Kansas. There are also non-contigious (to the endemic area) areas in central Utah and central Nebraska. The limits of the affected areas are not well defined since the disease is at a low incidence and the amount of sampling may not be adequate to detect it. In 2002, CWD was detected in wild deer in south-central Wisconsin and northern Illinois and in an isolated area of southern New Mexico. In 2005, it was found in wild White-tailed deer in New York and in Hampshire County, West Virginia.[6] In 2008, the first confirmed case of CWD in Michigan was discovered in an infected deer on an enclosed deer breeding facility. It is also found in the Canadian provinces of Alberta and Saskatchewan.
Chronic wasting disease in North AmericaCWD also has been diagnosed in farmed elk and deer herds in a number of States and in two Canadian provinces. The first positive farmed elk herd in the United States was detected in 1997 in South Dakota. Since then, additional positive elk herds and farmed White-tailed deer herds have been found in South Dakota (7), Nebraska (4), Colorado (10), Oklahoma (1), Kansas (1), Minnesota (3), Montana (1), Wisconsin (6) and New York (2). As of fall of 2006, four positive elk herds in Colorado and a positive White-tailed deer herd in Wisconsin remain under State quarantine. All of the other herds have been depopulated or have been slaughtered and tested, and the quarantine has been lifted from one herd that underwent rigorous surveillance with no further evidence of disease. CWD also has been found in farmed elk in the Canadian provinces of Saskatchewan and Alberta. A retrospective study also showed that Mule deer exported from Denver to the Toronto Zoo in the 1980s were affected.
Species that have been affected with CWD include elk, mule deer, white-tailed deer, black-tailed deer, and moose. Other ruminant species, including wild ruminants and domestic cattle, sheep, and goats, have been housed in wildlife facilities in direct or indirect contact with CWD-affected deer and elk with no evidence of disease transmission. There is ongoing research to further explore the possibility of transmission of CWD to other species.
YEAH!!! LOOKS LIKE ELK FARMS WERE THE PROBLEM
FORGOT TO INCLUDE THIS, ALSO FROM WIKI:
Chronic wasting disease (CWD) is a transmissible spongiform encephalopathy (TSE) of mule deer, whitetailed deer, elk (wapiti), and moose. TSEs are caused by unusual infectious agents known as prions. To date, CWD has been found mainly in cervids (members of the deer family). First recognized as a clinical “wasting” syndrome in 1967 in mule deer in a wildlife research facility in northern Colorado, USA, it was identified as a TSE in 1978 and has spread to a dozen states and two Canadian provinces.[1] CWD is typified by chronic weight loss leading to death. There is no known relationship between CWD and any other TSE of animals or people. Although there have been reports in the popular press of humans being affected by CWD, a study by the CDC failed to find any relationship.[2]
NOTE, FIRST DISCOVERED IN 1967.
GO TO WIKEPEDIA AND SEE MAP OF REPORTED INFECTION AREAS. ONE GAME FARM IN MONTANA.
Thanks for making my point. Finally, someone Googled.
Here’s what you are missing – there are instances of every disease imaginable in the general population, CWD but one. There are “summer colds” in humans. It is when you confine the population in pens (aka classrooms) that the germs grow in large quantities. So if you you think that finding that CWD happens in the wild is some important finding, I’m here to disabuse you of the notion.
Game farms are petri dishes. They had to be shut down – the reason we had only one in Montana is because we shut them down.
The flu of 1918 incubated in the trenches of France and was brought home by soldiers who spread it among the general population. But without that incubation in the trenches, it would not have spread so widely. Game farms are the equivalent of trenches.
In the wild, the disease is not widely dispersed and does not infect entire populations. It is manageable.
Thanks, JAC. We are in agreement, and you brought it home.
Once again Mark, in spite of your agreement with JAC, you missed the point of the post in order to make your agenda fit. The point is that the owners should have been compensated for the takings (revocation of ability to conduct business). This is not an argument about the merits of game farms, it’s about state action depriving an owner of a property right without due compensation, and the legal twisting that the Supreme Court had to go through to get there.
Well, I’ll go with the Supreme Court on this – we are under no obligation to compensate people for their inability to conduct business that is detrimental to the public interest, in this case, the health of wild game populations. You are carrying a point to an extreme.
If I own land and want to raise noxious weeds for flower wreaths, and the state shuts me down, it does not owe me compensation.
Do you understand the problems with that sort of precedent? What if tomorrow, the government decides that wind farms are a danger to raptors and must be shut down. Shouldn’t the owners be compensated for what they were once encouraged to do?
The present system is too much vulnerable to the whims of the moment.
Actually, in this case, the better analogy would be that you could have wind farms. Just that their propellers can’t rotate.
I think the dangerous precedent is on the other side – the extreme interpretation of “takings” makes it almost impossible for government to function.
You say that like it’s a bad thing. Besides, the government doesn’t function just fine all on its own, thank you.
Very revealing …
Mark T. Said “Wow – that was really dense ‘n dumb. Owning a dog does not threaten the wolf population.”
BILLINGS, Mont. — Most of the gray wolf pups born in Yellowstone National Park last year have died, possibly because of a dog disease, a federal wolf expert says.
Just 22 of the 69 pups born last year are still alive, said Doug Smith, the park’s wolf project leader. That’s the biggest drop in pup numbers since wolves were reintroduced to the park 11 years ago.
The greatest toll was seen on the park’s northern range, where only eight of the 49 pups born last spring survived.
“It’s cause for concern, a great deal of concern,” Smith said.
During the next few weeks, he said, officials plan to catch Yellowstone wolf pups and take blood samples to see if his suspicions about the disease, parvo virus, are true. The disease can cause extreme diarrhea and dehydration and kill more vulnerable animals, like young pups.
Though vaccinations are an option — many domestic dogs receive them — Smith said it would be difficult in the park.
“It requires two vaccinations to build up an immunity, and we’d have to catch every wolf,” he said. “Both those things are impractical.”
If parvo virus is confirmed, there is little officials can do besides monitor the population and hope exposed wolves build a natural immunity to the disease, he said.
The state’s wolf program leader also suspects parvo virus is behind the deaths.
Carolyn Sim said her suspicions are based on den-site monitoring and whether pups emerge in summer with their packs.
State wildlife officials plan to collect blood from wolves — possibly even from carcasses dead 24 hours or less — as part of their disease surveillance, she said.
Terry Kreeger, supervisor of veterinary services for the Wyoming Game and Fish Department, said that while parvo virus could have a noticeable effect for years on wolf populations like Yellowstone’s, he doesn’t believe it will be devastating.
It could, however, have implications for how wolves are managed, Smith said. The number of wolves in Yellowstone dropped last year from 171 to 118, he said. The largest single-year drop before that was 11 from 1998-99, when parvo virus also was suspected, he said.
The gray wolf is federally protected, but Wyoming officials are seeking more control over the predators amid complaints from farmers and ranchers who say the growing wolf population poses a threat to wildlife, livestock and pets.
Montana recently took over most management duties within its borders, and Idaho signed an agreement with the Interior Department on Thursday to do the same.
(Damn that silly google)
You might also try:
http://www.montanaelk.com/
or:
http://www.shopworks.com/msmeats/index.cfm/action/category/level/2/parentid/BF53C2D8-801D-11D4-92CD00A0C9062DC7/userid/000E438E-4D8A-1A02-8830010D0A0AD036
And from the Montana FWP:
Q: Where has CWD been found in Montana?
A: CWD has not been found in Montana’s wild deer and elk populations. However, in June 1998 and again in June 1999, elk shipped to Oklahoma from an alternative livestock facility near Philipsburg were confirmed to have CWD. In November and December 1999, all 83 elk at the Philipsburg facility were destroyed. Nine of the elk later tested positive for CWD.
TOP
——————————————————————————–
Q: What kind of testing and surveillance is in place in Montana on native deer and elk, and on alternative livestock farms and what are the results?
A: FWP has conducted statewide sampling of wild deer and elk for CWD since 1998, with approximately 9,300 animals taken by hunters showing no CWD infections. Since 2002, FWP has concentrated sampling efforts in northeastern and southeastern Montana along borders with states and provinces where CWD is known to occur. FWP also tests elk and deer that display clinical symptoms that suggest CWD and none of these animals have tested positive. Old age, other diseases and chronic malnutrition can result in symptoms similar to CWD.
Any elk or deer that dies on a licensed alternative livestock facility in Montana must be tested for CWD by law. Nearly 3,800 animals to date have tested negative for CWD. The only positive animals found were the nine that tested positive at the Philipsburg alternative livestock facility in 1999.
Elk farms still exist in Montana, you can still buy the elk(you just can’t shoot it), there has been no(NO) CWD found in elk in Montana since 1999, and the issue is and has always been about money.
BTW, no one gave me a legal opinion on raising dogs, cats, goats, or horses and offering them up for trophy hunts—-tell me, where do you draw the line.
Boy, you guys really missed my point earlier today.
I posted the entire WIK description because it clearly shows that game farms have not significantly contributed to the spread of the disease. It was discovered in wild populations and has cropped up in areas where no contact with game farms existed. One game farm where it was discovered was quaranteened and later tests showed no additional infection.
Mark T agrees with me but I didn’t agree with him, at least not because of wasting disease. Perhaps I shouldn’t have added the sarcastic comment at the end. It may have been taken as my actual conclusion. My conclusion is actually consistent with oldredtrk’s post above regarding the Montana herds.
This does not mean that farms can’t act as infection centers, should they become infected. It just means that right now, at this point in time, CWD is a poor reason for eliminating game farms or hunting on game farms.
I suggest you go to Wikepedia and type in cronic wasting disease then choose the first definition. You will find a map included that clearly shows this disease is centered in Colorado and Wyoming, and some to Nebraska.
I hope this clarifies the situation a little and apologize for any confusion I may have caused.
JAC
JAC, some people can read and understand what they have read–others read and spin the contents to suit their weak arguements.
Gregg, perhaps I should bring some ranch raised elk burgers to your little party this summer. No worries about CWD, it sounds as if several people have already been eating Canadian beef.
Capt black – my wife is an avid follower of the wolf population in Yellowstone, so I have been following the disease problem. It does appear to be parvo. Because wolves are pack animals, it spreads easily among them and infects new pups. For that reason, there have been very few successful dens these past years. In the future, the only wolves that survive will be those that have a natural immunity to parvo, and the disease will be carried, but not transmitted.
JAC – you’re just not looking hard enough. CWD has turned up in Wisconsin, Minnesota, and Saskatchewan on elk farms. This disease is spread by oral exposure to secretions or excretions of animals in the infectious phase – far more likely to happen in confines than in the wild. However, once spread to the wild population, there is great risk of an epidemic. For this reason, when it turns up in farmed populations, we pull a Fallujah on them, and hit ‘em with white sulfur.
Confining any population, human, elk, or otherwise, presents a public health problem. The people of Montana were well within their rights to put elk farmers out of business, and we owe them no compensation. They put our wild game population at risk, and should pay us.
As to why the shut down is not total and complete – I can’t say. I can only say that we should reserve that right.
Mark T:
“The people of Montana were well within their rights to put elk farmers out of business, and we owe them no compensation. They put our wild game population at risk, and should pay us. ”
Just remember that what you claim as a right to do to me, I will later claim as a right to do to you.
And by what right do you claim the ability to tell me what I can and can’t do as long as it does not harm you? And raising elk on my property for the purpose of selling hunts in no way has a harmful effect on you nor does it cause coersive force on you. If I take as much or more care to assure disease control as the state does for wild populations then I am having no more of an effect on you as the state, which is also you.
“I can only say that we should reserve that right.”
And of course, herein lies the primary difference between you and I and why we won’t ever agree on most major issues. What rights do “we” have? None.
I have rights, you have rights but “we ” do not. There is no such thing as a unified “Public” mind or entity which has reserved rights for the group.
Your underlying philosophy authorizes govt power to take action against individuals and groups for some perceived benefit of the whole, or public good. But there is no such thing as a “public good” as not everyone will agree to what good is. That means that some get to decide for the rest. That in turns means I have no rights, because some have reserved the right to decide for me.
Of course that means that one of these days I will get enought friends together and we will decide for you.
JAC
So spaketh Rand. There is a ‘greater good’, a majority of citizens have a right to act, through government, to impose laws and sanctions on activities detrimental to society as a whole. Putting wild game populations at risk is detrimental.
The public has rights. Get real. Your views are so extreme that you ought to love in Noxon with the rest of the militia. But it is good to know from whence you come, so that in teh future I can lightly dismiss you.
“Love” in Noxon should have read “live” in Noxon. But then again, maybe not.
Mark T: So you believe the majority may impose its “collective” will upon the minority? Is that correct?
Mark T: In your previous comment you said:
“Confining any population, human, elk, or otherwise, presents a public health problem. ”
Just curious, how does this fit with the Progressive’s attempts in Missoula to force everyone to live in a high density city? Perhaps those in the rest of the state should put the city council out of business because the are increasing the risk of disease spreading to the general population.
When the actions of a minority, such as endangering wild game populations, is detrimental. Generally, I’m in favor of minority rights – you’re overreaching.
Regarding Missoula, that’s a Noxonic outlook.
Mark T I really don’t see how I am overreaching when it is your own words I am working with here.
Now you state when the action of a minority is detrimental where as above you stated when the actions of the minority pose a risk. Is it one or the other, or both?
And what about when the actions of the majority are detrimental to the minority? If the majority “public has rights” how are you going to prevent them from imposing their will upon the minority?
You see Mark, the contradictions do not arise from Rand or Noxon or anyone else. They arise from your own philisophy and your attempts to defend it.
As I said, we will probably never agree on many issues. I didn’t need to resort to insulting the citizens of Noxon to make that point.
Don’t worry about Noxon. They don’t have electricity, much less Internet.
Detrimental and posing a risk are not much different. Same sentiment.
Actions of a majority can indeed be detrimental to minorities – in that case, we rely on good intentions of elected officials, and the courts. It’s a constant battle. When majorities get outraged at minorities, as with, say, for instance, gays, it’s hard to protect those rights. Especially when the majority can vote them away, as they did in California. Will be interesting.
Anyway, you just got done giving me the Randian rant on there being no group or society interest. As on so many other things,, she was wrong.
Was Rand wrong and the drafters of the MT constitution wrong when they spoke to property rights, Mark?
>>Ayn Rand correctly observed that the right to life is the source of all rights-and the right to property is their only implementation. Without property rights, no other rights are possible. These principles are embodied in the Montana Constitution in Article II, Sections 3 and 29.<<
right to life is the source of all rights-and the right to property is their only implementation.
That’s simply not true. Property rights are important, but like all other rights, are not absolute. We have the right to keep and bear arms, but not to own machine guns. We have the right of free speech, but it is constrained – government has the right of “prior restraint”, and we don’t get to yell fire … We have the right to private property, but not the right to violate the rights of others with our property.
Example: I own an oil refinery and it is determined that I am polluting the environment with emissions of various things. I do not have the right to do this, as I am violating the rights of others to a clean environment. I can legally and morally be stopped.
The notion that property is at the center of all human rights is extremism, and seems to lay behind Budge’s and others’ inferences that the right to accumulate wealth should be unencumbered. It’s short-sighted and dangerous.
Anyway, Rand was wrong.
“We have the right to keep and bear arms, but not to own machine guns. ”
We’ll have to chalk up this statement as another one of your ill informed proclamations.
Try Googling Class III firearms license. That’s piece of paper an ordinary citizen needs to own a fully automatic firearm. Gee, I wonder why you didn’t know that.
Point stands – the “right” is abridged, though not by the exact words I used.
Every one of our inalienable rights of “life, liberty, and the pursuit of happiness” are abridged. I’m not sure what the semantics are about here.
[...] 9, 2009 Gregg Smith at Electric City Weblog (John Galt … on the Bench?), quotes District Court Judge Nels Swandal, who was sitting in on the case Wallace v State: Ayn [...]