We ARE in fact causing things to happen and getting things done. This is a new posting of a statement by Dr. George Allen, the FWS author of our latest falconry and propagation regulations. You should know, his statement about our MBTA falconry and propagation raptors being our private property was a painful thing for him to say. But AFC forced this issue and now FWS has withdrawn this assertion.

Below is George Allen's explanation for removing language from the proposed regulations which attempted to deny us our property rights in our wild and domestic bred raptors. It turns out there was one low level Solicitor for the Dept. of the Interior who advised George that we don't own our raptors. He had no authority to do this but he was a rogue attorney. The Solicitor's Office (not some low level attorney in this office) informed George that it was wrong to include the denial of our property rights in the regulations and in the Environmental Assessment. We need to keep in mind that George is not an attorney and he can only go with what the Solicitors instruct, so this is no reflection on him.

The ownership-of-wildlife argument has to do with the States, not the Federal government. The Feds have absolutely no authority to provide for or deny property rights in legally harvested wildlife or domestic bred wildlife, unless of course they loan some animal with a clear understanding of the arrangements. They have the authority to manage migratory birds but only within the confines of the MBTA and not beyond. Ownership is beyond the MBTA and the States as the Supreme Court case Missouri v Holland states, and since it is a strict liability statute, some provision addressing ownership would need to be included in the Act for them to have authority - which it most certainly does not have. Of course they can arbitrarily assert they have the authority and then it would be up to you and me to challenge it, but make no mistake, silence on the part of the MBTA means there is no power or authority to regulate on a given issue.

One might ask what difference does it make whether we own our birds or not. The difference is, if we don't own our birds, the States and/or the Feds can take them from us for no reason whatsoever and we would have no recourse. Also if someone killed or stole our birds, we would have no recourse for damages or the return of them. Only the States or Feds would have a claim on these raptors.

In addition, regulations on private property have greater limits on them than on property that is not owned. If regulations go to far on private property, it is considered a government "taking" and either the citizen(s) must be compensated for it or the offensive language must be removed from the regulations.

In general, property rights provide us far greater protections from overreaching and ambitious government agents and agencies. This is no small matter regardless of how much our detractors within the falconry community attempt to make it so. It is amazing that factions within our own community act more like animal rights radicals than radical animal rights groups act themselves.

... I should not have put the statement in the proposed propagation regulations stating the birds held under the permit are not private property, and long ago took it out of the version of the propagation regulations that will address comments and make final changes to the regulations.

MBTA falconry and propagation raptors are private property, but their possession still has more constraints on it than does possession of most private property.   I believe that some folks have taken my correction about the private property statement to mean there are now no constraints on the possession of falconry and propagation raptors. That is not correct.  The rights and responsibilities of a permittee under the MBTA or the BGEPA are unchanged. Possession of raptors for falconry or propagation is still subject to the same constraints that have always been in place. A permittee must comply with his or her permit conditions, and he or she may not undertake activities or actions not allowed by the permit.

 No falconry bird or propagation bird of a species listed in 50 CFR 10.13 is exempt from the MBTA or MBTA regs. ...  Captive-bred birds of MBTA species are still covered under the MBTA. Raptors taken from the wild for falconry still may not be bought or sold....

 In short, I've been corrected - and we won't say falconry raptors are not private property. However, that does not mean that anything else is changed. As I told someone else, I think that some people are failing to distinguish between "private property" and "exempt from the MBTA." I have said that raptors held under falconry permits are private property. However, both wild-caught and captive-bred MBTA raptors are still protected under the Act.

 If you or others have additional questions on this point, please let me know.

 Regards,

 George