Yesterday I wrote (GOOD NEWS, BAD NEWS) about how the recent Supreme Court decision, BOND v. UNITED STATES, held “that individual citizens have every right to challenge federal laws on the ground that they exceed the limited and enumerated powers vested in Congress by the Constitution”. 

I went on to describe the recent death and infection of other Northern Minnesotans by a disease (Powassan virus, a deadly brain fever) transmitted by ticks.  This heretofore (pre-2006) unreported in Minnesota disease and the 21% increase in Lyme disease in Minnesotans last year are, I posited, related to the recent growth and high densities of wolves in Minnesota.  Additionally, I berated state bureaucrats, veterinarians, veterinary scientists and assorted wolf “experts” for the almost total absence of any information or investigation or research on this matter. 

A reader wrote and asked me the following two questions.  My answer follows the questions.

Jim - 

How would such a suit be filed? 

There is no reference in the literature to wolves as the host for the Powassan Virus. Small mammals are listed.  

Dear XXX,

A particular lawyer or a public interest group could watch for a prosecution of some landowner, for instance, cited for doing some prohibited act in say a Designated Critical Habitat.  They could explain to him the principle they feel is involved such as that the federal government has no authority to enforce Endangered Species Regulations since the federal has NO Constitutional authority- despite UN Conventions or other connivances- to:

-“take” private property unless it is for some public USE, and/or

-interfere with State Constitutional authority over wild plants and animals not in interstate commerce, and or

-“take” private property without just compensation as specified in the Constitution, and/or

- regulate or dictate what wild plants or animals a state can introduce (recognizing that they regulate imports), manage, control, hunt, etc.

All of the above or any one of the above could be argued (up through the Appeals System) as being a fatal flaw in the claimed Constitutionality of the ESA and all the precedents that have flown from it. 

It might also be some father that shoots a wolf in his yard to defend (house, home, pet, stock, kid, wife, self, etc.) and is then prosecuted for a “taking” prohibited under the ESA and regs published under it.  That would seem to be particularly ripe for Constitutional examination --- a human life or private property can be threatened or taken because of a federal action that certainly seems out of all bounds (introducing and protecting deadly and destructive animals) under a Constitution ratified to “establish Justice”, “promote the general Welfare”, and “secure the Blessings of Liberty to ourselves and our Posterity” in big bold letters right in the Preamble to the Constitution. 

Similarly, it might be argued in court that, unlike a private property or business owner, the federal government is not Constitutionally able to regulate guns on federal lands where there is no over-riding security interest (like government buildings or classified facilities, etc.) as on say Parks, Refuges, Forests, or BLM lands.  This could be so since the federal government is more specifically bound by the 2^nd Amendment than say a bar owner or a banker insofar as simply prohibiting guns (legal carry, etc.) because they want to as allowed by the state and local community wherein they reside. 

The entire concept of federal jurisdiction or actions to rid the nation of certain wild species (pheasants, brown trout, etc.) or to somehow evoke a federal authority or mission to establish certain wild species (Native Species, Native Ecosystem, etc.) likewise seems a clear usurpation of Constitutional State authorities no matter what Congress passes or Hillary “negotiates” thru the UN with some countries that are never going to be affected by it nor do they expect to ever be called to account for it (i.e. some UN “Treaty” or “Convention”). 

I would also expect that any fair examination of the entire practice of recent decades wherein National Forests have become unmanaged, unproductive, fire traps and closed areas despite authorizing legislation to the contrary is another example of federal un-Constitutional intrusion on state and local authorities to tax and obtain equal succor and support from government lands in their midst just as with federal (recognizing they can evade state and local taxes) landowners.  There are many aspects (as a result of decades now of NO accountability) to examine Forests, Parks, Refuges, and BLM in similar lights.  Going straight at the very “root” authority instead of arguing all the superfluous precedents built up for the most mundane reasons could evoke a whole new (i.e. Constitutional) world. 

I could go on and on about various situations that seem ripe for this test but my and your time is limited.  Let it suffice to say that determination, a sympathetic and skilled lawyer, and some money invested in a few key cases might do what no one has thought possible for decades now; that is put this federal genie and all his fleas back in the anti-Constitutional bottle wherefrom they arose and should there be returned. 

Regarding the Powassan Virus, I am not surprised.  It is carried by the Deer tick that (the more I learn of it) is apparently the “Typhoid Mary” of the animal world.  The tick is carrying it in Minnesota now and the presence of the virus in wolves (if it is in “small mammals” and humans and in the deer tick – can there be any doubt that it is in the wolves themselves and if in the wolves…. In coyotes and dogs?) 

It is a deadly brain virus and wolves, because they wander much more FAR & WIDE than other mammals... and pickup and drop ticks... and frequent human habitations (mainly at night).. and investigate every dog kennel, every  canid item of interest and dog spot they encounter -------  Because of all these the wolf is mixing tick populations and tick diseases FAR & WIDE and especially where humans and their dogs frequent.  I know I am not a “Veterinarian” or a “Scientist” or a “Lawyer” but these things need to be said and those that should be saying them and for whatever reason are AWOL should be ashamed. 

Thanks for asking. 

Jim

1 July 2011

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Jim Beers is a retired US Fish & Wildlife Service Wildlife Biologist,
Special Agent, Refuge Manager, Wetlands Biologist, and Congressional Fellow. He was stationed in North Dakota, Minnesota, Nebraska, New York City, and Washington DC.  He also served as a US Navy Line Officer in the western Pacific and on Adak, Alaska in the Aleutian Islands.  He has worked for the Utah Fish & Game, Minneapolis Police Department, and as a Security Supervisor in Washington, DC.  He testified three times before Congress; twice regarding the theft by the US Fish & Wildlife Service of $45 to 60 Million from State fish and wildlife funds and once in opposition to expanding Federal Invasive Species authority.  He resides in Eagan, Minnesota with his wife of many decades.