They Stole My Hawk! - Part III

They Stole My Hawk - Part III

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In Part II, I described in affidavit form how I salvaged a road killed Cooper’s hawk two years ago. I reasonably determined that no one else wanted it, so it was mine for the taking. Here’s the rest of the story.

The following day I wrote an affidavit to set the facts in concrete and had it notarized. I tagged the bird to reinforce my claim and to establish a chain of evidence in case some law enforcer decided to make a case out of it. I also marked it in the event I went to court I could positively identify the exact same bird. Only then did I immediately call the local game warden and reported the incident to let him know I found it and was claiming it as abandoned property under common law and to establish that I had no intention of breaking any law

You can imagine why Mr. Game Warden (GW) felt duty bound to contest my claim and why he would take my hawk by force if it came to that. He based his claim on the Texas Parks and Wildlife Code section; “no person may possess any part of the plumage, skin or body of a bird that is not a game bird.” He was familiar enough with the part that supported his claim, but was dismissive or ignorant of the section that supported mine, …all wildlife in Texas is the property of the people of this state. He was simply asserting what he was taught.

This was just a telephone exchange so I didn’t try telling him that a code is merely prima facie evidence of law and not the law itself. Nor the only applicable “law.” Neither would it have done any good to argue that insofar as I was not an employee, a licensee, not under contract with Texas Parks and Wildlife, or a “person” by definition, his Code didn’t apply to me. The TPWD is a person by definition. But somehow the rules don’t apply equally to them when the shoe is on their foot. That would have just confused things. When you confuse things with a lawman or even question his authority too much, too often it just makes him mad or even aggressive - unpredictable, even dangerous. Especially in today‘s police state atmosphere.

Mr. Warden then said I’d have to surrender my hawk to him or he would take action and he wouldn’t take no for an answer. He wasn’t unpleasant or anything, he was just going by the part of the book he knew, which in his mind gave him authority. What else would he say and what else did he know to do? I continued to press the matter of my claim and right of ownership but only as far as I was sure he understood my position. I then made it clear to him; I would surrender my property to him ONLY under duress and against my will and I would personally take the bird over to his office, ONLY as a convenience to him. I knew that was my only realistic and safe option. He wouldn’t have come without armed backup either. We can thank a half dozen federal agencies that we’re all afraid of each other these days.

So at risk of having my pickup confiscated as an alleged tool used in the commission of an alleged crime of possessing and transporting alleged contraband, I reluctantly headed for his office. It was in the Sheriff’s Office complex at the county seat in Anderson, 11 miles away.

Within the hour I delivered my hawk along with a copy of my affidavit which put GW on notice. We had a predictable conversation. He recorded it all on his telephone which suited my purposes too. Records are our friend. During the meeting I was made to understand that if I hadn’t surrendered the hawk he would have had to charge me with a crime. (Violation of a law is a crime. Violation of a code is an offense.) I told him that charge wouldn’t fly because in order to convict under the rules, he would have had to prove the element of intent and my affidavit established irrefutably that I had no intention of committing any crime. I didn’t get into common law, whereas to be a crime there has to be a victim; someone has to suffer a loss, harm or an injury. It’s an axiom of common law - no victim, no crime.

Besides, one doesn’t argue a case with a categorical witness who just happens to be a game warden. To him the code was the law, he was just acting under authority of the part he knew about, and I had no option but to yield. He had the gun and cuffs and the jail was just down the hall from his office. GW was professional throughout our contact, I must give him that. But I could see from his expressions and demeanor that he didn‘t know what the heck to make of me, my affidavit or my claim.

I told him that once he had completed his investigation, I wanted a copy of his report and expected him to let me know when the report would be available and when I would get my hawk back. He said he’d confer with his supervisor and get back to me. But of course he never wrote a report even though report writing is the first order of business in police work. I’m sure he never watched Dragnet on TV when he was a kid like I did. Or maybe he was just dozing in class when they were teaching the importance of report writing in game warden school. They work them hard there you know. Neither did he return my subsequent phone calls.

It would have suited my purpose just as well if he had ticketed me and I could have gotten before a judge in a court of record. Even though I know today’s courts work hand in glove with STATE interests, I was still willing to take a chance in my own rural county because of the nature and substance of a dollar worthless dead bird. You know, feather wrapped maggot food. In my county I can still call on a few friends and good neighbors as character witnesses too. On the other hand I could be just dreaming.

A veteran warden might or could have handled the situation differently. After all it wasn’t like I was some unknown perp they couldn’t run to ground tout de suite, or that I was going to destroy priceless evidence of a felonious crime. What are we talking here, a Class C misdemeanor? (Class C misdemeanors are non-arrestable offenses in Texas, punishable by fine ONLY.) An experienced warden could have easily checked out my claim, then if he was ordered to proceed against me any JP would have signed all the warrants he asked for. How’s that for dreaming?

Before leaving his office I got his superior’s phone number and days later I called Mr. Supervisor, a sergeant or lieutenant, I forgot to write his name down. When I finally got him on the phone and identified myself he sounded noticeably impatient, like he didn’t want to discuss this subject with me. I also sensed from his tone that he might be undecided whether to pinch me or not. He had the power to make a decision but was likely waiting for orders from higher up. He could have been nicer on the phone but I allowed that maybe the AC had quit working in his office or perhaps he had just received notice that he hadn’t been drawn for antelope in Wyoming again, for the 3rd straight year.

I explained everything to him from the start even though I knew GW had briefed him. It’s a unique experience discoursing with lower echelon government employees. They’re accustomed to certain routines and calling the shots in every situation. When you toss them a curve like asserting rights they didn’t know you had, or quote parts of laws they’re unfamiliar with it throws them off stride. So I’m always polite to them on the phone.

Like GW did, he quoted me the stuff about no person may possess any part of the plumage…, etc. The part of the Code I quoted cut no ice with him either. I’ll give him credit for being aware of it before, but I doubt he had ever thought about it. I asked where my bird was and when I would get it back. He said it was in a collection freezer in Bryan and he would look into the matter and get back to me later. I wasn’t going to hold my breath on his words either. I also wasn’t going to bet my shirt that my hawk ever made it to a freezer anywhere in Texas.
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So a few weeks later I called Parks and Wildlife’s main office in Austin and got the expected bureaucratic tap-dance. But by pursuing the matter in writing I finally got some attention from Mr. Christopher Maldonado, Wildlife Permits Specialist. We had a long cordial chat on the phone. (The higher up the ladder, the nicer they are on the phone.) I reiterated the whole spiel again about the Code saying this and myself saying that. In the course of our talk I informed him about Canadian and European laws providing for salvaging road kills. I told him how I’d seen dozens of mounted raptors for sale with my own eyes in hunting and fishing sport shows in Europe. I subsequently sent him a copy of the Canadian laws that regulate their procedures along with other materials supporting my claim.

I further argued that salvaging a few measly bits of nature that were already out of the ecology wouldn’t affect the species whatsoever, much less affect or impede his department’s mission to protect non-game birds. As if Parks and Wildlife employees ever actually did or could protect a single hawk or tweety bird from getting road-killed or shot. Just the same I held back playing the dereliction of duty card. He was only a lawyer not a field man and I knew that wouldn’t help me get my hawk back.

I explained at length that even though I wasn’t a museum or a public school, that alone was not reason enough why I couldn’t be issued at least a salvage permit to possess a dead bird that was clearly mine under his own department’s Code. It wasn’t like I was asking to keep some specimen of great rarity and scientific value like a dead whooping crane. I later sent him a copy of the article Tim Kelly ran in American Taxidermist Magazine which details the case Ballard vs. United States after which the U.S. Fish and Wildlife Service stalled but ended up issuing Lanny Ballard a salvage permit specifying Lannie ownership of a road killed red-tailed hawk. He even agreed with a number of my points but stood fast at “no person may possess any part of the plumage…etc.” When he said that, I knew I was wasting my breath.

He said he would look into the matter and get back to me later. I felt like saying, “Sure Chris, sure.” I truly did want to believe him too, but when someone else is available to pass the buck onto, expect that‘s the last you’ll hear from him. He bumped my request over to another department lawyer, Ms Laura Russell. She wrote me in essence that you rightful owners can’t own dead hawks, only we fictional entities can. (You’re a “person” when it suits them, and they and their agency are not a “person” when it suits them. Smoke and mirrors in action.) In one of her letters she ignored the facts in my affidavit and played the same song all the others did before her.

Ten weeks later I sent Ms Russell a formal Public Information Act request to find out if my hawk was still on ice in Bryan. I got back her dodgy response: “We do not have any record that lists the number and type of all of the species currently being stored at that office. Additionally, there are no disposition documents related to the hawk.” No records and no documents? So where’s my hawk? It wasn’t like I hadn’t provided her a copy of my half of the seized property receipt with it’s number in bold red ink. What happened to their half of the receipt? Maybe someone was dozing in class when they covered the importance of record keeping in law school. They work them hard there too I hear. Apparently they don’t keep records when it suits their purpose. Well, maybe they’re keeping records now. On me.
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Of all the apparatchiks who work in Parks and Wildlife with whom I communicated none of them said anything remotely like…,
“…What a cryin’ shame! Salvageable road killed birds and animals left to rot along roadsides daily when there‘s no logical reason why many can‘t be preserved and enjoyed by the people at large? Alive or dead, it’s not like Texas wildlife isn’t the people’s property already, or like there’s some big shortage of road killed hawks!
“Or why we at Parks and Wildlife can’t rake in some steady cash from permit fees, tags and administration and filing fees. Then there’s the taxable veterinarians’ examination costs to determine the cause of death, plus notary fees to affirm all those affidavits. Why.., the tax revenue shunted into our state treasury from taxidermy services alone might just pay for a program like that in no time a’toll. That doesn’t even include the fines we might be able to impose on the ones who miss dotting an i or crossing a t. And it would serve to bolster our public image amongst taxidermists and the general public alike.
Best of all it would give us another tool to exert control over taxidermists because we get to promulgate and administer the rules! I’ll see what I can do for you.”

Such a response would be unexpectedly rare from agency employees. Agencies are corporate entities which don’t have physical existence much less minds you can reason with. So you have to keep in mind that their employees act as their alter egos. Employees take on the persona of the agency as though they were it and it were they. You have to think in their stead and put the question on the table first. Then you’re not arguing with a phantom but rather with employees, many of whom are unaccustomed to people asserting rights or quoting laws which they don’t know themselves. It embarrasses some and makes them feel out of control of the situation. They’re used to us playing softball rules while they play hardball.

Nevertheless I know that most government employees are dutiful people, loyal friends and loving spouses and parents. Plenty of them too are frustrated by the “system” they’re required to function under but can‘t even talk to us about it. But once some of them put on that cloak of government authority it’s an instantaneous personality transformation of loyalty from the people to the STATE. Power over other people’s lives is something awesome which the average man or woman isn’t mentally equipped or taught to handle well or wisely. Public service means servant and no one likes feeling subservient. Sometimes it makes a few resentful of any pushback and produces “attitude.” It occasionally makes a few game wardens into “badge happy” automatons to boot! (GW excepted for instance.)

Claims like mine are nothing but extra paper work with no revenue flow to bureaucrats. Lower echelon employees have little discretion but to do what they’re directed to do. But many in upper echelons slavishly adhere to “the system.” Not going along with the system can mean not getting along at the office. Maybe they’re also afraid the Feds might frown if they stand along side their own people and not pay obeisance enough to the will of those overlords. I don’t know. But I know this - the Feds have issued private collector permits which authorize the shooting of live raptors and they don’t have a problem with that.
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Agents of Parks and Wildlife prefer to sweep my claim under the rug even though they accepted it as valid and not something frivolous. My simple affidavit put them in check. By not re-butting my affidavit their silence implies agreement or consent in legal land. That’s why they didn’t charge me with an offense. They also know I had the option of pleading not guilty and moving a case into a court of record. If I won it would set a bad precedent. The only question that remains a mystery to me today is how soon after they got their hands on my hawk that someone got the dubious honor of being the last man on earth to see it dead and “protect” it - before he pitched it into a dumpster or tossed it back to the worms.

Larceny by conversion, extortion, seizure or confiscation is still a crime even when State employees do it under color of law or in the name of the STATE. It doesn’t matter whether the thief wears a mask or a badge. But laws and codes, property rights and policies don’t quite apply equally to those in positions of power in governments today. Maybe if my name was L. B. J. Kish or George W. Bish, I would have gotten my salvage permit in five days along with a letter of apology why it took so long. If I’ve sounded a mite miffed in tone and perspective, it’s because they stole my hawk and won’t give it back.

By Joe Kish

Afterword: Thank you for taking time to read these long pieces. You might find the two letters below of pertinent interest as well. There is no last word on this subject matter. I welcome your comments and encourage your contributions to the dialogue. And to you silent monitors who are scrutinizing every word I’ve written, remember that taxidermists are the best allies you could ask for when it comes to protecting our wildlife from exploitation. Put that in your pipe and smoke it.
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Joseph Michael Kish
XXXXXXXXXXXX
XXXXXX, Texas [XXXXX]

November 25, 2011

Laura Russell, Attorney
Texas Parks and Wildlife Department
4200 Smith School Road
Austin, TX 78744


Dear Ms Russell,

Thank you for your response of November 8, to my letter relevant to PIA requests, etc. I will direct future PIA request to you. I have other questions concerning my claim to the hawk which can wait for another time as I am not done researching nor have I decided what course of action to take to recover my property. (dead Cooper’s hawk.)

Insofar as no officer or agent of TPWD nor yourself has rebutted my claim that I am not subject to the Code and that I am neither licensed nor contracted to TPWD, my claim to the hawk under common law remains. I would appreciate if you would see to it that your agency takes care that the carcass is not destroyed until the matter is settled.

As an employee of an administrative agency, I may presume that you have no discretionary powers toward a final decision or ruling denying me possession of the hawk in question. Therefore I will direct my future correspondence to the chief of law enforcement unless and until I discover the correct officer or employee in authority who can make a final decision. Thank you again for your attention to this matter.

Sincerely,
____s______

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Joseph Michael Kish
XXXXXXXXXXXX
XXXXXX, Texas [XXXXX]

January 12, 2012

Christopher Maldonado
Wildlife Permits Specialist
Texas Parks & Wildlife Dept
4200 Smith School Road
Austin, Texas 78744

Dear Chris,

Following our phone conversation last October I sent you a packet of documents to support my request for an administrative hearing and to assist you in determining whether or not your department might, will or could issue me a permit regarding possession and ownership of my dead Cooper’s hawk last known to be stored in your agency‘s facility in Bryan/College Station. It was my understanding that you would review the documents I sent and let me know your decision. To date, I have not heard from you.

In the meantime I have discovered that the Texas Administrative Code, Part 2, Chapter 69, Subchapter J, Rule 69.307 (6) provides for special disposition as prescribed in writing by the department. (Rule 69.307 (a) (6) ). Since you have not denied my request in writing or otherwise, I presume you haven’t made a decision, or simply find the matter not worth your attention. I do not believe it is necessary for me to point out that a response from you as a matter of courtesy would be the least I am entitled to.

I also wish to say further that your department’s attorney, Laura Russell, has written to me (quoting TPW Code 64.002) that “no person can possess, dead or alive, a nongame bird.” (Emphasis added.) In fact, the State of Texas is a corporation as are institutions, fictional entities which the law recognizes as a “person/s”. That suggests to me that there is either a conflict of law or interests in who your agency’s agents will issue permits to, or I am being discriminated against. I find it odd that a fictional entity is permitted to possess my dead bird property, while your department’s employees deny me, a live human being, possession of what it’s code acknowledges as “…the property of the people of this state.” And for your information, “people” is not the plural of “person.”

I look forward to your response.

Sincerely,

____s____

 

Trying to talk reason to LE officer is like trying to convert the Pope to become a Mormon.

I know exactly what you mean and why you think that way. At first glance it appears that you may be lacking in communication skills. One can learn to argue effectively, which is a skill. I learned it the hard way and always regretted not having taken debate classes in high school. In situations with cops it's best not to argue or debate at all, they hate to lose. We must understand and apply the wisdom of The Art of War by Sun Tzu, which is: "Know your enemy, know yourself." How well do you know yourself? That old sage also said the best way to win a battle is not to have to fight it.

 

This is an old worn out subject, you can put all the "freedom" issues you want into it to make it sound dramatic but the truth of the matter is, no one really gives a crap about road kill. That's what killed the issue years ago.
[/quote]

Hi Jerry, Your response is a surprise to me, coming from a club mate too. We're not rivals in business or anything else so I presume you have no animosity toward me personally.

Working backwards on your comments, road kills are still a live issue, important to me and to others as I judge from over 2000 reads of all three parts. A rather small number compared to those who take time to comment a on subjects like competitions and topics relevant to business ways and means. Those others who give a crap about the subject of roadkills have yet to weigh in. Quoting you, "the truth of the matter is," you Jerry, you don't give a crap. I have no problem with that at all. You're at liberty to not care about anything that suits your fancy. But I think you would agree that you don't presume to speak for everyone.

Lastly, in over 8000 words I never mentioned the word "freedom." And since you brought up the topic of freedom, your bringing it up in this context reminded me of this quote:


"The fact is that the average man's love of liberty is nine-tenths imaginary, exactly like his love of sense, justice and truth. He is not actually happy when free; he is uncomfortable, a bit alarmed, and intolerably lonely. Liberty is not a thing for the great masses of men. It is the exclusive possession of a small and disreputable minority, like knowledge, courage and honor. It takes a special sort of man to understand and enjoy liberty-- and he is usually an outlaw in democratic societies."
-- H.L. Mencken, Baltimore Evening Sun, Feb. 12, 1923

 

George,
To me your reply #6 is confused and confusing. Your arguments lack coherence by which I can figure out what points you tried to make. Please elaborate so I can understand your point of view. It would certainly be helpful to me if you would explain some of the following:

1. I understand that you don't care what the laws in Texas state since you're not subject to them. but why do you say they're completely irrelevant? They're quite relevant in Texas. And what many object lessons are obviously being ignored?

2. Did Lanny Ballard himself (single-handedly) nearly bankrupt the NTA or did the board who voted to support his case/battle have a hand in it too? What exactly did you mean by "that same logic?"

3. When Lanny won and he got his one hawk, did not the NTA board who backed him win too? Wasn't it also a win for all those members who supported the board's decision? Tell me how winning was a bad thing?

4. That "the people" retain ownership of natural resources is a fact. It's not a notion. Exactly what "smell test" does that fact fail to meet?

5. How did I usurp ownership of my neighbor's property when I can demonstrate that they abandoned their claims to it and by conditioning my claim upon the approval of three neighbors (Texas citizens) in good standing? In a situation like this three is sufficient to meet a legal representative number. Thereafter anyone else can challenge my claim in court. Courts adjudicate controversies you know.

6. Can you name a couple of things in life worth fighting for and making an issue out of equal or superior to rights and property? I'd like to read your list. Have you got something against a hawk or owl that you refer to them as damned? Damned to what.... Hell, extinction or something else? Why do they fit low on your priority list? Your comment puts me in mind of the story of the fox and the "sour grapes."

George, I know you can answer all these questions for me. I invite you to refute my arguments not simply express your personal opinions. That contributes very little to the dialogue. I think it would also help elucidate the subject matter for those who are following these responses. It would help them to make up their own minds too. How about a 1500 word essay arguing why and how my position is illogical, unreasonable or untenable? Make it persuasive. Give us all something worth reading.
In friendship,
Joe

 

[quoting George]

5. You never asked me if you could possess the hawk. I'm a member of "the people". It belonged to me and every other citizen of this country. Did you ask ALL of us? You can't claim dibs on something that doesn't belong to you. Courts and vase law are often quite screwy.
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George, it is not possible that you could be unaware that my hawk never could be the property of you and every other citizen of this country. Think about it! The Code clearly states: “...the property of the people of THIS state.” You're not one of the people here. This state (Texas), not Delaware, RI or New Jersy. You never had any more claim on that bird than Canadians or Mexicans do.

And you also can't be ignorant of the fact that the laws you call screwy have been superbly effective in protecting wildlife, even to the point of over-kill. It’s that over-kill part that needs to be addressed and revised. Didn’t I make that clear?

A writer has to defend what he writes or else its just a mess of worthless banter and he loses credibility. George, you’re mostly just shooting from the hip with lots of glib comments instead of rational arguments. You seem to substitute lots of perjorative words and phrases for argument. like for instance, “smell test, instigator who led the charge, infamous lawsuit, use the people, screwy raptor laws, and others not quite as obvious.

It’s pointless to continue an exchange with you because you don’t address the subject matter on the merits or stay on point. Nevertheless, it hasn’t been a total waste of time. I enjoyed your commentary on Menken very much. What I wouldn’t give to have an intellect half as good as his. I prefer to leave you with the last word, and I hope you will take it. And thanks for your feedback.