Confessions of a Treatyphobe
by Jim Beers
“My name is Jim Beers and I am a treatyphobe.”
I grew up in the period of wildlife abundance in the 1940’s and 50’s. From the first time I hunted with my Dad, the dream of spending my life managing and preserving the use and cultural heritage provided by US fish and wildlife was always in my mind.
When I studied wildlife management in college and when I worked for the Utah Fish and Game and then the US Fish and Wildlife Service after a stint in the Navy; fish and wildlife management and use, like American freedoms and the American way of life were still intact. Today, fish and wildlife management and use, like American government, American freedoms, American culture and traditions, and American society are in tatters and on the verge of disappearance.
I lay much of the blame for this decline on the sordid manipulation of the Treaty powers contained in the US Constitution by persons with hidden agendas. That is not to say that this power is wrongly described therein, it is to say that this power as it has evolved in the past century has eroded the strong foundation of Constitutional government and fish and wildlife use and management as we knew it.
I am “taking pen to paper” here because yesterday I wrote about the potential for the current Administration (Obama et al) and the current US Senate (Reid et al) to cynically craft and line up a few nations to sign a UN Treaty “On Small Arms and Ammunition” that, when signed by the President (of the US) and ratified by 2/3 of the Senators “present” whenever old Harry (Reid) deigns to ask for a vote, automatically becomes “the Law of the land” per the Constitution. I further speculated that it would mean the inevitable demise of our 2nd Amendment rights.
A lawyer that I respect essentially responded that such a scenario was unlikely because such a treaty would not and could not change the Constitution and therefore would be challenged and found to be unable to change our rights. I was crestfallen but I accept that lawyerly advice.
Therefore I have joined Treatyphobics Anonymous and as my first step in overcoming my phobia about Treaties will try to explain my formerly inexplicable fear of Treaties so that I might return to societal confidence in the Treaty-making authority of federal leaders.
When I went to work for the US Fish and Wildlife Service in the late 1960’s I unknowingly entered into an era of societal turbulence and change that was not only reflected in fish and wildlife programs but indeed hijacked those programs and the powers they contained. I can only say this now, because while I was immersed in it until fired in 1999, it was truly like the old saw of not being able “to see the forest for the trees”. Allow me to explain.
US fish and wildlife were unmanaged and freely used until the late 1800’s. In 1896, new state laws about wildlife were upheld by the Supreme Court in GEER v. Connecticut wherein it was held that states “owned” all the fish and wildlife within their borders. This was the cornerstone that began the increased management and sustainable use of fish and wildlife by accountable (to state resident voters) State, not federal, politicians and managers.
In 1917, the federal government ratified a TREATY with Canada to protect about 200 species of birds (nearly all migratory game birds and songbirds) that Migrated between these two nations. The authority for the federal government to subsequently claim ALL authority over all of these named birds was upheld by the Supreme Court in Holland v. Missouri in 1920. Ray Holland was one of my (as a young duck hunter) early heroes and to this day I have a photograph of him standing, cigar in hand, on the Mall in DC in the early 1920’s. Federal authority for years protected and increased those migratory birds for uses from hunting and bird watching to protection of agricultural crops and wetlands. Today I would argue that they no longer do that, if anyone would care to debate the point.
Let’s fast forward to my 32 years with the USFWS. As societal turbulence (anti-war, drugs, “free”-love, etc.) shook the land, federal fish and wildlife management and use was subverted and perverted into something 180 degrees out of synch with American traditions and cultures. Treaty manipulation became a hidden factor in this perversion.
Consider two federal laws that have changed our world dramatically, The Endangered Species Act and the Marine Mammal Protection Act.
1. An Endangered Species Act passed Congress in 1969 but it was found to have “no teeth’. So a UN Convention was concocted and ratified on “International Trade in Endangered Species of Wild Fauna and Flora” (“Small Arms Treaty” anyone?) in 1973. That same year (wow, did they do that quickly) the federal government enacted the Endangered Species Act we all came to know and (only a few of us) love.
2. The Marine Mammal Protection Act was introduced in 1976 by an Arkansas Senator (funny how those guys and gals keep popping up in these scenarios about subverting US society) who joked that “the best thing about this law (he was fishing for “environmental” votes at the time) was that there wasn’t one of them Marine Mammals within 500 miles of Arkansas”. It followed:
1931/49 - Whaling Convention Act and amendments.
1957 - Fur Seal (Alaska) Act
1958 - Convention on “Living Resources of the High Seas”.
1970 - 8 Species of Whales declared “Endangered”.
1972 - A Treaty on Seals.
1973 - A Treaty on Polar Bears. (As I write this, the paper reports that the US introduced a ban on the international trade by Canadian natives of polar bear skins, teeth, and claws from their own robust and sustainably-managed and hunted polar bear populations. Fortunately, this political trashing of the rural and native people of our strongest ally and neighbor was defeated by a surprisingly erudite UN vote.)
Now remember that I am ignoring a whole bunch of simultaneously nefarious stuff involving other fish and wildlife things during these years. For instance:
* Manipulating a Migratory Bird Treaty with Mexico and new Treaties with Japan and Russia to quietly add new “federally protected” birds that had been specifically excluded like cormorants (that soon overran hatcheries and fish farms) and pelicans (that soon became “Endangered” and now overrun docks) and hawks and owls that, like protected wolves and grizzly bears, soon grew in numbers and destruction impacts on other birds and desired wildlife.
* Closing public lands to access and management (Wilderness Act of 1964).
* Wild Horse and Burro Act (1971) giving federal protection to such destructive and overpopulated animals.
* Gradual reorientation of federal lands into being lands OUTSIDE state and local authority and lands oriented to “Native Ecosystems” instead of the purposes for which they were purchased.
* Closure of public lands to uses (and management tools) like logging and grazing.
* Proliferating designations by Executive Orders and bureaucratic regulations to close public land from energy access and development to closing more access with Roadless Areas, the destruction of trails, nuisance regulations, draconian law enforcement, and entry fees.
Now remember, what I am about to say comes from someone that is not a lawyer. If I had a buck for every time I heard, in my federal career, that “we” had authority over private property and state governments because “we” (us federal guys, not you out there or any of those state “cowboy legislatures” or redneck farmers) had treaties and the laws implementing them on “our” side, well I would be fishing off New Zealand or bird shooting in Argentina (it is early fall there) right now. Government Solicitors and those bureaucrats that were promoted to ever-higher responsibilities (“responsive to management skills and abilities” types) were constantly maneuvering with New Age Lawyers and their environmental/animal rights clients and supporters to “interpret” the laws and treaties in supportive (of government expansion) ways. They also worked hard to identify and “suggest” new laws and regulations to “save” more and to “plug loopholes” that frustrated federal power growth. Writing suggested Treaty language and getting court findings to serve as precedents (the “right” court at the “right” time) and then writing regulations that served the original but mostly unnoticed federal/ “New Age” supporters agendas was what federal employees and their advisors were paid and rewarded to do in those days.
Those 2 federal laws (ESA & MMPA) created a federal and public mindset, and a whole trail and flow of increasingly un-American laws and regulations. This soon did two things:
1. Established the now-acceptable practice that the federal government could “Take” private property use and value from private owners for whatever reason it contrives, like “Critical Habitat”, WITHOUT PAYING FOR IT. This broke the back as far as federal advocates were concerned of that old, out-dated concept about “nor shall private property be taken for public use, without just compensation” that those old rich guys (Our Founding Fathers) wrote somewhere (the US Constitution, 5th Amendment). Who wouldn’t “take” all they could if there was no cost? Who could afford to “take” all the federal government has “taken” in the past 40 years if they had to pay for it?
2. Established the current belief that states no longer “owned” any fish or wildlife except what the feds have left alone thus far.
Once we accepted these two principles and their future place in our laws, our fate was and is sealed.
When federal bureaucrats and politicians saw that Treaties could give them absolute power over everything from private property to the authority and jurisdiction of states – THEIR FUTURE GROWTH AND MARCH TO ABSOLUTE POWER WAS ASSURED. No court would ever again uphold a citizen defending private property (be it dog, farm, chicken, or home.) No state would ever again be able to stop federal orders that closed public lands in a state or denied gun rights on federal lands in the state or stopped logging or farming or grazing on public and private lands within a state. The rest was academic:
* Federal lands, budgets, regulations, and power have grown dramatically over the past 40 years.
* State rights have all but disappeared.
* State employees have become mere extensions of federal policies, receivers of federal welfare (excuse me grants and assistance) and enemies of state residents.
* Federally protected overpopulations of Seals choke the mouth of the Pacific NW Rivers eating enormous amounts of salmon (thereby sustaining their overpopulation) while the same federal government protecting them tears down dams, shuts down irrigation districts, reduces human water supplies and power generation, and closes vast ocean areas to fishermen; all to “save salmon”.
* Federally protected and federally dispersed wolves spread disease, danger, and carnage in federally-designated states on both public and private property and thereby destroy rural culture, rural economies, and rural communities where federal lands and the destruction of animal (wild and domestic) husbandry and use is being federally driven to make way for ever-growing federal land enclaves.
* Marine Mammals that never leave state waters and were heretofore under state authority like manatee and sea otters are, like growing lists of other wild resident and therefore formerly state-controlled animals like sage grouse, pupfish, suckers, wolves, etc. placed under absolute and never-ending federal jurisdiction (every State move must be “approved by federal authorities” once such jurisdiction is proclaimed). This set the groundwork for the current cry for “federal laws” to “restore native ecosystems” and “eliminate invasive species” (what else is there given the nonsensical definitions of these “rubbery” concepts?)
A century of American Progressive challenges to the “ownership of the commons”, an ancient concept about whether “The King” or “The People” (now where have I heard that last term before?) owned “public” land and the fish and wildlife inhabiting it has become intertwined, like mating snakes with a century of “progressive” beliefs and actions about the “smart” few governing the “ignorant” (scientifically-challenged?) many.
Those 2 results of Treaties (ESA & MMPA) being (rightly or wrongly assumed by federal bureaucrats and their political bosses and an “evolving Supreme Court”) justification for laws demolishing the Constitution and leaving only the power of a majority vote (i.e. no “Rights” just power) have much to do with the state of America today.
As an old bureaucrat I may be way off base about how Treaties are supposed to work but I know what I saw and it is like a B-25 tail gunner walking through Dresden in 1946: it ain’t pretty and you wonder how it all happened and how it ever went this far.
I’m sorry, but I don’t think I will come to any more of these meetings. All this baring your soul stuff is too stressful on an old-timer.
