Crimes Against Nature by Robert F. Kennedy, Jr. (Mega-Barf Alert)

This man has a twisted view of the legal traditions of property.

By definition, a thing that is wild ("ferae naturae,") is not owned. It is res nullius. In Roman law, "Res Nullius" were physical things which "have not or have never had" an owner. Among these were wild animals, fishes, wild fowl, jewels disinterred for the first time, and lands newly discovered or never before cultivated. Also, among things which "have not an owner" were moveables that were abandoned, lands that were deserted, and the property of an enemy. Public Trust does no apply to things res nullius in the public domain.

Things like flowing water require acts of appropriation - possession (control) and use to establish a private ownership interest. Private rights to appropriate water were established until 1914, when the right to appropriate any additional water was retained by the people of the State of California. The State defines what constitues a sufficient act of acquisition and possession to constitute private ownership.

In Hughes v. Oklahoma, 41 U.S. 322 (1979,) the Supreme Court rejected the argument that the State owned all wild animals - either as a proprietary interest or in ownership in trust for the collective people of the State. There are long tomes on what constitutes sufficient acts of control to "take" a wild animal into private ownership.

There is also a "right of soil" or ratione soli called "ferae naturae-propter privilegium." This is the transitory ownership in wild animals while resident upon privately owned land. It is an exclusive private "territorial" right to pursue acquisition and possession (hunting grounds or fishery) as an incidence of land ownership. You can read an explanation of this is the Supreme Court opinion of Geer v. Connecticut, 161 U.S. 519 (1896.)

"Ferae naturae-propter privilegium" is also the basis of groundwater and oil rights. In Brown v. Spilman, 155 U.S. 665, 669, 670 S., 39 L. ed. 304, 305, 15 Sup. Ct. Rep. 245, 247, the Supreme Court stated:

"Petroleum gas and oil are substances of a peculiar character, and decisions in ordinary cases of mining for coal, and other minerals which have a fixed situs, cannot be applied to contracts concerning them without some qualifications. They belong to the owner of the land, and are a part of it, so long as they are on it or in it, or subject to his control, but when they escape and go into other land, or come under another's control, the title of the former owner is gone. If an adjoining owner drills his own land and taps a deposit of oil or gas, extending under his neighbor's field, so that it comes into his well, it becomes his property. " [See also Ohio Oil Co. V. State of Indiana, 177 U.S. 190 (1900.)]

Public Trust, on the opther hand, has a very narrow application under Roman Civil Law as carried forward in English law. Certain lands and resources were designated as "public" by longstanding tradition or specific dedication. Although the king held sovereign title to the land and resources themselves, he had a fiduciary responsibility to maintain them in trust for the public right of common use. In actuality, English kings, prior to the Magna Carta, occasionally granted private use rights that extinguished the public right. The three public trust responsibilities were those of:
"Commons";
Common piscary (fishery or fishing rights); and
Common right of "free" navigation.

Commons
A "public place" or "commons" is positively designated by the community as a place common to all, either by formal dedication or longstanding common use. It is in a civil state of common ownership, governed by public law, (jus publicum or de communi jure.) Such public places are reserved from appropriation (purpresture) by any individual. The naked title is generally held in "public trust," inalienable by the sovereign or chartered municipality, although subject to regulation of use.

Common Piscary (Fishery) and Free Navigation

Under English common law, navigable waters were only those effected by the ebb and flow of the tides. The "Crown" owned navigable riverbeds up to the ordinary high water mark. The public had the common right or "liberty" to use a navigable waterways as a public fishery, as well as a public highway. The public also had a right to use the river's banks to the high water mark for purposes of access, cleaning fish or towing barges by draft animals. (Note: A "fishery" is a right of soil - a right to fish in a place.)

That is all mine. I spent about a decade researching law history to document private property rights. It was sort of hobby. My work used to be posted in a website I maintained for my former employer. When I left, I removed it. It was used as reference by several professors of ancient Roman history and was a link under findlaw.

I stopped when I realized that the Supreme Court took some strange (political) turns that were not consistent with precident and hundreds of years of legal tradition. They could not be reconciled with the body of the law and eroded the basis of all subsequent cases.

One such decision was the one regarding "equal footing" of the Western states and federal lands. Another was the application of regulation applicable to franchises to private property. Another was the expansion of the "police powers" of regulation to include a broad definition of "public welfare." Another was the expansion of the waters of the United States to include intrastate non-navigable streams. There was the broad interpretation of the Commerce Clause to expand the federal government's reach into everything. Another was the existence of an International Treaty on Birds to imply the existence of federal police powers to regulate the "taking" of animals and fish.

You can find the shadow of some of it starting here: http://users.snowcrest.net/siskfarm/Rescomm.html (just click on the empty right box at the bottom to move through) I also believe some other site mirrored it and it may still exist on the web somewhere.

When I grow up, I want to get an actual degree in law history and teach at a small college or university. Well. perhaps in my next life.

FanFReepinTastic!!! I guess I didn't know you had a law background. Beautiful work!!!

Subsequent to the victory by the Birdbrain Society on Mono Lake, Judge Hodge used "The Public Trust Doctrine" to establish his arbitrary and capricious "Hodge Flows" in the battle over diversion from the lower American River to the East Bay Area.

Now that's all being worked out by a "Stakeholders Consensus" through "Interest Based Negotiations" that gives EnvironMental groups equal footing with elected GovernMental groups and being conformed to further such unconstitutional garbage in the "CalFed/BayDelta" process!!!

The enviro groups are morphing into "Watershed Groups" and tangling many "electeds" into "The Web Of Inclusion" to control land use through water agencies, per the bill just signed by Gray Davis!!! It's getting insaner and insaner!!!

The people and their property rights are just getting hammered by these what I call "Outcome Based Negotiations!" Then you can see this stuff getting further institutionalized in totally unconstitutional "Regional Government Organizations" and it's overwhelming everything!!!

I learned the most about "The Public Trust Doctrine" from law reviews like "Environmentalism and Water Law in CA," etc. I was too much of a "shallow politician" to do the heavy lifting that you have done and I have no law degree. Do you? I know Iconoclast2 has one and knows how to use it.

My background was history/anthropology, not law. Discovered my fascination with law much too late in life.

I believe the Mono Lake decision involved water use rights that were post 1914. At that time, all surplus water not previously appropriated was claimed as property of the People of the State of California by virtue of riparian lands under the title of the State. (Because of the California dual system of water law, appropraitive rights had been accomodated as a prescriptive right on riparian rights on public lands.)

As a result, post 1914 appropriative water use rights are permitted and licensed water use rights by the State of California. That is why Public Trust was involved. Of course, the extreme environmentalists try to parlay that into broad application and folks ignorant of the subleties buy the arguments.

I am not opposed to watershed groups. We have two that have been in existence for more than a decade. They are locally controlled and operate on a volunteer, incentive basis. Their existence and success in restoration projects has allowed agriculturalists to have their own local voluntary recovery plan for coho.

We also may be able to have a programmatic incidental take permit (with 1603) issued to the RCDs to allow diverters who wish to participate to operate under a compliance contract in accordance with the permit. (They have them over a barrell as 1603 streambed alteration permits are going to be revoked upon final listing in December and many require those to irrigate.)

It is a sticky path to walk, but you can try to grab local control of the institutions, keep them voluntary as much as possible and avoid getting local government impressed into implementation by ordinance and local enforcement. It takes understanding what is happening and the implications to local control and property rights. It also requires constant vigilance and attendance and participation at meeting after meeting. It takes good folks in the community who are smart and educated and willing to get involved.

The hardest thing is to try and back the process out of something that has been decided by agencies and environmentalists at meetings that you missed.

The big thing we are fighting now is the mommentum to drag the mid river folks into whole river processes that involve the BoR and the tribes - federal nexus and tribal trust. Currently, we don't have those forces strongly at play in local processes. Another issue is the TMDLs (Total Maximum Daily Loads) being set by the North Coast Regional Water Quality Control Board. We are having to challenge their assumptions, modeling methods and protocols as appropriate at every step.

I don't know if we will maintain any semblance of control over this runaway horse of regulation, but we have to try to minimize the damage by turning the horse's head.

I'll print this screed to read later (though it doesn't appear to be worth the TREE DESTRUCTION judging by some of the commentary and the obviously bankrupt author). One thing I can say having read just a part of it thus far:

I have heard entire phrases of this repeated to me VERBATIM by evangelizing Greenpeace automatons this past Summer as they staked out certain streets in NYC. I didn't bother to argue with any of these trustafarians although I would play along and then throw in a comment about driving a 10 mpg vehicle happlily through virgin forest churning-up as much mud as I could and then cranking up my trusty 70cc Husqvarna chainsaw to fell a nice red oak for firewood....but I digress.

This screed looks to me at least to be Greenpeace's playbook and I would not be the least bit surprised if the unhinged RFK Jr. had it ghost-authored by them.

BTW, the Greenpeace recruits were commonly stationed near ATM's or near the entrances of heavily-trafficked buildings until they wer chased off for being a nuisance. Native NY-ers generally wouldn't give them the time of day but tourists (which these little evangelists were - I asked)stopped and were polite.

I did manage to talk to one of the "volunteers" about how he came to be canvassing the streets and where he honed his spiel (it cost me a cigarette....worth it, though). VERY interesting how he happily described his indoctrination and "training"....It's a CULT and don't believe anyone who tells you different.

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