Re: My reply to lemmings, the first place to look for a dive instructor

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Posted by John R. on May 24, 2004 at 15:48:21:

In Reply to: My reply to lemmings posted by Freedom Fighter on May 24, 2004 at 13:23:54:

Congratulations, “Freedom Fighter”, you have found your spell checker. I implore you to continue with your word processing education. As for your views on the Constitution and the Fish and Game Code- the Public Trust doctrine has been reviewed several hundred times over by many state supreme courts. Since you like to quote famous people so much, here is Shakespeare, “The common law public trust doctrine hath not been dead, though it hath slept.” Well my diver friends, ’tis time for a legal wake up call!

Numerous states have explicitly held that the common law Public Trust Doctrine applies to protection of wildlife. For example, the Supreme Court of Ohio stated, "The common law in Ohio has consistently recognized the trust doctrine and that it is predicated upon the property interest which the state holds in such wildlife as a trustee for all citizens." Ohio v. City of Bowling Green, 39 Ohio St. 2d 281, 313 N.E.2d 409, 411 (1974). In Virginia, "[u]nder the common law Public Trust Doctrine, the State of Virginia and the United States have the right and the duty to protect and preserve the public's interest in natural wildlife resources. Such right does not derive from ownership of the resources, but from a duty owing to the people." In re Steuart Transportation Company, 495 F. Supp. 38, 39 (E.D. Vir. 1980). More recently, in 1996, a California Court of Appeals stated, "California holds title to its wildlife in public trust for the benefit of the people. As such the state has a duty to exercise continued supervision over the trust to prevent the harmful use of the state's wildlife resources. " People v. Perez, 51 Cal. App. 4th 1168, 59 Cal. Rptr.2d 596, 599 (1996).

In light of the extensive recognition by California courts of the State's duty to manage wildlife and the State's duties under the common law Public Trust Doctrine to conserve the public's interest in our finite natural resources, THE LAW CLEARLY SUPPORTS FISH AND GAME CODE SECTIONS 1006 AND 7702.

And yes, Mr. Freedom Fighter, if you happen to be in violation of state laws after a search has been conducted on your vessel, the Supreme Courts say you will be fined for it as well. There is a developed body of law that recognizes the rights of the states to recover monetary damages for injuries to wildlife where the defendants have sought to have the cases dismissed because the state did not have a "property interest." The reasoning was expressed appropriately in Maryland v. Amerada Hess Corp. 350 F.Supp. 1060 (D. Md. l972), mot. for relief den., 356 F. Supp 975 (D. Md. 1973):
[I]f the State is deemed to be the trustee of the waters, then as trustee the State must be empowered to bring suit to protect the corpus of the trust-i.e., the waters-for the beneficiaries of the trust-i.e., the public. Id. at 1067.
In the case of State v. New Jersey Central Power & Light, 125 N.J. 103, 308 A.2d 671 (1973), aff’d. 336 A.2d 750 (N.J. Super. Ct. Div. 1975), rev’d., 351 A.2d 337 (N.J. l976), the court expressed the concept that "[t]he State has not only the right but also the affirmative fiduciary obligation to ensure that the rights of the public to a viable marine environment are protected and to seek compensation for any diminution in that trust corpus."

So Mr. Freedom Fighter, as for your views upon California law enforcement authorities, I only hope you run into a REAL thug of a Game Warden that wont stand for your interference. A tip for your future run-ins with peace officers…, the California Penal Code says it is a misdemeanor to interfere with a law enforcement officer’s official duties. This would include any legal searches and seizures. Hopefully you will have time to think about your little insurrection next to “Bubba” in a cold jail cell.

John R.

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