Posted by J.M. on October 08, 19100 at 14:27:22:
In Reply to: Re: The Law, The DNR, The Truth posted by Carl TerHaar on October 06, 19100 at 07:32:43:
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: : : : Isn't this wasted discussion? What's the point? That the Abandoned Shipwreck Act is invalid? Has it ever been successfully challenged in court? Whoever wants to try to challenge it better have deep pockets. In the meantime, states can enact whatever laws they want, valid or not, until they are struck down by federal courts. Are the wrecks protected? Law or not, wrecks will only be protected if the diver protects them.
: : : Bob: The point is that the Abandoned Shipwreck Act does not give blanket coverage of all shipwrecks to the states. The ASA is indeed valid, it is the state laws which are invalid. The state law in Michigan has been successfully challenged in the case of the James R Bentley. The Honorable Victoria A. Roberts, US District Judge ruled that the State of Michigan had no right to intervene, as the shipwreck did not meet the criteria setforth in the ASA.
: : : I was declared owner of the James R Bentley, her tackle, appurtance, furnishings and cargo by the ruling of the Federal court as of August 24,2000.
: : From Steve Harrington: As much as I wish it weren't true, Paul Ehorn is 100% correct. Virtually all shipwrecks in the Great Lakes appear to be fair game according to recent court decisions.
: : Bureaucrats must take some blame on this. When the Abandoned Shipwreck Act was passed, the National Park Service, specifically Michelle Aubrey, wrote guidelines to interpret the new law. At a shipwreck management conference in Windsor, she stated that no provisions for salvage were required under the act even though the plain language of the act stated differently. Her position (and that of John Halsey of Michigan's Bureau of History) was that once it hit the bottom it was historic and therefore protected. I'm not for salvaging truly historic shipwrecks but prohibiting all salvage in all circumstances is clearly unreasonable.
: : This is probably the backlash. Divers must decide whether they really want their wrecks protected. So far, they have been silent. Read the next issue of the Great Lakes Diving Report for the full story on this issue and the new diver fees proposed by NOAA's new marine sanctuary. Oops! You didn't really believe them when they spent the last ten years saying there wouldn't be fees did you?
: : To get the next Great Lakes Diving Report online, send your e-mail address to the Great Lakes Diving Council at: burbot@dellnet.com.
: If you want to be successful in making a claim like Mr. Ehorn, you should first find a federal judge that will buy into the idea that a shipwreck like the "Bentley" can be excavated by hand, without using tools of extraction.
: Then you have to get the judge to not allow arguement that the wreck qualifies for listing on the federal register.
: The ball was fumbled on this play, but the game is not over. The state Attorney General's office has assured that they will take each wreck on an individual basis.
: They have learned a lot from the loss of the "Bentley". The fact that it took a wakeup call of this magnatude, is unforunate.
I think Mr. Ehorn’s claim and subsequently favorable outcome shows us something else. It shows us that state and local law do not always reflect Federal law and/or our national law, i.e. the United States Constitution. The following court rulings exemplify to us that statutes that are unconstitutional are non-law.
"All laws which are repugnant to the Constitution are null and void." Marbury vs. Madison, 5 US (2 Cranch) 137, 174, 176, (1803)
"When rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them." Miranda vs. Arizona, 384 US 436 p. 491.
"An unconstitutional act is not law; it confers no rights; it imposes no duties; affords no protection; it creates no office; it is in legal contemplation, as inoperative as though it had never been passed." Norton vs. Shelby County 118 US 425 p. 442
And so follows any state and local statues that attempt to abrogate Federal law.
Mr. Ehorn’s case shows us that law enforcement in the State of Michigan would use a broad brush to define the limits of its own non-law. The response of more than one of these enforcers has been to discredit the judge when, in fact, it is the very pre-suppositions of these listless enforcers that should be dis-credited. Our lawmakers, who make fertile the seeds of cases against the Mr. Ehorns’ of the world, should also share the dis-credit. They often mistake action for direction and meddle in too many affairs of the free citizen. This is something every freedom-loving American should always keep in mind, especially when sitting in judgment of others, such as being a member of a jury where determining the validity of a law is a duty.
Consider another point for a moment; Mr. Ehorn, as I understand it, removed the figurehead from the Bentley and had it placed into the care of a museum in Wisconsin. The figurehead has arguably brought more attention to the story of the Bentley than all of the divers who ever visited it have generated and yet, given the chance, the State of Michigan decided that they would prosecute him to the fullest extent of their law. I heard one enforcement official say, “Mr. Ehorn’s prosecution would be an example to others who might consider committing a similar “unlawful” deed.”
Now, to my amazement, we find out that Mr. Ehorn committed no legal infraction, and the enforcers are vindictive. They blame the judge’s “mis-guided” rulings, or the judge’s ignorance. These enforcers do not consider this ruling as a clarification of law and ethics; they think the ruling is just WRONG! They are not willing to accept a ruling that is contrary to their own interpretation of the law. These are the people with the guns who have public permission to use deadly force. They are allowed to carry weapons that freedom-loving citizens cannot “legally” carry because we have swallowed the unconstitutional law that the lawmakers have arbitrarily imposed concerning our Second Amendment rights.
These, of course, are personal observations. I have spoke with one of the Conservation Officers involved in the case and his attitude was just as described above. I gather from the previous posting that he was not the only one connected to the State of Michigan that has that view (see e-mail address of previous poster). This arrogant disregard for the law is something Americans should keep a watchful eye upon especially since we have already let so much of our freedom slip away.
Attempting to serve Liberty,
J.M.