Quote:

 

From: AFA-Talk@yahoogroups.com [mailto:AFA-Talk@yahoogroups.com] On Behalf Of gennygem2@aol.com
Sent: Wednesday, January 16, 2008 4:16 PM
To: Gennygem2@aol.com
Subject: [AFA-Talk] Pennsylvania Nandays are NOT grandfathered in the existing PA Code proposal

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I have been informed that there are some people circulating the email quoted below, and that they are incorrectly advising people not to worry about the presently pending proposal to ban possession of Nandays in Pennsylvania. 

Unfortunately the quoted, "PGC Jason Decosky, head of Special Permits and Wildlife Conservation in the Harrisburg (main) office of the PA Game Commission", or any other employee of the Pennsylvania government, does not have the authority to violate Pennsylvania law as set forth in the Pennsylvania Code.    Government employees are required to obey the law as it is written.

The fact is there is no grandfather clause in the pending proposal (which is a proposal to amend 
existing Pennsylvania Code Title 58 (Recreation), Part III (Game Commission), Chapter 137 (Wildlife), subsection 137.1 (importation, sale, and release of certain wildlife)  ).    The existing Pennsylvania Code can be read at:
http://www.pacode.com/secure/browse.asp

The proposed amendment can be read at (starting on page 42 of the PDF file)
http://www.pgc.state.pa.us/pgc/cwp/view.asp?a=481&q=163334

If the drafters of this amendment (presently before the Game Commission) wanted a grandfather clause they could have easily included one in the pending proposal to change the Pennsylvania Code.    They could also present a proposed regulation specifically grandfathering existing Nandays in Pennsylvania from the requirements of this new Code section prohibiting the "possession" of Nandays.    They have done neither. 

The assurances of individual game commission staff members, or any other state employees, while perhaps well-intentioned, are not the law.  The language of the law and related regulations will control, and as the proposal is now worded, it will be illegal for anyone to possess Nandays without a permit (which is not available to pet owners).   

In fact, the word "possession" does not now appear in the existing Pennsylvania Code section noted, and the word "possession" is specifically being inserted by this proposal into the existing law (in addition to adding Nandays to the section that previously only banned Quakers).

A reasonable person has to ask why would the Game Commission, or anyone else, go to the trouble of amending the law in question to specifically outlaw "possession" with no grandfather clause if that was not exactly what they had in mind?

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Grandfathering claim being circulated:

"There has been much panic associated with the proposed regulation banning Nanday Conures in Pennsylvania. Petitions are circulating stating that none will be grandfathered and pets will be confiscated. This is a rumor that IS NOT TRUE!.

I contacted PGC Jason Decosky, head of Special Permits and Wildlife Conservation in the Harrisburg (main) office of the PA Game Commission and this is his reply to my inquiry regarding grandfathering:

Peggy,

The intent of this regulation was to prevent, by regulation, the importation of Nanday Conures into the Commonwealth. The PGC has done this with other species and through agency procedures grandfathered all existing animals in the Commonwealth as long as they had documentation that that animal was pre-act. The agency is not interested in existing Nandays, however in the interest of our native wildlife; we do not to allow the importation of more Nandays. A good example would be the Quaker or Monk Parakeet. The regulations did not spell out a grandfather clause but a internal letter stated that there was one. I hope this helps you out. I will be out of the office all week and will be back in on the 24th. Thanks Peggy!

Jason"


Genny

The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the government, the right to be let alone - the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment. And the use, as evidence in a criminal proceeding, of facts ascertained by such intrusion must be deemed a violation of the Fifth.
--Justice Louis Brandeis OLMSTEAD v. U.S., 277 U.S. 438 (1928)