[Senate Hearing 105-947]
[From the U.S. Government Publishing Office]
S. Hrg. 105-947
MIGRATORY BIRD TREATY REFORM ACT OF 1998
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON
ENVIRONMENT AND PUBLIC WORKS
UNITED STATES SENATE
ONE HUNDRED FIFTH CONGRESS
SECOND SESSION
on
H.R. 2863
A BILL TO AMEND THE MIGRATORY BIRD TREATY ACT TO CLARIFY RESTRICTIONS
UNDER THAT ACT ON BAITING, TO FACILITATE ACQUISITION OF MIGRATORY BIRD
HABITAT
__________
SEPTEMBER 29, 1998
__________
Printed for the use of the Committee on Environment and Public Works
U.S. GOVERNMENT PRINTING OFFICE
53-123 CC WASHINGTON : 1999
------------------------------------------------------------------------------
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_______________________________________________________________________
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20402
COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
one hundred fifth congress
JOHN H. CHAFEE, Rhode Island, Chairman
JOHN W. WARNER, Virginia MAX BAUCUS, Montana
ROBERT SMITH, New Hampshire DANIEL PATRICK MOYNIHAN, New York
DIRK KEMPTHORNE, Idaho FRANK R. LAUTENBERG, New Jersey
JAMES M. INHOFE, Oklahoma HARRY REID, Nevada
CRAIG THOMAS, Wyoming BOB GRAHAM, Florida
CHRISTOPHER S. BOND, Missouri JOSEPH I. LIEBERMAN, Connecticut
TIM HUTCHINSON, Arkansas BARBARA BOXER, California
WAYNE ALLARD, Colorado RON WYDEN, Oregon
JEFF SESSIONS, Alabama
Jimmie Powell, Staff Director
J. Thomas Sliter, Minority Staff Director
(ii)
C O N T E N T S
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Page
SEPTEMBER 29, 1998
OPENING STATEMENTS
Chafee, Hon. John H., U.S. Senator from the State of Rhode Island 1
Graham, Hon. Bob, U.S. Senator from the State of Florida......... 13
WITNESSES
Adams, Kevin, Chief, Office of Law Enforcement, U.S. Fish and
Wildlife Service, Department of the Interior................... 14
Prepared statement........................................... 32
Responses to additional questions from:
Senator Graham........................................... 33
Senator Lautenberg....................................... 34
Breaux, Hon. John B., U.S. Senator from the State of Louisiana... 2
Prepared statement........................................... 4
Cochran, Hon. Thad, U.S. Senator from the State of Mississippi... 5
Letter, Delta Wildlife Foundation............................ 10
Prepared statement........................................... 6
Hood, Laura C., director, Science Department, Defenders of
Wildlife....................................................... 22
Prepared statement........................................... 38
Inkley, Douglas B., senior scientist and special assistant to the
president, National Wildlife Federation, Vienna, VA............ 19
Prepared statement........................................... 34
Manning, Brent, Director, Illinois Department of Natural
Resources, International Association of Fish and Wildlife
Agencies....................................................... 24
Prepared statement........................................... 40
Metaksa, Tanya K., executive director, National Rifle Association
Institute for Legislative Action, Fairfax, VA.................. 20
Prepared statement........................................... 35
ADDITIONAL MATERIAL
Articles:
Fowl Play in Washington, David Helvaarg...................... 46
Baiting Game, Ted Williams................................... 50
Letters:
Defenders of Wildlife........................................ 49
Delta Wildlife Foundation.................................... 10
International Association of Fish and Wildlife Agencies...... 47
Maryland Department of Natural Resources..................... 45
National Audubon Society..................................... 48
North American Wildlife Enforcement Officers Association..... 48
Statements:
American Bird Conservancy.................................... 42
Lott, Hon. Trent, U.S. Senator from the State of Mississippi. 32
Report, Sitting Ducks, Public Employees for Environmental
Responsibility (PEER).......................................... 54
Text of H.R. 2863, An Act to amend the Migratory Bird Treaty Act
to clairfy restrictions under that Act on baiting, to
facilitate acquisition of migratory bird habitat............... 30
MIGRATORY BIRD TREATY REFORM ACT OF 1998
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TUESDAY, SEPTEMBER 29, 1998
U.S. Senate,
Committee on Environment and Public Works,
Washington, DC.
The committee met, pursuant to notice, at 9:58 a.m. in room
406 of the Dirksen Senate Office Building, Washington, DC, Hon.
John Chafee (chairman of the committee) presiding.
Present: Senators Chafee and Graham.
OPENING STATEMENT OF HON. JOHN H. CHAFEE,
U.S. SENATOR FROM THE STATE OF RHODE ISLAND
Senator Chafee. Good morning, everyone. This is a meeting
of the full committee. It's going to be a little hectic today
because there's a series of votes on the Senate floor coming up
at different times, so I want to move right along.
We'll hear testimony in H.R. 2863, the Migratory Bird
Treaty Reform Act of 1998. This bill was approved by the House
on September 14 by a vote of 322 to 90, and was referred to
this committee. The bill has generated a great deal of debate
and strong views from both sides, and this hearing is intended
to educate the committee on these issues.
Let me say at the outset, while this bill is currently on
the agenda for the business meeting scheduled for this coming
Friday, that's only tentative pending the outcome of this
hearing. To this end, I would like to hear from the witnesses
any recommendations they may have for changing the bill in the
event that we choose to proceed with it.
A bit of background on this bill, which amends the
Migratory Bird Treaty Act: That law was enacted in 1918--I
believe it was probably one of the very first environmental
laws. It was enacted to implement the convention for the
protection of migratory birds between the United States and
Great Britain, which then had the treaty-making power for
Canada. The law prohibits taking hunting and killing of
migratory birds unless prohibited by the U.S. Fish and Wildlife
Service, which has broad rulemaking authority.
Under this authority the Service has generally prohibited
hunting with the aid of bait or over baited areas. The
violation of this prohibition is a misdemeanor, and since the
Act was passed 80 years ago, virtually all courts have
interpreted misdemeanor crimes under the Act as strict
liability crimes.
In 1978 the Fifth Circuit held, however, that before a
hunter can be prosecuted for a baiting offense, it must be
proven beyond a reasonable doubt that the hunter knew, or
should have known, that the area was baited. H.R. 2863 would
adopt the standard from the Fifth Circuit as the law of the
land. It would also make baiting a separate offense--in other
words, instead of the strict liability, we would go and adopt
the Fifth Circuit holding that before a hunter can be
prosecuted for a baiting offense, it must be proven beyond a
reasonable doubt that the hunter knew, or should have known,
that the area was baited.
As I mentioned, this bill has generated a good deal of
fervor and a motion on either side, and I look forward to this
morning's testimony from our distinguished panelists.
Now, it's my understanding that Senator Cochran and Senator
Breaux, both of whom serve on the Migratory Bird Conservation
Commission and who have a great interest in this issue, will be
testifying, and it's my intention to place them on the first
panel. I don't see either of them here, however. So I will wait
a few minutes for the arrival of the two Senators.
Senator Breaux introduced his own bill, co-sponsored by
Senator Cochran, to address these issues, and that bill is
pending before this committee.
Senator Cochran, why don't you take a seat right there and
we'll be able to get started. I know Senator Breaux is on his
way.
Senator Cochran. Good morning.
Senator Chafee. Good morning, glad to see you.
Senator if you could proceed, and then in the interim
period--here's Senator Breaux now--so we'll start Senator
Cochran, if you would please?
I want to welcome you both here.
Senator Cochran. Mr. Chairman, Senator Breaux is the
principal author of this legislation. I'm here to indicate my
support for this initiative. I am a co-sponsor of the
legislation, and I'm very proud to be. I think it has a lot of
merit, but if you will permit me, I will defer to my colleague
from Louisiana.
Senator Chafee. All right, fine.
STATEMENT OF HON. JOHN B. BREAUX, U.S. SENATOR FROM THE STATE
OF LOUISIANA
Senator Breaux. Thank you, Mr. Chairman, and I thank my
colleague from Mississippi, who has taken the brunt of the
hurricane that we sent over there from New Orleans. We wish him
the very best. It was really a major, major weekend for both of
us.
I will be very brief, Mr. Chairman. This is legislation
that I have been interested in for over 20 years. It has passed
the House this year by a vote of 322 to 90, so the bill is over
here in the Senate waiting for the Senate to take it up. I
think we have an opportunity to do something that is consistent
with good waterfowl management, and, at the same time, is good
for the notion in this country that people are innocent until
proven guilty.
First of all, this legislation makes the baiting of a
hunting area illegal. That is not illegal today. I can go out
and bait my fields and bait them everyday, and throw corn, and
throw other things to entice migratory waterfowl on that
property, and that is not illegal. What is illegal, and the
only thing that is illegal, is hunting over a baited field. So,
currently, the law does not cover the illegal baiting, which I
think should clearly be covered. Our legislation covers the
baiting of a field to illegally entice migratory waterfowl to
that area. So we make it illegal and it should be illegal.
What we have done, however, is also to address a problem
that I think is very severe. It is fundamentally unfair to be
able to hold someone criminally liable--not civilly liable, but
criminally liable--for something that they did not intend to do
or something that they had no reasonable knowledge of.
Currently, the Fish and Wildlife Service under its
regulations makes someone criminally liable whether they knew,
or should have known, that a field was a baited field. I think
is just fundamentally wrong. Our legislation says that it is a
crime if a person hunts over a baited field that they knew was
baited or by the reasonable exercise of their actions should
have known it was baited, then they would be guilty. So we
changed the standard from one of strict absolute criminal
liability to one that simply says that a person is guilty if
they knew, or should have known, by the exercise of due and
diligent activity that it was baited. Then they would be held
criminally liable.
Now, the Fish and Wildlife Service will probably come--and
I haven't seen their testimony, Mr. Chairman--but they'll come
up here and say, ``Well, that will make it too difficult to
prove cases.'' Well, I'm sorry, but if they're going to go out
and subject someone to potential criminal penalties and a
criminal conviction with a maximum penalty of up to $5,000 per
offense and 6 months in prison, they should have an obligation
of proving at least to the person who knew or should have known
that the field in fact was baited for the purposes of hunting
migratory waterfowl. I think that it is clear that our
legislation, I think, is fundamentally fair and sound.
Let me give you just two quick examples:
The current baiting legislation require that the bait has
to be removed for 10 days before someone could legally hunt
over that field. Therefore, if bait is put down on the first
day, and a guest hunter does not come to that property for 9
days later and the bait is removed after the second day, that
person could be held criminally responsible subject to a
criminal offense and a prison term for hunting over a baited
field in which there was no bait for the previous 8 days. Now I
think that is fundamentally wrong.
The second example is a situation in which a person has
never been to someone's property to hunt, has never been to
that county in their lifetime. They go to a hunting lodge or a
hunting camp late at night. They get up early in the morning
when it is still dark. The owner puts them in a duck blind of
they've never been in their life--it is still dark. The sunrise
comes and they start hunting; and then, lo and behold, the Fish
and Wildlife Service comes up and nabs the person for hunting
over a baited field.
Now, that person did not know it, that person had nothing
to do with putting the bait down there and no exercise of
reasonable actions on his part would have led him to believe
that it was baited. I just think that when you're talking about
criminal responsibility, the least we can do is to say that the
person to be convicted either knew or should have known that it
was a baited field.
Now, Senator Cochran and I both serve on the Migratory Bird
Conservation Commission. I have been an active participant in
hunting organizations like Ducks Unlimited for years to try and
increase the assistance in land and everything that is
important and proper for migratory bird conservation and
improvement of the quality of the population of birds. But I
think that in this one case, unless Congress follows through
and does what the House has done and presents a more leveled
playing field, that we're missing a real opportunity.
Thank you for your consideration.
[The prepared statement of Senator Breaux follows:]
Prepared Statement of Hon. John Breaux, U.S. Senator from the State of
Louisiana
Thank you for inviting me to speak in support of H.R.2863, the
Migratory Bird Treaty Reform Act of 1998.
More than 80 years ago, Congress enacted the Migratory Bird Treaty
Act, which implemented the 1916 Convention for the Protection of
Migratory Birds between Great Britain, for Canada, and the United
States. Since then, the United States has signed similar agreements
with Mexico and the former Soviet Union. The Convention and the Act are
designed to protect and manage migratory birds and regulate the taking
of that renewable resource. They have had a positive impact, and we
have maintained viable migratory bird populations despite the loss of
natural habitat because of human activities. As a member of the
Migratory Bird Conservation Commission, I recognize the importance of
protecting and conserving migratory bird populations and habitat.
Since passage of the Migratory Bird Treaty Act and development of
the regulatory program, several issues have been raised and resolved.
One has not--the hunting of migratory birds ``[b]y the aid of baiting,
or on or over any baited area.''
A doctrine has developed in the Federal courts by which the intent
or knowledge of a person hunting migratory birds on a baited field is
not an issue. If bait is present, and the hunter is there, he is guilty
under a doctrine of strict liability. It is not relevant that the
hunter did not know or could not have known bait was present. I
question the basic fairness of this rule.
I believe it is fundamentally unfair for the Federal Government to
hold American citizens criminally liable for something they could not
have reasonably known. Hunting over a baited field does not impose a
civil penalty. The baiting regulation holds a person criminally
liable--with all the negative implications of a criminal charge--in
situations where the person could not have reasonably known that what
he was doing or attempting to do was criminal.
The U.S. Fish and Wildlife Service believes this bill would make
baiting offenses more difficult to prosecute. The Service believes it's
more difficult to make a case if they have to prove that a hunter had
actual knowledge of the bait, or that a hunter, with an exercise of
reasonable diligence, could have become aware of the bait. My response
is that we are talking about American citizens whose lives and families
are being subjected to criminal penalties and prosecution. The maximum
penalty is a $5,000 fine and 6 months in prison. Making a case may
become a little more difficult for the Service. However, I would
suggest that, under this nation's bedrock principle that a person is
innocent until the government proves him guilty, H.R. 2863 restores the
appropriate balance.
Keep in mind that, under the Service's current baiting regulations,
bait has to been removed from the area 10 days before you began
hunting. In other words, if an area is baited on October 1 and the bait
removed on October 3 and you happen to hunt there October 12 (9 days
later), with absolutely no knowledge of what has happened October 1
through 3, you are strictly and criminally liable for hunting over a
baited field. You may not have been in the country 9 days earlier, but
you are guilty.
I represent the State of Louisiana, which is at the bottom of the
funnel of most of the ducks coming through the Central and Mississippi
Flyways. This is an important issue in my State. However, I would
suggest that it is an important issue for all of us as Americans to
make sure that the criminal laws of this nation are fair.
I do not want anyone to misunderstand me. I strongly support the
Migratory Bird Treaty Act. We must protect our migratory bird resources
from overexploitation. I would not weaken the Act's protections.
believe we should be as tough as we possibly can on people who
knowingly violate our game laws. People who intentionally bait a field
to attract migratory waterfowl should have the book thrown at them.
This legislation would not change that.
Under this legislation, no person may take migratory birds by the
aid of bait, or on or over bait, where that person knew or should have
known the bait was present. The Migratory Bird Treaty Reform Act of
1998 simply removes the strict liability interpretation presently
followed by most Federal courts. It establishes a standard that permits
a determination of the actual guilt of the defendant. If the facts show
the hunter knew or should have known of the bait, liability, which
includes fines and possible incarceration, would be imposed. However,
if the facts show the hunter could not have reasonably known bait was
present, the court would not impose liability or assess penalties. This
is a question of fact determined by the court based on the evidence
presented.
Under this bill, the responsibility is still squarely on the
shoulders of the hunter. The hunter must act reasonably. He must ask
the host if the field is baited. He must go out on the field and
conduct a serious search of the grounds looking for signs of bait.
The Migratory Bird Treaty Reform Act also makes the act of baiting
unlawful. Right now, baiting is not illegal. Hunting over a baited
field is illegal. This bill ensures that a person placing bait, or
directing the placement of bait, to lure migratory birds to an area
will be cited for baiting even though he or she is not hunting.
The Migratory Bird Treaty Reform Act will provide guidance to
landowners, wildlife managers, hunters, law enforcement officials, and
the courts on the restrictions on the taking of migratory birds. It
accomplishes that without weakening current restrictions on the method
and manner of taking migratory birds. It does not weaken protection of
the resource.
Again, I thank Chairman Chafee, Senator Baucus and the members of
this committee for the opportunity to be heard, and I urge everyone to
join me in supporting the Migratory Bird Treaty Reform Act of 1998.
Senator Chafee. Well, thank you very much, Senator. If you
could stay for a few minutes, I thought we would hear Senator
Cochran, and then I had a couple of questions for both of you.
So, Senator Cochran, if you would like to proceed.
STATEMENT OF HON. THAD COCHRAN, U.S. SENATOR FROM THE STATE OF
MISSISSIPPI
Senator Cochran. Mr. Chairman, thank you very much for this
opportunity to appear before your committee.
This legislation would put in the statute the decision that
was reached in 1978 by the U.S. Court of Appeals sitting in New
Orleans in a case where they ruled that the strict liability
application of the Fish and Wildlife's regulation relating to
hunting over so-called baited fields could not stand the test
of Constitutional protections afforded to us under the U.S.
Constitution. And so since 1978 in the Fifth Circuit area--
Mississippi, Louisiana and Texas--there has been a legal
prohibition against enforcing regulation under this strict
liability notion, which a reading of the statute would conclude
is the purpose of this Fish and Wildlife regulation.
But, beyond that, it's felt from groups around the country
that other States ought to enjoy the same kind of legal
interpretation. In California we've received indications that
it would be welcomed to have this statute approved because it
would make uniform throughout the entire country then the same
interpretation of the Federal Government's obligations and the
restrictions of their power.
There are two other aspects of this that I think should
persuade the committee that this is a good bill. It's different
from the House bill in these additional respects, and we would
encourage you to look at our bill and report it favorably to
the Senate:
It tries to make a determination as to what is normal or
usual agricultural practice and protect the right of landowners
to engage in wildlife habitat management activities, as well as
normal agricultural practices without running the risk of being
convicted under the terms of these regulations that the
Wildlife Service has proposed and some new ones that are being
considered.
One specific example--in our State there are 83,000 dove
hunters, and in many sections of the State they plant winter
wheat, and they have early sowing on top of the ground of
wheat, some by aerial application. There are many who are
worried that if they continue to engage in this aerial
application of wheat, which is a normal agricultural practice,
and doves are attracted to those fields, and hunters then
engage in hunting in those areas, they will all be subject to
fines and penalties under these regulations. And so the
legislation would permit the State to have a role in certifying
what is or is not a normal agricultural practice in the area
that is subject to these regulations.
One other aspect we have in the law now is incentives for
landowners to manage their lands, their privately-owned lands,
for the purpose of attracting wildlife, for nurturing wildlife.
We have the Wildlife Habitat Incentives Program, which I was
pleased to author when we wrote the 1996 Farm Bill, and that
has served to provide inducements to landowners to undertake
the management of their lands to attract waterfowl, to attract
migratory birds, to attract other wildlife and to sustain it.
There are many who concerned that if they engage in
practices that do attract and make it a habitat that's
attractive to wildlife, they're going to be accused of
violating these regulations.
So there is work to be done here. I worry that we have seen
the bill criticized unfairly by some who are just against
hunting of any kind--nature, description, whatsoever. That
force in our society is there, and we respect their views and
their rights to speak out and say what they want on these
issues, but the reality is we have a confusing set of laws
right now and regulations, and some innocent people have been
harmed by them and many others are worried that they will be,
and that they will run high risk of violating the regulations
unless this legislation is enacted.
So we hope that the committee will look carefully at it,
and I would ask, Mr. Chairman, that my complete statement that
points out these differences in situations in other States like
South Carolina, California and Texas, people who have written
in asking us to work hard for this legislation, be printed in
the record.
[The prepared statement of Senator Cochran follows:]
Prepared Statement of Hon. Thad Cochran, U.S. Senator from the State of
Mississippi
Mr. Chairman, thank you for the opportunity to appear before the
committee today. I am particularly pleased to join my distinguished
colleague from Louisiana.
In November of last year, I joined him in introducing legislation
to address problems that hunters in our states have experienced with
the current regulations issued by the U.S. Fish and Wildlife Service
concerning baiting.
The House of Representatives recently passed legislation dealing
with the issue of strict liability associated with baiting. However,
this is only one of the three issues addressed in the legislation
proposed by Senator Breaux and me.
Currently, a hunter that is pursuing migratory birds who has no
knowledge of a baited situation and who cannot reasonably determine the
presence of bait (or that hunted birds are influenced by bait) can be
cited by a law enforcement official. In other words, in an attempt to
address intentional violators, the regulations compromise the truly
innocent hunter.
The U.S. Court of Appeals for the Fifth Circuit, which includes the
states of Louisiana, Mississippi, and Texas, has rejected a strict
liability interpretation of the regulation, requiring at a minimum that
the presence of bait could reasonably have been ascertained by the
conscientious hunter. According to the court, strict liability renders
criminal conviction ``an unavoidable consequence of duck hunting.''
[United States v. Delahoussaye, 573 F.2d 910, 913 (5th Cir. 1978)].
I agree with the House that since the Migratory Bird Treaty is an
international agreement, the regulation should be available to all
states, not just my state, Senator Breaux's state, and Texas. I support
the House language, which is also a component of our bill.
The House and Senate version's were basically identical in the
beginning, but due to time constraints, only strict liability was
addressed in the House version. Our bill also addresses two other very
important issues.
Active management of native vegetation occurs throughout the United
States, but is most common in California's Central Valley, marshes of
the Great Lakes, and Mississippi River habitats in Illinois and the
surrounding states. In the rice prairies of Texas, the Lower
Mississippi River Valley, and the Low country of South Carolina, moist-
soil management is the single, most important practice used to improve
natural habitat for waterfowl and other migratory birds
According to the International Association of Fish and Wildlife
Agencies, practices such as water-level manipulation, water circulation
techniques, impounding water, ditching, salinity control, mowing,
shredding, discing, roller chopping, grazing, burning, trampling,
flattening, herbicide treatment, and wetland-associated plant
propagation techniques do not create the kind of lure or attraction to
waterfowl typically associated with the dumping of grain.
However, the manipulation of native vegetation by waterfowl
biologists, landowners, and hunters has placed waterfowl hunters in
jeopardy of violating current regulations. According to Bill Gaines,
Director of Government of Affairs of the California Waterfowl
Association, ``Confusion over the meaning and enforcement of these
regulations is compromising the willingness of many landowners to
employ preferred waterfowl habitat management practices on their
lands.''
Eric Frasier, Executive Director of the Wetland Habitat Alliance of
Texas. states, ``These native and agricultural plant communities are
vital in meeting the nutritional needs of waterfowl and other wetland-
dependent birds.'' He also states that such an interpretation
discourages wetland managers, landowners, and hunters from conserving,
restoring, and/or enhancing natural wetlands. The legislation we
introduced in the Senate would preserve landowners' ability to manage
wildlife habitat without the threat of prosecution.
The third area our bill addresses is that of agricultural
practices. This provision primarily affects migratory game birds other
than waterfowl--such as doves.
The major problem with enforcement of dove baiting regulations has
been the lack of a uniform understanding among landowners, farmers, and
hunters as to what constitutes ``a bona fide agricultural operation or
procedure,'' ``agricultural planting,'' or ``soil stabilization
practice.'' Landowners and hunters need clarification in terms of what
practices meet these definitions, which may vary substantially in
various parts of the country. Our Bill simply allow state fish and
wildlife agencies to determine what is ``normal,'' or ``bona fide''
with respect to these practices.
We have about 83,000 dove hunters in my State of Mississippi.
According to the March 25, 1998, Federal Register, ``The (U.S. Fish and
Wildlife) Service is proposing a prohibition that would apply to the
hunting of all migratory game birds (including doves) over any area
that has been planted by means of top sowing (including aerial
application) where seeds remain on the surface of the ground as a
result. The Service is proposing that this prohibition apply regardless
of the purpose of the seeding, and proposes to explicitly exclude top
sowing from the proposed definition of ``normal agricultural and soil
stabilization practice.'' In a letter I received yesterday from John
Frasier, Executive Director of the Wetland Habitat Alliance of Texas,
this one practice is vital to supporting our waterfowl populations.
Let me conclude Mr. Chairman, by saying that there is a tremendous
amount of misinformation about the bill we have proposed and is pending
in this committee. A leaflet circulated by the Humane Society of the
United States opposing this legislation wrongly states that it will
increase the annual waterfowl harvest by hunters. There are some who
don't want any hunting and will say anything to further their cause. I
will not give credence to this statement other than to reemphasize to
you it is wrong.
I very much appreciate the opportunity to appear before the
committee. I support the bill passed by the House. However, our bill,
S. 1533, the Migratory Bird Treaty Reform Act, addresses all three
issues that hunters and landowners face. I hope you will act on it
favorably in the remaining days of this Congress.
Senator Chafee. Thank you both for your testimony. I've got
several questions here. First, I do want to say about that 1996
Farm Bill that I think it was one of the great environmental
bills that was passed around this place. I don't think it ever
got the credit it deserved. I remember Senator Dole was active
in its passage. I never thought those folks who were involved
with that legislation got the credit for the environmental
aspects of it that were there. In setting land for habitat in
that Farm Bill there were more acres set aside for habitat than
we've set aside in our wildlife refuges, for example.
Let me ask you some questions that are going to come up.
Senator Breaux pointed out that there will be views from the
other side in the latter panels. One of the points raised will
be, ``Well, we're starting out on a slippery slope here. All
right, so you're just dealing with baiting but in the Migratory
Bird Act there's a series of other strict liability provisions,
and if you get back from the strict liability on the baiting,
what follows next? Are you going to be in here for something
else in connection with other provisions of the Migratory Bird
Act?''
Senator Breaux. Mr. Chairman, all the provisions should
stand on their own. If they can be defended as strict liability
on their own, they should stand and stay. This is very narrow.
It only addresses baiting and that's where the problem is. I
just think it is fundamentally wrong to say that you can
convict someone of a criminal offense who had no knowledge of
what was happening. The only thing we're addressing is baiting.
We expand the criminal liability of baiting because we make it,
for the first time, a crime to bait a field, which is not a
crime today. A landowner can go out there and do everything
that I would consider illegal and throw bait all over his field
to attract migratory waterfowl--that's not a crime. But you
take an innocent hunter who has never been to that property,
who has no way of knowing or should have known that it was
baited, and he's going to be convicted. I mean, that's wrong.
Let's make the person who owns the land more responsible, let's
make the person who actually does the baiting--throw the book
at him, but, for heaven's sakes, let's say to the innocent
hunter who has never been to the property before and has no way
of knowing it was baited--make them prove that he knew, or at
least should have known, by an exercise of reasonable
precaution that it was a baited field.
Senator Chafee. Now, is this really a major problem?
Senator Breaux. It is for the person being convicted.
Senator Chafee. Are you aware of any criminal prosecutions
that have taken place under these strict liability provisions,
and, thus, unfairness has occurred?
Senator Breaux. It happens every month. The last couple of
months or so the sheriff of Jefferson Parish in Louisiana was
convicted of hunting over a baited field in my colleague's
State of Mississippi--a place he had never been to in his
lifetime. It happens all the time, Mr. Chairman. I know good
friends that have had this happen to them, who have never had
any knowledge that a field was baited. If it only happens one
time, for the one time that it happens to a person who gets a
criminal conviction on his record, it's too much.
Senator Chafee. What about the experience in the Fifth
Circuit, as far as the effect on wildlife, on waterfowl, on
migratory birds, for example? Has it resulted in lodge takings?
What has been the experience? I mean, there in the Fifth
Circuit you've got what you're seeking under this legislation.
What has been the result as far as the----
Senator Breaux. Thad will have to comment on that because
I'm not aware of the fact that people in the Fifth Circuit--I
mean, they're still in charge, they're still prosecuted and
they still have to go through the expense whether they're in
the Fifth Circuit or not.
Senator Cochran. Everybody doesn't have the money, the
resources and the inclination to take all these cases to the
Fifth Circuit or to a higher court. The fact of the matter is
that the practical side is a fine--it's a small fine
sometimes--and people pay it, forget about it, and hope that
it's not in the newspaper. It's an embarrassing situation. A
lot of people who are prominent, a lot of people who are
hardworking folks, don't have time to do anything but do their
work and go to their job. The don't have the time to take on
the Federal Government and litigate all these things.
Senator Chafee. In other words, even though the Fifth
Circuit has made its determination--I think it was in 1978?
Senator Cochran. That's correct.
Senator Chafee. And, presumably, that's the law of the
Fifth Circuit. Nonetheless, people are still prosecuted under
the existing regulations of the Fish and Wildlife Service?
Senator Cochran. That's my understanding.
Senator Breaux. Let me add to that, Mr. Chairman, that in
the report from the House, which had testimony from people
based on exactly that question, it said, ``The Fifth Circuit
includes the States of Louisiana, Mississippi and Texas where
migratory birds are hunted in great numbers. The record
indicates that this legal standard has in no manner lessened
the conviction of persons who by the evidence presented have
violated the baiting provisions.''
For example, based on information supplied by the U.S.
Fish and Wildlife Service and the most recent hunting season,
1996 and 1997, in Louisiana, of the 52 people cited by the
Service for hunting over a baited field, 43 were still found
guilty. And in Mississippi in 1995, the most recent year, they
had numbers--22 baiting citations and all 22 cited persons were
found guilty.
It is still a very serious problem, and it's a serious
problem not only in the Fifth Circuit--it's a serious problem
all over the country.
Senator Chafee. You mentioned the differences between the
House Bill. In other words, my question is the Breaux bill in
the Senate differs in what manner from, let's say, the bill
that was passed in the House? You mentioned there were
differences, and I'm not sure I understood those.
Senator Cochran. Let me tell you what the House did. I have
a letter here from the Delta Wildlife Foundation in
Mississippi, which I received in June, and it says, ``The House
of Representatives has stripped their bill of the most
important provisions.'' These are pertaining to the top sowing
of wheat for dove hunting, which I mentioned, and moist soil
management for duck hunting.
Now, we talked about wildlife management practices. The
House did not choose to include those provisions that are in
the Breaux-Cochran Bill in the bill that was passed in the
House, so that's why----
Senator Chafee. Those provisions were the State
certifying----
Senator Cochran. Right, the State would certify what is the
normal farming practice and try to protect people who engage in
those practices and keep them from being convicted of violating
the law when what they're doing is a normal top sowing of
wheat--I used that as a specific example and there may be
others. The other thing is managing your property, your private
land, for the purpose of increasing its attractiveness as
wildlife habitat. We're encouraging people to do that. The
Federal Government is providing financial incentives to
landowners to achieve that result, and what they're now worried
about is that under a strict reading of some of these proposed
legislation and existing rules of the Fish and Wildlife
Service, those landowners can be charged and fined for enticing
habitat if you also engage in hunting on those lands.
So it really needs the attention of Congress to sort this
thing out. The Fish and Wildlife Service is just being simply
too aggressive when hunting is involved in areas where the
practices being undertaken are lawful, even encouraged and
rewarded by the Federal Government, but if you hunt in those
areas, then you're liable of being convicted of a crime.
[The referenced letter follows:]
Delta Wildlife Foundation,
Stonesville, MS, June 30, 1998.
The Honorable Thad Cochran,
U.S. Senate,
Washington, DC 20510.
Dear Thad: We are very excited about you co-sponsoring the
Migratory Bird Treaty Reform Act (S. 1533). The bill, as you have
sponsored it, is very beneficial and will go far in solving the
problems of clarifying the baiting regulations, which at this time are
very vague.
The reason we are writing is because the House of Representatives
has stripped their bill of the most important provisions (those
pertaining to the top-sowing of wheat for dove hunting and moist soil
management for duck hunting); their bill only addresses ``strict
liability,'' which is not a problem in the states of Louisiana,
Mississippi, and Texas.
The major problem with enforcement of dove baiting regulations has
been the lack of a uniform understanding among farmers and hunters as
to what constitutes ``a bona fide agricultural operation or
procedure''. This problem has existed since 1972 when the baiting
regulations found in 50 CFR 20.21(i)(1)(2) were first promulgated.
Under this provision, no person shall take migratory game birds by
baiting (placing feed such as corn, wheat, salt, or other feed to
constitute a lure or enticement) This section, however, does not
prohibit taking migratory game birds over grain crops scattered solely
as a result of normal agricultural planting or harvesting or as a
result of ``manipulation of a crop or other feed on the land where
grown'' for wildlife management purposes.
In Mississippi, the enforcement of the above provisions has been
interpreted since 1972 as permitting the practice of top-sowing wheat
as long as the procedure followed normal agricultural practices.
Consequently, farmers and dove hunters have ``preparedly dove fields
over the years by topsowing wheat following procedures which conform to
normal agricultural practices.
The U.S. Fish and Wildlife Service's (USFWS) Law Enforcement
Division has changed their interpretation of this regulation and has
now taken the position that the ``preparation of a dove field'' by top-
sowing wheat solely for the purpose of hunting doves is prohibited.
This Foundation has several problems with changing the method of
enforcement, to include, the historical practice of allowing hunters to
prepare dove fields, the lack of a definition of ``bona fide
agricultural operations or procedures,'' and the fact that the U.S.
Department of Agriculture recognizes the top-sowing of wheat as a bona
fide agricultural practice.
If changes are to be made in the enforcement of dove baiting
regulations, then the dove baiting regulations need to be changed to be
more specific. Changes in the regulations do not need to be made unless
a resource need is identified. None has been identified, and if it
were, bag limits and day length (full day or one-half day) should be
tools to regulate harvest.
Regarding waterfowl, a concern relates to the practice of opening
water for blind and decoy placement where native vegetation (moist soil
plants) has to be ``knocked down'' in the process. The USFWS says that
this makes seeds from native vegetation more available, therefore
creating a lure. In the South, native vegetation would have already
dropped its seed well before the duck season begins; therefore, the
seed is already available for use by ducks.
When someone opens a hole of water in native vegetation just prior
to the season, he or she may be ``knocking down'' the vegetation and
actually covering the seed with plant debris; therefore, the seed is
not more available. Ducks can find places to land regardless of the
open water created for decoy and blind placement. Since blinds and
decoys are an integral part of waterfowl hunting, we do not consider
this to be an unusual lure, especially when considered in the context
of waterfowl hunting methodology. Also, current regulations prohibit
active management of native vegetation for waterfowl and other
migratory birds.
The real critical success factors for improving waterfowl
populations are habitat abundance and quality. The support base for
enhancing waterfowl habitat is the farmer. Partners For Wildlife, the
Wetland Reserve Program, and the Wildlife Habitat Incentives Program
are providing additional waterfowl habitat on farmland in the Delta. If
the USFWS is truly interested in maximizing waterfowl habitat, as we
are, then they should avoid sending the kinds of signals that will
diminish farmer/hunter support for enhancing the future of waterfowl
according to the North American Waterfowl Management Plan.
Your bill will solve both of the above problems. We are extremely
pleased that you are a cosponsor of the Migratory Bird Treaty Reform
Act. We hope that you will maintain the provisions pertaining to the
top-sawing of wheat for dove hunting and moist soil management for duck
hunting. We look forward to further discussing these issues with you if
you so desire.
Sincerely,
Clarke Reed,
President.
Senator Breaux. Mr. Chairman, the House just took Section 3
of our bill, which changes the standard or the burden of proof
from what it is today of strict absolute liability, and they
took our standard, which says, ``For a person to be guilty, he
knew, or should have known, that it was a baited field.''
That's, basically, what they passed.
Our bill tries to spell out normal agricultural practices,
farming practices, which are exempt. If a person is farming
corn on his crop and using normal farming practices, that's not
baiting a field, and we've tried to spell out what is normal
farming agricultural practices.
Senator Chafee. One final question, and then Senator
Graham, I'm sure, has a couple of questions.
One thought that we had was possibility sunsetting--
enacting the change as you suggested with a sunset provision to
see how it works out. In other words, are there going to be--is
the bag going to be greatly increased, the number of waterfowl
or whatever they might be--pheasants or whatever they might be?
Are they going to be--is the taking going to be greatly
increased? I don't know.
Senator Cochran. We don't have any statistics, and there's
probably no way to know that. People are going to guess and
speculate. We've had difficulty in the wildlife--in the
Migratory Bird Conservation Commission in this North American
Waterfowl Plan trying to assess the impact of all these
conservation practices and the protection of habitat. As you
know, all the duck stamp money that hunters contribute to the
government through the purchase of those duck stamps are used
by the Commission to acquire by lease or purchase habitat to
nurture the continued development of migratory wildlife--and
ducks, in particular.
But we hear that last year, for example, there were some 90
million ducks in the Mississippi fly-way huge numbers that we
keep hearing are being increased, and we hope we continue to
see that develop and that we can balance the interest of those
who are engaged in hunting and who do that--it's a lawful
activity--with the need to protect those same migratory
waterfowl.
We think this would be in the same spirit of the law. We're
encouraging the development of habitat. We're trying not to
unfairly punish those who are engaged in normal agricultural
practices.
What we don't want the Fish and Wildlife Service to do is
insist that every time somebody engages in practices that
nurture the development of wildlife habitat, that they have to
treat that land as a wildlife refuge. In other words, you're
prohibiting--and that's what I think the applications of these
regulations would do, as a practical matter--you would prohibit
by placing the risk of being fined and convicted of violating
the rules and the laws so high that you're going to ensure that
there's no hunting that takes place in areas where you have top
sowing of wheat or in areas where an otherwise normal
agricultural practice attracts doves or ducks. In some parts of
the country where you're preparing duck blinds and that kind of
resource for duck hunting, if you knock down the vegetation,
you're considered distributing the seeds in plants in the area,
and that creates a bigger attraction for the ducks to come in.
And so you're guilty of baiting, or attracting or unlawfully
enticing the waterfowl to come to that spot. Whereas, in order
to have a duck blind there, you've got to get into the area and
prepare it.
So the net effect is to indirectly create a wildlife refuge
on private land, and we think if that's the net result, some
people will applaud that, and I think that's what's driving
these new initiatives. But it puts at risk a lot of innocent
people, a lot of law abiding people who are engaged in hunting.
Senator Breaux. Mr. Chairman, on the sunset question,
sunsetting would be better than what we have now. I think that
just as we have an interest of protecting migratory birds, we
also should have an interest in protecting innocent hunters.
Our legislation does not make the Fish and Wildlife Service
have to prove that a hunter actually knew--only that they
should have known. It puts a responsibility on the hunter. He
can come in and show that, ``Look, I checked. I asked the
landowner, I did a walk-through and I couldn't find any bait.
If it was there, I did not know it, and no reasonable person
would expect me to know it. I checked--I did some things.''
So if the committee feels like it's necessary to sunset it,
that is certainly much better than we have right now, and then
check to see whether it has an adverse impact on migratory
waterfowl.
Senator Chafee. As you know, or perhaps you didn't know, we
reported out from here the reauthorization of the North
American Waterfowl Conservation Act, which, as you recall, has
been a tremendous success. Yes, the increased rains over the
past several years have helped the ducks come back to the
extent that you pointed out, Senator Cochran, but I think that
this Act has been a tremendous plus.
We're having a little trouble getting it up, and so if
there is any way you might be helpful in that, I will let you
know where the roadblocks seem to be and would ask for your
help.
What do you think about the maximum fine that now exist?
Let's say we followed your provision and got rid of the strict
liability. The maximum fine now is $5,000. How do you view
that?
Senator Breaux. I think if someone is intentionally
baiting, you should throw the book at them. I mean, that is
something that is illegal, they know it's illegal and they're
doing it anyway. You should throw the book at them. I mean, I
would raise the fine, and as long as it's ``up to'', and let
the judge have some discretion in assessing it, based on
whether it's a first offense or what have you, or how serious
it was and how much damage was done. But, I mean, the fine, I'm
not advocating that it be lowered. If anything, go ahead and
raise it, as long as you change the standard from one of strict
liability.
Senator Chafee. Senator Graham?
OPENING STATEMENT OF HON. BOB GRAHAM,
U.S. SENATOR FROM THE STATE OF FLORIDA
Senator Graham. Thank you, Mr, Chairman.
I don't have any questions. I would like to file an opening
statement and make a short comment as to how this matter came
to my attention.
Back in 1995 the Florida Sheriff's Youth Ranches, which are
institution that serve troubled and delinquent children, was
having its annual charity shoot in a county in the Big Ben area
of Florida called Dixie County. During the course of the
charity shoot, there was a raid made by the Fish and Wildlife
Service, which resulted in 80 citations. A number of those
citations were given to students at the University of Florida
who were there through their fraternity's public service
outreach not to hunt, but rather to prepare the food and
participate in the other activities, which supported the
charity shoot for the Florida Sheriff's Youth Ranches.
One of those young men lost his Army officer's commission
as a result of getting this citation. These individuals all had
no recourse or defense against enforcement actions because of
the strict liability nature of the current law.
When I was made aware of this, I became concerned at the
unfairness of this and the unintended negative consequences,
especially on these students. So I support the legislation that
Senator Cochran and Senator Breaux bring to us today. I believe
that it would provide for an opportunity for those people who
were knowingly, or should have known, that they were
participating in a baited field hunt to be punished, but not
sweep up a lot of innocent folks who just happen to be standing
around at the time that this event that was beyond their
knowledge or their reasonable expectation that they would have
knowledge are currently being punished.
So, Mr. Chairman, I support this legislation and hope that
we can report it to the Senator for consideration at an early
date.
[The prepared statement of Senator Graham follows:]
Prepared Statement of Hon. Bob Graham, U.S. Senator from the State of
Florida
Mr. Chairman, thank you for the opportunity to address the
committee on such an important issue.
Today we are looking at a piece of legislation that is fairly
straightforward. It addresses the concerns of hunters throughout the
nation that existing enforcement provisions give the Fish and Wildlife
Service the authority and the discretion to give citations to any
person found hunting on or within a mile of a baited field whether or
not there is any evidence to demonstrate that the individual was aware
of the condition of the field. By adopting a ``known or should have
known'' standard for enforcement as opposed to a strict liability
standard for enforcement, this legislation will offer these individuals
an opportunity to defend their actions and demonstrate whether or not
they knew of the condition of the field. In addition, this legislation
adopts a new provision which makes baiting itself a separate offense,
thereby offering an additional protection both for the migratory birds
as well as for hunters.
This issue has strong ties to the State of Florida. In 1995, the
Fish and Wildlife Service in Dixie County, Florida issued over 80
citations to individuals attending a charity shoot for the Florida
Sheriff's Youth Ranches. At the same time, several students
participating in the event were also issued citations, resulting in the
revocation of an Army officer's commission for one student. These
individuals had no recourse or defense against the enforcement actions
by the Fish and Wildlife Service.
With that said, I understand that this is not an action that this
committee should take lightly. Congress passed the Migratory Bird
Treaty Act in 1918 which implemented the Convention for the Protection
of Migratory Birds, a treaty signed by the United States and Great
Britain for the protection of migratory birds. This law made it illegal
to ``hunt, take, capture, kill, attempt to take, capture or kill,
possess, offer for sale'' bird species including ducks, geese, brants,
coots, gallinules, rails, snipes, woodcocks, crows, and mourning and
white-winged doves. In 1935, the Fish and Wildlife Service issued
regulations for baiting which prohibit hunting over baited areas,
except where grain has been scattered through bona fide agricultural
operations.
There is a long history of congressional intent to protect these
migratory bird species. It is our challenge today to develop a policy
that will continue this long-standing commitment while also creating a
rational, reasonable policy that will provide fair and equitable
treatment to those individuals who choose to hunt within the existing
rules.
I look forward to hearing the testimony of today's witnesses which
I hope will describe the nuances of the decision we face today.
Senator Breaux. Senator Graham, if you would yield, the
person in your example who actually baited the field would not
be guilty of anything because baiting the field is not illegal,
but hunting over the baited field is.
Senator Chafee. Thank you both very much for coming. We
appreciate it, and we certainly will try to move along with
this legislation.
Mr. Kevin Adams, Chief, Office of Law Enforcement, U.S.
Fish and Wildlife Service, Department of the Interior.
Mr. Adams, if you would come forward, we'll proceed with
your testimony.
Won't you proceed?
STATEMENT OF KEVIN ADAMS, CHIEF, OFFICE OF LAW ENFORCEMENT,
U.S. FISH AND WILDLIFE SERVICE, DEPARTMENT OF THE INTERIOR
Mr. Adams. Good morning, Mr. Chairman, and members of the
committee.
I am Kevin Adams, Chief of Law Enforcement for the U.S.
Fish and Wildlife Service. I would like to thank you for the
opportunity this morning to discuss the Administration's
position on H.R. 2863, the Migratory Bird Treaty Reform Act of
1998, as passed by the U.S. House of Representatives.
As passed, this bill would eliminate the current strict
liability standard used in enforcing waterfowl baiting
regulations and make it illegal for any person to place or
direct the placement of bait on or adjacent to an area being
hunted.
The Department of the Interior shares your concern for the
need to clarify and simplify migratory game hunting regulations
regarding baiting. On March 25, 1998, the Fish and Wildlife
Service published in the Federal Register for public review and
comment a proposed rule concerning hunting migratory birds by
baiting or using baited areas. This rulemaking process was
initiated after extensive review of the current regulations and
in response to public concerns about interpretation and clarity
of those regulations, especially with respect to current
migratory bird habitat conservation practices--that is moist
soil management techniques. The Administration believes that
H.R. 2863 will disrupt the agency's ongoing decision-making
process and is opposed to this bill.
The Migratory Bird Treaty Act, which implements
international treaties with four of our neighboring countries
for protection and conservation of migratory birds, authorized
the Secretary of the Interior to determine by regulation when,
to what extent, if at all, and by what means it is compatible
with the terms of the Convention to allow hunting. These
Federal baiting regulations were first established in 1935 when
waterfowl populations suffered from drought, degradation of
habitat, and over-harvest by hunting.
The two hunting practices primarily responsible for over-
harvest were the use of bait and live decoys, both of which are
quite effectively luring birds to the gun. Of all the factors
affecting migratory bird populations, these two can be
controlled or curtailed by law enforcement actions.
Enforcement of the baiting regulations includes a strict
liability doctrine. Under strict liability, the government does
not need to prove that the hunter knew he or she was violating
the law. H.R. 2863, as passed by the House, would eliminate
this strict liability standard and replace it with a ``know or
reasonably should have known'' standard. This new standard will
require Service law enforcement officers to prove that a person
knows, or reasonably should have known, that the area where he
or she was hunting migratory birds was baited before it can
establish that a violation occurred.
This bill will also include this language in the Migratory
Bird Treaty Act, rather than in the Code of Federal Regulations
where the prohibitions are listed today.
This concludes my statement, and I would be glad to answer
any questions.
Senator Chafee. Well, thank you, Mr. Adams.
You were here when the two Senators testified just before
you. My question is, is there any documentation of experiences
under the Fifth Circuit where there's over-harvest as a result
of the change in the burden of proof that took place as a
result of the Fifth Circuit, or is that impossible to quantify
because the Fish and Wildlife--people have just gone and paid
their fines, not taking it up into the courts, having appealed?
Mr. Adams. Mr. Chairman, the Fish and Wildlife Service
first started collecting data at a central location in 1984,
and these data reflect the number of citations that were
issued, as well as the number of individuals who paid their
citations through forfeiture of collateral, or through the more
formal process--by appearing before a U.S. Magistrate.
However, we have nothing to place these 1984 and beyond
statistics in context to what may or may not have happened at
the time that Delahoussaye was adjudicated in the Fifth
Circuit. We simply don't have the mechanism to measure the
impact on migratory birds.
Senator Chafee. Somebody suggested that if the harvest is
greatly increased as a result of this change in the baiting,
then the bag limits would be changed or the season limits would
be changed, and they come up for review every year anyway.
What would you say to that?
Mr. Adams. The Fish and Wildlife Service in working with
the States utilizes adaptive harvest management, and, in fact,
if the bird populations fell to a set level, the bag limits and
the season links would be adjusted to reflect that.
Senator Chafee. After listening to Senator Breaux, it seems
to me he makes a pretty good case. If somebody goes out on a
Friday night, goes up to some duck hunting club, arrives in the
evening, goes out early in the morning to a duck blind and
there shoots ducks, and later is told that, in no way he would
know it, that there had been baiting going on--even though the
person was completely innocent and had no desire to evade the
law, that under the strict liability provision, whether he knew
it or didn't know it, tough luck--could be fined. The current
maximum fine is up to $5,000.
Doesn't that strike you as a bit unfair?
Mr. Adams. Well, Mr. Chairman, our common field situation
involves hunters of all different ability, length of time in
the field and expertise. In many instances, hunters have
claimed not to have known that the area was baited. However,
upon further review it becomes apparent that they did not
exercise any responsibility to go out and check an area. This
responsibility, which is reflected in the known or should have
known standard, is something that this new legislation tries to
address.
So I can't say categorically that these situations never
happen because there are always exceptions, but the State
officers, the Federal law enforcement officers, use discretion,
and the prosecutors use discretion in bringing these cases to
court. We feel that such discretion adequately addresses the
need.
Senator Chafee. Well, in the law the proposed provision of
Senator Breaux and Senator Cochran it has ``known, did know or
should have known''--it has that provision in there. Was that
what you were referring to?
Mr. Adams. Yes, sir.
Senator Graham?
Senator Graham. Well, let me understand what the Fish and
Wildlife Service's position is.
Do you support or oppose changing the standard from the
current strict liability to a ``know or should have known''
standard?
Mr. Adams. Mr. Graham, in March of this year the Fish and
Wildlife Service released a proposed rule, and it includes a
number of revisions to the current migratory waterfowl baiting
prohibitions. Many of those were contained in the earlier
version of the House bill; many of those still remain in the
Senate bill.
We feel that it's premature at this time to make a change
in strict liability because we still are receiving comments.
That period closes October 22, and at that point we will do an
analysis of comments and publish a final rule.
Senator Graham. Well, as the agency responsible for
implementing this action, what is your recommendation?
Mr. Adams. Again, sir, the agency does oppose the bill
primarily because we have the rulemaking process ongoing at
this time. It's a vital part of that rulemaking process.
Senator Graham. So is it fair to say your opposition is
based on procedural grounds--i.e., that you are in the midst of
rulemaking, which might result in a change from the strict
liability standard and your opposition is not based on a policy
commitment to the strict liability standard?
Mr. Adams. The Administration's position is that it is
based on a procedural standard. However, as the Service clearly
outlined in the proposed rule, we have considered the requested
change from a strict liability to a ``known or should have
known'' standard, and at the time of the proposed rule we chose
not to make any changes.
Senator Graham. And what was the basis for the decision not
to make any changes?
Mr. Adams. The Service has been enforcing these baiting
regulations for over 60 years, and the strict liability
standard has proven very effective for migratory bird
conservation.
Senator Graham. As someone who used to be involved in State
law enforcement, I can appreciate why strict liability is an
easy to enforce standard. You have to exercise any judgment.
You see somebody in a situation which is prohibited and they're
guilty without any other questions asked.
We've had presented today some cases which seem to raise
fundamental issues of due process and basic fairness in
applying that. I would go back to my example of the students
who came to assist in a charity hunt and then ended up being
swept up in a number of citations that were issued against all
people who were physically on the property, and some very
serious negative consequences flowed to those persons who did
not know, and had no reason to know, that the field had been
baited, if in fact it had been baited.
I don't understand why the Service would feel that such an
arbitrary application of the law would be necessary for it to
carry out its function of determining whether people were
knowingly taking advantage of the illegal baiting on that
field. I mean, the trade-offs between the injustice to the
innocent against the admittedly greater efficiency to the
Service of being able to arrest everybody who is standing
around doesn't seem to me to be an equitable balance of
justice.
Mr. Adams. Senator, I would hope that we simply do not
arrest everyone who is standing around a baited dove field. I
know there has been testimony on previous occasions before the
Congress on this particular incident, and the issues you raise
are certainly ones of great concern to the Fish and Wildlife
Service and the State and Natural Resource Agencies. We work
with our law enforcement officers on a regular basis to ensure
that they in fact do use discretion and don't seek a simple
means to take care of a problem.
I think we've made great progress in the past few years in
this year.
Senator Chafee. Mr. Adams, what is your schedule here? They
just sounded the latter part of the second half of the vote.
There's a series of votes over there, and I'm afraid we're
going to be tied up perhaps for as long as--I think there are
three votes, and so it might take us a half an hour.
Can you wait here? I have a couple of questions for you?
Mr. Adams. Yes, sir, certainly.
Senator Chafee. All right, I would say to the balance of
the witnesses inadvertently--I mean, this situation is beyond
our control. If you could all wait here and I will make every
effort to come back as soon as I can.
So we'll recess this hearing for about--it will be about an
half hour, hopefully short of that.
Thank you.
[Recess.]
Senator Chafee. All right, if Mr. Adams would come back up?
I apologize for the long delay. Three votes took not 30
minutes, but took nearly an hour, and, indeed, they're not
through the third vote yet.
Mr. Adams, one of the problems that we have is it is my
understanding that the Fish and Wildlife Service started this
review of the regulations, and, indeed, in connection with this
particular subject, in 1991 and here we are in 1998 and you
say, just wait; October is coming and something will come out
then.
What do you say to the skeptics that say it takes an awful
long time for you folks to get these things done?
Mr. Adams. I would certainly have to agree that 1991 was
more than just a little while ago. We have taken a number of
steps since then. 1991 was the initial review process that the
Service went through. In 1996 we went out to the International
Association of the Fish and Wildlife Agencies and requested
their assistance in establishing an ad hoc committee to come
back to the Service with recommendations, and, in fact, in 1997
they did come back and we used those recommendations as part of
our process in developing our proposed rule.
So this is going to happen. The Director is committed to
getting a final rule published as soon as practical after the
comment period closes.
Senator Chafee. I asked Senator Breaux about his views on
the increase in the penalty, should we make this change, and it
will be on a sliding scale--in other words, it wouldn't be a
flat $5,000 or $6,000 or whatever. Currently, it's $5,000
maximum, and the court has the ability to go--I don't know what
the minimum is, but what do you think about increasing the
penalty? Should we adopt language similar to that that Senator
Breaux submitted or something similar to it? What would you say
about increasing the penalty?
Mr. Adams. Mr. Chairman, of course, the decision on the
amount of penalty is at the purview of the courts, but Federal
law enforcement officers I think in the Service would see that
as, again, another tool to use. If, in fact, we are going to
make some true distinctions for different levels of
responsibility for baiting violations, that's one effective way
to do it.
Senator Chafee. All right, well, thank you very much for
coming up, Mr. Adams. I'm sorry there was that long delay.
Mr. Adams.
Senator Chafee. Now we'll have the final panel--Mr. Doug
Inkley, Senior Scientist and Special Assistant to the
President, National Wildlife Federation--if you gentlemen would
come up?
Ms. Tanya Metaksa, Executive Director from the National
Rifle Association; Ms. Laura Hood from the Defenders of
Wildlife; and Mr. Brent Manning from Illinois on behalf of the
International Association of Fish and Wildlife Agencies.
Will take people in the order that I read them off, and Mr.
Inkley, if you would proceed?
STATEMENT OF DOUGLAS B. INKLEY, SENIOR SCIENTIST AND SPECIAL
ASSISTANT TO THE PRESIDENT, NATIONAL WILDLIFE FEDERATION,
VIENNA, VA
Mr. Inkley. Thank you, Senator Chafee. On behalf of the
National Wildlife Federation, we appreciate this opportunity to
testify today.
As you know, the National Wildlife Federation is the
nation's largest conservation education organizations. We have
had a long-term interest in the conservation of the migratory
bird resource. We have worked with the U.S. Fish and Wildlife
Service to help phase out toxic shot for waterfowl hunting
because of the indirect mortal caused to birds through
poisoning, and we have also worked to support the North
American Waterfowl Management Plan, the North American Wetlands
Conservation Act, and the 404 Wetlands Regulatory Program.
I mention those simply to demonstrate that we do have a
very strong interest in the conservation of the migratory bird
resource.
The National Wildlife Federation is here today not only
because of our interest in the conserving of the migratory bird
resource, but also in ensuring that there is properly regulated
utilization of that wildlife resource. Hunting is certainly
inappropriate activity for utilization of the migratory bird
resource when properly regulated.
Of course, the issue today is baiting, so I will go
directly to that. The baiting of waterfowl and other migratory
birds has long been illegal under the Migratory Bird Treaty
Act. This is consistent with the spirit of fair chase, as well
as to facilitate the maintenance of the waterfowl populations
and other migratory birds.
However, we are concerned that at the present time a hunter
can actually be arrested and fined when he has no knowledge
that the area has been baited. With this in mind, we understand
and support the fine tuning of the baiting regulations to
ensure fairness to hunters while protecting the migratory bird
resource from being hunted over bait. This seems very
reasonable.
While a change does seem appropriate for protecting
innocent hunters, we do have a larger concern, and that concern
is that this could create a loophole thereby facilitating
unethical hunters--or I would prefer to call them poachers--
attracting waterfowl by baiting and then getting away with it.
This is inappropriate.
Another concern we have is that, as the U.S Fish and
Wildlife Service testified today and a year ago before the
House, they do not know what the impact this change will have
on the migratory bird resource. The bottom line interest of the
National Wildlife Federation with respect to conservation of
migratory birds, is a very great concern to us.
Because of these concerns, the National Wildlife Federation
does oppose H.R. 2863 on the grounds that the changes of the
migratory bird regulations are most appropriately established
at the regulatory level. These are complex regulations that
require professional judgment and assessment of changing
conditions in the field, especially with respect to the
populations of migratory birds.
To take the broad brush approach of a legislative action
would prevent the Fish and Wildlife Service from fine-tuning
regulations.
The second reason the National Wildlife Federation opposes
H.R. 2863 is that the Service is currently engaged in a public
review process to assess the appropriateness of these
regulations. While certainly the Fish and Wildlife Service has
not proposed to change them, the comment period is still open
until October 1--I understand there are a number of comments
that have come in--and we would like to see that process
through to completion.
To stop that process now would render all those public
comments moot and interrupt the public review process mid-
stream.
In summary then, the National Wildlife Federation urges the
Fish and Wildlife Service to take regulatory and policy changes
into consideration and that the Congress not take legislative
action at this time.
Thank you for the opportunity to testify.
Senator Chafee. Thank you very much.
Now, Ms. Metaksa, if you would proceed please?
STATEMENT OF TANYA K. METAKSA, EXECUTIVE DIRECTOR, NATIONAL
RIFLE ASSOCIATION INSTITUTE FOR LEGISLATIVE ACTION, FAIRFAX,
VIRGINIA
Ms. Metaksa. I have given the committee a complete
statement, and I ask that it be put into the record. I am going
to summarize it for you, sir.
Senator Chafee. All right, that's fine. We'll do that.
Ms. Metaksa. Thank you.
On behalf of the National Rifle Association, Mr. Chairman,
I appreciate the opportunity to testify in strong support of
H.R. 2863, the Migratory Bird Treaty Reform Act. It is a core
NRA belief that hunters are called to be faithful stewards of
America's wildlife bounty, and these are not just words but
promises of action.
Part of this stewardship, this action, took place over 80
years ago when hunters clamored for passage of the Migratory
Bird Treaty Act of 1918. At that time wildlife was being
eradicated. Mercenaries for both market and millinery all but
consumed entire populations of white-tailed deer, bison and
waterfowl and other species. In fact, back in the 1870's as
many as 15,000 canvasbacks were taken each day by market
mercenaries right here on the Chesapeake Bay alone--15,000 a
day. So the American hunter that made conservation history in
this era brought to life many progressive laws, notably the
Migratory Bird Treaty Act of 1918, a visionary wildlife
conservation law. In the past 80 years just one aspect stands
out in perpetual controversy--the prohibition of hunting over
bait, or with the aid of bait.
The words themselves do not embody a strict liability
standard of guilt, but most courts have treated violations of
the baiting prohibition as a strict liability criminal offense.
Strict liability, as we have heard, prevents hunters from
presenting convincing evidence that they did not know, or
reasonably could not have known, that bait was present.
While the U.S. Fish and Wildlife Service keeps telling
American hunters, ``seek relief, not through legislative action
but through rulemaking,'' let's just take a look at how
cooperative of a partner the Fish and Wildlife Service has been
in the rulemaking process:
In 1990 the U.S. Fish and Wildlife Service established a
law enforcement advisory commission to look at an array of
issues. One of the commission's recommendations 8 years ago was
to create a task force to review the baiting regulations--
action taken, none. The task force was never created.
A year later the Fish and Wildlife Service published a
notice of intent in the Federal Register to review the baiting
regulations, and the NRA agreed. Heed your own advisory
commission; create the task force you called for the year
before--never happened. Replace the strict liability
interpretations and regulations with clear regulatory language,
language that reflects a standard of reasonable diligence.
That standard is reflected in the bills that you are
talking about today. The response from the Service? There
wasn't any. Two years later in 1993 the Service published a
supplemental notice of review making no mention of the strict
liability issue, and then nothing was heard for another 3 years
when it published another notice on another aspect of the
baiting regulations. The NRA asked to please broaden the scope,
include the strict liability issue, and this past Spring,
prompted by Congressional action on earlier versions of H.R.
2863, the Fish and Wildlife Service proposed a rule to amend
the baiting regulations.
However, I would like to bring to the committee's attention
that the Fish and Wildlife Service excluded from public review
and comment the very crux of this hearing, the baiting issue
from the perspective of the American hunter, adoption of the
``know or reasonably should know'' standard, termed the
Delahoussaye standard, now embodied in this bill.
Critics, we have heard, claim that requiring law
enforcement to prove intent to break the law will make cases
impossible to prosecute. To the contrary, law enforcement would
only need to prove that persons knew, or reasonably should have
known, that there was hunting over bait. Even without intent
the person could still be found guilty if the court determined
that due diligence was not applied in examining the hunting
area for the presence of bait. Hunters have been prosecuted in
cases where they could not reasonably have known that a field
was baited, and in some cases the bait was half a mile from
where they were hunting.
This was the very reason why in 1978 the Fifth Circuit
Court of Appeals ruled in favor of the hunter in the United
States vs. Delahoussaye.
The three States that compromise the Fifth Circuit--
Louisiana, Mississippi and Texas--have experienced no hardship
in prosecuting baiting cases. They boast a conviction rate of
88 percent. Frankly, we believe the Fish and Wildlife Service
has had 20 years to challenge the Delahoussaye standard if it
believed the standard was having a detrimental impact upon law
enforcement--there has been no challenge. Moreover, the
Service's own witness at a Congressional oversight hearing in
May 1996 in response to a query said that the Delahoussaye
standard, ``could be acceptable as the standard for criminal
liability.''
One of the great contributions American hunters make to the
larger American culture is the outdoor ethic. Consider the
meaning of these important words from ``A Sand County
Almanac,'' by Aldo Leopold, a great American hunter: ``The
hunter has no gallery to applaud or disapprove of his conduct.
Whatever his acts they are dictated by his own conscience. It
is difficult to exaggerate the importance of this fact.
Volunteer adherence to an ethical code elevates the self-
respect of the sportsman.''
The House resolution we support here is a tribute to the
hunters and conservationists who created the Migratory Bird
Treaty Act of 1918. We believe you should take it up. There can
be no passion to hunt without the passion to conserve, and that
sentiments springs from what the NRA seeks to protect--the
heart and soul of the American hunter.
Thank you very much, Mr. Chairman.
Senator Chafee. Well, thank you very much.
Now, Ms. Hood, Director of Science for Defenders of
Wildlife.
Ms. Hood?
STATEMENT OF LAURA C. HOOD, DIRECTOR, SCIENCE DEPARTMENT,
DEFENDERS OF WILDLIFE
Ms. Hood. Thank you, Mr. Chairman, for having this
opportunity to testify before the committee today on H.R. 2863,
enforcement against hunting by using bait, as prohibited by the
Migratory Bird Treaty Act.
My name is Laura Hood, and as Director of the Science
Department at Defenders of Wildlife, I will address the
potentially troubling consequences of this bill for migratory
bird populations.
Defenders is a conservation advocacy group with over
250,000 members and supporters. Defenders is not an anti-
hunting organization. It is an organization that is committed
to the science-based protection and management of natural
resources across the country, especially migratory birds.
Today, I will make three key points for your careful
consideration of this important bill:
First, changing the strict liability standard to the
scienter standard will curtail enforcement against baiting,
providing a huge loophole for hunters who use this unethical
practice.
Second, this change poses additional risks for bird
populations, and any change to the Migratory Bird Treaty Act,
especially this one, must include a careful analysis of
potential impacts.
Third, now is not the time to make a potentially far-
reaching change to the Migratory Bird Treaty Act, and I think
that others here have testified to that point.
Other groups that oppose H.R. 2863 include the American
Bird Conservancy, the Izaak Walton League, the National Audubon
Society and the Humane Society of the United States. The Fish
and Wildlife Service opposes this bill, the Secretary of
Maryland's Department of Natural Resources opposes this bill,
and, very significantly, the Federal Wildlife Officers
Association opposes this legislation.
The Federal Wildlife Officers are concerned that this
legislative change would cripple enforcement against hunters
who use bait. For over 60 years courts have interpreted the
MBTA as imposing strict liability because otherwise it would
often be impossible for an enforcement agent to prove that a
hunter was aware of the bait.
Let's take a look at who agrees with this view--Federal
Wildlife Officers Association agrees with this view, Maryland's
DNR Police Superintendent agrees with this view, Federal
Appeals Court Judges agree with this view. U.S. Magistrate
Judge Frederic Smalkin from Maryland stated to Congress in
1984, ``In addition to being a shield for the innocent, such a
requirement could be a windfall for the guilty. In view of the
difficulty of proving scienter beyond a reasonable doubt, it
would appear to me from my practical perspective that the
requirement of proving scienter would effectively curtail
enforcement of the prohibition of baiting.''
I note that, moreover, hunters who use bait are more likely
to exceed bag limits, which will also exacerbate the problem
for migratory bird populations.
Another concern is that if the scienter requirement becomes
law, it opens the door to an additional major blow to the
Migratory Bird Treaty Act. Judges could rule in the future that
the new scienter requirement extends to other violations of the
MBTA, including killing birds in oil spills, power line
strikes, pesticide poisonings, building construction and other
ubiquitous threats to birds.
For example, Mr. Chairman, the terrible oil spill that
occurred along the coast of Rhode Island in 1996 resulted in
hundreds of deaths of migratory birds. The ship manufacturers
were fined $3 million under the MBTA, and the strict liability
standard was essential for enforcement of the Act in that case.
In an unintended nightmare scenario, enforcement against such
preventable bird die-offs will be undermined by this
legislation, and these die-offs will increase.
My point in raising these concerns is to urge caution in
changing the MBTA. I do not believe that changing the Act as
legislatively is a cautious approach. Now is particularly not a
good time to make a legislative change because the Fish and
Wildlife Service is currently engaged in rulemaking on this
issue.
Despite decades of debate on this issue, we still do not
have comprehensive studies on likely impacts of the scienter
requirements on the prevalence of baiting or on migratory bird
populations, and bird populations face numerous threats that
are not likely to lessen in the coming years. Habitat
destruction is widespread, human population pressure is
increasing and poisonings and pollution pose major threats to
birds.
Given all of these factors, we seem ill-prepared to take
another risk with regard to this precious public resource.
Thank you.
Senator Chafee. Thank you very much.
And, now, Mr. Manning.
STATEMENT OF BRENT MANNING, DIRECTOR, ILLINOIS DEPARTMENT OF
NATURAL RESOURCES, INTERNATIONAL ASSOCIATION OF FISH AND
WILDLIFE AGENCIES; ACCOMPANIED BY PAUL LENZINI, LEGAL COUNSEL
Mr. Manning. Good afternoon, Mr. Chairman.
I am Brent Manning, Director of the Illinois Department of
Natural Resources, chairman of the Association of Fish and
Wildlife Agencies Ad Hoc Committee on Baiting, Former Director
of Field Operations for Ducks Unlimited and member of the
International Executive Committees. I would like to thank you
for the invitation to testify today on behalf of the
Association.
The Association, as you are probably aware, has been a
strong and consistent supporter of migratory bird conservation
for more than 95 years. No organization has been more dedicated
to the protection and sustainable use of migratory bird
resource than International and its members States.
As you are aware, State Fish and Wildlife Agencies have
statutory authority to ensure the conservation of fish and
wildlife resources within their borders. In fact, through
cooperative agreement with the Fish and Wildlife Service, most
State conservation officers enforce both State and Federal
conservation wildlife laws and regulations.
We support, and strongly support, changing the standard for
baiting violations from strict liability to one of ``knows or
reasonably should know,'' as reflected in H.R. 2863. We also
strongly support the proposed imposition of liability on those
who place or assist in the placement of baiting so as to create
a, quote-unquote, ``baited area.''
For the past 2 years our ad hoc committee on baiting has
undertaken an exhaustive review of the migratory bird hunting
regulations that pertain to baiting. Waterfowl biologists,
wetland managers, wildlife enthusiasts, agency directors, law
enforcement officers and hunters provided us with input and
advice. We recently submitted our recommendations to the
Service in response to a proposed rule change.
The one issue that the Fish and Wildlife Service has
declined to address in its proposed rule is that of strict
liability, which is the subject, of course, of H.R. 2863. We
support the replacement of the strict liability standard with
the standard adopted in 1978 by the U.S. Court of Appeals for
the Fifth Circuit, commonly referred to as the Delahoussaye
decision.
Under the strict liability standard individuals unknowingly
hunting waterfowl or doves a mile from bait, and without any
knowledge of the presence of that bait, have been cited. We
consider this unreasonable, unnecessary and totally
unacceptable.
The Sixth Circuit in 1984 characterized the standard in the
following way, and I quote: ``We concede that it is a harsh
rule and trust that prosecution will take place in the exercise
of sound discretion only,'' end quote.
Furthermore, in the 1978 Delahoussaye case the Fifth
Circuit Court rejected the strict liability interpretation.
Instead, the Court required, at a minimum, that the presence of
bait could reasonably have been ascertained by the
conscientious hunter. The Court went on to say, ``any other
interpretation would simply render criminal conviction and
unavoidable occasional consequence of duck hunting and deny the
support to those, such as, say, judges, who might find such a
consequence unacceptable,'' end quote.
The Fifth Circuit Court does not follow the strict
liability standard to this day. This bill does not mean that
hunters will have a free pass to hunt over a baited field.
Quite the contrary, hunters would be responsible for taking
reasonable efforts to ensure they are not attempting to take
migratory game birds by the aid of bait or baiting. Hunters
should ask the guide, manager or land owner about the presence
of bait, inspect the hunting area and assess the behavior of
the hunted birds. Under the proposed standard of liability, the
hunter will be judged not just on whether he or she knew the
area was baited, but also whether he or she should have known
the area was baited.
This bill would require an officer to prove the hunter's
intent, nor will this bill require the knowledge on the
hunter's part. It merely requires that the hunter should
reasonably have known that the area was baited. This bill will
not allow a hunter to avoid citation by claiming not to have
known about the presence of bait. At issue here is whether the
hunter should have known, either by an inspection of the area
or by the behavior of the birds. The issue is not whether the
hunter did or did not in fact know.
Regarding conviction rates, we are not aware of any
significant difference in rates of conviction or pleas of
guilty between States currently under the Delahoussaye standard
and those that are not. In fact, Fish and Wildlife Agents are
on record stating that migratory bird baiting cases have
dropped precipitously in Louisiana during the last decade. The
agents attribute that decline in part to tougher penalties
handed down by Federal judges and magistrates, and I would like
to remind the committee that this crackdown on illegal baiting
and other activities took place under the ``knew or should have
known'' Delahoussaye standard of liability, as proposed by this
bill.
It has also been alleged that any standard other than
strict liability will measurably and seriously harm the
migratory bird resource. There is no scientific credibility to
that basis of concern. The Fish and Wildlife Service's current
approach to regulating the impact to harvest on ducks takes
into account variations in harvest rates caused by fluctuations
in hunting pressure, habitat, bird population, season links and
bag limit. This system makes annual adjustments for these
factors. No waterfowl experts with whom we've consulted,
including the best and most renowned in the nation, believes
the adoption of the Delahoussaye standard will result in a
measurable increase in harvest, but even if it did--and, again,
there is no evidence that it will--the system would compensate
by prescribing shorter seasons and/or reduce bag limits, or
both.
Opponents of this bill have claimed that the proposed
minimum form of scienter would apply to all other takings of
migratory game birds. Examples such as mining companies, or
cyanide leech, a farmer using harmful pesticides and refining
spilling oil have been offered. This bill eliminates the strict
form of liability in baiting cases and replaces it with a
minimum scienter in such cases, not in all other forms of
takings.
In conclusion, I wish to point out that the Service
specifically addresses the strict liability standard in its
current rulemaking proposal by stating, and I quote,
``application of the standard to baiting regulations is of
concern to many hunters,'' end quote. Nevertheless, the Service
proposes no change in the application to hunters of the strict
liability standard.
I referred earlier to the Katlit decision where the U.S.
Court of Appeals for the Sixth Circuit characterized strict
liability in the present context as a harsh rule. The Court
went on to say, and I quote, ``it is for Congress and the
Secretary of the Interior to establish and change the policy
here involved,'' end quote.
Because the Fish and Wildlife Service declined to take a
hard look at the application of strict liability hunters
invading cases, Congress should do so.
I would like to thank you for the opportunity to share our
perspectives with you. I do represent those States involved in
the International Association of Fish and Wildlife Agencies,
and I would be pleased to address any questions. I would like
to make one final point, and that is I would like to emphasize
that it is the opinion of the committee, the ad hoc committee
on baiting and the Legal Counsel of the International, that
strict liability cannot be addressed through the Service's
current rulemaking process. Also, the Service has told us and
suggested on a number of occasions that strict liability cannot
be addressed by this rulemaking process, as well.
Thank you very much, sir, for your time.
Senator Chafee. I don't quite understand your last point.
You say that the Fish and Wildlife Service says that the strict
liability cannot be addressed by regulation?
Mr. Manning. That is correct, that it cannot be addressed
by the rulemaking process that they are current undergoing, and
that's been reported to me by, actually, Mr. Davis, who
testified earlier.
Senator Chafee. Why is that so?
Mr. Manning. If I could, may I ask Mr. Lenzini to respond?
Mr. Lenzini. Mr. Chairman, my name is Paul Lenzini, and I
am Legal Counsel to the International Association.
The proposed rulemaking of the Service states that it does
not intend to change the strict liability standard. If they
were on the basis of this proposed rulemaking to do so, it
would be a violation of the notice and comment provisions of
the APA. They could address it in a new rulemaking but not in
this particular rulemaking, we think.
Senator Chafee. Well, you lost me on that one. Why not?
Mr. Lenzini. Because when the U.S. Court of Appeals for the
D.C. Circuit just a couple of years ago in an Opinion by Judge
Starr held that once a clear signal is sent, that a proposal of
an agency does not intend to make a certain change, it cannot
on the basis of that proposed rulemaking make the change
because people would have been invited to believe that no
change was in the offing.
In this particular case, the agency has very clearly
stated, sent a very clear signal, that it does not intend to
change strict liability.
Now, in the future, on another rulemaking, it could
certainly do that, but on this outstanding rulemaking, we
believe, it could not do so without violating the notice and
comment provisions of the APA. I would be glad to supply more
information----
Senator Chafee. What would be the point of going through
all this effort if----
Mr. Lenzini. The point would be the notice and comment
provisions of the APA, which require that an agency explain
what it has in mind so that people can comment.
Now, if the agency says, ``We do not intend to change
something,'' then people will not be led to comment one way or
the other. There is authority in the Circuit, Senator Chafee,
for that proposition. I would glad to supply it.
Senator Chafee. Well, they could--if they went through
another round of notice, they could, if they wanted to.
Mr. Lenzini. Absolutely.
Senator Chafee. All right.
Now, Mr. Inkley, in your testimony you said that you're not
necessarily against what is proposed in this legislation.
Nonetheless, you are opposed to it because you don't want to
take this process.
Is that a fair comment about what you said?
Mr. Inkley. We have indicated that we believe that some
changes need to be made to this standard of strict liability,
but that it should be done at the administrative level rather
than the legislative level. Our concern is that this is a
process of regulations that has to be very finely tuned, and we
are a bit concerned that if you take a legislative action, it
will be very difficult for the Service to make appropriate
adjustments based on their experience of enforcing the changes.
Senator Chafee. Ms. Hood, you indicated--I suppose we could
say that you are suggesting we're starting down a slippery
slope here if we should approve this, and you thought the
courts might indicate, such as the Rhode Island oil spill that
took place in 1996, they might not--and there they did hold
them strictly liable--and your suggestion that perhaps if we
did this legislation, the strict liability standard might not
be there.
I'm not sure I follow your reasoning on that. If we should
go to the trouble of saying such and such is not strict
liability, then it seems to me that the balance of the offenses
would be strict liability. In other words, if you haven't
specifically gone out and changed--we're indicating here that
you have to have a statute to change what is a strict liability
situation now, and by not dealing with the oil spill from 1996,
we would in effect be saying strict liability does apply.
Do you follow that?
Ms. Hood. Yes, I think that's a good point. I think that,
with the caveat that I'm not an attorney or a judge, to my
knowledge if the legislation were adopted, the MBTA would be
the only law that would have a scienter requirement for petty
offenses. For small offenses, like for baiting, we would have a
scienter requirement. You could see where judges might reason
that it's in the MBTA that scienter is required for these small
violations of baiting, and that it could be applied to other
violations of the MBTA.
My point in bringing this up is that we're opening up a
Pandora's box here by changing it legislatively, that by
promulgating Congressional intent to have the scienter
requirement we could be going down a slippery slope. I really
hope that that would not happen, but I do think it is
potentially a Pandora's box, especially combined with some of
the other effects that the legislation might have as well on
baiting.
Senator Chafee. What would you say, Mr. Inkley, or, Ms.
Hood, if we had a sunset provision in here? In other words, try
it. Mr. Manning has indicated--I think I'm quoting you properly
from your testimony--that there is no suggestion that in the
Fifth Circuit area where there is not strict liability that the
bag--that the take is greatly increased, but maybe it's a risky
business and one thought might be that we would have it for 5
years, whatever it might be, and then it would sunset and
Congress could then re-enact it, if it so chose, or not.
What would you say to that?
Mr. Inkley. I would be happy to address that, Mr. Chairman.
We think that the sunsetting proposal that you've suggested
would be ideal for the administrative process, not for the
legislative process. The administrative process is specifically
designed to allow the regulatory agency to have the flexibility
to address the regulations as they see appropriate. That is
another reason that we would support that this be done at the
administrative level.
By putting in a sunset provision, it enables the Fish and
Wildlife Service to study the potential impacts, both on
hunters and on the migratory bird resource and make
adjustments, as necessary.
Senator Chafee. But Ms. Metaksa has pointed out how long
this has all taken, and I know you're here in the best of
spirits but how do we know how Senator Breaux and others who
are deeply concerned about it, how do they know anything is
going to happen? It has taken forever for you folks to get as
far as you have, and, you know, say something happens on
October 1st--I guess that's the deadline--but then you have to
sift through all that information, and this might go on for
another 7 years.
Mr. Inkley. Well, I would certainly hope that it wouldn't
go on for another 60 or 70 years, but I think there is an
administrative process underway. There is public comment, and
many people have responded to that. I think it would be wrong
for us to simply throw all that out, simply ignore it, and then
proceed with legislative action at this time. I think we should
see the administrative process through to completion, allow the
Fish and Wildlife Service to take into consideration all the
comments that they have received, and, perhaps, and hopefully
they would come forward with a proposal to make the changes at
the administrative level.
Senator Chafee. You may have misunderstood me--I didn't say
60 or 70 years--7 years is what I said. Maybe you said 70--
anyway, I said 7.
Well, what did you say, Ms. Metaksa. Am I pronouncing that
right?
Ms. Metaksa. Yes, sir, you did a good job.
Senator Chafee. Finally. What do you say to the sunset
provision?
Ms. Metaksa. I think that sunset provisions can be very
useful. I would like to see it resolved legislatively because
I, like a lot of people in the Congress, have become frustrated
waiting for a regulatory solution to this. I agree with Mr.
Manning that the current proposals do not address the baiting
issue so we would have to go through another round of possible
proposals, and the record of the Fish and Wildlife Service is
pretty poor in addressing this issue. They seem to ignore it
every time they're told to take a look at it.
So I have no problem with sunset provisions--it gives you a
chance to take a look at it--if that is the way that Congress
would like to go. I just think we need to get it done soon.
Senator Chafee. Okay, well, thank you all very much for
coming.
You've got a point?
Mr. Manning. Yes, Senator, I would like to make one final
point, if you would allow me?
Senator Chafee. Sure, go ahead.
Mr. Manning. In looking at the package that the Fish and
Wildlife Service is reviewing, that package takes into
consideration much biology of vegetative manipulation,
etcetera, etcetera. Strict liability was one component, which
was left out of the package, therefore, the need for some level
of codification through the legal process that we have before
us.
Senator Chafee. All right, thank you.
Does anybody else have a comment?
[No response.]
Senator Chafee. Okay, well, thank you all very much for
coming. We appreciate it and sorry there were the delays there.
[Whereupon, at 12:15 p.m., the committee was adjourned, to
reconvene at the call of the chair.]
[Text of H.R. 2863 and additional statements submitted for
the record follow:]
Statement of Hon. Trent Lott, U.S. Senator from the State of
Mississippi
Mr. Chairman, I want to thank you for the opportunity to show my
support for legislation seeking to amend the Migratory Bird Treaty Act.
I appreciate the committee's willingness hold hearings and mark up this
bill, which was overwhelmingly passed by the House of Representatives
this summer.
Mr. Chairman, Members of the Environment and Public Works
Committee, for the past 80 years there has been relatively little
controversy over the U.S. Fish and Wildlife regulations governing
migratory birds. In fact, the enforcement of these regulations has had
a beneficial impact on their populations. One regulation, however, has
sparked tremendous debate and has been inconsistently enforced across
the United States.
This regulation states that if an individual is hunting over a
baited field--whether he knows it or not--he is guilty. There is no
defense and there is no opportunity to present evidence in a case. If
there is bait, the hunter is guilty. Automatically guilty. It does not
matter how much bait was present--a handful or a field-full. It does
not matter if the bait actually attracted the birds or not. It does not
matter how far the bait is from the hunting venue. If the bait and the
hunter are there simultaneously, the hunter is guilty. Case closed.
I have been a hunter for many, many years, and I agree that baiting
a field is an unacceptable action. However, I maintain that continuing
to apply this strict liability legal standard to baiting cases is wrong
and unfair. In fact, I believe that it violates one of our most
precious and fundamental constitutional protections--that a person is
innocent until proven guilty.
Mr. Chairman, this strict liability standard is unreasonable.
During this hearing, I hope that the committee hears from those who
have been unfairly trapped by this unbending regulation. I also hope
that you will also hear from those who have stopped hunting migratory
game birds because they do not want to run the risk of being convicted
of a Federal crime.
Mr. Chairman, I support legislation to change this regulation,
especially legislation that amends the standard to state that a hunter
is guilty if he ``knows or reasonably should have known'' that he was
hunting on a baited field. My colleagues, Senators Cochran and Breaux
have shown tremendous leadership in introducing a bill that would fix
this problem. I commend their efforts and congratulate them on tackling
this issue head-on.
I would also like to recognize and thank Rep. Don Young, chairman
of the House Resources Committee and avid hunter, for his dedication to
this issue. Not only is Chairman Young a renowned hunter, he is an able
legislator. I hope that we can push Migratory Bird Act Reform across
the Senate finish line, completing the good work he has already begun
in the House.
Before I close, Mr. Chairman, I want to draw the committee's
attention to one other issue involving baiting. In Mississippi, we do
not have a problem with strict liability. Our problem revolves around
the top-sowing of wheat for dove hunting and moist soil management for
duck hunting. I hope that the committee, as well as my fellow
Southeasterners, Mr. Cochran and Mr. Breaux, will remain committed to
addressing these issues for the benefit of hunters in our states.
On that note, Mr. Chairman, I want to again thank you and the
committee for dedicating time to this issue and for marking up and
reporting out this bill as soon as possible. Let's finish the good work
started by the House. Let's take the unbending stringency out of these
baiting regulations. Thank you.
__________
Statement of Kevin Adams, Chief, Office of Law Enforcement, U.S. Fish
and Wildlife Service, Department of the Interior
Thank you for the opportunity to discuss the Administration's
position on H.R. 2863, the Migratory Bird Treaty Reform Act of 1998, as
passed by the U.S. House of Representatives. As passed, this bill would
eliminate the current ``strict liability'' standard used in enforcing
waterfowl baiting regulations and make it illegal for any person to
place or direct the placement of bait on or adjacent to an area being
hunted.
The Department of the Interior shares your concern for the need to
clarify and simplify the migratory game bird hunting regulations
regarding baiting. On March 25, 1998, the U.S. Fish and Wildlife
Service published in the Federal Register for public review and comment
a proposed rule concerning hunting migratory birds by baiting or using
baited areas. This rulemaking process was initiated after extensive
review of the current regulations and in response to public concerns
about interpretation and clarity of those regulations, especially with
respect to current migratory bird habitat conservation practices. The
Administration believes that H.R. 2863 will disrupt the Agency's
ongoing decisionmaking process and is opposed to the bill.
The Migratory Bird Treaty Act, which implements international
treaties with four of our neighboring countries for protection and
conservation of migratory birds, authorizes the Secretary of the
Interior to determine by regulation ``. . . when, to what extent, if at
all, and by what means, it is compatible with the terms of the
conventions to allow hunting. . . ''
Federal baiting regulations were established in 1935 when waterfowl
populations suffered from drought, degradation of habitat, and over-
harvest by hunting. The two hunting practices primarily responsible for
over-harvest were the use of bait and live decoys, both of which quite
effectively lure birds to waiting guns. Of all the factors affecting
migratory bird populations, these two can be controlled or curtailed by
enforcement actions.
Enforcement of the baiting regulations include a ``strict
liability'' doctrine. Under strict liability, the government does not
need to prove that the hunter knew he or she was violating the law.
H.R. 2863, as passed by the House, would eliminate the ``strict
liability'' standard and replace it with the ``know or reasonably
should have known'' standard. This new standard will require Service
law enforcement officers to prove that a person knows or reasonably
should have known that the area in which he or she was hunting
migratory birds was baited before it can establish that a violation
occurred. This bill will also include this language in the Migratory
Bird Treaty Act, rather than in the Code of Federal Regulations, where
the current prohibitions are found.
This concludes my statement. I would be glad to answer questions.
______
Responses by Kevin Adams to Additional Questions from Senator Graham
Question 1(a): Under current law, what type of discretion can your
agent's use in enforcing baiting regulations?
Response: Our agents are often required to exercise discretion in
the course of their duties, including during enforcement of the baiting
regulations. Decisions to issue a Notice of Violation or refer a case
for prosecution are based on circumstances unique to each situation.
These circumstances may include efforts made by a hunter to comply, a
hunter's level of experience, an agent's prior intelligence about the
area, including human and bird activities, the actual situation of the
bait, and local rules of the courts. Options range from issuing a
verbal or written warning, charging a single hunter, charging multiple
hunters, or charging an individual who claims responsibility.
Question 1(b): Do you provide any written guidance to your agents
to limit or guide the extent to which individual agents can use
discretion in enforcing your regulations?
Response: Yes. Both training and guidance assist individual agents
in determining the extent to which they may use discretion. The
guidance received by agents includes 40 hours of mandatory Special
Agent In-Service training each year. Guidance is also provided at both
the Regional and Washington Office levels in the form of Law
Enforcement Memorandums that contain policy statements on specific
migratory bird hunting issues.
Question 2: There has been discussion that modification of existing
migratory bird law with the ``known or should have known'' standard
that we are addressing today could be the first step down a road where
``intent'' must be proven before enforcement of any migratory bird take
or almost any environmental regulation. Do you believe these statements
are valid?
Response. Yes. The current proposal will include the knows or
should have known standard only in the baiting provisions of the
Migratory Bird Treaty Act. The Service is concerned that such a change
to the MBTA would lead to other changes in the MBTA, lessening the
protection currently afforded to migratory birds. The effects of hunter
impact on the take of migratory game birds (waterfowl, doves, etc.) do
not compare to the significant numbers of migratory game and non-game
birds (including raptors, songbirds, eagles) routinely killed by oil
spills, pesticides, electrocution, contamination, aquaculture
operations, or habitat development, which also requires a strict
liability standard for enforcement. In fact, as a result of awareness
of strict liability, organizations have taken actions to prevent
mortality. These actions include changing the manufacture and use of
pesticides that are toxic and deadly to migratory birds; developing
measures that prevent electrocution from power line strikes and
contamination at petroleum pits, open oil pits, and cyanide leach
operations; and avoiding impact to birds during habitat development.
The Service is concerned that the courts may look at changes to the
baiting section of the statute and may lead the business, industrial,
and agricultural communities to seek similar changes.
______
Responses by Kevin Adams to Additional Questions from Senator
Lautenberg
Question 1: What is it about baiting that is so objectionable that
we should keep the strict liability standard in prohibiting it?
Response: The baiting regulations support the spirit of fair chase.
Hunters who exhibit and practice the spirit of fair chase in pursuit of
wild game are required to be knowledgeable of the game they are in
pursuit of. Baiting provides unnatural concentrations of birds,
resulting in much greater opportunities for hunting success than would
otherwise be the case. Our seasons and bag limits are predicated upon
standard hunter success rates. Baiting gives those who engage in it an
artificial advantage over those who do not.
Baiting of migratory birds by unethical hunters has become so
sophisticated that it has become difficult, if not impossible for of
ricers to substantiate a violation. Agents must utilize the full range
of criminal law enforcement techniques to obtain evidence of bait,
including expensive and time-consuming round-the-clock surveillance and
undercover techniques, to meet one of many statutory responsibilities.
In many instances, there are simply an insufficient number of law
enforcement agents, even in cooperation with state fish and wildlife
law enforcement officers, to effectively substantiate knowledge of
baiting by the hunter, reducing the standard for violations could well
increase the number of hunters who engage in the practice.
Question 2: Besides baiting, what other activities are misdemeanors
under the Migratory Bird Treaty Act under a strict liability standard?
Response: All Migratory Bird Treaty Act offenses are covered by
strict liability and are misdemeanors except for situations in which
the individual (or business) knowingly takes with the intent to sell,
offer to sell, or barter, in which case the violation is a felony.
__________
Statement of Douglas B. Inkley, Senior Scientist and Special Assistant
to the President, National Wildlife Federation
We appreciate this opportunity to testify before the Senate
Committee on Environment and Public Works regarding H.R. 2863, the
Migratory Bird Treaty Reform Act. The National Wildlife Federation
(NWF) is the nation's largest conservation education organization.
Founded in 1936, NWF works to educate, inspire and assist individuals
and organizations of diverse cultures to conserve wildlife and other
natural resources and to protect the Earth's environment in order to
achieve a peaceful, equitable, and sustainable future.
This nation is fortunate to have a rich avian diversity of over 600
native species, ranging from hummingbirds and warblers, to ducks and
geese, to our national symbol, the magnificent bald eagle. Birds have
been and continue to be a tremendous historic, aesthetic, recreational
and economic resource to the United States and its citizens. Of
particular relevance to today's hearing are waterfowl and waterfowl
hunting. In 1996, over three million people hunted for migratory birds
according to the National Survey of Fishing, Hunting, and Wildlife-
Associated Recreation conducted by the U.S. Fish and Wildlife Service
(Service).
The conservation of this nation's waterfowl resource has long been
of interest to NWF. We worked with the Service to prohibit the use of
toxic shot in waterfowl hunting because of the mortality caused to
birds, especially waterfowl and birds of prey, by the ingestion of
spent lead shot. NWF supports the North American Waterfowl Management
Plan and worked hard to assist Congress in passing the North American
Wetlands Conservation Act. Furthermore, in the interest of conserving
waterfowl habitat, among other purposes, we support strengthening the
Clean Water Act and the Section 404 wetlands regulatory program.
Finally, on behalf of NWF, I am a member of the International
Association of Fish and Wildlife Agencies' Ad Hoc Committee on Baiting,
which has addressed this issue.
NWF is here today not only because of our interest in conserving
the migratory bird resource, but also because of our long-standing
support for properly regulated utilization of wildlife. Our nation's
migratory bird resource must be properly managed and protected to
provide a continuing rich and diverse avian heritage for future
generations. H.R. 2863, the Migratory Bird Treaty Reform Act, passed by
the U.S. House of Representatives on September 10, 1998 and the subject
of today's hearing, concerns the regulations for hunting of migratory
birds, particularly with respect to baiting of waterfowl.
The placement of bait to facilitate taking of waterfowl has long
been illegal under the Migratory Bird Treaty Act. This has long been
accepted as consistent with the spirit of `fair chase' as well as
necessary to facilitate the maintenance of waterfowl populations. As
waterfowl are particularly susceptible to baiting, NWF believes not
only that baiting of waterfowl is unethical for hunting purposes, but
should continue to be illegal as well. However, at present, a hunter
who has no knowledge of a baited situation or that hunted birds are
influenced by bait can be found in violation of the baiting
regulations. With this in mind, we understand and support fine-tuning
of the baiting regulations to ensure fairness to hunters while
protecting the migratory bird resource from being hunted over bait.
Instead of ' strict liability', H.R. 2863 would require that ``the
person knows or reasonably should know that the area is a baited
area.''
While the change seems appropriate for protecting innocent hunters,
it is quite possible that the change could open a loophole in the law,
thereby facilitating unethical hunters (poachers) in attracting
waterfowl by baiting, and making it more difficult for law enforcement
officers to successfully prosecute them. This in turn, could have a
significant impact on the waterfowl resource. As the Service testified
on this issue last year in the U.S. House of Representatives, they do
not know what impact this will have on the waterfowl resource.
NWF opposes H.R. 2863 on the grounds that changes to migratory bird
regulations are most appropriately established within the regulatory
rather than legislative arena. These regulations require complex
analysis and implementation, with special knowledge by trained
professionals in wildlife conservation and law enforcement.
Furthermore, the Service needs the flexibility, which is impossible to
obtain in the legislative process, to make necessary regulatory
adjustments as dictated by unpredictable and highly variable
environments and conditions inherent to the management of the migratory
bird resource. Managers must be able to adjust quickly in order not to
compromise the control or management of legal harvest and the waterfowl
resource itself.
Furthermore, the Service is currently engaged in a public review
process and has solicited comments from the general public regarding
the issues addressed in H.R. 2863. While the Service has proposed no
change to the regulations, which has undoubtedly inspired Congress to
take up this issue, the Service is still soliciting public comments
(until October 1, 1998). Legislative action at this time would render
moot, and in fact interrupt mid-stream, the public review process which
is underway. Legislative action at this time is premature.
In summary, the NWF urges the U.S. Fish and Wildlife Service to
make regulatory/policy changes to the migratory bird regulations
pertaining to baiting, and that Congress not take legislative action.
Thank you again for this opportunity to testify.
__________
Statement of Tanya K. Metaksa, Executive Director, National Rifle
Association, Institute for Legislative Action
Mr. Chairman, on behalf of the National Rifle Association of
America, I appreciate the opportunity to testify on H.R. 2863, the
Migratory Bird Treaty Reform Act. This Act enjoys the wholehearted
support of an Association that has safeguarded hunting and scientific
wildlife management for more than a century.
With over 2 million hunter-members, NRA believes ardently that the
conservation of our migratory bird resource is vital. It is a core NRA
belief that hunters are called to be faithful stewards of America's
wildlife bounty. Hunting is an American cultural heritage--one of our
nation's most precious--but this noble pursuit requires us to commit
ourselves to sustaining healthy, vibrant wildlife populations. In that
spirit, the NRA embraces laws and regulations that safeguard both sport
hunting and scientific wildlife management. That includes laws carrying
criminal sanctions, and NRA has always supported fair, consistent and
effective enforcement of those laws throughout our nation.
Eighty years ago, hunters clamored for passage of the Migratory
Bird Treaty Act of 1918. Small wonder. At that time, wildlife was being
eradicated, and sport hunters were in danger of losing not only their
noble pursuit--but an even greater nobility--America's wildlife
resources. The problem was not the American hunter. The American hunter
numbered among the victims. The problem was the voracious appetite of
the marketplace at the close of the 19th century. Mercenaries for both
the marketplace and the milliners of the era all but consumed entire
populations of white-tail deer, bison, waterfowl and other species. It
has taken decades for American hunters and our allies in wildlife
biology and game management to bring these species back, some from the
brink of extinction.
While they migrated, when they wintered over, wherever they were
seen, waterfowl were slaughtered. The most threatened species of the
era are now the very populations hunters have worked so hard to
nurture--snow geese, wood ducks, Canada geese. The marketplace
mercenaries used devices like the ``punt gun.'' Weighing as much as 120
pounds with a bore of up to 2\1/2\ inches, it could bring down as many
as 100 birds with a single shot. The NRA termed this ``slaughter.''
Clearly, it was not hunting. Worse yet were battery guns, crude boxes
akin to organ pipe containments. From the boxes protruded a dozen or
more punt gun barrels. In the 1870's, as many as 15,000 canvasbacks
were taken each day by market mercenaries on the Chesapeake Bay alone.
That was the backdrop for the 1918 Act. I urge this august body to
consider who made conservation history in this dark era by breathing
life into the 1918 Act. It was hunters--hunters motivated by the very
core principle of the outdoor ethic--respect for wildlife.
Indeed, the heart of the American hunter was at the very center of
a wave of legislation that swept America at the time. Hunters led this
movement. Hunters organized their fellow hunter-conservators, mounting
what we would term today as grassroots pressure on elected
representatives to stop the strip mining of America's sharply dwindling
wildlife resources. But when Maryland established ``rest days'' to ease
waterfowl hunting pressure in 1872, the marketplace mercenaries took no
rest. When the hunters and naturalists of New England pressured
legislatures there to list wood ducks as protected, the mercenaries
either ignored the listing or simply moved their batteries elsewhere.
Because of their migratory nature, waterfowl could not be
effectively conserved by one action in one state and a similar action
in another. Federal regulation seemed the most appropriate course.
Among the results--the Migratory Bird Treaty Act of 1918.
Eighty years have transpired since hunters bequeathed this nation a
landmark, visionary wildlife conservation law. And in those 80 years,
just one aspect of this sweeping regulation stands out as the center of
perpetual controversy. CFR Part 20.21. A prohibition of hunting over,
or with the aid of, bait.
While the words themselves do not embody a strict liability
standard of guilt, most courts have treated violations of the baiting
prohibition as a strict-liability criminal offense. The 1918 Act
created a system to conserve wildlife and protect sport hunting. But
today, the ``system'' the American hunter helped put in place does not
care who placed the bait. Shouldn't it? To that ``system,'' it doesn't
matter where the bait lies with respect to the hunter's location. To
that ``system,'' it doesn't matter if the bait actually lures a single
bird to the hunting site. All that matters is whether an officer
testifies that, yes, bait was present. If so, the hunter is guilty.
Strict liability does not allow the hunter to present convincing
evidence that he or she did not know or reasonably could not have known
that bait was present. The great great grandchildren of the sportsmen
and naturalists responsible for this 80-year-old Act are being deprived
the opportunity to mount any defense--a condition their forebears would
find absurd and unacceptable.
Over the years, we are thankful that Congress has held hearings on
the need to reexamine the issue of strict liability. In 1990, the U.S.
Fish and Wildlife Service established a Law Enforcement Advisory
Commission to look at an array of enforcement issues within the
Service's jurisdiction. One of the Commission's recommendations: create
a task force to review the baiting regulations. Action taken? None. The
task force was never created.
Critics of H.R. 2863 say reform of the 1918 law is unnecessary.
They suggest that if American hunters have any problems with the
baiting regulations, the rulemaking process is the avenue to address
those problems, not the legislative process. This has a very reasonable
ring to it, but when it comes to the serious issue of strict liability,
the ring is hollow indeed.
In 1991, the Fish and Wildlife Service published a notice of intent
in the Federal Register to review the baiting regulations. In our
comments, NRA encouraged the Service to act on its own Advisory
Commission's recommendation: namely, create the task force you called
for in 1990. We also asked that the strict liability interpretation of
the regulations be replaced with clear regulatory language that adopts
a standard of reasonable diligence. (That reasonable standard is now
reflected in H.R. 2863.) The response from the Service? There wasn't
any. Nothing was heard. Two years later, in 1993, the Service published
a supplemental notice of review--but made no mention of the strict
liability issue.
For 3 more years, the Service was silent on the issue--and
remember, this is the only serious issue of dispute over the 1918 law
for 8 decades. Yet, nothing was heard from the Service until 1996, when
it published another notice of intent on another aspect of the baiting
regulations. The NRA recommended that the focus be broadened to include
the strict liability issue.
This past Spring, prompted by Congressional action on earlier
versions of H.R. 2863, the Fish and Wildlife Service proposed a rule to
amend the baiting regulations. The Service, however, excluded from
public review and comment the very crux of the baiting issue from the
perspective of the American hunter: adoption of the ``knows or
reasonably should know'' standard--termed the Delahoussaye standard--
now embodied in H.R. 2863.
We must note that the decision to sidestep this important issue
lies in stark contrast to the views expressed by the Service's own
witness at a Congressional oversight hearing in May 1996. At that
hearing, a Service witness, in response to query, responded that the
Delahoussaye standard could be acceptable as the standard for criminal
liability. Its unwillingness to follow-through and support adoption of
the Delahoussaye standard can mean only one thing: the Fish and
Wildlife Service is looking to you, the U.S. Congress, to resolve the
issue. Tacitly, the Service is saying, while Delahoussaye is
acceptable, we prefer it be codified through legislation, not
rulemaking.
Those opposed to H.R. 2863 claim that requiring law enforcement to
prove intent of the hunter to break the law would make baiting cases
impossible to prosecute. We believe there is substantial evidence to
the contrary. Under this bill, law enforcement would only need to prove
that a person knew or reasonably should have known that he or she was
hunting over bait. Even if a hunter could prove in court that he or she
had no intent to hunt over bait, the hunter could still be found guilty
if the court determined that due diligence was not applied in examining
the hunting area for the presence of bait.
Hunters have been prosecuted in cases where they could not
reasonably have known that a field was baited. In some cases, the
quantity of bait was minute. In others, the bait was half a mile from
where they were hunting. This was the very reason why, in 1978, the 5th
Circuit Court of Appeals ruled in favor of the hunter in United States
v. Delahoussaye, 572 F.2d 910 (5th Cir.1978). The court recognized that
there are situations exceeding reasonable expectations of human
responsibility. H.R. 2863 gives the American hunter the opportunity to
defend himself or herself in court, a right afforded all other criminal
defendants. American hunters should be treated as innocent until proven
guilty--not be proven guilty irrespective of facts.
The hearing held last year in the House Resources Committee on the
predecessor to H.R. 2863 provided ample evidence that the 3 states that
comprise the 5th Circuit--Louisiana, Mississippi and Texas--have
experienced no hardship in prosecuting baiting cases. A conviction rate
of 88 percent belies dire warnings that this bill would undermine the
resource. Frankly, the Fish and Wildlife Service has had 20 years to
challenge the Delahoussaye ruling if it truly believed that the
standard was having a detrimental impact upon law enforcement to
perform its duty or upon the Service's ability to protect the resource.
H.R. 2863 does not remove the prohibitions against baiting. Rather,
it ensures that such prohibitions are enforced fairly. As the court
acknowledged in Delahoussaye, unless a hunter can be held to a
reasonable standard of responsibility, criminal conviction can become
an unavoidable consequence of duck hunting. Rules should be clear and
understandable so that hunters, farmers, landowners and professional
guides who intend to comply with the law can readily do so. Above all,
this bill achieves that objective while preserving the lofty goals and
objectives for migratory bird conservation our great great grandparents
struggled to enact.
In summary, H.R. 2863 continues to prevent the use of bait in
migratory bird hunting. It preserves the fundamental principle of
``fair chase.'' It does not weaken any of the protections for our
migratory bird resource. It prevents the irresponsible--the criminal--
to escape prosecution. It provides a balanced solution to our country's
statutory and treaty obligations to protect and conserve migratory
birds while meeting our fundamental responsibility to protect the
rights of our citizens to fair and equitable enforcement of laws.
H.R. 2863 lays on the shoulders of American hunters a fair and
reasonable requirement to take responsibility for their actions afield.
Hunters welcome this burden. Indeed, one of the great contributions
American hunters make to the greater American culture is the outdoor
ethic. In A Sand County Almanac, Aldo Leopold, a Great American hunter
and naturalist, wrote,
``The hunter has no gallery to applaud or disapprove of his
conduct. Whatever his acts, they are dictated by his own conscience. It
is difficult to exaggerate the importance of this fact. Voluntary
adherence to an ethical code elevates the self-respect of the
sportsman. . . ''
H.R. 2863 is a tribute to the hunters and conservationists who
created the Migratory Bird Treaty Act of 1918. When it becomes law, NRA
is confident of our continued success in conserving America's wildlife
resource, because that is a duty of every American hunter.
There can be no passion to hunt without the passion to conserve,
and that sentiment springs from the heart of the American hunter.
__________
Statement of Laura C. Hood, Director, Science Department, Defenders of
Wildlife
Mr. Chairman, thank you for the opportunity to testify before your
committee this morning regarding restrictions against hunting by using
bait, as prohibited under the Migratory Bird Treaty Act of 1918. My
name is Laura Hood and I am Director of the Science Department at
Defenders of Wildlife (Defenders), a non-profit conservation advocacy
group consisting of over 250,000 members and supporters. Defenders is
headquartered in Washington DC, with field offices in Montana, Alaska,
Oregon, Arizona, and New Mexico. Defenders' mission is to protect
native wild animals and plants in their natural communities.
As an organization that is committed to science-based protection
and sustainable management of migratory birds, Defenders of Wildlife
opposes H.R. 2863. By changing the standard of proof for prosecuting
hunters who use bait from strict liability to a ``knew or should have
known'' (i.e., scienter) standard, H.R. 2863 would cripple enforcement
of this important prohibition against baiting. In effect, this change
would provide a huge loophole for hunters who use unethical baiting
practices, overturn 62 years of case law, and negatively impact bird
populations across the country. Most importantly, this legislative
change requires careful scrutiny and expanded analysis of its potential
impact on bird populations, not accelerated decisionmaking by Congress.
Finally, legislative action is not necessary right now, because the
U.S. Fish and Wildlife Service, working with a number of conservation
groups and the public, is in the middle of rulemaking on this issue.
H.R. 2863 with its ``knew or should have known'' standard of proof
is opposed by numerous conservation organizations, including the
American Bird Conservancy, the Izaak Walton League, the National
Audubon Society, and the Humane Society of the United States. Like
Defenders, a number of those groups are not anti-hunting organizations.
In addition, the Secretary of Maryland's Department of Natural
Resources opposes the legislation, and has sent a letter on the matter
to the entire Maryland Congressional Delegation. In my comments today I
will emphasize three key points. First, changing the strict liability
standard will curtail enforcement against baiting. Second, there is no
immediate crisis to address through legislation, instead we must take
enough time to examine the potential impacts of this change on
migratory bird populations and the prevalence of baiting. Third, there
is no need for legislation because the matter is being dealt with
administratively through an open, public process.
First, I am concerned that enforcement against hunters who use bait
will be crippled by this legislative change. For over 60 years, Federal
courts have interpreted the MBTA as imposing strict liability for
misdemeanor violations, including hunting birds over bait. By changing
the strict liability standard to the scienter standard (that the hunter
``knew or should have known'' about the bait), H.R. 2863 will make it
very difficult for enforcement officers to prove that a hunter had such
knowledge. As U.S. Magistrate Judge Frederic N. Smalkin, District of
Maryland, wrote in a statement to Congress in 1984,
``. . . in addition to being a shield for the innocent, such a
requirement could be a windfall for the guilty, in view of the
difficulty of proving scienter beyond a reasonable doubt . . . the
Government would have to come up with some direct proof of
participation in the baiting, ownership of the property, or some
other circumstance directly proving scienter if it were made an
express element of the offense. It would appear to me from my
practical perspective that the requirement of proving scienter
would effectively curtail enforcement of the prohibition of
baiting.''
Judges have repeatedly upheld the strict liability standard, in light
of the practical difficulties of proving that a hunter knew about the
presence of bait. Over the last 62 years of case law, hunters and
enforcement officers have understood this unambiguous and effective
standard of proof.
As judges, wildlife officers, and the Fish and Wildlife Service
have stated repeatedly, passing H.R. 2863 will protect hunters who
purposely bait birds to the gun. Hunting over bait violates the spirit
of fair chase and is unsportsmanlike. Birds can be so attracted to bait
and focused on the abundant food resources that they do not perceive
danger from nearby hunters. This legislation would protect hunters who
easily kill birds that are virtually drunk from food--if caught, the
hunters only have to claim that they did not know that bait was
present. Other hunters will actually have a disincentive to find out if
a field is baited before they hunt there. Moreover, hunters using bait
may also exceed their bag limits. In light of the difficulties of
enforcing baiting restrictions with the scienter requirement, it is no
surprise that the Federal Wildlife Officers Association also opposes
H.R. 2863.
Part of the wildlife officers' concern is that the doctrine of
strict liability applies not only to baiting prohibitions, but also to
other forms of take of migratory birds. They worry that if H.R. 2863
becomes law, judges could rule in the future that the new scienter
requirement extends to other types of cases, including all of the
misdemeanor provisions of the Migratory Bird Treaty Act. This could
have far-reaching consequences, indeed. For example, birds are
attracted to open oil pits, and when oil companies do not cover the
pits, hundreds of birds can die in them. In many cases, it would be
difficult to prove that the company knew that their open pits would
kill migratory birds, and enforcement would be severely curtailed. This
can apply to oil spills as well. In 1996, a terrible oil spill occurred
along Rhode Island's coast. For 8 days, dead and injured migratory
birds washed up on shore and were retrieved--the final count of dead
birds that could be recovered was 300. In January 1998, the owners of
the oil barge were sentenced to a $3 million fine for violating the
Migratory Bird Treaty Act. The strict liability standard was essential
to enforcement of the Act in that case. Do we want this to happen
again?
In addition to poisoning by oil spills, strict liability is
important for penalizing companies that kill birds through pesticide
poisoning, building construction, and power line strikes. Awareness of
the strict liability standard induces companies in these and other
industries to take measures to prevent killing migratory birds.
Changing the strict liability standard could result in an increase in
all kinds of activities that cause bird kills.
In light of the potentially dramatic effects of changing the strict
liability standard and the opposition by conservation groups and
wildlife officers, we must ask ourselves why this change is being
considered. There is no crisis that necessitates a drastic change by
Congress. True, we must be sympathetic to the hunter who was invited to
hunt on someone's property and then receives a misdemeanor for baiting
when he or she did not know that the bait was present. In cases like
these, however, the judicial system provides a crucial check by
minimizing the sentence for such an unwitting offender. We simply do
not need a quick but potentially far-reaching change right now.
Instead, we have every reason to carefully consider the arguments for
and against the change. The U.S. Fish and Wildlife Service must be able
to analyze how this change is likely to affect the prevalence of
baiting and how it will impact bird populations. This analysis should
include the combined effects of changes in hunting regulations and
widespread habitat destruction and degradation. An Environmental Impact
Statement (EIS) under the National Environmental Policy Act would be
warranted if this change were to be proposed administratively. An EIS
would address all of these factors and compare their likely effects
with the status quo.
In addition, the U.S. Fish and Wildlife Service is in the middle of
rulemaking on this issue, and a legislative change right now would
undermine that process. The agency has listened to concerns on all
sides of this issue and published a proposed rule for public comment on
March 25th. The public comment period will expire on October 1.
Legislation on baiting would explicitly preempt the agency's
decisionmaking on baiting.
The Fish and Wildlife Service's monitoring of duck populations
indicates that now is a time to take caution with managing waterfowl
populations. The Waterfowl Breeding Survey, conducted by U.S. and
Canadian officials since 1955, indicates that through 1996 the long-
term population of Northern Pintails is down 43 percent and Scaups are
down by 36 percent. The American Black Duck population also has
experienced a significant long-term decline. For the first time in
history, the Canada Goose hunting season in the Atlantic Flyway has
been closed since the 1995-1996 season because of a steep decline in
their breeding population. The breeding survey for these geese revealed
a decline from 180,000 nesting pairs in 1988 to 29,000 pairs in 1995
(when the season was closed). Overhunting was identified as a major
factor in that decline. Given these population declines and the
increasing threat of habitat destruction throughout the ranges of
migratory waterfowl, taking measures that would increase baiting and
bird kills is especially risky.
For all of these reasons, changing strict liability for hunters who
use bait is not the solution to a problem faced by a small number of
innocent hunters. For decades, Defenders of Wildlife has defended the
Migratory Bird Treaty Act because it is one of the most important laws
protecting wildlife in the United States. The migratory bird treaties
with Canada, Mexico, Great Britain, Japan, and Russia recognize that
migratory birds are a valuable, multi-national resource that must be
protected across borders from numerous threats. Any change to the
Migratory Bird Treaty Act should be carefully examined and judged as to
whether migratory birds will continue to be protected and managed
sustainably. Liberalizing baiting restrictions will likely increase the
number of hunters who use bait, which will considerably complicate
management of this important resource and put bird populations at risk.
__________
Statement of Brent Manning, Director, Illinois Department of Natural
Resources, on behalf of the International Association of Fish and
Wildlife Agencies
Good Morning, Mr. Chairman. I am Brent Manning, Director of the
Illinois Department of Natural Resources, and chairman of the IAFWA ad
hoc Committee on Baiting. Thank you for the invitation to testify today
on behalf of the Association on this important issue regarding the
regulation of hunting of migratory game birds. The Association supports
the change in the standard for baiting violations from strict liability
to one of ``knows or reasonably should know'' as reflected in H.R.
2863, plus the addition of liability for those who place or assist in
the placement of bait so as to create a ``baited area.'' We believe
this change will bring needed consistency to law enforcement, while
continuing to protect the migratory bird resource.
The Association, founded in 1902, is a quasi-governmental
organization of public agencies charged with the protection and
management of North America's fish and wildlife resources. The
Association's governmental members include the fish and wildlife
agencies of all 50 states, the Commonwealth of Puerto Rico, and 8
Canadian provinces and 2 territories. The Association has been a key
organization in promoting sound resource management and strengthening
Federal, state, and private cooperation in protecting and managing fish
and wildlife and their habitats in the public interest.
The International Association of Fish and Wildlife Agencies, since
its founding in 1902, has been a strong and consistent supporter of
migratory bird conservation. No organization has been more dedicated to
the protection, restoration and sustainable use of the waterfowl
resource than this Association. As you are aware, the State fish and
wildlife agencies are public trustees of fish and wildlife resources
within their borders and have statutory authority and responsibility
for conserving these resources for the use and enjoyment of present and
future generations of the people of the States. State jurisdiction for
migratory birds is concurrent with the U.S. Fish and Wildlife Service
(FWS). The conservation of migratory birds is thus of vital interest to
our Association and the citizens of this country who enjoy these
resources.
In most States through a cooperative agreement between the FWS and
the State fish and wildlife agencies, State conservation officers
enforce Federal conservation laws and regulations. State conservation
officers often supplement a Federal law enforcement staff of only one
or two officers per state. Thus, State conservation officers are
frequently more familiar with local agricultural practices, bird
populations and landowners. It seems important to us that the baiting
regulation language be of such clarity and certainty that State and
Federal law enforcement officers apply it with a significant amount of
consistency. It is also important that hunters, landowners, outfitters
and guides understand and respect the rules. We believe H.R. 2863
provides that consistency in the liability standard for baiting
violations.
During the early years of our Association, we were instrumental in
calling for and contributing to the drafting of the Migratory Bird
Treaty with Great Britain on behalf of Canada, which was ratified in
1916. We saw then the need for Federal involvement in the conservation
and regulation of the take of migratory birds. The Migratory Bird
Treaty Act was subsequently signed into law in 1918. This was followed
by the passage of the Duck Stamp Act in 1934 and the Pittman-Robertson
Act in 1937, both of which established funding for the conservation of
these resources, and in which the Association was actively involved.
The Association was primarily responsible for establishment of the four
administrative flyways in 1947 to coordinate information and
recommendations from the States and Canadian provinces to the U.S.
Federal regulatory process, and worked actively to secure passage of
the North American Wetlands Conservation Act of 1989, Farm bills, and
others to facilitate habitat conservation. In short, the Association
has a long history of key involvement in issues regarding the
protection and management of migratory birds.
For the past 2 years, the Association's ad hoc Committee on Baiting
has undertaken an exhaustive review of the migratory bird hunting
regulations that pertain to baiting (50 CFR 20). Waterfowl biologists,
wetlands managers, wildlife enthusiasts, agency directors, law
enforcement officers and hunters provided the IAFWA with input and
advice. The recommendations we have submitted to the FWS as they
promulgate a rule change on this issue protect the migratory game bird
resource, clarify the intent of the regulations and promote the
management of natural wetlands communities for the benefit of migratory
birds and other wildlife.
The one issue that the FWS has declined to address in its proposed
rule is that of strict liability, which is the subject of H.R. 2863,
and this hearing today. The Association supports the replacement of the
strict liability standard with the standard adopted in 1978 by the U.S.
Court of Appeals for the Fifth Circuit (commonly referred to as the
Delahoussaye decision). The Association's support for this change, and
the other recommendations of the ad hoc Committee on Baiting, were
recently endorsed by our membership on September 14, 1998, in Savannah,
GA.
Under the strict liability standard, individuals unknowingly
hunting waterfowl or doves a mile from bait--and without any knowledge
of the presence of that bait--have been cited. We consider this
unreasonable, unnecessary and unacceptable. It has been incorrectly
suggested that U.S. courts have universally embraced the standard of
strict liability. The Sixth Circuit in 1984 characterized the standard
in the following way:
``We concede that it is a harsh rule and trust that prosecution
will take place in the exercise of sound discretion only.'' United
States v. Catlett, 747 F.2d 1102, 1105 (6th Cir. 1984).
Furthermore, in the 1978 Delahoussaye case, the U.S. Court of
Appeals for the Fifth Circuit rejected the strict liability
interpretation. Instead, the Court required at a minimum that the
presence of bait could reasonably have been ascertained by the
conscientious hunter. The Court went on to say:
``Any other interpretation would simply render criminal conviction
an unavoidable occasional consequence of duck hunting and deny the
sport to those such as, say, judges who might find such a consequence
unacceptable.'' United States v. Delahoussaye, 573 F.2d 910, 912-913
(5th Cir. 1978).
The Fifth Circuit does not follow the strict liability standard to
this day.
Our Association's recommendation is consistent with the Fifth
Circuit's decision. Liability should require that a hunter knows or
reasonably should know that an area being hunted is baited. Our
proposal is essentially identical to H.R. 2863. This bill does not mean
that hunters will have a ``free pass'' to hunt over a baited field.
Quite the contrary. Hunters would be responsible for taking reasonable
efforts to ensure they are not attempting to take migratory game birds
by the aid of bait or baiting. Indeed, as the court in Delahoussaye
stated, a hunter can reasonably be asked to take the precaution of
clearing the area before he or she hunts. Hunters should ask the guide,
manager or landowner about the presence of bait, inspect the hunting
area personally and assess the behavior of the hunted birds. Under the
proposed standard of liability, the hunter will be judged, not just on
whether he or she knew the area was baited, but also on whether he or
she should have known the area was a baited area.
I have heard it said that this bill will require state and Federal
agents to prove hunter knowledge and intent. Allow me to set the record
straight. This bill would not require an officer to prove the hunter's
intent. Nor will this bill require knowledge on the hunter's part. It
merely requires that the hunter should reasonably have known the area
was baited.
I have also been told that all a hunter would have to do to avoid a
citation is to claim not to have known about the presence of bait. That
is also not accurate. At issue here is whether the hunter should have
known--either by an inspection of the area or by the behavior of the
birds. The issue is not whether the hunter did or did not in fact know.
Some have complained that it will be impossible to obtain
convictions under the Delahoussaye standard. We have seen no data to
support that claim and are not aware of any significant difference in
rates of conviction or pleas of guilty between states currently under
the Delahoussaye standard and those that are not. Let me provide one
example. Fish and Wildlife Service agents are on record stating that
migratory bird baiting cases have dropped precipitously in Louisiana
during the last decade. The agents attribute the decline to better
state/Federal cooperation, negative publicity about the extent of
baiting and tougher penalties handed down by Federal judges and
magistrates. I would like to remind the committee that this ``crack
down'' on illegal baiting and other related activities took place under
the ``knew or should have known'' Delahoussaye standard of liability as
proposed by this bill.
It has also been alleged that any standard other than strict
liability will measurably and seriously harm the migratory bird
resource. There is no basis for that concern. Allow me to provide one
example why. The Fish and Wildlife Service's current approach to
regulating the impact of harvest on ducks is known as Adaptive Harvest
Management or AHM for short. AHM takes into account variations in
harvest rates caused by fluctuations in hunting pressure, habitat, bird
populations, season length and bag limit. This system makes annual
adjustments for these factors. No waterfowl expert with whom we've
consulted believes the adoption of the Delahoussaye standard will
result in a measurable increase in harvest. But even if it did--and
again there is absolutely no evidence to support that prediction--AHM
would compensate by prescribing shorter seasons or reduced bag limits
or both.
Opponents of this bill have claimed that the proposed minimum form
of scienter would apply to all other ``takings'' of migratory game
birds. Examples such as a mining company using cyanide leach, a farmer
using harmful pesticides and a refinery spilling oil have been offered.
This bill eliminates the strict form of liability in baiting cases and
replaces it with a minimum form of scienter in such cases--not in all
other forms of ``takings.'' Any suggestion to the contrary is
incorrect.
In 1990, a Law Enforcement Advisory Committee created by the Fish
and Wildlife Service found that enforcement of the ``baiting''
regulations was ``confusing'' and ``too complex,'' and recommended that
an effort be made to clarify and simplify the existing regulations.
Earlier this year the Service inaugurated a rulemaking proposal to
``clarify and simplify'' the baiting regulations ``in response to
public concern about interpretation and clarity of the regulations''
(63 Fed. Reg. 14415, March 25, 1998). The Service noted that it had
received comments from State wildlife management agencies, the general
public, hunters and conservation organizations that the baiting
regulations ``are outdated, unclear, arid difficult for the general
public to interpret and understand.'' Specifically addressing the
strict liability standard, the Service recognizes in its current
rulemaking proposal that ``application of the standard to baiting
regulations is of concern to many hunters.'' Nevertheless, the Service
proposes no change in the application to hunters of the strict
liability standard.
I referred above to the Catlett decision where the U.S. Court of
Appeals for the Sixth Circuit characterized strict liability in this
context as a ``harsh rule.'' The court went on to say:
It is for Congress and the Secretary of the Interior to establish
and change the policies here involved.'' 747 F.2d at 1105.
Because the Fish and Wildlife Service declined to take a ``hard
look'' at the application of strict liability to hunters in baiting
cases, Congress should do so.
Our Association also supports the creation of a new violation of
the Migratory Bird Treaty Act as proposed in this bill. We share the
belief that hunting club owners or operators who place or direct the
placement of bait to attract migratory game birds to unknowing hunters
should be subject to prosecution. This unethical and unfair
exploitation of our migratory bird resource, undertaken for personal
gain or profit, should be expressly prohibited.
The International Association of Fish and Wildlife Agencies
appreciates the opportunity to address you today. I offer the
Association's as well as my personal assistance in reaching a goal I
believe we share--common sense regulations that protect the migratory
game bird resource and the future of responsible hunting. Thank you.
__________
Statement of the American Bird Conservancy; Submitted by Gerald W.
Winegrad, Vice President for Policy
Mr. Chairman and Members of the Senate Committee on Environment and
Public Works: American Bird Conservancy submits these comments in
opposition to the passage of H.R. 2863, which would amend the Migratory
Bird Treaty Act (MBTA). The American Bird Conservancy is a national
non-profit organization dedicated to the conservation of birds. Through
our 73 member organizations on our Policy Council, we work
collaboratively to enhance avian populations in the United States and
throughout the Western Hemisphere. Our members include the
Environmental Defense Fund, World Wildlife Fund, Center for Marine
Conservation, Peregrine Fund, and the Cornell Ornithological
Laboratory. Members who have written and/or testified before the
committee in opposition to H.R. 2863 include the National Audubon
Society, National Wildlife Federation, Defenders of Wildlife, and the
Humane Society of the United States. In addition, the Izaak Walton
League, U.S. Fish and Wildlife Service, Federal Wildlife Officer's
Association, PEER, and the Secretary of Maryland's Department of
Natural Resources have written in opposition to this legislation.
H.R. 2863 is mix--labeled as the ``Migratory Bird Treaty Reform
Act'' and would severely hinder the enforcement of anti-baiting laws
and the conservation of migratory birds. We in the conservation
community view the MBTA as the nation's most important law ever enacted
for the protection of migratory birds. Originally passed by Congress in
1918, the Act was designed to implement the Migratory Bird Treaty of
1916 between Canada and the United States. The Treaty and the MBTA were
enacted to end the indiscriminate slaughter of migratory birds that was
occurring. The Treaty has since been extended to Mexico, Canada,
Russia, and Japan. The MBTA established a strict liability standard in
1918 that has been essential in the conservation of migratory birds,
both game and non-game species. This strict liability standard has been
used over the last 80 years to successfully prosecute the illegal
killing of migratory birds by oil spills, pesticides, toxic waste
pools, and deliberate poisonings. Since 1935, the MBTA and its strict
liability standard have been used to protect migratory game birds from
illegal hunting using bait. We urge the committee not to eliminate this
standard and require ``scienter'' in all illegal baiting cases. We
believe that such a change will undermine the MBTA and the protection
of migratory birds. The U.S. Fish and Wildlife Service has proposed
rule changes at 50 CFR Part 20 dated March 25,1998 relating to baiting
and agricultural practices designed to address hunters' concerns. The
comment period ends on October 1, 1998. We urge the committee to allow
this rulemaking to proceed and to avoid action to reverse the strict
liability standard and the 65 years of law enforcement and case law
under its provisions.
Violations of the Migratory Bird Treaty Act constitute criminal
offenses and include application of a ``strict liability'' standard.
Because of this, since 1916 the MBTA has provided significant
protection to migratory birds. Under strict liability, the fact that a
person acted in a way so as to cause a prohibited result is sufficient
basis to impose liability. Thus, in the prosecution of a strict
liability crime, the government need not prove ``scienter'' (that the
accused knew that he or she was violating the law) or even that the
accused should have known he or she was violating the law. Federal
courts, with one exception, have repeatedly upheld application of the
strict liability doctrine. For example, The MBTA and its strict
liability provision were successfully used to prosecute Eklof Marine,
the offenders in the 828,000 gallon oil spill in that occurred in
January, 1996 in Rhode Island's Block Island Sound. Under the strict
liability standard of the MBTA, a $3 million penalty was assessed by a
Federal District Court earlier this year against the offending company
for killing migratory birds. Eliminating the strict liability standard
in baiting cases may prevent such applications of the MBTA if changes
as directed by H.R. 2863 are made Congressionally or judicially.
Discussing strict liability as applied to baiting cases, the courts
have long recognized the standard's importance in protecting migratory
birds. In U.S. v. Schultz, 28 F. Supp. 234 (W.D. Kentucky 1939), the
court stated: ``The beneficial purpose of the treaty and the act would
be largely nullified if it was necessary on the part of the government
to prove the existence of scienter on the part of defendants accused of
violating the provisions of the act.'' In Holdridge v. United States,
282 F.2d 302 (8th Cir. 1960), the court stated that strict liability
was utilized to ``enact the broad policy of protecting an important
natural resource, migratory game birds.'' In U.S. v. Miller,
unpublished (D. Ariz. 1982), the court stated: ``The importance of the
goal of preserving certain migratory birds in our environment, the
difficulty the government would have in enforcing its laws if it were
required to prove scienter . . . and the contemplated leniency of the
sentence need all be considered.'' In written testimony to the U.S.
Congress in 1984, Judge Frederic Smalkin, District of Maryland, wrote:
``In addition to being a shield for the innocent, such a requirement
[to prove scienter] could be a windfall for the guilty, in view of the
difficulty of proving scienter beyond a reasonable doubt. . . . The
requirement of proving scienter would effectively curtail enforcement
of the prohibition of baiting.''
These cases clearly indicate the absolute need and fairness of
application of the strict liability standard. Again, the doctrine of
strict liability applies equally to hunters and to industrial concerns,
agricultural concerns, oil transporters, and traders in eagle claws and
feathers. The strict liability standard has been important in the
prevention of the illegal killing of migratory birds not only by
hunters but by these other entities. The U.S. Fish and Wildlife Service
sites these examples of changes that industries have made to comply
with the strict liability standard: the chemical industry has made
changes in the manufacture and use of pesticides that are toxic and
deadly to migratory birds; the electric power industry has taken steps
to prevent electrocution and power line strikes to migratory birds; the
agriculture community modifies farming practices to prevent the
accidental loss of migratory birds due to pesticide poisonings; the
petroleum and mining industries have implemented measures to prevent
contamination to migratory birds at petroleum pits, open oil pits, and
cyanide leach operations; the commercial aquaculture industry modifies
its operations to reduce bird mortality; and developers monitor
construction sites to avoid destruction to migratory birds, their
habitat, nests, and young. The vast majority of hunters also
scrupulously avoid shooting waterfowl over bait and want to know if a
shooting area is ``dirty'' to avoid citations under the strict
liability standard. The committee should not act to change this
important piece of the Migratory Bird Treaty Act. The strict liability
doctrine has long been recognized in Federal courts throughout the
Nation as a reasonable and necessary element in protecting the Nation's
valuable migratory bird resource.
H.R. 2863 would drastically change the law regarding baiting of
migratory waterfowl that has been in effect since 1935. By requiring
``scienter'' or knowledge in every baiting case, a strict liability
statute would be modified to ease enforcement against illegal baiting.
Such a change damages the MBTA and places the nation's waterfowl
resources at risk of over harvest. That is why the Federal Wildlife
Officers Association and State wildlife enforcement agencies vehemently
oppose these proposed changes. Maryland is a major waterfowl hunting
State and is one of the nation's greatest migratory waterfowl wintering
habitats. The Secretary of Maryland's Department of Natural Resources
has sent a strong letter of opposition and the Superintendent of
Maryland's Natural Resources Police has written that such a change in
requiring scienter ``. . . .will eliminate our ability to effectively
enforce the baiting laws. . . .''. The Superintendent further states
that such a proposal. . . ``will undoubtedly lead to the collapse of an
already fragile resource.'' Copies of these letters have been provided
to committee staff and I ask that they be made part of the record. U.S.
Fish and Wildlife Field Agents share these concerns, are strongly
opposed to such changes, and have expressed their concerns in writing
to the chairman and committee staff. Simply put, these Federal and
State field officers strongly believe that H.R. 2863 will undermine
their ability to enforce anti-baiting laws that have been in effect
since 1935. What is the pressing need? As noted, proposed regulations
published on March 25, 1998 by the USFWS attempt to resolve some of the
issues surrounding current anti-baiting provisions. While the pending
regulations initially rejected adding the scienter requirement, these
regulations are not finalized. Why not allow the regulatory process to
proceed before acting?
H.R. 2863 is a serious weakening of the MBTA and any such changes
should be enacted only after much study and deliberation. How will
enactment of H.R. 2863 better protect our nation's waterfowl? What
impact will the passage of H.R. 2863 have on waterfowl populations? We
cannot find adequate answers to these questions that would justify the
passage of H.R. 2863. We do know that baiting results in much higher
kill rates and by the mid-1930's baiting was resulting in a substantial
over harvest of birds. Such high kill rates and over harvest led to its
prohibition in 1935. In an article in Illinois Natural History Survey
Bulletin, Volume 23, Article 2, November 1944 by Frank C. Bellrose,
Jr., data analysis indicated that the kill rate was two to three times
as great before the anti-baiting provisions were enacted in 1935. Our
wildlife resources cannot sustain any where near such an increase in
kill rates due to increased baiting that may occur as a result of
passage of H.R. 2863. Please consider that when the initial anti-
baiting provisions were enacted in 1935, there were 635,000 hunters;
today there are 3.1 million hunters of migratory waterfowl.
The Courts have interpreted the current regulations in many cases
and this case law gives clarity to the existing regulations. What is
needed is better education not a weakening of present regulations.
Adding the knowledge requirement would undermine 63 years of anti-
baiting prohibitions and enforcement. We must act to prudently mange
our waterfowl resources, permitting lawful and sustainable hunting, but
not allowing over harvest. Liberalizing anti-baiting regulations could
lead to over harvest, could alter the distribution of migratory
waterfowl, and could alter migratory behavior. Additionally, baiting
brings into question the ``sportsmanship'' of hunting.
Unfortunately, a number of our traditionally hunted migratory
waterfowl are in steep declines. The population of breeding ducks
dropped 8 percent in 1998 over the previous year according to the U.S.
Fish and Wildlife Service's annual breeding duck survey. Breeding
populations of Mallards dropped slightly while other species continued
steep declines. Northern Pintails were down 29 percent over the
previous year, Northern Shovelers down 23 percent, Green-winged Teal
were down 17 percent, and Scaup were down 16 percent. These steep
declines were a continuation of substantial declines documented by U.S.
and Canadian officials since 1955 in populations of certain hunted
waterfowl species. The breeding surveys indicate that through the 1998
counts, the long-term population of Northern Pintails was down 43
percent, Scaups were down by 36 percent, and the American Black Duck
population was down by 28 percent. For the first time in history, the
Canada Goose hunting season in the Atlantic Flyway was closed for the
1995-1996 season because of a steep decline in their breeding
population and remains closed. The breeding survey for these geese
revealed a decline from 180,000 nesting pairs in 1988 to 42,200 pairs
in 1998. The 1998 breeding season was a major disappointment as the
number of breeding pairs was 63,200 in 1997. One of the major reasons
attributable to the decline of Canada Geese precipitating the hunting
closure was the over harvest by hunters. This harvest was exceeding 40
percent of the adult populations of the Atlantic Flyway Canada Goose.
These declines in waterfowl populations buttress the case against any
weakening of anti-baiting regulations and enforcement. H.R. 2863 should
be defeated. Relaxing anti-baiting provisions of the MBTA may lead to a
further decline in these species.
We believe that the MBTA is essential to the conservation of birds
in North America and we would vigorously oppose any weakening in its
implementation and enforcement. H.R. 2863 does not reform the MBTA but
rather guts its anti-baiting provisions by adding the scienter
provision. Additionally, baiting brings into question the
``sportsmanship'' of hunting. We request your support for our migratory
birds and our wildlife enforcement officers in rejecting this
legislation.
__________
Maryland Department of Natural Resources,
February 10, 1997.
Col. V.J. Garrison,
Georgia Department of Natural Resources,
Atlanta, Georgia 30334.
Dear Col. Garrison: The Maryland Natural Resources Police strongly
oppose the proposed revision to the Federal baiting regulation, 50 CFR
20.21 paragraph (i). If this proposal is approved. the new Federal
baiting regulation will undoubtedly lead to the collapse of an already
fragile resource.
The proposed change requiring law enforcement and prosecutors to
prove that ``the person knows or through reasonable care should have
known,'' that bait was present, will eliminate our ability to
effectively enforce the baiting laws for all migratory game birds. This
change will require that an officer actually observe the bait being
placed in the hunting area; which even with the best planned
surveillance operation, is a rare occurrence.
Since the inception of the Federal baiting law in 1935, never has a
person having knowledge been a part of the Federal baiting law, making
it apparent that those who created the law realized that ``strict
liability'' was the real core of the law. Any change In this concept
would certainly promote a ``willful lack of knowledge'' among hunters
and defeat the very purpose of the law. Even the most ethical hunter
would be discouraged from making an effort to determine if an area was
baited, as it would be in his/her best interest not to know.
Another proposed revision to the baiting law relates to the
``alteration of natural vegetation'' and the exclusion of millet as an
agricultural crop. This proposal would allow hunters to bush hog or
otherwise scatter the seeds of natural vegetation and millet, then hunt
over the area. There is no requirement that the feed be removed prior
to hunting the area, only that no alteration of natural vegetation or
naturalized plants occur within 10 days prior to the waterfowl season.
The hunter could literally be standing in feed inches deep, shooting
ducks and geese. The legalization of this practice would unfairly
concentrate birds for the benefit of those who could afford to join
private hunt clubs or otherwise have the ability to practice this type
of activity, thus limiting the opportunities available to the average
hunter. This change would potentially result in overbagging and
generally increase hunter success.
Waterfowl populations are presently at critical levels, and any
liberalization of the current Federal baiting regulations will
adversely impact the future of this resource.
As a conservation law enforcement agency charged with protecting
the natural resources, it is incumbent upon the Maryland Natural
Resources Police and all conservation agencies/organizations to oppose
this legislation.
I urge your support on this issue by voicing your opposition on the
proposed Federal baiting law to Secretary Bruce Babbitt, Department of
the Interior and to your U.S. Senators and Congressmen. By defeating
this proposal we will play a vital part in ensuring that there is a
viable population of all migratory game bird specks to be enjoyed by
future generations. Again, I thank you for your support, and if I may
be of any assistance to you or your organization. please feel free to
contact me.
Sincerely,
Colonel John W. Rhoads,
Superintendent.
______
Maryland Department of Natural Resources,
Annapolis, Maryland 21401, June 25, 1998
The Honorable Paul S. Sarbanes,
Senate Hart Office Building,
Washington, DC 20510.
Dear Senator Sarbanes: I am writing to express Maryland's strong
opposition to H.R. 2863 and S. 1533 which would substantially change
the Federal migratory bird baiting regulations by eliminating the
``strict liability'' requirement from the statute. I have been advised
by our Natural Resources Police and Wildlife and Heritage staff that
this change will have a detrimental impact on Maryland's, and the
nation's migratory bird resources.
The Maryland Department of Natural Resources did not have an
opportunity to present testimony before the Committee on Resources,
Fisheries Conservational and Wildlife and Oceans, in opposition to H.R.
2863. It is my understanding that this bill passed out of committee
favorably and will be heard on the House floor in the very near
fixture. Regarding S. 1533, it is my hope that the Department would toe
provided the opportunity to offer testimony before the appropriate
Senate committee expressing Maryland's opposition.
Thank you in advance for your understanding and assistance in this
important manner.
Sincerely,
John R. Griffin.
__________
Fowl Play in Washington
(By David Helvarg)
For more than 60 years it has been illegal to use bait hunting
waterfowl, a once widespread practice that decimated whole populations
of birds and continues to result in more than 800 violations per year.
Even so, the U.S. Fish and Wildlife Service (USFWS) is planning to
loosen its birdbaiting regulations and Congress is pushing a bill to
reform the the Migratory Bird Treaty Act and weaken enforcement of the
baiting law.
Last March the USFWS tried to squelch dissent on the issue by
instructing its law enforcement officer not to speak publicly about it.
``We've been told to keep our mouths shut,'' complains one agent who
spoke with ``Sports Afield'' on condition of anonymity, and we know
more about this baiting business than anyone alive.''
Waterfowl lured to seed and other baits will fly directly into
discharging shotguns in their rush to feed. So why is the Government
permitting baiting ever years of efforts by resource agencies, wetlands
activists and conservation-minded hunters to restore in America's
migratory bird populations? The answer may reflect the political juice
of certain interested parties rather than any real need for reform.
The internal Fish and Wildlife memo gagging its agents noted the
``very difficult time'' Congressman Don Young (R-AK) and Senator John
Breaux (D-LA) were giving agency director Jamie Clark. Among those
who've been caught hunting on bait are former Kentucky Governor Julian
Carroll, Florida sheriffs, Virginia judges, and a political adviser to
Senator Phil Gramm (R-TX).
Many Washington politicians and lobbyists like to get in a quick
hunt at elusive duck clubs and private reserves on the Eastern Shore of
Maryland, including several that have been cited for baiting.
The latest wave of regulatory reform can be traced to two specific
law enforcement actions during the anti-Federal hysteria of 1994 and
1995. The first took place when Fish and Wildlife agents on ariel
patrol spotted an Illinois hunt club illegally using millet to attract
ducks and called in local game wardens. Club member Randy Vogel tried
to get the citation fixed through his friend, state Department of
Natural Resources director Brent Manning. When that didn't work, he and
other hunters fought the case in court and lost. Vogel then founded the
Sportsman's Defense Fund to oppose ``overzealous law enforcement''
while Manning, through the International Association of Fish and
Wildlife Agencies, began pressing for regulatory changes in Federal
baiting laws.
One year later a dozen agents in Dixie County, Florida busted the
heavily baited Predators Dove Hunt, a charity shoot for the Florida
Sheriffs' Youth Ranches that featured a silo's worth of cracked corn,
millet and wheat. During the raid agents scored more then 500 bird
carcasses, which included non-game birds and out more than 80 citations
to sheriffs and state politicians, among others.
These raids led to a Congressional hearing with House Resources
Committee chairman Don Young, joined by Representative Helen Chenoweth
(R-ID), focusing on what Young called ``the heavy hand'' of the Feds.
The baiting raid was even labeled a ``little Ruby Ridge,'' a reference
to the FBI shootout with Idaho white separatist Randy Weaver that left
Weaver's wife and son dead--although the only shooting victims in
Florida appeared to be doves and bluejays. The anti-baiting regulation,
Young declared, ``is a bad law. It has to be changed.''
Under the law, anyone found hunting on bait will be cited and
fined, regardless of whether or not they say they knew it was there.
Young's proposal would require agents to prove hunters knew or should
have known. they were shooting on bait.
If they enact Young's language it will destroy baiting regulations
that have been there since 1935, ``cause it's near impossible to prove
what's in someone's mind,'' says Dave Hall, a recently retired agent
from Louisiana. ``And we'd have to stake out every site to catch them
in the act, and there are only about 200 agents for the whole nation.''
``If there is a bucket of corn sitting in a field or a legitimate
baiting problem, the guilty hunter will be successfully prosecuted,''
Young insists.
The Fish and Wildlife Service's proposed baiting rule changes
(originally in Young's bill the agency agreed to adopt them) would
legalize the cutting of millet and other ``manipulation'' of plants.
Pointing out that the loss of wetlands is the major threat facing
migrating and nesting waterfowl, head of USFWS's Management Program
Paul Schmidt says the new rules will inspire private landowners to
establish new wetlands and plant them with a variety of feed to benefit
the birds. Asked whether such feeding stations won't threaten bird
populations by making them easy targets for lazy hunters, Schmidt says,
``We protect populations by the way we set seasons and bag limits.''
``If everyone who hunted killed their bag limit, good grief,
there'd be no ducks left,'' counters one agent. ``The people pushing
this issue are the big duck clubs. Suppose everyday duck hunters like
me and my son want to go to our local marsh. All the ducks will be
headed over to the club where they're . planting and manipulating
millet for their $300-a-day clients. But if you get taken to a blind,
and treated like a king, and have 40 or 50 mallards lined up in front
of you, where's the fair chase?''
The USFWS has extended its comment period for proposed baiting,
regulation changes to October 1, at which point agency officials will
tabulate the results and announce their next action. In the meantime,
if the bill to reform the MBTA is not passed early this fall, its
proponents will be required to start from scratch during the next
congressional session in January 1999.
__________
September 29, 1998.
Honorable John H. Chafee, Chairman,
Committee on Environment and Public Works,
Dirksen Senate Office Building,
Washington, DC 20510-6175.
Dear Senator Chafee: During this morning's hearing in the
referenced matter, the witness for the International Association of
Fish and Wildlife Agencies, Mr. Brent Manning, who is also Director of
the Illinois Department of Natural Resources, pointed out that the Fish
and Wildlife Service could not amend the strict liability rule for
hunting over a baited field on the basis of its current rulemaking
proposal of March 28, 1998. The basis for Mr. Manning's observation is
set forth in the following.
The proposed rule of the Fish and Wildlife Service dated March 17,
1998, proposes to clarify existing regulations with respect to current
migratory bird habitat conservation practices (i.e., moist soil
management), and public comment was invited on specific changes in
regulatory language to that end. 63 Fed. Reg. 14415 (March 28, 1998).
In its rulemaking, the Service expressly declares: ``At this time, no
changes are proposed in the application of strict liability to the
migratory game bird baiting regulations.'' 63 Fed. Reg. at 14416.
Not only does the preamble state that no changes to strict
liability are proposed in the March 1998 rulemaking, the Service in its
preamble to the proposed rule sets forth several policy reasons why
such a change would in its view be unwise. While the International
Association certainly does not agree with these views, the point is
that the Service's proposal foreshadows maintenance of strict
liability, not a change in strict liability.
The notice and comment provisions of the Administrative Procedure
Act require that notice include either the terms or substance of the
proposed rule. 5 U.S.C. Sec. 553(b)(3). While a proposed rule need not
be identical to the final rule, if the final rule deviates sharply from
the proposal, the question for a court would be whether the final rule
is a ``logical outgrowth'' of the rulemaking proceeding. American
Federation of Labor v. Donovan, 757 F.2d 33O, 338 (D.C. Cir. 1985
(opinion of Starr, J.). If the final rule deviates sharply, affected
parties will be deprived of notice and an opportunity to respond to the
proposal. Small Refiner Lead Phase-Down Task Force v. EPA, 705 F.2d
506, 546-550 (D. C. Cir. 1983) (opinion of Wald, J.). A ``180'' would
likely be considered a ``sharp'' deviation.
Should the Service desire to change the strict liability standard
for hunting over a baited field, a new rulemaking proceeding would be
necessary.
Sincerely,
Paul A. Lenzini, Legal Counsel,
International Association of Fish and Wildlife Agencies.
__________
North American Wildlife Enforcement Officers Association,
Lovettsville, VA 20180-8505, September 28, 1998.
Senator John Chafee,
Committee on Environment and Public Works,
U.S. Senate,
Washington, DC 20510-6175.
Dear Senator Chafee: My name is Bruce Lemmert and I am offering
testimony regarding H.R. 2863, the Migratory Bird Treaty Reform Act of
1998. My testimony is on behalf of the over 7000 officers of the North
American Wildlife Enforcement Officers Association (NAWEOA).
On June 19, 1998, NAWEOA officially took a position in opposition
to any change in the strict liability doctrine as it exists with
respect to the migratory bird hunting laws. NAWEOA feels that much of
the illegal baiting of migratory game birds would be unenforceable of
existence of scienter were required.
I respectfully ask that this aspect of the migratory bird hunting
laws be left as is for the continued protection of our wildlife
resources. This law has worked to the benefit of migratory game birds
and to the benefit of sportsman and wildlife watchers, for many years
and we believe that it would be counter-productive to change a proven
law.
If we can be of assistance to you or if you need any type of
clarification from us, please do not hesitate in contacting me.
Sincerely,
Bruce A. Lemmer,
Executive Member, Region 6 NAWEOA.
__________
National Audubon Society,
September 28, 1998.
Dear Senator: On behalf of the National Audubon Society, I'm
writing to urge your opposition to S. 1533, the ``Migratory Bird Treaty
Reform Act.''
The National Audubon Society has nearly one million members and
supporters in the Americas, and it is dedicated to the preservation and
protection of birds, other wildlife and their habitat. Throughout our
history, we have worked diligently to establish a strong and effective
legal foundation for the management of wildlife. These efforts have
included encouraging the Congress to enact the Migratory Bird Treaty
Act, and working for decades to protect this important statute from
attempts to weaken its provisions.
There are a number of reasons why S. 1533 should not be enacted at
this time. First, we believe any legislation to amend the Migratory
Bird Treaty Act should be passed by the Congress only after long and
careful scrutiny. The proponents of this legislation have failed to
make a compelling case that there is a crisis that needs addressing It
is in the public interest to protect migratory birds, not just for
hunters, but for all Americans. We have always set a very high standard
of protection of migratory birds by using a strict liability test and,
with one exception, the courts have upheld this standard. Any change
from this standard should take place only after a compelling case has
been made. We do not believe such a case has been made for S. 1533.
Second, the U.S. Fish and Wildlife Service is currently engaged in
a rulemaking on baiting regulations to address legitimate concerns that
have been raised by the hunting community. Until that rulemaking is
completed, it would be premature to pass this legislation.
Third, the law enforcement personnel charged with protecting
migratory waterfowl and enforcing Federal wildlife statutes feel this
bill is ill-advised and will seriously complicate their job of battling
illegal hunting. It is essential that we not ignore the views of these
law enforcement officials and make potentially sweeping changes in the
law based on a few isolated cases.
Finally, I think it is important that we thoroughly understand how
this legislation will impact our conservation and management of
migratory bird species. At the present time, the Fish and Wildlife
Service is unable to tell us what impact this bill would have on
wildlife populations, where and when. These are important questions
that should be carefully addressed before any legislation is moved.
__________
Defenders of Wildlife,
September 25, 1998.
U.S. Senate,
Washington, DC 20510.
Dear Senator: Defenders of Wildlife, a national conservation
organization with over 250,000 members and supporters, requests your
assistance in opposing H.R. 2863, which was passed out of the House
Resources Committee in April 1998. This bill would alter the Migratory
Bird Treaty Act (MBTA) by severely undermining enforcement against
hunting birds over bait. Defenders of Wildlife is not an anti-hunting
organization, but we oppose this bill because, if passed, it would
likely have a negative effect on bird populations and it would
virtually preclude enforcement against hunters who use unfair,
unsportsmanlike baiting practices.
For more than half a century, Federal courts have interpreted the
MBTA as imposing strict liability for misdemeanor violations, including
hunting birds over bait. H.R. 2863 would change the standard of proof
regarding baiting from strict liability to the scienter standard (that
the hunter ``knew or should have known'' about the bait). Such a change
would make it exceedingly difficult to prosecute violations, overturn
62 years of Federal judicial case law, and increase the civil liability
of investigating of ricers. As U.S. Magistrate Judge Frederic N.
Smalkin, District of Maryland, wrote in a statement to Congress in
1984, ``. . . in addition to being a shield for the innocent, such a
requirement could be a windfall for the guilty, in view of the
difficulty of proving scienter beyond a reasonable doubt . . . it would
appear to me from my practical perspective that the requirement of
proving scienter would effectively curtail enforcement of the
prohibition of baiting.'' U.S. Fish and Wildlife Service enforcement
agents agree that this change imposes an almost impossible burden of
proof.
H.R. 2863 with its ``knew or should have known'' standard of proof
is opposed by numerous conservation organizations, including the
National Wildlife Federation, the Izaak Walton League, the National
Audubon Society, and the Humane Society of the United States. In
addition, the Federal Wildlife Officers Association opposes the bill.
The Secretary of Maryland's Department of Natural Resources opposes the
legislation, and has sent a letter on the matter to the entire Maryland
Congressional Delegation.
The U.S. Fish and Wildlife Service is opposed to H.R. 2863. The
Service recently has given considerable attention to this matter, and
they have drafted regulation changes on baiting. Proposed regulations
are open for public comments until October 1. The proposed regulations
contain changes and clarifications about what activities constitute
baiting, but the Service purposefully left the strict liability
standard intact. Therefore, rot only would passage of H.R. 2863
undermine the Service which has carefully studied this issue, but it
would significantly interfere with the rulemaking process on baiting
that is already underway.
Changing the standard for baiting does not make sense because it
would help to protect hunters who bait birds and would put wildlife
enforcement of ricers at greater risk. Hunting over bait is
unsportsmanlike. Birds can be so attracted to bait and focused on the
abundant food resources that they do not perceive danger from nearby
hunters. Protecting hunters who easily kill birds that are virtually
drunk from food is particularly inappropriate because the same change
would put enforcement agents at much higher risk of being accused of
civil damages. Indeed, issuing a citation without probable cause to
believe that the arrested had knowledge of the presence of the bait
could easily lead to civil damages action. Moreover, changing to a
``knew or should have known'' requirement would increase the amount of
time that of ricers spend developing a case against a hunter, and
informants would have to be revealed during testimony in court, in
order to prove knowledge. All of these factors--informants less willing
to come forward publicly, increased time required to build a case, and
increased civil liability for officers--would severely negatively
affect enforcement agents and decrease the number of cases brought
against hunters who violate the law.
The MBTA has been protecting migratory birds since its passage in
1918. Integral to its success has been the courts' interpretation of
strict liability for misdemeanor violations. H.R. 2863 may have serious
implications for the future viability of the MBTA as a means of
protecting migratory birds. Defenders of Wildlife is quite concerned
that the resultant lack of enforcement against baiting would
significantly decrease the U.S. Fish and Wildlife Service's ability to
protect bird populations so that they are managed sustainably. Rather
than protecting unsportsmanlike hunters, we urge you to join us in
protecting bird populations and the MBTA by opposing H.R. 2863. Thank
you for your time.
Sincerely,
Laura C. Hood,
Director, Science Department.
__________
The Baiting Game
(By Ted Williams)
vocal hunters are seeking to relax the ban on using bait to lure birds
to the kill
I have just come in from baiting mourning doves. Every fourth day
since I started researching this article, I have sown a bucket of
cracked corn on the grass between our barn and the locust trees. Now,
as I write, doves are swirling out of a copper sky--''coming down the
chimney,'' to use the old bait hunter's cliche. Doves are drab only at
a distance. From 10 feet away I can distinguish shades of violet, pink,
cinnamon, and iridescent purple. Bills are splashed with azure, wings
and cheeks spotted as if held respectively by sooty fingers and a sooty
thumb. There are white halos around obsidian eyes, white trim on long,
tapered tails. I am struck by how closely this species is related to
the passenger pigeon, its lost cousin, ushered into oblivion largely by
unregulated hunting.
I am not shooting these doves, but neither am I doing them any
favors. I have hooked them on junk food--the avian equivalent of French
fries and Hostess Twinkies. They don't need it, but they can't resist
it. Wilton, my 60-pound Brittany, barks and slavers at the window, and
still the doves bob and strut and stuff their crops. I have converted
these normally wary birds into the sort of idiot fowl that mill around
your feet when you eat a sandwich in Central Park.
Ducks and doves will pitch into bait even when poachers are
standing up and blasting away with shotguns. They become zombies,
floating into the barrage with flaps down and landing gear extended.
That's why hunting over bait was outlawed in 1935, under provisions of
the Migratory Bird Treaty Act, which was enacted to save birds ``from
indiscriminate slaughter.'' In Illinois--the birthplace of the baiting
tradition in the United States--a 1941 study demonstrated that annual
waterfowl kills dropped from about 1 million birds with bait to about
175,000 without.
The Migratory Bird Treaty Act (MBTA), facilitated by a 1916
convention with Canada, makes it illegal to kill migratory birds except
during hunting seasons established for a relatively few species by the
Secretary of the Interior. Today the MBTA, amended to reflect similar
agreements with Mexico, Japan, and the former Soviet Union, is this
country's and the world's basic bird-protection law. But it and the
birds it was written for are being jeopardized by hunters who would
like to kill more game with less effort and who, therefore, seek to
relax the regulation that prohibits baiting. Migratory-bird populations
are already badly stressed by baiting, by far the most common of all
MBTA violations. If baiting were legalized, increased kills would
drastically reduce game bird populations.
A lot of the pressure is coming from the directors of the state
game and fish departments, who are frequently pro baiting. Organized as
the International Association of Fish and Wildlife Agencies, they are
urging the U.S. Fish and Wildlife Service to make a legitimate excuse
out of ignorance, a condition claimed by virtually every baiter
apprehended during the past 62 years. Under the association's proposed
amendment to the regulation, law enforcement personnel would be
assigned the nearly impossible task of proving that a violator ``knows
or through the exercise of reasonable diligence should have known''
that the area was baited. ``Having to prove intent would basically mean
our work is over, says a Fish and Wildlife Service agent, who asked
that I not use his name, since he has been ordered not to speak to the
press about the controversy.
The antibaiting regulation is under attack in Congress, too. On
February 12, 1997, House Resources chairman Don Young (R-AK) introduced
H.R. 741, the Migratory Bird Treaty Reform Act. The bill weakens the
treaty in a number of ways, most seriously by codifying the request of
the International Association of Fish and Wildlife Agencies to prove
intent. ``Neither the treaty nor the Federal statute calls for intent,
and I don't see how you can make regulation that does,'' declares
another agent, who also asked for anonymity. ``If they pass a law for
intent, I think it's a violation of the treaty. In any case, it would
be absolutely devastating to migratory birds.''
Special Agent John Mendoza of the Fish and Wildlife Service agrees,
pointing out that baiting virtually assures that hunters will get their
bag limit, and a bag limit for every hunter every time out means a
dangerous overkill. ``There is nothing sporting about baiting,'' he
wrote in an April 22, 1996, memo to his Agency's director. ``Hunting
over or with the aid of any form of bait. . . is illegal, unethical. .
. . The anti baiting regulation does not need to be changed. Rather,
people's greedy attitudes need to be called for what they are.''
But calling things for what they are has never been the forte of
the Fish and Wildlife Service. Mendoza was responding to a March 22,
1996, notice in The Federal Register, soliciting comments on his
agency's plan to reassess the antibaiting regulation as it applies to
growing and cutting food plants for ducks and geese in low, soggy
places--moist-soil management,'' to use the agency's biobabble. The
plan was inspired by disgruntled hunters, none more vocal than busted
baiters. And the same complaints had prompted the service to invite the
International Association of Fish and Wildlife Agencies to tell it how
to improve the moist-soil rules.
Somehow the project got our of control. Before the association knew
what had happened, people on both sides of the issue were shouting at
it. To disperse the heat, it formed the Ad Hoc Committee on Baiting,
which picked up the ball and, like Forrest Gump, ran down the field and
off the field, hatching recommendations--bad, dangerous ones--on new
and different issues. So the Fish and Wildlife Service now finds itself
in a duck press. If it follows the Ad Hoc Committee's advice,
migratory--game bird resources will be jeopardized. If it ignores the
committee, it will be accused of trampling states' rights and maybe
sued. Moreover, there is an Elmer Fudd figure cavorting around the
nation's capital in the form of Don Young, whose duck-hunting strategy
frightens even the Ad Hoc Committee. If Young succeeds in changing the
regulation by law, no part of it can be relaxed or strengthened in
response to real-world events except by a further act of Congress. And
that could take more time than migratory birds have.
Since 1935 the antibaiting regulation has been amended 18 times. It
has been tweaked, tuned, and tested not just by the Fish and Wildlife
Service but also by the courts. A new statute or even a rewrite would
destroy an enormous body of case law, paralyzing MBTA enforcement.
Finally, baiting is now a ``petty offense,'' carrying a maximum fine of
only $5,000. Add the element of intent, and the rationale for such
leniency takes wing. The only fair and logical tradeoff would be to
make baiting at least a misdemeanor, in which case the maximum fine
would be $100,000. But here's the rub: with misdemeanors, agents
wouldn't be able to hand out tickets, which give the baiter the option
of just mailing in the fine. They would have to seek criminal charges,
which, they say, would create a paper blockage the Justice Department
couldn't begin to cut through.
As an avid hunter of migratory birds, as well as an advocate for
them, I naturally fear getting cited for inadvertently violating the
Migratory Bird Treaty Act. And even if ignorance were an excuse,
claiming it would be almost as embarrassing. So I was distressed to
read about the victimization of clueless Floridians who had gathered in
Dixie County on October 13, 1995, to enjoy each other's company, shoot
a few doves, and especially, raise money for the Florida Sheriff's
Youth Ranches. According to these public spirited folks, a dozen
``overzealous'' Federal wildlife officers in ``inappropriate and
provocative dress'' (camouflage and boots) crashed the party, issuing
88 baiting citations and collecting $38,850 in fines. A headline in the
Florida Times-Union referred to the operation as ``Little Ruby Ridge''
(after the place in Idaho where FBI agents apprehended white separatist
Randall C. Weaver and managed to kill his wife and son in the process)
No one, save the officers, reported seeing any bait. State Senator
Charles Williams, who had sponsored the event, explained that the
Federal agents had ``tarnished'' the reputation of ``innocent people.''
In a letter to U.S. Representative Don Young, Alachua County
sheriff Stephen M. Oelrich described the high profile of fellow fund-
raisers ``descended upon'' by the Feds: ``local ranchers, utility
managers, state officials, and local elected county office holders. . .
. Four Florida sheriffs were on the field that day, along with the
Regional Director of the State Game and Fish Commission, Clerks of
County Courts, and several people of leadership positions in their
communities, all sharing in their embarrassment at this treatment from
Federal officers.''
An outraged U.S. Representative Cliff Stearns (R-FL) prevailed on
the House Resources Committee to hold a hearing. This colorful affair,
conducted on May 15, 1996, featured lengthy and plaintive testimony by
the baiters and a thorough roasting of the agents by committee chairman
Don Young and Congressman (as she insists on being called) Helen
Chenoweth (R-ID). Chenoweth implied that the agents had faked evidence
and declared that ``federal agencies are trampling over the rights of
humans.''
Young, the baiters, and George Reiger, conservation editor for
Field and Stream magazine, told the committee that if the agents had
really cared about wildlife, they would have stopped the hunt before it
began. Particularly memorable was the exchange between Sheriff Oelrich
and staunch MBTA defender Representative George Miller (D-CA). When
Miller inquired if the sheriff's department made a general practice of
stopping crimes before they begin, Oelrich allowed that it did.
Miller: It you know someone is going to buy drugs on the street
corner, you go to the purchaser and say, ``Do not do that, because that
is illegal? . . . Is it policy, that, to prevent crime from taking
place, you interrupt crimes in progress?''
Oelrich: ``Yes.''
Miller: `` . . . So you do not watch people buy drugs and then
arrest the purchaser and the seller? Your department does not do these
things?''
Oelrich: ``Oh, yes, we do that as well.''
The antibaiting regulation, proclaimed Young, ``is a bad law; it
has to be changed.'' A ``handicapped'' person who ``cannot see'' the
bait could get cited, he observed. ``That is why we are going to change
the law.'' When Bob Streeter, the Fish and Wildlife Service's assistant
director for refuges and wildlife, opined that for safety reasons the
blind should not hunt, the Congressman accused him of being ``against
the handicapped.''
Gradually, from my collection of documents and interviews, a less
heartrending account of what really happened at ``Little Ruby Ridge''
emerged. A dozen officers had proved too few, because when they showed
up most of the suspects ran from the field. ``It was pandemonium,''
recalls Special Agent Joe Oliveros. ``People were running around
honking horns and yelling, ``Get out, the game wardens are here.''
There was heavy drinking before and during the hunt. Bag limits were
being exceeded everywhere, and protected nongame birds were dropping
from the sky along with the doves. From Fish and Wildlife Service
photos it appears that the participants had been wading through a silo
full of cracked corn, kernel corn, millet, wheat, milo, and Bahia seed.
``Show us the bait,'' the hunters kept demanding. According to Fish
and Wildlife Service reports, the agents said, ``Look down, you're
standing in it.'' Or: ``We'll be glad to show you as soon as we finish
writing tickets.'' Not one participant stuck around to see the bait,
but at the hearing they testified that the agents refused to show it to
them. Oliveros calls it one of the most flagrant baiting cases'' he has
worked on in 24 years of enforcing the MBTA and ``a prime example'' of
what bait does to birds. ``Doves, and I mean constant flights, were
pouring into this field with 150 guns being shot,'' he says.
According to Fish and Wildlife Service documents, any guest at
Senator Williams's dove shooting bash who didn't know the field was
baited had to have been as visually impaired as the blind hunters
championed by Don Young. But the antibaiting regulation for waterfowl
is different than for doves. In 1972 the dove-baiting rules were
relaxed to allow hunters to apply bait to a field by planting grain and
then cutting the ripe seed heads. With ducks and geese, which are much
less prolific than doves, hunters can grow all the bait they want, even
flood it. But if they cut or manipulate the plants, they must do so
before the seeds form or make sure there are no seeds on the ground or
water for 10 days before hunting. I have never had the slightest
trouble understanding this, but some of my fellow outdoor writers
approach it as if it were the theory of relativity.
``Baiting laws are ambiguous,'' wrote Garvey Winegar of the
Richmond Times Dispatch in a September 15, 1996, expose of
``overzealous tactics'' by Fish and Wildlife Service agents ''An
acquaintance was charged with baiting when someone far above hunt on a
creek threw corn in the water. The corn eventually floated by my
friend, who was unlucky enough to have a Federal law enforcement
officer walk up just as the kernels floated by.'' But when I contacted
Mr. Winegar for more details about this shocking incident, he couldn't
remember when or where it had occurred. Nor could he remember the name
of his ``friend.'' In fact, he wasn't even sure where he had heard the
tale. ``Probably In a duck blind:' he allowed.
Another ugly episode has been widely publicized by Randy Vogel,
director and founder of the ``Sportsmen's Defense Fund'' which seeks
carefully written ``examples of overzealous law enforcement
activities'' along with money for the legal defense of federally abused
hunters. On September 30, 1994, Federal agents on routine patrol near
Browning, Illinois, noticed that the Long Lake Hunt Club had planted
millet to attract waterfowl. Nothing wrong with that. But some of the
millet appeared to be cut. The Feds took some photos and had a chat
with game wardens of the Illinois Department of Natural Resources
(DNR). When the state wardens made a routine inspection on October 24,
they found the millet fields mown and the hunting area awash with
millet seeds. This might or might not have attracted significantly more
ducks thin if the seeds were still attached to the living plants. But
if hunters were allowed to shoot over cut seed plants, they could keep
adding seeds to the field; and if they were careful, the Fish and
Wildlife Service would never be the wiser. Dove poachers do it all the
time.
So the state wardens and two Federal agents staked out the place,
and when club members went hunting on the season's October 27 opener,
the wardens pinched them for shooting over bait.
One of the members cited was Randy Vogel. According to court
documents, Vogel told the officers that he'd take care of the whole
matter with just one phone call--apparently to his hunting buddy,
Department of Natural Resources director--Brent Manning. After the
officers had left, the captain got a call on his car phone from
Manning's law-enforcement chief, ordering the team to return to the
club and see if this whole thing wasn't just a big misunderstanding. It
was not, reported the captain after the second inspection. Vogel and
his associates were fined, and the Seventh Circuit Court of Appeals
upheld the decision.
But Manning and Vogel did not quit the fight. They spoke out
everywhere about the Feds end their unfair antibaiting regulation.
Manning toured the country, whooping it up for bait regulation
``reform.'' In Memphis he addressed the International Waterfowl
Symposium. In Tulsa, the North American Wildlife Conference. According
to Manning, reported the Chicago Tribune, ``untold numbers [of plant-
cutting waterfowlers] have gotten into legal trouble simply by doing
what they thought was right.'' (The Fish and Wildlife Service says
these have been about 10 such plant cutters prosecuted in the United
States during the past 20 years.) Ducks Unlimited quickly fell in step,
issuing a statement that any manipulation of non-agricultural plant
species should he made legal, whether or not they are bearing seed''
Manning and Vogel offered more testimony against the antibaiting
regulation at the House Resources Committee's May 15, 1996, dog and
pony show. So much noise did Manning make that the International
Association of Fish and Wildlife Agencies selected him as chairman of
its Ad Hoc Committee on baiting. The Fish and Wildlife Service had
requested a review only of moist-soil-plant management for ducks and
geese, but Manning's committee has taken it upon itself to recommend
not only that law-enforcement personnel be assigned mind-reading
responsibilities (that is, to determine intent to bait) but that
waterfowl hunts be allowed over all cut ``natural plants,'' and even,
in some circumstances, millet (which has no agricultural purpose other
than as birdseed). Manning says his committee will even look at the
bait regulation as it applies to doves.
``What's to look at with doves?'' asks Dave Hall, who retired from
the Fish and Wildlife Service in 1994 after 34 years with its
enforcement division and who now serves the Ad Hoc Committee as a
technical adviser. ``There's nothing a dove hunter can't legally do
when it comes to cutting or manipulating ripe [food] plants. The only
change they can make for doves is write a law that says you can dump
bait out of a sack.''
To understand the politics of bait fully, it is necessary to place
the current ``reform'' initiative in its proper historical perspective.
Identical initiatives motivated by identical appetites have
consistently been launched since baiting was outlawed in 1935. The most
recent battle occurred in 1988 along the Pacific Flyway, when the Fish
and Wildlife Service reignited passions by suggesting cancellation of
the special baiting permission it had granted to California in
settlement of a suit brought by the state on behalf of its wealthy duck
clubs. When Audubon sent me to the Salton Sea to report on the fracas,
the executive secretary of the state Fish and Game Commission told me
that without ``feeding,'' all the ducks in California would fly to
Mexico for the winter. (That is, they would do what ducks everywhere in
the Northern Hemisphere do each autumn, fly south.) I had to agree.
With the help of legitimate duck hunters and the National Audubon
Society, the Fish and Wildlife Service won. So did the ducks.
Four years earlier, when Don Perkuchin took over as manager of the
Blackwater National Wildlife Refuge, in Maryland, the baiters had the
place surrounded. They were sucking ducks out of the refuge; so
Perkuchin started passing out tickets like a conductor on a rush-hour
commuter train. The baiters, especially the politicians from
Washington, DC, didn't like getting busted. When they told Fish and
Wildlife Service director Frank Dunkle to call off the duck cops, he
meekly obeyed, ordering the Blackwater staff to stay inside the refuge
and literally ``disappearing'' Perkuchin to Okefenokee.
In 1972 Federal agents Fred Williams, Willie Parker, and Dave Hall
were called before Congress to testify about rampant baiting. After
telling the truth--i.e., that the agency was failing in its duty to
protect migratory birds--Parker and Hall were transferred; Williams,
demoted. But Congress and conservationists rallied to their defense.
Eventually, the ducks won.
The baiting war that was going to end all baiting wars got under
way in 1951, when Federal agent Fred Jacobson moved into the Lake Erie
marshes like Eliot Ness into the South Side of Chicago. So undone was
the Ohio Wildlife Council that it convened an emergency session to
legalize baiting (at least under state law). The chairman of Ohio's
Natural Resources Commission promised co fight the ``unconstitutional''
Migratory Bird Treaty Act all the way to the Supreme Court. ``We're not
baiting,'' he explained. ``We're feeding.'' After Jacobson busted a
hunting buddy of U.S. Senator John Bricker (R-OH). Bricker introduced
``reform'' legislation that would have overridden the president's power
to make treaties such as the one that spawned the MBTA. Through it all
the Fish and Wildlife Service stood tall. Finally, director Al Day was
given the choice of calling Jacobson off the baiters or getting fired.
He chose the latter.
Jacobson knew the ducks had won in 1954. When a hunter announced he
couldn't afford to keep his marsh now that he was scared to bait it.
That season the hunter had shot only 263 ducks. ``How many do you
usually kill?'' Jacobson asked.
``Between 300 and 500.''
``How big is your marsh?''
``About three-fourths of an acre.''
Jacobson says he doesn't know who will win the 1997 battle. But
Vernon Ricker, the soon-to-retire agent responsible for the Eastern
Shore of the Chesapeake Bay, doesn't think that it will be the birds.
``I've enforced the MBTA for 28 years,'' he told me. ``And I can
tell you the Fish and Wildlife Service was going to go with the flow.
It will cave in on anything. If it cared about the resource, we would
have people here on the Eastern Shore to enforce the law.'' Maybe
Ricker has a point; under pressure from big-shot baiters, the agency
has reduced the number of agents patrolling the area from 12 to 1.
Always the bastard child of the Fish and Wildlife Service, the
Division of Law Enforcement is constantly nagged to be more
``preventive,'' more ``customer friendly.'' But maybe it's time for the
Fish and Wildlife Service to have a long think about who its customers
really are. They are the 50 million Americans who enjoy watching
migratory birds. And they are the 3 million Americans who enjoy hunting
migratory birds without bait--who take the time to read water, wind,
and law, who can work a circling drake pintail with a call, coaxing him
down out of an icy autumn dawn; who train dogs; who have learned how to
build a blind and position a decoy set; who have always believed that
there can't be any thrill to the chase if there is no chase.
__________
Sitting Ducks: The U.S. Fish & Wildlife Service's Assault On The
Migratory Bird Treaty Act
june 1998
Public Employees for Environmental Responsibility (PEER) is an
association of resource managers, scientists, biologists, law
enforcement officials and other government professionals committed to
upholding the public trust through responsible management of the
nation's environment and natural resources.
PEER advocates sustainable management of public resources, promotes
enforcement of environmental protection laws, and seeks to be a
catalyst for supporting professional integrity and promoting
environmental ethics in government agencies.
PEER provides public employees committed to ecologically
responsible management with a credible voice for expressing their
concerns.
PEER's objectives are to:
1. Organize a strong base of support among employees with local,
state and Federal resource management agencies;
2. Monitor land management and environmental protection agencies;
3. Inform policymakers and the public about substantive issues of
concern to PEER members; and
4. Defend and strengthen the legal rights of public employees who
speak out about issues of environmental management.
PEER recognizes the invaluable role that government employees play
as defenders of the environment and stewards of our natural resources.
PEER supports resource professionals who advocate environmental
protection in a responsible, professional manner.
about this report
This PEER white paper documents the retreat of the U.S. Fish and
Wildlife Service (USFWS) from strong and uncompromised enforcement of
the Migratory Bird Treaty Act (MBTA). According to its own enforcement
personnel, the agency is bowing to intense political pressure to allow
unethical hunting techniques, principally baiting, which will
facilitate detrimental over-harvesting of game birds.
This report was prepared by USFWS law enforcement officers charged
with the difficult duty of enforcing hunting regulations on the
millions of sportsmen who participate in the taking of game birds
during the annual hunting season. These special agents--who
collectively have more than 500 years of wildlife law enforcement--are
forced to remain anonymous not only to avoid repeated threats of
retaliation from politicians and their own agency, but also to let the
facts contained herein speak for themselves.
Information relating to particular cases discussed in this white
paper was obtained through published media coverage and other public
sources.
While critical of baiting, this report is by no means a critique of
the practice of sport hunting. Many of the authors of this report hunt,
but are outraged by what they see as hunting which contradicts the
principles of fair chase and damages the very resources whose survival
makes recreational hunting possible.
On behalf of special agents, PEER has also submitted to USFWS, as
part of the public comment process, a detailed analysis opposing
specific elements of the proposed rule change. A copy of the PEER
comments is available upon request.
For more information about out how the agency's regulatory proposal
would weaken the anti-baiting provisions, consult the Federal Wildlife
Officers Association website at http://www.nauticom.net/www/harts/fwoa/
fwoahome.htm
PEER is proud to serve conscientious public employees who have
dedicated their careers to the faithful execution of the laws that
protect our natural resources.
Jeffrey Ruch,
PEER Executive Director.
______
i. executive summary
At a time when migratory bird populations are stressed by habitat
loss, pollution and hunting, the Department of Interior's Fish and
Wildlife Service (USFWS)--the Federal agency mandated to conserve
America's wild fowl--is proposing changes to liberalize restrictions
against the use of bait to attract waterfowl. According to its own law
enforcement personnel, USFWS has succumbed to mounting political
pressure to loosen the Federal baiting prohibition.
Baiting is the illegal practice of using feed to attract game. It
is a highly effective way to lure birds within a hunter's range of fire
because feeding birds conditions them to return to a specific area time
and time again. In this regard, a baited area is essentially no
different than a bird feeder. Law enforcement officers and ethical
hunters agree that this activity, which has been outlawed since 1935,
violates the tradition and sporting heritage of hunting.
Despite more than six decades of enforcement, baiting remains one
of the most common hunting violations. Baiting usually occurs in
conjunction with other illegal hunting practices, such as exceeding
kill or ``bags limits. Due to the vulnerability of migratory birds to
the lure of bait, large-scale baiting usual Iy results in the slaughter
of hundreds of birds in a short period of time.
Enforcement of anti-baiting laws has significantly reduced the
unsustainable taking of game birds, but other factors continue to place
pressure on bird populations. As habitat continues to decline in both
quality and quantity, migratory birds are forced to concentrate into an
ever-shrinking area, making them easier targets for hunters. For
instance, North America's duck population, which has declined by 60
percent since the 1950's, is being decimated by hunters, many of whom
use bait. The reason is evident--ducks are more scarce and baiting
assures kills. The same is true for other migratory game species,
including geese, swans and doves.
USFWS special agents, empowered to strictly enforce hunting laws,
fear proposed changes that would hinder prosecution of hunters who
shoot birds over bait and, as a result, drastically reduce game bird
populations, undermining the intent of species protection laws. The
officers question the motives of those and particularly their own
agency--in favor of allowing the use of ban' to hunt game birds. Like
most Americans, the agents disagree with any government policy that
promotes the use and abuse of migratory birds in a manner that has been
banned for more than six decades.
Each year, the nation's approximately 200 USFWS law enforcement
officers issue hundreds of citations for violating hunting laws, many
for baiting. Many of these flagrant cases involve prominent individuals
who use bait to ensure kills and often shoot more birds than the law
allows. Despite their efforts, these few Federal agents cannot possibly
ensure total compliance among the nation's more than 20 million
hunters. Their job would be made more difficult if the USFWS weakens
existing regulations.
The powerful sportsmen lobby and its state and Federal political
supporters are pressuring the agency to change existing standards.
State game agencies and hunter constituency groups want to relax
baiting regulations that they claim hurt the average hunter. The
proposed changes discriminate in favor of commercial interests--namely
private hunt clubs which cater to wealthy and influential members--who
want to enhance their hunting through baiting. Since birds would no
doubt flock to the clubs' many acres of prime, heavily manipulated
habitat, the common hunter would no longer have an equal chance to
compete for limited waterfowl resources.
Congressional legislation has also been introduced to relax
regulations by making it more difficult to punish hunting violators who
fail to understand baiting laws. Most offenders are indeed victims of
ignorance. They failed to learn the cardinal rule of Federal game
laws--the hunter is always responsible when it comes to hunting over
baited areas. If passed into law, the bill would, among other things,
shift the burden of proof from hunters to law enforcement, making it
more difficult to prosecute violators; eliminate the incentive to
comply with regulations; and put migratory birds at greater risk.
In light of these issues, USFWS agents are baffled by their
agency's recent, inexplicable turnaround on the issue. In May 1997,
USFWS Assistant Director Robert Streeter testified before Congress
against proposals to loosen MBTA provisions, arguing that such measures
would ``liberalize bird baiting laws and result in more birds being
killed as a result of baiting'' and possibly ``result in overharvest
of. . . waterfowl.
On the issue of hunter equity, Streeter warned that
``liberalization. . . could promote and encourage an inequity whereby
those with the greatest financial motivation and resources, such as. .
. hunting clubs and commercial hunting operations, would benefit the
most at the expense of the wildlife resource and the common hunter.''
In terms of the impact on the sport of hunting, Streeter said the
loosening of regulations amounted ``to the elimination of the
traditional 'fair chase' hunting standard'', providing ``the anti-
hunting segment of society a new platform to pursue for closure of all
hunting activities.''
Now, just one year later, there seems to be widespread complicity
and cooperation on the part of the USFWS to deregulate antibaiting
regulations.
Given the agency's new position, it is not surprising that in
January, 1998 a USFWS employee was caught illegally hunting swan at a
Virginia farm that had been the scene of repeated illegal baiting
activity. The violator, Mr. Ronald Kokel--a wildlife biologist with the
Office of Migratory Bird Management--was deeply involved in formulating
the agency's proposed rule change regarding baiting.
In the opinion of USFWS special agents, both the agency's proposed
regulatory changes and pending legislation endorse politics at the
expense of conservation, riddling the regulations with loopholes that
will render them unenforceable. By eliminating proven deterrents,
baiting relaxation would increase enforcement costs at the expense of
the too few officers in the field. The net effect would be a drastic
reduction in game bird populations.
ii. world of baiting
As post-industrial values continue to gain ascendancy in rural
areas of the United States, increasing amounts of criticism of the
poacher and his fading culture are sure to follow. This criticism
eventually will find its way into the vocabularies and motives of the
game wardens who have acted as a cultural buffer between poachers
caught between the norms of society and survival and the encroaching
modern world.--Craig Forsyth, The Game of Poaching.
The Migratory Bird Treat Act (MBTA) has been the principal statute
protecting migratory birds in the United States for 80 years. Enacted
to save birds ``from indiscriminate slaughter,'' the law makes it
illegal To hunt, take, capture, kill, attempt to take, capture or kill,
possess, offer for sales more than 800 avian species. The MBTA does,
however, permit hunting of migratory birds such as ducks, geese, swans,
doves and others, subject to Federal regulations. The ``taking'' of
game birds for sport occurs yearly during fall and winter hunting
seasons.
Perhaps the most important of the MBTA regulations, in terms of
preventing dramatic population declines, are those governing baiting.
Baiting is the practice of illegally using grain, seed or other
substances to attract birds to a hunt. This practice has been outlawed
since 1935. And for good reason--ducks, doves and many other migratory
birds are notoriously easy to attract to bait.
This inherent vulnerability means that once exposed to sufficient
quantities of salt, rice, grain, or other substances, the birds lose
their natural wariness and return repeatedly to the food, whether or
not they are being shot at by hunters. The need to prohibit hunting
over bait was demonstrated quite clearly in a well-known study
conducted in the early 1940's which found that kill levels dropped from
1 million birds to 175,000 when bait was eliminated.
Law of the Land
Current rules regarding baiting are based on time-honored, court-
tested principles which are straightforward and simple to understand.
Federal regulations (CFR 50, Part 20) specify that No person shall take
migratory game birds by the aid of baiting or on or over any baited
area. Baiting is defined as The placing, exposing, depositing,
distributing, or scattering of shelled, shucked, or unshucked corn,
wheat or other grain, or salt or other feed so as to constitute for
such birds a lure, attraction or enticement to, on, or over any areas
where hunters are attempting to take them. In other words, baiting
occurs when food is spread or placed in the open or in water in order
to lure migratory game birds, usually ducks or doves.
It follows then that a baited area is any area where the food is
placed and where shunters are attempting to take--shoot, possess,
kill--the targeted birds. The present regulations further state that
the area where bait is spread is considered off-limits to hunting for a
set period following complete removal of the bait. All grain or feed
must be completely gone from the area for 10 days before the area can
be legally hunted. The 1O-Day Rule is essential because the birds
habitually return to the same spot for several days after their food
supply no longer exists. Some hunters refer to birds exposed to bait as
``drugged or Daffy ducks,'' so blinded by the quest for food that these
wild creatures ignore instinct by acting almost tame.
All of the crimes under the MBTA are classified as misdemeanors or
petty offenses, carrying a maximum $5,000 fine. There is a possibility
of jail time and loss of license for repeat offenders.
Legal practices
There is a difference between an illegally baited field and one
which has legally been prepared with seeds for a legitimate purpose,
such as farming or wildlife management. Both may contain food for
birds, the difference basically being how and why it is there.
Federal regulations recognize that agricultural lands afford good
migratory bird hunting. Birds are predictable and prefer farm land
where crops have been harvested, providing them with their preferred
food source--seeds. It is perfectly legal, for instance, to hunt
waterfowl over areas where normal crop planting and harvesting have
occurred. Likewise, it is permissible to hunt doves over an area where
scattered grain is present solely due to a ``bona fide'' agricultural
operation or where standing crops have been manipulated--cut, mowed,
dragged down, bush-hogged, dished or burned--for wildlife management
purposes.
Planting crops or creating habitat which attracts game is
permissible; indeed, wildlife agencies will actually help. But
spreading the seed to attract the birds is forbidden. The general
theory is that planting the crops has a long-term benefit for wildlife
because the scattered seed is there before and after the hunting. That
type of planting is thought to benefit wildlife other than the game
birds.
The mistake too many landowners make is instead of preparing their
crops earlier in the year for hunting season, they wait until a few
days before the season starts to top-sow wheat, for instance. The only
purpose for spreading seeds around generally at that time of year is to
guarantee bird kills.
Legal Agricultural Hunting Areas
Standing crops: fields of unharvested commercial crops
such as wheat, corn, sorghum or mile.
Flooded crops: crops that are grown, led standing and
flooded.
Aquatic plants: plants which live and grow in water.
Flooded harvested crops: flooded crops where grain is
present solely as a result of a normal harvest.
Shocked grain crops: stacking stalks of grain upright on
the same field where they were grown.
Normally planted crops: planting must be done in a way
where normal methods are used to produce a crop (does not include top-
seeding or the placement of grain in piles or other large
concentrations).
Harvested crops: normal harvest scatters grain over a
wide area, rarely in long rows or piles.
Too Close for Comfort
Many hunters wonder, ``how close can I be to bait without breaking
the law?'' There is no set distance. Court rulings on baiting
violations state that the distance between the hunter and the bait
varies. The influence of bait can extend or shrink on the basis of many
factors, including the topography or landscape of the area, the
weather, and bird flight patterns. The question of distance is decided
on a case-by-case basis. Regardless, agents estimate that the number of
truly unaware hunters cited for illegal baiting represents an
infinitesimal number of cases.
In those rare situations, the hunter could probably have avoided
trouble by taking preventative steps to avoid hunting in a baited area:
Ask before hunting. It is the hunter's responsibility to
talk to the host or property owner to find out what was done to the
field and when. Some landowners may try to manipulate the rules by
placing food out continuously through the summer, stopping 2 weeks
before hunting season. Regardless, anyone who hunts over an illegally
prepared field is subject to the baiting law.
Look before hunting. Simply asking his it legally and
then hunting is not enough. Neither is a cursory examination of the
first few yards in front of a shooting vantage. Hunters must make a
vigorous visual inspection of the field. This involves arriving early
enough to walk the field, preferably in a zig-zag pattern from one end
to the other, looking for signs of baiting. Grain for legitimate crops
are always evenly distributed, not clumped or broadcast. Piles or rows
of grain and seed recently turned under the topsoil are not part of
normal planting or harvesting or the result of a bona fide agricultural
practice.
Use logic before hunting. A hunter should consider why
birds would be attracted to the area. If the field recently has been
plowed and is nothing but rows of mud, something obviously is wrong.
Birds are not attracted to bare dirt or tall green plants. They seek
seeds and grains. If there is any doubt that a field the hunter plans
to hunt may be illegal, it is not worth the risk to hunt.
Strict Liability
Federal wildlife officers live by a simple credo--the regulations
regarding baiting are clear and the law will be enforced. The hunter is
ultimately responsible for his actions and should make an effort to
assure his area is bait-free. Tried and tested for more than half a
century in state and Federal courts, baiting laws come under the legal
principle of ``strict liability''--that is, judges do not require the
prosecution to prove the hunter had prior knowledge of baiting. All
they have to prove is the defendant was hunting over bait. So as soon
as he attempts to hunt over a baited field, the hunter has technically
broken the law, and can be prosecuted.
In establishing this precedent, the courts clearly place the
responsibility on the hunter, regardless of who owns the field or who
actually prepared it. Law enforcement officers agree strongly with this
rationale because there is no practical alternative to this approach to
enforcement.
Tricks of the Trade
Before shooting, hunters should look for any signs of seed, grain,
salt or anything else not attached to natural vegetation growing in the
field. If something seems suspicious, hunting is not worth the risk.
Some sure baiting giveaways even ``city slickers'' can notice:
Birds flocking to a field without any crops or plants.
Doves and ducks do not eat dirt. Birds attracted to a seemingly barren
field are a sign the owner probably had bait out and plowed it under a
day or two before the season--an illegal act.
The heavy presence of seeds in the dirt on a field
growing a crop. One baiting trick is to spread grain and seed after the
crop has started to come up. Agents usually spot it quickly. So should
hunters.
Birds flocking to an adjacent field in inordinate
numbers. Shooting birds attracted by bait is against the law--whether
the bait is on the field the hunter is sitting on, or one next to it.
Omitting or relaxing strict liability in any way would cripple the
MBTA regulations and lead to a host of problems. For instance, officers
would have to catch people in the act of baiting to make a solid case.
In order to do this, they would require expensive, high-tech equipment
like helicopters to enforce the regulations. Also, many more agents
would be needed in the field to conduct sting operations and
investigations, particularly since even more of the agents' time would
have to be spent in the office developing cases.
Realistically, if an agent had to keep a field under surveillance
24 hours a day, 365 days a year, and also read a hunter's mind, there
would never be a conviction. Without convictions there is no deterrent,
and the law is rendered meaningless.
Off the Hook
The concept of strict liability is common among environmental
statutes such as oil spill and toxic pollution laws. Not only is strict
liability central to the MBTA, this standard also extends even to non-
hunting violations, providing leverage over individuals, and
particularly industries, to take steps to avoid killing birds.
Replacing strict liability with a ``scienter'' standard--requiring
agents to prove prior knowledge of or intent to violate--would create
so many avenues of ``reasonable doubt'' that convictions would be few
and far between. Examples of potentially valid excuses without strict
liability:
a hunter who shoots a Western Kingbird--``I thought it
was a dove.''
an oil company whose open oil pit kills geese--``We
didn't realize it posed a danger.''
a mining company using cyanide leach--``We never intended
to kill any birds.''
a farmer using harmful pesticides--``I couldn't help that
ducks fed on the field.''
a person who poisons swans--``I only meant to kill
starlings.''
a seller of Indian artifacts--``I had no idea they were
eagle feathers.''
Finally, agents worry that the need to prove the hunter's knowledge
or intent would result not only in more case dismissals but also more
lawsuits against wildlife officers themselves for false arrest. Even
under the current regulations, commercial hunting operators have tried
to sue officers for economic damages resulting from ``closure'' of a
club or the bad publicity surrounding an arrest. Many of the well-
connected hunters would not hesitate to sue agents as a bullying tactic
or for revenge. Even though many of these suits would be defended by
the government on the agent's behalf, the uncertainty and stress
inherent in this type of litigation are not welcomed by overworked law
enforcement officers.
Ducks Not So Unlimited
The most hunted and the most harvested migratory game bird in North
America is the mourning dove, of which 45 million of the estimated 500
million population are killed annually in the United States during
hunting season. Waterfowl is also a highly prized game bird. So much so
that over the last five decades, North America's duck population has
declined by 60 percent.
Migratory birds face many pressures in this country, not the least
of which is habitat loss. The Mississippi Flyway, the area running the
length of the country's mid-section, is suffering the loss of thousands
of acres of habitat annually. Originally, the Mississippi Alluvial
Plain comprised nearly 24 million acres of bottomland forested
wetlands. By 1937, only 11.8 million acres (50 percent) of these
remained. Today, there are less than 5.2 million acres left, roughly 20
percent of the original acreage.
The Mississippi's bottomland hardwood forests are among nation's
most important wetlands, serving as primary winter breeding ground for
many waterfowl, including 85 percent of the 3 million mallards (among
the species hardest hit), nearly all of the 4 million wood ducks, and
countless other migratory birds. Since the 1950's, these forested
wetlands have been converted for crop production, drained for Federal
flood control and navigation projects and cleared for other development
at an accelerated rate. An estimated 2 percent of remaining bottomland
forests are lost annually.
Each year hundreds of miles of coastal marshes also disappear,
primarily due to erosion.Without the constant infusion of fresh water
from rivers, the marshes subside, and are virtually defenseless against
the Gulf of Mexico's ever-pressing saltwater. Indeed, the freshwater
marshes that once lay before the Gulf, teeming with healthy and
abundant fisheries, have largely vanished. In their place are vast
expanses of brackish and salt water.
Baiting's Impact on Wildlife
As habitat continues to decline in both quantity and quality, the
dwindling waterfowl population is forced to concentrate into an ever-
shrinking area, making the birds easier targets for natural predators
and hunters alike. Even with continental duck populations dropping
faster than habitat is being destroyed, the USFWS, along with many
sportsmen and conservation groups continue to ignore the impact of
hunting on the resource. As a result, North America's battered ducks
are being decimated by hunters, many of whom hunt over bait.
When asked why he illegally baited, a convicted hunter replied:
``You have to if you want to get ducks these days.'' The reason is
simple: Ducks are more scarce and baiting assures kills. Repeatedly
told by the USFWS and groups like Ducks Unlimited that ``hunting is
compensatory,'' ``hunting has no impact,'' it is little wonder many
conclude that cheating a little to ensure a day's kill is not really a
big deal.
Agents contend and studies confirm that baiting is usually
associated with other hunting violations. According to a survey
conducted during the 1986-90 hunting seasons by wildlife experts at
Mississippi State University, 36 percent of all Mississippi Flyway
waterfowl hunters admitted committing one or more violations. The
southern region of the Flyway--Arkansas, Mississippi, Tennessee and
Louisiana--consistently had the greatest percentage of violators. For
example, Federal law enforcement officers estimate that illegal
waterfowl hunting in Texas and Louisiana exceeds by four times the
annual legal kill.
Most guilty hunters surveyed said they broke laws intentionally,
primarily those concerning baiting and bag limits. The fact that many
hunters engage in unethical practices in the field suggests there is a
continuing need for wildlife law enforcement. Indeed, in all states
surveyed, violators and legal hunters thought increased law enforcement
(particularly undercover operations), mandatory loss of hunting
privileges, large fines and jail terms were the most effective
deterrents to illegal hunting. As the scientists who designed the MSU
survey suggest, ``Unfortunately, there will always be a segment of the
hunter population that must be regulated into lawful behavior.''
If every hunter killed the bag limit every time out, overharvest
would result. So what will it take to wake hunters up to the true cost
of baiting in terms of the resource? Perhaps when the last duck flies
over the marsh. ``If that happens,'' warns one agent, ``I just hope
everyone doesn't rush to get their guns and shoot it.''
iii. poacher's paradise
Nobody left me any buffalo to shoot. Why should I leave anyone any
ducks?--Louisiana hunter
In March 1971, USFWS law enforcement officers stationed in
Louisiana wrote a memorandum to their superiors in Atlanta and
Washington, DC, describing the widespread waterfowl poaching problem.
The memo details a 3-day period during a previous hunting season in
which the officers made random spot checks wherever they observed duck
hunters and concentrations of waterfowl. With the use of a helicopter
they inspected a number of hunting parties and found frequent evidence
of baiting.
According to the memo, the special agents ``filled litters attached
to each pontoon of the helicopter with seized ducks.'' They also filled
the cockpit with ``additional burlap bags of seized waterfowl. The
large number of illegal duck kills forced the helicopter to return to
the airport several times to off-load and dispose of the carcasses.
In a later foray, the officers inspected more than two dozen duck
hunting clubs. As stated in their memo, ``one hundred percent of these
clubs produced evidence of baiting.''
A standing joke in Louisiana is that if you wanted to control a
bird's population, make the bag limit two and close the season. ``We
did wrong, we admit that,'' said Dennis Badeaux, a hunter found guilty
of shooting more than 50 birds over a baited pond in a Louisiana bayou.
``It's just that for so long, killing ducks like we did was the
accepted practice down here. Nobody thought anything about it. We
killed what we wanted to kill. . 200, maybe 300 [birds] a day. No big
deal.''
In some places, men are often judged by the number of birds they
kill. Indeed, for many baiting is more than just a standard hunting
practice--it is a way of life. Other hunting violators are ``weekend
warriors'' from urban areas who are either too lazy or too pressed for
time to sit in a blind all day and risk going home without a duck.
Playing Catch
Every year wildlife officers around the Nation issue thousands of
citations for hunting violations. The lure of using bait to draw
migratory birds into an open field of the hunters' choosing is a
powerful one and has led to many flagrant cases. The following are
typical examples of what agents experience during the annual hunting
season:
Earlier this year in Nebraska, former Minnesota Vikings football
coach Bud Grant and members of his hunting party were caught baiting
migratory birds during the filming of an outdoor television show. More
than 100 pounds of corn were scattered among decoys in order to
guarantee televised shooting action.
In 1996, a former Kentucky Governor, his son, a member of the board
of education, two police officers and a mayor were among 36 prominent
citizens cited for taking part in an illegal dove hunt. The traditional
opening day paid event involved the use of sunflowers and top-sown
wheat to attract birds to the farm.
In 1993, a Washington, DC lobbyist and 20 of his friends and
clients slaughtered nearly 200 ducks in 45 minutes at a Chesapeake Bay
area private hunt club.
At an opening weekend ``charity shoot'' in 1991, law enforcement
officers busted 88 Louisiana hunters, many of them prominent
businessmen, for baiting at a private hunt club. A team of state and
Federal agents closed down the hunt because surveillance photographs
revealed that piles of grain had been illegally placed on several
fields a few days before the hunt and then ``turned under'' the surface
the day before the opener. Many of the hunters had paid as much as $80
each for the chance to take part in the event, billed by club operators
as ``the hottest dove action north of the border.''
In another Louisiana joint state-Federal crackdown, a state game
warden was among more than 50 people pinched for hunting doves over a
heavily baited wheat field. Another 40 hunters were cited for baiting
on the same day in a nearby parish.
In South Carolina, at a time when declining waterfowl populations
forced a shortened hunting season and reduced the bag limit to two
ducks per hunter, nine men were cited for killing 144 wood ducks. The
hunters committed the violations in an area that had been set aside as
a waterfowl sanctuary.
A few years ago in Virginia, two county judges and a retired State
Police Captain were among a group of 50 hunters who bagged hundreds of
doves over a wheat scattered farm field. That same season, 18 county
lawyers, one a former Commonwealth's attorney, were nabbed using a
``borrow pit''--a large, shallow hole filled with gravel, wheat and
water--to kill doves as they descended to the trap. In another case,
two men without valid duck ``stamps'' used 100 pounds of corn and live
bait--two caged, honking Canada geese--to lure ``some meat,'' as they
later referred to the birds. The use of live bait was banned along with
baiting in 1935. The hunters were prepared to shoot the incoming geese
and ducks with outlawed semiautomatic shotguns capable of shooting five
shots without re-loading (instead of the legal maximum of three shots).
In 1990, an Alabama lawyer, his father and two other men were
charged with multiple hunting violations, including baiting. Using mile
to attract hundreds of ducks to a pond, the hunters bagged 52 birds,
including 46 mallards. Aside from taking 27 catches over the limit,
nearly half of the ducks killed were hens, which were scarce that year.
When the hunters noticed the agents, two tried to flee in boats but
were tracked by a helicopter.
A sting operation in Texas netted $250,000 in fines, 1,300
citations and criminal indictments against 200 hunters, their guide
services and several ``four star'' hunt clubs for massive hunting
violations. Over a ton of wheat was used as bait to ensure high ``body
counts.'' Hunters packed into blinds, hid until the birds settled on
the water in large concentrations, and then fired en masse. With so
many targets, there was no need to aim. One professional guide was
charged with encouraging his clients to ignore bag limits and ``just
keep shooting.'' Hundreds of ducks, geese and non-game bird were killed
in what the media later dubbed the ``Texas Waterfowl Massacre.''
Spread Too Thin
A ``reformed'' poacher in Maryland told officials that for 50 years
he baited ``two or three times a day'' without ever getting caught. He
estimated that he killed more than 30,000 ducks during his poaching
career. Taking a look at enforcement numbers in this country, it's not
surprising that hunters can avoid getting caught breaking the law given
the obstacles officers face.
The ratio of hunters to wildlife officers is approximately 9,000 to
1. This means that there are only 7,000 state and Federal officers
covering the entire nation, from Alaska to the Virgin islands, from
Main to Guam, monitoring the activities of 20 million hunters. Year-
round these officers enforce laws during hunting seasons for a variety
of game species ranging from deer and bear to pheasant and quail. In
addition to migratory bird laws, USFWS special agents nationwide are
also charged with enforcing interstate wildlife transportation laws
(the Lacey Act), the Endangered Species Act (ESA), the Airborne Hunting
Act and all other Federal laws regulating wildlife, including fish.
Not surprisingly, these paltry few Federal law enforcement
officers--roughly 200 special agents nationwide--are so underfunded and
under-equipped that they can do little more than sit and watch as
wildlife is gunned down. In Colorado, for example, where nearly two
million hunting licenses are sold each year, there are three Federal
field agents to cover the entire 104,000-square-mile state. Because of
paper work requirements and other competing demands, agents never get
around to enforcing wildlife laws at all in some states. While poachers
take animals year-round, agency funding restrictions keep most agents
deskbound after waterfowl hunting season ends, making enforcement
virtually non-existent for many months at a time.
The minimal Federal presence in some areas is more troublesome
given that Federal law enforcement is comparatively free of certain
political constraints that are a fact of life for state agents. Like
their Federal counterparts, state agents are charged with enforcing
waterfowl laws but their jobs oftentimes are vulnerable, especially
when they nab the wrong person. Political interference often comes with
the territory in some state game agencies, with some states more
political than others. Indeed, a state game warden who pinches someone
who knows a legislator or high official, might put his job in jeopardy,
or at least find life more difficult in the field.
Taking the Bait Out of Crime
Despite the seemingly uphill fight agents face, enforcement can
have an impact. For instance, things have changed dramatically in
Louisiana in the last decade. Migratory birdbaiting cases, along with
other hunting violations, have dropped precipitously in recent years.
Surveys made in the late 1980's show that Louisiana trailed only
California and Texas in the number of hunting citations issued--not bad
considering that a quarter of all waterfowl winter in Louisiana
(ranking the state second only to California in that regard).
There are a variety of contributing factors to the state's sudden
turn around. Nationwide negative publicity in the 1980's surrounding
baiting and other hunting crimes embarrassed Louisiana into finally
taking action. State game wardens then began assisting Federal law
enforcement agents in actively pursuing violators.
Federal judges and magistrates began cracking down with tough
penalties, often handing down jail time along with stiff fines. A
former Louisiana Governor became so paranoid about being caught hunting
over bait that he posted State Police officers on look-out to warn him
if Federal law enforcement officers were spotted in the area.
In Virginia, after waterfowl violations dropped considerably over a
6-year period due to strong enforcement, some citizen members of the
state game commission criticized Federal agents as ``overzealous'' in
performing their duties. ``If hunters are mad, we must be doing our
jobs,'' commented one of the agents.
Statistics show that deterrence is working in Illinois, as well.
Since 1993, as baiting fines have increased and more violators have
lost hunting privileges, the number of citations have dropped
dramatically, especially for baiting.
Thanks in large part to certain and consistent enforcement, hunters
have begun to realize that baiting is a serious offense. And it is no
longer acceptable, in Louisiana, Virginia, Illinois, or anywhere else
in the country. At least for now.
iv. in the line of fire
Always the bastard child of the Fish and Wildlife Service, the
Division of Law Enforcement is constantly nagged to be more
`preventive', more `customer friendly.' But maybe it's time for the
Fish and Wildlife Service to have a long think about who it's customers
really are. They are the 50 million Americans who enjoy watching
migratory birds. And they are the 3 million Americans who enjoy hunting
migratory birds without bait. . . who have always believed that there
can't be any thrill to the chase if there is no chase.--Ted Williams,
The Baiting Game.
USFWS law enforcement officers have a reputation of
incorruptibility in enforcing laws and regulations. This even-
handedness has historically generated controversy when a person of
influence gets caught.
A Gramm of Prevention
In the Fall of 1987, just before opening day of waterfowl season,
two USFWS special agents flying a routine early morning patrol over the
Eastern Shore of the Chesapeake Bay spotted huge piles of bait ringing
a pond below. They immediately suspected that local hunters were
illegally trying to lure ducks into shotgun range.
The area, located near the Blackwater National Wildlife Refuge,
ranks among the country's most desirable locations for waterfowl
hunting. Just a convenient 2-hour drive from the nation's capital,
private hunt clubs abound to entertain rich and powerful clients.
Sometimes, in the zeal to maximize their harvest during a stay, guests
run afoul of game laws, usually by baiting.
The pond that caught the eye of the agents that day happened to be
adjacent to a vacation home owned by U.S. Senator Phil Gramm (R-TX). A
followup inspection revealed clear signs of active baiting, including
several hundred pounds of feed and spent shotgun shells around a duck
blind. But after 4 days of undercover surveillance, no hunters showed
up. Although Gramm denies it, a former Interior Department assistant
secretary submitted sworn testimony to a congressional panel in 1989
that then USFWS Director Frank Dunkle, aware of the ongoing
investigation, tipped off the Senator to avoid an ``embarrassing
situation for a politician Dunkle said was ``useful to Interior.
The investigation soon fell apart amid a political firestorm
generated by Gramm. An internal investigation into the episode found
photographs of the baited duck blinds were mysteriously ``lost'' by the
agency. As a result, the Senator's friends who owned the pond were
exonerated of wrongdoing.
The political fallout incited by Senator Gramm was swift and
severe. After the inquiry, one of the agents was transferred. Gramm
then met with Director Dunkle to complain on behalf of his neighbors--
many of whom were his political contributors--about the local refuge
manager's aggressive crack-down on illegal baiting in the area. Gramm
admitted telling Dunkle ``that people all over the country are up in
arms over this guy.''
After the meeting Dunkle told his deputy director that ``the
management of the [Blackwater] refuge would go better if they had a
change in the head of operations down there.'' When the deputy director
and his regional supervisor disagreed, voicing strong support for the
32-year USFWS veteran, they were demoted. The first order of business
for their successors was to oust the refuge manager.
Other changes followed. Dunkle ordered officers on the Eastern
Shore to practice ``preventative'' law enforcement by notifying owners
when bait was found on their land instead of issuing citations. He also
restricted agents to the Blackwater's boundaries--an order that did not
apply to the nation's more than 500 other refuges. Coincidentally, the
number of special agents patrolling the more than 100 miles of
shoreline has dropped from 12 to 2.
States' Rights and Wrongs
Since their implementation in 1935, the MBTA regulations have been
amended 18 times, the last time 25 years ago, in an effort to make them
as clear as possible to hunters and to the agents charged with
enforcing the law. Based on pressure exerted by a few politically
powerful hunters, a 19th set of amendments is now under consideration.
The reason is simple--hunters clamoring for more game to shoot, and who
want to make the hunting experience easier, have set their sights on
relaxing the regulations that prohibit baiting.
The proponents of regulatory change have found support among some
state game and fish agencies, which have long been in conflict with the
USFWS over baiting laws. Illinois provides a classic illustration of
the states' obstruction of Federal regulations.
In 1933, a report declared Illinois the most heavily baited state
in the nation. To some extent, that tradition continues, although
baiting techniques are no longer as blatant or as easy to detect. The
new, more sophisticated methods used by hunters essentially achieve the
same purpose as dumping seeds from a sack. Today, manipulating crops,
supplementing or adding seeds, and employing dubious farming practices
are the norm, providing a real challenge for wildlife officers.
As if these kinds of cases are not hard enough for Federal agents
to deal with every day, their progress has been impeded by the Illinois
Department of Natural Resources (DNR). In 1993, for instance, the DNR
gave into pressure from hunters complaining about a lack of food for
ducks. Just before the start of hunting season, in an effort to
initiate a ``green up'' to draw birds, the agency conducted aerial
wheat seeding on the water and around blinds.
When USFWS agents informed the DNR that allowing hunting in those
areas would put hunters in jeopardy of violating the anti-baiting
regulations, the state agency reluctantly agreed to postpone hunting
until all seeds were removed from the area. When hunters complained,
the DNR blamed ``the feds'' for imposing the restrictions.
A year later, state wildlife officers requested USFWS assistance in
determining if a waterfowl management area had been improperly planted
with millet and mowed prior to teal season. The special agents
confirmed heavy amounts of seeds on the water around every blind site
and observed ducks in a feeding frenzy, ``like drug addicts on dope.''
Despite DNR Director Brent Manning's concern that closing the area
would upset hunters, the evidence of an impending duck slaughter left
no choice. The DNR issued a press release about the closure that was
highly critical of the Federal agents' ``interpretation'' of the
regulations, sparking media outrage against the USFWS.
No Fear
In September 1997, USFWS law enforcement officers documented
widespread evidence of baiting at hunt clubs in the Suisun Marsh area
of central California, wintering ground for 20 percent of North
America's migratory waterfowl. The agents set up a meeting to alert the
local Resource Management District to potential violations. The
district's executive director angrily denounced the regulations,
telling the agents to ``get your ticket books,'' because his office did
not intend to enforce certain baiting laws for the clubs. He also
threatened the agents, informing them that ``we're going to do
everything we can to get your ass out of our area.'' Following the
incident, the USFWS assistant regional director for law enforcement
informed a California sportsmen group that hunters ``should not fear
prosecution during the 1997-98 season'' for violating the controversial
baiting restrictions.
In 1995, following the Enclosures controversy, Federal law
enforcement officers on an aerial patrol along the Illinois river
spotted possible hunting violations at a hunt club. State officers
alerted to the site confirmed baiting activity--seeds floating among
the duck blinds--and cited the club for illegally cutting and mowing
millet.
One of the club members hunting that day, Randy Vogel, happened to
be a close friend of DNR Director Manning. Vogel told the officers that
he would ``take care of [the problem] with one phone call'' to his
buddy Manning. In response to the call, Manning ordered a second site
visit of the club just to be sure. The officers, accompanied by DNR's
law enforcement chief, inspected the area and again concluded that it
was baited.
Some of the hunters decided to fight the charges in court. After
losing the case [U.S. v. Hogan, 906 F.Supp. 455 (1995)], the hunters
appealed. This time, Manning even had a DNR waterfowl biologist testify
against his own wildlife officers. The court ruled the case, ``duck
soup--misdemeanor convictions, only fines imposed, and a challenge on
appeal only to the sufficiency of the evidence. . . . In short, there
was sufficient evidence in this record to support a conviction, and the
judgment is affirmed'' [U.S. v. Hogan, 89 F.3d 403 (1996)]. In
upholding the fines against the baiters--which ranged from $100 to
$2,100--the court did not overlook the fact that Vogel attempted to
involve Manning, and chastised the DNR director for misusing ``the
power of his position in an attempt to shield a friend.''
A Free Lunch
In January 1997, at a southern Illinois hunt club--with a history
of hunting violations--wildlife officers observed thousands of geese
flying in and out of a baited field, while as many as 50 hunters shot
and killed the birds. Officers advised the club owner that manipulating
corn was illegal and that the area would remain a baited area until 10
days after the corn was removed. No individual hunters were charged and
no geese were seized from any hunters.
In addition to initiating congressional inquiries, the club filed
an injunction the next day to continue the hunt. Neither the wildlife
agencies nor the U.S. Attorney pursued the baiting charges. The hunt
club also filed a lawsuit against one of the DNR officers for $100,000,
citing lost revenue for being prohibited from hunting the baited area
for 2 days. Despite the fact that his agency has been named in the
pending lawsuit, DNR Director Manning recently coordinated and attended
a Republican lunch and geese shoot fundraiser for a gubernatorial
candidate at the same club.
Seeding Discontent
After the case, both men took their fight to the public. Vogel
founded the Sportsmen's Defense Fund and in his newsletter urged people
to contribute stories of ``overzealous law enforcement activities'' in
order ``to convince Congress that some meaningful changes in our fish
and wildlife laws are desperately needed.'' He also began raising money
for the legal defense of federally abused hunters.
Agreeing with his friend that hapless hunters are too often the
victims of unreasonable Federal regulations, Manning launched a a one-
man crusade to stir up opposition to baiting laws. He traveled the
country speaking to state game and fish departments and sportsmen
groups, urging widespread regulatory ``reform'' under the rally cry of
consistency, clarity and common sense.
At about the same time, a number of state game directors asked the
International Association of Fish and Wildlife Agencies (IAFWA) to
press the USFWS for baiting law ``reform.'' At the association's annual
convention, after Manning pledged to spearhead a campaign to change the
regulations, the IAFWA tapped him to serve as chair of the newly
created Ad Hoc Committee on Baiting.
No conservation groups were asked to participate on the Committee,
which is laden with Manning's DNR staffers (9 of 29 members). In
February 1997, the IAFWA faxed the committee's draft baiting
recommendations to all state game directors for comment. Only 15 states
responded, with 6 rejecting either all or key portions of the proposed
changes--not exactly a groundswell of opposition to the current
regulations.
Ducking the Rules
Nevertheless, the IAFWA adopted the Ad Hoc Committee's final
recommendations and submitted them to the USFWS last year. Their
proposal is twofold. One part deals with moist-soil management, with
the association insisting that the manipulation of non-agricultural
vegetation planted specifically to attract waterfowl to a hunt should
not be considered baiting. Under the guise of wildlife management, they
are essentially advocating the use of ``natural, wild plants, instead
of piles of corn or wheat or grain, as bait. Tweaking the regulations
in this way would produce the same results--birds will come in droves
and be shot.
The IAFWA argues that baiting regulations are too confusing or
inconsistently applied, causing innocent hunters to be ensnared. To
address this ``problem,'' they also favor the removal of ``strict
liability,'' the more than half-century old standard by which hunters
can be cited for baiting without any knowledge or intent to do so.
Under the association's amendment to the regulation, law enforcement
officers would face the nearly impossible task of proving that a
violator ``knows or through the exercise of reasonable diligence should
have known'' that the area was baited.
The IAFWA is essentially urging the USFWS to make a legitimate
excuse out of ignorance, as virtually every violator apprehended claims
not to have known about the presence of bait. Powerful Members of
Congress, subscribing to this ``ignorance is bliss'' argument, are
pushing for similar regulatory relaxation on behalf of their
constituents.
Little Ruby Ridge
The first day of hunting season is when most baiting occurs,
serving as a festive occasion for hunters to get reacquainted with one
another and to make plans for later hunting excursions. One reason for
baiting fields on opening day is that no one wants their first party of
the season to flop, especially if it's a pay hunt with the added
pressure to guarantee birds. To avoid this problem, illegal baiting
sometimes takes place.
A high-profile opening day baiting bust in 1995 triggered a new
wave of Congressional attacks on Federal regulations, leading to
intense legislative scrutiny and an attempt to weaken the law. On that
October day, USFWS special agents raided the second annual ``Predators
Dove Hunt''--a charity dove shoot and beer blast--in Dixie County,
Florida. Officers found illegal bait everywhere and saw doves settling
down in the fields despite all the blasting guns. As soon as the agents
arrived to break up the hunt, most of the 150 hunters fled.
Agents seized nearly 500 bird carcasses, many of them non-game
birds. In all, 86 hunters were cited for baiting and bag limit
violations, and later paid nearly $40,000 in fines. One of the agents
called it the most flagrant baiting cases he'd worked in 24 years and a
prime example of what bait does to birds. ``It was a complete war,'' he
said. ``Very effective baiting.''
Present at the Dixie County ``hunt'' that day were four Florida
sheriffs, the regional director of the Florida Game and Fresh Water
Fish Commission, state wildlife officers and a host of local
politicians. These individuals contacted their Congressmen and so began
a concerted effort to dismantle the baiting law.
Upon hearing of the ``heavy hand'' of Federal law enforcement
agents, U.S. Representative Don Young (R-AK) introduced the Migratory
Bird Treaty Reform Act to loosen baiting restrictions. As chairman of
the House Committee on Resources, Young called a hearing and solicited
testimony from angry hunters.
Not surprisingly, the episode was depicted as ``a little Ruby
Ridge'' and the Federal agents involved were lambasted for
``overzealousness'' in enforcing the law. Even Brent Manning and Ron
Vogel flew in to offer testimony on the need to ``fix'' baiting laws.
With Friends Like These . . .
As a result of the staged revolt of state agencies and hunter
constituency groups, and driven more by politics than biology, in March
1996, the USFWS put a notice in The Federal Register soliciting
comments on the agency's plan to reassess the MBTA regulations related
to baiting. The agency invited the IAFWA to tell it how to ``improve''
the rules.
A group of USFWS special agents also took the time to review the
baiting regulations, concluding that changes were not necessary. A
number of them even wrote a scathing memo to their superiors in
Washington charging that any liberalization of the baiting regulations
``has nothing do with protection'' and ``everything to do with the
enhancement of killing opportunities.'' Their protest fell on deaf
ears.
The USFWS caved in to the threat of legislation by promising to
address the baiting ``problem'' through the regulatory process. In May
1997, law enforcement officers were notified by headquarters to accept
``politically certain givens,'' including the fact that ``there will be
a scienter standard applied to baiting.'' The agents were also told
that other changes, relating to the IAFWA's concerns, were forthcoming.
On March 25, 1998 the axe fell. A week after providing the IAFWA
with advance notice, the USFWS published in the Federal Register a
proposed rule change to the current MBTA regulations. The agency's
stated rationale was to provide ``clarity for the public and
consistency and fairness in law enforcement operations.'' In a press
statement, USFWS Director Jamie Rappaport Clark admitted that the
proposal is based on input from state fish and wildlife agencies and
sportsmen groups. But she insisted that ``no adverse effect on
migratory bird populations'' would result.
USFWS law enforcement officers wholeheartedly disagree with the
director. While they support the proposal to ban hunting over topsown
seeds, the agents insist that other proposed changes would weaken
baiting restrictions, causing increased waterfowl mortality. Of
particular concern to law enforcement officers are changes that would
liberalize the regulations to allow hunting over areas that have been
manipulated under the guise of ``moist soil management practices.''
Under the agency's proposed rule change, hunters or commercial hunt
club operators would be permitted to grow, cut and then flood certain
crops with mature seed heads. Allowing the mowing of vegetation with
seed heads present serves no purpose other than to attract waterfowl,
producing a legal loophole for hunters to enhance their ``harvest''
opportunities--in short, to kill more birds. Moist soil management
practices for habitat conservation purposes are already allowed, the
agents contend, and therefore this provision does not need to be
changed.
Although the removal of the strict liability standard is not part
of the USFWS's current proposal, if adopted, the agency's sweeping
regulatory re-write will accomplish much of what Don Young and Brent
Manning intended all along. Vernon Ricker, a retired Federal agent once
responsible for the Eastern Shore of the Chesapeake Bay, is among many
who are not optimistic that the agency will act in the best interest of
the resource:
``I've enforced the MBTA for 28 years and I can tell you the USFWS
is going to go with the flow. It will cave in on anything. If it cared
about the resource, we would have people here in the Eastern Shore to
enforce the law.''
The Young Bill
Baiting restrictions have drawn heat from politicians primarily
because some constituents have complained that they were invited to a
hunt where they were unaware bait was being used. Under the law, a
hunter can be convicted of the crime even if he did not know the field
was baited.
This strict legal interpretation is necessary given that every
person caught hunting over bait naturally claims to have had no idea
the bait was there. Without strict liability, it would be much more
difficult to prosecute violators.
In May 1997, Rep. Don Young introduced legislation to significantly
weakened the MBTA regulations in a number of ways, most seriously by
codifying the IAFWA's intent element. Supporting the measure were a
small, vocal group of hunters, mainly paid professional guides,
commercial hunt clubs and lobbyists for the sport hunting industry.
Young recently struck everything from his bill except the most
threatening aspect, the scienter standard requiring proof beyond a
reasonable doubt that a hunter had prior knowledge of baiting activity.
In speaking to his bill, Young said he had given USFWS the opportunity
to address the strict liability issue in the regulatory process and
they failed to do so. He defended his actions by bringing up the 1995
Dixie, Florida baiting case, saying that ``the present regulations make
people criminals.''
In late April of this year, the House Resources Committee approved
Young's modified baiting ``reform'' bill.
Muffling Dissent
Federal law enforcement officers contend that the proposed
regulatory and legislative changes would, among other things, erase
decades of case law that have aided in the prosecution of hunters who
shoot birds over bait; it would place further burdens on Federal
wildlife officers, at a time when there are already too few of them in
the field enforcing the law; and it would drastically reduce game bird
populations, undermining the very spirit and intent of the wildlife
protection statute.
If enacted, they argue, the new rules would take the sport out of
hunting--fair chase would become nonexistent; high numbers of birds
would be killed in a short period, shot while eating and accustomed to
the presence of humans. ``Slob hunters could lure birds with piles of
food and shoot them at point-blank range,'' noted an agent. ``There
might be more challenge in shooting caged birds in a pet store.''
The freedom to speak their minds honestly and openly is
unfortunately not an option for these public servants. In addition to
repeated threats from Congressmen to ``punish'' agents for discussing
their personal views on baiting, the USFWS has also issued what amounts
to a gag order on its officers.
Special agents have been formally warned not to have any contact
with outside groups on this hot-button issue. A memo, circulated a few
days prior to public notification on the proposed rule change, advised
the agents to, in part:
``Feel free to discuss among yourselves, but don't get caught going
outside the agency. . . Congressman Young and Senator Breaux gave
Director Clark a very difficult time over the fact that some agents
were believed to be lobbying against the draft Migratory Bird
Treaty Reform bill. Young made it clear that he will hold hearings
and agents accountable if they lobby against the bill and get
caught. . . be careful. . . ``[He] means business. . . ''
The agency may insist that this order is meant to protect
employees, but as one agent put it, ``With all the threats and
intimidation, there are those of us who feel a bit like a scared
rabbit, with the hawk circling our head just waiting for us to make the
mistake of sneaking out of the bushes by going public.
The message USFWS agents would like the public to hear in regard to
attempts to liberalize baiting regulations is simple: Protection of the
resource should be the primary objective here instead of increasing
kills. After committing themselves to the pursuit of this cause, day in
and day out in the field, they are understandably disappointed that
their agency is more concerned with its own self-protection than it is
for the protection of migratory game birds.
Some agents maintain a fatalistic attitude about the ultimate
impact of impending changes in the MBTA law. ``Maybe we shouldn't worry
about the baiting regulations,'' suggested an agent. ``When the ducks
end up on the endangered species list, we can finally go back to
protecting them.''