U.S. GOVERNMENT PRINTING OFFICE

42–875 CC WASHINGTON : 1997

MIGRATORY BIRD TREATY REFORM ACT

HEARING

BEFORE THE

SUBCOMMITTEE ON FISHERIES CONSERVATION,

WILDLIFE AND OCEANS

OF THE

COMMITTEE ON RESOURCES

HOUSE OF REPRESENTATIVES

ONE HUNDRED FIFTH CONGRESS

FIRST SESSION

ON

H.R. 741

MAY 15, 1997—WASHINGTON, DC

Serial No. 105–23

Printed for the use of the Committee on Resources

(
(II)

COMMITTEE ON RESOURCES

DON YOUNG, Alaska, Chairman

W.J. (BILLY) TAUZIN, Louisiana

JAMES V. HANSEN, Utah

JIM SAXTON, New Jersey

ELTON GALLEGLY, California

JOHN J. DUNCAN, JR., Tennessee

JOEL HEFLEY, Colorado

JOHN T. DOOLITTLE, California

WAYNE T. GILCHREST, Maryland

KEN CALVERT, California

RICHARD W. POMBO, California

BARBARA CUBIN, Wyoming

HELEN CHENOWETH, Idaho

LINDA SMITH, Washington

GEORGE P. RADANOVICH, California

WALTER B. JONES, JR., North Carolina

WILLIAM M. (MAC) THORNBERRY, Texas

JOHN SHADEGG, Arizona

JOHN E. ENSIGN, Nevada

ROBERT F. SMITH, Oregon

CHRIS CANNON, Utah

KEVIN BRADY, Texas

JOHN PETERSON, Pennsylvania

RICK HILL, Montana

BOB SCHAFFER, Colorado

JIM GIBBONS, Nevada

MICHAEL D. CRAPO, Idaho

GEORGE MILLER, California

EDWARD J. MARKEY, Massachusetts

NICK J. RAHALL II, West Virginia

BRUCE F. VENTO, Minnesota

DALE E. KILDEE, Michigan

PETER A. DEFAZIO, Oregon

ENI F.H. FALEOMAVAEGA, American

Samoa

NEIL ABERCROMBIE, Hawaii

SOLOMON P. ORTIZ, Texas

OWEN B. PICKETT, Virginia

FRANK PALLONE, JR., New Jersey

CALVIN M. DOOLEY, California

CARLOS A. ROMERO-BARCELO ́ , Puerto

Rico

MAURICE D. HINCHEY, New York

ROBERT A. UNDERWOOD, Guam

SAM FARR, California

PATRICK J. KENNEDY, Rhode Island

ADAM SMITH, Washington

WILLIAM D. DELAHUNT, Massachusetts

CHRIS JOHN, Louisiana

DONNA CHRISTIAN-GREEN, Virgin Islands

RON KIND, Wisconsin

LLOYD DOGGETT, Texas

LLOYD A. JONES, Chief of Staff

ELIZABETH MEGGINSON, Chief Counsel

CHRISTINE KENNEDY, Chief Clerk/Administrator

JOHN LAWRENCE, Democratic Staff Director

SUBCOMMITTEE ON FISHERIES CONSERVATION, WILDLIFE AND OCEANS

JIM SAXTON, New Jersey, Chairman

W.J. (BILLY) TAUZIN, Louisiana

WAYNE T. GILCHREST, Maryland

WALTER B. JONES, JR., North Carolina

JOHN PETERSON, Pennsylvania

MICHAEL D. CRAPO, Idaho

NEIL ABERCROMBIE, Hawaii

SOLOMON P. ORTIZ, Texas

FRANK PALLONE, JR., New Jersey

SAM FARR, California

PATRICK J. KENNEDY, Rhode Island

HARRY BURROUGHS, Staff Director

JOHN RAYFIELD, Legislative Staff

CHRISTOPHER STEARNS, Democratic Counsel
(III)

C O N T E N T S

Page

Hearing held May 15, 1997 ..................................................................................... 1

Statement of Members:

Abercrombie, Hon. Neil, a Representative in Congress from the State

of Hawaii ....................................................................................................... 3

Saxton, Hon. Jim, a Representative in Congress from the State of New

Jersey; and Chairman, Subcommittee on Fisheries Conservation, Wildlife and Oceans .............................................................................................. 1

Prepared statement of ............................................................................... 2

Stearns, Hon. Cliff, a Representative in Congress from the State of Florida ................................................................................................................... 8

Prepared statement of ............................................................................... 10

Young, Hon. Don, a Representative in Congress from the State of Alaska,

prepared statement of ................................................................................... 3

Statement of Witnesses:

Boe, William, Gainesville, Florida .................................................................. 42

Prepared statement of ............................................................................... 143

Bonner, Fred, Carolina Adventure, Raleigh, North Carolina ....................... 49

Prepared statement of ............................................................................... 167

Boynton, Stephen S., Henke and Associates .................................................. 31

Prepared statement of ............................................................................... 102

Breaux, Hon. John, a Senator in Congress from the State of Louisiana ..... 11

Prepared statement of ............................................................................... 13

Conner, Charles, Germantown, Tennessee .................................................... 48

Prepared statement of ............................................................................... 164

Horn, William P., Birch, Horton, Bittner and Cherot ................................... 29

Prepared statement of ............................................................................... 99

Johnson, W. Ladd, Board Member, National Waterfowl Federation ........... 41

Prepared statement of ............................................................................... 140

Lamson, Susan, Director of Conservation, Wildlife and Natural Resources

Division, National Rifle Association ............................................................ 39

Prepared statement of ............................................................................... 134

Limmer, Dan, Regional Executive, National Wildlife Federation ................ 36

Prepared statement of ............................................................................... 124

Manning, Brent, Director, Illinois Department of Natural Resources ......... 27

Prepared statement of ............................................................................... 70

Ricker, Vernon, Retired Special Agent, U.S. Fish and Wildlife Service,

Salisbury, Maryland ..................................................................................... 45

Prepared statement of ............................................................................... 154

Rosen, Dr. Rudolph, Executive Director, Safari Club International ............ 35

Prepared statement of ............................................................................... 119

Sparrowe, Rollin, President, Wildlife Management Institute ....................... 38

Prepared statement of ............................................................................... 130

Streeter, Robert, Assistant Director for Refuges and Wildlife, U.S. Fish

and Wildlife Service ...................................................................................... 23

Prepared statement of ............................................................................... 62

Sullivan, Terrance J., Secretary, League of Kentucky Sportsmen, Prospect, Kentucky ............................................................................................... 47

Prepared statement of ............................................................................... 161

Additional material supplied:

Letter from the Subcommittee Staff to Members of the Subcommittee

on Fisheries Conservation, Wildlife and Oceans ........................................ 4

Text of H.R. 741 ................................................................................................ 53
(1)

HUNTING AND WILDLIFE HABITAT UNDER

MBTA

THURSDAY, MAY 15, 1997

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON FISH- ERIES CONSERVATION, WILDLIFE AND OCEANS, COM- MITTEE ON RESOURCES, Washington, DC.

The Subcommittee met, pursuant to call, at 10:30 a.m., Room

1324 Longworth House Office Building, Hon. Jim Saxton (Chairman of the Subcommittee) presiding.

STATEMENT OF HON. JIM SAXTON, A U.S. REPRESENTATIVE

FROM NEW JERSEY; AND CHAIRMAN, SUBCOMMITTEE ON

FISHERIES CONSERVATION, WILDLIFE AND OCEANS

Mr. SAXTON. Good morning. The Subcommittee will come to

order. The subject of today’s hearing is H.R. 741, the Migratory

Bird Treaty Reform Act of 1997. The measure, introduced by the

Full Committee Chairman Don Young, is basically identical to legislation proposed at the end of last Congress.

Due to administrative inaction, inconsistent application of regulations and confusing court decisions, there are those in Congress

who believe that it is time to legislatively change certain provisions

regarding baiting that have penalized many law-abiding citizens.

In 1918, Congress enacted the Migratory Bird Treaty Act, which

implemented the 1916 Convention for the Protection of Migratory

Birds between Great Britain and the United States. Since that

time, there have been similar agreements signed between the

United States, Mexico and the Soviet Union. The Convention and

the Act are designed to protect and manage migratory birds, as

well as regulate the taking of that renewable resource.

In an effort to accomplish these goals, over the years certain restrictions have been imposed by regulation on the taking of migratory birds by hunters. Many of these restrictions were recommended by sportsmen who felt that they were necessary management measures to protect and conserve renewable migratory

bird populations. Those regulations have clearly had a positive impact, and viable migratory bird populations have been maintained

despite the loss of natural habitat because of agricultural, industrial or urban activities.

Since the passage of the MBTA and the development of the regulatory scheme, various legal issues have been raised, and most

have been successfully resolved. However, one restriction that prohibits hunting migratory birds by the aid of baiting or over a baited

area has generated tremendous controversy, and it has not been
2

satisfactorily resolved. Today’s witnesses will enlighten us on the

problems they perceive regarding the issue.

During the past three decades, Congress has addressed various

aspects of the baiting issue. It has also been addressed by the Law

Enforcement Advisory Commission appointed by the Fish and

Wildlife Service. Unfortunately, no positive action has resulted

from these examinations, and the problems still persist. As a consequence, landowners, farmers, wildlife managers, sportsmen and

law enforcement officials are understandably confused.

On May 15, 1996, the House Resources Committee conducted an

oversight hearing to review the problems associated with MBTA

regulations, their enforcement and the appropriate judicial rulings.

It was clear from the testimony at that hearing, as well as previous

hearings, that the time has come for Congress to address these

problems through comprehensive legislation. I look forward to

hearing from our witnesses and their views on this issue.

Mr. Abercrombie.

[Statement of Jim Saxton follows:]

STATEMENT OF THE HONORABLE JIM SAXTON, A REPRESENTATIVE IN CONGRESS FROM

THE STATE OF NEW JERSEY

Good morning. The Subcommittee will come to order. The subject of today’s hearing is H.R. 741, the Migratory Bird Treaty Reform Act of 1997. This measure, introduced by Full Committee Chairman Don Young, is basically identical to legislation

proposed at the end of the previous Congress.

Due to administrative inaction, inconsistent application of regulations, and confusing court decisions, there are those in Congress who believe it is time to legislatively change certain provisions regarding ‘‘baiting’’ that have penalized many law

abiding citizens.

In 1918, 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 that time, there have been similar agreements signed between the United States, Mexico, and the former Soviet Union. The

Convention and the Act are designed to protect and manage migratory birds as well

as regulate the taking of that renewable resource.

In effort to accomplish these goals, over the years certain restrictions have been

imposed by regulation on the taking of migratory birds by hunters. Many of these

restrictions were recommended by sportsmen who felt that they were necessary

management measures to protect and conserve renewable migratory bird populations. Those regulations have clearly had a positive impact, and viable migratory

bird populations have been maintained despite the loss of natural habitat because

of agricultural, industrial and urban activities.

Since the passage of the MBTA and the development of the regulatory scheme,

various legal issues have been raised and most have been successfully resolved.

However, one restriction that prohibits hunting migratory birds ‘‘by the aid of baiting, or on or over any baited area’’ has generated tremendous controversy, and it

has not been satisfactorily resolved. Today’s witnesses will enlighten us on the problems they perceive regarding this issue.

During the past three decades, Congress has addressed various aspects of the

‘‘baiting’’ issue. It has also been addressed by a Law Enforcement Advisory Commission appointed by the Fish and Wildlife Service. Unfortunately, no positive action

has resulted from these examinations and the problems still persist. As a consequence, landowners, farmers, wildlife managers, sportsmen, and law enforcement

officials are understandably confused.

On May 15, 1996, the House Resources Committee conducted an oversight hearing to review the problems associated with the MBTA regulations, their enforcement, and the appropriate judicial rulings. It was clear from the testimony at that

hearing, as well as previous hearings, that it is time for the Congress to address

these problems through comprehensive legislation. I look forward to hearing from

our witnesses about their views on H.R. 741.
3

STATEMENT OF HON. NEIL ABERCROMBIE, A U.S.

REPRESENTATIVE FROM HAWAII

Mr. ABERCROMBIE. Thank you very much, Mr. Chairman. I would

like to read into the record a statement by the ranking member,

Mr. Miller.

One year ago today, the committee held a hearing that provided

an excellent example of why we have such strict regulations

against hunting over bait under the Migratory Bird Treaty Act. At

that hearing, as it did in court, the Fish and Wildlife Service produced compelling evidence demonstrating that in that case people

were caught red handed hunting doves over bait and violating a

number of other wildlife laws, yet they still claimed to be unaware

that the fields they were hunting in were baited. But rather than

have their day in court, as they are legally entitled to, they chose

to complain to Congress and demand a legislative fix.

Mr. Chairman, people whose eyesight is that poor or who are so

unobservant should not be turned loose with guns. I wouldn’t want

to be out in the woods with them. May I add parenthetically Mr.

Miller might not want to be out with the woods with them in any

event. But today we have a second round of hearings on the issue

and I hope it provides a more balanced look at the real issues.

I favor clear regulations which well-intentioned hunters can comply with reasonable effort, but I oppose any effort to establish a

standard of evidence that is impossible for law enforcement agents

to satisfy. The migratory bird populations would suffer in that case

and we would be rewarding the scoff laws.

My concern with Chairman Young’s legislation is that it places

an unreasonable burden of proof on the Fish and Wildlife Service,

effectively vitiating enforcement of baiting regulations in the field.

Moreover, by codifying in law what is now governed through regulation, future changes would require an act of Congress.

I understand that the Fish and Wildlife Service is currently contemplating revisions to the MBTA regulations. I support that process, and I am sure that some revisions are probably long overdue

but legislative preemption of that process is not justified. If innocent hunters are being cited, then perhaps enforcement agents and

their supervisors need to be educated better as to what constitutes

bait and what constitutes a clear violation, but the MBTA has done

a good job in protecting migratory bird populations and this legislation would substantially decrease that protection. The result would

be that both the wildlife resource and the hunters would ultimately

suffer.

Thank you very much, Mr. Chairman.

Mr. SAXTON. Thank you. I ask unanimous consent at this point

that other member’s statements be included in the record at this

point.

[Statement of Hon. Don Young follows:]

STATEMENT OF HON. DON YOUNG, A REPRESENTATIVE IN CONGRESS FROM THE STATE

OF ALASKA

Mr. Chairman, today is the anniversary of an oversight hearing I conducted last

year on our migratory bird ‘‘baiting’’ regulations and an infamous charity dove hunt

in Cross City, Florida.

It has been nearly 80 years since enactment of the Migratory Bird Treaty Act

(MBTA). During that time, there have been many Congressional hearings, a thor-
4

ough review of the regulations by the distinguished Law Enforcement Advisory

Commission, and an Ad Hoc Committee on Baiting, which has just released its final

recommendations. In each case, there has been a recognition that there are serious

problems with our ‘‘baiting’’ regulations and that innocent hunters have been unfairly prosecuted.

While it may not be perfect, H.R. 741 will correct these regulations and ensure

that law-abiding citizens are not trapped, tried, fined, and burdened with a Federal

criminal record for unintentionally violating our baiting regulations.

Before explaining my bill, let me categorically state that I strongly support: the

conservation of migratory bird resources; the hunting philosophy of ‘‘fair chase’’, and

the citing of those individuals who knowingly hunt ‘‘on or over any baited field.’’

The fundamental change in H.R. 741 is the elimination of the ‘‘strict liability doctrine’’ and the establishment of a ‘‘knew or should have known standard.’’

Under current law, if you are hunting over a ‘‘baited field,’’ whether you know it

or not, you are guilty. There is no defense and there is no opportunity to present

evidence in your case. It does not matter whether there was a ton of grain or a few

kernels, whether this feed served as an attraction to migratory birds, or even how

far the ‘‘bait’’ is from the hunting site.

This interpretation—if you were there, you are guilty is fundamentally wrong. It

violates one of our most basic constitutional protections that a person is innocent

until proven guilty. What is interesting is that the strict liability standard applies

only in Federal criminal cases involving hunting migratory birds and the spilling

of toxic waste.

In addition to removing the strict liability standard, my bill allows defendants to

submit evidence in court, including whether the ‘‘bait’’ acted as a lure, and permits

the scattering of grains and seeds, if it is done as a ‘‘normal agricultural operation.’’

H.R. 741 also defines the term ‘‘bait,’’ requires that all fines collected under the

MBTA be deposited in an account to purchase additional habitat, and codifies each

of the other restrictions on the harvesting of a migratory bird except for baiting.

This is not a radical proposal. Nevertheless, I expect that the U.S. Fish and Wildlife Service will strongly oppose this legislation. They will oppose it because currently there is nearly a 100 percent conviction rate in baiting cases, there is no requirement to collect evidence, and there is no need to prove intent or to demonstrate

a defendant’s guilt beyond a reasonable doubt.

In a recent article in the Congressional Quarterly, Mr. Keith Morehouse of the

U.S. Fish and Wildlife Service argues that H.R. 741 would lead to over hunting.

To be frank, that argument is nonsense. My bill does not affect in any way either

bag limits or hunting seasons. Furthermore, if the law enforcement branch of the

Service is so committed to the protection of migratory birds, then why did they allow

more than 440 doves to be killed in the famous Florida dove hunt. On that day in

October 1995, they failed to uphold their fundamental obligation to protect the resource. They did, however, collect over $39,000 in fines.

Today we will also hear from Mr. Vernon Ricker, a recently retired Fish and Wildlife Service agent. Mr. Ricker is quoted as saying, ‘‘I could count on one or two

hands the ones who didn’t know the bait was there.’’

If that is true, then Mr. Ricker should be supporting my bill because we would

be talking about only a handful of innocent people.

Mr. Chairman, it is patently wrong to convict hunters who do not know that a

field is ‘‘baited,’’ for a few kernels of corn in a sunflower field, and for bait that is

over a mile from the hunting site.

It was also wrong for our government to ruin the military career of Mark Cobb,

a University of Florida student who was cited by the Service in the Cross City dove

hunt. Mark paid his $250 fine, after erroneously being told this was a minor infraction—like a speeding ticket—and would not be part of his permanent record. Since

then, Mark has lost his ROTC scholarship and forever has a Federal criminal

record. For what it’s worth, Mark has stated that ‘‘I know what bait is illegal and

saw none where I hunted.’’

I look forward to hearing from our witnesses and would like to warmly welcome

our former distinguished colleague from Louisiana, Senator John Breaux, who is

certainly well versed on the problems caused by our ‘‘baiting’’ regulations.

LETTER FROM THE SUBCOMMITTEE STAFF TO MEMBERS OF THE SUBCOMMITTEE ON

FISHERIES CONSERVATION, WILDLIFE AND OCEANS

MEMORANDUM

H.R. 741, Migratory Bird Treaty Reform Act of 1997
5

On Thursday, May 15, 1997, the Subcommittee on Fisheries Conservation, Wildlife and Oceans will conduct a hearing on H.R. 741, the Migratory Bird Treaty Reform Act of 1997. The hearing will be held at 10 a.m. in room 1324 Longworth

House Office Building. Those invited to testify include: Members of Congress; the

Honorable Bruce Babbitt, Secretary, Department of the Interior; the Honorable

James S. Gilmore III, Attorney General, Commonwealth of Virginia; the Honorable

Julian M. Carroll, former Governor, Commonwealth of Kentucky; Mr. William P.

Horn, Birch, Horton, Bittner and Cherot; Mr. Stephen S. Boynton, General Counsel,

Henke and Associates; the Honorable Ron Marlenee, Director of Legislative Affairs,

Safari Club International; Mr. R. Max Peterson, Executive Vice President, International Association of Fish and Wildlife Agencies; Mr. Dan Limmer, Regional Executive, National Wildlife Federation; Ms. Susan Lamson, Director of Conservation,

Wildlife and Natural Resources Division, National Rifle Association; Mr. W. Ladd

Johnson, National Waterfowl Federation; Mr. Terry Sullivan, Secretary, League of

Kentucky Sportsmen; and public witnesses.

BACKGROUND

In 1916, the United States and Great Britain (for Canada) signed a Convention

for the Protection of Migratory Birds. The fundamental goal of this Convention was

to establish an international framework for the protection and conservation of migratory birds.

In fact, under the Treaty, unless and except as permitted by regulations, it is unlawful at any time to ‘‘pursue, hunt, take, capture, kill, possess, offer for sale, sell,

offer to barter, barter, offer to purchase, purchase, deliver for shipment, ship, export, import . . . any migratory bird, any part, nest, or egg of any such bird . . . included in the terms of the convention between the United States and Great Britain

for the protection of migratory birds.’’ The United States has also signed similar

agreements with Mexico and the former Soviet Union.

What is a migratory bird? Under the Convention, the term ‘‘migratory bird’’

means all wild species of ducks, geese, brants, coots, gallinules, rails, snipes,

woodcocks, crows, and mourning and white-winged doves.

In 1918, the U.S. Congress passed the Migratory Bird Treaty Act (MBTA). This

Act became our domestic law implementing the International Convention and it

committed this nation to the protection and management of migratory birds. In addition, the Act instructed the U.S. Fish and Wildlife Service to develop regulations

on the harvest or ‘‘take’’ of this renewable resource. Both the Convention and the

MBTA were designed to ensure the proper utilization of renewable migratory bird

resources.

U.S. REGULATIONS

In the nearly 80 years since the Congress passed the Migratory Bird Treaty Act,

the U.S. Fish and Wildlife Service has issued numerous Federal regulations on how

and under what circumstances a hunter may take a migratory bird. For instance,

the U.S. Fish and Wildlife Service annually issues regulations establishing the

hunting seasons and bag limits (number an individual may kill) for each migratory

bird species. These regulations are issued only after an extensive biological review

of population levels, reproduction rates, and the amount of available habitat for

these species.

Over the years, the Service has also issued regulations, strongly supported by the

hunting community, restricting the methods an individual may use to harvest a migratory bird. For example, it is illegal to take a migratory bird by:

• the use of a sinkbox or any other type of floating device that places the hunter

beneath the surface of the water;

• the use of a motor vehicle or aircraft;

• the use or aid of live birds or decoys;

• the use or aid of recorded or electronically amplified bird calls or imitations

of those sounds; and

• the use of any shot except steel shot, bismuth-tin shot, or other shot approved

by the Secretary of the Interior that is nontoxic to waterfowl.

There is no controversy over these regulations, and the enforcement of these restrictions has had a beneficial impact on migratory bird populations for many years.

However, there is one regulation dealing with the hunting of migratory birds over

a ‘‘baited field’’ that has sparked tremendous debate—inconsistent enforcement and

conflicting judicial opinions. This has resulted in many cases of unfair prosecution

under the Migratory Bird Treaty Act of 1918.
6

BAITING REGULATION

By way of background, it is interesting to note that Congress has never passed

a law that says ‘‘this is baiting and this practice is illegal’’. It is not illegal to ‘‘bait’’

a field or to feed migratory birds. It is, however, strictly prohibited to hunt in such

an area. While the U.S. Fish and Wildlife Service has modified its baiting regulations 17 times, there have been no changes in the last 24 years. It is fair to say

that virtually no hunter supports the excessive harvest of this resource or the intentional shooting of birds over bait. However, there are a number of troubling aspects

to the baiting regulations and how the courts have interpreted those rules.

For instance, if you are hunting over a ‘‘baited field’’ whether you know it or not,

you are guilty. There is no defense and there is no opportunity to present evidence

in a case. In short, if there is ‘‘bait’’ and the hunter is present, he or she is automatically guilty. It does not matter whether there is a lot or a little bait present, if it

has served as an attraction to migratory birds, or how far the ‘‘bait’’ is from the

hunting venue.

Over the years, there have been several prominent court cases on these regulations. Three of the most famous are:

U.S. v. Lonergran No. Misc. 89/0468 (E.D. Cal. 1989), This case involved the

presence of 13 kernels of corn found in a pond by a law enforcement agent in

a 300-acre cornfield;

U.S. v. Twin Ponds Duck Club, where 34 kernels of corn were found in a wheat

field next to a freshwater river; and

U.S. v. Orme, 851 F. Supp. 708 (D. MD. 1994), where bait was found almost

one mile from the hunting site.

While these are troubling cases, the overriding problem has been the development

of the strict liability doctrine. Under the doctrine—if you were there, you are

guilty—hundreds of innocent hunters have been cited for violating Federal baiting

regulations and now have a Federal criminal record.

To date, only the Fifth Circuit Court has shown any willingness to deviate from

the strict liability standard. In fact, in United States v. Dlahaussaye Case, 573, F.

2d 910, 912 (5th Cir. 1978), the Court found that the U.S. Fish and Wildlife Service

must prove that the hunter ‘‘should have known’’ that bait was present at the hunting site. In this case, the Court stated that:

‘‘We conclude that at a minimum [the bait] must have been so situated that [its]

presence could have been reasonably ascertained by a hunter properly wishing

to check the area of his activity for illegal devices. There is no justice, for example, in convicting one who is barred by a property line from ascertaining that

birds were being pulled over him by bait . . . If the hunter cannot tell which is

the means next door that is pulling birds over him, he cannot justly be penalized. Any other interpretation would simply render criminal conviction unavoidable occasional consequence of duck hunting and deny the sport to those such

as, say, judges who might find such a consequence unacceptable.’’

Under current law, those convicted of shooting over a ‘‘baited field’’ are not normally incarcerated, since this a misdemeanor violation; but they must pay fines of

several hundred dollars and have had firearms and equipment confiscated. In addition, they have a Federal criminal record. What is interesting is that only in Federal

criminal cases involving hunting over a baited field or the spilling of toxic waste

does the strict liability standard apply. The usual criminal standards of justice,

where a defendant’s guilt can only be established after a finding beyond a reasonable doubt, do not apply.

104TH CONGRESS

On May 15, 1996, the House Resources Committee conducted an oversight hearing on Federal baiting regulations and a particular baiting case in Cross City, Florida. In that instance, 88 individuals were cited for shooting over a ‘‘baited’’ 200-acre

field that was being used to host a charity dove hunt to benefit the Florida Sheriffs

Youth Ranches, Inc. These Youth Ranches exist to help young people who are

abused, at risk, or orphans, deal with juvenile delinquency, crime or emotional problems.

One of the individuals cited at the Florida dove hunt was a 20-year-old University

of Florida student who paid the minimum $250 fine despite the fact he was serving

soft drink refreshments to those participating in the hunt at the time he was cited

and was unaware the field might be ‘‘baited.’’ After being incorrectly advised that

this violation was a minor infraction, the student lost his commission in the Army’s

ROTC program.

During the Full Committee oversight hearing on Federal baiting regulations, witnesses provided a number of interesting observations. For instance, a representative
7

of the U.S. Fish and Wildlife Service testified that ‘‘the Service is committed to a

fair and objective review of this potential baiting issue.’’ The director of the Illinois

Department of Natural Resources stated that ‘‘hunters feel trapped by regulations

that bind them so tightly that, regardless of intent, it is nearly impossible to avoid

violating the letter of the law. We need consistency, clarity, and common sense.’’

Furthermore, the Washington Counsel for the Wildlife Legislative Fund of America argues that ‘‘existing regulations regarding the use of bait for take of migratory

birds are too subjective, too obscure, and put thousands of law-abiding hunters at

risk for potential violations.’’

Finally, a private attorney who has been involved in dozens of baiting cases testified that ‘‘the baiting issue has become more exacerbated due, unfortunately, to the

twin prongs of unreasonable administration of the regulations by the U.S. Fish and

Wildlife Service’s Division of Law Enforcement and the unyielding position of the

Federal courts—including U.S. Attorneys—in a joint rush to convict under the doctrine of strict liability in baiting cases.’’

Following this hearing, the Chairman of the Resources Committee, the Honorable

Don Young, introduced H.R. 4077, the Migratory Bird Treaty Reform Act of 1996.

While there was no further action on this issue, the general thrust of this legislation

was that our wildlife protection laws should not unfairly penalize law-abiding citizens.

MIGRATORY BIRD TREATY REFORM ACT

On February 12, 1997, the Chairman of the House Resources Committee, the

Honorable Don Young, the Honorable John Tanner, Co-Chairman of the Congressional Sportsmen’s Caucus, and the Honorable Cliff Stearns (R–FL) introduced H.R.

741. The goals of this legislation are to:

• Incorporate into Federal law the existing regulations, except for hunting over

a ‘‘baited field,’’ that regulate the taking of a migratory bird;

• Allow defendants to submit evidence in court. If the facts demonstrate that a

hunter knew or should have known of the alleged bait, then fines and potential

incarceration will be imposed;

• Allow the scattering of various substances like grains and seeds, which are

normally considered bait, if it is done as a ‘‘normal agricultural operation’’ in

a given area, including the use of these substances to feed farm animals;

• Define the term ‘‘bait’’ as the ‘‘intentional’’ placing of the offending grain, salt,

or other feed;

• Allow the hunter to introduce evidence at trial on whether or not the alleged

‘‘bait’’ actually acted as a lure or attraction for the migratory birds in a given

area; and

• Deposit all fines and penalties collected under the Act in the Migratory Bird

Conservation Fund. This money would be used to buy additional habitat for migratory bird populations.

A fundamental goal of this legislation is to provide guidance to farmers, hunters,

landowners, law enforcement officials and the courts. Without this legislation, hunters will continue to be unfairly cited in the future, individuals will continue to be

denied the opportunity to present evidence in court, the frustration over these regulations will grow, and ultimately fewer people will choose to participate in waterfowl

hunting. This will result in the purchase of fewer duck stamps and, therefore, less

money to acquire essential wetland habitat for migratory birds in the future.

It is interesting to note that our Federal baiting regulations are unusual because

normally a law enforcement agent must prove that there was criminal intent to

break the law. Under the strict liability doctrine, the conviction rate for those individuals cited for violating our baiting regulations is nearly 100 percent. It will,

therefore, not be surprising if the U.S. Fish and Wildlife Service argues that H.R.

741 will make it more difficult to prosecute hunters under these regulations. A fundamental purpose of this hearing is not to examine prosecution rates but to determine whether the strict liability policy is fair to the hunting community and essential to the protection of migratory bird populations.

ISSUES

(1) Doesn’t the U.S. Fish and Wildlife Service each year undertake a population

assessment of each migratory bird species and, based on this scientifically obtained

data, establish specific hunting seasons and bag limits for each of the regional

flyways?

(2) While the issue of hunting ‘‘on or over a baited field’’ has attracted considerable attention, are there other restrictions on the ‘‘taking’’ of a migratory bird that

have sparked controversy?
8

(3) How does a U.S. Fish and Wildlife Service enforcement agent determine that

a particular piece of property is a ‘‘baited field’’?

(4) What is the fundamental priority of the U.S. Fish and Wildlife Service—to protect migratory bird populations or to arrest those shooting over a ‘‘baited field’’?

(5) How many individuals were cited for hunting migratory birds over a ‘‘baited

field’’ in 1995 and 1996?

(6) What was the conviction rate in these cases? What was the percentage of those

cited who simply decided to pay their fines and forego further legal action?

(7) Of those who chose not to initially pay their fines, how many of these individuals were able to present evidence in court and what weight was their evidence

given?

(8) Is not having to prove intent an essential safeguard for the viability of migratory bird populations?

(9) Since most of our criminal statutes are predicated on the notion that there is

a knowing intent to violate a particular law, what is wrong with requiring the U.S.

Fish and Wildlife Service to prove that an individual knew or should have known

they were hunting over a baited field?

(10) How close must grain or other feed be to a hunting site to be considered

‘‘bait’’? For instance, if grain or ‘‘bait’’ is one or two miles from a hunt, can and

should that individual be cited under the Migratory Bird Treaty Act when there is

no definite proof that ‘‘bait’’ lured a bird to the hunting venue?

(11) Is there any determination made whether grain or ‘‘bait’’ acted as a lure or

attraction to migratory birds?

(12) What are considered ‘‘bona fide’’ agricultural practices? Don’t these practices

differ greatly throughout the United States?

(13) How much money in fines was paid in 1995 and 1996 by those individuals

cited for hunting over a ‘‘baited field’’?

(14) Where was this money deposited and how many additional acres of wetland

habitat were purchased from the proceeds of these fines?

(15) Would the goals of the Migratory Bird Treaty Act be promoted by mandating

that all fines paid under the Act be deposited into the Migratory Bird Conservation

Fund?

(16) What is the status of the Task Force that the U.S. Fish and Wildlife Service

and the International Association of Fish and Wildlife Agencies established to address the issue of ‘‘moist soil’’ management?

Mr. SAXTON. And our good friend from Florida, Mr. Stearns, has

arrived, so we will proceed at this point with Mr. Stearns’ testimony. I understand, Cliff, that some of your constituents have run

into problems with this baiting issue, and we are here anxiously

awaiting your clarification of some of these issues for us. So you

may proceed at your leisure.

STATEMENT OF HON. CLIFF STEARNS, A U.S.

REPRESENTATIVE FROM FLORIDA

Mr. STEARNS. Good morning, Mr. Chairman. And let me just say

that I appreciate the opportunity to be here. And also good morning to the other distinguished members of the Subcommittee. I

think it is important that you hold this hearing, and giving me the

opportunity to testify on the Migratory Bird Treaty Reform Act of

1997.

I am here to continue the efforts begun during the 104th Congress to effectively clarify hunting provisions under the Migratory

Bird Treaty Act. Gentlemen and ladies, this issue hits close to

home in an area I used to represent. As you will recall during the

testimony given last year, an incident which occurred in 1995 was

cited. In that case, almost 90 sportsmen were cited for violating the

Migratory Bird Treaty Act during a charity dove hunt in Dixie

County, Florida. Members of this committee have previously heard

accounts of this unfortunate incident, and today you will hear

about the unfair consequences many innocent encountered.
9

While I will not take the time to recount every detail of this incident, I will say that many sportsmen were cited and fined about

$40,000 for ‘‘allegedly’’ hunting on a baited field. In fact, most of

the hunting took place on land which was never even inspected for

baiting. And remember, this was a charity dove hunt with distinguished citizens in the area. The U.S. Fish and Wildlife agents did

not make their presence known, allowing the hunt to continue for

three hours before issuing citations. Keep in mind these citations

were delivered without any regard to the actual guilt or innocence

of the hunters.

Sadly, many participants have faced tarnished records and

threatened careers as a result of the misrepresentation of the current regulations. Even though they did not fully willfully violate

hunting regulations, it was easier for many of them to plead guilty

and pay their fines. One young man participating in this charity

event who attends the University of Florida planned to join the

Coast Guard as an officer. With this on his record, he will be joining the Coast Guard, but not as an officer.

Mr. Chairman, this is a perfect example of why H.R. 741 is so

necessary. Congress has never passed a law defining what qualifies

as a baiting field. While this activity is justifiably illegal, there are

various legal interpretations that have—that should be clarified,

just simply clarified. In addition, Federal courts have not acted uniformly in cases involving hunting. Under current standards a person is held liable for hunting on a baited field even though that

person did not realize the field was baited. This is unfair, as many

of my constituents have realized.

Clearly, Congress needs to act by defining what constitutes a

baited field. Just as important, we must allow hunters who unknowingly hunt on or near a baited field to offer a defense without

presuming them guilty.

This bill addresses the need for clarifying the regulations and establishing standards for enforcement. Under the Migratory Bird

Treaty Reform Act, the term ‘‘bait’’ is defined as the intentional

placing, exposing, depositing, distributing or scattering of wheat,

grain, salt or other feed. I am confident that this comprehensive

definition will leave little room for misinterpretation.

There have been other incidents where individuals have been

cited for grain being accidentally spilled on public roads, or for luring migratory birds when a handful of corn was found in a wheat

field. Again, these are examples of innocent people found guilty

under the doctrine of strict liability. H.R. 741 also addresses these

issues by allowing hunters to provide evidence as to what degree

the bait acted as the lure for migratory birds.

Mr. Chairman, H.R. 741 makes no attempt to undermine efforts

to effectively protect and manage migratory birds. In fact, many

current regulations were enacted at the recommendation of sportsmen who recognize the importance and necessity of migratory bird

conservation. I support these regulations and have no intention in

weakening them.

However, as you can see, current law is unclear and interpretations have been inconsistent. I am confident that the Migratory

Bird Treaty Reform Act will clarify baiting restrictions in a manner
10

that protects migratory birds and their habitats while protecting

law-abiding citizens from unfair enforcement.

While enactment of this legislation will arrive too late for the

hunters in Dixie County, Florida, it will prevent others from facing

unfair consequences of being at the wrong place at the wrong time.

Mr. Chairman, I thank you again for this opportunity to testify

today, and I look forward to working with my colleagues on this

Subcommittee to consider this important legislation.

[Statement of Hon. Cliff Stearns follows:]

STATEMENT OF HON. CLIFF STEARNS, A REPRESENTATIVE IN CONGRESS FROM THE

STATE OF FLORIDA

Mr. Chairman and distinguished members of the Subcommittee, I want to thank

you for holding this hearing and for giving me the opportunity to testify on the Migratory Bird Treaty Reform Act of 1997.

I am pleased to be here today with my distinguished colleague, Congressman

John Tanner, to continue the efforts begun during the 104th Congress, to effectively

clarify hunting provisions under the Migratory Bird Treaty Act.

This issue hits close to home, in an area I used to represent. As you will recall

during testimony given last year, an incident which occurred in 1995 was cited. In

that incident, almost ninety sportsmen were cited for violating the Migratory Bird

Treaty Act during a charity dove hunt in Dixie County, Florida. Members of this

Committee have previously heard accounts of this unfortunate incident, and today

you will hear about the unfair consequences many innocent people encountered.

While I do not intend to recount every detail of this incident, I will say that many hunters were cited and fined almost $40,000 for ‘‘allegedly’’ hunting on a baited

field. In fact, most of the hunting took place on land which was never even inspected

for baiting. The U.S. Fish and Wildlife agents did not make their presence known,

allowing the hunt to continue for 3 hours before issuing citations. Keep in mind,

these citations were delivered without any regard to the actual guilt or innocence

of the hunters.

Sadly, many participants have faced tarnished records and threatened careers as

a result of the misinterpretation of current regulations. Even though they did not

willfully violate hunting regulations, it was easier for many of them to plead guilty

and pay their fines. One young man participating in this charity event, who attends

the University of Florida, planned to join the Coast Guard as an officer. With this

on his record, he will be joining the Coast Guard, but not as an officer.

Mr. Chairman, this is a perfect example of why H.R. 741 is so necessary; Congress

has never passed a law defining what qualifies as ‘‘baiting’’ a field. While this activity is justifiably illegal, there are various legal interpretations that should be clarified. In addition, Federal courts have not acted uniformly in cases involving hunting. Under current standards, a person is held liable for hunting on a baited field

even though that person did not realize the field was baited. This is unfair, as many

of my constituents have realized.

Clearly, Congress needs to act by defining what constitutes a baited field. Just

as important, we must allow hunters who unknowingly hunt on or near a baited

field to offer a defense without presuming them guilty.

This bill addresses the need for clarifying regulations and establishing standards

for enforcement. Under the Migratory Bird Reform Act, the term ‘‘bait’’ is defined

as the intentional placing, exposing, depositing, distributing, or scattering of wheat,

grain, salt, or other feed. I am confident that this comprehensive definition will

leave little room for misinterpretation.

There have been other incidences where individuals were cited for grain being accidentally spilled on public roads, or for luring migratory birds when a handful of

corn was found in a wheat field. Again, these are examples of innocent people found

guilty under the doctrine of strict liability. H.R. 741 also addressed these issues by

allowing hunters to provide evidence as to what degree the bait acted as the lure

for migratory birds.

Mr. Chairman, let me say that H.R. 741 makes no attempt to undermine efforts

to effectively protect and manage migratory birds. In fact, many current regulations

were created at the recommendation of sportsmen who recognize the importance

and necessity of migratory bird conservation. I support these regulations and have

no intention of weakening them.

However, as you can see, current law is unclear and interpretations have been

inconsistent. I am confident that the Migratory Bird Treaty Reform Act will clarify
11

baiting restrictions in a manner that protects migratory birds and their habitats,

while protecting law-abiding citizens from unfair prosecution.

While enactment of this legislation will arrive too late for the hunters in Dixie

County, Florida, it will prevent others from facing unfair consequences of being at

the wrong place at the wrong time.

Mr. Chairman, I thank you again for the opportunity to testify before you today.

and I look forward to working with my colleagues on this Subcommittee to consider

this legislation.

Mr. SAXTON. Thank you very much, Cliff. Can you stay for a few

minutes?

Mr. STEARNS. Sure, happy to.

Mr. SAXTON. We have some questions that we would like to ask,

but we would like to have you and Senator Breaux be able to respond to them at the same time. So we will proceed at this point

with Senator Breaux’s testimony. This is a great pleasure for us to

welcome—I want to say back to the committee, but as you can see,

the committee structure has changed some since you were here,

Senator. But we welcome you to the committee today, and we are

interested in what you have to present to us, because we know that

you have long been an advocate of fair baiting laws and have

worked very hard on this issue over the years. And so you may proceed as you see fit.

STATEMENT OF HON. JOHN BREAUX, A U.S. SENATOR FROM

LOUISIANA

Senator BREAUX. Thank you very much, Mr. Chairman and

members of the Subcommittee. I appreciate the invitation to make

some comments. I will try and be very brief. I congratulate you for

holding hearings on this. It seems like some things never go away.

I was on the predecessor to this Subcommittee back in 1972. It is

hard to believe it was that long ago. The place looks cleaner and

nicer, a new coat a paint, a few more flags, pretty much the same

pictures it always had, except for Young looking over my shoulder.

Mr. ABERCROMBIE. Mr. Chairman, I was going to remind the

Senator there is a looming presence behind him on the wall.

Senator BREAUX. I am kind of afraid of what I might say and

what might happen with that picture. But very briefly, I remember—it is really interesting. I remember chairing the Fish and

Wildlife Subcommittee many years ago, and had offered the very

same legislation that you all are considering today, and this has

probably been 15, maybe 20 years ago, because I felt there was

something fundamentally unfair to tell American citizens that we

are going to hold you criminally liable for something that you may

not even have known was there or that you had no knowledge or

presumptive knowledge of having committed a crime but we are

going to cause you to be criminally liable. It is a big difference from

a civil standard on holding somebody responsible for things they

may not have known, But to hold an American citizen criminally

responsible with all the negative implications, in addition to the

penalties, without that person knowing or should have known that

what he was doing or attempting to do was in fact a crime, I think,

is fundamentally unfair in our society.

I think Congressman Stearns has laid it out very clearly what

the problem is. As a hunter and someone who strongly supports the

migratory bird conservation programs—I am a member of the Mi-
12

gratory Bird Conservation Commission. I represent the State of

Louisiana, which is at the bottom of the funnel of most of the ducks

coming down to Central and Mississippi Flyway. This is a big, important issue in my state. But I would suggest that it is an important issue for all of us as Americans to make sure that the criminal

laws of this country are fair.

And what disturbs me—in a typical situation in my state of Louisiana, people are brought to a hunting area the night before. They

may have a dinner with the folks at the hunting lodge. They will

go out to go duck hunting early in the morning, before daylight.

They are put in a blind as a guest on someone else’s property that

they have never, ever been to in their life. They are sitting in a

duck blind and it is dark and first light of day and hunting time

becomes available and they start shooting and the guy knocks

down the first duck or even doesn’t kill the first duck and the Federal agent comes in and puts handcuffs on him and takes him out

of the field and charges him with hunting over a baited field.

Now that person, by any stretch of the imagination, did not know

that was a baited field. He had never been to that property in his

lifetime, never hunted there, never been in the county, may have

never been in my State of Louisiana in his life, had no way of

knowing by any reasonable standard that that field happened to be

baited by someone who may just have wanted to make it a better

hunt for the guests that were there.

Now I think that we ought to be as tough and as hard as we possibly can on people who knowingly violate our game laws, people

who intentionally bait a field in order to attract migratory waterfowl ought to have the book thrown at them, because they are not

playing by fair rules. And there is nobody in this legislation trying

to change that. We ought to make those penalties as tough as they

should be. If a landowner, for instance, owns the property, the

standard of liability for the landowner can be very, very strict. A

person who rents the property, the standard should be very, very

strict, but I would suggest that the approach of Chairman Young

is the proper approach by saying that for hunters the standard

should be that they knew or should have known the field was baited in order to be criminally prosecuted and convicted and having

to pay a penalty.

Now we had the hearings a long time ago, and I am sure that

some of my friends in the Fish and Wildlife Service are going to

come back and say well, that is just too difficult for us to enforce,

we can’t make a case against somebody showing that they had actual knowledge or should have known by reasonable check. I would

suggest a response to that is that we are talking about American

citizens and their lives and their families who are being subjected

to criminal penalties and prosecution. And while it may be a little

more difficult for the Service to make a case with this standard, I

would suggest that in fairness, under our principles of being innocent until you are shown to be guilty, that standard is not too difficult to reach.

The second point is that there is confusion on the exemption to

a baited field, and the exemption is that it is not a baited field

under the criminal terms if the field was subject to normal agricultural practices. Now the problem is what is normal agricultural
13

practices. Is letting a cornfield in Maryland lie and not be harvested and not harvesting it at all, is that normal agricultural

practices? It may be in Maryland. It may not be in California. It

may be somewhere else, but it is different.

I think that this legislation is correct in saying that the Service

should be required to publish in the Federal Register a notice for

public comment defining what normal agricultural practices are in

the region. That is not that difficult to do. They can meet with

USDA officials in that area. They know what the normal agricultural practices are in that area. And define a set of rules and regulations so everybody, the commercial hunters, the guides, the individuals can know that this is a normal agricultural practice in this

area and therefore we can hunt without worrying about whether

our guests and our customers are going to be hauled off to jail because this was not a normal agricultural practice in this agent’s interpretation and maybe another agent would have a different interpretation.

So this legislation requires specificity. It requires a clear statement of what normal agricultural practices are. And that would be

helpful to the Service. The agents do not know what agricultural

practices are. That is not their background. They are wildlife managers, and they do a terrific job and I applaud them. But we have

to bring in the agricultural people to define what are normal agricultural practices if in fact that is going to be an exemption to the

baited definition.

The final point, and I think it is good, the Migratory Bird Conservation Act, there is a need for additional funds. And I think it

is appropriate and fair and proper that all fines and penalties collected under the Migratory Bird Treaty Act be deposited into the

Migratory Bird Conservation Fund. You know, probably you will

have a lot of people who are busted that would be more willing to

pay the fine if they know it is going into the Migratory Bird Conservation Fund and feel a little bit better about it and probably not

appeal all of the cases and everything else. But be that as it may,

I think it is an appropriate area for the funds to be used. The person guilty would be penalized, and yet the migratory bird program

would benefit from it, and I think it is something that would be a

good trade.

But I urge you all to try and proceed with this legislation. I think

it makes sense. It protects Americans and it still allows the Service

to get the job done. Thank you, Mr. Chairman.

[Statement of Senator John Breaux follows:]

STATEMENT OF HON. JOHN B. BREAUX, A SENATOR IN CONGRESS FROM THE STATE

OF LOUISIANA

Thank you Chairman Saxton, Mr. Abercrombie and the members of the Subcommittee for inviting me to speak in support of H.R. 741, the Migratory Bird Treaty Reform Act of 1997. Soon, I will introduce companion legislation in the Senate

that mirrors Chairman Young’s bill.

As a member of the Migratory Bird Conservation Commission, I recognize the importance of protecting and conserving migratory bird populations and habitat.

Eighty 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, similar agreements have

been signed between the United States, 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,
14

and we have maintained viable migratory bird populations despite the loss of natural habitat because of human activities.

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 issue concerning 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 the 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 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.

The fundamental goal of the Migratory Bird Treaty Reform Act of 1997 is to address the baiting issue. 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. It removes strict liability interpretation presently followed by

Federal courts.

It also 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.

Also, the exceptions to baiting prohibitions contained in Federal regulations have

been amended to permit an exemption for grain found on a hunting site because

of normal agricultural planting and harvesting and normal agricultural operations.

This legislation will establish guidelines for both the hunter and the law enforcement official.

The U.S. Fish and Wildlife Service will be required to publish, in the Federal Register, a notice for public comment defining what is a normal agricultural operation

for that geographic area. The Service makes this determination after consultation

with State and Federal agencies and an opportunity for public comment. Again, the

goal of this effort is to provide clear guidance for landowners, farmers, wildlife managers, law enforcement officials, and hunters so they know what a normal agricultural operation is for their region.

In 1934, Congress enacted the Migratory Bird Conservation Act as a mechanism

to provide badly needed funds to purchase suitable habitat for migratory birds.

Today, that need still exists, and this legislation will require that all fines and penalties collected under the Migratory Bird Treaty Act be deposited into the Migratory

Bird Conservation Fund. These funds are essential to the long-term survival of our

migratory bird populations.

The Migratory Bird Treaty Reform Act will provide guidance to landowners, farmers, wildlife managers, hunters, law enforcement officials, and the courts on the restrictions on the taking of migratory birds. It accomplishes that objective without

weakening the intent of current restrictions on the method and manner of taking

migratory birds; nor do the proposed provisions weaken protection of the resource.

Finally, the proposed legislation does not alter or restrict the Secretary of the Interior’s ability to promulgate regulations or issue further restrictions on the taking

of migratory birds.

Again, I thank Chairman Saxton, Mr. Abercrombie and members of the Subcommittee for this opportunity to be heard, and I urge everyone to join me in supporting the Migratory Bird Treaty Reform Act of 1997.

Mr. SAXTON. Thank you very much. Let me just start with a couple of questions and then turn to the ranking member.

After reading the language in this bill and after hearing both of

your explanations and testimony, do you believe it is an accurate

statement to say that this bill does not in any way change practices, hunting practices, relative to the practice of baiting? In other

words, does this bill in any way give opportunities that don’t presently exist under current law to hunters to bait?

Senator BREAUX. I would think the answer, Mr. Chairman, is

clearly no. Baiting would still be an illegal practice. It would be

subject to criminal penalties for anyone who baits. The only dif-
15

ference is that someone to be convicted for hunting over a baited

field would have to be shown to have known or should have known,

actual knowledge or presumptive knowledge, he should have

known because this person—for instance, what is presumptive

knowledge? A person has been there, has hunted there all of his

life. He has hunted there the week before. He was there during the

daytime and he had a chance to be out in the field. He saw the

field, and by reasonable expectation and inspection, he could have

seen the corn sitting out in the middle of the pond right in front

of the duck blind. That would be presumptive knowledge, but the

bottom line is that baiting, intentional baiting, would be an illegal

act under this legislation. It would be a crime that would be subjected to criminal penalties.

Mr. SAXTON. So then—go ahead, Mr. Stearns.

Mr. STEARNS. I would agree. You know, all we are doing is defining what baiting means. We are not saying that what occurs has

changed. It is just defining what it means. And the presumptive

guilt is the people who are there participating. In this case, you

had 90 people. Some of them were sheriffs. Sheriffs of local counties were at this fundraiser, and obviously they had no idea that

they were involved with a hunting in a baited field, so they clearly

would not be guilty. And all we are doing is not changing the punishment for people who know that it is baited and continually do

so, but we are just saying we are defining so that these people,

these sheriffs of these local counties who are law-abiding citizens,

voted to, elected to enforce the laws, have some prior knowledge before they have to have these penalties placed upon them and put

in their record.

Mr. SAXTON. Thank you. I have no further questions at this time.

I would just like to point out to the other members that the language in this bill seems to me to be very clear on this point. And

on page 6, line 3, it simply reads, ‘‘no person shall take or aid in

the taking of any migratory bird by the aid of baiting or on or over

any baited area where that person knows or should have known

through the exercise of reasonable diligence that bait was present.’’

That seems to be pretty clear. We are not in any way intending to

loosen or change the practices which have been historic practices

that prohibit baiting.

Thank you very much for helping me clear up that point. Mr.

Abercrombie.

Mr. ABERCROMBIE. Thank you very much, Mr. Chairman. The

key, would both agree, is the page 6—I don’t know if you happen

to have the bill in front of you, but it does refer to what the Chairman has just gone over. The key is, is it not, the lines on page 6

where the person—starting on line 4, where that person knows or

should have known through the exercise of reasonable diligence

that the bait was present. That is the key to this, is it not?

Senator BREAUX. Mr. Abercrombie, I think that you have really

put your finger on exactly what the key is. That is what is missing

in the current practices and the court decisions. When a person

comes before a judge, a person can say Judge, Your Honor, I didn’t

know, I had never been there before, I exercised reasonable practices in my hunting procedures, I looked around, we started shooting at daybreak or 30 minutes after, 30 minutes before, very impor-
16

tant, and I just could not know that someone a week before had

baited this field, I had never been to this county before in my lifetime. That would be something that would be addressed by that

line knew or should have known.

Mr. STEARNS. I would just add to that, my colleague from Hawaii, if you were driving out on the turnpike and there were no

signs telling you the speed limit and suddenly you went up to 75

miles an hour or even 60 miles an hour and a policeman stopped

you and said you should have known that you can’t go 60 miles an

hour, well, you said there are no signs, I haven’t seen any signs,

I have no idea. I mean, how could you say that person is guilty if

he is on the turnpike going 60 miles an hour when there is no sign.

Mr. ABERCROMBIE. I guess that depends on what county you are

in.

Mr. STEARNS. Well, since we have——

Mr. ABERCROMBIE. I have heard of that happening some places

in the country, but it wouldn’t be right. That would be wrong, I

think.

Mr. STEARNS. Yes, and I am trying to draw an analogy.

Senator BREAUX. There is a little bit of a different in Cliff’s analogy. I mean, I think he is making a good point, but the hunter that

is being, I think, abused by the current law knows it is illegal to

hunt over a baited field.

Mr. ABERCROMBIE. Can I address that, Senator?

Senator BREAUX. He knows that. I mean, this hunter knows it

is illegal to hunt over a baited field, but by any exercise of reasonable diligence he would not know that this was a baited field.

Mr. ABERCROMBIE. Okay, I would like to address that. The reason that I would is that, as you know, lots of times on committees

you are required to vote on things with which you may not be familiar except in the abstract. In this instance, I am one of those

persons. When I was younger, there was hunting in the area that

I was in, especially for pheasants, and my mom and dad kept me

in because people came right through the back yard for those

pheasants, so I was not aware of the rather detailed explication in

law that existed around baiting and the shooting of birds, which I

am now aware of as a result of going through the bill.

If you go to page 7, that is where I have a question then. If the

key is the exercise of due diligence or reasonable diligence known

or should have known, you go to page 7, part B, line 8, it says ‘‘the

term baited area means any area where shelled, shucked or

unshucked corn, wheat or other grains, salt and other feed whatsoever capable of attracting migratory game birds is intentionally

placed, exposed, deposited, distributed or scattered.’’ The reason I

bring that up is not to try to put too fine a point on it, but precisely

for the reasons you give, how are you supposed to know. Wouldn’t

it be almost an automatic defense that Fish and Wildlife could not

disprove if you simply claim well, I didn’t know it was intentional,

I thought it was unintentional? How would you deal with that?

Senator BREAUX. You make a good point, Congressman, but the

difference is this. There are two things here. One is the person who

is doing the baiting would have had to do it intentionally in order

to be guilty of baiting a field. The second question is hunting over

a baited field. And that is the difference. Assume a field is baited,
17

what we are trying to address in this legislation is hunting over

a baited field, which right now you are guilty of whether you knew

it or not. And that is the difference. So if the game agents are

going after the person who baited the field, they have to show that

it was intentionally baited. And that is not that difficult.

Mr. ABERCROMBIE. Okay, then as someone who has not hunted

under these circumstances——

Senator BREAUX. Me neither.

Mr. ABERCROMBIE. [continuing] would it be part of the section on

exercising reasonable diligence? Is it the case that hunters ordinarily are able to determine fairly quickly with a reasonable

amount of regard for the area whether it looks baited or not? I

would have to rely on your experience.

Senator BREAUX. Well, it is not that easy. I mean, if someone

baited a pond and a duck blind with corn, it generally shows up

very well as soon as the light of day comes on, but still it is not

that easy to make that determination. That is why I think you

have flexibility in the legislation, knew or should have known. You

don’t have to prove actual knowledge. I mean, that person would

still be liable under our legislation even if they didn’t know, but because of a reasonable check of the surrounding areas it was pretty

clear that there was a sack of corn sitting in the middle of that

pond. That person should have known that that was a baited field.

Mr. ABERCROMBIE. I see. Well, Mr. Chairman, I will stop at this

point. I am perfectly willing to take the intention of the legislation

on its face as being reasonable. The question is can we write it in

such a way as to actually accomplish that flexibility that you mention. That is to say we don’t put words into that in effect put it

into one side or the other in terms of impossibility or where you

make a mockery of it. Your argument today is that the language

as presently written essentially makes a mockery of fair play and

presumption of innocence, and the question is whether this language as written in the bill right now rectifies that or puts it possibly on the other side where nobody would ever get convicted.

So maybe we should just take another look at it to see what kind

of previous case law operates where there are definitions or parameters, boundaries around the point of reasonable knowledge of

should know or should have known or a reasonable exercise of diligence. This can’t have happened for the first time in the United

States in 1997. That kind of question must have been raised thousands or maybe tens of thousands of times in different kinds of

cases, so it shouldn’t be too difficult to figure out language that will

accomplish what you seek.

Thank you very much. I appreciate your helping me with this.

Thank you, Mr. Chairman.

Mr. SAXTON. Thank you. Mr. Farr.

Mr. FARR. Thank you very much, Mr. Chairman. I am neither a

hunter nor a lawyer, but I can see that this is a very difficult area

that needs very careful attention. I mean, the irony here is that we

are trying to take the burden off of a person with a gun trying to

kill a wild animal and really put the burden more on the animal,

because on page 8 of the bill on line 15, 16, it says the terms attraction and attracting mean that the bait was a major contributing factor in luring the migratory birds. It really requires the in-
18

tent of the bird to be able to prove that the—why the bird went

to that particular spot, and I think that that is why you get into

difficult problems in trying to draft a law where it essentially, I

think, shifts an awful lot of burden of responsibility. Now as I understand, this is regulation now, and with the bill the way it is

written we are trying to codify it into Federal law, which then

makes it very difficult to change without a Congressional act, and

I am just wondering if there is some other way. Shouldn’t we just,

perhaps, prohibit baiting altogether, ban it?

Senator BREAUX. Congressman—I am sorry, go ahead.

Mr. STEARNS. I was just going to say I think the pendulum has

swung here. There have been cases where people have been on

fields five miles from the baited fields and have been charged, so

obviously they had no idea.

Mr. FARR. Well, wait a minute. That is——

Mr. STEARNS. All I am saying is that——

Mr. FARR. Is that a proper arrest? I mean, there is some responsibility of law enforcement here, too. I mean, it is like probable

cause and pulling you over on a highway. They can’t——

Mr. STEARNS. Let me give you another example. In this case I

gave you, these 90 individuals for a charity fundraiser, the U.S.

Fish and Wildlife inspectors presence wasn’t known for three

hours. They were in and close to the area, but they didn’t even, you

know, advise these people who thought they were at a charity situation. So I think the pendulum has swung and it is time now to

try and bring forth a little more specificity. And I think that is all

this legislation does.

Senator BREAUX. Congressman, let me just make a comment

on—I don’t—you can ask the Fish and Wildlife Service when they

present testimony. I don’t think that this is a problem for them at

all. I don’t think—I can’t imagine a lot of cases ever being dismissed because they were not able to prove that once a field is baited that it was not a major contributing factor in luring migratory

birds there. That is almost a given. If the bait is there, the determination is that if birds was there that was a major contributing

factor.

Mr. FARR. Senator, that is precisely my point. Why don’t we just

prohibit baiting?

Senator BREAUX. Baiting is illegal. It would still be illegal under

this bill.

Mr. FARR. It is only illegal if you are going to hunt on bait. It

is not illegal——

Senator BREAUX. That is the—which is the only thing which is

a criminal violation, is hunting over a baited field. Hunting over a

baited field—baiting a field would still be illegal for trying to lure

migratory birds there, and a person hunting would still be guilty

of a criminal violation if he knew or should have known it was

baited.

Mr. FARR. I accept that, but that is not what the law says. It

says where the person should have known. It doesn’t require that

the person really does know. And you pointed out that there is a

lot of money being made—I mean, those hunters that came to that

area and were put out in the blind. Somebody guided them there.

Somebody lured them to spend the night in that lodge. Somebody
19

who lives there in that spot had responsibility for knowing

about——

Senator BREAUX. Oh, absolutely, and that person should be put

in jail and should be fined. He has a greater responsibility, the

landowner, to protect his property from illegal baiting. The person

who runs the hunting club has a greater responsibility than the innocent hunter. That person knew or should have known because it

is his property.

Mr. FARR. I agree, and there is nothing in this law that says

that. I mean, let us put the strict liability on the person that is

making the money from the hunt rather than, as you say, the innocent hunter. But I don’t think that is the way this bill is drafted,

and I would support that.

Senator BREAUX. The same principles would apply to anybody

that is potentially a violator of the law, and the principle is that

if you knew it was baited, whether you are the landowner or a

hunter who has never been there before or you should have known

that it was a baited field. And I would suggest that the person

making the money, the landowner or the person running the duck

camp, it is a lot easier for them to get nailed under a knew or

should have known standard because it is their property.

Mr. FARR. But then if you read the other qualifying language

down on Section 2, starting on line 7 on page 6, it sort of, I think,

just opens a big wedge in there, taking of all migratory game birds,

including waterfowl, is possible where grains are found scattered

solely as a result of normal agricultural planting or harvesting. I

mean, that——

Senator BREAUX. That is current law.

Mr. FARR. Yes. Is the following section, too, where the taking of

all migratory birds except waterfowl, down on line 20 it says or

other feed on the land where grown for wildlife management purposes? Is that——

Senator BREAUX. Yes, normal agricultural practices are exempted

from baiting. We are saying that there ought to be better guidelines as to what normal agricultural practices are. The problem

with the current law is that if it is normal agricultural practice, it

is not baiting. We are saying they ought to issue regs as to what

constitutes normal agricultural practices in that region.

Mr. FARR. I don’t think I am trying to disagree with you. I am

trying to figure out how this law could be crafted so that we don’t

find ourselves every year coming back with exceptions to the law

that we are trying to invent today. I mean, you really put an awful

lot of burden, it seems to me, here more so on the wildlife management process, perhaps government in this case, that the term baiting has to be intentional. It has to be intentionally placed. It has

to prove that the major contributing factor was the bait being put.

I mean, there is a really tremendous shift of responsibility here

from somebody trying to prove the intent of all of these things, not

holding the hunter and the process that got the hunter to the field

responsible. It takes the burden off the people with a weapon and

puts it on the person with a badge.

Senator BREAUX. I would suggest, Congressman, that when you

are talking about a person’s individual civil rights and the potential for going to jail with a criminal violation, there should be a
20

burden on the officers who are enforcing the law to at least show

that the person had actual knowledge or even that he knew or

should have known. We are talking about a criminal violation here,

not a civil penalty. And I would suggest the standards for the law

enforcement people should be pretty difficult. This is a criminal

charge. A person could go to jail and have his career ruined by

doing this, and they should have at least the ability to show that

the person at least should have known that he was committing a

crime.

Mr. STEARNS. The only thing I would add to it is in this case

these 90 people had no knowledge, were there under the assumption that they were going to help a local youth group in a fundraising, and they got—and they all paid their money. They were so

intimidated by the process they were scared to go to the courts.

They were just—the whole process, they all paid their money. And

they have that now as a permanent record. So what the Senator

is saying, these people are presumed to be guilty even though they

had no prior knowledge, had no idea.

Now, using your interpretation, you could go forward to the fellow who owned the land. That would be a different story, but I

think the pendulum has swung here and I think what the Senator

is trying to say is under our Bill of Rights, we want to extend to

the hunters the Bill of Rights. And under the present Migratory

Bird Act, they don’t have a full Bill of Rights.

Mr. FARR. Well, my time—let me just say that as I understand

under current law, those convicted of shooting over baited areas

are not normally incarcerated. I wonder if there have been people

incarcerated. It is a——

Mr. STEARNS. These people, these 90 people, citizens including

sheriffs, were not incarcerated.

Mr. FARR. And that is a misdemeanor violation, that they have

to pay fines of several hundred dollars?

Mr. STEARNS. That is true. They had to pay about $400, $300.

Mr. SAXTON. Mr. Farr, would you yield to me for just a minute?

Mr. FARR. Yes, Mr. Chairman.

Mr. SAXTON. Let me try to put this in perspective. I live in an

area where a lot of people hunt, including myself. We hunt waterfowl. And law enforcement officers have a pretty darn good idea in

any given region who is baiting and who isn’t baiting. When you

bait for waterfowl, it is not like you go out and throw a bag of corn

in the water and all of a sudden somehow magically the ducks all

know it is there and they come get it. This is a long process which

may be over a series of weeks and, you know, the baiters will essentially train the ducks that there is bait here and they may even

put up a marker someplace so the ducks will be able to easily identify the spot. They will get in their boats, oftentimes in the dark

of night, with a couple of hundred-pound bags of corn, scatter it in

the boat, scatter it along the way. Law enforcement officers know

exactly what to look for, and therefore it is pretty easy to identify

who is baiting.

Now let us just say for a minute that some 18-year-old high

school person sees this gang of guys out there hunting and he

thinks it is pretty neat because there are a lot of birds around, and

all of a sudden one day after school without having any idea what-
21

soever why those birds are there he gets in his rowboat or his

canoe and paddles out there, gets in the other guy’s blind and has

great luck. And all of a sudden the warden comes along and this

guy all of a sudden is arrested, charged with and is almost automatically guilty of hunting over bait.

Mr. FARR. Mr. Chairman, is that factual case that happened? I

mean, I am—I don’t hunt, but I am a fisherman.

Mr. SAXTON. It happens all the time, Sam.

Mr. FARR. You know, there are all kinds of areas where you

should know. You don’t—you can say you go to the river and you

didn’t know it was a catch and release river, because we don’t have

signs all up and down rivers saying everything you catch here you

have got to let go. I mean, where in this process is the responsibility for the hunter? I mean, you are spending a lot of money buying a gun and going to a spot. Frankly, I think if the American

public knew that public wildlife refuges were allowed hunting they

would be appalled by it. You know, we have set up these public

lands and we lure the wildlife there and then we shoot them.

Mr. SAXTON. We are talking about private lands here. We are

not——

Mr. STEARNS. Mr. Chairman, I just want to——

Mr. FARR. This is all lands, as I understand, both public and private.

Mr. STEARNS. Just to put it in perspective for Mr. Farr, five of

the students that were cited in the ‘‘allegedly baited field’’ were not

even on the field. So, I mean, that shows you that the interpretation of this law is so broad that you could cite young students who

are starting out in life, who are going to the University of Florida,

and put a criminal misdemeanor on their record when they were

not even on the field, but they were part of these 90 people and

they were out, you know, maybe getting a coke or something. And

they just swooped in and gave all of them, including these five students, and put a criminal misdemeanor on their record. Their parents had to pay the money. They were not on the baited field, so

surely, surely the U.S. Fish and Wildlife in this case overstepped.

And these five men, five students now, as they grow up to men are

going to say every time they fill out a form there is a criminal misdemeanor because I was supposed to be not on this land and I

didn’t even know about the land and I wasn’t on the land. And

where do they go?

Mr. FARR. Well, first of all, I don’t think you have to report criminal misdemeanors. If so, every driving speeding ticket is a criminal

misdemeanor. Secondly, if I understand this issue, you had 88 people cited at that hunt. 82 paid their fines without dispute. Four

were required to appear in court because they had assaulted enforcement officers and two appealed their citations.

Mr. STEARNS. That leaves a lot of people getting criminal misdemeanors. And in some—as you know, some forms you—some applications you do have to check off.

Senator BREAUX. Mr. Chairman, I think the final point Congressman Abercrombie, I think, hit the nail on the head. This legislation

doesn’t require that the hunter have to have knowledge of the actual baiting to be guilty. It only needs to be required that he should

have known by a reasonable exercise of diligence, surveying the
22

place, checking with neighbors or by any reasonable exercise or

normal diligence. If they should have known, even if they didn’t,

they still would be guilty under this legislation.

Mr. FARR. But, Senator, where is the penalty in here for the provider, for the person that guides them to this spot?

Senator BREAUX. If a person intentionally did it, if the landowner

is found to have baited the field, we are not changing any of the

penalties there at all. The same penalties that are in the law today.

Mr. FARR. But that person isn’t—the person that did that isn’t

there with the gun, isn’t cited.

Senator BREAUX. If someone—if the landowner baited a field that

he owns the property of, it is going to be pretty clear that he knew

about it because he did it or he should have known about it because it was his own property under his control. That person would

be subject to the same penalties after this legislation is passed as

before. No change at all.

Mr. FARR. I don’t think that the law is strong enough in that

point, because it does——

Senator BREAUX. That is another question.

Mr. FARR. The part you are talking about is no person shall take.

You have got to have actually been in the action of taking.

Mr. STEARNS. Aiding and abetting.

Senator BREAUX. Oh, no, you don’t have to kill a single bird. You

can miss every shot you have got and you are still guilty. You don’t

have to take—you don’t have to knock down a single bird to be

guilty of hunting over a baited field, just sitting in the blind never

firing a shot with a gun is hunting over a baited field.

Mr. SAXTON. Mr. Farr, your actually second five minutes is just

about to expire, so we are going to move on to Mr. Peterson.

Mr. ABERCROMBIE. Mr. Chairman, before we do, can I just comment that, Senator Breaux, you are such a reasonable person I fail

to understand why the Senate and the House has all this difficulty

all the time. We just ought to get together ourselves, I think, and

we can settle everything, don’t you?

Senator BREAUX. I am trying. We are making some progress.

Mr. PETERSON. It appears to me that if I committed a crime

against man or a person, that it is much more difficult to convict

me than if I commit a crime of being in the position where I could

have shot an animal on a baited field. Is that a fair comparison?

Senator BREAUX. Oh, sure. The other one you have to at least

show intent or the presumed intent to convict them for shooting a

person, whereas it is absolute strict liability over a baited pond.

Mr. PETERSON. So we have different standards of evidence. And

I guess, as I have been listening to this discussion—I am a hunter,

lifetime hunter. It appears to me that if you innocently show up in

an area that is considered by some enforcement officer a baited

field, you are guilty.

Senator BREAUX. Not only that. I didn’t mention in my testimony, but, you know, the regs under the Fish and Wildlife Service

say that the bait has to have been gone when you are hunting for

at least the previous ten days. In other words, if you go hunting

and the bait has been gone from that field for nine days, you are

still legally liable for hunting over a baited field, even though the

bait has been removed for the previous nine days. You may not
23

have even been in the country nine days before when the field was

baited, but you are still guilty.

Mr. PETERSON. You know, I dislike illegal hunters as much as

anybody and people who break the game laws, but it seems like—

I know in Pennsylvania we made it easier to prosecute those who

break game laws. It is much simpler than it is to prosecute someone who hurts people, and I don’t understand the logic in that. And

I guess the part of giving anybody a criminal record when they are

innocent and they have no ability to defend themselves, it appears

to me that you have no ability here to defend yourself if you are

innocently in a position that was a baited field or had been a baited

field nine days ago. That is just wrong.

Senator BREAUX. You have no defense. The reason why so many

people just plead guilty to it and pay the fine is because they know

under the law they have no defense. Innocence is not a defense. Innocence is not a defense hunting over a baited field.

Mr. PETERSON. I think in this country every law enforcement officer, including game officers and Fish and Wildlife Officers, have

the duty to prove you are guilty. And you have—should have the

fundamental right to prove you are innocent. That is just what this

country is all about, and it appears to me it is obvious this law

needs changed.

Mr. STEARNS. Mr. Chairman, I just—something, if I could add to

your comments and where you are taking the argument. As Mr.

Farr mentioned, two of the people who were cited appealed. They

were acquitted. They won their case. So the judge actually agreed,

which in a sense agreed with what this legislation is all about. And

that is an important point, that when these two students appealed,

they won. Now the other people paid from 250 to 500, but remember, these students that went ahead and appealed had to pay for

an attorney and they went through all the process and anxiety and

they won their case. So I think the courts has almost justified this

legislation.

Mr. SAXTON. Thank you. Thank you both very much. We are

going to move on to our second panel. We appreciate the very clear

explanation that you have given us relative to this issue.

Senator BREAUX. Good luck.

Mr. SAXTON. Thank you. Dr. Bob Streeter, would you come forward please and take your place. Good to see you again, sir. Welcome, and we are obviously interested in hearing your perspective

and views relative to this matter. So, Doctor, you may proceed as

you wish.

STATEMENT OF ROBERT STREETER, ASSISTANT DIRECTOR

FOR REFUGES AND WILDLIFE, U.S. FISH AND WILDLIFE

SERVICE

Dr. STREETER. Thank you, Mr. Chairman and members of the

Subcommittee. I am Bob Streeter, Assistant Director for Refuges

and Wildlife, U.S. Fish and Wildlife Service. I am located here in

Washington, D.C., it was good to get to New Jersey also.

Thank you for the opportunity to appear before you here today

to discuss H.R. 741, the Migratory Bird Treaty Reform Act of ’97.

Mr. Chairman, first I would like to thank you, Congressmen

Young, Miller, Dingell, Tanner, and your other associates for dem-
24

onstrating great leadership in developing and sponsoring H.R.

1420, to improve the management of the National Wildlife Refuge

System. This was an example of a great spirit of cooperation and

synergy between Congress, the Administration and some private

citizens that will result in strengthening the National Wildlife Refuge System, and benefiting citizens and wildlife and including to

a large degree migratory birds. And it will benefit the migratory

bird hunters, bird watchers, and conservation education groups.

However, in the case of H.R. 741, Mr. Chairman, we are opposed,

as we believe it could significantly harm our nation’s migratory

bird resources and negatively impact the millions of hunters and

conservation education persons who enjoy these national treasures.

The Service does share your concern, however, about modifying

portions of the current hunting regulations, as I testified before you

one year ago. Although we have been not as speedy as desired in

this process, we are working with our state partners to do so.

With your permission, Mr. Chairman, I would like to submit my

written testimony to the Subcommittee for the record and then

briefly summarize our primary concerns with H.R. 741, if I might

be allowed to do so, sir. Thank you.

Mr. Chairman and members of the Subcommittee, our primary

concern, overriding all others, is the rigidity that is inherent in formulating hunting rules by statute rather than by regulations. Procedurally, the proposed changes to the Migratory Bird Treaty Act

would cause extreme hardship to all sportsmen and sportswomen

of this country by creating an inflexible statutory process that

could not possibly accommodate the changing wildlife management

situations that occur.

H.R. 741 could compromise the Service’s ability to manage this

very dynamic migratory bird resource and damage our commitments to the four international convention partners for the wise

use of these valuable resources. Let me give you one vivid example

of this. It relates to the current burgeoning growth of mid-continent

snow goose population, which has grown to such a size that these

birds are now impacting their breeding grounds, destroying habitat

in the frigid arctic, and causing serious depredation problems in

Canada and the U.S. in migration and wintering areas.

An international team has recommended several actions, including hunting options that would result in major reductions in the

breeding population. Some of these hunting options would include

special seasons where electronic calls and bait could be used to attract these very wary birds so that the hunters could assist in this

absolutely necessary reduction process. H.R. 741 would prevent the

Service and our state partners from even considering such management tools.

H.R. 741 would also make it illegal under any circumstance to

use shotguns holding more than three shells for hunting migratory

birds. Under the current regulatory approach, however, the Service

and its state partners have the flexibility to change these kinds of

rules when the situation dictates and involve the public each time

in the public review process when they propose those changes. I repeat, our greatest concern is the inflexibility of the statute versus

a regulatory process for professional management of such a dynamic resource.
25

Now, Mr. Chair, a couple of brief points on the specific impacts

of the proposed legislation. H.R. 741, in addressing what constitutes normal agricultural practices would load the Service, the

states and our hunting public with a tremendous regulatory burden

and cost. As we considered this, we determined that we annually

would promulgate rules on what constitutes normal agricultural

practices. We would likely have to address this on a county-bycounty basis in every state and territory of the U.S. This would basically be a veritable Sears and Roebuck catalog of regulations that

we would have to publish and print. The cost of doing this as well

as the cost of publishing would be a great load on all of us, as well

as the hunter. The current process of using the extension service

as a resource has worked quite well in an overwhelming majority

of cases.

Several sections of this bill in aggregate, not individually but in

aggregate, seem tantamount to legalizing baiting. They would replace the strict liability standard with a knows or should have

known standard. If that were the only thing, we probably could

work with that as discussed, but when you add to that a requirement that government officials have to prove the hunter’s intent

and you add to that that officials would also have to prove that the

bait is an attraction that is a major contributing factor that lured

the birds not to the area but within shotgun range, then you have

an unreasonable burden on state and Federal officials and it simply

would make any baiting rule unenforceable.

[Statement of Robert Streeter may be found at the end of the

hearing.]

Mr. ABERCROMBIE. Mr. Chairman, excuse me. Mr. Chairman,

may I interrupt for a moment. We do have all your statement. Dr.

Streeter, I want to make sure I understand correctly for the benefit

of myself and the Chairman, did I understand you correctly to say

if the question—the word intentional is a key element here, that

you think this can be worked out? Because if that is the case, virtually everything else that you are talking about we can deal with

in another context and we don’t have to prolong this hearing and

have five dozen people come up and testify. If that is the case, we

ought to be able to end this hearing and deal with the thing forthwith.

Dr. STREETER. If we have to prove, if Federal law enforcement

officials have to prove the intent of the hunter and the intent of

the bird——

Mr. ABERCROMBIE. No, no, you don’t have to answer for me. I am

just saying you said—am I correct that if that is the key element

here, that you think that you can—you have some ideas on how

this can be addressed and what you think is the right thing to do

so that we can deal with this in the criminal/civil side or however

we want to work it out? Did I understand you correctly?

Dr. STREETER. Congressman——

Mr. ABERCROMBIE. Because we have got—I am going to be frank

with you, we have got something like five panels and 150 hours of

testimony, it looks like, we are going to deal with here, but the key,

as far as the looming presence is concerned behind you, is the question of intention and criminality and whether that is going to mess

people’s lives up. And if Fish and Wildlife says that that issue you
26

believe—if you believe as Fish and Wildlife that this can be addressed in a reasonable way, I am willing to bet that the Chairman

can sit down with you and staff and get this worked out.

Dr. STREETER. The knows or should have known standard, I

think, could be addressed.

Mr. ABERCROMBIE. Thank you very much. Mr. Chairman, I think

that we might be able to cut through an awful lot of extra discussion here if that, in my judgment at least, is the key element here,

maybe we can move expeditiously. I am perfectly willing to have

everybody put their testimony into the record.

Mr. FARR. If the gentleman will yield. If I may just——

Mr. ABERCROMBIE. Well, the Chairman granted me the time,

so——

Mr. SAXTON. If I may, I would just like to ask Dr. Streeter if he

would conclude his statement and then we will get to the questions.

Dr. STREETER. Yes, Mr. Chairman, I would, and I would like to

just conclude with that statement that our overriding concern is

handling what is now in regulations, handling those as a statute

and the inflexibility that that would provide for Federal and state

professional wildlife mangers.

Thank you very much for being able to provide this.

Mr. SAXTON. Thank you very much. Mr. Farr.

Mr. FARR. Mr. Chairman, I was just going to say that on a day

like this I miss the state legislature where you really have a bill

with a strikeout language of what you are taking out and the new

language put in, because this bill is difficult to understand. But I

think the key of what we are supposed to do here in Congress is

to write good law. And I think what you have heard today is that

the way this law is proposed, and we have been dealing with it one

of the few—and I congratulate you for that, because normally we

talk in generalities not about specific pages and lines and words—

is that the way this bill is drafted it has some unintended consequences that are not good law. You are taking regulations and

putting them into statutory law. And I agree with Mr. Abercrombie

that I think the burden here on the intent could be easily removed.

But also, Mr. Chairman, in drafting a bill I hope that we will get

to the responsibility that Senator Breaux talked about, because it

is nowhere mentioned in here as the responsibility of the provider,

of the hunting lodge, of the, you know, the people that are on the

land. They normally know what goes on in their backyard. And if

the problem is that innocent people come into this backyard or

come into this field and they don’t know but the people around

them do know, then let us hold the people accountable for that and

use the same language and the same degree of responsibility for

the people that are providing the use of that land or providing the

person to be there in the first place.

Mr. SAXTON. Sam, we can work this out. My understanding is

that under current law there is a section which we are not touching

which relates to aiding and abetting or the provider’s responsibility. And further, if it would help to clear up the matter, we can

strengthen that language, which we have not touched in this bill.

But we certainly can address those concerns that you have relative

to the so-called provider.
27

Mr. FARR. I think the should have known language which is key

to this bill should be in that, and they ought to strengthen the penalties for them, because they are frankly the ones that are making

the money off of this activity and they hold a greater responsibility.

You know, the other side of this is that we are also here to protect

the wildlife. It is not just to protect the hunter. There is a balance

here, and it is our job to draft this in a careful way.

Mr. SAXTON. Thank you very much, Dr. Streeter. We have no further questions at this time.

Panel three of five consists of Mr. Brent Manning, Director of the

Illinois Department of Natural Resources, Mr. Bill Horn of Birch,

Horton, Bittner and Cherot, and Steve Boynton of Henke and Associates. Welcome aboard. Brent, you may begin.

Mr. MANNING. Thank you, sir, very much. Good morning, Mr.

Chairman. I am Brent Manning, Director of the Illinois Department of Natural Resources.

Mr. SAXTON. May I just say I know that many people are accustomed to testifying. That little green light there in front of you will

turn red at some point. When it does, we would appreciate you

summarizing your testimony at that point.

STATEMENT OF BRENT MANNING, DIRECTOR, ILLINOIS

DEPARTMENT OF NATURAL RESOURCES

Mr. MANNING. Thank you, sir. I am Brent Manning, Director of

the Illinois Department of Natural Resources, and also representing today the International Association of Fish and Wildlife

Agencies. I have been selected as their ad hoc committee chair on

the subject of baiting. I thank you for the invitation to testify on

behalf of the Association and many sportsmen throughout the

United States.

I wish to point out that the Association’s ad hoc committee spent

almost a year carefully considering the subject before us. The recommendations of the committee were adopted by the Association

and forwarded two weeks ago to the U.S. Fish and Wildlife Service

for their consideration. We hope the Service will adopt the proposal

and publish it for public comment.

I would like to highlight our proposal and briefly compare it with

H.R. 741. Please refer to my written testimony for greater detail.

And for the sake of clarity I will divide our recommendations into

three main subject areas, the first being agricultural crops, the second the management of natural vegetation and the third the issue

of strict liability, which we have spent 90 percent of the time on

this morning.

First on the subject of agricultural crops, we make the common

sense recommendation that hunters who incidentally scatter feed

while entering or exiting hunting areas not be cited for baiting.

Furthermore, we believe that the current terms ‘‘normal’’ and

‘‘bona fide’’ in reference to certain agricultural techniques are too

vague and only have been defined thus far in case law. We recommend replacing those terms ‘‘normal’’ and ‘‘bona fide’’ with the

word ‘‘accepted’’, and we define the word accepted. The distinct advantage offered by this approach is that for the first time the regulations would clearly designate a final authority for making such

determinations. Comparatively, H.R. 741 in many cases may leave
28

some doubt about who is ultimately responsible for making that decision.

Second, the management of natural vegetation. Moving to the

subject, natural vegetation, the Association very strongly believes

that Federal baiting rules were not originally drafted with the intent of preventing hunting over manipulated natural plant communities. However, a more strict interpretation of Federal baiting regulations by the U.S. Fish and Wildlife Service appears to have

emerged during the last decade or so. Such an interpretation discourages professional wildlife managers from maintaining or restoring natural wetlands. Therefore, our proposal clarifies the regulations in this regard. H.R. 741 does not address the issue of natural vegetation and thus leave the intent of the existing regulations subject to continued speculation.

The third issue is that of strict liability. On the subject of strict

liability, both the Association’s recommendation and H.R. 741 reject this aspect of existing regulations. In 1978, the Delahoussaye

case, the U.S. Court of Appeals for the Fifth Circuit District rejected a strict liability interpretation of the regulation. Instead, the

court required at a minimum that the presence of bait could have

been reasonably ascertained by the conscientious hunter. Our recommendation is consistent with that already done Federal ruling.

We require that the hunter know or should have had a reasonable

opportunity to know that a hunted area is considered baited. That

is very simply what the Delahoussaye case says, and it is now applicable in five states in these United States.

H.R. 741 proposes a similar approach. However, as a result of

this change, a critical loophole has been created. David Hall,

former special agent in charge and advisor to the ad hoc committee

on baiting, said the Delahoussaye decision was very workable and

allowed him to make good, consistent and reasonable baiting cases.

By the way, Mr. Hall has made more baiting cases than any other

Fish and Wildlife Service special agent.

We do have a couple of issues of special concern with H.R. 741

that I would like to point out. They are slight differences that I

think can be worked out. First, H.R. 741 requires that salt or feed

capable of attracting migratory game birds be intentionally scattered. The requirement to show intent by a hunter is a much more

difficult standard of proof than the requirement to demonstrate

that a hunter should have knowledge that the area was baited. We

think this change has the potential to erode the protection of the

migratory bird resource.

H.R. 741 also requires the effect of bait be separated in the field

from the effects of other important attractants like hunting location

and subjective methods such as decoy arrangement and calling expertise. Because the relative attractiveness of the bait must be

shown, a much higher standard of proof is again imposed. We believe that may have the potential to create as many problems in

this section as it attempts to solve.

Finally, this bill appears to remove an important prohibition in

existing regulations. Currently, doves can be hunted over lands

where feed has been distributed as a result of alteration for wildlife

management purposes provided the alteration does not include redistributing feed after being harvested or removed from the site.
29

H.R. 741 omits this very important restriction, thus allowing feed

to be returned to and scattered on a field after being harvested or

removed. We recommend that the prohibition be restored.

In summary, the Association agrees that Federal migratory game

bird hunting regulations need clarification. Consistency, clarity and

common sense are of paramount importance. We believe strict liability is the heart of the issue before this Subcommittee, and we

are willing to participate in a working group to bring our respective

proposals together.

The International Association of Fish and Wildlife Agencies appreciates the opportunity to address you today, and I offer my personal assistance in reaching the goal I believe that we all share.

Common sense regulations that protect the migratory bird resource

and the future of responsible hunting are very important to all of

us. Thank you again for allowing me to be here.

[Statement of Brent Manning and additional information may be

found at the end of the hearing.]

Mr. SAXTON. Mr. Director, thank you very much. Incidentally, we

want to apologize. Our material has consistently referred to you as

Brett rather than Brent, and we apologize. And so for the record,

Mr. Manning’s first name is Brent.

Mr. MANNING. Thank you, Mr. Chairman. And I am very happy

that you did not call me Forrest Gump or Elmer Fudd as a journalist just recently did in regard to this issue.

Mr. SAXTON. Nor did we call you late for dinner, right.

Mr. MANNING. Yes, thank you.

Mr. SAXTON. Mr. Horn.

STATEMENT OF WILLIAM P. HORN, BIRCH, HORTON, BITTNER

AND CHEROT

Mr. HORN. Thank you, Mr. Chairman. My name is William Horn,

and I appreciate the opportunity to appear today before the Subcommittee. I thank you for scheduling this hearing to address a

regulatory issue that is long overdue for reform. Existing regulations regarding the use of bait for the take of migratory birds are

presently too subjective, too obscure and put thousands of law-abiding hunters at risk for potential violations.

My position on this issue arises from two perspectives. First, I

had the privilege to serve as Assistant Secretary of Interior for

Fish, Wildlife and Parks under President Reagan, and basically enforced, wrote and signed the migratory bird rules for a number of

years. Second, I am also a hunter who struggles with these rules

every time I step into a duck blind or set up in a dove field. Reform

is needed to end, or at a minimum reduce, the level of struggle associated with efforts by reasonable hunters to comply with these

regulations.

Now the sporting community and the Fish and Wildlife Service

have long recognized the need for clarification and simplification of

these rules. Indeed, the Director’s 1990 Law Enforcement Advisory

Commission specifically proposed a revisitation of the baiting regulations found at 50 CFR 20.21. In addition, the Commission raised

the issue of strict liability as one requiring review and attention

and prospective change.
30

Unfortunately, no action has been taken by the Service to implement this now seven-year-old recommendation. We are persuaded

that the committee and Congress ought to act on its own via passage of H.R. 741 to pursue the original recommendations made by

the 1990 commission. Now, as Mr. Streeter indicated, these matters could be addressed administratively, but frankly years of inaction by FWS demonstrate that Congressional leadership and action

is needed or nothing is going to happen.

Now regarding the law, the first objective is to change this matter of strict liability. I think, as Senator Breaux very eloquently

stated, the imposition of strict liability eliminates the ability of a

hunter or landowner to mount a defense against charges of illegal

baiting. And this is completely contrary to the fundamental

premise of American justice that one is innocent until proven

guilty. Establishing a standard that requires some reasonable

measure of intent or knowledge is more just and equitable, but still

enables law enforcement officers to pinch and successfully prosecute genuine wrongdoers.

Another goal of reform must be the creation of objective rules

and policies that law-abiding hunters can comply with. As indicated, I have overseen the Fish and Wildlife Service, I have practiced wildlife law, and I have hunted ducks, doves and geese for

years, and I still hunt these birds with a great deal of trepidation.

I personally scrupulously examine fields before hunting and make

pointed inquiries about agricultural practices, yet I still cannot be

sure that I am complying with Federal regulations and enforcement policies.

Can an agent find some tiny amount of leftover grain from an

earlier legitimate feeding program? Does the agent agree that the

agricultural practices used in the field that I am hunting are bona

fide? Can the agent determine that baiting has occurred on an adjacent field up to over a mile or more away that I have never seen

and cite me for taking birds on their way to that field? All of these

determinations are so subjective that even the most diligent and

careful hunter can be cited for a violation, notwithstanding their

best efforts to comply with the law. That is simply bad public policy. The rules must be remade in a way that the diligent and careful hunter who makes the effort can be assured that he or she is

in compliance with the rules.

On the compliance front, I would like to add that it is unfortunate that Fish and Wildlife enforcement personnel are unwilling to

provide advice or guidance about baiting. I am aware of many hunt

organizers contacting law enforcement from Fish and Wildlife to

ask the agents to examine a field and give it a clean bill of health

in an effort to comply with the existing baiting regulations. And

these organizers are routinely turned down flat. I pose this inquiry:

even the IRS is willing to help citizens with tax compliance—why

can’t the Fish and Wildlife Service help us with migratory bird

compliance?

Lastly I would like to bring one other issue to the committee’s

attention, and ask it to deal with this in the context of legislation

or in terms of guidance to the Service. I would be very concerned

about efforts by the Fish and Wildlife Service to close hunting in

very large zones proximate to farms where waterfowl feeding is oc-
31

curring. The apparent policy rationale is that the feeding farm,

even if it is not hunted, constitutes an illegal lure; it brings birds

into a generalized area.

This kind of policy could easily become a tool of the animal rights

extremists because aggressive feeding on a few strategically parcels

on, for example, the Eastern Shore could close down hundreds of

waterfowl hunting locations. I think the committee needs to direct

the Service to be extremely careful and not provide anti-hunting

zealots a weapon to be used against waterfowl hunters.

Thank you again for the opportunity to address this issue. I

think reform of the MBTA, the 20.21 regulations and related policies is necessary to achieve greater objectivity and clarity so that

the diligent and careful hunter can comply with the law and applicable regulations and policies. Thank you.

[Statement of William Horn may be found at the end of the hearing.]

Mr. SAXTON. Thank you very much, Mr. Horn. Steve, proceed.

STATEMENT OF STEPHEN S. BOYNTON, HENKE AND

ASSOCIATES

Mr. BOYNTON. Thank you, Mr. Chairman. My name is Stephen

Boynton. I am an attorney in private practice in the District of Columbia, and I have devoted much of my practice over the past 20

years to wildlife and conservation law. I have tried a number of

these baiting cases and handled them from California to Pennsylvania and from South Carolina to Delaware. Mr. Chairman, I have

also had the dubious distinction of having been a defendant, an unsuccessful defendant, in a case that went all the way to the Fourth

Circuit Court of Appeals. And being a defendant, it catches your attention to know the law very quickly.

I have submitted a rather comprehensive statement, which gives

a judicial background that Congressman Abercrombie referred to

earlier of having these issues considered before. Some of them have

quite considerably. Some of them have been ignored on the basis

that any evidence of what the defendant knew, or should have

known, is irrelevant. If he is there, the bait is there, get out your

checkbook. It is as simple as that.

I would also like to comment on something Congressman Farr

said. I think it should be underscored that the primary and singular and most important problem when you face any change to

regulations or law is to protect the renewable resource. I think that

is a primary consideration. In considering this law, this proposed

law carefully, I think some of the issues that have been raised are

important. I would like to address those that I have heard this

morning and read about.

Number one, the question of whether or not the person actually

putting out the feed possibly slipping through in this particular

proposed legislation. First of all, as the Chairman mentioned, he

could be pulled in as an aider and abetter, which is under the

criminal law even though he isn’t in the field, even if he isn’t there.

If he perpetrated the crime, he could be pulled in. But let us assume for a moment that he did put out the feed to bait but the

hunter was successful in his defense so that he didn’t know or

should not have known or did not have a reasonable opportunity.
32

That means the person putting out the bait with the intent would

take a walk, because there is no primary defendant.

Consequently, I would suggest on page 6, line 3, it would be very

simple to add the words no person ‘‘shall take or assist in the taking.’’ As the Chairman indicated earlier, that would take care of

the problem very quickly.

There has been some, in my judgment, wrong interpretation on

page 7 of the term baiting means the intentional placing. I think

as this has been drafted it doesn’t mean you have to prove the intent of the person placing it. It means that the bait was put there

purposefully. In other words, we are excluding accidental distribution of seed. I have had cases where, and Congressman Stearns referred to it, where there has been corn found on a public road. Both

sides stipulated and it was agreed to it fell off a truck, but it was

‘‘bait’’ within that ‘‘zone of influence’’ and the defendants were

found guilty. That is what this section refers to, is that a person

is not going to be charged with accidental distribution of seed,

which can be proved.

The basic concern that everyone has, and I have heard it and

read it, is that they will never be able to make a case under this

law. And I think that is nonsense. First of all, this is a criminal

violation, and the normal standards in criminal law are beyond a

reasonable doubt. That has been eliminated and you are talking

about a preponderance of the evidence, which is basically a civil

standard. And both sides have a level playing field to come in

court. If the defendant cannot prove by a preponderance of the evidence, obviously the government is going to get a conviction.

Now the conviction rates are very substantial. In fact, the previous director of law enforcement, who has since passed away, once

bragged that they had a 97 percent conviction rate. And I said I

didn’t believe that. He came in with his three-inch stack of records

to prove it. And I asked him without looking at it how many of

them just paid the fine. He was considering that in a conviction

rate because there is really no sense going to court unless you have

some way under today’s standards of either proving you weren’t

there, which is kind of silly, or that that bait was not bait at all,

it was rocks or it was so far away or there is some hook to get

away from strict liability. It doesn’t happen or very seldom does it

happen.

One of the other concerns has been the question of flexibility for

the regulatory process. First of all, Congress has the duty to administer the Migratory Bird Treaty Act pursuant to treaty. It has

delegated that duty to an executive branch of government, which

it has every right to do. However, the Congress has the primary

duty. Now these laws have been administered inconsistently

throughout the nation. There is actually a Congressional duty

under that treaty to make sure they are consistent. And I suggest

to you that the Congress not only has the opportunity to change

this law but it has the duty to change the law to make it consistent.

As to flexibility—a year ago today we had a hearing, seven years

ago the Advisory Commission made a report, twelve years ago then

Congressman Breaux held a hearing, twenty four years ago was

the last change in the regulation, and the first case in 1939, the
33

Reese case was 58 years ago. It said that the hunter—the only

problem—the hunter must investigate ‘‘bait’’ at his peril. However,

today we just don’t know what the peril is or where it is. And I

think Congress not only has a duty but it has an opportunity to

define it. With all the time and treasure that sportsmen put into

the conservation of renewable resources, I think it is only fair that

it be addressed by the Congress and corrected.

Thank you, Mr. Chairman.

[Statement of Stephen Boynton may be found at the end of the

hearing.]

Mr. SAXTON. Thank you very much. I have no questions at this

point. Mr. Farr.

Mr. FARR. I wonder if Mr. Boynton has read Mr. Manning’s proposed regulations?

Mr. BOYNTON. Yes, I have.

Mr. FARR. What do you think of them?

Mr. BOYNTON. Mr. Manning and I met yesterday for several

hours going over that. I have trouble with the word ‘‘normal’’ to

change ‘‘accepted’’ as a standard. However we agree that you could

use both words, normal and accepted. I had a case where under the

current law it says ‘‘bona fide agricultural practice.’’ The court said

that bona fide wasn’t the intent of the person doing it, it was by

somebody else’s standard. So I had some questions with Mr. Manning. We discussed this and Mr. Manning has made a proposal

that he did not refer here to today, but there is—if there can be

a standard that is put in with all the input from the Fish and

Wildlife Service, from the state fish and game agencies, from the

soil conservation districts, and they come out with what is the ‘‘normal accepted’’ standard of agriculture in a given area, I am all for

it.

Mr. FARR. I agree with you that there is something that is broken and needs fixing, but I am not convinced that the bill in its

present language fixes it in a way that both Mr. Boynton and Mr.

Horn talked about. And I appreciate Mr. Manning’s diligence on it,

and hopefully we can come to some resolution to write a law that

will work, not that will cause other problems so we will be back

here a year from now.

One of the biggest problems I have is just lack of law enforcement in wildlife management. I happen to have a marine sanctuary

out in my district in California that is 200 miles long, and we have

one enforcement officer to go from San Francisco to the Mexican

border for all marine wildlife management. I mean, it is impossible

for him to do his job in any reasonable way. And I find that the

local folks think that the fact is we just don’t have enough enforcement in game management.

So if we are going to write a law, when it does get enforced, it

ought to be enforced properly. And I think that, as you say, the responsibility here is for the renewable resource and what you are

learning—the big picture is that loss of habitat and pesticides and

so on, the species are all declining. So there is a real—there is a

big management responsibility here, and I appreciate your testimony.

Mr. SAXTON. Thank you. Mr. Abercrombie.
34

Mr. ABERCROMBIE. Mr. Boynton, I have not had the opportunity

to examine in detail your testimony, but I will. Am I correct in understanding that you indicate in that testimony previous cases that

address the question of intention and known and should have

known as it applies in this particular area?

Mr. BOYNTON. In some exhaustive detail, I am afraid.

Mr. ABERCROMBIE. No, no, that is good. Do you agree, then, that

if we can solve that—that problem is resolvable? Reasonable people

can resolve that and thus move off this 58 years of stasis?

Mr. BOYNTON. I think it is solvable. And as far as the time element, that is in your hands. But yes, I think it is solvable. And

most people, although quibbling over some of the other portions of

this legislation, those people agree that that standard is too high

and should be addressed appropriately. Yes, sir.

Mr. ABERCROMBIE. And one last point about the criminality side.

Reference was made earlier, perhaps you heard it, about someone

whose application for entrance into military services was compromised by virtue of a conviction in this. So am I correct that

when we say a criminal conviction we are talking about something

that can adversely effect someone’s life goals and so on?

Mr. BOYNTON. That is correct, sir. This specific case, I believe,

was Naval ROTC, and he had to put down whether or not he had

a criminal conviction. He did, albeit a misdemeanor, it was still

there, and he lost——

Mr. ABERCROMBIE. Would you agree that perhaps we then should

take up whether we should differentiate in this bill or what comes

out of this legislation, perhaps, going to civil penalties rather than

criminal penalties where appropriate? Now not getting rid of criminal penalties, because that might be—not accomplish what needs

to be accomplished, but perhaps there ought to be some consideration of civil penalties as opposed to criminal penalties where that

seems appropriate.

Mr. BOYNTON. I think that could be considered. And I might also

add at the hearing 12 years ago that Senator Breaux chaired when

he was with the Merchant Marine Committee, there was a suggestion that these penalties remain criminal but be similar to the Juvenile Corrections Act where after a five-year period and there has

been no other conviction under the act, they be purged.

Mr. ABERCROMBIE. Okay, thank you very much, Mr. Boynton. It

was very valuable.

Mr. BOYNTON. Thank you.

Mr. SAXTON. Thank you all very much. We are going to move to

panel four at this point, Dr. Rudolph Rosen representing the Safari

Club, Mr. Dan Limmer representing the National Wildlife Federation, Mr. Rollin Sparrowe representing the Wildlife Management

Institute, Ms. Susan Lamson of the NRA, National Rifle Association, and of the NRA the Natural Resources Division, Mr. William

Ladd Johnson of the National Waterfowl Federation. Welcome.

Mr. Rosen, you may begin. And let me just remind you that there

is a five-minute time limit. When the red light goes on, please finish your thought. You may proceed, sir.
35

STATEMENT OF DR. RUDOLPH ROSEN, EXECUTIVE DIRECTOR,

SAFARI CLUB INTERNATIONAL

Mr. ROSEN. Thank you, Mr. Chairman. My name is Rudolph

Rosen, and I am Executive Director of Safari Club International.

Mr. Chairman and members of the Subcommittee, I do appreciate

the opportunity to appear before you today to speak about H.R.

741. I am going to abbreviate my comments, and I ask that the full

text of my comments be entered into the record.

My most direct experience with regulation of migratory bird

hunting was from 1991 through February of this year when I was

responsible for migratory bird management and harvest regulations first for the State of Texas as Director of Fisheries and Wildlife and then for the State of Oregon as Director of the Oregon Department of Fish and Wildlife, and also throughout my life as a

hunter of migratory birds.

Safari Club is an international not-for-profit wildlife conservation

organization with over 32,000 members, 168 chapters worldwide,

and through affiliated organizations, our numbers increase to over

one million. All of our members are hunters, and we work to conserve the world’s wildlife species and protect the rights of hunters.

H.R. 741 would enact into law a variety of prohibitions dealing

with different methods and practices for hunting migratory birds.

Hunting migratory birds with the aid of bait is one of those prohibitions, and this bill makes an important clarification in regard to

this particular provision in that a person charged with a baiting

violation must know or should have known through the exercise of

reasonable diligence that bait was present where they were hunting.

We appreciate the leadership of the Chair and others in Congress

bringing this bill forward. We support these efforts and we offer

our help as the bill moves forward.

The Safari Club supports regulations that conserve migratory

bird resources. We also support ethical hunting and a very strict

adherence to all wildlife hunting rules and regulations. Our members pledge to follow a code of ethics that includes knowing and following hunting rules and regulations wherever and whenever they

hunt. Rules prohibiting baiting of migratory birds and hunting over

bait are no exception. Our members do not question the need for

these regulations, including the prohibition on baiting. But we have

a problem when it comes to the current rule on hunting over bait.

The rule has been interpreted and administered for years as a socalled strict liability standard.

It has been the experience of our members that the current rule

is often enforced so rigidly that hunters who are innocent of knowingly violating baiting laws are categorically judged guilty. The

judgments of various law enforcement officers can vary as to

whether the amount and nature of placement of various materials,

as well as the handling of crops in agricultural areas amounts to

baiting. Once a judgment has been made by a law enforcement officer, the strict liability nature of the baiting violation makes it very

difficult for the alleged defender to contest. The costs and time required to argue with an officer’s judgment are so high compared to

the penalty that most people charged with hunting over bait simply

pay the penalty.
36

Some may feel this is simply an annoyance factor, but our members take pride in the fact that they hunt lawfully and ethically.

In one case, there was a move to bar a person from candidacy for

the Safari Club presidency because he had paid a penalty for hunting over bait rather than contest it. The Safari Club undertook a

detailed inquiry, hearing a number of witnesses, and determined

that his action was only a violation because of the strict liability

standard of the rule, that he had no intent to hunt with the aid

of bait and he had no knowledge that bait had been placed. In this

incident, over 25 people were involved, including a very well-known

golfer.

Wildlife managers generally seek to develop rules in cooperation

with hunting license holders that protect the resource first, and

where biologically-based management practices allow, permit hunting within defined limits. Such regulated hunting provides recreational and economic benefits, especially important to rural

America where spending on hunting and fishing gives a much

needed boost to the local economy.

We understand that wildlife law enforcement acts as a deterrent

and this force of deterrent can be very, very effective and necessary

in preventing harm to wildlife resources. But the baiting regulations have acted as an entirely different sort of deterrent, because

here in addition to deterring would-be baiters, the regulations have

acted as a deterrent to ethical hunters. Since hunters can’t be assured any field is bait free, in self defense many hunters have

given up or have highly limited their hunting activity.

And this is entirely a result, we believe, of how the current rule

is written and has, at least in my opinion, little to do with focusing

on those truly culpable for baiting or protecting migratory birds.

Standards on baiting need to be clear in holding culpable two types

of violators, those who bait for the purpose of hunting and those

who knowingly hunt over bait or hunt where it is blatantly obvious

there is bait drawing birds into shooting range.

As proposed, H.R. 741 focuses the law on the real culprits. Hunters will understand and agree with that kind of law. Hunters will

back the Fish and Wildlife Service and the state law enforcement

agencies in enforcing this kind of law.

We thank you very much for bringing this forward today.

[Statement of Rudolph Rosen may be found at the end of the

hearing.]

Mr. SAXTON. Thank you, sir. Mr. Limmer. Proceed, Mr. Limmer.

Mr. LIMMER. Thank you, Mr. Chairman and members of the Subcommittee, for this opportunity to come before you today. My name

is Dan Limmer. I am a Regional Executive with the National Wildlife Federation, working in our Prairie Wetlands Resource Center

located in Bismarck, North Dakota. I ask that our formal comments along with attached copy of NWF resolution, which I have

with me today, be submitted for the record.

Mr. SAXTON. Without objection. Thank you.

STATEMENT OF DAN LIMMER, REGIONAL EXECUTIVE,

NATIONAL WILDLIFE FEDERATION

Mr. LIMMER. Thank you. National Wildlife Federation is the nation’s largest conservation education organization, with 45 state af-
37

filiates and over four million members and supporters. Our members and supporters are people who know and love wild things and

wild places and value the ability to learn and benefit from them.

I am here today to address House Bill 741, the Migratory Bird

Treaty Act Reform Act of 1997. The National Wildlife Federation

opposes H.R. 741 for two primary reasons. First of all, we strongly

believe that wildlife management is most appropriately and best

accomplished by trained professionals in wildlife conservation and

wildlife law enforcement. Wildlife management must retain the

flexibility to be able to make timely regulation and rule changes in

order to successfully adjust and adapt to unpredictable and highly

variable conditions and events.

Secondly, H.R. 741 would in fact weaken existing waterfowl protections by, for example, allowing the use of toxic lead shot to hunt

captive reared waterfowl and by expanding the potential for the

unethical hunter to bait based on the requirement that would force

the field law enforcement officer to prove intent. Such a requirement can be a very difficult thing to prove and could, in fact, severely compromise the enforcement of these regulations.

Mr. Chairman, I have outlined the two basic reasons why the

National Wildlife Federation opposes 741, and I would now like to

tell the committee those things that we do support. First of all, we

strongly urge the U.S. Fish and Wildlife Service to move forward

quickly with the review and revision of regulations relative to waterfowl hunting restrictions. Any revised regulation must not allow

waterfowl baiting and must adhere to the highest standards of ethical fair chase. National Wildlife Federation supports by resolution

clear, concise, easily interpreted and uniformly enforceable hunting

rules.

Mr. Chairman, I am also here today as a former wildlife law enforcement officer and wildlife manager with over 16 years experience with the South Dakota Department of Game Fish and Parks,

stationed within the heart of the Central Flyway. I can personally

attest to the absolute necessity that wildlife management retain

the flexibility to deal with changing conditions and that we have

regulations in place that will hold the unethical few in check. Without a doubt, if those unethical few are allowed to go forward unrestrained, they will quickly become a significant adverse effect on

our migratory bird resource.

And finally, Mr. Chairman, I come to you today as a hunter, conservationist and a father with over 35 years of hunting experience.

I have personally witnessed and I abhor unethical hunting methods, and I have come to learn and greatly respect true sportsmanship. I have dedicated my career to protecting and passing down

to my children and all of our children, as my father and grandfather did to me, the ability, the opportunity to know, love and

enjoy the great privileges that I have.

To be sure, to be successful we must retain the flexibility within

management to adapt to change within regulations that are clear,

easily understood and consistently and uniformly enforced.

Once again, National Wildlife Federation urges the committee to

reject House Bill 741. Thank you very much for this opportunity to

testify.
38

[Statement of Dan Limmer may be found at the end of the hearing.]

Mr. SAXTON. Thank you very much, Mr. Limmer. Dr. Sparrowe,

you may proceed. Incidentally, at the conclusion of Dr. Sparrowe’s

testimony, we are going to have to take a break for a vote, in fact

two votes, and then we will return to Susan Lamson. Dr. Sparrowe.

STATEMENT OF ROLLIN SPARROWE, PRESIDENT, WILDLIFE

MANAGEMENT INSTITUTE

Mr. SPARROWE. Thank you, Mr. Chairman. The Wildlife Management Institute has extensive experience and involvement in virtually all of the aspects of migratory bird management that have

been mentioned today, including past citizens commissions and attention to the baiting issue. I have personal experience for more

than 20 years with this through my employment with the Fish and

Wildlife Service, during which time I supervised migratory bird

management and law enforcement. And I participated in the ad hoc

committee with the International on baiting during the past ten

months. Perhaps of equal importance, I have been a co-owner and

wildlife manager of the Island Creek Gun Club on the Eastern

Shore of Maryland for the past 17 years. I have hunted actively in

Maryland for 20 years and for 35 years nationwide. I am very familiar with the problems faced by both hunters and law enforcement agents in carrying out the law.

We at the Institute believe that regulations through the established public participatory process are the proper way to make any

adjustments that need to be made in these laws. We don’t think

that H.R. 741 does that in a way that we can support, and we particularly are concerned about the strict liability issue. I won’t reiterate the testimony that has been given here. We think the issue

needs some attention. We think there are ways it can be addressed.

I am heartened by some of the suggestions by others testifying here

about how a rule could be processed.

Please note that I referred to a rule, because we still prefer that

wildlife management processes proceed with the input from the experienced people around the country and make these changes as

needed, rather than have direct intervention by the Congress.

During my participation with the International during the past

year, I particularly recommended at each juncture that any change

made in these regulations must be measurable in terms of what its

impact is. No one can predict what these changes will produce in

the way of different kill or impact on the resource. We ought to do

that through the system that we have used very successfully for

several decades. Any changes are done through the open

participatory process with an experiment set up, a requirement for

data collection, analysis and then potentially a way out of the situation if we have done something that doesn’t fit. That would be

very difficult to do under H.R. 741 and a new Federal law.

The various examples of lack of flexibility mentioned earlier I

would simply add to. The Eastern United States has a tremendous

problem with Canada geese, and this nuisance is going to have to

be dealt with just as the snow goose problem, aggressively and

probably in ways that are non-traditional. We would hate to have

to come back to the Congress for each one of these things. I don’t
39

think the Congress wants to get in the business of managing waterfowl each year.

I have participated in hunting successfully for 20 years in the

Chesapeake Bay region, and I would submit that no one has been

more vulnerable than me to the embarrassment or the fear of being

caught. As Chief of Migratory Birds and Administrator in the Fish

and Wildlife Service or my current job, I certainly could not afford

it. I have looked over my shoulder when I needed to. I have adjusted my hunting schedule. I have gone home a few times because

I didn’t like something I saw, but I have been able to live within

the law.

The fact that a committee of state biologists and administrators

and other organizations have been able to come forward with some

initial recommendations through the international leads me to believe that we can get this done through the established management process, and I urge the Congress to let that happen. Thank

you, Mr. Chairman.

[Statement of Rollin Sparrowe may be found at the end of the

hearing.]

Mr. SAXTON. Thank you. As I stated a few minutes ago, we are

going to have to take a break now, and we will come back as soon

as we can, but there are two votes, so we will be 15 or 20 minutes.

Thank you.

[Recess.]

Mr. SAXTON. Move on to Susan Lamson.

STATEMENT OF SUSAN LAMSON, DIRECTOR OF CONSERVATION, WILDLIFE AND NATURAL RESOURCES DIVISION, NATIONAL RIFLE ASSOCIATION

Ms. LAMSON. Thank you, Mr. Chairman. The NRA appreciates

the opportunity to testify on H.R. 741. It was made clear at last

year’s oversight hearing that the baiting regulations continue to

cause problems, problems of inconsistent enforcement and court interpretation exacerbated by ambiguity and confusion on the part of

the hunter.

The NRA fully supports H.R. 741 because it makes long-needed

changes to the baiting regulations. It will provide the hunter with

a law that is clear and reasonable and can be consistently and fairly enforced. At the same time, the bill will continue to protect the

resource from excessive harvest. With over two million hunter

members, protection of the resource is of vital importance to the

NRA, because hunting is wholly dependent upon healthy, sustainable wildlife populations.

It has been suggested that any shortcomings with the baiting

regulations can be overcome through the rulemaking process. That

may be true, Mr. Chairman, but the Fish and Wildlife Service has

already had ample opportunity to seize that initiative. Instead, the

Service has given Congress no other choice but to step in, because

it hasn’t evidenced any sign of resolving the problems on its own.

It has been suggested that H.R. 741 will make it extremely difficult to bring convictions because it would increase the Federal

Government’s burden of proof. Well, I think that burden should be

increased. Under the current regulations, the government’s burden

is minimal if nonexistent. But the problem is that under the strict
40

liability standard, the hunter isn’t given parameters by which his

knowledge or lack thereof is held legally accountable.

H.R. 741 resolves the issue by establishing the reasonable diligence standard and injecting fairness into enforcement by giving

the hunter an opportunity to provide a defense in court. It doesn’t

require the government to prove intent, nor does it call for the traditional standard of proof beyond a reasonable doubt because the

bill recognizes that such standards could make it extremely difficult to convict a law breaker.

It has been suggested that there is a danger in amending the

regulations through legislation because it will remove agency flexibility, but part of the problem associated with the regulations is

that it provides the agency with too much flexibility. For example,

the agriculture terms used in regulations have been shown to lack

the clarity necessary for a hunter who is not otherwise well versed

in agricultural practices to know at all times whether an area is

legal to hunt over or not. In the past, the Service has acknowledged

that the determination of a baited area is based upon the expertise

of law enforcement.

Mr. Chairman, a person of average intelligence should be given

a reasonable opportunity to know what is allowed and what is prohibited. The hunter shouldn’t have to develop an expertise in agricultural practices, nor rely on law enforcement’s interpretation as

to whether he is legally hunting or not. The clear definitions and

guidance in the bill will resolve that problem and also provide the

government with strong proof that a hunter should have known

bait was present.

H.R. 741 also injects fairness into the application of the so-called

zone of influence. To suggest a hunter be held responsible for

knowing why birds are in the hunting venue absent the presence

of seed or grain in the area being physically hunted is an unreasonable expectation of hunter responsibility. The hunter hopes to be in

a hunting area where birds will be and should not be held accountable for not being suspicious as to why they are there. Hunters

should be held accountable, instead, for the condition of the hunting grounds and not for an area of unknown extent.

The bill gives a hunter an opportunity to present evidence in

court as to whether the alleged bait acted as a lure but it also preserves the greatest amount of flexibility for the court in its review

and for the government in making its case that a hunter knew or

should have known.

It has also been suggested that the bill would undercut the principle of fair chase, but we fail to see the relevance of that argument. The bill is not removing the prohibitions against baiting,

rather it is designed to ensure that such prohibitions are understood and interpreted such that the outcome is the same, whether

it be through the eyes of the law enforcement officer, the hunter

or a judge.

There are many hunters who have given up hunting migratory

birds rather than risk their reputation on circumstances beyond

their control. It is an unfortunate and unacceptable outcome of the

regulatory and judicial process. Rules should be uniform, clear and

understandable so that a hunter whose intent is to comply can
41

comply. H.R. 741 achieves that objective without eroding the goals

and objectives for migratory bird conservation.

In summary, the migratory bird resource, those charged with

protecting it and those who would legally hunt it are all benefited

by the Migratory Bird Treaty Reform Act of 1997. Thank you, Mr.

Chairman.

[Statement of Susan Lamson may be found at the end of the

hearing.]

Mr. SAXTON. Thank you very much, Ms. Lamson. Mr. Johnson.

STATEMENT OF W. LADD JOHNSON, BOARD MEMBER,

NATIONAL WATERFOWL FEDERATION

Mr. JOHNSON. Thank you, Mr. Chairman. My name is Ladd

Johnson. I am a board member of the North American Waterfowl

Federation, which is made up of state waterfowl organizations. I

am also chairman of the State of Maryland Waterfowl Commission.

I am here to speak to you about the injustices of the present Federal regulations pertaining to the enforcement of baiting migratory

birds and the accompanying definitions of normal agricultural practices. Let me acknowledge that I and the people I represent do not

support the taking of migratory birds with the aid of bait.

I personally have been a victim of the present regulations and

their accompanying judicial interpretations. Twice I have been convicted of taking waterfowl with the aid of bait. In both cases, the

bait was found on the property. And in both cases I was a guest

of a person who assured me that no bait was present. Arriving before daylight, I was unable to personally observe the presence of

bait in the hunt area, let alone the bait being a half a mile away

and under several feet of water, but because I was there and the

bait was present, I was cited. Both cases resulted in the payment

of the imposed fine because the precedent established in the Federal court system pertaining to bait left me no other choice. Probation before judgment is not an option in Federal bait cases, and if

the bait was there and I was there, the precedent set found me

guilty. Since then, I have only hunted on my own personal farm or

with those individuals with whom I have personal knowledge of

their operations.

Many persons have fallen victim to the same circumstances that

I have. Let me stress again that I and the people I represent do

not condone the use of bait in attracting and harvest of migratory

birds. The language of the present regulations states if bait is

present or has not been removed for a period of ten days prior to

hunting, all parties present are guilty in attempting to harvest waterfowl with the aid of bait. Let me also say that feed does not become bait until you choose to hunt over it. A person could arrive

on the ninth day after the bait has been removed and still found

guilty.

The answer is simple. The landlord or the lessee or those responsible for the actions on the farm or in control of the property are

the responsible party to any and all actions that may violate game

regulations. Should a violation occur, the party in charge of the action should be cited. The imposed penalty should be placed on them

equivalent to all those people present and then possibly doubled.
42

On the issue of normal agricultural practices, I also have the

privilege of administering a national wildlife food planting program

which this year should exceed over one million acres. The question

of what is a normal agricultural practice that is planted for wildlife

could be jeopardized and could be misinterpreted under the present

regulations. With this private sector and this private initiative in

jeopardy, the language should be clarified.

Moist soil management hasn’t been mentioned here today, which

is new type of management, particularly for waterfowl. It is economical and very effective in the—in sustaining waterfowl populations. Manipulation in moist soil management is an essential

practice to ensure the effectiveness of the moist soil management

program. Manipulation of any area under the Federal interpretation can be assumed as creating a baited area.

I and the people I represent support H.R. 741 and its amendments to the Migratory Bird Treaty Act. Let us protect the innocent sportsmen with the same regulations that protect the migratory resource. Thank you, sir.

[Statement of W. Ladd Johnson may be found at the end of the

hearing.]

Mr. SAXTON. I would like to thank each of you for obviously very

articulate and good testimony. I don’t have any questions at this

point, and I would just like to thank you each for being here and

sharing in some cases your experiences and in other cases your

thoughts with us. Thank you very much.

We will now move to our fifth and final panel, Mr. William Boe

of Gainesville, Florida; Mr. Vernon Ricker, who is a retired special

agent from the Fish and Wildlife Service who currently makes his

home in Salisbury, Maryland; Terrance Sullivan, Secretary of the

League of Kentucky Sportsmen; Mr. Charles Conner of Germantown, Tennessee; and Mr. Fred Bonner of Raleigh, North Carolina.

Welcome, and when you are comfortable, Mr. Boe, you may proceed.

STATEMENT OF WILLIAM BOE, GAINESVILLE, FLORIDA

Mr. BOE. Mr. Chairman and members of the committee, I would

like to thank you for the opportunity to be here again. I was here

a year ago speaking to the House Resources Oversight Committee

about the situation with the Florida hunters, and I am here today

in the capacity as the Chapter Advisor to the Alpha Gamma Rho

Agricultural Fraternity at the University of Florida.

We had numerous members of that fraternity receive citations in

the infamous Florida raid, and Congressman Stearns, I think, was

quite accurate in some of his comments in reference to the young

men. And I would like to clarify some issues, and I would hope that

those who write the laws will listen to what happened to some of

these young men to make sure that other people in their situation

certainly won’t be victims of the confusion and perhaps the overzealous actions which impacted them so hard that day.

I would like to comment very briefly, though, on some of the comments that were put in the record by Congressman Abercrombie

that were left with him for Congressman Miller. I have also seen

some things in the media that have been published in the Washington area where it keeps getting referred to the fact that the peo-
43

ple in the Florida raid were caught ‘‘red handed’’. I think this term

‘‘red handed’’ perhaps needs to be better defined. I am somewhat

concerned about that.

‘‘Red handed’’ is confusing when you have five young men hunting on the property of one of their parents, which is an active agricultural production, down the road and separated from the field

raided by the Federal agents. The agents came to this field where

these boys were and ‘‘red handedly’’ caught them in their own field

where they had hunted many times before. When they addressed

this issue to the agents, that they were not in the field being raided, they were told, ‘‘well, you are close enough as far as we are concerned, that is why we have courts of law, and you can get an attorney and go to court if you so desire.’’

I met with the parents of all five of those young men. In my testimonial package you have the comments from the parents of one

of those people. I hope that is read by every member on this committee, including those that aren’t present here today.

I also have the letter from the young man in question, who was

denied access to the ROTC program. It was the Army ROTC program. Congressman, right now he is in your home state of New

Jersey. He is at the Coast Guard training facility at Cape May. He

will do very well there. He, however, is going to be an enlisted man

in the Coast Guard Reserve. Following his training in New Jersey,

he will go back to the University of Florida. He will graduate, probably, with honors. I will be at his graduation along with his other

friends next year. And hopefully at that time he will qualify for officer candidate school within the Coast Guard.

I had the pleasure of going to the ceremony for three of my

young men who were commissioned in the Army, and fortunately

for them they did not go to that dove hunt or their commissions

also would have been interrupted.

Congressman Miller talked about a ‘‘legislative fix.’’ Perhaps that

is what we are here for today, a ‘‘legislative fix.’’ After all, the

members of this committee are in a position to fix a very serious

problem, and I hope they do so.

Also, one other comment in reference to Mr. Miller’s comments

that he made. He talked about the people having poor eyesight. I

would like to point out the fact I do wear glasses, and I was in that

field that day. I hunted in about a two-acre area of the field. There

was no grain in the two acres in which I hunted that would have

enticed any birds there.

I graduated from a university in the State of Texas where hunting is very popular, and I know what constitutes a large volume

of birds flying within an area. There were five of us hunting. Within a two and a half hour period of time, we killed ten birds. There

was nothing going on in the part of the field that I hunted in that

would reasonably suggest there was bait there, and there certainly

was no bait where I was hunting. I know that because I asked the

agent that cited me to show it to me. He would not do so. And obviously if it was there, I think he at least could be able to demonstrate the evidence to me.

I would like to share with you the letter provided to me, hand

carried by pickup truck from Dixie County right before coming up

here. This is from Mr. Bobbie Hatch of Cross City. He is the owner
44

of the property where the young men got the citations from that

was adjacent to the field raided. He was away, but this is his letter

to this committee.

‘‘Members of the House Committee, I was angered after returning from the Florida versus Auburn football game to discover that

some of my son’s fraternity brothers had been fined for hunting on

a baited field while on my property. These young men had been invited by my son to come and hunt dove in our field with my permission. My land is rich in dove population and always has been

due to the accessibility of fields, cover and water supply which in

no part has anything to do with baited fields. These young men

came to have a peaceful day hunting on my land, and were then

unjustly accused.

I take offense to this happening. If this law reads in any way

that these boys were guilty, it is an absurd law and therefore

should be changed. Bobby Hatch, Post Office Box 611, Cross City,

Florida, phone number 352–498–3712.’’

And I hope someone has the courtesy of contacting him to find

out why he feels the way he does.

From my interpretation and observations of what I saw that day,

I saw a very elastic law. I saw a law which in reality is whatever

the agents want it to be on any given day. And that law is whatever the judge in a court of law defines, usually in favor of these

people.

The reason I did pay my fine a year ago—and a lot of people

have said why did all these people pay fines if they are indeed innocent. I went to a friend who was a former state prosecutor that

convicted serial killer Ted Bundy, and who also played a major role

as states attorney in convicting Danny Rollings, who killed five

University of Florida students six years ago. I went to him and I

said I would like you to represent me in this situation. He studied

the law. His name is Lynn Register. He was a private attorney

then. Now he is a Federal prosecutor in Tennessee. He said Bill,

as this law is written, if you are there you are guilty. You don’t

have to see the bait. You don’t even have to have any desire to

break the law. I recommend you to cut your losses, pay your fine

and try to talk to someone to bring some reason to this law so that

it will be more practical and more fair to all people concerned.

That is why at my own expense I have come up here twice. I

would hope this elastic law would be better defined so it is not

quite so elastic to impact the lives and careers of young men who

are hunting on adjacent fields, trying to get away from the University of Florida and their studies for just a day or two.

In reality, when my license was taken that day I was indicted,

tried and convicted in the field. I was told that someone would investigate my case. I never heard from anyone. The next letter I got

was a letter stating you have the option of mailing in your money

or perhaps—you can use Visa or Mastercard. It is very convenient,

I might add—or you can go to court, and if you go to court and are

found guilty, you will pay $500—actually you will pay up to $5000

and possibly spend one year in a Federal prison. Being the fact

that I had an ill wife, children with braces, et cetera, et cetera, I

thought that was not a very reasonable option at that point in my

life.
45

I do think it is a good option to come up here. I am glad Cliff

Stearns listened to some of our concerns. I think he is a good Congressman. He returns his phone calls and he cares about the people

within his district, and I think that is what this is about. I am a

reasonable person. I like to hunt birds, but I do have good eyesight.

I might add I walked point in Vietnam and I never got my boys

in an ambush. If grain had been where I was, I would have seen

it.

And I would like to entertain any possible questions. I am up

here wanting fairness for people and respect for wildlife, and I

don’t think any was provided in the Florida case.

Clarifying a point made by Cliff Stearns, these two men, two of

the boys from the adjacent field. I talked with their parents. One

of them was a young man. He was married, just had an infant

daughter. He was in his senior year in college. He was already in

debt to go to school. He said, ‘‘Mr. Boe, I don’t have money for an

attorney and I am not paying $500 fine for something I didn’t do.’’

And I asked what are you going to do? He said, ‘‘By God, I am

going to go to court and defend myself!’’ And he did. And the judge

acquitted him. He said son, there is no logical reason why you

should know what was going on somewhere else. And I praise that

judge in Gainesville, Florida for his sense of justice.

Thank you, sir.

[Statement of William Boe may be found at the end of the hearing.]

Mr. SAXTON. Thank you very much, Mr. Boe. Mr. Ricker.

STATEMENT OF VERNON RICKER, RETIRED SPECIAL AGENT,

U.S. FISH AND WILDLIFE SERVICE, SALISBURY, MARYLAND

Mr. RICKER. Thank you, Mr. Chairman. I come before you today

as a recently retired Special Agent with the U.S. Fish and Wildlife

Service, having served 25 of my 28 years on Maryland’s Eastern

Shore. 17 of those 25 years was served as a Special Agent with the

Service, an additional seven years as a Maryland Natural Resources police officer.

When I came on with the State of Maryland and the U.S. Fish

and Wildlife Service, the Eastern Shore was in its heyday for illegal waterfowl hunting violations, particularly baiting. The mid–60’s

through the mid–80’s was the peak of migratory waterfowl hunting

and outlaw gunning on the Delmarva Peninsula. There was little

defense for hunters caught red handed shooting over baited areas

and the courts correctly showed no difference to status within the

community.

I want to make several important points first. Changing the law

is not the solution. During my 28 years in law enforcement, I have

heard all types of complaints about the unfairness of baiting laws.

I have seen the courts uphold the Migratory Bird Treaty Act and

have basically seen the U.S. Fourth Circuit of Appeals in Richmond, Virginia say enough is enough. They have heard these arguments before many times. I am here to tell you that if the strict

liability standard is removed from the regulations, it will be devastating. And I repeat, it will be devastating to migratory birds.

I have been involved in apprehending and prosecuting nearly

1000 individuals in my career for hunting on or over baited areas.
46

I have seen 50 people bait these areas, ten of which I could physically identify. That is 28 years of law enforcement working prime

waterfowl areas. The reasons I couldn’t identify more individuals

would vary from weather conditions, rain, snow, fog, et cetera, reduced lighting, distances and concealment from the individuals

baiting the areas. There have been times in my career when individuals have nearly scattered grain on top of me when they were

baiting the areas, but I still couldn’t identify them.

Oftentimes in my career I personally knew who owned, rented or

hunted a particular location being baited or owned a boat similar

to what the subject was in that was doing the baiting, but I could

still only give a generic description. After seeing the subjects bait

an area, they would still deny how the bait got there, even if you

find grain in the bottom of the boat. People have a hard time looking an agent in the eye and saying yes, I baited the area yesterday

afternoon.

I have seen many hunters standing in shelled corn in soybean

fields asking what bait, hunters standing on bushhogged sunflower

fields with milo scattered saying I thought it was gravel pellets,

hunters on marshes with cracked corn under decoys saying I

thought it was just a sandy bottom. Hunters complained to me

after they were caught that someone else baited the area. And my

response, they also baited the bottom of your boat.

Strict liability is needed because knowledge of bait is too difficult

to establish. Hunters have to start being responsible themselves by

asking hosts and guides and by inspecting the site. By just saying

I didn’t know the bait was there doesn’t protect migratory birds.

My recommendations to this committee would be to require or

mandate the Service to establish annual training to be conducted

by the most experienced special agents regarding all types of baiting situations. This type of training could possibly take place on

national fish and wildlife refuges whereby actually hunting plots

could be established to set up different scenarios. These plots

should be both legal and illegal on planted, harvested and manipulated fields to simulate actual field situations. With this requirement, the Service would have a uniform enforcement standard nationwide. It would also better train the less experienced agents and

supervisors alike in making prudent decisions regarding questionable baiting situations.

To also increase the penalty for people who have actually been

proven to have put the bait out and consider a sum of $10,000.

In conclusion, House Bill 741 may be well intended, but it won’t

protect migratory birds. I ask that you please leave the regulations,

statutes and case law alone and concentrate on better training for

all Fish and Wildlife agents. I truly believe it will serve in the best

interests of both hunters and non-hunters alike and will continue

to protect migratory birds for future generations.

I thank you for the opportunity to comment on House Bill 741.

[Statement of Vernon Ricker may be found at the end of the

hearing.]

Mr. SAXTON. Thank you very much, Mr. Ricker. Mr. Sullivan.
47

STATEMENT OF TERRANCE J. SULLIVAN, SECRETARY,

LEAGUE OF KENTUCKY SPORTSMEN, PROSPECT, KENTUCKY

Mr. SULLIVAN. Good afternoon, ladies and gentlemen. I am Terry

Sullivan of Prospect, Kentucky. I am a Director of the Harrod’s

Creek Field and Stream Club and Secretary of the League of Kentucky Sportsmen. I have studied and written a good deal on the

subject at hand. As a result, I have come to the conclusion that I

cannot safely hunt doves. The rules governing baiting are so confusing, ambiguous and unevenly enforced that I am afraid of unintentionally running afoul of these laws. Make no mistake, there is

no greater shame that a hunter can feel than to be a convicted

game law violator. I will not take that chance.

For the life of me, I cannot understand why such a small issue

has been so difficult to resolve. In my home state of Kentucky, dove

hunting comprises about five percent of all hunting and angling activities. It has been the largest source of complaint in the Kentucky

Department of Fish and Wildlife. Are dove hunters that much more

difficult than other hunters and anglers? I don’t think so. The problem lies with the rules.

The definition of what is and isn’t a bona fide agricultural operation is ill defined. To some degree it is what an enforcement officer says it is. The rules don’t give sufficient weight to regional differences and farming practices and local tradition. If the vagueness

of the rules isn’t bad enough, this one-size-fits-all approach from

Washington makes the problem even worse. Add strict liability provisions which presume guilt and a no-win situation for hunters is

created.

At least one leader at the U.S. Fish and Wildlife Service knows

this all to be true. Noreen Clough, Director of the Fourth Region,

made a landmark decision in 1995. She came to an agreement with

the states in her region that the Departments of Fish and Wildlife

and the state extension services would decide what is an isn’t a

bona fide agricultural operation and what is and isn’t baiting. Since

the implementation of this agreement, baiting citations have reduced markedly. Complaints to the Kentucky Department of Fish

and Wildlife have diminished significantly. The problem of uneven

enforcement and strict liability and the presumption of guilt still

exists. That notwithstanding, Ms. Clough’s agreement has been a

success.

I believe that the intent of this agreement should be codified into

this law. It should take the place of the language calling for meaningful discussion between the Secretary of the Interior and the

states with regards to what is and isn’t baiting.

The U.S. Fish and Wildlife Service is the appropriate agency to

macro manage the dove flock. Their national presence and resources make it possible for them to know the condition of the flock

in general. Issues like setting bag limits are appropriate macro

management decisions and should be left to the Service. Micro

management decisions, such as the determination of what is and

isn’t baiting, are best made by the people closest to the situation.

This division of responsibility makes sense.

I have reviewed the testimony that was given on this subject last

year. The overwhelming advice from hunters, writers, association

and various experts was to codify simple, even handed and under-
48

standable laws regarding baiting for migratory fowl. The only people who differed from this opinion were the U.S. Fish and Wildlife

Service and other wildlife bureaucrats. It appears that their reason

is that by simplifying these laws, removing the doctrine of strict liability and having the presumption of guilt, it will make their job

of building a case against the hunter more difficult.

That in and of itself may be the best reason to simplify and clarify these rules. The treaty under which these regulations were

drafted was designed first to protect the resource and second the

consumptive user of the resource, not to make the job of law enforcement easier. Law enforcement serves people. People do not

serve law enforcement.

Finally, I would like to say that the dove flock is in absolutely

no danger. From its own pamphlet, the U.S. Fish and Wildlife

Service asserts that the flock in the continental United States is

475 million birds, of which approximately 45 million birds fall to

hunters guns. I am told that the average life span for a dove is

about a year. Given current bag limits, hunting has virtually no

impact on the dove flock. The baiting issue has no foundation in

conservation of the resource. It is strictly a moral issue.

No one who has testified before this committee last year or at

this hearing has asked for more or less stringent rules. We simply

ask for rules that we can understand and obey. We simply ask to

be presumed innocent, the same as bank robbers and horse thieves.

We are not criminals. It appears clear that if Ms. Clough’s agreement became the law of this land, this problem would be solved.

Maybe then the time and energy that has been wasted on this

issue could be turned to more productive issues, and I can get back

to dove hunting.

I would like to thank you.

[Statement of Terrance Sullivan may be found at the end of the

hearing.]

Mr. SAXTON. Thank you, Mr. Sullivan. Mr. Conner.

Mr. CONNER. Good afternoon, Mr. Chairman. If it please the

Chair, I would like to have my remarks that are in print made part

of the record, and I will just address a couple of points brought by

the Congressman from California.

Mr. SAXTON. That would be fine. Yes, sir.

STATEMENT OF CHARLES CONNER, GERMANTOWN,

TENNESSEE

Mr. CONNER. With respect to the changes in the law, I have been

hunting waterfowl migratory birds for more than 40 years, fortunately enough, came from the south on a farm where we were able

to do this tied directly to production agriculture. Approximately

1979 I became involved with the Federal enforcement of laws that

pertain to migratory gamebirds because of the fact that I was publishing a magazine, Waterfowlers World, which dealt strictly with

waterfowl.

During the years that have subsequently passed since the late

’70’s, I began writing about the subject, covering the agents in the

field, watching what they did, generally making a study, developing some good friendships along the way and renewing some others. I worked with people that I am sure Mr. Ricker knows and
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their sons and other agents that I am sure he is familiar with.

These agents have done a commendable job in the field.

The problem is that these agents are going to continue to make

good cases, I believe, irrespective of what we are told about the

case laws being their only access to it. These are the people that

will go and put in the extra time and effort to make sure that the

individual who creates the adverse impact on the resource is punished. And I believe that is all we are addressing here, is a fact

that we are going to change that a little bit. It is not the

unsuspecting lawyer from Memphis that goes out there the first

time waterfowl hunting and gets cited because he didn’t know an

area was baited.

Congressman Ambrose brought up the fact that he didn’t want

to be in the woods, I believe he said, with a man with a gun who

couldn’t tell whether he was hunting over a baited field. Well, I beg

to differ with him. It is very difficult to tell sometimes. And a lot

of that has to do with the agricultural procedure that goes on. That

is to say in the South if I am seeding wheat at the rate of three

bushels an acre and all of a sudden I start seeding it at 15, I am

going to do it for a reason other than to grow wheat. So these are

some of the things that I believe this bill addresses that are very

needed changes.

In conclusion, I would urge the committee to take heed of the testimony of Congressman Breaux. I found it very on point. I appreciate the committee’s time.

[Statement of Charles Conner may be found at the end of the

hearing.]

Mr. SAXTON. Thank you very much, Mr. Conner. Mr. Bonner.

STATEMENT OF FRED BONNER, CAROLINA ADVENTURE,

RALEIGH, NORTH CAROLINA

Mr. BONNER. Thank you, Mr. Chairman. I am going to go along

with a lot of the others here and ask if my testimony, written testimony, be entered in the record, and I will deviate from that just

a little bit.

I am a Fish and Wildlife biologist by trade. I have been a deputy

game warden over in the State of Delaware. I think I have met Mr.

Ricker on several occasions. I would also like to state for the record

that I am a former poacher and former baiter from Eastern North

Carolina. I put out many a bucket of corn for waterfowl when I was

growing up. I don’t do that now. I wouldn’t be caught dead putting

out bait for ducks or geese now, and I certainly wouldn’t hunt in

a baited field. It is against the law. I am saying this to familiarize

you with the fact that I know what I am talking about with it. I

have never been caught for baiting and hope I never am, but I am

scared to death to go in the field right now because of the fact that

it is so easy to be caught for baiting waterfowl when you haven’t

done anything.

When I was a young biologist over in Delaware, the first week

I was there I was invited to hunt in a goose field. The president

of Ducks Unlimited for the State of Delaware was the host on this

farm. I looked over the goose pond as good as I could. I asked the

man, I said please, I am new here, please, there is no bait here.

He said certainly not. We went on and hunted that day. The next
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day the Federal game wardens raided that pond. Norman Wilder,

who was director of Fish and Wildlife at that time, was in there

that day, and I guess this was the person that the Fish and Wildlife agents wanted.

What I had not been aware of and no matter how much I would

have looked for bait in that situation I would never have known

it was there. He was using what is called a duck plate. That is a

washtub that you put out in the goose pond full of shelled corn that

the geese come in and they feed on it. They go in and take this

washtub out, take it to the barn before the hunters get out there.

There is no bait there. There is no way you could possibly know

it was there. And yet I would have been just as guilty as the other

ones were in this case when they raided it to catch Norman Wilder.

Bob Halstead, incidentally, Mr. Ricker, was the game warden that

was handling that case at the time.

I have—I am currently editor of a magazine in North Carolina.

I have a syndicated outdoor column. Several years ago I had a syndicated radio show. It covered Virginia and North Carolina radio

networks. I had a call one day from a woman from P.E.T.A. I think

everybody knows who P.E.T.A. is. She said Mr. Bonner, we are getting ready to do something we would like for you to give us some

publicity on; we are going to take a bucket full of corn and go out

in front of every waterfowl blind we can find in North Carolina and

Virginia and throw it in front of every blind we can find, then we

are going to call the game wardens and tell them what we have

done; we haven’t broken any law, we are feeding the birdies, perfectly legal, but we are going to shut waterfowl hunting down. I

said lady, I am not going to give you any publicity on that, I am

sorry.

I don’t know whether she did that or whether she didn’t do that.

I never will know, but my point is that the anti-hunters, the

P.E.T.A. bunch, whatever, can literally shut waterfowl hunting

down. You are responsible even though all the corn is gone. Ten

days after it is gone you can’t hunt there. This happens very commonly.

Bill Wagner, Director of Fish and Wildlife in Delaware years ago,

somebody had a vendetta against him. The morning before waterfowl season, bright and early in the morning before he ever got out

there, they went out there and just threw a bucket full of corn in

front of his blind. They put him out of business for a minimum of

ten days.

We approached this subject in North Carolina with our North

Carolina Waterfowl Resources Commission several years ago. In

North Carolina we have a different state law. We are responsible

for bait within 300 yards of the blind where we are hunting. Again,

we had the no liability—strict liability, rather, standard there, but

the State of North Carolina has changed that. If a North Carolina

game warden now finds you hunting over a baited area within the

300 yards, you are given a temporary ticket. This ticket is then

turned over to his superior and they investigate this case. If you

should have known and you made every reasonable effort to see if

bait was there, then that ticket is torn up. If you have not looked

carefully in the judgment of the game warden’s supervisor, then

you will get a ticket and the fine is very stiff.
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And we are pretty well satisfied with our law in North Carolina.

300 yards is a reasonable thing. You can look there, but can you

imagine, that is 600 yards in diameter around your blind you are

responsible for. That water might be 20 feet deep out there. How

are you going to check this area for bait not that you put there,

necessarily, but that somebody else put there that would be out to

get you for some reason? And this is happening, and the anti-hunters are going to realize this. They are realizing this and they are

using this. They can shut down hunting for migratory birds by

doing that.

Thank you, Mr. Chairman.

[Statement of Fred Bonner may be found at the end of the hearing.]

Mr. SAXTON. Well, thank you. I don’t know that we need to clarify this situation too much more. I just have to ask Mr. Ricker one

question. First of all, I appreciate the job you fellows do. It is difficult and we support you, Mr. Ricker. I just have to mention this

one sentence in your written testimony that I noticed when I was

reading this before I came over here this morning. It says—the sentence in your testimony says, ‘‘have I ever charged someone for

hunting over bait that I truly believe they didn’t know the area

was baited? Yes, but these were very few and far between.’’ I don’t

understand why anybody would ever charge anybody with baiting

where they were convinced that somebody didn’t know the bait was

there.

Mr. RICKER. The way the law is, the way the law is, it is impossible and it would be impossible to try to determine actually if everybody knew the bait was out. People that bait these areas are not

going to tell you if they know the culprit is going to be the only

person that baited the area. They are not going to voluntarily tell

you yes, I put it there. In my time on, I had a way with people

after they were caught it didn’t matter whether they would tell me

the truth or not, because they were going to be charged anyway.

If a fellow had grain in back of his truck, grain in his boat, I had

seen him at the area two or three days before, I had watched the

birds—we don’t have the luxury of having the number of Fish and

Wildlife agents on the Eastern Shore, as you saw in my written

testimony, that we had back in the ’60’s and ’70’s. If we did, then

maybe we could do away with the strict liability and we could have

a game warden in the sky behind every blind and we could prove

what hunters knew. But right now we just don’t have that.

Mr. SAXTON. Well, I want you to charge people that are baiting.

I mean, that is what this law is all about. We want you to do that.

Every member of this committee, I will bet you, wants you to

charge people who are baiting, but that is not what this sentence

says. This sentence says, ‘‘have I ever charged someone for hunting

over bait that I truly believed they didn’t know the area was baited?’’

Mr. RICKER. And I would say yes. I have in my career. I have

probably charged people for hunting over bait that truly didn’t

know. I have caught 1000 people in my career hunting over bait.

I have heard the same thing from 1000 people, nobody knew the

bait was there.

Mr. SAXTON. Couldn’t you issue them a warning or something?
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Mr. RICKER. Sir, if we did that, migratory birds would be depleted from the Eastern Shore, which they nearly are.

Mr. SAXTON. The people who you believe truly didn’t know the

area was baited?

Mr. RICKER. That is correct. That is absolutely correct. They are

few and far between. Probably on both hands in my whole career

out of 1000 people did I truly really didn’t believe they knew the

bait was there. But I couldn’t prove that they did.

Mr. SAXTON. Well, I am glad there were a few that you charged

only that didn’t know the bait was there, but I just—I wouldn’t

have charged any. If I really, truly thought somebody didn’t know

the bait was there, I will be damned if I would charge them. I don’t

understand.

Mr. RICKER. The law does not require that. The Fourth Circuit

has argued that time after time after time. We can’t prove what

that individual knows. I am only assuming in my mind they didn’t

know. Maybe they were good. Maybe they could fake me out.

Maybe they truly did know, I don’t know, but in my mind, no, I

believe there was probably a handful of people or so that I truly

charged that didn’t know the bait was there. But I could not prove

that. Maybe they foxed me.

Mr. SAXTON. Well, I wish I could chat with everybody longer

about this, because it is really an interesting and important subject, but I have got to go. We have been here for the better part

of three hours, in fact more than three hours, and I have got people

waiting for me in my office. So I thank all of you for coming from

your homes to be here to share this information and your experiences with us.

[Letter from Stephen Oelrich may be found at the end of the

hearing.]

Mr. SAXTON. The hearing is adjourned. Thank you very much.

[Whereupon, at 1:20 p.m., the Subcommittee was adjourned; and

the following was submitted for the record:]

[Additional material submitted for the record follows.]A
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