II

105TH CONGRESS

1ST SESSION S. 1533

To amend the Migratory Bird Treaty Act to clarify restrictions under that

Act on baiting, and for other purposes.

IN THE SENATE OF THE UNITED STATES

NOVEMBER 13, 1997

Mr. BREAUX (for himself and Mr. COCHRAN) introduced the following bill;

which was read twice and referred to the Committee on Environment and

Public Works

A BILL

To amend the Migratory Bird Treaty Act to clarify restrictions under that Act on baiting, and for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Migratory Bird Treaty

5 Reform Act’’.

6 SEC. 2. FINDINGS.

7 The Congress makes the following findings:

8 (1) The Migratory Bird Treaty Act was enacted

9 in 1918 to implement the 1916 Convention for the

10 Protection of Migratory Birds between the United
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1 States and Great Britain (for Canada). The Act was

2 later amended to reflect similar agreements with

3 Mexico, Japan, and the former Soviet Union.

4 (2) Pursuant to the Migratory Bird Treaty Act,

5 the Secretary of the Interior is authorized to pro6 mulgate regulations specifying when, how, and

7 whether migratory birds may be hunted.

8 (3) Contained within these regulations are pro9 hibitions on certain methods of hunting migratory

10 game birds to better manage and conserve this re11 source. These prohibitions, many of which were rec12 ommended by sportsmen, have been in place for over

13 60 years and have received broad acceptance among

14 the hunting community with one principal exception

15 relating to the application and interpretation of the

16 prohibitions on the hunting of migratory game birds

17 by the aid of baiting, or on or over any baited area.

18 (4) The prohibitions regarding the hunting of

19 migratory game birds by the aid of bait, or on or

20 over bait, have been fraught with interpretive dif21 ficulties on the part of law enforcement, the hunting

22 community, and courts of law. Hunters who desire

23 to comply with applicable regulations have been sub24 ject to citation for violations of the regulations due

25 to the lack of clarity, inconsistent interpretations,
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1 and enforcement. The baiting regulations have been

2 the subject of multiple congressional hearings and a

3 law enforcement advisory commission.

4 (5) Restrictions on the hunting of migratory

5 game birds by the aid of baiting, or on or over any

6 baited area, must be clarified in a manner that rec7 ognizes the national and international importance of

8 protecting the migratory bird resource while ensur9 ing consistency and appropriate enforcement includ10 ing the principles of ‘‘fair chase’’.

11 SEC. 3. CLARIFYING HUNTING PROHIBITIONS.

12 Section 3 of the Migratory Bird Treaty Act (16

13 U.S.C. 704) is amended—

14 (1) by inserting ‘‘(a)’’ after ‘‘SEC. 3.’’; and

15 (2) by adding at the end the following:

16 ‘‘(b)(1) No person shall—

17 ‘‘(A) take any migratory game bird by the aid

18 of baiting, or on or over any baited area, where the

19 person knows or reasonably should have known that

20 the area is a baited area; or

21 ‘‘(B) place or direct the placement of bait on or

22 adjacent to an area for the purpose of causing, in23 ducing, or allowing any person to take or attempt to

24 take any migratory game bird by the aid of baiting

25 or on or over the baited area.
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1 ‘‘(2) Nothing in this subsection prohibits any of the

2 following:

3 ‘‘(A) The taking of any migratory game bird,

4 including waterfowl, from a blind or other place of

5 concealment camouflaged with natural vegetation.

6 ‘‘(B) The taking of any migratory game bird,

7 including waterfowl, on or over—

8 ‘‘(i) standing crops, flooded standing crops

9 (including aquatics), flooded harvested crop10 lands, grain crops properly shocked on the field

11 where grown; or

12 ‘‘(ii) grains, agricultural seeds, or other

13 feed scattered solely as a result of—

14 ‘‘(I) accepted soil stabilization prac15 tices or accepted agricultural planting, har16 vesting, or manipulation after harvest; or

17 ‘‘(II) entering or exiting of areas by

18 hunters or normal hunting activities such

19 as decoy placement or bird retrieval, if rea20 sonable care is used to minimize the scat21 tering of grains, agricultural seeds, or

22 other feed.

23 ‘‘(C) The taking of any migratory game bird,

24 except waterfowl, on or over any lands where salt,
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1 grain, or other feed has been distributed or scattered

2 as a result of—

3 ‘‘(i) accepted soil stabilization practices;

4 ‘‘(ii) accepted agricultural operations or

5 procedures; or

6 ‘‘(iii) the alteration for wildlife manage7 ment purposes of a crop or other feed on the

8 land where it was grown, other than distribu9 tion of grain or other feed after the grain or

10 other feed is harvested or removed from the site

11 where it was grown.

12 ‘‘(3) As used in this subsection:

13 ‘‘(A)(i) Except as otherwise provided in this

14 Act, the term ‘baiting’ means the intentional or un15 intentional placement of salt, grain, or other feed ca16 pable of attracting migratory game birds, in such a

17 quantity and in such a manner as to serve as an at18 tractant to such birds to, on, or over an area where

19 hunters are attempting to take them, by—

20 ‘‘(I) placing, exposing, depositing, distrib21 uting, or scattering salt, grain, or other feed

22 grown off-site;

23 ‘‘(II) redistributing grain or other feed

24 after it is harvested or removed from the site

25 where grown;
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1 ‘‘(III) altering agricultural crops, other

2 than by accepted agricultural planting, harvest3 ing, or manipulation after harvest, altering mil4 let planted for nonagricultural purposes (plant5 ed millet), or altering other vegetation (as spec6 ified in migratory bird hunting regulations is7 sued by the Secretary of the Interior) planted

8 for nonagricultural purposes; or

9 ‘‘(IV) gathering, collecting, or concentrat10 ing natural vegetation, planted millet, or other

11 vegetation (as specified in migratory bird hunt12 ing regulations issued by the Secretary of the

13 Interior) planted for nonagricultural purposes,

14 following alteration or harvest.

15 ‘‘(ii) The term ‘baiting’ does not include—

16 ‘‘(I) redistribution, alteration, or con17 centration of grain or other feed caused by

18 flooding, whether natural or man induced; or

19 ‘‘(II) alteration of natural vegetation on

20 the site where grown, other than alteration de21 scribed in clause (i)(IV).

22 ‘‘(iii) With respect only to the taking of water23 fowl, the term ‘baiting’—

24 ‘‘(I) does not include, with respect to the

25 first special September waterfowl hunting sea-
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1 son locally in effect or any subsequent water2 fowl hunting season, an alteration of planted

3 millet or other vegetation (as specified in such

4 regulations), other than an alteration described

5 in clause (i)(IV), occurring before the 10-day

6 period preceding the opening date (as published

7 in the Federal Register) of that first special

8 season; and

9 ‘‘(II) does not include, with respect to the

10 first regular waterfowl hunting season locally in

11 effect or any subsequent waterfowl hunting sea12 son, such an alteration occurring before the 10-

13 day period preceding the opening date (as pub14 lished in the Federal Register) of that first reg15 ular season.

16 ‘‘(B) The term ‘baited area’ means any area

17 that contains salt, grain, or other feed referred to in

18 subparagraph (A)(i) that was placed in that area by

19 baiting. Such an area shall remain a baited area for

20 10 days following complete removal of such salt,

21 grain, or other feed.

22 ‘‘(C) The term ‘accepted agricultural planting,

23 harvesting, and manipulation after harvest’ means

24 techniques of planting, harvesting, and manipulation

25 after harvest that are—
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1 ‘‘(i) used by agricultural operators in the

2 area for agricultural purposes; and

3 ‘‘(ii) approved by the State fish and wild4 life agency after consultation with the Coopera5 tive State Research, Education, and Extension

6 Service, the Natural Resources Conservation

7 Service, and the United States Fish and Wild8 life Service.

9 ‘‘(D) The term ‘accepted agricultural operations

10 or procedures’ means techniques that are—

11 ‘‘(i) used by agricultural operators in the

12 area for agricultural purposes; and

13 ‘‘(ii) approved by the State fish and wild14 life agency after consultation with the State Co15 operative State Research, Education, and Ex16 tension Service, the State Office of the Natural

17 Resources Conservation Service, and the United

18 States Fish and Wildlife Service.

19 ‘‘(E) The term ‘accepted soil stabilization prac20 tices’ means techniques that are—

21 ‘‘(i) used in the area solely for soil sta22 bilization purposes, including erosion control;

23 and

24 ‘‘(ii) approved by the State fish and wild25 life agency after consultation with the State Co-
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1 operative State Research, Education, and Ex2 tension Service, the State Office of the Natural

3 Resources Conservation Service, and the United

4 States Fish and Wildlife Service.

5 ‘‘(F) With respect only to planted millet or

6 other vegetation (as designated in migratory bird

7 hunting regulations issued by the Secretary of the

8 Interior) planted for nonagricultural purposes, the

9 term ‘planted’—

10 ‘‘(i) subject to clause (ii), means sown with

11 seeds that have been harvested; and

12 ‘‘(ii) does not include alteration of mature

13 stands of planted millet or of such other vegeta14 tion planted for nonagricultural purposes.

15 ‘‘(G) The term ‘migratory game bird’ means

16 any migratory bird included in the term ‘migratory

17 game birds’ under part 20.11 of title 50, Code of

18 Federal Regulations, as in effect October 3, 1997.’’.

19 SEC. 4. PENALTIES.

20 Section 6(c) of the Migratory Bird Treaty Act (16

21 U.S.C. 707(c)) is amended as follows:

22 (1) By striking ‘‘All guns,’’ and inserting ‘‘(1)

23 Except as provided in paragraph (2), all guns’’.

24 (2) By adding the following at the end:
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1 ‘‘(2) In lieu of seizing any personal property not cru2 cial to the prosecution of the alleged offense, the Secretary

3 of the Interior shall permit the owner or operator of the

4 personal property to post bond or other collateral pending

5 the disposition of any proceeding under this Act.’’.

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