I

104TH CONGRESS

2D SESSION H. R. 4077

To clarify hunting prohibitions and provide for wildlife habitat under the

Migratory Bird Treaty Act.

IN THE HOUSE OF REPRESENTATIVES

SEPTEMBER 12, 1996

Mr. YOUNG of Alaska (for himself and Mr. BREWSTER) introduced the

following bill; which was referred to the Committee on Resources

A BILL

To clarify hunting prohibitions and provide for wildlife

habitat under the Migratory Bird Treaty Act.

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 of 1996’’.

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 as amended, the Secretary of the Interior is author6 ized to promulgate regulations specifying when, how,

7 and whether migratory birds may be hunted.

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

10 birds to prevent an excessive harvest of the resource.

11 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 birds by

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

18 (4) The prohibitions regarding the hunting of

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

20 bait, have been fraught with interpretive difficulties

21 on the part of law enforcement, the hunting commu22 nity, and courts of law. Hunters who desire to com23 ply with applicable regulations have been subject to

24 citation for violations of the regulations due to the

25 lack of clarity, inconsistent interpretations, and en-
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1 forcement. The baiting regulations have been the

2 subject of multiple congressional hearings and a law

3 enforcement advisory commission.

4 (5) Restrictions on the hunting of migratory

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

6 area, must be clarified in a manner that recognizes

7 the national and international importance of protect8 ing the migratory bird resource while ensuring con9 sistency and appropriate enforcement including the

10 principles of ‘‘fair chase’’. No baiting restrictions

11 should act as a detriment to the benefits of habitat

12 management including wildlife food crops.

13 SEC. 3. CLARIFYING HUNTING PROHIBITIONS.

14 Section 3 of the Migratory Bird Treaty Act (16

15 U.S.C. 704) is amended as follows:

16 (1) By inserting ‘‘(a)’’ after ‘‘SEC. 3.’’.

17 (2) By adding at the end the following:

18 ‘‘(b) No person shall take migratory game birds—

19 ‘‘(1) with a trap, snare, net, rifle, pistol, swivel

20 gun, shotgun larger than 10 gauge, punt gun, bat21 tery gun, machine gun, fish hook, poison, drug, ex22 plosive, or stupefying substance;

23 ‘‘(2) with a shotgun of any description capable

24 of holding more than 3 shells, unless it is plugged

25 with a one-piece filler, incapable of removal without
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1 disassembling the gun, so that its total capacity does

2 not exceed 3 shells;

3 ‘‘(3) from or by means, aid, or use of a sinkbox

4 or any other type of low floating device, having a de5 pression affording a hunter a means of concealment

6 beneath the surface of the water;

7 ‘‘(4) from or by means, aid or use of any motor

8 vehicle, motor-driven land conveyance, or aircraft of

9 any kind, except that paraplegics and persons miss10 ing 1 or both legs may take from any stationary

11 motor vehicle or stationary motor-driven land con12 veyance;

13 ‘‘(5)(A) except as provided in subparagraph

14 (B), from or by means of any motorboat or other

15 craft having a motor attached, or any sailboat, un16 less the motor has been completely shut off and/or

17 the sails furled, and its progress therefrom has

18 ceased;

19 ‘‘(B) a craft under power may be used to re20 trieve dead or crippled birds (except that crippled

21 birds may not be shot from such craft under power

22 except in the seaduck area, as provided by regula23 tions issued by the Secretary of the Interior);

24 ‘‘(6) by means or aid of any motor-driven land,

25 water, or air conveyance, or any sailboat used for
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1 the purpose of or resulting in the concentrating,

2 driving, rallying or stirring up of any migratory bird;

3 ‘‘(7) by the use or aid of live birds as decoys,

4 including on any area where tame or captive live

5 ducks or geese are present, unless such birds are

6 and have been for a period of 10 consecutive days

7 prior to such taking, confined within an enclosure

8 which substantially reduces the audibility of their

9 calls and totally conceals such birds from the sight

10 of wild migratory waterfowl;

11 ‘‘(8) by the use or aid of recorded or electrically

12 amplified bird calls or sounds, or recorded or elec13 trically amplified imitations of bird calls or sounds;

14 and

15 ‘‘(9) while possessing shot (either in shotshells

16 or loose shot for muzzle-loading) other than steel

17 shot, bismuth-tin shot, or such other shot as may be

18 approved as nontoxic by the Secretary of the Inte19 rior; this paragraph applies only to the taking of

20 Anatidae (ducks, geese, including brant, and swans),

21 coots (Fulica americana) and any species that make

22 up aggregate bag limits during concurrent seasons

23 with the former in areas designated as nontoxic shot

24 zones by the Secretary of the Interior.
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1 ‘‘(c)(1) No person shall take any migratory bird by

2 the aid of baiting, or on or over any baited area, where

3 that person knows or should have known through the exer4 cise of reasonable diligence that bait was present.

5 ‘‘(2) Nothing in this subsection shall prohibit—

6 ‘‘(A) the taking of all migratory game birds, in7 cluding waterfowl, on or over standing crops, flooded

8 standing crops (including aquatics), flooded har9 vested croplands, grain crops properly shocked on

10 the field where grown, or grains found scattered

11 solely as the result of normal agricultural planting

12 or harvesting;

13 ‘‘(B) the taking of all migratory game birds, ex14 cept waterfowl, on or over any lands where shelled,

15 shucked, or unshucked corn, wheat or other grain,

16 salt, or other feed has been distributed or scattered

17 as a result of normal agricultural operations or pro18 cedures or as a result of manipulation of a crop or

19 other feed on the land where grown for wildlife man20 agement purposes; or

21 ‘‘(C) the taking of any migratory game birds,

22 including waterfowl, on or over moist soil on emer23 gent marsh plants—

24 ‘‘(i) that are on the land where the plants

25 were grown;
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1 ‘‘(ii) that have been mowed, chopped,

2 disced, or otherwise manipulated; and

3 ‘‘(iii) the presence of which is the result of

4 normal wetland habitat practices performed by

5 the owner of record or any agent of the owner.

6 ‘‘(3) For purposes of paragraph (2)(C), the term

7 ‘moist soil on emergent marsh plants’—

8 ‘‘(A) means those species of wetland plants

9 which occur naturally in unmanaged wetlands; and

10 ‘‘(B) includes, but is not limited to, watergrass/

11 wild millet (Eschinochloa spp.), smartweed

12 (Polygonum spp.), bulrush (Scirpus spp.), swamp

13 timothy (Heleochloa schoenoides), spike rush

14 (Eleocharis spp.), wild rice (Zizania spp.), sedge

15 (Cyperus spp.), cocklebur (Xanthum spp.), sprangle

16 top (Leptochloa spp.), curly dock (Rumex spp.),

17 Pigweed (Amaranthus spp.), cattail (Typha spp.),

18 beggarticks (Bidens spp.), giant reed grass

19 (Phragmites spp.), joint grass (Paspalum spp.),

20 johnson grass (Sorghum spp.), and goosefoot (Che21 nopodium spp.).

22 ‘‘(4) As used in this subsection:

23 ‘‘(A) The term ‘baiting’ means the intentional

24 placing, exposing, depositing, distributing, or scat25 tering of shelled, shucked, or unshucked corn, wheat
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1 or other grain, salt, or other feed that constitutes

2 for such birds an attraction, on or over any areas

3 where hunters are attempting to take migratory

4 game birds.

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

6 where shelled, shucked, or unshucked corn, wheat or

7 other grain, salt, or other feed whatsoever capable of

8 attracting migratory game birds is intentionally

9 placed, exposed, deposited, distributed, or scattered;

10 such an area shall remain a baited area for 10 days

11 following complete removal of all such corn, wheat or

12 other grain, salt, or other feed.

13 ‘‘(C)(i) The term ‘normal agricultural oper14 ations’ includes the growing of crops where harvest15 ing does not take place, planting for erosion control,

16 top sowing of crops, and distribution or scattering of

17 grains if such operations are normal in a region, ex18 cept that the term shall not include the distributing

19 or scattering of grain or other feed once it has been

20 removed from or stored on a field where grown un21 less it is for a normal agricultural operation for feed

22 for farm animals in the region.

23 ‘‘(ii) Any other activity may be considered to be

24 a normal agricultural operation only if the Secretary

25 of the Interior, after meaningful consultation with
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1 the director of appropriate cooperative State re2 search, education, and extension services, State fish

3 and wildlife agencies, and State extension agricul4 tural offices—

5 ‘‘(I) determines that the activity is normal

6 within the specific regional area in which it oc7 curs; and

8 ‘‘(II) publishes the determination annually

9 in the Federal Register in conjunction with

10 other migratory bird hunting regulations, after

11 public review and comment.

12 ‘‘(D) The terms ‘attraction’ and ‘attracting’

13 mean that the bait was a major contributing factor

14 in luring the migratory birds to within a reasonable

15 shotgun range given other such factors as the geo16 graphic location of the hunting venue, the physical

17 characteristics of the hunting area, and the hunting

18 methods used by the hunters.’’.

19 SEC. 4. ACQUISITION OF MIGRATORY BIRD REFUGES.

20 Section 6 of the Migratory Bird Treaty Act (16

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

22 (1) By redesignating subsection ‘‘(c)’’ as sub23 section ‘‘(d)’’.

24 (2) By inserting after subsection (b), the follow25 ing:
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1 ‘‘(c) All fines and penalties assessed and recovered

2 under this provision shall be deposited into the migratory

3 bird conservation fund established under section 4 of the

4 Act of March 16, 1934 (16 U.S.C. 718d) to be used only

5 for the location, ascertainment, and acquisition of suitable

6 areas for migratory bird refuges under this Act.’’.

7 SEC. 5. PENALTIES.

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

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

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

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

12 (2) By adding the following at the end:

13 ‘‘(2) In lieu of seizing any personal property, the Sec14 retary of the Interior shall permit the owner or operator

15 of the personal property to post bond or other surety pend16 ing the disposition of any proceeding under this Act.’’.

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