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105TH CONGRESS

1ST SESSION H. R. 741

To clarify hunting prohibitions and provide for wildlife habitat under the

Migratory Bird Treaty Act.

IN THE HOUSE OF REPRESENTATIVES

FEBRUARY 12, 1997

Mr. YOUNG of Alaska (for himself, Mr. TANNER, and Mr. STEARNS) 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 1997’’.

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 better manage and conserve this 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
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1 lack of clarity, inconsistent interpretations, and en2 forcement. The baiting regulations have been the

3 subject of multiple congressional hearings and a law

4 enforcement advisory commission.

5 (5) Restrictions on the hunting of migratory

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

7 area, must be clarified in a manner that recognizes

8 the national and international importance of protect9 ing the migratory bird resource while ensuring con10 sistency and appropriate enforcement including the

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

12 should act as a detriment to the benefits of habitat

13 management including wildlife food crops.

14 SEC. 3. CLARIFYING HUNTING PROHIBITIONS.

15 Section 3 of the Migratory Bird Treaty Act (16

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

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

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

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

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

21 gun, shotgun larger than 10 gauge, punt gun, bat22 tery gun, machine gun, fish hook, poison, drug, ex23 plosive, or stupefying substance;

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

25 of holding more than 3 shells, unless it is plugged
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1 with a one-piece filler, incapable of removal without

2 disassembling the gun, so that its total capacity does

3 not exceed 3 shells;

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

5 or any other type of low floating device, having a de6 pression affording a hunter a means of concealment

7 beneath the surface of the water;

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

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

10 any kind, except that paraplegics and persons miss11 ing 1 or both legs may take from any stationary

12 motor vehicle or stationary motor-driven land con13 veyance;

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

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

16 craft having a motor attached, or any sailboat, un17 less the motor has been completely shut off and/or

18 the sails furled, and its progress therefrom has

19 ceased; and

20 ‘‘(B) a craft under power may be used to re21 trieve dead or crippled birds (except that crippled

22 birds may not be shot from such craft under power

23 except in the seaduck area, as provided by regula24 tions issued by the Secretary of the Interior);
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1 ‘‘(6) by means or aid of any motor-driven land,

2 water, or air conveyance, or any sailboat used for

3 the purpose of or resulting in the concentrating,

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

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

6 including on any area where tame or captive live

7 ducks or geese are present, unless such birds are

8 and have been for a period of 10 consecutive days

9 prior to such taking, confined within an enclosure

10 which substantially reduces the audibility of their

11 calls and totally conceals such birds from the sight

12 of wild migratory waterfowl;

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

14 amplified bird calls or sounds, or recorded or elec15 trically amplified imitations of bird calls or sounds;

16 and

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

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

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

20 approved as nontoxic by the Secretary of the Inte21 rior; this paragraph applies only to the taking of

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

23 coots (Fulica americana) and any species that make

24 up aggregate bag limits during concurrent seasons
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1 with the former in areas designated as nontoxic shot

2 zones by the Secretary of the Interior.

3 ‘‘(c)(1) No person shall take any migratory bird by

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

5 that person knows or should have known through the exer6 cise of reasonable diligence that bait was present.

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

8 ‘‘(A) the taking of all migratory game birds, in9 cluding waterfowl, on or over standing crops, flooded

10 standing crops (including aquatics), flooded har11 vested croplands, grain crops properly shocked on

12 the field where grown, or grains found scattered

13 solely as the result of normal agricultural planting

14 or harvesting; or

15 ‘‘(B) the taking of all migratory game birds, ex16 cept waterfowl, on or over any lands where shelled,

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

18 salt, or other feed has been distributed or scattered

19 as a result of normal agricultural operations or as

20 a result of manipulation of a crop or other feed on

21 the land where grown for wildlife management pur22 poses.

23 ‘‘(3) As used in this subsection:
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1 ‘‘(A) The term ‘baiting’ means the intentional

2 placing, exposing, depositing, distributing, or scat3 tering of shelled, shucked, or unshucked corn, wheat

4 or other grain, salt, or other feed that constitutes

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

6 where hunters are attempting to take migratory

7 game birds.

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

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

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

11 attracting migratory game birds is intentionally

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

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

14 following complete removal of all such corn, wheat or

15 other grain, salt, or other feed.

16 ‘‘(C)(i) The term ‘normal agricultural oper17 ations’ includes the growing of crops where harvest18 ing does not take place, planting for erosion control,

19 top sowing of crops, and distribution or scattering of

20 grains if such operations are normal in a region, ex21 cept that the term shall not include the distributing

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

23 removed from or stored on a field where grown un24 less it is for a normal agricultural operation for feed

25 for farm animals in the region.
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1 ‘‘(ii) Any other activity may be considered to be

2 a normal agricultural operation only if the Secretary

3 of the Interior, after meaningful consultation with

4 the director of appropriate cooperative State re5 search, education, and extension services, State fish

6 and wildlife agencies, and State extension agricul7 tural offices—

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

9 within the specific regional area in which it oc10 curs; and

11 ‘‘(II) publishes the determination annually

12 in the Federal Register in conjunction with

13 other migratory bird hunting regulations, after

14 public review and comment.

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

16 mean that the bait was a major contributing factor

17 in luring the migratory birds to within a reasonable

18 shotgun range given other such factors as the geo19 graphic location of the hunting venue, the physical

20 characteristics of the hunting area, and the hunting

21 methods used by the hunters.’’.

22 SEC. 4. ACQUISITION OF MIGRATORY BIRD REFUGES.

23 Section 6 of the Migratory Bird Treaty Act (16

24 U.S.C. 707) is amended as follows:
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1 (1) By redesignating subsection ‘‘(c)’’ as sub2 section ‘‘(d)’’.

3 (2) By inserting after subsection (b), the follow4 ing:

5 ‘‘(c) All fines and penalties assessed and recovered

6 under this provision shall be deposited into the migratory

7 bird conservation fund established under section 4 of the

8 Act of March 16, 1934 (16 U.S.C. 718d).’’.

9 SEC. 5. PENALTIES.

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

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

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

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

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

15 ‘‘(2) In lieu of seizing any personal property, (except

16 for machine guns and shotguns restricted under section

17 3(b)2) the Secretary of the Interior shall permit the owner

18 or operator of the personal property to post bond or other

19 surety pending the disposition of any proceeding under

20 this Act.’’.

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