    [House Hearing, 105 Congress]
    [From the U.S. Government Publishing Office]

                        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

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     42-875 CC                   WASHINGTON : 1997
    ------------------------------------------------------------------------------
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                             COMMITTEE ON RESOURCES

                          DON YOUNG, Alaska, Chairman
    W.J. (BILLY) TAUZIN, Louisiana       GEORGE MILLER, California
    JAMES V. HANSEN, Utah                EDWARD J. MARKEY, Massachusetts
    JIM SAXTON, New Jersey               NICK J. RAHALL II, West Virginia
    ELTON GALLEGLY, California           BRUCE F. VENTO, Minnesota
    JOHN J. DUNCAN, Jr., Tennessee       DALE E. KILDEE, Michigan
    JOEL HEFLEY, Colorado                PETER A. DeFAZIO, Oregon
    JOHN T. DOOLITTLE, California        ENI F.H. FALEOMAVAEGA, American
    WAYNE T. GILCHREST, Maryland             Samoa
    KEN CALVERT, California              NEIL ABERCROMBIE, Hawaii
    RICHARD W. POMBO, California         SOLOMON P. ORTIZ, Texas
    BARBARA CUBIN, Wyoming               OWEN B. PICKETT, Virginia
    HELEN CHENOWETH, Idaho               FRANK PALLONE, Jr., New Jersey
    LINDA SMITH, Washington              CALVIN M. DOOLEY, California
    GEORGE P. RADANOVICH, California     CARLOS A. ROMERO-BARCELO, Puerto
    WALTER B. JONES, Jr., North              Rico
        Carolina                         MAURICE D. HINCHEY, New York
    WILLIAM M. (MAC) THORNBERRY, Texas   ROBERT A. UNDERWOOD, Guam
    JOHN SHADEGG, Arizona                SAM FARR, California
    JOHN E. ENSIGN, Nevada               PATRICK J. KENNEDY, Rhode Island
    ROBERT F. SMITH, Oregon              ADAM SMITH, Washington
    CHRIS CANNON, Utah                   WILLIAM D. DELAHUNT, Massachusetts
    KEVIN BRADY, Texas                   CHRIS JOHN, Louisiana
    JOHN PETERSON, Pennsylvania          DONNA CHRISTIAN-GREEN, Virgin
    RICK HILL, Montana                       Islands
    BOB SCHAFFER, Colorado               RON KIND, Wisconsin
    JIM GIBBONS, Nevada                  LLOYD DOGGETT, Texas
    MICHAEL D. CRAPO, Idaho

                         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       NEIL ABERCROMBIE, Hawaii
    WAYNE T. GILCHREST, Maryland         SOLOMON P. ORTIZ, Texas
    WALTER B. JONES, Jr., North          FRANK PALLONE, Jr., New Jersey
        Carolina                         SAM FARR, California
    JOHN PETERSON, Pennsylvania          PATRICK J. KENNEDY, Rhode Island
    MICHAEL D. CRAPO, Idaho
                        Harry Burroughs, Staff Director
                        John Rayfield, Legislative Staff
                    Christopher Stearns, Democratic Counsel

                                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

                    HUNTING AND WILDLIFE HABITAT UNDER MBTA

                                  ----------

                             THURSDAY, MAY 15, 1997

            House of Representatives, Subcommittee on Fisheries
                Conservation, Wildlife and Oceans, Committee 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 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.

    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 thorough 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

        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.
    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 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?
        (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.
        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 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 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 Migratory 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 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, 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 difference 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 important, 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, 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 intent 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 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 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 whatsoever 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 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 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 demonstrating 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.
        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-by-county 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 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.
        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
    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. 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.
        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 occurring. 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. 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 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.
        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.

    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 so-
    called 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.
        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 affiliates 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.
        [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 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 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 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.
        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 people 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 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.
        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. 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.

        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 understandable 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 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 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.
        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?
        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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