[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
U.S. GOVERNMENT PRINTING OFFICE
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
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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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