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



 
                    MIGRATORY BIRD TREATY REFORM ACT

=======================================================================

                                HEARING

                               before the

      SUBCOMMITTEE ON FISHERIES CONSERVATION, WILDLIFE AND OCEANS

                                 of the

                         COMMITTEE ON RESOURCES
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED FIFTH CONGRESS

                             FIRST SESSION

                                   on

                                H.R. 741

                               __________

                      MAY 15, 1997--WASHINGTON, DC

                               __________

                           Serial No. 105-23

                               __________

           Printed for the use of the Committee on Resources


                                


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                         COMMITTEE ON RESOURCES

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

                     Lloyd A. Jones, Chief of Staff
                   Elizabeth Megginson, Chief Counsel
              Christine Kennedy, Chief Clerk/Administrator
                John Lawrence, Democratic Staff Director
                                 ------                                

      Subcommittee on Fisheries Conservation, Wildlife and Oceans

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



                            C O N T E N T S

                              ----------                              
                                                                   Page

Hearing held May 15, 1997........................................     1

Statement of Members:
    Abercrombie, Hon. Neil, a Representative in Congress from the 
      State of Hawaii............................................     3
    Saxton, Hon. Jim, a Representative in Congress from the State 
      of New Jersey; and Chairman, Subcommittee on Fisheries 
      Conservation, Wildlife and Oceans..........................     1
        Prepared statement of....................................     2
    Stearns, Hon. Cliff, a Representative in Congress from the 
      State of Florida...........................................     8
        Prepared statement of....................................    10
    Young, Hon. Don, a Representative in Congress from the State 
      of Alaska, prepared statement of...........................     3

Statement of Witnesses:
    Boe, William, Gainesville, Florida...........................    42
        Prepared statement of....................................   143
    Bonner, Fred, Carolina Adventure, Raleigh, North Carolina....    49
        Prepared statement of....................................   167
    Boynton, Stephen S., Henke and Associates....................    31
        Prepared statement of....................................   102
    Breaux, Hon. John, a Senator in Congress from the State of 
      Louisiana..................................................    11
        Prepared statement of....................................    13
    Conner, Charles, Germantown, Tennessee.......................    48
        Prepared statement of....................................   164
    Horn, William P., Birch, Horton, Bittner and Cherot..........    29
        Prepared statement of....................................    99
    Johnson, W. Ladd, Board Member, National Waterfowl Federation    41
        Prepared statement of....................................   140
    Lamson, Susan, Director of Conservation, Wildlife and Natural 
      Resources Division, National Rifle Association.............    39
        Prepared statement of....................................   134
    Limmer, Dan, Regional Executive, National Wildlife Federation    36
        Prepared statement of....................................   124
    Manning, Brent, Director, Illinois Department of Natural 
      Resources..................................................    27
        Prepared statement of....................................    70
    Ricker, Vernon, Retired Special Agent, U.S. Fish and Wildlife 
      Service, Salisbury, Maryland...............................    45
        Prepared statement of....................................   154
    Rosen, Dr. Rudolph, Executive Director, Safari Club 
      International..............................................    35
        Prepared statement of....................................   119
    Sparrowe, Rollin, President, Wildlife Management Institute...    38
        Prepared statement of....................................   130
    Streeter, Robert, Assistant Director for Refuges and 
      Wildlife, U.S. Fish and Wildlife Service...................    23
        Prepared statement of....................................    62
    Sullivan, Terrance J., Secretary, League of Kentucky 
      Sportsmen, Prospect, Kentucky..............................    47
        Prepared statement of....................................   161

Additional material supplied:
    Letter from the Subcommittee Staff to Members of the 
      Subcommittee on Fisheries Conservation, Wildlife and Oceans     4
    Text of H.R. 741.............................................    53



                HUNTING AND WILDLIFE HABITAT UNDER MBTA

                              ----------                              


                         THURSDAY, MAY 15, 1997

        House of Representatives, Subcommittee on Fisheries 
            Conservation, Wildlife and Oceans, Committee on 
            Resources,
                                                    Washington, DC.
    The Subcommittee met, pursuant to call, at 10:30 a.m., Room 
1324 Longworth House Office Building, Hon. Jim Saxton (Chairman 
of the Subcommittee) presiding.

 STATEMENT OF HON. JIM SAXTON, A U.S. REPRESENTATIVE FROM NEW 
 JERSEY; AND CHAIRMAN, SUBCOMMITTEE ON FISHERIES CONSERVATION, 
                      WILDLIFE AND OCEANS

    Mr. Saxton. Good morning. The Subcommittee will come to 
order. The subject of today's hearing is H.R. 741, the 
Migratory Bird Treaty Reform Act of 1997. The measure, 
introduced by the Full Committee Chairman Don Young, is 
basically identical to legislation proposed at the end of last 
Congress.
    Due to administrative inaction, inconsistent application of 
regulations and confusing court decisions, there are those in 
Congress who believe that it is time to legislatively change 
certain provisions regarding baiting that have penalized many 
law-abiding citizens.
    In 1918, Congress enacted the Migratory Bird Treaty Act, 
which implemented the 1916 Convention for the Protection of 
Migratory Birds between Great Britain and the United States. 
Since that time, there have been similar agreements signed 
between the United States, Mexico and the Soviet Union. The 
Convention and the Act are designed to protect and manage 
migratory birds, as well as regulate the taking of that 
renewable resource.
    In an effort to accomplish these goals, over the years 
certain restrictions have been imposed by regulation on the 
taking of migratory birds by hunters. Many of these 
restrictions were recommended by sportsmen who felt that they 
were necessary management measures to protect and conserve 
renewable migratory bird populations. Those regulations have 
clearly had a positive impact, and viable migratory bird 
populations have been maintained despite the loss of natural 
habitat because of agricultural, industrial or urban 
activities.
    Since the passage of the MBTA and the development of the 
regulatory scheme, various legal issues have been raised, and 
most have been successfully resolved. However, one restriction 
that prohibits hunting migratory birds by the aid of baiting or 
over a baited area has generated tremendous controversy, and it 
has not been satisfactorily resolved. Today's witnesses will 
enlighten us on the problems they perceive regarding the issue.
    During the past three decades, Congress has addressed 
various aspects of the baiting issue. It has also been 
addressed by the Law Enforcement Advisory Commission appointed 
by the Fish and Wildlife Service. Unfortunately, no positive 
action has resulted from these examinations, and the problems 
still persist. As a consequence, landowners, farmers, wildlife 
managers, sportsmen and law enforcement officials are 
understandably confused.
    On May 15, 1996, the House Resources Committee conducted an 
oversight hearing to review the problems associated with MBTA 
regulations, their enforcement and the appropriate judicial 
rulings. It was clear from the testimony at that hearing, as 
well as previous hearings, that the time has come for Congress 
to address these problems through comprehensive legislation. I 
look forward to hearing from our witnesses and their views on 
this issue.
    Mr. Abercrombie.
    [Statement of Jim Saxton follows:]

  Statement of the Honorable Jim Saxton, a Representative in Congress 
                      from the State of New Jersey

    Good morning. The Subcommittee will come to order. The 
subject of today's hearing is H.R. 741, the Migratory Bird 
Treaty Reform Act of 1997. This measure, introduced by Full 
Committee Chairman Don Young, is basically identical to 
legislation proposed at the end of the previous Congress.
    Due to administrative inaction, inconsistent application of 
regulations, and confusing court decisions, there are those in 
Congress who believe it is time to legislatively change certain 
provisions regarding ``baiting'' that have penalized many law 
abiding citizens.
    In 1918, Congress enacted the Migratory Bird Treaty Act, 
which implemented the 1916 Convention for the Protection of 
Migratory Birds between Great Britain (for Canada) and the 
United States. Since that time, there have been similar 
agreements signed between the United States, Mexico, and the 
former Soviet Union. The Convention and the Act are designed to 
protect and manage migratory birds as well as regulate the 
taking of that renewable resource.
    In effort to accomplish these goals, over the years certain 
restrictions have been imposed by regulation on the taking of 
migratory birds by hunters. Many of these restrictions were 
recommended by sportsmen who felt that they were necessary 
management measures to protect and conserve renewable migratory 
bird populations. Those regulations have clearly had a positive 
impact, and viable migratory bird populations have been 
maintained despite the loss of natural habitat because of 
agricultural, industrial and urban activities.
    Since the passage of the MBTA and the development of the 
regulatory scheme, various legal issues have been raised and 
most have been successfully resolved. However, one restriction 
that prohibits hunting migratory birds ``by the aid of baiting, 
or on or over any baited area'' has generated tremendous 
controversy, and it has not been satisfactorily resolved. 
Today's witnesses will enlighten us on the problems they 
perceive regarding this issue.
    During the past three decades, Congress has addressed 
various aspects of the ``baiting'' issue. It has also been 
addressed by a Law Enforcement Advisory Commission appointed by 
the Fish and Wildlife Service. Unfortunately, no positive 
action has resulted from these examinations and the problems 
still persist. As a consequence, landowners, farmers, wildlife 
managers, sportsmen, and law enforcement officials are 
understandably confused.
    On May 15, 1996, the House Resources Committee conducted an 
oversight hearing to review the problems associated with the 
MBTA regulations, their enforcement, and the appropriate 
judicial rulings. It was clear from the testimony at that 
hearing, as well as previous hearings, that it is time for the 
Congress to address these problems through comprehensive 
legislation. I look forward to hearing from our witnesses about 
their views on H.R. 741.

STATEMENT OF HON. NEIL ABERCROMBIE, A U.S. REPRESENTATIVE FROM 
                             HAWAII

    Mr. Abercrombie. Thank you very much, Mr. Chairman. I would 
like to read into the record a statement by the ranking member, 
Mr. Miller.
    One year ago today, the committee held a hearing that 
provided an excellent example of why we have such strict 
regulations against hunting over bait under the Migratory Bird 
Treaty Act. At that hearing, as it did in court, the Fish and 
Wildlife Service produced compelling evidence demonstrating 
that in that case people were caught red handed hunting doves 
over bait and violating a number of other wildlife laws, yet 
they still claimed to be unaware that the fields they were 
hunting in were baited. But rather than have their day in 
court, as they are legally entitled to, they chose to complain 
to Congress and demand a legislative fix.
    Mr. Chairman, people whose eyesight is that poor or who are 
so unobservant should not be turned loose with guns. I wouldn't 
want to be out in the woods with them. May I add 
parenthetically Mr. Miller might not want to be out with the 
woods with them in any event. But today we have a second round 
of hearings on the issue and I hope it provides a more balanced 
look at the real issues.
    I favor clear regulations which well-intentioned hunters 
can comply with reasonable effort, but I oppose any effort to 
establish a standard of evidence that is impossible for law 
enforcement agents to satisfy. The migratory bird populations 
would suffer in that case and we would be rewarding the scoff 
laws.
    My concern with Chairman Young's legislation is that it 
places an unreasonable burden of proof on the Fish and Wildlife 
Service, effectively vitiating enforcement of baiting 
regulations in the field. Moreover, by codifying in law what is 
now governed through regulation, future changes would require 
an act of Congress.
    I understand that the Fish and Wildlife Service is 
currently contemplating revisions to the MBTA regulations. I 
support that process, and I am sure that some revisions are 
probably long overdue but legislative preemption of that 
process is not justified. If innocent hunters are being cited, 
then perhaps enforcement agents and their supervisors need to 
be educated better as to what constitutes bait and what 
constitutes a clear violation, but the MBTA has done a good job 
in protecting migratory bird populations and this legislation 
would substantially decrease that protection. The result would 
be that both the wildlife resource and the hunters would 
ultimately suffer.
    Thank you very much, Mr. Chairman.
    Mr. Saxton. Thank you. I ask unanimous consent at this 
point that other member's statements be included in the record 
at this point.
    [Statement of Hon. Don Young follows:]

  Statement of Hon. Don Young, a Representative in Congress from the 
                            State of Alaska

    Mr. Chairman, today is the anniversary of an oversight 
hearing I conducted last year on our migratory bird ``baiting'' 
regulations and an infamous charity dove hunt in Cross City, 
Florida.
    It has been nearly 80 years since enactment of the 
Migratory Bird Treaty Act (MBTA). During that time, there have 
been many Congressional hearings, a thorough review of the 
regulations by the distinguished Law Enforcement Advisory 
Commission, and an Ad Hoc Committee on Baiting, which has just 
released its final recommendations. In each case, there has 
been a recognition that there are serious problems with our 
``baiting'' regulations and that innocent hunters have been 
unfairly prosecuted.
    While it may not be perfect, H.R. 741 will correct these 
regulations and ensure that law-abiding citizens are not 
trapped, tried, fined, and burdened with a Federal criminal 
record for unintentionally violating our baiting regulations.
    Before explaining my bill, let me categorically state that 
I strongly support: the conservation of migratory bird 
resources; the hunting philosophy of ``fair chase'', and the 
citing of those individuals who knowingly hunt ``on or over any 
baited field.''
    The fundamental change in H.R. 741 is the elimination of 
the ``strict liability doctrine'' and the establishment of a 
``knew or should have known standard.''
    Under current law, if you are hunting over a ``baited 
field,'' whether you know it or not, you are guilty. There is 
no defense and there is no opportunity to present evidence in 
your case. It does not matter whether there was a ton of grain 
or a few kernels, whether this feed served as an attraction to 
migratory birds, or even how far the ``bait'' is from the 
hunting site.
    This interpretation--if you were there, you are guilty is 
fundamentally wrong. It violates one of our most basic 
constitutional protections that a person is innocent until 
proven guilty. What is interesting is that the strict liability 
standard applies only in Federal criminal cases involving 
hunting migratory birds and the spilling of toxic waste.
    In addition to removing the strict liability standard, my 
bill allows defendants to submit evidence in court, including 
whether the ``bait'' acted as a lure, and permits the 
scattering of grains and seeds, if it is done as a ``normal 
agricultural operation.'' H.R. 741 also defines the term 
``bait,'' requires that all fines collected under the MBTA be 
deposited in an account to purchase additional habitat, and 
codifies each of the other restrictions on the harvesting of a 
migratory bird except for baiting.
    This is not a radical proposal. Nevertheless, I expect that 
the U.S. Fish and Wildlife Service will strongly oppose this 
legislation. They will oppose it because currently there is 
nearly a 100 percent conviction rate in baiting cases, there is 
no requirement to collect evidence, and there is no need to 
prove intent or to demonstrate a defendant's guilt beyond a 
reasonable doubt.
    In a recent article in the Congressional Quarterly, Mr. 
Keith Morehouse of the U.S. Fish and Wildlife Service argues 
that H.R. 741 would lead to over hunting.
    To be frank, that argument is nonsense. My bill does not 
affect in any way either bag limits or hunting seasons. 
Furthermore, if the law enforcement branch of the Service is so 
committed to the protection of migratory birds, then why did 
they allow more than 440 doves to be killed in the famous 
Florida dove hunt. On that day in October 1995, they failed to 
uphold their fundamental obligation to protect the resource. 
They did, however, collect over $39,000 in fines.
    Today we will also hear from Mr. Vernon Ricker, a recently 
retired Fish and Wildlife Service agent. Mr. Ricker is quoted 
as saying, ``I could count on one or two hands the ones who 
didn't know the bait was there.''
    If that is true, then Mr. Ricker should be supporting my 
bill because we would be talking about only a handful of 
innocent people.
    Mr. Chairman, it is patently wrong to convict hunters who 
do not know that a field is ``baited,'' for a few kernels of 
corn in a sunflower field, and for bait that is over a mile 
from the hunting site.
    It was also wrong for our government to ruin the military 
career of Mark Cobb, a University of Florida student who was 
cited by the Service in the Cross City dove hunt. Mark paid his 
$250 fine, after erroneously being told this was a minor 
infraction--like a speeding ticket--and would not be part of 
his permanent record. Since then, Mark has lost his ROTC 
scholarship and forever has a Federal criminal record. For what 
it's worth, Mark has stated that ``I know what bait is illegal 
and saw none where I hunted.''
    I look forward to hearing from our witnesses and would like 
to warmly welcome our former distinguished colleague from 
Louisiana, Senator John Breaux, who is certainly well versed on 
the problems caused by our ``baiting'' regulations.
                                ------                                


 Letter from the Subcommittee Staff to Members of the Subcommittee on 
              Fisheries Conservation, Wildlife and Oceans

MEMORANDUM

H.R. 741, Migratory Bird Treaty Reform Act of 1997

    On Thursday, May 15, 1997, the Subcommittee on Fisheries 
Conservation, Wildlife and Oceans will conduct a hearing on H.R. 741, 
the Migratory Bird Treaty Reform Act of 1997. The hearing will be held 
at 10 a.m. in room 1324 Longworth House Office Building. Those invited 
to testify include: Members of Congress; the Honorable Bruce Babbitt, 
Secretary, Department of the Interior; the Honorable James S. Gilmore 
III, Attorney General, Commonwealth of Virginia; the Honorable Julian 
M. Carroll, former Governor, Commonwealth of Kentucky; Mr. William P. 
Horn, Birch, Horton, Bittner and Cherot; Mr. Stephen S. Boynton, 
General Counsel, Henke and Associates; the Honorable Ron Marlenee, 
Director of Legislative Affairs, Safari Club International; Mr. R. Max 
Peterson, Executive Vice President, International Association of Fish 
and Wildlife Agencies; Mr. Dan Limmer, Regional Executive, National 
Wildlife Federation; Ms. Susan Lamson, Director of Conservation, 
Wildlife and Natural Resources Division, National Rifle Association; 
Mr. W. Ladd Johnson, National Waterfowl Federation; Mr. Terry Sullivan, 
Secretary, League of Kentucky Sportsmen; and public witnesses.

                               BACKGROUND

    In 1916, the United States and Great Britain (for Canada) signed a 
Convention for the Protection of Migratory Birds. The fundamental goal 
of this Convention was to establish an international framework for the 
protection and conservation of migratory birds.
    In fact, under the Treaty, unless and except as permitted by 
regulations, it is unlawful at any time to ``pursue, hunt, take, 
capture, kill, possess, offer for sale, sell, offer to barter, barter, 
offer to purchase, purchase, deliver for shipment, ship, export, import 
. . . any migratory bird, any part, nest, or egg of any such bird . . . 
included in the terms of the convention between the United States and 
Great Britain for the protection of migratory birds.'' The United 
States has also signed similar agreements with Mexico and the former 
Soviet Union.
    What is a migratory bird? Under the Convention, the term 
``migratory bird'' means all wild species of ducks, geese, brants, 
coots, gallinules, rails, snipes, woodcocks, crows, and mourning and 
white-winged doves.
    In 1918, the U.S. Congress passed the Migratory Bird Treaty Act 
(MBTA). This Act became our domestic law implementing the International 
Convention and it committed this nation to the protection and 
management of migratory birds. In addition, the Act instructed the U.S. 
Fish and Wildlife Service to develop regulations on the harvest or 
``take'' of this renewable resource. Both the Convention and the MBTA 
were designed to ensure the proper utilization of renewable migratory 
bird resources.

U.S. REGULATIONS

    In the nearly 80 years since the Congress passed the Migratory Bird 
Treaty Act, the U.S. Fish and Wildlife Service has issued numerous 
Federal regulations on how and under what circumstances a hunter may 
take a migratory bird. For instance, the U.S. Fish and Wildlife Service 
annually issues regulations establishing the hunting seasons and bag 
limits (number an individual may kill) for each migratory bird species. 
These regulations are issued only after an extensive biological review 
of population levels, reproduction rates, and the amount of available 
habitat for these species.
    Over the years, the Service has also issued regulations, strongly 
supported by the hunting community, restricting the methods an 
individual may use to harvest a migratory bird. For example, it is 
illegal to take a migratory bird by:

         the use of a sinkbox or any other type of floating 
        device that places the hunter beneath the surface of the water;
         the use of a motor vehicle or aircraft;
         the use or aid of live birds or decoys;
         the use or aid of recorded or electronically amplified 
        bird calls or imitations of those sounds; and
         the use of any shot except steel shot, bismuth-tin 
        shot, or other shot approved by the Secretary of the Interior 
        that is nontoxic to waterfowl.
    There is no controversy over these regulations, and the enforcement 
of these restrictions has had a beneficial impact on migratory bird 
populations for many years. However, there is one regulation dealing 
with the hunting of migratory birds over a ``baited field'' that has 
sparked tremendous debate--inconsistent enforcement and conflicting 
judicial opinions. This has resulted in many cases of unfair 
prosecution under the Migratory Bird Treaty Act of 1918.
BAITING REGULATION

    By way of background, it is interesting to note that Congress has 
never passed a law that says ``this is baiting and this practice is 
illegal''. It is not illegal to ``bait'' a field or to feed migratory 
birds. It is, however, strictly prohibited to hunt in such an area. 
While the U.S. Fish and Wildlife Service has modified its baiting 
regulations 17 times, there have been no changes in the last 24 years. 
It is fair to say that virtually no hunter supports the excessive 
harvest of this resource or the intentional shooting of birds over 
bait. However, there are a number of troubling aspects to the baiting 
regulations and how the courts have interpreted those rules.
    For instance, if you are hunting over a ``baited field'' whether 
you know it or not, you are guilty. There is no defense and there is no 
opportunity to present evidence in a case. In short, if there is 
``bait'' and the hunter is present, he or she is automatically guilty. 
It does not matter whether there is a lot or a little bait present, if 
it has served as an attraction to migratory birds, or how far the 
``bait'' is from the hunting venue.
    Over the years, there have been several prominent court cases on 
these regulations. Three of the most famous are:

        U.S. v. Lonergran No. Misc. 89/0468 (E.D. Cal. 1989), This case 
        involved the presence of 13 kernels of corn found in a pond by 
        a law enforcement agent in a 300-acre cornfield;
        U.S. v. Twin Ponds Duck Club, where 34 kernels of corn were 
        found in a wheat field next to a freshwater river; and
        U.S. v. Orme, 851 F. Supp. 708 (D. MD. 1994), where bait was 
        found almost one mile from the hunting site.
    While these are troubling cases, the overriding problem has been 
the development of the strict liability doctrine. Under the doctrine--
if you were there, you are guilty--hundreds of innocent hunters have 
been cited for violating Federal baiting regulations and now have a 
Federal criminal record.
    To date, only the Fifth Circuit Court has shown any willingness to 
deviate from the strict liability standard. In fact, in United States 
v. Dlahaussaye Case, 573, F. 2d 910, 912 (5th Cir. 1978), the Court 
found that the U.S. Fish and Wildlife Service must prove that the 
hunter ``should have known'' that bait was present at the hunting site. 
In this case, the Court stated that:

        ``We conclude that at a minimum [the bait] must have been so 
        situated that [its] presence could have been reasonably 
        ascertained by a hunter properly wishing to check the area of 
        his activity for illegal devices. There is no justice, for 
        example, in convicting one who is barred by a property line 
        from ascertaining that birds were being pulled over him by bait 
        . . . If the hunter cannot tell which is the means next door 
        that is pulling birds over him, he cannot justly be penalized. 
        Any other interpretation would simply render criminal 
        conviction unavoidable occasional consequence of duck hunting 
        and deny the sport to those such as, say, judges who might find 
        such a consequence unacceptable.''
    Under current law, those convicted of shooting over a ``baited 
field'' are not normally incarcerated, since this a misdemeanor 
violation; but they must pay fines of several hundred dollars and have 
had firearms and equipment confiscated. In addition, they have a 
Federal criminal record. What is interesting is that only in Federal 
criminal cases involving hunting over a baited field or the spilling of 
toxic waste does the strict liability standard apply. The usual 
criminal standards of justice, where a defendant's guilt can only be 
established after a finding beyond a reasonable doubt, do not apply.

104TH CONGRESS

    On May 15, 1996, the House Resources Committee conducted an 
oversight hearing on Federal baiting regulations and a particular 
baiting case in Cross City, Florida. In that instance, 88 individuals 
were cited for shooting over a ``baited'' 200-acre field that was being 
used to host a charity dove hunt to benefit the Florida Sheriffs Youth 
Ranches, Inc. These Youth Ranches exist to help young people who are 
abused, at risk, or orphans, deal with juvenile delinquency, crime or 
emotional problems.
    One of the individuals cited at the Florida dove hunt was a 20-
year-old University of Florida student who paid the minimum $250 fine 
despite the fact he was serving soft drink refreshments to those 
participating in the hunt at the time he was cited and was unaware the 
field might be ``baited.'' After being incorrectly advised that this 
violation was a minor infraction, the student lost his commission in 
the Army's ROTC program.
    During the Full Committee oversight hearing on Federal baiting 
regulations, witnesses provided a number of interesting observations. 
For instance, a representative of the U.S. Fish and Wildlife Service 
testified that ``the Service is committed to a fair and objective 
review of this potential baiting issue.'' The director of the Illinois 
Department of Natural Resources stated that ``hunters feel trapped by 
regulations that bind them so tightly that, regardless of intent, it is 
nearly impossible to avoid violating the letter of the law. We need 
consistency, clarity, and common sense.''
    Furthermore, the Washington Counsel for the Wildlife Legislative 
Fund of America argues that ``existing regulations regarding the use of 
bait for take of migratory birds are too subjective, too obscure, and 
put thousands of law-abiding hunters at risk for potential 
violations.''
    Finally, a private attorney who has been involved in dozens of 
baiting cases testified that ``the baiting issue has become more 
exacerbated due, unfortunately, to the twin prongs of unreasonable 
administration of the regulations by the U.S. Fish and Wildlife 
Service's Division of Law Enforcement and the unyielding position of 
the Federal courts--including U.S. Attorneys--in a joint rush to 
convict under the doctrine of strict liability in baiting cases.''
    Following this hearing, the Chairman of the Resources Committee, 
the Honorable Don Young, introduced H.R. 4077, the Migratory Bird 
Treaty Reform Act of 1996. While there was no further action on this 
issue, the general thrust of this legislation was that our wildlife 
protection laws should not unfairly penalize law-abiding citizens.

MIGRATORY BIRD TREATY REFORM ACT

    On February 12, 1997, the Chairman of the House Resources 
Committee, the Honorable Don Young, the Honorable John Tanner, Co-
Chairman of the Congressional Sportsmen's Caucus, and the Honorable 
Cliff Stearns (R-FL) introduced H.R. 741. The goals of this legislation 
are to:

         Incorporate into Federal law the existing regulations, 
        except for hunting over a ``baited field,'' that regulate the 
        taking of a migratory bird;
         Allow defendants to submit evidence in court. If the 
        facts demonstrate that a hunter knew or should have known of 
        the alleged bait, then fines and potential incarceration will 
        be imposed;
         Allow the scattering of various substances like grains 
        and seeds, which are normally considered bait, if it is done as 
        a ``normal agricultural operation'' in a given area, including 
        the use of these substances to feed farm animals;
         Define the term ``bait'' as the ``intentional'' 
        placing of the offending grain, salt, or other feed;
         Allow the hunter to introduce evidence at trial on 
        whether or not the alleged ``bait'' actually acted as a lure or 
        attraction for the migratory birds in a given area; and
         Deposit all fines and penalties collected under the 
        Act in the Migratory Bird Conservation Fund. This money would 
        be used to buy additional habitat for migratory bird 
        populations.
    A fundamental goal of this legislation is to provide guidance to 
farmers, hunters, landowners, law enforcement officials and the courts. 
Without this legislation, hunters will continue to be unfairly cited in 
the future, individuals will continue to be denied the opportunity to 
present evidence in court, the frustration over these regulations will 
grow, and ultimately fewer people will choose to participate in 
waterfowl hunting. This will result in the purchase of fewer duck 
stamps and, therefore, less money to acquire essential wetland habitat 
for migratory birds in the future.
    It is interesting to note that our Federal baiting regulations are 
unusual because normally a law enforcement agent must prove that there 
was criminal intent to break the law. Under the strict liability 
doctrine, the conviction rate for those individuals cited for violating 
our baiting regulations is nearly 100 percent. It will, therefore, not 
be surprising if the U.S. Fish and Wildlife Service argues that H.R. 
741 will make it more difficult to prosecute hunters under these 
regulations. A fundamental purpose of this hearing is not to examine 
prosecution rates but to determine whether the strict liability policy 
is fair to the hunting community and essential to the protection of 
migratory bird populations.

ISSUES

    (1) Doesn't the U.S. Fish and Wildlife Service each year undertake 
a population assessment of each migratory bird species and, based on 
this scientifically obtained data, establish specific hunting seasons 
and bag limits for each of the regional flyways?
    (2) While the issue of hunting ``on or over a baited field'' has 
attracted considerable attention, are there other restrictions on the 
``taking'' of a migratory bird that have sparked controversy?
    (3) How does a U.S. Fish and Wildlife Service enforcement agent 
determine that a particular piece of property is a ``baited field''?
    (4) What is the fundamental priority of the U.S. Fish and Wildlife 
Service--to protect migratory bird populations or to arrest those 
shooting over a ``baited field''?
    (5) How many individuals were cited for hunting migratory birds 
over a ``baited field'' in 1995 and 1996?
    (6) What was the conviction rate in these cases? What was the 
percentage of those cited who simply decided to pay their fines and 
forego further legal action?
    (7) Of those who chose not to initially pay their fines, how many 
of these individuals were able to present evidence in court and what 
weight was their evidence given?
    (8) Is not having to prove intent an essential safeguard for the 
viability of migratory bird populations?
    (9) Since most of our criminal statutes are predicated on the 
notion that there is a knowing intent to violate a particular law, what 
is wrong with requiring the U.S. Fish and Wildlife Service to prove 
that an individual knew or should have known they were hunting over a 
baited field?
    (10) How close must grain or other feed be to a hunting site to be 
considered ``bait''? For instance, if grain or ``bait'' is one or two 
miles from a hunt, can and should that individual be cited under the 
Migratory Bird Treaty Act when there is no definite proof that ``bait'' 
lured a bird to the hunting venue?
    (11) Is there any determination made whether grain or ``bait'' 
acted as a lure or attraction to migratory birds?
    (12) What are considered ``bona fide'' agricultural practices? 
Don't these practices differ greatly throughout the United States?
    (13) How much money in fines was paid in 1995 and 1996 by those 
individuals cited for hunting over a ``baited field''?
    (14) Where was this money deposited and how many additional acres 
of wetland habitat were purchased from the proceeds of these fines?
    (15) Would the goals of the Migratory Bird Treaty Act be promoted 
by mandating that all fines paid under the Act be deposited into the 
Migratory Bird Conservation Fund?
    (16) What is the status of the Task Force that the U.S. Fish and 
Wildlife Service and the International Association of Fish and Wildlife 
Agencies established to address the issue of ``moist soil'' management?

    Mr. Saxton. And our good friend from Florida, Mr. Stearns, 
has arrived, so we will proceed at this point with Mr. Stearns' 
testimony. I understand, Cliff, that some of your constituents 
have run into problems with this baiting issue, and we are here 
anxiously awaiting your clarification of some of these issues 
for us. So you may proceed at your leisure.

  STATEMENT OF HON. CLIFF STEARNS, A U.S. REPRESENTATIVE FROM 
                            FLORIDA

    Mr. Stearns. Good morning, Mr. Chairman. And let me just 
say that I appreciate the opportunity to be here. And also good 
morning to the other distinguished members of the Subcommittee. 
I think it is important that you hold this hearing, and giving 
me the opportunity to testify on the Migratory Bird Treaty 
Reform Act of 1997.
    I am here to continue the efforts begun during the 104th 
Congress to effectively clarify hunting provisions under the 
Migratory Bird Treaty Act. Gentlemen and ladies, this issue 
hits close to home in an area I used to represent. As you will 
recall during the testimony given last year, an incident which 
occurred in 1995 was cited. In that case, almost 90 sportsmen 
were cited for violating the Migratory Bird Treaty Act during a 
charity dove hunt in Dixie County, Florida. Members of this 
committee have previously heard accounts of this unfortunate 
incident, and today you will hear about the unfair consequences 
many innocent encountered.
    While I will not take the time to recount every detail of 
this incident, I will say that many sportsmen were cited and 
fined about $40,000 for ``allegedly'' hunting on a baited 
field. In fact, most of the hunting took place on land which 
was never even inspected for baiting. And remember, this was a 
charity dove hunt with distinguished citizens in the area. The 
U.S. Fish and Wildlife agents did not make their presence 
known, allowing the hunt to continue for three hours before 
issuing citations. Keep in mind these citations were delivered 
without any regard to the actual guilt or innocence of the 
hunters.
    Sadly, many participants have faced tarnished records and 
threatened careers as a result of the misrepresentation of the 
current regulations. Even though they did not fully willfully 
violate hunting regulations, it was easier for many of them to 
plead guilty and pay their fines. One young man participating 
in this charity event who attends the University of Florida 
planned to join the Coast Guard as an officer. With this on his 
record, he will be joining the Coast Guard, but not as an 
officer.
    Mr. Chairman, this is a perfect example of why H.R. 741 is 
so necessary. Congress has never passed a law defining what 
qualifies as a baiting field. While this activity is 
justifiably illegal, there are various legal interpretations 
that have--that should be clarified, just simply clarified. In 
addition, Federal courts have not acted uniformly in cases 
involving hunting. Under current standards a person is held 
liable for hunting on a baited field even though that person 
did not realize the field was baited. This is unfair, as many 
of my constituents have realized.
    Clearly, Congress needs to act by defining what constitutes 
a baited field. Just as important, we must allow hunters who 
unknowingly hunt on or near a baited field to offer a defense 
without presuming them guilty.
    This bill addresses the need for clarifying the regulations 
and establishing standards for enforcement. Under the Migratory 
Bird Treaty Reform Act, the term ``bait'' is defined as the 
intentional placing, exposing, depositing, distributing or 
scattering of wheat, grain, salt or other feed. I am confident 
that this comprehensive definition will leave little room for 
misinterpretation.
    There have been other incidents where individuals have been 
cited for grain being accidentally spilled on public roads, or 
for luring migratory birds when a handful of corn was found in 
a wheat field. Again, these are examples of innocent people 
found guilty under the doctrine of strict liability. H.R. 741 
also addresses these issues by allowing hunters to provide 
evidence as to what degree the bait acted as the lure for 
migratory birds.
    Mr. Chairman, H.R. 741 makes no attempt to undermine 
efforts to effectively protect and manage migratory birds. In 
fact, many current regulations were enacted at the 
recommendation of sportsmen who recognize the importance and 
necessity of migratory bird conservation. I support these 
regulations and have no intention in weakening them.
    However, as you can see, current law is unclear and 
interpretations have been inconsistent. I am confident that the 
Migratory Bird Treaty Reform Act will clarify baiting 
restrictions in a manner that protects migratory birds and 
their habitats while protecting law-abiding citizens from 
unfair enforcement.
    While enactment of this legislation will arrive too late 
for the hunters in Dixie County, Florida, it will prevent 
others from facing unfair consequences of being at the wrong 
place at the wrong time.
    Mr. Chairman, I thank you again for this opportunity to 
testify today, and I look forward to working with my colleagues 
on this Subcommittee to consider this important legislation.
    [Statement of Hon. Cliff Stearns follows:]

Statement of Hon. Cliff Stearns, a Representative in Congress from the 
                            State of Florida

    Mr. Chairman and distinguished members of the Subcommittee, 
I want to thank you for holding this hearing and for giving me 
the opportunity to testify on the Migratory Bird Treaty Reform 
Act of 1997.
    I am pleased to be here today with my distinguished 
colleague, Congressman John Tanner, to continue the efforts 
begun during the 104th Congress, to effectively clarify hunting 
provisions under the Migratory Bird Treaty Act.
    This issue hits close to home, in an area I used to 
represent. As you will recall during testimony given last year, 
an incident which occurred in 1995 was cited. In that incident, 
almost ninety sportsmen were cited for violating the Migratory 
Bird Treaty Act during a charity dove hunt in Dixie County, 
Florida. Members of this Committee have previously heard 
accounts of this unfortunate incident, and today you will hear 
about the unfair consequences many innocent people encountered.
    While I do not intend to recount every detail of this 
incident, I will say that many hunters were cited and fined 
almost $40,000 for ``allegedly'' hunting on a baited field. In 
fact, most of the hunting took place on land which was never 
even inspected for baiting. The U.S. Fish and Wildlife agents 
did not make their presence known, allowing the hunt to 
continue for 3 hours before issuing citations. Keep in mind, 
these citations were delivered without any regard to the actual 
guilt or innocence of the hunters.
    Sadly, many participants have faced tarnished records and 
threatened careers as a result of the misinterpretation of 
current regulations. Even though they did not willfully violate 
hunting regulations, it was easier for many of them to plead 
guilty and pay their fines. One young man participating in this 
charity event, who attends the University of Florida, planned 
to join the Coast Guard as an officer. With this on his record, 
he will be joining the Coast Guard, but not as an officer.
    Mr. Chairman, this is a perfect example of why H.R. 741 is 
so necessary; Congress has never passed a law defining what 
qualifies as ``baiting'' a field. While this activity is 
justifiably illegal, there are various legal interpretations 
that should be clarified. In addition, Federal courts have not 
acted uniformly in cases involving hunting. Under current 
standards, a person is held liable for hunting on a baited 
field even though that person did not realize the field was 
baited. This is unfair, as many of my constituents have 
realized.
    Clearly, Congress needs to act by defining what constitutes 
a baited field. Just as important, we must allow hunters who 
unknowingly hunt on or near a baited field to offer a defense 
without presuming them guilty.
    This bill addresses the need for clarifying regulations and 
establishing standards for enforcement. Under the Migratory 
Bird Reform Act, the term ``bait'' is defined as the 
intentional placing, exposing, depositing, distributing, or 
scattering of wheat, grain, salt, or other feed. I am confident 
that this comprehensive definition will leave little room for 
misinterpretation.
    There have been other incidences where individuals were 
cited for grain being accidentally spilled on public roads, or 
for luring migratory birds when a handful of corn was found in 
a wheat field. Again, these are examples of innocent people 
found guilty under the doctrine of strict liability. H.R. 741 
also addressed these issues by allowing hunters to provide 
evidence as to what degree the bait acted as the lure for 
migratory birds.
    Mr. Chairman, let me say that H.R. 741 makes no attempt to 
undermine efforts to effectively protect and manage migratory 
birds. In fact, many current regulations were created at the 
recommendation of sportsmen who recognize the importance and 
necessity of migratory bird conservation. I support these 
regulations and have no intention of weakening them.
    However, as you can see, current law is unclear and 
interpretations have been inconsistent. I am confident that the 
Migratory Bird Treaty Reform Act will clarify baiting 
restrictions in a manner that protects migratory birds and 
their habitats, while protecting law-abiding citizens from 
unfair prosecution.
    While enactment of this legislation will arrive too late 
for the hunters in Dixie County, Florida, it will prevent 
others from facing unfair consequences of being at the wrong 
place at the wrong time.
    Mr. Chairman, I thank you again for the opportunity to 
testify before you today. and I look forward to working with my 
colleagues on this Subcommittee to consider this legislation.

    Mr. Saxton. Thank you very much, Cliff. Can you stay for a 
few minutes?
    Mr. Stearns. Sure, happy to.
    Mr. Saxton. We have some questions that we would like to 
ask, but we would like to have you and Senator Breaux be able 
to respond to them at the same time. So we will proceed at this 
point with Senator Breaux's testimony. This is a great pleasure 
for us to welcome--I want to say back to the committee, but as 
you can see, the committee structure has changed some since you 
were here, Senator. But we welcome you to the committee today, 
and we are interested in what you have to present to us, 
because we know that you have long been an advocate of fair 
baiting laws and have worked very hard on this issue over the 
years. And so you may proceed as you see fit.

  STATEMENT OF HON. JOHN BREAUX, A U.S. SENATOR FROM LOUISIANA

    Senator Breaux. Thank you very much, Mr. Chairman and 
members of the Subcommittee. I appreciate the invitation to 
make some comments. I will try and be very brief. I 
congratulate you for holding hearings on this. It seems like 
some things never go away. I was on the predecessor to this 
Subcommittee back in 1972. It is hard to believe it was that 
long ago. The place looks cleaner and nicer, a new coat a 
paint, a few more flags, pretty much the same pictures it 
always had, except for Young looking over my shoulder.
    Mr. Abercrombie. Mr. Chairman, I was going to remind the 
Senator there is a looming presence behind him on the wall.
    Senator Breaux. I am kind of afraid of what I might say and 
what might happen with that picture. But very briefly, I 
remember--it is really interesting. I remember chairing the 
Fish and Wildlife Subcommittee many years ago, and had offered 
the very same legislation that you all are considering today, 
and this has probably been 15, maybe 20 years ago, because I 
felt there was something fundamentally unfair to tell American 
citizens that we are going to hold you criminally liable for 
something that you may not even have known was there or that 
you had no knowledge or presumptive knowledge of having 
committed a crime but we are going to cause you to be 
criminally liable. It is a big difference from a civil standard 
on holding somebody responsible for things they may not have 
known, But to hold an American citizen criminally responsible 
with all the negative implications, in addition to the 
penalties, without that person knowing or should have known 
that what he was doing or attempting to do was in fact a crime, 
I think, is fundamentally unfair in our society.
    I think Congressman Stearns has laid it out very clearly 
what the problem is. As a hunter and someone who strongly 
supports the migratory bird conservation programs--I am a 
member of the Migratory Bird Conservation Commission. I 
represent the State of Louisiana, which is at the bottom of the 
funnel of most of the ducks coming down to Central and 
Mississippi Flyway. This is a big, important issue in my state. 
But I would suggest that it is an important issue for all of us 
as Americans to make sure that the criminal laws of this 
country are fair.
    And what disturbs me--in a typical situation in my state of 
Louisiana, people are brought to a hunting area the night 
before. They may have a dinner with the folks at the hunting 
lodge. They will go out to go duck hunting early in the 
morning, before daylight. They are put in a blind as a guest on 
someone else's property that they have never, ever been to in 
their life. They are sitting in a duck blind and it is dark and 
first light of day and hunting time becomes available and they 
start shooting and the guy knocks down the first duck or even 
doesn't kill the first duck and the Federal agent comes in and 
puts handcuffs on him and takes him out of the field and 
charges him with hunting over a baited field.
    Now that person, by any stretch of the imagination, did not 
know that was a baited field. He had never been to that 
property in his lifetime, never hunted there, never been in the 
county, may have never been in my State of Louisiana in his 
life, had no way of knowing by any reasonable standard that 
that field happened to be baited by someone who may just have 
wanted to make it a better hunt for the guests that were there.
    Now I think that we ought to be as tough and as hard as we 
possibly can on people who knowingly violate our game laws, 
people who intentionally bait a field in order to attract 
migratory waterfowl ought to have the book thrown at them, 
because they are not playing by fair rules. And there is nobody 
in this legislation trying to change that. We ought to make 
those penalties as tough as they should be. If a landowner, for 
instance, owns the property, the standard of liability for the 
landowner can be very, very strict. A person who rents the 
property, the standard should be very, very strict, but I would 
suggest that the approach of Chairman Young is the proper 
approach by saying that for hunters the standard should be that 
they knew or should have known the field was baited in order to 
be criminally prosecuted and convicted and having to pay a 
penalty.
    Now we had the hearings a long time ago, and I am sure that 
some of my friends in the Fish and Wildlife Service are going 
to come back and say well, that is just too difficult for us to 
enforce, we can't make a case against somebody showing that 
they had actual knowledge or should have known by reasonable 
check. I would suggest a response to that is that we are 
talking about American citizens and their lives and their 
families who are being subjected to criminal penalties and 
prosecution. And while it may be a little more difficult for 
the Service to make a case with this standard, I would suggest 
that in fairness, under our principles of being innocent until 
you are shown to be guilty, that standard is not too difficult 
to reach.
    The second point is that there is confusion on the 
exemption to a baited field, and the exemption is that it is 
not a baited field under the criminal terms if the field was 
subject to normal agricultural practices. Now the problem is 
what is normal agricultural practices. Is letting a cornfield 
in Maryland lie and not be harvested and not harvesting it at 
all, is that normal agricultural practices? It may be in 
Maryland. It may not be in California. It may be somewhere 
else, but it is different.
    I think that this legislation is correct in saying that the 
Service should be required to publish in the Federal Register a 
notice for public comment defining what normal agricultural 
practices are in the region. That is not that difficult to do. 
They can meet with USDA officials in that area. They know what 
the normal agricultural practices are in that area. And define 
a set of rules and regulations so everybody, the commercial 
hunters, the guides, the individuals can know that this is a 
normal agricultural practice in this area and therefore we can 
hunt without worrying about whether our guests and our 
customers are going to be hauled off to jail because this was 
not a normal agricultural practice in this agent's 
interpretation and maybe another agent would have a different 
interpretation.
    So this legislation requires specificity. It requires a 
clear statement of what normal agricultural practices are. And 
that would be helpful to the Service. The agents do not know 
what agricultural practices are. That is not their background. 
They are wildlife managers, and they do a terrific job and I 
applaud them. But we have to bring in the agricultural people 
to define what are normal agricultural practices if in fact 
that is going to be an exemption to the baited definition.
    The final point, and I think it is good, the Migratory Bird 
Conservation Act, there is a need for additional funds. And I 
think it is appropriate and fair and proper that all fines and 
penalties collected under the Migratory Bird Treaty Act be 
deposited into the Migratory Bird Conservation Fund. You know, 
probably you will have a lot of people who are busted that 
would be more willing to pay the fine if they know it is going 
into the Migratory Bird Conservation Fund and feel a little bit 
better about it and probably not appeal all of the cases and 
everything else. But be that as it may, I think it is an 
appropriate area for the funds to be used. The person guilty 
would be penalized, and yet the migratory bird program would 
benefit from it, and I think it is something that would be a 
good trade.
    But I urge you all to try and proceed with this 
legislation. I think it makes sense. It protects Americans and 
it still allows the Service to get the job done. Thank you, Mr. 
Chairman.
    [Statement of Senator John Breaux follows:]

Statement of Hon. John B. Breaux, a Senator in Congress from the State 
                              of Louisiana

    Thank you Chairman Saxton, Mr. Abercrombie and the members 
of the Subcommittee for inviting me to speak in support of H.R. 
741, the Migratory Bird Treaty Reform Act of 1997. Soon, I will 
introduce companion legislation in the Senate that mirrors 
Chairman Young's bill.
    As a member of the Migratory Bird Conservation Commission, 
I recognize the importance of protecting and conserving 
migratory bird populations and habitat.
    Eighty years ago, Congress enacted the Migratory Bird 
Treaty Act, which implemented the 1916 Convention for the 
Protection of Migratory Birds between Great Britain, for 
Canada, and the United States. Since then, similar agreements 
have been signed between the United States, Mexico, and the 
former Soviet Union. The Convention and the Act are designed to 
protect and manage migratory birds and regulate the taking of 
that renewable resource. They have had a positive impact, and 
we have maintained viable migratory bird populations despite 
the loss of natural habitat because of human activities.
    Since passage of the Migratory Bird Treaty Act and 
development of the regulatory program, several issues have been 
raised and resolved. One has not--the issue concerning the 
hunting of migratory birds ``[b]y the aid of baiting, or on or 
over any baited area.''
    A doctrine has developed in the Federal courts by which the 
intent or knowledge of a person hunting migratory birds on a 
baited field is not an issue. If bait is present, and the 
hunter is there, he is guilty under the doctrine of strict 
liability. It is not relevant that the hunter did not know or 
could not have known bait was present. I question the basic 
fairness of this rule.
    I do not want anyone to misunderstand me. I strongly 
support the Migratory Bird Treaty Act. We must protect our 
migratory bird resources from overexploitation. I would not 
weaken the Act's protections.
    The fundamental goal of the Migratory Bird Treaty Reform 
Act of 1997 is to address the baiting issue. Under this 
legislation, no person may take migratory birds by the aid of 
bait, or on or over bait, where that person knew or should have 
known the bait was present. It removes strict liability 
interpretation presently followed by Federal courts.
    It also establishes a standard that permits a determination 
of the actual guilt of the defendant. If the facts show the 
hunter knew or should have known of the bait, liability, which 
includes fines and possible incarceration, would be imposed. 
However, if the facts show the hunter could not have reasonably 
known bait was present, the court would not impose liability or 
assess penalties. This is a question of fact determined by the 
court based on the evidence presented.
    Also, the exceptions to baiting prohibitions contained in 
Federal regulations have been amended to permit an exemption 
for grain found on a hunting site because of normal 
agricultural planting and harvesting and normal agricultural 
operations. This legislation will establish guidelines for both 
the hunter and the law enforcement official.
    The U.S. Fish and Wildlife Service will be required to 
publish, in the Federal Register, a notice for public comment 
defining what is a normal agricultural operation for that 
geographic area. The Service makes this determination after 
consultation with State and Federal agencies and an opportunity 
for public comment. Again, the goal of this effort is to 
provide clear guidance for landowners, farmers, wildlife 
managers, law enforcement officials, and hunters so they know 
what a normal agricultural operation is for their region.
    In 1934, Congress enacted the Migratory Bird Conservation 
Act as a mechanism to provide badly needed funds to purchase 
suitable habitat for migratory birds. Today, that need still 
exists, and this legislation will require that all fines and 
penalties collected under the Migratory Bird Treaty Act be 
deposited into the Migratory Bird Conservation Fund. These 
funds are essential to the long-term survival of our migratory 
bird populations.
    The Migratory Bird Treaty Reform Act will provide guidance 
to landowners, farmers, wildlife managers, hunters, law 
enforcement officials, and the courts on the restrictions on 
the taking of migratory birds. It accomplishes that objective 
without weakening the intent of current restrictions on the 
method and manner of taking migratory birds; nor do the 
proposed provisions weaken protection of the resource.
    Finally, the proposed legislation does not alter or 
restrict the Secretary of the Interior's ability to promulgate 
regulations or issue further restrictions on the taking of 
migratory birds.
    Again, I thank Chairman Saxton, Mr. Abercrombie and members 
of the Subcommittee for this opportunity to be heard, and I 
urge everyone to join me in supporting the Migratory Bird 
Treaty Reform Act of 1997.

    Mr. Saxton. Thank you very much. Let me just start with a 
couple of questions and then turn to the ranking member.
    After reading the language in this bill and after hearing 
both of your explanations and testimony, do you believe it is 
an accurate statement to say that this bill does not in any way 
change practices, hunting practices, relative to the practice 
of baiting? In other words, does this bill in any way give 
opportunities that don't presently exist under current law to 
hunters to bait?
    Senator Breaux. I would think the answer, Mr. Chairman, is 
clearly no. Baiting would still be an illegal practice. It 
would be subject to criminal penalties for anyone who baits. 
The only difference is that someone to be convicted for hunting 
over a baited field would have to be shown to have known or 
should have known, actual knowledge or presumptive knowledge, 
he should have known because this person--for instance, what is 
presumptive knowledge? A person has been there, has hunted 
there all of his life. He has hunted there the week before. He 
was there during the daytime and he had a chance to be out in 
the field. He saw the field, and by reasonable expectation and 
inspection, he could have seen the corn sitting out in the 
middle of the pond right in front of the duck blind. That would 
be presumptive knowledge, but the bottom line is that baiting, 
intentional baiting, would be an illegal act under this 
legislation. It would be a crime that would be subjected to 
criminal penalties.
    Mr. Saxton. So then--go ahead, Mr. Stearns.
    Mr. Stearns. I would agree. You know, all we are doing is 
defining what baiting means. We are not saying that what occurs 
has changed. It is just defining what it means. And the 
presumptive guilt is the people who are there participating. In 
this case, you had 90 people. Some of them were sheriffs. 
Sheriffs of local counties were at this fundraiser, and 
obviously they had no idea that they were involved with a 
hunting in a baited field, so they clearly would not be guilty. 
And all we are doing is not changing the punishment for people 
who know that it is baited and continually do so, but we are 
just saying we are defining so that these people, these 
sheriffs of these local counties who are law-abiding citizens, 
voted to, elected to enforce the laws, have some prior 
knowledge before they have to have these penalties placed upon 
them and put in their record.
    Mr. Saxton. Thank you. I have no further questions at this 
time. I would just like to point out to the other members that 
the language in this bill seems to me to be very clear on this 
point. And on page 6, line 3, it simply reads, ``no person 
shall take or aid in the taking of any migratory bird by the 
aid of baiting or on or over any baited area where that person 
knows or should have known through the exercise of reasonable 
diligence that bait was present.'' That seems to be pretty 
clear. We are not in any way intending to loosen or change the 
practices which have been historic practices that prohibit 
baiting.
    Thank you very much for helping me clear up that point. Mr. 
Abercrombie.
    Mr. Abercrombie. Thank you very much, Mr. Chairman. The 
key, would both agree, is the page 6--I don't know if you 
happen to have the bill in front of you, but it does refer to 
what the Chairman has just gone over. The key is, is it not, 
the lines on page 6 where the person--starting on line 4, where 
that person knows or should have known through the exercise of 
reasonable diligence that the bait was present. That is the key 
to this, is it not?
    Senator Breaux. Mr. Abercrombie, I think that you have 
really put your finger on exactly what the key is. That is what 
is missing in the current practices and the court decisions. 
When a person comes before a judge, a person can say Judge, 
Your Honor, I didn't know, I had never been there before, I 
exercised reasonable practices in my hunting procedures, I 
looked around, we started shooting at daybreak or 30 minutes 
after, 30 minutes before, very important, and I just could not 
know that someone a week before had baited this field, I had 
never been to this county before in my lifetime. That would be 
something that would be addressed by that line knew or should 
have known.
    Mr. Stearns. I would just add to that, my colleague from 
Hawaii, if you were driving out on the turnpike and there were 
no signs telling you the speed limit and suddenly you went up 
to 75 miles an hour or even 60 miles an hour and a policeman 
stopped you and said you should have known that you can't go 60 
miles an hour, well, you said there are no signs, I haven't 
seen any signs, I have no idea. I mean, how could you say that 
person is guilty if he is on the turnpike going 60 miles an 
hour when there is no sign.
    Mr. Abercrombie. I guess that depends on what county you 
are in.
    Mr. Stearns. Well, since we have----
    Mr. Abercrombie. I have heard of that happening some places 
in the country, but it wouldn't be right. That would be wrong, 
I think.
    Mr. Stearns. Yes, and I am trying to draw an analogy.
    Senator Breaux. There is a little bit of a different in 
Cliff's analogy. I mean, I think he is making a good point, but 
the hunter that is being, I think, abused by the current law 
knows it is illegal to hunt over a baited field.
    Mr. Abercrombie. Can I address that, Senator?
    Senator Breaux. He knows that. I mean, this hunter knows it 
is illegal to hunt over a baited field, but by any exercise of 
reasonable diligence he would not know that this was a baited 
field.
    Mr. Abercrombie. Okay, I would like to address that. The 
reason that I would is that, as you know, lots of times on 
committees you are required to vote on things with which you 
may not be familiar except in the abstract. In this instance, I 
am one of those persons. When I was younger, there was hunting 
in the area that I was in, especially for pheasants, and my mom 
and dad kept me in because people came right through the back 
yard for those pheasants, so I was not aware of the rather 
detailed explication in law that existed around baiting and the 
shooting of birds, which I am now aware of as a result of going 
through the bill.
    If you go to page 7, that is where I have a question then. 
If the key is the exercise of due diligence or reasonable 
diligence known or should have known, you go to page 7, part B, 
line 8, it says ``the term baited area means any area where 
shelled, shucked or unshucked corn, wheat or other grains, salt 
and other feed whatsoever capable of attracting migratory game 
birds is intentionally placed, exposed, deposited, distributed 
or scattered.'' The reason I bring that up is not to try to put 
too fine a point on it, but precisely for the reasons you give, 
how are you supposed to know. Wouldn't it be almost an 
automatic defense that Fish and Wildlife could not disprove if 
you simply claim well, I didn't know it was intentional, I 
thought it was unintentional? How would you deal with that?
    Senator Breaux. You make a good point, Congressman, but the 
difference is this. There are two things here. One is the 
person who is doing the baiting would have had to do it 
intentionally in order to be guilty of baiting a field. The 
second question is hunting over a baited field. And that is the 
difference. Assume a field is baited, what we are trying to 
address in this legislation is hunting over a baited field, 
which right now you are guilty of whether you knew it or not. 
And that is the difference. So if the game agents are going 
after the person who baited the field, they have to show that 
it was intentionally baited. And that is not that difficult.
    Mr. Abercrombie. Okay, then as someone who has not hunted 
under these circumstances----
    Senator Breaux. Me neither.
    Mr. Abercrombie. [continuing] would it be part of the 
section on exercising reasonable diligence? Is it the case that 
hunters ordinarily are able to determine fairly quickly with a 
reasonable amount of regard for the area whether it looks 
baited or not? I would have to rely on your experience.
    Senator Breaux. Well, it is not that easy. I mean, if 
someone baited a pond and a duck blind with corn, it generally 
shows up very well as soon as the light of day comes on, but 
still it is not that easy to make that determination. That is 
why I think you have flexibility in the legislation, knew or 
should have known. You don't have to prove actual knowledge. I 
mean, that person would still be liable under our legislation 
even if they didn't know, but because of a reasonable check of 
the surrounding areas it was pretty clear that there was a sack 
of corn sitting in the middle of that pond. That person should 
have known that that was a baited field.
    Mr. Abercrombie. I see. Well, Mr. Chairman, I will stop at 
this point. I am perfectly willing to take the intention of the 
legislation on its face as being reasonable. The question is 
can we write it in such a way as to actually accomplish that 
flexibility that you mention. That is to say we don't put words 
into that in effect put it into one side or the other in terms 
of impossibility or where you make a mockery of it. Your 
argument today is that the language as presently written 
essentially makes a mockery of fair play and presumption of 
innocence, and the question is whether this language as written 
in the bill right now rectifies that or puts it possibly on the 
other side where nobody would ever get convicted.
    So maybe we should just take another look at it to see what 
kind of previous case law operates where there are definitions 
or parameters, boundaries around the point of reasonable 
knowledge of should know or should have known or a reasonable 
exercise of diligence. This can't have happened for the first 
time in the United States in 1997. That kind of question must 
have been raised thousands or maybe tens of thousands of times 
in different kinds of cases, so it shouldn't be too difficult 
to figure out language that will accomplish what you seek.
    Thank you very much. I appreciate your helping me with 
this. Thank you, Mr. Chairman.
    Mr. Saxton. Thank you. Mr. Farr.
    Mr. Farr. Thank you very much, Mr. Chairman. I am neither a 
hunter nor a lawyer, but I can see that this is a very 
difficult area that needs very careful attention. I mean, the 
irony here is that we are trying to take the burden off of a 
person with a gun trying to kill a wild animal and really put 
the burden more on the animal, because on page 8 of the bill on 
line 15, 16, it says the terms attraction and attracting mean 
that the bait was a major contributing factor in luring the 
migratory birds. It really requires the intent of the bird to 
be able to prove that the--why the bird went to that particular 
spot, and I think that that is why you get into difficult 
problems in trying to draft a law where it essentially, I 
think, shifts an awful lot of burden of responsibility. Now as 
I understand, this is regulation now, and with the bill the way 
it is written we are trying to codify it into Federal law, 
which then makes it very difficult to change without a 
Congressional act, and I am just wondering if there is some 
other way. Shouldn't we just, perhaps, prohibit baiting 
altogether, ban it?
    Senator Breaux. Congressman--I am sorry, go ahead.
    Mr. Stearns. I was just going to say I think the pendulum 
has swung here. There have been cases where people have been on 
fields five miles from the baited fields and have been charged, 
so obviously they had no idea.
    Mr. Farr. Well, wait a minute. That is----
    Mr. Stearns. All I am saying is that----
    Mr. Farr. Is that a proper arrest? I mean, there is some 
responsibility of law enforcement here, too. I mean, it is like 
probable cause and pulling you over on a highway. They can't--
--
    Mr. Stearns. Let me give you another example. In this case 
I gave you, these 90 individuals for a charity fundraiser, the 
U.S. Fish and Wildlife inspectors presence wasn't known for 
three hours. They were in and close to the area, but they 
didn't even, you know, advise these people who thought they 
were at a charity situation. So I think the pendulum has swung 
and it is time now to try and bring forth a little more 
specificity. And I think that is all this legislation does.
    Senator Breaux. Congressman, let me just make a comment 
on--I don't--you can ask the Fish and Wildlife Service when 
they present testimony. I don't think that this is a problem 
for them at all. I don't think--I can't imagine a lot of cases 
ever being dismissed because they were not able to prove that 
once a field is baited that it was not a major contributing 
factor in luring migratory birds there. That is almost a given. 
If the bait is there, the determination is that if birds was 
there that was a major contributing factor.
    Mr. Farr. Senator, that is precisely my point. Why don't we 
just prohibit baiting?
    Senator Breaux. Baiting is illegal. It would still be 
illegal under this bill.
    Mr. Farr. It is only illegal if you are going to hunt on 
bait. It is not illegal----
    Senator Breaux. That is the--which is the only thing which 
is a criminal violation, is hunting over a baited field. 
Hunting over a baited field--baiting a field would still be 
illegal for trying to lure migratory birds there, and a person 
hunting would still be guilty of a criminal violation if he 
knew or should have known it was baited.
    Mr. Farr. I accept that, but that is not what the law says. 
It says where the person should have known. It doesn't require 
that the person really does know. And you pointed out that 
there is a lot of money being made--I mean, those hunters that 
came to that area and were put out in the blind. Somebody 
guided them there. Somebody lured them to spend the night in 
that lodge. Somebody who lives there in that spot had 
responsibility for knowing about----
    Senator Breaux. Oh, absolutely, and that person should be 
put in jail and should be fined. He has a greater 
responsibility, the landowner, to protect his property from 
illegal baiting. The person who runs the hunting club has a 
greater responsibility than the innocent hunter. That person 
knew or should have known because it is his property.
    Mr. Farr. I agree, and there is nothing in this law that 
says that. I mean, let us put the strict liability on the 
person that is making the money from the hunt rather than, as 
you say, the innocent hunter. But I don't think that is the way 
this bill is drafted, and I would support that.
    Senator Breaux. The same principles would apply to anybody 
that is potentially a violator of the law, and the principle is 
that if you knew it was baited, whether you are the landowner 
or a hunter who has never been there before or you should have 
known that it was a baited field. And I would suggest that the 
person making the money, the landowner or the person running 
the duck camp, it is a lot easier for them to get nailed under 
a knew or should have known standard because it is their 
property.
    Mr. Farr. But then if you read the other qualifying 
language down on Section 2, starting on line 7 on page 6, it 
sort of, I think, just opens a big wedge in there, taking of 
all migratory game birds, including waterfowl, is possible 
where grains are found scattered solely as a result of normal 
agricultural planting or harvesting. I mean, that----
    Senator Breaux. That is current law.
    Mr. Farr. Yes. Is the following section, too, where the 
taking of all migratory birds except waterfowl, down on line 20 
it says or other feed on the land where grown for wildlife 
management purposes? Is that----
    Senator Breaux. Yes, normal agricultural practices are 
exempted from baiting. We are saying that there ought to be 
better guidelines as to what normal agricultural practices are. 
The problem with the current law is that if it is normal 
agricultural practice, it is not baiting. We are saying they 
ought to issue regs as to what constitutes normal agricultural 
practices in that region.
    Mr. Farr. I don't think I am trying to disagree with you. I 
am trying to figure out how this law could be crafted so that 
we don't find ourselves every year coming back with exceptions 
to the law that we are trying to invent today. I mean, you 
really put an awful lot of burden, it seems to me, here more so 
on the wildlife management process, perhaps government in this 
case, that the term baiting has to be intentional. It has to be 
intentionally placed. It has to prove that the major 
contributing factor was the bait being put. I mean, there is a 
really tremendous shift of responsibility here from somebody 
trying to prove the intent of all of these things, not holding 
the hunter and the process that got the hunter to the field 
responsible. It takes the burden off the people with a weapon 
and puts it on the person with a badge.
    Senator Breaux. I would suggest, Congressman, that when you 
are talking about a person's individual civil rights and the 
potential for going to jail with a criminal violation, there 
should be a burden on the officers who are enforcing the law to 
at least show that the person had actual knowledge or even that 
he knew or should have known. We are talking about a criminal 
violation here, not a civil penalty. And I would suggest the 
standards for the law enforcement people should be pretty 
difficult. This is a criminal charge. A person could go to jail 
and have his career ruined by doing this, and they should have 
at least the ability to show that the person at least should 
have known that he was committing a crime.
    Mr. Stearns. The only thing I would add to it is in this 
case these 90 people had no knowledge, were there under the 
assumption that they were going to help a local youth group in 
a fundraising, and they got--and they all paid their money. 
They were so intimidated by the process they were scared to go 
to the courts. They were just--the whole process, they all paid 
their money. And they have that now as a permanent record. So 
what the Senator is saying, these people are presumed to be 
guilty even though they had no prior knowledge, had no idea.
    Now, using your interpretation, you could go forward to the 
fellow who owned the land. That would be a different story, but 
I think the pendulum has swung here and I think what the 
Senator is trying to say is under our Bill of Rights, we want 
to extend to the hunters the Bill of Rights. And under the 
present Migratory Bird Act, they don't have a full Bill of 
Rights.
    Mr. Farr. Well, my time--let me just say that as I 
understand under current law, those convicted of shooting over 
baited areas are not normally incarcerated. I wonder if there 
have been people incarcerated. It is a----
    Mr. Stearns. These people, these 90 people, citizens 
including sheriffs, were not incarcerated.
    Mr. Farr. And that is a misdemeanor violation, that they 
have to pay fines of several hundred dollars?
    Mr. Stearns. That is true. They had to pay about $400, 
$300.
    Mr. Saxton. Mr. Farr, would you yield to me for just a 
minute?
    Mr. Farr. Yes, Mr. Chairman.
    Mr. Saxton. Let me try to put this in perspective. I live 
in an area where a lot of people hunt, including myself. We 
hunt waterfowl. And law enforcement officers have a pretty darn 
good idea in any given region who is baiting and who isn't 
baiting. When you bait for waterfowl, it is not like you go out 
and throw a bag of corn in the water and all of a sudden 
somehow magically the ducks all know it is there and they come 
get it. This is a long process which may be over a series of 
weeks and, you know, the baiters will essentially train the 
ducks that there is bait here and they may even put up a marker 
someplace so the ducks will be able to easily identify the 
spot. They will get in their boats, oftentimes in the dark of 
night, with a couple of hundred-pound bags of corn, scatter it 
in the boat, scatter it along the way. Law enforcement officers 
know exactly what to look for, and therefore it is pretty easy 
to identify who is baiting.
    Now let us just say for a minute that some 18-year-old high 
school person sees this gang of guys out there hunting and he 
thinks it is pretty neat because there are a lot of birds 
around, and all of a sudden one day after school without having 
any idea whatsoever why those birds are there he gets in his 
rowboat or his canoe and paddles out there, gets in the other 
guy's blind and has great luck. And all of a sudden the warden 
comes along and this guy all of a sudden is arrested, charged 
with and is almost automatically guilty of hunting over bait.
    Mr. Farr. Mr. Chairman, is that factual case that happened? 
I mean, I am--I don't hunt, but I am a fisherman.
    Mr. Saxton. It happens all the time, Sam.
    Mr. Farr. You know, there are all kinds of areas where you 
should know. You don't--you can say you go to the river and you 
didn't know it was a catch and release river, because we don't 
have signs all up and down rivers saying everything you catch 
here you have got to let go. I mean, where in this process is 
the responsibility for the hunter? I mean, you are spending a 
lot of money buying a gun and going to a spot. Frankly, I think 
if the American public knew that public wildlife refuges were 
allowed hunting they would be appalled by it. You know, we have 
set up these public lands and we lure the wildlife there and 
then we shoot them.
    Mr. Saxton. We are talking about private lands here. We are 
not----
    Mr. Stearns. Mr. Chairman, I just want to----
    Mr. Farr. This is all lands, as I understand, both public 
and private.
    Mr. Stearns. Just to put it in perspective for Mr. Farr, 
five of the students that were cited in the ``allegedly baited 
field'' were not even on the field. So, I mean, that shows you 
that the interpretation of this law is so broad that you could 
cite young students who are starting out in life, who are going 
to the University of Florida, and put a criminal misdemeanor on 
their record when they were not even on the field, but they 
were part of these 90 people and they were out, you know, maybe 
getting a coke or something. And they just swooped in and gave 
all of them, including these five students, and put a criminal 
misdemeanor on their record. Their parents had to pay the 
money. They were not on the baited field, so surely, surely the 
U.S. Fish and Wildlife in this case overstepped. And these five 
men, five students now, as they grow up to men are going to say 
every time they fill out a form there is a criminal misdemeanor 
because I was supposed to be not on this land and I didn't even 
know about the land and I wasn't on the land. And where do they 
go?
    Mr. Farr. Well, first of all, I don't think you have to 
report criminal misdemeanors. If so, every driving speeding 
ticket is a criminal misdemeanor. Secondly, if I understand 
this issue, you had 88 people cited at that hunt. 82 paid their 
fines without dispute. Four were required to appear in court 
because they had assaulted enforcement officers and two 
appealed their citations.
    Mr. Stearns. That leaves a lot of people getting criminal 
misdemeanors. And in some--as you know, some forms you--some 
applications you do have to check off.
    Senator Breaux. Mr. Chairman, I think the final point 
Congressman Abercrombie, I think, hit the nail on the head. 
This legislation doesn't require that the hunter have to have 
knowledge of the actual baiting to be guilty. It only needs to 
be required that he should have known by a reasonable exercise 
of diligence, surveying the place, checking with neighbors or 
by any reasonable exercise or normal diligence. If they should 
have known, even if they didn't, they still would be guilty 
under this legislation.
    Mr. Farr. But, Senator, where is the penalty in here for 
the provider, for the person that guides them to this spot?
    Senator Breaux. If a person intentionally did it, if the 
landowner is found to have baited the field, we are not 
changing any of the penalties there at all. The same penalties 
that are in the law today.
    Mr. Farr. But that person isn't--the person that did that 
isn't there with the gun, isn't cited.
    Senator Breaux. If someone--if the landowner baited a field 
that he owns the property of, it is going to be pretty clear 
that he knew about it because he did it or he should have known 
about it because it was his own property under his control. 
That person would be subject to the same penalties after this 
legislation is passed as before. No change at all.
    Mr. Farr. I don't think that the law is strong enough in 
that point, because it does----
    Senator Breaux. That is another question.
    Mr. Farr. The part you are talking about is no person shall 
take. You have got to have actually been in the action of 
taking.
    Mr. Stearns. Aiding and abetting.
    Senator Breaux. Oh, no, you don't have to kill a single 
bird. You can miss every shot you have got and you are still 
guilty. You don't have to take--you don't have to knock down a 
single bird to be guilty of hunting over a baited field, just 
sitting in the blind never firing a shot with a gun is hunting 
over a baited field.
    Mr. Saxton. Mr. Farr, your actually second five minutes is 
just about to expire, so we are going to move on to Mr. 
Peterson.
    Mr. Abercrombie. Mr. Chairman, before we do, can I just 
comment that, Senator Breaux, you are such a reasonable person 
I fail to understand why the Senate and the House has all this 
difficulty all the time. We just ought to get together 
ourselves, I think, and we can settle everything, don't you?
    Senator Breaux. I am trying. We are making some progress.
    Mr. Peterson. It appears to me that if I committed a crime 
against man or a person, that it is much more difficult to 
convict me than if I commit a crime of being in the position 
where I could have shot an animal on a baited field. Is that a 
fair comparison?
    Senator Breaux. Oh, sure. The other one you have to at 
least show intent or the presumed intent to convict them for 
shooting a person, whereas it is absolute strict liability over 
a baited pond.
    Mr. Peterson. So we have different standards of evidence. 
And I guess, as I have been listening to this discussion--I am 
a hunter, lifetime hunter. It appears to me that if you 
innocently show up in an area that is considered by some 
enforcement officer a baited field, you are guilty.
    Senator Breaux. Not only that. I didn't mention in my 
testimony, but, you know, the regs under the Fish and Wildlife 
Service say that the bait has to have been gone when you are 
hunting for at least the previous ten days. In other words, if 
you go hunting and the bait has been gone from that field for 
nine days, you are still legally liable for hunting over a 
baited field, even though the bait has been removed for the 
previous nine days. You may not have even been in the country 
nine days before when the field was baited, but you are still 
guilty.
    Mr. Peterson. You know, I dislike illegal hunters as much 
as anybody and people who break the game laws, but it seems 
like--I know in Pennsylvania we made it easier to prosecute 
those who break game laws. It is much simpler than it is to 
prosecute someone who hurts people, and I don't understand the 
logic in that. And I guess the part of giving anybody a 
criminal record when they are innocent and they have no ability 
to defend themselves, it appears to me that you have no ability 
here to defend yourself if you are innocently in a position 
that was a baited field or had been a baited field nine days 
ago. That is just wrong.
    Senator Breaux. You have no defense. The reason why so many 
people just plead guilty to it and pay the fine is because they 
know under the law they have no defense. Innocence is not a 
defense. Innocence is not a defense hunting over a baited 
field.
    Mr. Peterson. I think in this country every law enforcement 
officer, including game officers and Fish and Wildlife 
Officers, have the duty to prove you are guilty. And you have--
should have the fundamental right to prove you are innocent. 
That is just what this country is all about, and it appears to 
me it is obvious this law needs changed.
    Mr. Stearns. Mr. Chairman, I just--something, if I could 
add to your comments and where you are taking the argument. As 
Mr. Farr mentioned, two of the people who were cited appealed. 
They were acquitted. They won their case. So the judge actually 
agreed, which in a sense agreed with what this legislation is 
all about. And that is an important point, that when these two 
students appealed, they won. Now the other people paid from 250 
to 500, but remember, these students that went ahead and 
appealed had to pay for an attorney and they went through all 
the process and anxiety and they won their case. So I think the 
courts has almost justified this legislation.
    Mr. Saxton. Thank you. Thank you both very much. We are 
going to move on to our second panel. We appreciate the very 
clear explanation that you have given us relative to this 
issue.
    Senator Breaux. Good luck.
    Mr. Saxton. Thank you. Dr. Bob Streeter, would you come 
forward please and take your place. Good to see you again, sir. 
Welcome, and we are obviously interested in hearing your 
perspective and views relative to this matter. So, Doctor, you 
may proceed as you wish.

 STATEMENT OF ROBERT STREETER, ASSISTANT DIRECTOR FOR REFUGES 
          AND WILDLIFE, U.S. FISH AND WILDLIFE SERVICE

    Dr. Streeter. Thank you, Mr. Chairman and members of the 
Subcommittee. I am Bob Streeter, Assistant Director for Refuges 
and Wildlife, U.S. Fish and Wildlife Service. I am located here 
in Washington, D.C., it was good to get to New Jersey also.
    Thank you for the opportunity to appear before you here 
today to discuss H.R. 741, the Migratory Bird Treaty Reform Act 
of '97. Mr. Chairman, first I would like to thank you, 
Congressmen Young, Miller, Dingell, Tanner, and your other 
associates for demonstrating great leadership in developing and 
sponsoring H.R. 1420, to improve the management of the National 
Wildlife Refuge System. This was an example of a great spirit 
of cooperation and synergy between Congress, the Administration 
and some private citizens that will result in strengthening the 
National Wildlife Refuge System, and benefiting citizens and 
wildlife and including to a large degree migratory birds. And 
it will benefit the migratory bird hunters, bird watchers, and 
conservation education groups.
    However, in the case of H.R. 741, Mr. Chairman, we are 
opposed, as we believe it could significantly harm our nation's 
migratory bird resources and negatively impact the millions of 
hunters and conservation education persons who enjoy these 
national treasures. The Service does share your concern, 
however, about modifying portions of the current hunting 
regulations, as I testified before you one year ago. Although 
we have been not as speedy as desired in this process, we are 
working with our state partners to do so.
    With your permission, Mr. Chairman, I would like to submit 
my written testimony to the Subcommittee for the record and 
then briefly summarize our primary concerns with H.R. 741, if I 
might be allowed to do so, sir. Thank you.
    Mr. Chairman and members of the Subcommittee, our primary 
concern, overriding all others, is the rigidity that is 
inherent in formulating hunting rules by statute rather than by 
regulations. Procedurally, the proposed changes to the 
Migratory Bird Treaty Act would cause extreme hardship to all 
sportsmen and sportswomen of this country by creating an 
inflexible statutory process that could not possibly 
accommodate the changing wildlife management situations that 
occur.
    H.R. 741 could compromise the Service's ability to manage 
this very dynamic migratory bird resource and damage our 
commitments to the four international convention partners for 
the wise use of these valuable resources. Let me give you one 
vivid example of this. It relates to the current burgeoning 
growth of mid-continent snow goose population, which has grown 
to such a size that these birds are now impacting their 
breeding grounds, destroying habitat in the frigid arctic, and 
causing serious depredation problems in Canada and the U.S. in 
migration and wintering areas.
    An international team has recommended several actions, 
including hunting options that would result in major reductions 
in the breeding population. Some of these hunting options would 
include special seasons where electronic calls and bait could 
be used to attract these very wary birds so that the hunters 
could assist in this absolutely necessary reduction process. 
H.R. 741 would prevent the Service and our state partners from 
even considering such management tools.
    H.R. 741 would also make it illegal under any circumstance 
to use shotguns holding more than three shells for hunting 
migratory birds. Under the current regulatory approach, 
however, the Service and its state partners have the 
flexibility to change these kinds of rules when the situation 
dictates and involve the public each time in the public review 
process when they propose those changes. I repeat, our greatest 
concern is the inflexibility of the statute versus a regulatory 
process for professional management of such a dynamic resource.
    Now, Mr. Chair, a couple of brief points on the specific 
impacts of the proposed legislation. H.R. 741, in addressing 
what constitutes normal agricultural practices would load the 
Service, the states and our hunting public with a tremendous 
regulatory burden and cost. As we considered this, we 
determined that we annually would promulgate rules on what 
constitutes normal agricultural practices. We would likely have 
to address this on a county-by-county basis in every state and 
territory of the U.S. This would basically be a veritable Sears 
and Roebuck catalog of regulations that we would have to 
publish and print. The cost of doing this as well as the cost 
of publishing would be a great load on all of us, as well as 
the hunter. The current process of using the extension service 
as a resource has worked quite well in an overwhelming majority 
of cases.
    Several sections of this bill in aggregate, not 
individually but in aggregate, seem tantamount to legalizing 
baiting. They would replace the strict liability standard with 
a knows or should have known standard. If that were the only 
thing, we probably could work with that as discussed, but when 
you add to that a requirement that government officials have to 
prove the hunter's intent and you add to that that officials 
would also have to prove that the bait is an attraction that is 
a major contributing factor that lured the birds not to the 
area but within shotgun range, then you have an unreasonable 
burden on state and Federal officials and it simply would make 
any baiting rule unenforceable.
    [Statement of Robert Streeter may be found at the end of 
the hearing.]
    Mr. Abercrombie. Mr. Chairman, excuse me. Mr. Chairman, may 
I interrupt for a moment. We do have all your statement. Dr. 
Streeter, I want to make sure I understand correctly for the 
benefit of myself and the Chairman, did I understand you 
correctly to say if the question--the word intentional is a key 
element here, that you think this can be worked out? Because if 
that is the case, virtually everything else that you are 
talking about we can deal with in another context and we don't 
have to prolong this hearing and have five dozen people come up 
and testify. If that is the case, we ought to be able to end 
this hearing and deal with the thing forthwith.
    Dr. Streeter. If we have to prove, if Federal law 
enforcement officials have to prove the intent of the hunter 
and the intent of the bird----
    Mr. Abercrombie. No, no, you don't have to answer for me. I 
am just saying you said--am I correct that if that is the key 
element here, that you think that you can--you have some ideas 
on how this can be addressed and what you think is the right 
thing to do so that we can deal with this in the criminal/civil 
side or however we want to work it out? Did I understand you 
correctly?
    Dr. Streeter. Congressman----
    Mr. Abercrombie. Because we have got--I am going to be 
frank with you, we have got something like five panels and 150 
hours of testimony, it looks like, we are going to deal with 
here, but the key, as far as the looming presence is concerned 
behind you, is the question of intention and criminality and 
whether that is going to mess people's lives up. And if Fish 
and Wildlife says that that issue you believe--if you believe 
as Fish and Wildlife that this can be addressed in a reasonable 
way, I am willing to bet that the Chairman can sit down with 
you and staff and get this worked out.
    Dr. Streeter. The knows or should have known standard, I 
think, could be addressed.
    Mr. Abercrombie. Thank you very much. Mr. Chairman, I think 
that we might be able to cut through an awful lot of extra 
discussion here if that, in my judgment at least, is the key 
element here, maybe we can move expeditiously. I am perfectly 
willing to have everybody put their testimony into the record.
    Mr. Farr. If the gentleman will yield. If I may just----
    Mr. Abercrombie. Well, the Chairman granted me the time, 
so----
    Mr. Saxton. If I may, I would just like to ask Dr. Streeter 
if he would conclude his statement and then we will get to the 
questions.
    Dr. Streeter. Yes, Mr. Chairman, I would, and I would like 
to just conclude with that statement that our overriding 
concern is handling what is now in regulations, handling those 
as a statute and the inflexibility that that would provide for 
Federal and state professional wildlife mangers.
    Thank you very much for being able to provide this.
    Mr. Saxton. Thank you very much. Mr. Farr.
    Mr. Farr. Mr. Chairman, I was just going to say that on a 
day like this I miss the state legislature where you really 
have a bill with a strikeout language of what you are taking 
out and the new language put in, because this bill is difficult 
to understand. But I think the key of what we are supposed to 
do here in Congress is to write good law. And I think what you 
have heard today is that the way this law is proposed, and we 
have been dealing with it one of the few--and I congratulate 
you for that, because normally we talk in generalities not 
about specific pages and lines and words--is that the way this 
bill is drafted it has some unintended consequences that are 
not good law. You are taking regulations and putting them into 
statutory law. And I agree with Mr. Abercrombie that I think 
the burden here on the intent could be easily removed.
    But also, Mr. Chairman, in drafting a bill I hope that we 
will get to the responsibility that Senator Breaux talked 
about, because it is nowhere mentioned in here as the 
responsibility of the provider, of the hunting lodge, of the, 
you know, the people that are on the land. They normally know 
what goes on in their backyard. And if the problem is that 
innocent people come into this backyard or come into this field 
and they don't know but the people around them do know, then 
let us hold the people accountable for that and use the same 
language and the same degree of responsibility for the people 
that are providing the use of that land or providing the person 
to be there in the first place.
    Mr. Saxton. Sam, we can work this out. My understanding is 
that under current law there is a section which we are not 
touching which relates to aiding and abetting or the provider's 
responsibility. And further, if it would help to clear up the 
matter, we can strengthen that language, which we have not 
touched in this bill. But we certainly can address those 
concerns that you have relative to the so-called provider.
    Mr. Farr. I think the should have known language which is 
key to this bill should be in that, and they ought to 
strengthen the penalties for them, because they are frankly the 
ones that are making the money off of this activity and they 
hold a greater responsibility. You know, the other side of this 
is that we are also here to protect the wildlife. It is not 
just to protect the hunter. There is a balance here, and it is 
our job to draft this in a careful way.
    Mr. Saxton. Thank you very much, Dr. Streeter. We have no 
further questions at this time.
    Panel three of five consists of Mr. Brent Manning, Director 
of the Illinois Department of Natural Resources, Mr. Bill Horn 
of Birch, Horton, Bittner and Cherot, and Steve Boynton of 
Henke and Associates. Welcome aboard. Brent, you may begin.
    Mr. Manning. Thank you, sir, very much. Good morning, Mr. 
Chairman. I am Brent Manning, Director of the Illinois 
Department of Natural Resources.
    Mr. Saxton. May I just say I know that many people are 
accustomed to testifying. That little green light there in 
front of you will turn red at some point. When it does, we 
would appreciate you summarizing your testimony at that point.

 STATEMENT OF BRENT MANNING, DIRECTOR, ILLINOIS DEPARTMENT OF 
                       NATURAL RESOURCES

    Mr. Manning. Thank you, sir. I am Brent Manning, Director 
of the Illinois Department of Natural Resources, and also 
representing today the International Association of Fish and 
Wildlife Agencies. I have been selected as their ad hoc 
committee chair on the subject of baiting. I thank you for the 
invitation to testify on behalf of the Association and many 
sportsmen throughout the United States.
    I wish to point out that the Association's ad hoc committee 
spent almost a year carefully considering the subject before 
us. The recommendations of the committee were adopted by the 
Association and forwarded two weeks ago to the U.S. Fish and 
Wildlife Service for their consideration. We hope the Service 
will adopt the proposal and publish it for public comment.
    I would like to highlight our proposal and briefly compare 
it with H.R. 741. Please refer to my written testimony for 
greater detail. And for the sake of clarity I will divide our 
recommendations into three main subject areas, the first being 
agricultural crops, the second the management of natural 
vegetation and the third the issue of strict liability, which 
we have spent 90 percent of the time on this morning.
    First on the subject of agricultural crops, we make the 
common sense recommendation that hunters who incidentally 
scatter feed while entering or exiting hunting areas not be 
cited for baiting. Furthermore, we believe that the current 
terms ``normal'' and ``bona fide'' in reference to certain 
agricultural techniques are too vague and only have been 
defined thus far in case law. We recommend replacing those 
terms ``normal'' and ``bona fide'' with the word ``accepted'', 
and we define the word accepted. The distinct advantage offered 
by this approach is that for the first time the regulations 
would clearly designate a final authority for making such 
determinations. Comparatively, H.R. 741 in many cases may leave 
some doubt about who is ultimately responsible for making that 
decision.
    Second, the management of natural vegetation. Moving to the 
subject, natural vegetation, the Association very strongly 
believes that Federal baiting rules were not originally drafted 
with the intent of preventing hunting over manipulated natural 
plant communities. However, a more strict interpretation of 
Federal baiting regulations by the U.S. Fish and Wildlife 
Service appears to have emerged during the last decade or so. 
Such an interpretation discourages professional wildlife 
managers from maintaining or restoring natural wetlands. 
Therefore, our proposal clarifies the regulations in this 
regard. H.R. 741 does not address the issue of natural 
vegetation and thus leave the intent of the existing 
regulations subject to continued speculation.
    The third issue is that of strict liability. On the subject 
of strict liability, both the Association's recommendation and 
H.R. 741 reject this aspect of existing regulations. In 1978, 
the Delahoussaye case, the U.S. Court of Appeals for the Fifth 
Circuit District rejected a strict liability interpretation of 
the regulation. Instead, the court required at a minimum that 
the presence of bait could have been reasonably ascertained by 
the conscientious hunter. Our recommendation is consistent with 
that already done Federal ruling. We require that the hunter 
know or should have had a reasonable opportunity to know that a 
hunted area is considered baited. That is very simply what the 
Delahoussaye case says, and it is now applicable in five states 
in these United States.
    H.R. 741 proposes a similar approach. However, as a result 
of this change, a critical loophole has been created. David 
Hall, former special agent in charge and advisor to the ad hoc 
committee on baiting, said the Delahoussaye decision was very 
workable and allowed him to make good, consistent and 
reasonable baiting cases. By the way, Mr. Hall has made more 
baiting cases than any other Fish and Wildlife Service special 
agent.
    We do have a couple of issues of special concern with H.R. 
741 that I would like to point out. They are slight differences 
that I think can be worked out. First, H.R. 741 requires that 
salt or feed capable of attracting migratory game birds be 
intentionally scattered. The requirement to show intent by a 
hunter is a much more difficult standard of proof than the 
requirement to demonstrate that a hunter should have knowledge 
that the area was baited. We think this change has the 
potential to erode the protection of the migratory bird 
resource.
    H.R. 741 also requires the effect of bait be separated in 
the field from the effects of other important attractants like 
hunting location and subjective methods such as decoy 
arrangement and calling expertise. Because the relative 
attractiveness of the bait must be shown, a much higher 
standard of proof is again imposed. We believe that may have 
the potential to create as many problems in this section as it 
attempts to solve.
    Finally, this bill appears to remove an important 
prohibition in existing regulations. Currently, doves can be 
hunted over lands where feed has been distributed as a result 
of alteration for wildlife management purposes provided the 
alteration does not include redistributing feed after being 
harvested or removed from the site. H.R. 741 omits this very 
important restriction, thus allowing feed to be returned to and 
scattered on a field after being harvested or removed. We 
recommend that the prohibition be restored.
    In summary, the Association agrees that Federal migratory 
game bird hunting regulations need clarification. Consistency, 
clarity and common sense are of paramount importance. We 
believe strict liability is the heart of the issue before this 
Subcommittee, and we are willing to participate in a working 
group to bring our respective proposals together.
    The International Association of Fish and Wildlife Agencies 
appreciates the opportunity to address you today, and I offer 
my personal assistance in reaching the goal I believe that we 
all share. Common sense regulations that protect the migratory 
bird resource and the future of responsible hunting are very 
important to all of us. Thank you again for allowing me to be 
here.
    [Statement of Brent Manning and additional information may 
be found at the end of the hearing.]
    Mr. Saxton. Mr. Director, thank you very much. 
Incidentally, we want to apologize. Our material has 
consistently referred to you as Brett rather than Brent, and we 
apologize. And so for the record, Mr. Manning's first name is 
Brent.
    Mr. Manning. Thank you, Mr. Chairman. And I am very happy 
that you did not call me Forrest Gump or Elmer Fudd as a 
journalist just recently did in regard to this issue.
    Mr. Saxton. Nor did we call you late for dinner, right.
    Mr. Manning. Yes, thank you.
    Mr. Saxton. Mr. Horn.

STATEMENT OF WILLIAM P. HORN, BIRCH, HORTON, BITTNER AND CHEROT

    Mr. Horn. Thank you, Mr. Chairman. My name is William Horn, 
and I appreciate the opportunity to appear today before the 
Subcommittee. I thank you for scheduling this hearing to 
address a regulatory issue that is long overdue for reform. 
Existing regulations regarding the use of bait for the take of 
migratory birds are presently too subjective, too obscure and 
put thousands of law-abiding hunters at risk for potential 
violations.
    My position on this issue arises from two perspectives. 
First, I had the privilege to serve as Assistant Secretary of 
Interior for Fish, Wildlife and Parks under President Reagan, 
and basically enforced, wrote and signed the migratory bird 
rules for a number of years. Second, I am also a hunter who 
struggles with these rules every time I step into a duck blind 
or set up in a dove field. Reform is needed to end, or at a 
minimum reduce, the level of struggle associated with efforts 
by reasonable hunters to comply with these regulations.
    Now the sporting community and the Fish and Wildlife 
Service have long recognized the need for clarification and 
simplification of these rules. Indeed, the Director's 1990 Law 
Enforcement Advisory Commission specifically proposed a 
revisitation of the baiting regulations found at 50 CFR 20.21. 
In addition, the Commission raised the issue of strict 
liability as one requiring review and attention and prospective 
change.
    Unfortunately, no action has been taken by the Service to 
implement this now seven-year-old recommendation. We are 
persuaded that the committee and Congress ought to act on its 
own via passage of H.R. 741 to pursue the original 
recommendations made by the 1990 commission. Now, as Mr. 
Streeter indicated, these matters could be addressed 
administratively, but frankly years of inaction by FWS 
demonstrate that Congressional leadership and action is needed 
or nothing is going to happen.
    Now regarding the law, the first objective is to change 
this matter of strict liability. I think, as Senator Breaux 
very eloquently stated, the imposition of strict liability 
eliminates the ability of a hunter or landowner to mount a 
defense against charges of illegal baiting. And this is 
completely contrary to the fundamental premise of American 
justice that one is innocent until proven guilty. Establishing 
a standard that requires some reasonable measure of intent or 
knowledge is more just and equitable, but still enables law 
enforcement officers to pinch and successfully prosecute 
genuine wrongdoers.
    Another goal of reform must be the creation of objective 
rules and policies that law-abiding hunters can comply with. As 
indicated, I have overseen the Fish and Wildlife Service, I 
have practiced wildlife law, and I have hunted ducks, doves and 
geese for years, and I still hunt these birds with a great deal 
of trepidation. I personally scrupulously examine fields before 
hunting and make pointed inquiries about agricultural 
practices, yet I still cannot be sure that I am complying with 
Federal regulations and enforcement policies.
    Can an agent find some tiny amount of leftover grain from 
an earlier legitimate feeding program? Does the agent agree 
that the agricultural practices used in the field that I am 
hunting are bona fide? Can the agent determine that baiting has 
occurred on an adjacent field up to over a mile or more away 
that I have never seen and cite me for taking birds on their 
way to that field? All of these determinations are so 
subjective that even the most diligent and careful hunter can 
be cited for a violation, notwithstanding their best efforts to 
comply with the law. That is simply bad public policy. The 
rules must be remade in a way that the diligent and careful 
hunter who makes the effort can be assured that he or she is in 
compliance with the rules.
    On the compliance front, I would like to add that it is 
unfortunate that Fish and Wildlife enforcement personnel are 
unwilling to provide advice or guidance about baiting. I am 
aware of many hunt organizers contacting law enforcement from 
Fish and Wildlife to ask the agents to examine a field and give 
it a clean bill of health in an effort to comply with the 
existing baiting regulations. And these organizers are 
routinely turned down flat. I pose this inquiry: even the IRS 
is willing to help citizens with tax compliance--why can't the 
Fish and Wildlife Service help us with migratory bird 
compliance?
    Lastly I would like to bring one other issue to the 
committee's attention, and ask it to deal with this in the 
context of legislation or in terms of guidance to the Service. 
I would be very concerned about efforts by the Fish and 
Wildlife Service to close hunting in very large zones proximate 
to farms where waterfowl feeding is occurring. The apparent 
policy rationale is that the feeding farm, even if it is not 
hunted, constitutes an illegal lure; it brings birds into a 
generalized area.
    This kind of policy could easily become a tool of the 
animal rights extremists because aggressive feeding on a few 
strategically parcels on, for example, the Eastern Shore could 
close down hundreds of waterfowl hunting locations. I think the 
committee needs to direct the Service to be extremely careful 
and not provide anti-hunting zealots a weapon to be used 
against waterfowl hunters.
    Thank you again for the opportunity to address this issue. 
I think reform of the MBTA, the 20.21 regulations and related 
policies is necessary to achieve greater objectivity and 
clarity so that the diligent and careful hunter can comply with 
the law and applicable regulations and policies. Thank you.
    [Statement of William Horn may be found at the end of the 
hearing.]
    Mr. Saxton. Thank you very much, Mr. Horn. Steve, proceed.

     STATEMENT OF STEPHEN S. BOYNTON, HENKE AND ASSOCIATES

    Mr. Boynton. Thank you, Mr. Chairman. My name is Stephen 
Boynton. I am an attorney in private practice in the District 
of Columbia, and I have devoted much of my practice over the 
past 20 years to wildlife and conservation law. I have tried a 
number of these baiting cases and handled them from California 
to Pennsylvania and from South Carolina to Delaware. Mr. 
Chairman, I have also had the dubious distinction of having 
been a defendant, an unsuccessful defendant, in a case that 
went all the way to the Fourth Circuit Court of Appeals. And 
being a defendant, it catches your attention to know the law 
very quickly.
    I have submitted a rather comprehensive statement, which 
gives a judicial background that Congressman Abercrombie 
referred to earlier of having these issues considered before. 
Some of them have quite considerably. Some of them have been 
ignored on the basis that any evidence of what the defendant 
knew, or should have known, is irrelevant. If he is there, the 
bait is there, get out your checkbook. It is as simple as that.
    I would also like to comment on something Congressman Farr 
said. I think it should be underscored that the primary and 
singular and most important problem when you face any change to 
regulations or law is to protect the renewable resource. I 
think that is a primary consideration. In considering this law, 
this proposed law carefully, I think some of the issues that 
have been raised are important. I would like to address those 
that I have heard this morning and read about.
    Number one, the question of whether or not the person 
actually putting out the feed possibly slipping through in this 
particular proposed legislation. First of all, as the Chairman 
mentioned, he could be pulled in as an aider and abetter, which 
is under the criminal law even though he isn't in the field, 
even if he isn't there. If he perpetrated the crime, he could 
be pulled in. But let us assume for a moment that he did put 
out the feed to bait but the hunter was successful in his 
defense so that he didn't know or should not have known or did 
not have a reasonable opportunity. That means the person 
putting out the bait with the intent would take a walk, because 
there is no primary defendant.
    Consequently, I would suggest on page 6, line 3, it would 
be very simple to add the words no person ``shall take or 
assist in the taking.'' As the Chairman indicated earlier, that 
would take care of the problem very quickly.
    There has been some, in my judgment, wrong interpretation 
on page 7 of the term baiting means the intentional placing. I 
think as this has been drafted it doesn't mean you have to 
prove the intent of the person placing it. It means that the 
bait was put there purposefully. In other words, we are 
excluding accidental distribution of seed. I have had cases 
where, and Congressman Stearns referred to it, where there has 
been corn found on a public road. Both sides stipulated and it 
was agreed to it fell off a truck, but it was ``bait'' within 
that ``zone of influence'' and the defendants were found 
guilty. That is what this section refers to, is that a person 
is not going to be charged with accidental distribution of 
seed, which can be proved.
    The basic concern that everyone has, and I have heard it 
and read it, is that they will never be able to make a case 
under this law. And I think that is nonsense. First of all, 
this is a criminal violation, and the normal standards in 
criminal law are beyond a reasonable doubt. That has been 
eliminated and you are talking about a preponderance of the 
evidence, which is basically a civil standard. And both sides 
have a level playing field to come in court. If the defendant 
cannot prove by a preponderance of the evidence, obviously the 
government is going to get a conviction.
    Now the conviction rates are very substantial. In fact, the 
previous director of law enforcement, who has since passed 
away, once bragged that they had a 97 percent conviction rate. 
And I said I didn't believe that. He came in with his three-
inch stack of records to prove it. And I asked him without 
looking at it how many of them just paid the fine. He was 
considering that in a conviction rate because there is really 
no sense going to court unless you have some way under today's 
standards of either proving you weren't there, which is kind of 
silly, or that that bait was not bait at all, it was rocks or 
it was so far away or there is some hook to get away from 
strict liability. It doesn't happen or very seldom does it 
happen.
    One of the other concerns has been the question of 
flexibility for the regulatory process. First of all, Congress 
has the duty to administer the Migratory Bird Treaty Act 
pursuant to treaty. It has delegated that duty to an executive 
branch of government, which it has every right to do. However, 
the Congress has the primary duty. Now these laws have been 
administered inconsistently throughout the nation. There is 
actually a Congressional duty under that treaty to make sure 
they are consistent. And I suggest to you that the Congress not 
only has the opportunity to change this law but it has the duty 
to change the law to make it consistent.
    As to flexibility--a year ago today we had a hearing, seven 
years ago the Advisory Commission made a report, twelve years 
ago then Congressman Breaux held a hearing, twenty four years 
ago was the last change in the regulation, and the first case 
in 1939, the Reese case was 58 years ago. It said that the 
hunter--the only problem--the hunter must investigate ``bait'' 
at his peril. However, today we just don't know what the peril 
is or where it is. And I think Congress not only has a duty but 
it has an opportunity to define it. With all the time and 
treasure that sportsmen put into the conservation of renewable 
resources, I think it is only fair that it be addressed by the 
Congress and corrected.
    Thank you, Mr. Chairman.
    [Statement of Stephen Boynton may be found at the end of 
the hearing.]
    Mr. Saxton. Thank you very much. I have no questions at 
this point. Mr. Farr.
    Mr. Farr. I wonder if Mr. Boynton has read Mr. Manning's 
proposed regulations?
    Mr. Boynton. Yes, I have.
    Mr. Farr. What do you think of them?
    Mr. Boynton. Mr. Manning and I met yesterday for several 
hours going over that. I have trouble with the word ``normal'' 
to change ``accepted'' as a standard. However we agree that you 
could use both words, normal and accepted. I had a case where 
under the current law it says ``bona fide agricultural 
practice.'' The court said that bona fide wasn't the intent of 
the person doing it, it was by somebody else's standard. So I 
had some questions with Mr. Manning. We discussed this and Mr. 
Manning has made a proposal that he did not refer here to 
today, but there is--if there can be a standard that is put in 
with all the input from the Fish and Wildlife Service, from the 
state fish and game agencies, from the soil conservation 
districts, and they come out with what is the ``normal 
accepted'' standard of agriculture in a given area, I am all 
for it.
    Mr. Farr. I agree with you that there is something that is 
broken and needs fixing, but I am not convinced that the bill 
in its present language fixes it in a way that both Mr. Boynton 
and Mr. Horn talked about. And I appreciate Mr. Manning's 
diligence on it, and hopefully we can come to some resolution 
to write a law that will work, not that will cause other 
problems so we will be back here a year from now.
    One of the biggest problems I have is just lack of law 
enforcement in wildlife management. I happen to have a marine 
sanctuary out in my district in California that is 200 miles 
long, and we have one enforcement officer to go from San 
Francisco to the Mexican border for all marine wildlife 
management. I mean, it is impossible for him to do his job in 
any reasonable way. And I find that the local folks think that 
the fact is we just don't have enough enforcement in game 
management.
    So if we are going to write a law, when it does get 
enforced, it ought to be enforced properly. And I think that, 
as you say, the responsibility here is for the renewable 
resource and what you are learning--the big picture is that 
loss of habitat and pesticides and so on, the species are all 
declining. So there is a real--there is a big management 
responsibility here, and I appreciate your testimony.
    Mr. Saxton. Thank you. Mr. Abercrombie.
    Mr. Abercrombie. Mr. Boynton, I have not had the 
opportunity to examine in detail your testimony, but I will. Am 
I correct in understanding that you indicate in that testimony 
previous cases that address the question of intention and known 
and should have known as it applies in this particular area?
    Mr. Boynton. In some exhaustive detail, I am afraid.
    Mr. Abercrombie. No, no, that is good. Do you agree, then, 
that if we can solve that--that problem is resolvable? 
Reasonable people can resolve that and thus move off this 58 
years of stasis?
    Mr. Boynton. I think it is solvable. And as far as the time 
element, that is in your hands. But yes, I think it is 
solvable. And most people, although quibbling over some of the 
other portions of this legislation, those people agree that 
that standard is too high and should be addressed 
appropriately. Yes, sir.
    Mr. Abercrombie. And one last point about the criminality 
side. Reference was made earlier, perhaps you heard it, about 
someone whose application for entrance into military services 
was compromised by virtue of a conviction in this. So am I 
correct that when we say a criminal conviction we are talking 
about something that can adversely effect someone's life goals 
and so on?
    Mr. Boynton. That is correct, sir. This specific case, I 
believe, was Naval ROTC, and he had to put down whether or not 
he had a criminal conviction. He did, albeit a misdemeanor, it 
was still there, and he lost----
    Mr. Abercrombie. Would you agree that perhaps we then 
should take up whether we should differentiate in this bill or 
what comes out of this legislation, perhaps, going to civil 
penalties rather than criminal penalties where appropriate? Now 
not getting rid of criminal penalties, because that might be--
not accomplish what needs to be accomplished, but perhaps there 
ought to be some consideration of civil penalties as opposed to 
criminal penalties where that seems appropriate.
    Mr. Boynton. I think that could be considered. And I might 
also add at the hearing 12 years ago that Senator Breaux 
chaired when he was with the Merchant Marine Committee, there 
was a suggestion that these penalties remain criminal but be 
similar to the Juvenile Corrections Act where after a five-year 
period and there has been no other conviction under the act, 
they be purged.
    Mr. Abercrombie. Okay, thank you very much, Mr. Boynton. It 
was very valuable.
    Mr. Boynton. Thank you.
    Mr. Saxton. Thank you all very much. We are going to move 
to panel four at this point, Dr. Rudolph Rosen representing the 
Safari Club, Mr. Dan Limmer representing the National Wildlife 
Federation, Mr. Rollin Sparrowe representing the Wildlife 
Management Institute, Ms. Susan Lamson of the NRA, National 
Rifle Association, and of the NRA the Natural Resources 
Division, Mr. William Ladd Johnson of the National Waterfowl 
Federation. Welcome.
    Mr. Rosen, you may begin. And let me just remind you that 
there is a five-minute time limit. When the red light goes on, 
please finish your thought. You may proceed, sir.

STATEMENT OF DR. RUDOLPH ROSEN, EXECUTIVE DIRECTOR, SAFARI CLUB 
                         INTERNATIONAL

    Mr. Rosen. Thank you, Mr. Chairman. My name is Rudolph 
Rosen, and I am Executive Director of Safari Club 
International. Mr. Chairman and members of the Subcommittee, I 
do appreciate the opportunity to appear before you today to 
speak about H.R. 741. I am going to abbreviate my comments, and 
I ask that the full text of my comments be entered into the 
record.
    My most direct experience with regulation of migratory bird 
hunting was from 1991 through February of this year when I was 
responsible for migratory bird management and harvest 
regulations first for the State of Texas as Director of 
Fisheries and Wildlife and then for the State of Oregon as 
Director of the Oregon Department of Fish and Wildlife, and 
also throughout my life as a hunter of migratory birds.
    Safari Club is an international not-for-profit wildlife 
conservation organization with over 32,000 members, 168 
chapters worldwide, and through affiliated organizations, our 
numbers increase to over one million. All of our members are 
hunters, and we work to conserve the world's wildlife species 
and protect the rights of hunters.
    H.R. 741 would enact into law a variety of prohibitions 
dealing with different methods and practices for hunting 
migratory birds. Hunting migratory birds with the aid of bait 
is one of those prohibitions, and this bill makes an important 
clarification in regard to this particular provision in that a 
person charged with a baiting violation must know or should 
have known through the exercise of reasonable diligence that 
bait was present where they were hunting.
    We appreciate the leadership of the Chair and others in 
Congress bringing this bill forward. We support these efforts 
and we offer our help as the bill moves forward.
    The Safari Club supports regulations that conserve 
migratory bird resources. We also support ethical hunting and a 
very strict adherence to all wildlife hunting rules and 
regulations. Our members pledge to follow a code of ethics that 
includes knowing and following hunting rules and regulations 
wherever and whenever they hunt. Rules prohibiting baiting of 
migratory birds and hunting over bait are no exception. Our 
members do not question the need for these regulations, 
including the prohibition on baiting. But we have a problem 
when it comes to the current rule on hunting over bait. The 
rule has been interpreted and administered for years as a so-
called strict liability standard.
    It has been the experience of our members that the current 
rule is often enforced so rigidly that hunters who are innocent 
of knowingly violating baiting laws are categorically judged 
guilty. The judgments of various law enforcement officers can 
vary as to whether the amount and nature of placement of 
various materials, as well as the handling of crops in 
agricultural areas amounts to baiting. Once a judgment has been 
made by a law enforcement officer, the strict liability nature 
of the baiting violation makes it very difficult for the 
alleged defender to contest. The costs and time required to 
argue with an officer's judgment are so high compared to the 
penalty that most people charged with hunting over bait simply 
pay the penalty.
    Some may feel this is simply an annoyance factor, but our 
members take pride in the fact that they hunt lawfully and 
ethically. In one case, there was a move to bar a person from 
candidacy for the Safari Club presidency because he had paid a 
penalty for hunting over bait rather than contest it. The 
Safari Club undertook a detailed inquiry, hearing a number of 
witnesses, and determined that his action was only a violation 
because of the strict liability standard of the rule, that he 
had no intent to hunt with the aid of bait and he had no 
knowledge that bait had been placed. In this incident, over 25 
people were involved, including a very well-known golfer.
    Wildlife managers generally seek to develop rules in 
cooperation with hunting license holders that protect the 
resource first, and where biologically-based management 
practices allow, permit hunting within defined limits. Such 
regulated hunting provides recreational and economic benefits, 
especially important to rural America where spending on hunting 
and fishing gives a much needed boost to the local economy.
    We understand that wildlife law enforcement acts as a 
deterrent and this force of deterrent can be very, very 
effective and necessary in preventing harm to wildlife 
resources. But the baiting regulations have acted as an 
entirely different sort of deterrent, because here in addition 
to deterring would-be baiters, the regulations have acted as a 
deterrent to ethical hunters. Since hunters can't be assured 
any field is bait free, in self defense many hunters have given 
up or have highly limited their hunting activity.
    And this is entirely a result, we believe, of how the 
current rule is written and has, at least in my opinion, little 
to do with focusing on those truly culpable for baiting or 
protecting migratory birds. Standards on baiting need to be 
clear in holding culpable two types of violators, those who 
bait for the purpose of hunting and those who knowingly hunt 
over bait or hunt where it is blatantly obvious there is bait 
drawing birds into shooting range.
    As proposed, H.R. 741 focuses the law on the real culprits. 
Hunters will understand and agree with that kind of law. 
Hunters will back the Fish and Wildlife Service and the state 
law enforcement agencies in enforcing this kind of law.
    We thank you very much for bringing this forward today.
    [Statement of Rudolph Rosen may be found at the end of the 
hearing.]
    Mr. Saxton. Thank you, sir. Mr. Limmer. Proceed, Mr. 
Limmer.
    Mr. Limmer. Thank you, Mr. Chairman and members of the 
Subcommittee, for this opportunity to come before you today. My 
name is Dan Limmer. I am a Regional Executive with the National 
Wildlife Federation, working in our Prairie Wetlands Resource 
Center located in Bismarck, North Dakota. I ask that our formal 
comments along with attached copy of NWF resolution, which I 
have with me today, be submitted for the record.
    Mr. Saxton. Without objection. Thank you.

STATEMENT OF DAN LIMMER, REGIONAL EXECUTIVE, NATIONAL WILDLIFE 
                           FEDERATION

    Mr. Limmer. Thank you. National Wildlife Federation is the 
nation's largest conservation education organization, with 45 
state affiliates and over four million members and supporters. 
Our members and supporters are people who know and love wild 
things and wild places and value the ability to learn and 
benefit from them.
    I am here today to address House Bill 741, the Migratory 
Bird Treaty Act Reform Act of 1997. The National Wildlife 
Federation opposes H.R. 741 for two primary reasons. First of 
all, we strongly believe that wildlife management is most 
appropriately and best accomplished by trained professionals in 
wildlife conservation and wildlife law enforcement. Wildlife 
management must retain the flexibility to be able to make 
timely regulation and rule changes in order to successfully 
adjust and adapt to unpredictable and highly variable 
conditions and events.
    Secondly, H.R. 741 would in fact weaken existing waterfowl 
protections by, for example, allowing the use of toxic lead 
shot to hunt captive reared waterfowl and by expanding the 
potential for the unethical hunter to bait based on the 
requirement that would force the field law enforcement officer 
to prove intent. Such a requirement can be a very difficult 
thing to prove and could, in fact, severely compromise the 
enforcement of these regulations.
    Mr. Chairman, I have outlined the two basic reasons why the 
National Wildlife Federation opposes 741, and I would now like 
to tell the committee those things that we do support. First of 
all, we strongly urge the U.S. Fish and Wildlife Service to 
move forward quickly with the review and revision of 
regulations relative to waterfowl hunting restrictions. Any 
revised regulation must not allow waterfowl baiting and must 
adhere to the highest standards of ethical fair chase. National 
Wildlife Federation supports by resolution clear, concise, 
easily interpreted and uniformly enforceable hunting rules.
    Mr. Chairman, I am also here today as a former wildlife law 
enforcement officer and wildlife manager with over 16 years 
experience with the South Dakota Department of Game Fish and 
Parks, stationed within the heart of the Central Flyway. I can 
personally attest to the absolute necessity that wildlife 
management retain the flexibility to deal with changing 
conditions and that we have regulations in place that will hold 
the unethical few in check. Without a doubt, if those unethical 
few are allowed to go forward unrestrained, they will quickly 
become a significant adverse effect on our migratory bird 
resource.
    And finally, Mr. Chairman, I come to you today as a hunter, 
conservationist and a father with over 35 years of hunting 
experience. I have personally witnessed and I abhor unethical 
hunting methods, and I have come to learn and greatly respect 
true sportsmanship. I have dedicated my career to protecting 
and passing down to my children and all of our children, as my 
father and grandfather did to me, the ability, the opportunity 
to know, love and enjoy the great privileges that I have.
    To be sure, to be successful we must retain the flexibility 
within management to adapt to change within regulations that 
are clear, easily understood and consistently and uniformly 
enforced.
    Once again, National Wildlife Federation urges the 
committee to reject House Bill 741. Thank you very much for 
this opportunity to testify.
    [Statement of Dan Limmer may be found at the end of the 
hearing.]
    Mr. Saxton. Thank you very much, Mr. Limmer. Dr. Sparrowe, 
you may proceed. Incidentally, at the conclusion of Dr. 
Sparrowe's testimony, we are going to have to take a break for 
a vote, in fact two votes, and then we will return to Susan 
Lamson. Dr. Sparrowe.

 STATEMENT OF ROLLIN SPARROWE, PRESIDENT, WILDLIFE MANAGEMENT 
                           INSTITUTE

    Mr. Sparrowe. Thank you, Mr. Chairman. The Wildlife 
Management Institute has extensive experience and involvement 
in virtually all of the aspects of migratory bird management 
that have been mentioned today, including past citizens 
commissions and attention to the baiting issue. I have personal 
experience for more than 20 years with this through my 
employment with the Fish and Wildlife Service, during which 
time I supervised migratory bird management and law 
enforcement. And I participated in the ad hoc committee with 
the International on baiting during the past ten months. 
Perhaps of equal importance, I have been a co-owner and 
wildlife manager of the Island Creek Gun Club on the Eastern 
Shore of Maryland for the past 17 years. I have hunted actively 
in Maryland for 20 years and for 35 years nationwide. I am very 
familiar with the problems faced by both hunters and law 
enforcement agents in carrying out the law.
    We at the Institute believe that regulations through the 
established public participatory process are the proper way to 
make any adjustments that need to be made in these laws. We 
don't think that H.R. 741 does that in a way that we can 
support, and we particularly are concerned about the strict 
liability issue. I won't reiterate the testimony that has been 
given here. We think the issue needs some attention. We think 
there are ways it can be addressed. I am heartened by some of 
the suggestions by others testifying here about how a rule 
could be processed.
    Please note that I referred to a rule, because we still 
prefer that wildlife management processes proceed with the 
input from the experienced people around the country and make 
these changes as needed, rather than have direct intervention 
by the Congress.
    During my participation with the International during the 
past year, I particularly recommended at each juncture that any 
change made in these regulations must be measurable in terms of 
what its impact is. No one can predict what these changes will 
produce in the way of different kill or impact on the resource. 
We ought to do that through the system that we have used very 
successfully for several decades. Any changes are done through 
the open participatory process with an experiment set up, a 
requirement for data collection, analysis and then potentially 
a way out of the situation if we have done something that 
doesn't fit. That would be very difficult to do under H.R. 741 
and a new Federal law.
    The various examples of lack of flexibility mentioned 
earlier I would simply add to. The Eastern United States has a 
tremendous problem with Canada geese, and this nuisance is 
going to have to be dealt with just as the snow goose problem, 
aggressively and probably in ways that are non-traditional. We 
would hate to have to come back to the Congress for each one of 
these things. I don't think the Congress wants to get in the 
business of managing waterfowl each year.
    I have participated in hunting successfully for 20 years in 
the Chesapeake Bay region, and I would submit that no one has 
been more vulnerable than me to the embarrassment or the fear 
of being caught. As Chief of Migratory Birds and Administrator 
in the Fish and Wildlife Service or my current job, I certainly 
could not afford it. I have looked over my shoulder when I 
needed to. I have adjusted my hunting schedule. I have gone 
home a few times because I didn't like something I saw, but I 
have been able to live within the law.
    The fact that a committee of state biologists and 
administrators and other organizations have been able to come 
forward with some initial recommendations through the 
international leads me to believe that we can get this done 
through the established management process, and I urge the 
Congress to let that happen. Thank you, Mr. Chairman.
    [Statement of Rollin Sparrowe may be found at the end of 
the hearing.]
    Mr. Saxton. Thank you. As I stated a few minutes ago, we 
are going to have to take a break now, and we will come back as 
soon as we can, but there are two votes, so we will be 15 or 20 
minutes. Thank you.
    [Recess.]
    Mr. Saxton. Move on to Susan Lamson.

 STATEMENT OF SUSAN LAMSON, DIRECTOR OF CONSERVATION, WILDLIFE 
   AND NATURAL RESOURCES DIVISION, NATIONAL RIFLE ASSOCIATION

    Ms. Lamson. Thank you, Mr. Chairman. The NRA appreciates 
the opportunity to testify on H.R. 741. It was made clear at 
last year's oversight hearing that the baiting regulations 
continue to cause problems, problems of inconsistent 
enforcement and court interpretation exacerbated by ambiguity 
and confusion on the part of the hunter.
    The NRA fully supports H.R. 741 because it makes long-
needed changes to the baiting regulations. It will provide the 
hunter with a law that is clear and reasonable and can be 
consistently and fairly enforced. At the same time, the bill 
will continue to protect the resource from excessive harvest. 
With over two million hunter members, protection of the 
resource is of vital importance to the NRA, because hunting is 
wholly dependent upon healthy, sustainable wildlife 
populations.
    It has been suggested that any shortcomings with the 
baiting regulations can be overcome through the rulemaking 
process. That may be true, Mr. Chairman, but the Fish and 
Wildlife Service has already had ample opportunity to seize 
that initiative. Instead, the Service has given Congress no 
other choice but to step in, because it hasn't evidenced any 
sign of resolving the problems on its own.
    It has been suggested that H.R. 741 will make it extremely 
difficult to bring convictions because it would increase the 
Federal Government's burden of proof. Well, I think that burden 
should be increased. Under the current regulations, the 
government's burden is minimal if nonexistent. But the problem 
is that under the strict liability standard, the hunter isn't 
given parameters by which his knowledge or lack thereof is held 
legally accountable.
    H.R. 741 resolves the issue by establishing the reasonable 
diligence standard and injecting fairness into enforcement by 
giving the hunter an opportunity to provide a defense in court. 
It doesn't require the government to prove intent, nor does it 
call for the traditional standard of proof beyond a reasonable 
doubt because the bill recognizes that such standards could 
make it extremely difficult to convict a law breaker.
    It has been suggested that there is a danger in amending 
the regulations through legislation because it will remove 
agency flexibility, but part of the problem associated with the 
regulations is that it provides the agency with too much 
flexibility. For example, the agriculture terms used in 
regulations have been shown to lack the clarity necessary for a 
hunter who is not otherwise well versed in agricultural 
practices to know at all times whether an area is legal to hunt 
over or not. In the past, the Service has acknowledged that the 
determination of a baited area is based upon the expertise of 
law enforcement.
    Mr. Chairman, a person of average intelligence should be 
given a reasonable opportunity to know what is allowed and what 
is prohibited. The hunter shouldn't have to develop an 
expertise in agricultural practices, nor rely on law 
enforcement's interpretation as to whether he is legally 
hunting or not. The clear definitions and guidance in the bill 
will resolve that problem and also provide the government with 
strong proof that a hunter should have known bait was present.
    H.R. 741 also injects fairness into the application of the 
so-called zone of influence. To suggest a hunter be held 
responsible for knowing why birds are in the hunting venue 
absent the presence of seed or grain in the area being 
physically hunted is an unreasonable expectation of hunter 
responsibility. The hunter hopes to be in a hunting area where 
birds will be and should not be held accountable for not being 
suspicious as to why they are there. Hunters should be held 
accountable, instead, for the condition of the hunting grounds 
and not for an area of unknown extent.
    The bill gives a hunter an opportunity to present evidence 
in court as to whether the alleged bait acted as a lure but it 
also preserves the greatest amount of flexibility for the court 
in its review and for the government in making its case that a 
hunter knew or should have known.
    It has also been suggested that the bill would undercut the 
principle of fair chase, but we fail to see the relevance of 
that argument. The bill is not removing the prohibitions 
against baiting, rather it is designed to ensure that such 
prohibitions are understood and interpreted such that the 
outcome is the same, whether it be through the eyes of the law 
enforcement officer, the hunter or a judge.
    There are many hunters who have given up hunting migratory 
birds rather than risk their reputation on circumstances beyond 
their control. It is an unfortunate and unacceptable outcome of 
the regulatory and judicial process. Rules should be uniform, 
clear and understandable so that a hunter whose intent is to 
comply can comply. H.R. 741 achieves that objective without 
eroding the goals and objectives for migratory bird 
conservation.
    In summary, the migratory bird resource, those charged with 
protecting it and those who would legally hunt it are all 
benefited by the Migratory Bird Treaty Reform Act of 1997. 
Thank you, Mr. Chairman.
    [Statement of Susan Lamson may be found at the end of the 
hearing.]
    Mr. Saxton. Thank you very much, Ms. Lamson. Mr. Johnson.

STATEMENT OF W. LADD JOHNSON, BOARD MEMBER, NATIONAL WATERFOWL 
                           FEDERATION

    Mr. Johnson. Thank you, Mr. Chairman. My name is Ladd 
Johnson. I am a board member of the North American Waterfowl 
Federation, which is made up of state waterfowl organizations. 
I am also chairman of the State of Maryland Waterfowl 
Commission. I am here to speak to you about the injustices of 
the present Federal regulations pertaining to the enforcement 
of baiting migratory birds and the accompanying definitions of 
normal agricultural practices. Let me acknowledge that I and 
the people I represent do not support the taking of migratory 
birds with the aid of bait.
    I personally have been a victim of the present regulations 
and their accompanying judicial interpretations. Twice I have 
been convicted of taking waterfowl with the aid of bait. In 
both cases, the bait was found on the property. And in both 
cases I was a guest of a person who assured me that no bait was 
present. Arriving before daylight, I was unable to personally 
observe the presence of bait in the hunt area, let alone the 
bait being a half a mile away and under several feet of water, 
but because I was there and the bait was present, I was cited. 
Both cases resulted in the payment of the imposed fine because 
the precedent established in the Federal court system 
pertaining to bait left me no other choice. Probation before 
judgment is not an option in Federal bait cases, and if the 
bait was there and I was there, the precedent set found me 
guilty. Since then, I have only hunted on my own personal farm 
or with those individuals with whom I have personal knowledge 
of their operations.
    Many persons have fallen victim to the same circumstances 
that I have. Let me stress again that I and the people I 
represent do not condone the use of bait in attracting and 
harvest of migratory birds. The language of the present 
regulations states if bait is present or has not been removed 
for a period of ten days prior to hunting, all parties present 
are guilty in attempting to harvest waterfowl with the aid of 
bait. Let me also say that feed does not become bait until you 
choose to hunt over it. A person could arrive on the ninth day 
after the bait has been removed and still found guilty.
    The answer is simple. The landlord or the lessee or those 
responsible for the actions on the farm or in control of the 
property are the responsible party to any and all actions that 
may violate game regulations. Should a violation occur, the 
party in charge of the action should be cited. The imposed 
penalty should be placed on them equivalent to all those people 
present and then possibly doubled.
    On the issue of normal agricultural practices, I also have 
the privilege of administering a national wildlife food 
planting program which this year should exceed over one million 
acres. The question of what is a normal agricultural practice 
that is planted for wildlife could be jeopardized and could be 
misinterpreted under the present regulations. With this private 
sector and this private initiative in jeopardy, the language 
should be clarified.
    Moist soil management hasn't been mentioned here today, 
which is new type of management, particularly for waterfowl. It 
is economical and very effective in the--in sustaining 
waterfowl populations. Manipulation in moist soil management is 
an essential practice to ensure the effectiveness of the moist 
soil management program. Manipulation of any area under the 
Federal interpretation can be assumed as creating a baited 
area.
    I and the people I represent support H.R. 741 and its 
amendments to the Migratory Bird Treaty Act. Let us protect the 
innocent sportsmen with the same regulations that protect the 
migratory resource. Thank you, sir.
    [Statement of W. Ladd Johnson may be found at the end of 
the hearing.]
    Mr. Saxton. I would like to thank each of you for obviously 
very articulate and good testimony. I don't have any questions 
at this point, and I would just like to thank you each for 
being here and sharing in some cases your experiences and in 
other cases your thoughts with us. Thank you very much.
    We will now move to our fifth and final panel, Mr. William 
Boe of Gainesville, Florida; Mr. Vernon Ricker, who is a 
retired special agent from the Fish and Wildlife Service who 
currently makes his home in Salisbury, Maryland; Terrance 
Sullivan, Secretary of the League of Kentucky Sportsmen; Mr. 
Charles Conner of Germantown, Tennessee; and Mr. Fred Bonner of 
Raleigh, North Carolina. Welcome, and when you are comfortable, 
Mr. Boe, you may proceed.

         STATEMENT OF WILLIAM BOE, GAINESVILLE, FLORIDA

    Mr. Boe. Mr. Chairman and members of the committee, I would 
like to thank you for the opportunity to be here again. I was 
here a year ago speaking to the House Resources Oversight 
Committee about the situation with the Florida hunters, and I 
am here today in the capacity as the Chapter Advisor to the 
Alpha Gamma Rho Agricultural Fraternity at the University of 
Florida.
    We had numerous members of that fraternity receive 
citations in the infamous Florida raid, and Congressman 
Stearns, I think, was quite accurate in some of his comments in 
reference to the young men. And I would like to clarify some 
issues, and I would hope that those who write the laws will 
listen to what happened to some of these young men to make sure 
that other people in their situation certainly won't be victims 
of the confusion and perhaps the overzealous actions which 
impacted them so hard that day.
    I would like to comment very briefly, though, on some of 
the comments that were put in the record by Congressman 
Abercrombie that were left with him for Congressman Miller. I 
have also seen some things in the media that have been 
published in the Washington area where it keeps getting 
referred to the fact that the people in the Florida raid were 
caught ``red handed''. I think this term ``red handed'' perhaps 
needs to be better defined. I am somewhat concerned about that.
    ``Red handed'' is confusing when you have five young men 
hunting on the property of one of their parents, which is an 
active agricultural production, down the road and separated 
from the field raided by the Federal agents. The agents came to 
this field where these boys were and ``red handedly'' caught 
them in their own field where they had hunted many times 
before. When they addressed this issue to the agents, that they 
were not in the field being raided, they were told, ``well, you 
are close enough as far as we are concerned, that is why we 
have courts of law, and you can get an attorney and go to court 
if you so desire.''
    I met with the parents of all five of those young men. In 
my testimonial package you have the comments from the parents 
of one of those people. I hope that is read by every member on 
this committee, including those that aren't present here today.
    I also have the letter from the young man in question, who 
was denied access to the ROTC program. It was the Army ROTC 
program. Congressman, right now he is in your home state of New 
Jersey. He is at the Coast Guard training facility at Cape May. 
He will do very well there. He, however, is going to be an 
enlisted man in the Coast Guard Reserve. Following his training 
in New Jersey, he will go back to the University of Florida. He 
will graduate, probably, with honors. I will be at his 
graduation along with his other friends next year. And 
hopefully at that time he will qualify for officer candidate 
school within the Coast Guard.
    I had the pleasure of going to the ceremony for three of my 
young men who were commissioned in the Army, and fortunately 
for them they did not go to that dove hunt or their commissions 
also would have been interrupted.
    Congressman Miller talked about a ``legislative fix.'' 
Perhaps that is what we are here for today, a ``legislative 
fix.'' After all, the members of this committee are in a 
position to fix a very serious problem, and I hope they do so.
    Also, one other comment in reference to Mr. Miller's 
comments that he made. He talked about the people having poor 
eyesight. I would like to point out the fact I do wear glasses, 
and I was in that field that day. I hunted in about a two-acre 
area of the field. There was no grain in the two acres in which 
I hunted that would have enticed any birds there.
    I graduated from a university in the State of Texas where 
hunting is very popular, and I know what constitutes a large 
volume of birds flying within an area. There were five of us 
hunting. Within a two and a half hour period of time, we killed 
ten birds. There was nothing going on in the part of the field 
that I hunted in that would reasonably suggest there was bait 
there, and there certainly was no bait where I was hunting. I 
know that because I asked the agent that cited me to show it to 
me. He would not do so. And obviously if it was there, I think 
he at least could be able to demonstrate the evidence to me.
    I would like to share with you the letter provided to me, 
hand carried by pickup truck from Dixie County right before 
coming up here. This is from Mr. Bobbie Hatch of Cross City. He 
is the owner of the property where the young men got the 
citations from that was adjacent to the field raided. He was 
away, but this is his letter to this committee.
    ``Members of the House Committee, I was angered after 
returning from the Florida versus Auburn football game to 
discover that some of my son's fraternity brothers had been 
fined for hunting on a baited field while on my property. These 
young men had been invited by my son to come and hunt dove in 
our field with my permission. My land is rich in dove 
population and always has been due to the accessibility of 
fields, cover and water supply which in no part has anything to 
do with baited fields. These young men came to have a peaceful 
day hunting on my land, and were then unjustly accused.
    I take offense to this happening. If this law reads in any 
way that these boys were guilty, it is an absurd law and 
therefore should be changed. Bobby Hatch, Post Office Box 611, 
Cross City, Florida, phone number 352-498-3712.''
    And I hope someone has the courtesy of contacting him to 
find out why he feels the way he does.
    From my interpretation and observations of what I saw that 
day, I saw a very elastic law. I saw a law which in reality is 
whatever the agents want it to be on any given day. And that 
law is whatever the judge in a court of law defines, usually in 
favor of these people.
    The reason I did pay my fine a year ago--and a lot of 
people have said why did all these people pay fines if they are 
indeed innocent. I went to a friend who was a former state 
prosecutor that convicted serial killer Ted Bundy, and who also 
played a major role as states attorney in convicting Danny 
Rollings, who killed five University of Florida students six 
years ago. I went to him and I said I would like you to 
represent me in this situation. He studied the law. His name is 
Lynn Register. He was a private attorney then. Now he is a 
Federal prosecutor in Tennessee. He said Bill, as this law is 
written, if you are there you are guilty. You don't have to see 
the bait. You don't even have to have any desire to break the 
law. I recommend you to cut your losses, pay your fine and try 
to talk to someone to bring some reason to this law so that it 
will be more practical and more fair to all people concerned.
    That is why at my own expense I have come up here twice. I 
would hope this elastic law would be better defined so it is 
not quite so elastic to impact the lives and careers of young 
men who are hunting on adjacent fields, trying to get away from 
the University of Florida and their studies for just a day or 
two.
    In reality, when my license was taken that day I was 
indicted, tried and convicted in the field. I was told that 
someone would investigate my case. I never heard from anyone. 
The next letter I got was a letter stating you have the option 
of mailing in your money or perhaps--you can use Visa or 
Mastercard. It is very convenient, I might add--or you can go 
to court, and if you go to court and are found guilty, you will 
pay $500--actually you will pay up to $5000 and possibly spend 
one year in a Federal prison. Being the fact that I had an ill 
wife, children with braces, et cetera, et cetera, I thought 
that was not a very reasonable option at that point in my life.
    I do think it is a good option to come up here. I am glad 
Cliff Stearns listened to some of our concerns. I think he is a 
good Congressman. He returns his phone calls and he cares about 
the people within his district, and I think that is what this 
is about. I am a reasonable person. I like to hunt birds, but I 
do have good eyesight. I might add I walked point in Vietnam 
and I never got my boys in an ambush. If grain had been where I 
was, I would have seen it.
    And I would like to entertain any possible questions. I am 
up here wanting fairness for people and respect for wildlife, 
and I don't think any was provided in the Florida case.
    Clarifying a point made by Cliff Stearns, these two men, 
two of the boys from the adjacent field. I talked with their 
parents. One of them was a young man. He was married, just had 
an infant daughter. He was in his senior year in college. He 
was already in debt to go to school. He said, ``Mr. Boe, I 
don't have money for an attorney and I am not paying $500 fine 
for something I didn't do.'' And I asked what are you going to 
do? He said, ``By God, I am going to go to court and defend 
myself!'' And he did. And the judge acquitted him. He said son, 
there is no logical reason why you should know what was going 
on somewhere else. And I praise that judge in Gainesville, 
Florida for his sense of justice.
    Thank you, sir.
    [Statement of William Boe may be found at the end of the 
hearing.]
    Mr. Saxton. Thank you very much, Mr. Boe. Mr. Ricker.

 STATEMENT OF VERNON RICKER, RETIRED SPECIAL AGENT, U.S. FISH 
           AND WILDLIFE SERVICE, SALISBURY, MARYLAND

    Mr. Ricker. Thank you, Mr. Chairman. I come before you 
today as a recently retired Special Agent with the U.S. Fish 
and Wildlife Service, having served 25 of my 28 years on 
Maryland's Eastern Shore. 17 of those 25 years was served as a 
Special Agent with the Service, an additional seven years as a 
Maryland Natural Resources police officer.
    When I came on with the State of Maryland and the U.S. Fish 
and Wildlife Service, the Eastern Shore was in its heyday for 
illegal waterfowl hunting violations, particularly baiting. The 
mid-60's through the mid-80's was the peak of migratory 
waterfowl hunting and outlaw gunning on the Delmarva Peninsula. 
There was little defense for hunters caught red handed shooting 
over baited areas and the courts correctly showed no difference 
to status within the community.
    I want to make several important points first. Changing the 
law is not the solution. During my 28 years in law enforcement, 
I have heard all types of complaints about the unfairness of 
baiting laws. I have seen the courts uphold the Migratory Bird 
Treaty Act and have basically seen the U.S. Fourth Circuit of 
Appeals in Richmond, Virginia say enough is enough. They have 
heard these arguments before many times. I am here to tell you 
that if the strict liability standard is removed from the 
regulations, it will be devastating. And I repeat, it will be 
devastating to migratory birds.
    I have been involved in apprehending and prosecuting nearly 
1000 individuals in my career for hunting on or over baited 
areas. I have seen 50 people bait these areas, ten of which I 
could physically identify. That is 28 years of law enforcement 
working prime waterfowl areas. The reasons I couldn't identify 
more individuals would vary from weather conditions, rain, 
snow, fog, et cetera, reduced lighting, distances and 
concealment from the individuals baiting the areas. There have 
been times in my career when individuals have nearly scattered 
grain on top of me when they were baiting the areas, but I 
still couldn't identify them.
    Oftentimes in my career I personally knew who owned, rented 
or hunted a particular location being baited or owned a boat 
similar to what the subject was in that was doing the baiting, 
but I could still only give a generic description. After seeing 
the subjects bait an area, they would still deny how the bait 
got there, even if you find grain in the bottom of the boat. 
People have a hard time looking an agent in the eye and saying 
yes, I baited the area yesterday afternoon.
    I have seen many hunters standing in shelled corn in 
soybean fields asking what bait, hunters standing on bushhogged 
sunflower fields with milo scattered saying I thought it was 
gravel pellets, hunters on marshes with cracked corn under 
decoys saying I thought it was just a sandy bottom. Hunters 
complained to me after they were caught that someone else 
baited the area. And my response, they also baited the bottom 
of your boat.
    Strict liability is needed because knowledge of bait is too 
difficult to establish. Hunters have to start being responsible 
themselves by asking hosts and guides and by inspecting the 
site. By just saying I didn't know the bait was there doesn't 
protect migratory birds.
    My recommendations to this committee would be to require or 
mandate the Service to establish annual training to be 
conducted by the most experienced special agents regarding all 
types of baiting situations. This type of training could 
possibly take place on national fish and wildlife refuges 
whereby actually hunting plots could be established to set up 
different scenarios. These plots should be both legal and 
illegal on planted, harvested and manipulated fields to 
simulate actual field situations. With this requirement, the 
Service would have a uniform enforcement standard nationwide. 
It would also better train the less experienced agents and 
supervisors alike in making prudent decisions regarding 
questionable baiting situations.
    To also increase the penalty for people who have actually 
been proven to have put the bait out and consider a sum of 
$10,000.
    In conclusion, House Bill 741 may be well intended, but it 
won't protect migratory birds. I ask that you please leave the 
regulations, statutes and case law alone and concentrate on 
better training for all Fish and Wildlife agents. I truly 
believe it will serve in the best interests of both hunters and 
non-hunters alike and will continue to protect migratory birds 
for future generations.
    I thank you for the opportunity to comment on House Bill 
741.
    [Statement of Vernon Ricker may be found at the end of the 
hearing.]
    Mr. Saxton. Thank you very much, Mr. Ricker. Mr. Sullivan.

    STATEMENT OF TERRANCE J. SULLIVAN, SECRETARY, LEAGUE OF 
             KENTUCKY SPORTSMEN, PROSPECT, KENTUCKY

    Mr. Sullivan. Good afternoon, ladies and gentlemen. I am 
Terry Sullivan of Prospect, Kentucky. I am a Director of the 
Harrod's Creek Field and Stream Club and Secretary of the 
League of Kentucky Sportsmen. I have studied and written a good 
deal on the subject at hand. As a result, I have come to the 
conclusion that I cannot safely hunt doves. The rules governing 
baiting are so confusing, ambiguous and unevenly enforced that 
I am afraid of unintentionally running afoul of these laws. 
Make no mistake, there is no greater shame that a hunter can 
feel than to be a convicted game law violator. I will not take 
that chance.
    For the life of me, I cannot understand why such a small 
issue has been so difficult to resolve. In my home state of 
Kentucky, dove hunting comprises about five percent of all 
hunting and angling activities. It has been the largest source 
of complaint in the Kentucky Department of Fish and Wildlife. 
Are dove hunters that much more difficult than other hunters 
and anglers? I don't think so. The problem lies with the rules.
    The definition of what is and isn't a bona fide 
agricultural operation is ill defined. To some degree it is 
what an enforcement officer says it is. The rules don't give 
sufficient weight to regional differences and farming practices 
and local tradition. If the vagueness of the rules isn't bad 
enough, this one-size-fits-all approach from Washington makes 
the problem even worse. Add strict liability provisions which 
presume guilt and a no-win situation for hunters is created.
    At least one leader at the U.S. Fish and Wildlife Service 
knows this all to be true. Noreen Clough, Director of the 
Fourth Region, made a landmark decision in 1995. She came to an 
agreement with the states in her region that the Departments of 
Fish and Wildlife and the state extension services would decide 
what is an isn't a bona fide agricultural operation and what is 
and isn't baiting. Since the implementation of this agreement, 
baiting citations have reduced markedly. Complaints to the 
Kentucky Department of Fish and Wildlife have diminished 
significantly. The problem of uneven enforcement and strict 
liability and the presumption of guilt still exists. That 
notwithstanding, Ms. Clough's agreement has been a success.
    I believe that the intent of this agreement should be 
codified into this law. It should take the place of the 
language calling for meaningful discussion between the 
Secretary of the Interior and the states with regards to what 
is and isn't baiting.
    The U.S. Fish and Wildlife Service is the appropriate 
agency to macro manage the dove flock. Their national presence 
and resources make it possible for them to know the condition 
of the flock in general. Issues like setting bag limits are 
appropriate macro management decisions and should be left to 
the Service. Micro management decisions, such as the 
determination of what is and isn't baiting, are best made by 
the people closest to the situation. This division of 
responsibility makes sense.
    I have reviewed the testimony that was given on this 
subject last year. The overwhelming advice from hunters, 
writers, association and various experts was to codify simple, 
even handed and understandable laws regarding baiting for 
migratory fowl. The only people who differed from this opinion 
were the U.S. Fish and Wildlife Service and other wildlife 
bureaucrats. It appears that their reason is that by 
simplifying these laws, removing the doctrine of strict 
liability and having the presumption of guilt, it will make 
their job of building a case against the hunter more difficult.
    That in and of itself may be the best reason to simplify 
and clarify these rules. The treaty under which these 
regulations were drafted was designed first to protect the 
resource and second the consumptive user of the resource, not 
to make the job of law enforcement easier. Law enforcement 
serves people. People do not serve law enforcement.
    Finally, I would like to say that the dove flock is in 
absolutely no danger. From its own pamphlet, the U.S. Fish and 
Wildlife Service asserts that the flock in the continental 
United States is 475 million birds, of which approximately 45 
million birds fall to hunters guns. I am told that the average 
life span for a dove is about a year. Given current bag limits, 
hunting has virtually no impact on the dove flock. The baiting 
issue has no foundation in conservation of the resource. It is 
strictly a moral issue.
    No one who has testified before this committee last year or 
at this hearing has asked for more or less stringent rules. We 
simply ask for rules that we can understand and obey. We simply 
ask to be presumed innocent, the same as bank robbers and horse 
thieves. We are not criminals. It appears clear that if Ms. 
Clough's agreement became the law of this land, this problem 
would be solved. Maybe then the time and energy that has been 
wasted on this issue could be turned to more productive issues, 
and I can get back to dove hunting.
    I would like to thank you.
    [Statement of Terrance Sullivan may be found at the end of 
the hearing.]
    Mr. Saxton. Thank you, Mr. Sullivan. Mr. Conner.
    Mr. Conner. Good afternoon, Mr. Chairman. If it please the 
Chair, I would like to have my remarks that are in print made 
part of the record, and I will just address a couple of points 
brought by the Congressman from California.
    Mr. Saxton. That would be fine. Yes, sir.

       STATEMENT OF CHARLES CONNER, GERMANTOWN, TENNESSEE

    Mr. Conner. With respect to the changes in the law, I have 
been hunting waterfowl migratory birds for more than 40 years, 
fortunately enough, came from the south on a farm where we were 
able to do this tied directly to production agriculture. 
Approximately 1979 I became involved with the Federal 
enforcement of laws that pertain to migratory gamebirds because 
of the fact that I was publishing a magazine, Waterfowlers 
World, which dealt strictly with waterfowl.
    During the years that have subsequently passed since the 
late '70's, I began writing about the subject, covering the 
agents in the field, watching what they did, generally making a 
study, developing some good friendships along the way and 
renewing some others. I worked with people that I am sure Mr. 
Ricker knows and their sons and other agents that I am sure he 
is familiar with. These agents have done a commendable job in 
the field.
    The problem is that these agents are going to continue to 
make good cases, I believe, irrespective of what we are told 
about the case laws being their only access to it. These are 
the people that will go and put in the extra time and effort to 
make sure that the individual who creates the adverse impact on 
the resource is punished. And I believe that is all we are 
addressing here, is a fact that we are going to change that a 
little bit. It is not the unsuspecting lawyer from Memphis that 
goes out there the first time waterfowl hunting and gets cited 
because he didn't know an area was baited.
    Congressman Ambrose brought up the fact that he didn't want 
to be in the woods, I believe he said, with a man with a gun 
who couldn't tell whether he was hunting over a baited field. 
Well, I beg to differ with him. It is very difficult to tell 
sometimes. And a lot of that has to do with the agricultural 
procedure that goes on. That is to say in the South if I am 
seeding wheat at the rate of three bushels an acre and all of a 
sudden I start seeding it at 15, I am going to do it for a 
reason other than to grow wheat. So these are some of the 
things that I believe this bill addresses that are very needed 
changes.
    In conclusion, I would urge the committee to take heed of 
the testimony of Congressman Breaux. I found it very on point. 
I appreciate the committee's time.
    [Statement of Charles Conner may be found at the end of the 
hearing.]
    Mr. Saxton. Thank you very much, Mr. Conner. Mr. Bonner.

 STATEMENT OF FRED BONNER, CAROLINA ADVENTURE, RALEIGH, NORTH 
                            CAROLINA

    Mr. Bonner. Thank you, Mr. Chairman. I am going to go along 
with a lot of the others here and ask if my testimony, written 
testimony, be entered in the record, and I will deviate from 
that just a little bit.
    I am a Fish and Wildlife biologist by trade. I have been a 
deputy game warden over in the State of Delaware. I think I 
have met Mr. Ricker on several occasions. I would also like to 
state for the record that I am a former poacher and former 
baiter from Eastern North Carolina. I put out many a bucket of 
corn for waterfowl when I was growing up. I don't do that now. 
I wouldn't be caught dead putting out bait for ducks or geese 
now, and I certainly wouldn't hunt in a baited field. It is 
against the law. I am saying this to familiarize you with the 
fact that I know what I am talking about with it. I have never 
been caught for baiting and hope I never am, but I am scared to 
death to go in the field right now because of the fact that it 
is so easy to be caught for baiting waterfowl when you haven't 
done anything.
    When I was a young biologist over in Delaware, the first 
week I was there I was invited to hunt in a goose field. The 
president of Ducks Unlimited for the State of Delaware was the 
host on this farm. I looked over the goose pond as good as I 
could. I asked the man, I said please, I am new here, please, 
there is no bait here. He said certainly not. We went on and 
hunted that day. The next day the Federal game wardens raided 
that pond. Norman Wilder, who was director of Fish and Wildlife 
at that time, was in there that day, and I guess this was the 
person that the Fish and Wildlife agents wanted.
    What I had not been aware of and no matter how much I would 
have looked for bait in that situation I would never have known 
it was there. He was using what is called a duck plate. That is 
a washtub that you put out in the goose pond full of shelled 
corn that the geese come in and they feed on it. They go in and 
take this washtub out, take it to the barn before the hunters 
get out there. There is no bait there. There is no way you 
could possibly know it was there. And yet I would have been 
just as guilty as the other ones were in this case when they 
raided it to catch Norman Wilder. Bob Halstead, incidentally, 
Mr. Ricker, was the game warden that was handling that case at 
the time.
    I have--I am currently editor of a magazine in North 
Carolina. I have a syndicated outdoor column. Several years ago 
I had a syndicated radio show. It covered Virginia and North 
Carolina radio networks. I had a call one day from a woman from 
P.E.T.A. I think everybody knows who P.E.T.A. is. She said Mr. 
Bonner, we are getting ready to do something we would like for 
you to give us some publicity on; we are going to take a bucket 
full of corn and go out in front of every waterfowl blind we 
can find in North Carolina and Virginia and throw it in front 
of every blind we can find, then we are going to call the game 
wardens and tell them what we have done; we haven't broken any 
law, we are feeding the birdies, perfectly legal, but we are 
going to shut waterfowl hunting down. I said lady, I am not 
going to give you any publicity on that, I am sorry.
    I don't know whether she did that or whether she didn't do 
that. I never will know, but my point is that the anti-hunters, 
the P.E.T.A. bunch, whatever, can literally shut waterfowl 
hunting down. You are responsible even though all the corn is 
gone. Ten days after it is gone you can't hunt there. This 
happens very commonly.
    Bill Wagner, Director of Fish and Wildlife in Delaware 
years ago, somebody had a vendetta against him. The morning 
before waterfowl season, bright and early in the morning before 
he ever got out there, they went out there and just threw a 
bucket full of corn in front of his blind. They put him out of 
business for a minimum of ten days.
    We approached this subject in North Carolina with our North 
Carolina Waterfowl Resources Commission several years ago. In 
North Carolina we have a different state law. We are 
responsible for bait within 300 yards of the blind where we are 
hunting. Again, we had the no liability--strict liability, 
rather, standard there, but the State of North Carolina has 
changed that. If a North Carolina game warden now finds you 
hunting over a baited area within the 300 yards, you are given 
a temporary ticket. This ticket is then turned over to his 
superior and they investigate this case. If you should have 
known and you made every reasonable effort to see if bait was 
there, then that ticket is torn up. If you have not looked 
carefully in the judgment of the game warden's supervisor, then 
you will get a ticket and the fine is very stiff.
    And we are pretty well satisfied with our law in North 
Carolina. 300 yards is a reasonable thing. You can look there, 
but can you imagine, that is 600 yards in diameter around your 
blind you are responsible for. That water might be 20 feet deep 
out there. How are you going to check this area for bait not 
that you put there, necessarily, but that somebody else put 
there that would be out to get you for some reason? And this is 
happening, and the anti-hunters are going to realize this. They 
are realizing this and they are using this. They can shut down 
hunting for migratory birds by doing that.
    Thank you, Mr. Chairman.
    [Statement of Fred Bonner may be found at the end of the 
hearing.]
    Mr. Saxton. Well, thank you. I don't know that we need to 
clarify this situation too much more. I just have to ask Mr. 
Ricker one question. First of all, I appreciate the job you 
fellows do. It is difficult and we support you, Mr. Ricker. I 
just have to mention this one sentence in your written 
testimony that I noticed when I was reading this before I came 
over here this morning. It says--the sentence in your testimony 
says, ``have I ever charged someone for hunting over bait that 
I truly believe they didn't know the area was baited? Yes, but 
these were very few and far between.'' I don't understand why 
anybody would ever charge anybody with baiting where they were 
convinced that somebody didn't know the bait was there.
    Mr. Ricker. The way the law is, the way the law is, it is 
impossible and it would be impossible to try to determine 
actually if everybody knew the bait was out. People that bait 
these areas are not going to tell you if they know the culprit 
is going to be the only person that baited the area. They are 
not going to voluntarily tell you yes, I put it there. In my 
time on, I had a way with people after they were caught it 
didn't matter whether they would tell me the truth or not, 
because they were going to be charged anyway. If a fellow had 
grain in back of his truck, grain in his boat, I had seen him 
at the area two or three days before, I had watched the birds--
we don't have the luxury of having the number of Fish and 
Wildlife agents on the Eastern Shore, as you saw in my written 
testimony, that we had back in the '60's and '70's. If we did, 
then maybe we could do away with the strict liability and we 
could have a game warden in the sky behind every blind and we 
could prove what hunters knew. But right now we just don't have 
that.
    Mr. Saxton. Well, I want you to charge people that are 
baiting. I mean, that is what this law is all about. We want 
you to do that. Every member of this committee, I will bet you, 
wants you to charge people who are baiting, but that is not 
what this sentence says. This sentence says, ``have I ever 
charged someone for hunting over bait that I truly believed 
they didn't know the area was baited?''
    Mr. Ricker. And I would say yes. I have in my career. I 
have probably charged people for hunting over bait that truly 
didn't know. I have caught 1000 people in my career hunting 
over bait. I have heard the same thing from 1000 people, nobody 
knew the bait was there.
    Mr. Saxton. Couldn't you issue them a warning or something?
    Mr. Ricker. Sir, if we did that, migratory birds would be 
depleted from the Eastern Shore, which they nearly are.
    Mr. Saxton. The people who you believe truly didn't know 
the area was baited?
    Mr. Ricker. That is correct. That is absolutely correct. 
They are few and far between. Probably on both hands in my 
whole career out of 1000 people did I truly really didn't 
believe they knew the bait was there. But I couldn't prove that 
they did.
    Mr. Saxton. Well, I am glad there were a few that you 
charged only that didn't know the bait was there, but I just--I 
wouldn't have charged any. If I really, truly thought somebody 
didn't know the bait was there, I will be damned if I would 
charge them. I don't understand.
    Mr. Ricker. The law does not require that. The Fourth 
Circuit has argued that time after time after time. We can't 
prove what that individual knows. I am only assuming in my mind 
they didn't know. Maybe they were good. Maybe they could fake 
me out. Maybe they truly did know, I don't know, but in my 
mind, no, I believe there was probably a handful of people or 
so that I truly charged that didn't know the bait was there. 
But I could not prove that. Maybe they foxed me.
    Mr. Saxton. Well, I wish I could chat with everybody longer 
about this, because it is really an interesting and important 
subject, but I have got to go. We have been here for the better 
part of three hours, in fact more than three hours, and I have 
got people waiting for me in my office. So I thank all of you 
for coming from your homes to be here to share this information 
and your experiences with us.
    [Letter from Stephen Oelrich may be found at the end of the 
hearing.]
    Mr. Saxton. The hearing is adjourned. Thank you very much.
    [Whereupon, at 1:20 p.m., the Subcommittee was adjourned; 
and the following was submitted for the record:]
    [Additional material submitted for the record follows.]A
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