[Senate Hearing 105-947]
[From the U.S. Government Publishing Office]


                                                        S. Hrg. 105-947


 
                MIGRATORY BIRD TREATY REFORM ACT OF 1998

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

                                HEARING

                               BEFORE THE

                              COMMITTEE ON
                      ENVIRONMENT AND PUBLIC WORKS
                          UNITED STATES SENATE

                       ONE HUNDRED FIFTH CONGRESS

                             SECOND SESSION

                                   on

                               H.R. 2863

 A BILL TO AMEND THE MIGRATORY BIRD TREATY ACT TO CLARIFY RESTRICTIONS 
UNDER THAT ACT ON BAITING, TO FACILITATE ACQUISITION OF MIGRATORY BIRD 
                                HABITAT

                               __________

                           SEPTEMBER 29, 1998

                               __________

  Printed for the use of the Committee on Environment and Public Works



                                


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               COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

                       one hundred fifth congress
                 JOHN H. CHAFEE, Rhode Island, Chairman
JOHN W. WARNER, Virginia             MAX BAUCUS, Montana
ROBERT SMITH, New Hampshire          DANIEL PATRICK MOYNIHAN, New York
DIRK KEMPTHORNE, Idaho               FRANK R. LAUTENBERG, New Jersey
JAMES M. INHOFE, Oklahoma            HARRY REID, Nevada
CRAIG THOMAS, Wyoming                BOB GRAHAM, Florida
CHRISTOPHER S. BOND, Missouri        JOSEPH I. LIEBERMAN, Connecticut
TIM HUTCHINSON, Arkansas             BARBARA BOXER, California
WAYNE ALLARD, Colorado               RON WYDEN, Oregon
JEFF SESSIONS, Alabama
                     Jimmie Powell, Staff Director
               J. Thomas Sliter, Minority Staff Director

                                  (ii)



                            C O N T E N T S

                              ----------                              
                                                                   Page

                           SEPTEMBER 29, 1998
                           OPENING STATEMENTS

Chafee, Hon. John H., U.S. Senator from the State of Rhode Island     1
Graham, Hon. Bob, U.S. Senator from the State of Florida.........    13

                               WITNESSES

Adams, Kevin, Chief, Office of Law Enforcement, U.S. Fish and 
  Wildlife Service, Department of the Interior...................    14
    Prepared statement...........................................    32
    Responses to additional questions from:
        Senator Graham...........................................    33
        Senator Lautenberg.......................................    34
Breaux, Hon. John B., U.S. Senator from the State of Louisiana...     2
    Prepared statement...........................................     4
Cochran, Hon. Thad, U.S. Senator from the State of Mississippi...     5
    Letter, Delta Wildlife Foundation............................    10
    Prepared statement...........................................     6
Hood, Laura C., director, Science Department, Defenders of 
  Wildlife.......................................................    22
    Prepared statement...........................................    38
Inkley, Douglas B., senior scientist and special assistant to the 
  president, National Wildlife Federation, Vienna, VA............    19
    Prepared statement...........................................    34
Manning, Brent, Director, Illinois Department of Natural 
  Resources, International Association of Fish and Wildlife 
  Agencies.......................................................    24
    Prepared statement...........................................    40
Metaksa, Tanya K., executive director, National Rifle Association 
  Institute for Legislative Action, Fairfax, VA..................    20
    Prepared statement...........................................    35

                          ADDITIONAL MATERIAL

Articles:
    Fowl Play in Washington, David Helvaarg......................    46
    Baiting Game, Ted Williams...................................    50
Letters:
    Defenders of Wildlife........................................    49
    Delta Wildlife Foundation....................................    10
    International Association of Fish and Wildlife Agencies......    47
    Maryland Department of Natural Resources.....................    45
    National Audubon Society.....................................    48
    North American Wildlife Enforcement Officers Association.....    48
Statements:
    American Bird Conservancy....................................    42
    Lott, Hon. Trent, U.S. Senator from the State of Mississippi.    32
Report, Sitting Ducks, Public Employees for Environmental 
  Responsibility (PEER)..........................................    54
Text of H.R. 2863, An Act to amend the Migratory Bird Treaty Act 
  to clairfy restrictions under that Act on baiting, to 
  facilitate acquisition of migratory bird habitat...............    30



                MIGRATORY BIRD TREATY REFORM ACT OF 1998

                              ----------                              


                      TUESDAY, SEPTEMBER 29, 1998

                                       U.S. Senate,
                 Committee on Environment and Public Works,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 9:58 a.m. in room 
406 of the Dirksen Senate Office Building, Washington, DC, Hon. 
John Chafee (chairman of the committee) presiding.
    Present: Senators Chafee and Graham.

           OPENING STATEMENT OF HON. JOHN H. CHAFEE, 
          U.S. SENATOR FROM THE STATE OF RHODE ISLAND

    Senator Chafee. Good morning, everyone. This is a meeting 
of the full committee. It's going to be a little hectic today 
because there's a series of votes on the Senate floor coming up 
at different times, so I want to move right along.
    We'll hear testimony in H.R. 2863, the Migratory Bird 
Treaty Reform Act of 1998. This bill was approved by the House 
on September 14 by a vote of 322 to 90, and was referred to 
this committee. The bill has generated a great deal of debate 
and strong views from both sides, and this hearing is intended 
to educate the committee on these issues.
    Let me say at the outset, while this bill is currently on 
the agenda for the business meeting scheduled for this coming 
Friday, that's only tentative pending the outcome of this 
hearing. To this end, I would like to hear from the witnesses 
any recommendations they may have for changing the bill in the 
event that we choose to proceed with it.
    A bit of background on this bill, which amends the 
Migratory Bird Treaty Act: That law was enacted in 1918--I 
believe it was probably one of the very first environmental 
laws. It was enacted to implement the convention for the 
protection of migratory birds between the United States and 
Great Britain, which then had the treaty-making power for 
Canada. The law prohibits taking hunting and killing of 
migratory birds unless prohibited by the U.S. Fish and Wildlife 
Service, which has broad rulemaking authority.
    Under this authority the Service has generally prohibited 
hunting with the aid of bait or over baited areas. The 
violation of this prohibition is a misdemeanor, and since the 
Act was passed 80 years ago, virtually all courts have 
interpreted misdemeanor crimes under the Act as strict 
liability crimes.
    In 1978 the Fifth Circuit held, however, that before a 
hunter can be prosecuted for a baiting offense, it must be 
proven beyond a reasonable doubt that the hunter knew, or 
should have known, that the area was baited. H.R. 2863 would 
adopt the standard from the Fifth Circuit as the law of the 
land. It would also make baiting a separate offense--in other 
words, instead of the strict liability, we would go and adopt 
the Fifth Circuit holding that before a hunter can be 
prosecuted for a baiting offense, it must be proven beyond a 
reasonable doubt that the hunter knew, or should have known, 
that the area was baited.
    As I mentioned, this bill has generated a good deal of 
fervor and a motion on either side, and I look forward to this 
morning's testimony from our distinguished panelists.
    Now, it's my understanding that Senator Cochran and Senator 
Breaux, both of whom serve on the Migratory Bird Conservation 
Commission and who have a great interest in this issue, will be 
testifying, and it's my intention to place them on the first 
panel. I don't see either of them here, however. So I will wait 
a few minutes for the arrival of the two Senators.
    Senator Breaux introduced his own bill, co-sponsored by 
Senator Cochran, to address these issues, and that bill is 
pending before this committee.
    Senator Cochran, why don't you take a seat right there and 
we'll be able to get started. I know Senator Breaux is on his 
way.
    Senator Cochran. Good morning.
    Senator Chafee. Good morning, glad to see you.
    Senator if you could proceed, and then in the interim 
period--here's Senator Breaux now--so we'll start Senator 
Cochran, if you would please?
    I want to welcome you both here.
    Senator Cochran. Mr. Chairman, Senator Breaux is the 
principal author of this legislation. I'm here to indicate my 
support for this initiative. I am a co-sponsor of the 
legislation, and I'm very proud to be. I think it has a lot of 
merit, but if you will permit me, I will defer to my colleague 
from Louisiana.
    Senator Chafee. All right, fine.

 STATEMENT OF HON. JOHN B. BREAUX, U.S. SENATOR FROM THE STATE 
                          OF LOUISIANA

    Senator Breaux. Thank you, Mr. Chairman, and I thank my 
colleague from Mississippi, who has taken the brunt of the 
hurricane that we sent over there from New Orleans. We wish him 
the very best. It was really a major, major weekend for both of 
us.
    I will be very brief, Mr. Chairman. This is legislation 
that I have been interested in for over 20 years. It has passed 
the House this year by a vote of 322 to 90, so the bill is over 
here in the Senate waiting for the Senate to take it up. I 
think we have an opportunity to do something that is consistent 
with good waterfowl management, and, at the same time, is good 
for the notion in this country that people are innocent until 
proven guilty.
    First of all, this legislation makes the baiting of a 
hunting area illegal. That is not illegal today. I can go out 
and bait my fields and bait them everyday, and throw corn, and 
throw other things to entice migratory waterfowl on that 
property, and that is not illegal. What is illegal, and the 
only thing that is illegal, is hunting over a baited field. So, 
currently, the law does not cover the illegal baiting, which I 
think should clearly be covered. Our legislation covers the 
baiting of a field to illegally entice migratory waterfowl to 
that area. So we make it illegal and it should be illegal.
    What we have done, however, is also to address a problem 
that I think is very severe. It is fundamentally unfair to be 
able to hold someone criminally liable--not civilly liable, but 
criminally liable--for something that they did not intend to do 
or something that they had no reasonable knowledge of.
    Currently, the Fish and Wildlife Service under its 
regulations makes someone criminally liable whether they knew, 
or should have known, that a field was a baited field. I think 
is just fundamentally wrong. Our legislation says that it is a 
crime if a person hunts over a baited field that they knew was 
baited or by the reasonable exercise of their actions should 
have known it was baited, then they would be guilty. So we 
changed the standard from one of strict absolute criminal 
liability to one that simply says that a person is guilty if 
they knew, or should have known, by the exercise of due and 
diligent activity that it was baited. Then they would be held 
criminally liable.
    Now, the Fish and Wildlife Service will probably come--and 
I haven't seen their testimony, Mr. Chairman--but they'll come 
up here and say, ``Well, that will make it too difficult to 
prove cases.'' Well, I'm sorry, but if they're going to go out 
and subject someone to potential criminal penalties and a 
criminal conviction with a maximum penalty of up to $5,000 per 
offense and 6 months in prison, they should have an obligation 
of proving at least to the person who knew or should have known 
that the field in fact was baited for the purposes of hunting 
migratory waterfowl. I think that it is clear that our 
legislation, I think, is fundamentally fair and sound.
    Let me give you just two quick examples:
    The current baiting legislation require that the bait has 
to be removed for 10 days before someone could legally hunt 
over that field. Therefore, if bait is put down on the first 
day, and a guest hunter does not come to that property for 9 
days later and the bait is removed after the second day, that 
person could be held criminally responsible subject to a 
criminal offense and a prison term for hunting over a baited 
field in which there was no bait for the previous 8 days. Now I 
think that is fundamentally wrong.
    The second example is a situation in which a person has 
never been to someone's property to hunt, has never been to 
that county in their lifetime. They go to a hunting lodge or a 
hunting camp late at night. They get up early in the morning 
when it is still dark. The owner puts them in a duck blind of 
they've never been in their life--it is still dark. The sunrise 
comes and they start hunting; and then, lo and behold, the Fish 
and Wildlife Service comes up and nabs the person for hunting 
over a baited field.
    Now, that person did not know it, that person had nothing 
to do with putting the bait down there and no exercise of 
reasonable actions on his part would have led him to believe 
that it was baited. I just think that when you're talking about 
criminal responsibility, the least we can do is to say that the 
person to be convicted either knew or should have known that it 
was a baited field.
    Now, Senator Cochran and I both serve on the Migratory Bird 
Conservation Commission. I have been an active participant in 
hunting organizations like Ducks Unlimited for years to try and 
increase the assistance in land and everything that is 
important and proper for migratory bird conservation and 
improvement of the quality of the population of birds. But I 
think that in this one case, unless Congress follows through 
and does what the House has done and presents a more leveled 
playing field, that we're missing a real opportunity.
    Thank you for your consideration.
    [The prepared statement of Senator Breaux follows:]
Prepared Statement of Hon. John Breaux, U.S. Senator from the State of 
                               Louisiana
    Thank you for inviting me to speak in support of H.R.2863, the 
Migratory Bird Treaty Reform Act of 1998.
    More than 80 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, the United States has signed similar agreements 
with 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. As a member of the 
Migratory Bird Conservation Commission, I recognize the importance of 
protecting and conserving migratory bird populations and habitat.
    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 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 a 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 believe it is fundamentally unfair for the Federal Government to 
hold American citizens criminally liable for something they could not 
have reasonably known. Hunting over a baited field does not impose a 
civil penalty. The baiting regulation holds a person criminally 
liable--with all the negative implications of a criminal charge--in 
situations where the person could not have reasonably known that what 
he was doing or attempting to do was criminal.
    The U.S. Fish and Wildlife Service believes this bill would make 
baiting offenses more difficult to prosecute. The Service believes it's 
more difficult to make a case if they have to prove that a hunter had 
actual knowledge of the bait, or that a hunter, with an exercise of 
reasonable diligence, could have become aware of the bait. My response 
is that we are talking about American citizens whose lives and families 
are being subjected to criminal penalties and prosecution. The maximum 
penalty is a $5,000 fine and 6 months in prison. Making a case may 
become a little more difficult for the Service. However, I would 
suggest that, under this nation's bedrock principle that a person is 
innocent until the government proves him guilty, H.R. 2863 restores the 
appropriate balance.
    Keep in mind that, under the Service's current baiting regulations, 
bait has to been removed from the area 10 days before you began 
hunting. In other words, if an area is baited on October 1 and the bait 
removed on October 3 and you happen to hunt there October 12 (9 days 
later), with absolutely no knowledge of what has happened October 1 
through 3, you are strictly and criminally liable for hunting over a 
baited field. You may not have been in the country 9 days earlier, but 
you are guilty.
    I represent the State of Louisiana, which is at the bottom of the 
funnel of most of the ducks coming through the Central and Mississippi 
Flyways. This is an important issue in my State. However, I would 
suggest that it is an important issue for all of us as Americans to 
make sure that the criminal laws of this nation are fair.
    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. 
believe we should be as tough as we possibly can on people who 
knowingly violate our game laws. People who intentionally bait a field 
to attract migratory waterfowl should have the book thrown at them. 
This legislation would not change that.
    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. The Migratory Bird Treaty Reform Act of 
1998 simply removes the strict liability interpretation presently 
followed by most Federal courts. It 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.
    Under this bill, the responsibility is still squarely on the 
shoulders of the hunter. The hunter must act reasonably. He must ask 
the host if the field is baited. He must go out on the field and 
conduct a serious search of the grounds looking for signs of bait.
    The Migratory Bird Treaty Reform Act also makes the act of baiting 
unlawful. Right now, baiting is not illegal. Hunting over a baited 
field is illegal. This bill ensures that a person placing bait, or 
directing the placement of bait, to lure migratory birds to an area 
will be cited for baiting even though he or she is not hunting.
    The Migratory Bird Treaty Reform Act will provide guidance to 
landowners, wildlife managers, hunters, law enforcement officials, and 
the courts on the restrictions on the taking of migratory birds. It 
accomplishes that without weakening current restrictions on the method 
and manner of taking migratory birds. It does not weaken protection of 
the resource.
    Again, I thank Chairman Chafee, Senator Baucus and the members of 
this committee for the opportunity to be heard, and I urge everyone to 
join me in supporting the Migratory Bird Treaty Reform Act of 1998.
    Senator Chafee. Well, thank you very much, Senator. If you 
could stay for a few minutes, I thought we would hear Senator 
Cochran, and then I had a couple of questions for both of you.
    So, Senator Cochran, if you would like to proceed.

STATEMENT OF HON. THAD COCHRAN, U.S. SENATOR FROM THE STATE OF 
                          MISSISSIPPI

    Senator Cochran. Mr. Chairman, thank you very much for this 
opportunity to appear before your committee.
    This legislation would put in the statute the decision that 
was reached in 1978 by the U.S. Court of Appeals sitting in New 
Orleans in a case where they ruled that the strict liability 
application of the Fish and Wildlife's regulation relating to 
hunting over so-called baited fields could not stand the test 
of Constitutional protections afforded to us under the U.S. 
Constitution. And so since 1978 in the Fifth Circuit area--
Mississippi, Louisiana and Texas--there has been a legal 
prohibition against enforcing regulation under this strict 
liability notion, which a reading of the statute would conclude 
is the purpose of this Fish and Wildlife regulation.
    But, beyond that, it's felt from groups around the country 
that other States ought to enjoy the same kind of legal 
interpretation. In California we've received indications that 
it would be welcomed to have this statute approved because it 
would make uniform throughout the entire country then the same 
interpretation of the Federal Government's obligations and the 
restrictions of their power.
    There are two other aspects of this that I think should 
persuade the committee that this is a good bill. It's different 
from the House bill in these additional respects, and we would 
encourage you to look at our bill and report it favorably to 
the Senate:
    It tries to make a determination as to what is normal or 
usual agricultural practice and protect the right of landowners 
to engage in wildlife habitat management activities, as well as 
normal agricultural practices without running the risk of being 
convicted under the terms of these regulations that the 
Wildlife Service has proposed and some new ones that are being 
considered.
    One specific example--in our State there are 83,000 dove 
hunters, and in many sections of the State they plant winter 
wheat, and they have early sowing on top of the ground of 
wheat, some by aerial application. There are many who are 
worried that if they continue to engage in this aerial 
application of wheat, which is a normal agricultural practice, 
and doves are attracted to those fields, and hunters then 
engage in hunting in those areas, they will all be subject to 
fines and penalties under these regulations. And so the 
legislation would permit the State to have a role in certifying 
what is or is not a normal agricultural practice in the area 
that is subject to these regulations.
    One other aspect we have in the law now is incentives for 
landowners to manage their lands, their privately-owned lands, 
for the purpose of attracting wildlife, for nurturing wildlife. 
We have the Wildlife Habitat Incentives Program, which I was 
pleased to author when we wrote the 1996 Farm Bill, and that 
has served to provide inducements to landowners to undertake 
the management of their lands to attract waterfowl, to attract 
migratory birds, to attract other wildlife and to sustain it.
    There are many who concerned that if they engage in 
practices that do attract and make it a habitat that's 
attractive to wildlife, they're going to be accused of 
violating these regulations.
    So there is work to be done here. I worry that we have seen 
the bill criticized unfairly by some who are just against 
hunting of any kind--nature, description, whatsoever. That 
force in our society is there, and we respect their views and 
their rights to speak out and say what they want on these 
issues, but the reality is we have a confusing set of laws 
right now and regulations, and some innocent people have been 
harmed by them and many others are worried that they will be, 
and that they will run high risk of violating the regulations 
unless this legislation is enacted.
    So we hope that the committee will look carefully at it, 
and I would ask, Mr. Chairman, that my complete statement that 
points out these differences in situations in other States like 
South Carolina, California and Texas, people who have written 
in asking us to work hard for this legislation, be printed in 
the record.
    [The prepared statement of Senator Cochran follows:]
Prepared Statement of Hon. Thad Cochran, U.S. Senator from the State of 
                              Mississippi
    Mr. Chairman, thank you for the opportunity to appear before the 
committee today. I am particularly pleased to join my distinguished 
colleague from Louisiana.
    In November of last year, I joined him in introducing legislation 
to address problems that hunters in our states have experienced with 
the current regulations issued by the U.S. Fish and Wildlife Service 
concerning baiting.
    The House of Representatives recently passed legislation dealing 
with the issue of strict liability associated with baiting. However, 
this is only one of the three issues addressed in the legislation 
proposed by Senator Breaux and me.
    Currently, a hunter that is pursuing migratory birds who has no 
knowledge of a baited situation and who cannot reasonably determine the 
presence of bait (or that hunted birds are influenced by bait) can be 
cited by a law enforcement official. In other words, in an attempt to 
address intentional violators, the regulations compromise the truly 
innocent hunter.
    The U.S. Court of Appeals for the Fifth Circuit, which includes the 
states of Louisiana, Mississippi, and Texas, has rejected a strict 
liability interpretation of the regulation, requiring at a minimum that 
the presence of bait could reasonably have been ascertained by the 
conscientious hunter. According to the court, strict liability renders 
criminal conviction ``an unavoidable consequence of duck hunting.'' 
[United States v. Delahoussaye, 573 F.2d 910, 913 (5th Cir. 1978)].
    I agree with the House that since the Migratory Bird Treaty is an 
international agreement, the regulation should be available to all 
states, not just my state, Senator Breaux's state, and Texas. I support 
the House language, which is also a component of our bill.
    The House and Senate version's were basically identical in the 
beginning, but due to time constraints, only strict liability was 
addressed in the House version. Our bill also addresses two other very 
important issues.
    Active management of native vegetation occurs throughout the United 
States, but is most common in California's Central Valley, marshes of 
the Great Lakes, and Mississippi River habitats in Illinois and the 
surrounding states. In the rice prairies of Texas, the Lower 
Mississippi River Valley, and the Low country of South Carolina, moist-
soil management is the single, most important practice used to improve 
natural habitat for waterfowl and other migratory birds
    According to the International Association of Fish and Wildlife 
Agencies, practices such as water-level manipulation, water circulation 
techniques, impounding water, ditching, salinity control, mowing, 
shredding, discing, roller chopping, grazing, burning, trampling, 
flattening, herbicide treatment, and wetland-associated plant 
propagation techniques do not create the kind of lure or attraction to 
waterfowl typically associated with the dumping of grain.
    However, the manipulation of native vegetation by waterfowl 
biologists, landowners, and hunters has placed waterfowl hunters in 
jeopardy of violating current regulations. According to Bill Gaines, 
Director of Government of Affairs of the California Waterfowl 
Association, ``Confusion over the meaning and enforcement of these 
regulations is compromising the willingness of many landowners to 
employ preferred waterfowl habitat management practices on their 
lands.''
    Eric Frasier, Executive Director of the Wetland Habitat Alliance of 
Texas. states, ``These native and agricultural plant communities are 
vital in meeting the nutritional needs of waterfowl and other wetland-
dependent birds.'' He also states that such an interpretation 
discourages wetland managers, landowners, and hunters from conserving, 
restoring, and/or enhancing natural wetlands. The legislation we 
introduced in the Senate would preserve landowners' ability to manage 
wildlife habitat without the threat of prosecution.
    The third area our bill addresses is that of agricultural 
practices. This provision primarily affects migratory game birds other 
than waterfowl--such as doves.
    The major problem with enforcement of dove baiting regulations has 
been the lack of a uniform understanding among landowners, farmers, and 
hunters as to what constitutes ``a bona fide agricultural operation or 
procedure,'' ``agricultural planting,'' or ``soil stabilization 
practice.'' Landowners and hunters need clarification in terms of what 
practices meet these definitions, which may vary substantially in 
various parts of the country. Our Bill simply allow state fish and 
wildlife agencies to determine what is ``normal,'' or ``bona fide'' 
with respect to these practices.
    We have about 83,000 dove hunters in my State of Mississippi. 
According to the March 25, 1998, Federal Register, ``The (U.S. Fish and 
Wildlife) Service is proposing a prohibition that would apply to the 
hunting of all migratory game birds (including doves) over any area 
that has been planted by means of top sowing (including aerial 
application) where seeds remain on the surface of the ground as a 
result. The Service is proposing that this prohibition apply regardless 
of the purpose of the seeding, and proposes to explicitly exclude top 
sowing from the proposed definition of ``normal agricultural and soil 
stabilization practice.'' In a letter I received yesterday from John 
Frasier, Executive Director of the Wetland Habitat Alliance of Texas, 
this one practice is vital to supporting our waterfowl populations.
    Let me conclude Mr. Chairman, by saying that there is a tremendous 
amount of misinformation about the bill we have proposed and is pending 
in this committee. A leaflet circulated by the Humane Society of the 
United States opposing this legislation wrongly states that it will 
increase the annual waterfowl harvest by hunters. There are some who 
don't want any hunting and will say anything to further their cause. I 
will not give credence to this statement other than to reemphasize to 
you it is wrong.
    I very much appreciate the opportunity to appear before the 
committee. I support the bill passed by the House. However, our bill, 
S. 1533, the Migratory Bird Treaty Reform Act, addresses all three 
issues that hunters and landowners face. I hope you will act on it 
favorably in the remaining days of this Congress.
    Senator Chafee. Thank you both for your testimony. I've got 
several questions here. First, I do want to say about that 1996 
Farm Bill that I think it was one of the great environmental 
bills that was passed around this place. I don't think it ever 
got the credit it deserved. I remember Senator Dole was active 
in its passage. I never thought those folks who were involved 
with that legislation got the credit for the environmental 
aspects of it that were there. In setting land for habitat in 
that Farm Bill there were more acres set aside for habitat than 
we've set aside in our wildlife refuges, for example.
    Let me ask you some questions that are going to come up. 
Senator Breaux pointed out that there will be views from the 
other side in the latter panels. One of the points raised will 
be, ``Well, we're starting out on a slippery slope here. All 
right, so you're just dealing with baiting but in the Migratory 
Bird Act there's a series of other strict liability provisions, 
and if you get back from the strict liability on the baiting, 
what follows next? Are you going to be in here for something 
else in connection with other provisions of the Migratory Bird 
Act?''
    Senator Breaux. Mr. Chairman, all the provisions should 
stand on their own. If they can be defended as strict liability 
on their own, they should stand and stay. This is very narrow. 
It only addresses baiting and that's where the problem is. I 
just think it is fundamentally wrong to say that you can 
convict someone of a criminal offense who had no knowledge of 
what was happening. The only thing we're addressing is baiting. 
We expand the criminal liability of baiting because we make it, 
for the first time, a crime to bait a field, which is not a 
crime today. A landowner can go out there and do everything 
that I would consider illegal and throw bait all over his field 
to attract migratory waterfowl--that's not a crime. But you 
take an innocent hunter who has never been to that property, 
who has no way of knowing or should have known that it was 
baited, and he's going to be convicted. I mean, that's wrong. 
Let's make the person who owns the land more responsible, let's 
make the person who actually does the baiting--throw the book 
at him, but, for heaven's sakes, let's say to the innocent 
hunter who has never been to the property before and has no way 
of knowing it was baited--make them prove that he knew, or at 
least should have known, by an exercise of reasonable 
precaution that it was a baited field.
    Senator Chafee. Now, is this really a major problem?
    Senator Breaux. It is for the person being convicted.
    Senator Chafee. Are you aware of any criminal prosecutions 
that have taken place under these strict liability provisions, 
and, thus, unfairness has occurred?
    Senator Breaux. It happens every month. The last couple of 
months or so the sheriff of Jefferson Parish in Louisiana was 
convicted of hunting over a baited field in my colleague's 
State of Mississippi--a place he had never been to in his 
lifetime. It happens all the time, Mr. Chairman. I know good 
friends that have had this happen to them, who have never had 
any knowledge that a field was baited. If it only happens one 
time, for the one time that it happens to a person who gets a 
criminal conviction on his record, it's too much.
    Senator Chafee. What about the experience in the Fifth 
Circuit, as far as the effect on wildlife, on waterfowl, on 
migratory birds, for example? Has it resulted in lodge takings? 
What has been the experience? I mean, there in the Fifth 
Circuit you've got what you're seeking under this legislation. 
What has been the result as far as the----
    Senator Breaux. Thad will have to comment on that because 
I'm not aware of the fact that people in the Fifth Circuit--I 
mean, they're still in charge, they're still prosecuted and 
they still have to go through the expense whether they're in 
the Fifth Circuit or not.
    Senator Cochran. Everybody doesn't have the money, the 
resources and the inclination to take all these cases to the 
Fifth Circuit or to a higher court. The fact of the matter is 
that the practical side is a fine--it's a small fine 
sometimes--and people pay it, forget about it, and hope that 
it's not in the newspaper. It's an embarrassing situation. A 
lot of people who are prominent, a lot of people who are 
hardworking folks, don't have time to do anything but do their 
work and go to their job. The don't have the time to take on 
the Federal Government and litigate all these things.
    Senator Chafee. In other words, even though the Fifth 
Circuit has made its determination--I think it was in 1978?
    Senator Cochran. That's correct.
    Senator Chafee. And, presumably, that's the law of the 
Fifth Circuit. Nonetheless, people are still prosecuted under 
the existing regulations of the Fish and Wildlife Service?
    Senator Cochran. That's my understanding.
    Senator Breaux. Let me add to that, Mr. Chairman, that in 
the report from the House, which had testimony from people 
based on exactly that question, it said, ``The Fifth Circuit 
includes the States of Louisiana, Mississippi and Texas where 
migratory birds are hunted in great numbers. The record 
indicates that this legal standard has in no manner lessened 
the conviction of persons who by the evidence presented have 
violated the baiting provisions.''
     For example, based on information supplied by the U.S. 
Fish and Wildlife Service and the most recent hunting season, 
1996 and 1997, in Louisiana, of the 52 people cited by the 
Service for hunting over a baited field, 43 were still found 
guilty. And in Mississippi in 1995, the most recent year, they 
had numbers--22 baiting citations and all 22 cited persons were 
found guilty.
    It is still a very serious problem, and it's a serious 
problem not only in the Fifth Circuit--it's a serious problem 
all over the country.
    Senator Chafee. You mentioned the differences between the 
House Bill. In other words, my question is the Breaux bill in 
the Senate differs in what manner from, let's say, the bill 
that was passed in the House? You mentioned there were 
differences, and I'm not sure I understood those.
    Senator Cochran. Let me tell you what the House did. I have 
a letter here from the Delta Wildlife Foundation in 
Mississippi, which I received in June, and it says, ``The House 
of Representatives has stripped their bill of the most 
important provisions.'' These are pertaining to the top sowing 
of wheat for dove hunting, which I mentioned, and moist soil 
management for duck hunting.
    Now, we talked about wildlife management practices. The 
House did not choose to include those provisions that are in 
the Breaux-Cochran Bill in the bill that was passed in the 
House, so that's why----
    Senator Chafee. Those provisions were the State 
certifying----
    Senator Cochran. Right, the State would certify what is the 
normal farming practice and try to protect people who engage in 
those practices and keep them from being convicted of violating 
the law when what they're doing is a normal top sowing of 
wheat--I used that as a specific example and there may be 
others. The other thing is managing your property, your private 
land, for the purpose of increasing its attractiveness as 
wildlife habitat. We're encouraging people to do that. The 
Federal Government is providing financial incentives to 
landowners to achieve that result, and what they're now worried 
about is that under a strict reading of some of these proposed 
legislation and existing rules of the Fish and Wildlife 
Service, those landowners can be charged and fined for enticing 
habitat if you also engage in hunting on those lands.
    So it really needs the attention of Congress to sort this 
thing out. The Fish and Wildlife Service is just being simply 
too aggressive when hunting is involved in areas where the 
practices being undertaken are lawful, even encouraged and 
rewarded by the Federal Government, but if you hunt in those 
areas, then you're liable of being convicted of a crime.
    [The referenced letter follows:]
                                 Delta Wildlife Foundation,
                                    Stonesville, MS, June 30, 1998.

    The Honorable Thad Cochran,
    U.S. Senate,
    Washington, DC 20510.

    Dear Thad: We are very excited about you co-sponsoring the 
Migratory Bird Treaty Reform Act (S. 1533). The bill, as you have 
sponsored it, is very beneficial and will go far in solving the 
problems of clarifying the baiting regulations, which at this time are 
very vague.
    The reason we are writing is because the House of Representatives 
has stripped their bill of the most important provisions (those 
pertaining to the top-sowing of wheat for dove hunting and moist soil 
management for duck hunting); their bill only addresses ``strict 
liability,'' which is not a problem in the states of Louisiana, 
Mississippi, and Texas.
    The major problem with enforcement of dove baiting regulations has 
been the lack of a uniform understanding among farmers and hunters as 
to what constitutes ``a bona fide agricultural operation or 
procedure''. This problem has existed since 1972 when the baiting 
regulations found in 50 CFR 20.21(i)(1)(2) were first promulgated. 
Under this provision, no person shall take migratory game birds by 
baiting (placing feed such as corn, wheat, salt, or other feed to 
constitute a lure or enticement) This section, however, does not 
prohibit taking migratory game birds over grain crops scattered solely 
as a result of normal agricultural planting or harvesting or as a 
result of ``manipulation of a crop or other feed on the land where 
grown'' for wildlife management purposes.
    In Mississippi, the enforcement of the above provisions has been 
interpreted since 1972 as permitting the practice of top-sowing wheat 
as long as the procedure followed normal agricultural practices. 
Consequently, farmers and dove hunters have ``preparedly dove fields 
over the years by topsowing wheat following procedures which conform to 
normal agricultural practices.
    The U.S. Fish and Wildlife Service's (USFWS) Law Enforcement 
Division has changed their interpretation of this regulation and has 
now taken the position that the ``preparation of a dove field'' by top-
sowing wheat solely for the purpose of hunting doves is prohibited.
    This Foundation has several problems with changing the method of 
enforcement, to include, the historical practice of allowing hunters to 
prepare dove fields, the lack of a definition of ``bona fide 
agricultural operations or procedures,'' and the fact that the U.S. 
Department of Agriculture recognizes the top-sowing of wheat as a bona 
fide agricultural practice.
    If changes are to be made in the enforcement of dove baiting 
regulations, then the dove baiting regulations need to be changed to be 
more specific. Changes in the regulations do not need to be made unless 
a resource need is identified. None has been identified, and if it 
were, bag limits and day length (full day or one-half day) should be 
tools to regulate harvest.
    Regarding waterfowl, a concern relates to the practice of opening 
water for blind and decoy placement where native vegetation (moist soil 
plants) has to be ``knocked down'' in the process. The USFWS says that 
this makes seeds from native vegetation more available, therefore 
creating a lure. In the South, native vegetation would have already 
dropped its seed well before the duck season begins; therefore, the 
seed is already available for use by ducks.
    When someone opens a hole of water in native vegetation just prior 
to the season, he or she may be ``knocking down'' the vegetation and 
actually covering the seed with plant debris; therefore, the seed is 
not more available. Ducks can find places to land regardless of the 
open water created for decoy and blind placement. Since blinds and 
decoys are an integral part of waterfowl hunting, we do not consider 
this to be an unusual lure, especially when considered in the context 
of waterfowl hunting methodology. Also, current regulations prohibit 
active management of native vegetation for waterfowl and other 
migratory birds.
    The real critical success factors for improving waterfowl 
populations are habitat abundance and quality. The support base for 
enhancing waterfowl habitat is the farmer. Partners For Wildlife, the 
Wetland Reserve Program, and the Wildlife Habitat Incentives Program 
are providing additional waterfowl habitat on farmland in the Delta. If 
the USFWS is truly interested in maximizing waterfowl habitat, as we 
are, then they should avoid sending the kinds of signals that will 
diminish farmer/hunter support for enhancing the future of waterfowl 
according to the North American Waterfowl Management Plan.
    Your bill will solve both of the above problems. We are extremely 
pleased that you are a cosponsor of the Migratory Bird Treaty Reform 
Act. We hope that you will maintain the provisions pertaining to the 
top-sawing of wheat for dove hunting and moist soil management for duck 
hunting. We look forward to further discussing these issues with you if 
you so desire.
            Sincerely,
                                               Clarke Reed,
                                                         President.
    Senator Breaux. Mr. Chairman, the House just took Section 3 
of our bill, which changes the standard or the burden of proof 
from what it is today of strict absolute liability, and they 
took our standard, which says, ``For a person to be guilty, he 
knew, or should have known, that it was a baited field.'' 
That's, basically, what they passed.
    Our bill tries to spell out normal agricultural practices, 
farming practices, which are exempt. If a person is farming 
corn on his crop and using normal farming practices, that's not 
baiting a field, and we've tried to spell out what is normal 
farming agricultural practices.
    Senator Chafee. One final question, and then Senator 
Graham, I'm sure, has a couple of questions.
    One thought that we had was possibility sunsetting--
enacting the change as you suggested with a sunset provision to 
see how it works out. In other words, are there going to be--is 
the bag going to be greatly increased, the number of waterfowl 
or whatever they might be--pheasants or whatever they might be? 
Are they going to be--is the taking going to be greatly 
increased? I don't know.
    Senator Cochran. We don't have any statistics, and there's 
probably no way to know that. People are going to guess and 
speculate. We've had difficulty in the wildlife--in the 
Migratory Bird Conservation Commission in this North American 
Waterfowl Plan trying to assess the impact of all these 
conservation practices and the protection of habitat. As you 
know, all the duck stamp money that hunters contribute to the 
government through the purchase of those duck stamps are used 
by the Commission to acquire by lease or purchase habitat to 
nurture the continued development of migratory wildlife--and 
ducks, in particular.
    But we hear that last year, for example, there were some 90 
million ducks in the Mississippi fly-way huge numbers that we 
keep hearing are being increased, and we hope we continue to 
see that develop and that we can balance the interest of those 
who are engaged in hunting and who do that--it's a lawful 
activity--with the need to protect those same migratory 
waterfowl.
    We think this would be in the same spirit of the law. We're 
encouraging the development of habitat. We're trying not to 
unfairly punish those who are engaged in normal agricultural 
practices.
    What we don't want the Fish and Wildlife Service to do is 
insist that every time somebody engages in practices that 
nurture the development of wildlife habitat, that they have to 
treat that land as a wildlife refuge. In other words, you're 
prohibiting--and that's what I think the applications of these 
regulations would do, as a practical matter--you would prohibit 
by placing the risk of being fined and convicted of violating 
the rules and the laws so high that you're going to ensure that 
there's no hunting that takes place in areas where you have top 
sowing of wheat or in areas where an otherwise normal 
agricultural practice attracts doves or ducks. In some parts of 
the country where you're preparing duck blinds and that kind of 
resource for duck hunting, if you knock down the vegetation, 
you're considered distributing the seeds in plants in the area, 
and that creates a bigger attraction for the ducks to come in. 
And so you're guilty of baiting, or attracting or unlawfully 
enticing the waterfowl to come to that spot. Whereas, in order 
to have a duck blind there, you've got to get into the area and 
prepare it.
    So the net effect is to indirectly create a wildlife refuge 
on private land, and we think if that's the net result, some 
people will applaud that, and I think that's what's driving 
these new initiatives. But it puts at risk a lot of innocent 
people, a lot of law abiding people who are engaged in hunting.
    Senator Breaux. Mr. Chairman, on the sunset question, 
sunsetting would be better than what we have now. I think that 
just as we have an interest of protecting migratory birds, we 
also should have an interest in protecting innocent hunters. 
Our legislation does not make the Fish and Wildlife Service 
have to prove that a hunter actually knew--only that they 
should have known. It puts a responsibility on the hunter. He 
can come in and show that, ``Look, I checked. I asked the 
landowner, I did a walk-through and I couldn't find any bait. 
If it was there, I did not know it, and no reasonable person 
would expect me to know it. I checked--I did some things.''
    So if the committee feels like it's necessary to sunset it, 
that is certainly much better than we have right now, and then 
check to see whether it has an adverse impact on migratory 
waterfowl.
    Senator Chafee. As you know, or perhaps you didn't know, we 
reported out from here the reauthorization of the North 
American Waterfowl Conservation Act, which, as you recall, has 
been a tremendous success. Yes, the increased rains over the 
past several years have helped the ducks come back to the 
extent that you pointed out, Senator Cochran, but I think that 
this Act has been a tremendous plus.
    We're having a little trouble getting it up, and so if 
there is any way you might be helpful in that, I will let you 
know where the roadblocks seem to be and would ask for your 
help.
    What do you think about the maximum fine that now exist? 
Let's say we followed your provision and got rid of the strict 
liability. The maximum fine now is $5,000. How do you view 
that?
    Senator Breaux. I think if someone is intentionally 
baiting, you should throw the book at them. I mean, that is 
something that is illegal, they know it's illegal and they're 
doing it anyway. You should throw the book at them. I mean, I 
would raise the fine, and as long as it's ``up to'', and let 
the judge have some discretion in assessing it, based on 
whether it's a first offense or what have you, or how serious 
it was and how much damage was done. But, I mean, the fine, I'm 
not advocating that it be lowered. If anything, go ahead and 
raise it, as long as you change the standard from one of strict 
liability.
    Senator Chafee. Senator Graham?

             OPENING STATEMENT OF HON. BOB GRAHAM, 
             U.S. SENATOR FROM THE STATE OF FLORIDA

    Senator Graham. Thank you, Mr, Chairman.
    I don't have any questions. I would like to file an opening 
statement and make a short comment as to how this matter came 
to my attention.
    Back in 1995 the Florida Sheriff's Youth Ranches, which are 
institution that serve troubled and delinquent children, was 
having its annual charity shoot in a county in the Big Ben area 
of Florida called Dixie County. During the course of the 
charity shoot, there was a raid made by the Fish and Wildlife 
Service, which resulted in 80 citations. A number of those 
citations were given to students at the University of Florida 
who were there through their fraternity's public service 
outreach not to hunt, but rather to prepare the food and 
participate in the other activities, which supported the 
charity shoot for the Florida Sheriff's Youth Ranches.
    One of those young men lost his Army officer's commission 
as a result of getting this citation. These individuals all had 
no recourse or defense against enforcement actions because of 
the strict liability nature of the current law.
    When I was made aware of this, I became concerned at the 
unfairness of this and the unintended negative consequences, 
especially on these students. So I support the legislation that 
Senator Cochran and Senator Breaux bring to us today. I believe 
that it would provide for an opportunity for those people who 
were knowingly, or should have known, that they were 
participating in a baited field hunt to be punished, but not 
sweep up a lot of innocent folks who just happen to be standing 
around at the time that this event that was beyond their 
knowledge or their reasonable expectation that they would have 
knowledge are currently being punished.
    So, Mr. Chairman, I support this legislation and hope that 
we can report it to the Senator for consideration at an early 
date.
    [The prepared statement of Senator Graham follows:]
 Prepared Statement of Hon. Bob Graham, U.S. Senator from the State of 
                                Florida
    Mr. Chairman, thank you for the opportunity to address the 
committee on such an important issue.
    Today we are looking at a piece of legislation that is fairly 
straightforward. It addresses the concerns of hunters throughout the 
nation that existing enforcement provisions give the Fish and Wildlife 
Service the authority and the discretion to give citations to any 
person found hunting on or within a mile of a baited field whether or 
not there is any evidence to demonstrate that the individual was aware 
of the condition of the field. By adopting a ``known or should have 
known'' standard for enforcement as opposed to a strict liability 
standard for enforcement, this legislation will offer these individuals 
an opportunity to defend their actions and demonstrate whether or not 
they knew of the condition of the field. In addition, this legislation 
adopts a new provision which makes baiting itself a separate offense, 
thereby offering an additional protection both for the migratory birds 
as well as for hunters.
    This issue has strong ties to the State of Florida. In 1995, the 
Fish and Wildlife Service in Dixie County, Florida issued over 80 
citations to individuals attending a charity shoot for the Florida 
Sheriff's Youth Ranches. At the same time, several students 
participating in the event were also issued citations, resulting in the 
revocation of an Army officer's commission for one student. These 
individuals had no recourse or defense against the enforcement actions 
by the Fish and Wildlife Service.
    With that said, I understand that this is not an action that this 
committee should take lightly. Congress passed the Migratory Bird 
Treaty Act in 1918 which implemented the Convention for the Protection 
of Migratory Birds, a treaty signed by the United States and Great 
Britain for the protection of migratory birds. This law made it illegal 
to ``hunt, take, capture, kill, attempt to take, capture or kill, 
possess, offer for sale'' bird species including ducks, geese, brants, 
coots, gallinules, rails, snipes, woodcocks, crows, and mourning and 
white-winged doves. In 1935, the Fish and Wildlife Service issued 
regulations for baiting which prohibit hunting over baited areas, 
except where grain has been scattered through bona fide agricultural 
operations.
    There is a long history of congressional intent to protect these 
migratory bird species. It is our challenge today to develop a policy 
that will continue this long-standing commitment while also creating a 
rational, reasonable policy that will provide fair and equitable 
treatment to those individuals who choose to hunt within the existing 
rules.
    I look forward to hearing the testimony of today's witnesses which 
I hope will describe the nuances of the decision we face today.
    Senator Breaux. Senator Graham, if you would yield, the 
person in your example who actually baited the field would not 
be guilty of anything because baiting the field is not illegal, 
but hunting over the baited field is.
    Senator Chafee. Thank you both very much for coming. We 
appreciate it, and we certainly will try to move along with 
this legislation.
    Mr. Kevin Adams, Chief, Office of Law Enforcement, U.S. 
Fish and Wildlife Service, Department of the Interior.
    Mr. Adams, if you would come forward, we'll proceed with 
your testimony.
    Won't you proceed?

  STATEMENT OF KEVIN ADAMS, CHIEF, OFFICE OF LAW ENFORCEMENT, 
   U.S. FISH AND WILDLIFE SERVICE, DEPARTMENT OF THE INTERIOR

    Mr. Adams. Good morning, Mr. Chairman, and members of the 
committee.
    I am Kevin Adams, Chief of Law Enforcement for the U.S. 
Fish and Wildlife Service. I would like to thank you for the 
opportunity this morning to discuss the Administration's 
position on H.R. 2863, the Migratory Bird Treaty Reform Act of 
1998, as passed by the U.S. House of Representatives.
    As passed, this bill would eliminate the current strict 
liability standard used in enforcing waterfowl baiting 
regulations and make it illegal for any person to place or 
direct the placement of bait on or adjacent to an area being 
hunted.
    The Department of the Interior shares your concern for the 
need to clarify and simplify migratory game hunting regulations 
regarding baiting. On March 25, 1998, the Fish and Wildlife 
Service published in the Federal Register for public review and 
comment a proposed rule concerning hunting migratory birds by 
baiting or using baited areas. This rulemaking process was 
initiated after extensive review of the current regulations and 
in response to public concerns about interpretation and clarity 
of those regulations, especially with respect to current 
migratory bird habitat conservation practices--that is moist 
soil management techniques. The Administration believes that 
H.R. 2863 will disrupt the agency's ongoing decision-making 
process and is opposed to this bill.
    The Migratory Bird Treaty Act, which implements 
international treaties with four of our neighboring countries 
for protection and conservation of migratory birds, authorized 
the Secretary of the Interior to determine by regulation when, 
to what extent, if at all, and by what means it is compatible 
with the terms of the Convention to allow hunting. These 
Federal baiting regulations were first established in 1935 when 
waterfowl populations suffered from drought, degradation of 
habitat, and over-harvest by hunting.
    The two hunting practices primarily responsible for over-
harvest were the use of bait and live decoys, both of which are 
quite effectively luring birds to the gun. Of all the factors 
affecting migratory bird populations, these two can be 
controlled or curtailed by law enforcement actions.
    Enforcement of the baiting regulations includes a strict 
liability doctrine. Under strict liability, the government does 
not need to prove that the hunter knew he or she was violating 
the law. H.R. 2863, as passed by the House, would eliminate 
this strict liability standard and replace it with a ``know or 
reasonably should have known'' standard. This new standard will 
require Service law enforcement officers to prove that a person 
knows, or reasonably should have known, that the area where he 
or she was hunting migratory birds was baited before it can 
establish that a violation occurred.
    This bill will also include this language in the Migratory 
Bird Treaty Act, rather than in the Code of Federal Regulations 
where the prohibitions are listed today.
    This concludes my statement, and I would be glad to answer 
any questions.
    Senator Chafee. Well, thank you, Mr. Adams.
    You were here when the two Senators testified just before 
you. My question is, is there any documentation of experiences 
under the Fifth Circuit where there's over-harvest as a result 
of the change in the burden of proof that took place as a 
result of the Fifth Circuit, or is that impossible to quantify 
because the Fish and Wildlife--people have just gone and paid 
their fines, not taking it up into the courts, having appealed?
     Mr. Adams. Mr. Chairman, the Fish and Wildlife Service 
first started collecting data at a central location in 1984, 
and these data reflect the number of citations that were 
issued, as well as the number of individuals who paid their 
citations through forfeiture of collateral, or through the more 
formal process--by appearing before a U.S. Magistrate.
    However, we have nothing to place these 1984 and beyond 
statistics in context to what may or may not have happened at 
the time that Delahoussaye was adjudicated in the Fifth 
Circuit. We simply don't have the mechanism to measure the 
impact on migratory birds.
    Senator Chafee. Somebody suggested that if the harvest is 
greatly increased as a result of this change in the baiting, 
then the bag limits would be changed or the season limits would 
be changed, and they come up for review every year anyway.
    What would you say to that?
    Mr. Adams. The Fish and Wildlife Service in working with 
the States utilizes adaptive harvest management, and, in fact, 
if the bird populations fell to a set level, the bag limits and 
the season links would be adjusted to reflect that.
    Senator Chafee. After listening to Senator Breaux, it seems 
to me he makes a pretty good case. If somebody goes out on a 
Friday night, goes up to some duck hunting club, arrives in the 
evening, goes out early in the morning to a duck blind and 
there shoots ducks, and later is told that, in no way he would 
know it, that there had been baiting going on--even though the 
person was completely innocent and had no desire to evade the 
law, that under the strict liability provision, whether he knew 
it or didn't know it, tough luck--could be fined. The current 
maximum fine is up to $5,000.
    Doesn't that strike you as a bit unfair?
    Mr. Adams. Well, Mr. Chairman, our common field situation 
involves hunters of all different ability, length of time in 
the field and expertise. In many instances, hunters have 
claimed not to have known that the area was baited. However, 
upon further review it becomes apparent that they did not 
exercise any responsibility to go out and check an area. This 
responsibility, which is reflected in the known or should have 
known standard, is something that this new legislation tries to 
address.
    So I can't say categorically that these situations never 
happen because there are always exceptions, but the State 
officers, the Federal law enforcement officers, use discretion, 
and the prosecutors use discretion in bringing these cases to 
court. We feel that such discretion adequately addresses the 
need.
    Senator Chafee. Well, in the law the proposed provision of 
Senator Breaux and Senator Cochran it has ``known, did know or 
should have known''--it has that provision in there. Was that 
what you were referring to?
    Mr. Adams. Yes, sir.
    Senator Graham?
    Senator Graham. Well, let me understand what the Fish and 
Wildlife Service's position is.
    Do you support or oppose changing the standard from the 
current strict liability to a ``know or should have known'' 
standard?
    Mr. Adams. Mr. Graham, in March of this year the Fish and 
Wildlife Service released a proposed rule, and it includes a 
number of revisions to the current migratory waterfowl baiting 
prohibitions. Many of those were contained in the earlier 
version of the House bill; many of those still remain in the 
Senate bill.
    We feel that it's premature at this time to make a change 
in strict liability because we still are receiving comments. 
That period closes October 22, and at that point we will do an 
analysis of comments and publish a final rule.
    Senator Graham. Well, as the agency responsible for 
implementing this action, what is your recommendation?
    Mr. Adams. Again, sir, the agency does oppose the bill 
primarily because we have the rulemaking process ongoing at 
this time. It's a vital part of that rulemaking process.
    Senator Graham. So is it fair to say your opposition is 
based on procedural grounds--i.e., that you are in the midst of 
rulemaking, which might result in a change from the strict 
liability standard and your opposition is not based on a policy 
commitment to the strict liability standard?
    Mr. Adams. The Administration's position is that it is 
based on a procedural standard. However, as the Service clearly 
outlined in the proposed rule, we have considered the requested 
change from a strict liability to a ``known or should have 
known'' standard, and at the time of the proposed rule we chose 
not to make any changes.
    Senator Graham. And what was the basis for the decision not 
to make any changes?
    Mr. Adams. The Service has been enforcing these baiting 
regulations for over 60 years, and the strict liability 
standard has proven very effective for migratory bird 
conservation.
    Senator Graham. As someone who used to be involved in State 
law enforcement, I can appreciate why strict liability is an 
easy to enforce standard. You have to exercise any judgment. 
You see somebody in a situation which is prohibited and they're 
guilty without any other questions asked.
    We've had presented today some cases which seem to raise 
fundamental issues of due process and basic fairness in 
applying that. I would go back to my example of the students 
who came to assist in a charity hunt and then ended up being 
swept up in a number of citations that were issued against all 
people who were physically on the property, and some very 
serious negative consequences flowed to those persons who did 
not know, and had no reason to know, that the field had been 
baited, if in fact it had been baited.
    I don't understand why the Service would feel that such an 
arbitrary application of the law would be necessary for it to 
carry out its function of determining whether people were 
knowingly taking advantage of the illegal baiting on that 
field. I mean, the trade-offs between the injustice to the 
innocent against the admittedly greater efficiency to the 
Service of being able to arrest everybody who is standing 
around doesn't seem to me to be an equitable balance of 
justice.
    Mr. Adams. Senator, I would hope that we simply do not 
arrest everyone who is standing around a baited dove field. I 
know there has been testimony on previous occasions before the 
Congress on this particular incident, and the issues you raise 
are certainly ones of great concern to the Fish and Wildlife 
Service and the State and Natural Resource Agencies. We work 
with our law enforcement officers on a regular basis to ensure 
that they in fact do use discretion and don't seek a simple 
means to take care of a problem.
    I think we've made great progress in the past few years in 
this year.
    Senator Chafee. Mr. Adams, what is your schedule here? They 
just sounded the latter part of the second half of the vote. 
There's a series of votes over there, and I'm afraid we're 
going to be tied up perhaps for as long as--I think there are 
three votes, and so it might take us a half an hour.
    Can you wait here? I have a couple of questions for you?
    Mr. Adams. Yes, sir, certainly.
    Senator Chafee. All right, I would say to the balance of 
the witnesses inadvertently--I mean, this situation is beyond 
our control. If you could all wait here and I will make every 
effort to come back as soon as I can.
    So we'll recess this hearing for about--it will be about an 
half hour, hopefully short of that.
    Thank you.
    [Recess.]
    Senator Chafee. All right, if Mr. Adams would come back up? 
I apologize for the long delay. Three votes took not 30 
minutes, but took nearly an hour, and, indeed, they're not 
through the third vote yet.
    Mr. Adams, one of the problems that we have is it is my 
understanding that the Fish and Wildlife Service started this 
review of the regulations, and, indeed, in connection with this 
particular subject, in 1991 and here we are in 1998 and you 
say, just wait; October is coming and something will come out 
then.
    What do you say to the skeptics that say it takes an awful 
long time for you folks to get these things done?
    Mr. Adams. I would certainly have to agree that 1991 was 
more than just a little while ago. We have taken a number of 
steps since then. 1991 was the initial review process that the 
Service went through. In 1996 we went out to the International 
Association of the Fish and Wildlife Agencies and requested 
their assistance in establishing an ad hoc committee to come 
back to the Service with recommendations, and, in fact, in 1997 
they did come back and we used those recommendations as part of 
our process in developing our proposed rule.
    So this is going to happen. The Director is committed to 
getting a final rule published as soon as practical after the 
comment period closes.
    Senator Chafee. I asked Senator Breaux about his views on 
the increase in the penalty, should we make this change, and it 
will be on a sliding scale--in other words, it wouldn't be a 
flat $5,000 or $6,000 or whatever. Currently, it's $5,000 
maximum, and the court has the ability to go--I don't know what 
the minimum is, but what do you think about increasing the 
penalty? Should we adopt language similar to that that Senator 
Breaux submitted or something similar to it? What would you say 
about increasing the penalty?
    Mr. Adams. Mr. Chairman, of course, the decision on the 
amount of penalty is at the purview of the courts, but Federal 
law enforcement officers I think in the Service would see that 
as, again, another tool to use. If, in fact, we are going to 
make some true distinctions for different levels of 
responsibility for baiting violations, that's one effective way 
to do it.
    Senator Chafee. All right, well, thank you very much for 
coming up, Mr. Adams. I'm sorry there was that long delay.
    Mr. Adams.
    Senator Chafee. Now we'll have the final panel--Mr. Doug 
Inkley, Senior Scientist and Special Assistant to the 
President, National Wildlife Federation--if you gentlemen would 
come up?
    Ms. Tanya Metaksa, Executive Director from the National 
Rifle Association; Ms. Laura Hood from the Defenders of 
Wildlife; and Mr. Brent Manning from Illinois on behalf of the 
International Association of Fish and Wildlife Agencies.
    Will take people in the order that I read them off, and Mr. 
Inkley, if you would proceed?

 STATEMENT OF DOUGLAS B. INKLEY, SENIOR SCIENTIST AND SPECIAL 
   ASSISTANT TO THE PRESIDENT, NATIONAL WILDLIFE FEDERATION, 
                           VIENNA, VA

    Mr. Inkley. Thank you, Senator Chafee. On behalf of the 
National Wildlife Federation, we appreciate this opportunity to 
testify today.
    As you know, the National Wildlife Federation is the 
nation's largest conservation education organizations. We have 
had a long-term interest in the conservation of the migratory 
bird resource. We have worked with the U.S. Fish and Wildlife 
Service to help phase out toxic shot for waterfowl hunting 
because of the indirect mortal caused to birds through 
poisoning, and we have also worked to support the North 
American Waterfowl Management Plan, the North American Wetlands 
Conservation Act, and the 404 Wetlands Regulatory Program.
    I mention those simply to demonstrate that we do have a 
very strong interest in the conservation of the migratory bird 
resource.
    The National Wildlife Federation is here today not only 
because of our interest in the conserving of the migratory bird 
resource, but also in ensuring that there is properly regulated 
utilization of that wildlife resource. Hunting is certainly 
inappropriate activity for utilization of the migratory bird 
resource when properly regulated.
    Of course, the issue today is baiting, so I will go 
directly to that. The baiting of waterfowl and other migratory 
birds has long been illegal under the Migratory Bird Treaty 
Act. This is consistent with the spirit of fair chase, as well 
as to facilitate the maintenance of the waterfowl populations 
and other migratory birds.
    However, we are concerned that at the present time a hunter 
can actually be arrested and fined when he has no knowledge 
that the area has been baited. With this in mind, we understand 
and support the fine tuning of the baiting regulations to 
ensure fairness to hunters while protecting the migratory bird 
resource from being hunted over bait. This seems very 
reasonable.
    While a change does seem appropriate for protecting 
innocent hunters, we do have a larger concern, and that concern 
is that this could create a loophole thereby facilitating 
unethical hunters--or I would prefer to call them poachers--
attracting waterfowl by baiting and then getting away with it. 
This is inappropriate.
    Another concern we have is that, as the U.S Fish and 
Wildlife Service testified today and a year ago before the 
House, they do not know what the impact this change will have 
on the migratory bird resource. The bottom line interest of the 
National Wildlife Federation with respect to conservation of 
migratory birds, is a very great concern to us.
    Because of these concerns, the National Wildlife Federation 
does oppose H.R. 2863 on the grounds that the changes of the 
migratory bird regulations are most appropriately established 
at the regulatory level. These are complex regulations that 
require professional judgment and assessment of changing 
conditions in the field, especially with respect to the 
populations of migratory birds.
    To take the broad brush approach of a legislative action 
would prevent the Fish and Wildlife Service from fine-tuning 
regulations.
    The second reason the National Wildlife Federation opposes 
H.R. 2863 is that the Service is currently engaged in a public 
review process to assess the appropriateness of these 
regulations. While certainly the Fish and Wildlife Service has 
not proposed to change them, the comment period is still open 
until October 1--I understand there are a number of comments 
that have come in--and we would like to see that process 
through to completion.
    To stop that process now would render all those public 
comments moot and interrupt the public review process mid-
stream.
    In summary then, the National Wildlife Federation urges the 
Fish and Wildlife Service to take regulatory and policy changes 
into consideration and that the Congress not take legislative 
action at this time.
    Thank you for the opportunity to testify.
    Senator Chafee. Thank you very much.
    Now, Ms. Metaksa, if you would proceed please?

  STATEMENT OF TANYA K. METAKSA, EXECUTIVE DIRECTOR, NATIONAL 
 RIFLE ASSOCIATION INSTITUTE FOR LEGISLATIVE ACTION, FAIRFAX, 
                            VIRGINIA

    Ms. Metaksa. I have given the committee a complete 
statement, and I ask that it be put into the record. I am going 
to summarize it for you, sir.
    Senator Chafee. All right, that's fine. We'll do that.
    Ms. Metaksa. Thank you.
    On behalf of the National Rifle Association, Mr. Chairman, 
I appreciate the opportunity to testify in strong support of 
H.R. 2863, the Migratory Bird Treaty Reform Act. It is a core 
NRA belief that hunters are called to be faithful stewards of 
America's wildlife bounty, and these are not just words but 
promises of action.
    Part of this stewardship, this action, took place over 80 
years ago when hunters clamored for passage of the Migratory 
Bird Treaty Act of 1918. At that time wildlife was being 
eradicated. Mercenaries for both market and millinery all but 
consumed entire populations of white-tailed deer, bison and 
waterfowl and other species. In fact, back in the 1870's as 
many as 15,000 canvasbacks were taken each day by market 
mercenaries right here on the Chesapeake Bay alone--15,000 a 
day. So the American hunter that made conservation history in 
this era brought to life many progressive laws, notably the 
Migratory Bird Treaty Act of 1918, a visionary wildlife 
conservation law. In the past 80 years just one aspect stands 
out in perpetual controversy--the prohibition of hunting over 
bait, or with the aid of bait.
    The words themselves do not embody a strict liability 
standard of guilt, but most courts have treated violations of 
the baiting prohibition as a strict liability criminal offense. 
Strict liability, as we have heard, prevents hunters from 
presenting convincing evidence that they did not know, or 
reasonably could not have known, that bait was present.
    While the U.S. Fish and Wildlife Service keeps telling 
American hunters, ``seek relief, not through legislative action 
but through rulemaking,'' let's just take a look at how 
cooperative of a partner the Fish and Wildlife Service has been 
in the rulemaking process:
    In 1990 the U.S. Fish and Wildlife Service established a 
law enforcement advisory commission to look at an array of 
issues. One of the commission's recommendations 8 years ago was 
to create a task force to review the baiting regulations--
action taken, none. The task force was never created.
    A year later the Fish and Wildlife Service published a 
notice of intent in the Federal Register to review the baiting 
regulations, and the NRA agreed. Heed your own advisory 
commission; create the task force you called for the year 
before--never happened. Replace the strict liability 
interpretations and regulations with clear regulatory language, 
language that reflects a standard of reasonable diligence.
    That standard is reflected in the bills that you are 
talking about today. The response from the Service? There 
wasn't any. Two years later in 1993 the Service published a 
supplemental notice of review making no mention of the strict 
liability issue, and then nothing was heard for another 3 years 
when it published another notice on another aspect of the 
baiting regulations. The NRA asked to please broaden the scope, 
include the strict liability issue, and this past Spring, 
prompted by Congressional action on earlier versions of H.R. 
2863, the Fish and Wildlife Service proposed a rule to amend 
the baiting regulations.
    However, I would like to bring to the committee's attention 
that the Fish and Wildlife Service excluded from public review 
and comment the very crux of this hearing, the baiting issue 
from the perspective of the American hunter, adoption of the 
``know or reasonably should know'' standard, termed the 
Delahoussaye standard, now embodied in this bill.
    Critics, we have heard, claim that requiring law 
enforcement to prove intent to break the law will make cases 
impossible to prosecute. To the contrary, law enforcement would 
only need to prove that persons knew, or reasonably should have 
known, that there was hunting over bait. Even without intent 
the person could still be found guilty if the court determined 
that due diligence was not applied in examining the hunting 
area for the presence of bait. Hunters have been prosecuted in 
cases where they could not reasonably have known that a field 
was baited, and in some cases the bait was half a mile from 
where they were hunting.
    This was the very reason why in 1978 the Fifth Circuit 
Court of Appeals ruled in favor of the hunter in the United 
States vs. Delahoussaye.
    The three States that compromise the Fifth Circuit--
Louisiana, Mississippi and Texas--have experienced no hardship 
in prosecuting baiting cases. They boast a conviction rate of 
88 percent. Frankly, we believe the Fish and Wildlife Service 
has had 20 years to challenge the Delahoussaye standard if it 
believed the standard was having a detrimental impact upon law 
enforcement--there has been no challenge. Moreover, the 
Service's own witness at a Congressional oversight hearing in 
May 1996 in response to a query said that the Delahoussaye 
standard, ``could be acceptable as the standard for criminal 
liability.''
    One of the great contributions American hunters make to the 
larger American culture is the outdoor ethic. Consider the 
meaning of these important words from ``A Sand County 
Almanac,'' by Aldo Leopold, a great American hunter: ``The 
hunter has no gallery to applaud or disapprove of his conduct. 
Whatever his acts they are dictated by his own conscience. It 
is difficult to exaggerate the importance of this fact. 
Volunteer adherence to an ethical code elevates the self-
respect of the sportsman.''
    The House resolution we support here is a tribute to the 
hunters and conservationists who created the Migratory Bird 
Treaty Act of 1918. We believe you should take it up. There can 
be no passion to hunt without the passion to conserve, and that 
sentiments springs from what the NRA seeks to protect--the 
heart and soul of the American hunter.
    Thank you very much, Mr. Chairman.
    Senator Chafee. Well, thank you very much.
    Now, Ms. Hood, Director of Science for Defenders of 
Wildlife.
    Ms. Hood?

   STATEMENT OF LAURA C. HOOD, DIRECTOR, SCIENCE DEPARTMENT, 
                     DEFENDERS OF WILDLIFE

    Ms. Hood. Thank you, Mr. Chairman, for having this 
opportunity to testify before the committee today on H.R. 2863, 
enforcement against hunting by using bait, as prohibited by the 
Migratory Bird Treaty Act.
    My name is Laura Hood, and as Director of the Science 
Department at Defenders of Wildlife, I will address the 
potentially troubling consequences of this bill for migratory 
bird populations.
    Defenders is a conservation advocacy group with over 
250,000 members and supporters. Defenders is not an anti-
hunting organization. It is an organization that is committed 
to the science-based protection and management of natural 
resources across the country, especially migratory birds.
    Today, I will make three key points for your careful 
consideration of this important bill:
    First, changing the strict liability standard to the 
scienter standard will curtail enforcement against baiting, 
providing a huge loophole for hunters who use this unethical 
practice.
    Second, this change poses additional risks for bird 
populations, and any change to the Migratory Bird Treaty Act, 
especially this one, must include a careful analysis of 
potential impacts.
    Third, now is not the time to make a potentially far-
reaching change to the Migratory Bird Treaty Act, and I think 
that others here have testified to that point.
    Other groups that oppose H.R. 2863 include the American 
Bird Conservancy, the Izaak Walton League, the National Audubon 
Society and the Humane Society of the United States. The Fish 
and Wildlife Service opposes this bill, the Secretary of 
Maryland's Department of Natural Resources opposes this bill, 
and, very significantly, the Federal Wildlife Officers 
Association opposes this legislation.
    The Federal Wildlife Officers are concerned that this 
legislative change would cripple enforcement against hunters 
who use bait. For over 60 years courts have interpreted the 
MBTA as imposing strict liability because otherwise it would 
often be impossible for an enforcement agent to prove that a 
hunter was aware of the bait.
    Let's take a look at who agrees with this view--Federal 
Wildlife Officers Association agrees with this view, Maryland's 
DNR Police Superintendent agrees with this view, Federal 
Appeals Court Judges agree with this view. U.S. Magistrate 
Judge Frederic Smalkin from Maryland stated to Congress in 
1984, ``In addition to being a shield for the innocent, such a 
requirement could be a windfall for the guilty. In view of the 
difficulty of proving scienter beyond a reasonable doubt, it 
would appear to me from my practical perspective that the 
requirement of proving scienter would effectively curtail 
enforcement of the prohibition of baiting.''
    I note that, moreover, hunters who use bait are more likely 
to exceed bag limits, which will also exacerbate the problem 
for migratory bird populations.
    Another concern is that if the scienter requirement becomes 
law, it opens the door to an additional major blow to the 
Migratory Bird Treaty Act. Judges could rule in the future that 
the new scienter requirement extends to other violations of the 
MBTA, including killing birds in oil spills, power line 
strikes, pesticide poisonings, building construction and other 
ubiquitous threats to birds.
    For example, Mr. Chairman, the terrible oil spill that 
occurred along the coast of Rhode Island in 1996 resulted in 
hundreds of deaths of migratory birds. The ship manufacturers 
were fined $3 million under the MBTA, and the strict liability 
standard was essential for enforcement of the Act in that case. 
In an unintended nightmare scenario, enforcement against such 
preventable bird die-offs will be undermined by this 
legislation, and these die-offs will increase.
    My point in raising these concerns is to urge caution in 
changing the MBTA. I do not believe that changing the Act as 
legislatively is a cautious approach. Now is particularly not a 
good time to make a legislative change because the Fish and 
Wildlife Service is currently engaged in rulemaking on this 
issue.
    Despite decades of debate on this issue, we still do not 
have comprehensive studies on likely impacts of the scienter 
requirements on the prevalence of baiting or on migratory bird 
populations, and bird populations face numerous threats that 
are not likely to lessen in the coming years. Habitat 
destruction is widespread, human population pressure is 
increasing and poisonings and pollution pose major threats to 
birds.
    Given all of these factors, we seem ill-prepared to take 
another risk with regard to this precious public resource.
    Thank you.
    Senator Chafee. Thank you very much.
    And, now, Mr. Manning.

 STATEMENT OF BRENT MANNING, DIRECTOR, ILLINOIS DEPARTMENT OF 
   NATURAL RESOURCES, INTERNATIONAL ASSOCIATION OF FISH AND 
 WILDLIFE AGENCIES; ACCOMPANIED BY PAUL LENZINI, LEGAL COUNSEL

    Mr. Manning. Good afternoon, Mr. Chairman.
    I am Brent Manning, Director of the Illinois Department of 
Natural Resources, chairman of the Association of Fish and 
Wildlife Agencies Ad Hoc Committee on Baiting, Former Director 
of Field Operations for Ducks Unlimited and member of the 
International Executive Committees. I would like to thank you 
for the invitation to testify today on behalf of the 
Association.
    The Association, as you are probably aware, has been a 
strong and consistent supporter of migratory bird conservation 
for more than 95 years. No organization has been more dedicated 
to the protection and sustainable use of migratory bird 
resource than International and its members States.
    As you are aware, State Fish and Wildlife Agencies have 
statutory authority to ensure the conservation of fish and 
wildlife resources within their borders. In fact, through 
cooperative agreement with the Fish and Wildlife Service, most 
State conservation officers enforce both State and Federal 
conservation wildlife laws and regulations.
    We support, and strongly support, changing the standard for 
baiting violations from strict liability to one of ``knows or 
reasonably should know,'' as reflected in H.R. 2863. We also 
strongly support the proposed imposition of liability on those 
who place or assist in the placement of baiting so as to create 
a, quote-unquote, ``baited area.''
    For the past 2 years our ad hoc committee on baiting has 
undertaken an exhaustive review of the migratory bird hunting 
regulations that pertain to baiting. Waterfowl biologists, 
wetland managers, wildlife enthusiasts, agency directors, law 
enforcement officers and hunters provided us with input and 
advice. We recently submitted our recommendations to the 
Service in response to a proposed rule change.
    The one issue that the Fish and Wildlife Service has 
declined to address in its proposed rule is that of strict 
liability, which is the subject, of course, of H.R. 2863. We 
support the replacement of the strict liability standard with 
the standard adopted in 1978 by the U.S. Court of Appeals for 
the Fifth Circuit, commonly referred to as the Delahoussaye 
decision.
    Under the strict liability standard individuals unknowingly 
hunting waterfowl or doves a mile from bait, and without any 
knowledge of the presence of that bait, have been cited. We 
consider this unreasonable, unnecessary and totally 
unacceptable.
    The Sixth Circuit in 1984 characterized the standard in the 
following way, and I quote: ``We concede that it is a harsh 
rule and trust that prosecution will take place in the exercise 
of sound discretion only,'' end quote.
    Furthermore, in the 1978 Delahoussaye case the Fifth 
Circuit Court rejected the strict liability interpretation. 
Instead, the Court required, at a minimum, that the presence of 
bait could reasonably have been ascertained by the 
conscientious hunter. The Court went on to say, ``any other 
interpretation would simply render criminal conviction and 
unavoidable occasional consequence of duck hunting and deny the 
support to those, such as, say, judges, who might find such a 
consequence unacceptable,'' end quote.
    The Fifth Circuit Court does not follow the strict 
liability standard to this day. This bill does not mean that 
hunters will have a free pass to hunt over a baited field. 
Quite the contrary, hunters would be responsible for taking 
reasonable efforts to ensure they are not attempting to take 
migratory game birds by the aid of bait or baiting. Hunters 
should ask the guide, manager or land owner about the presence 
of bait, inspect the hunting area and assess the behavior of 
the hunted birds. Under the proposed standard of liability, the 
hunter will be judged not just on whether he or she knew the 
area was baited, but also whether he or she should have known 
the area was baited.
    This bill would require an officer to prove the hunter's 
intent, nor will this bill require the knowledge on the 
hunter's part. It merely requires that the hunter should 
reasonably have known that the area was baited. This bill will 
not allow a hunter to avoid citation by claiming not to have 
known about the presence of bait. At issue here is whether the 
hunter should have known, either by an inspection of the area 
or by the behavior of the birds. The issue is not whether the 
hunter did or did not in fact know.
    Regarding conviction rates, we are not aware of any 
significant difference in rates of conviction or pleas of 
guilty between States currently under the Delahoussaye standard 
and those that are not. In fact, Fish and Wildlife Agents are 
on record stating that migratory bird baiting cases have 
dropped precipitously in Louisiana during the last decade. The 
agents attribute that decline in part to tougher penalties 
handed down by Federal judges and magistrates, and I would like 
to remind the committee that this crackdown on illegal baiting 
and other activities took place under the ``knew or should have 
known'' Delahoussaye standard of liability, as proposed by this 
bill.
    It has also been alleged that any standard other than 
strict liability will measurably and seriously harm the 
migratory bird resource. There is no scientific credibility to 
that basis of concern. The Fish and Wildlife Service's current 
approach to regulating the impact to harvest on ducks takes 
into account variations in harvest rates caused by fluctuations 
in hunting pressure, habitat, bird population, season links and 
bag limit. This system makes annual adjustments for these 
factors. No waterfowl experts with whom we've consulted, 
including the best and most renowned in the nation, believes 
the adoption of the Delahoussaye standard will result in a 
measurable increase in harvest, but even if it did--and, again, 
there is no evidence that it will--the system would compensate 
by prescribing shorter seasons and/or reduce bag limits, or 
both.
    Opponents of this bill have claimed that the proposed 
minimum form of scienter would apply to all other takings of 
migratory game birds. Examples such as mining companies, or 
cyanide leech, a farmer using harmful pesticides and refining 
spilling oil have been offered. This bill eliminates the strict 
form of liability in baiting cases and replaces it with a 
minimum scienter in such cases, not in all other forms of 
takings.
    In conclusion, I wish to point out that the Service 
specifically addresses the strict liability standard in its 
current rulemaking proposal by stating, and I quote, 
``application of the standard to baiting regulations is of 
concern to many hunters,'' end quote. Nevertheless, the Service 
proposes no change in the application to hunters of the strict 
liability standard.
    I referred earlier to the Katlit decision where the U.S. 
Court of Appeals for the Sixth Circuit characterized strict 
liability in the present context as a harsh rule. The Court 
went on to say, and I quote, ``it is for Congress and the 
Secretary of the Interior to establish and change the policy 
here involved,'' end quote.
    Because the Fish and Wildlife Service declined to take a 
hard look at the application of strict liability hunters 
invading cases, Congress should do so.
    I would like to thank you for the opportunity to share our 
perspectives with you. I do represent those States involved in 
the International Association of Fish and Wildlife Agencies, 
and I would be pleased to address any questions. I would like 
to make one final point, and that is I would like to emphasize 
that it is the opinion of the committee, the ad hoc committee 
on baiting and the Legal Counsel of the International, that 
strict liability cannot be addressed through the Service's 
current rulemaking process. Also, the Service has told us and 
suggested on a number of occasions that strict liability cannot 
be addressed by this rulemaking process, as well.
    Thank you very much, sir, for your time.
    Senator Chafee. I don't quite understand your last point. 
You say that the Fish and Wildlife Service says that the strict 
liability cannot be addressed by regulation?
    Mr. Manning. That is correct, that it cannot be addressed 
by the rulemaking process that they are current undergoing, and 
that's been reported to me by, actually, Mr. Davis, who 
testified earlier.
    Senator Chafee. Why is that so?
    Mr. Manning. If I could, may I ask Mr. Lenzini to respond?
    Mr. Lenzini. Mr. Chairman, my name is Paul Lenzini, and I 
am Legal Counsel to the International Association.
    The proposed rulemaking of the Service states that it does 
not intend to change the strict liability standard. If they 
were on the basis of this proposed rulemaking to do so, it 
would be a violation of the notice and comment provisions of 
the APA. They could address it in a new rulemaking but not in 
this particular rulemaking, we think.
    Senator Chafee. Well, you lost me on that one. Why not?
    Mr. Lenzini. Because when the U.S. Court of Appeals for the 
D.C. Circuit just a couple of years ago in an Opinion by Judge 
Starr held that once a clear signal is sent, that a proposal of 
an agency does not intend to make a certain change, it cannot 
on the basis of that proposed rulemaking make the change 
because people would have been invited to believe that no 
change was in the offing.
    In this particular case, the agency has very clearly 
stated, sent a very clear signal, that it does not intend to 
change strict liability.
     Now, in the future, on another rulemaking, it could 
certainly do that, but on this outstanding rulemaking, we 
believe, it could not do so without violating the notice and 
comment provisions of the APA. I would be glad to supply more 
information----
    Senator Chafee. What would be the point of going through 
all this effort if----
    Mr. Lenzini. The point would be the notice and comment 
provisions of the APA, which require that an agency explain 
what it has in mind so that people can comment.
    Now, if the agency says, ``We do not intend to change 
something,'' then people will not be led to comment one way or 
the other. There is authority in the Circuit, Senator Chafee, 
for that proposition. I would glad to supply it.
    Senator Chafee. Well, they could--if they went through 
another round of notice, they could, if they wanted to.
    Mr. Lenzini. Absolutely.
    Senator Chafee. All right.
    Now, Mr. Inkley, in your testimony you said that you're not 
necessarily against what is proposed in this legislation. 
Nonetheless, you are opposed to it because you don't want to 
take this process.
    Is that a fair comment about what you said?
    Mr. Inkley. We have indicated that we believe that some 
changes need to be made to this standard of strict liability, 
but that it should be done at the administrative level rather 
than the legislative level. Our concern is that this is a 
process of regulations that has to be very finely tuned, and we 
are a bit concerned that if you take a legislative action, it 
will be very difficult for the Service to make appropriate 
adjustments based on their experience of enforcing the changes.
    Senator Chafee. Ms. Hood, you indicated--I suppose we could 
say that you are suggesting we're starting down a slippery 
slope here if we should approve this, and you thought the 
courts might indicate, such as the Rhode Island oil spill that 
took place in 1996, they might not--and there they did hold 
them strictly liable--and your suggestion that perhaps if we 
did this legislation, the strict liability standard might not 
be there.
    I'm not sure I follow your reasoning on that. If we should 
go to the trouble of saying such and such is not strict 
liability, then it seems to me that the balance of the offenses 
would be strict liability. In other words, if you haven't 
specifically gone out and changed--we're indicating here that 
you have to have a statute to change what is a strict liability 
situation now, and by not dealing with the oil spill from 1996, 
we would in effect be saying strict liability does apply.
    Do you follow that?
    Ms. Hood. Yes, I think that's a good point. I think that, 
with the caveat that I'm not an attorney or a judge, to my 
knowledge if the legislation were adopted, the MBTA would be 
the only law that would have a scienter requirement for petty 
offenses. For small offenses, like for baiting, we would have a 
scienter requirement. You could see where judges might reason 
that it's in the MBTA that scienter is required for these small 
violations of baiting, and that it could be applied to other 
violations of the MBTA.
    My point in bringing this up is that we're opening up a 
Pandora's box here by changing it legislatively, that by 
promulgating Congressional intent to have the scienter 
requirement we could be going down a slippery slope. I really 
hope that that would not happen, but I do think it is 
potentially a Pandora's box, especially combined with some of 
the other effects that the legislation might have as well on 
baiting.
     Senator Chafee. What would you say, Mr. Inkley, or, Ms. 
Hood, if we had a sunset provision in here? In other words, try 
it. Mr. Manning has indicated--I think I'm quoting you properly 
from your testimony--that there is no suggestion that in the 
Fifth Circuit area where there is not strict liability that the 
bag--that the take is greatly increased, but maybe it's a risky 
business and one thought might be that we would have it for 5 
years, whatever it might be, and then it would sunset and 
Congress could then re-enact it, if it so chose, or not.
    What would you say to that?
    Mr. Inkley. I would be happy to address that, Mr. Chairman. 
We think that the sunsetting proposal that you've suggested 
would be ideal for the administrative process, not for the 
legislative process. The administrative process is specifically 
designed to allow the regulatory agency to have the flexibility 
to address the regulations as they see appropriate. That is 
another reason that we would support that this be done at the 
administrative level.
    By putting in a sunset provision, it enables the Fish and 
Wildlife Service to study the potential impacts, both on 
hunters and on the migratory bird resource and make 
adjustments, as necessary.
    Senator Chafee. But Ms. Metaksa has pointed out how long 
this has all taken, and I know you're here in the best of 
spirits but how do we know how Senator Breaux and others who 
are deeply concerned about it, how do they know anything is 
going to happen? It has taken forever for you folks to get as 
far as you have, and, you know, say something happens on 
October 1st--I guess that's the deadline--but then you have to 
sift through all that information, and this might go on for 
another 7 years.
    Mr. Inkley. Well, I would certainly hope that it wouldn't 
go on for another 60 or 70 years, but I think there is an 
administrative process underway. There is public comment, and 
many people have responded to that. I think it would be wrong 
for us to simply throw all that out, simply ignore it, and then 
proceed with legislative action at this time. I think we should 
see the administrative process through to completion, allow the 
Fish and Wildlife Service to take into consideration all the 
comments that they have received, and, perhaps, and hopefully 
they would come forward with a proposal to make the changes at 
the administrative level.
    Senator Chafee. You may have misunderstood me--I didn't say 
60 or 70 years--7 years is what I said. Maybe you said 70--
anyway, I said 7.
    Well, what did you say, Ms. Metaksa. Am I pronouncing that 
right?
    Ms. Metaksa. Yes, sir, you did a good job.
    Senator Chafee. Finally. What do you say to the sunset 
provision?
    Ms. Metaksa. I think that sunset provisions can be very 
useful. I would like to see it resolved legislatively because 
I, like a lot of people in the Congress, have become frustrated 
waiting for a regulatory solution to this. I agree with Mr. 
Manning that the current proposals do not address the baiting 
issue so we would have to go through another round of possible 
proposals, and the record of the Fish and Wildlife Service is 
pretty poor in addressing this issue. They seem to ignore it 
every time they're told to take a look at it.
    So I have no problem with sunset provisions--it gives you a 
chance to take a look at it--if that is the way that Congress 
would like to go. I just think we need to get it done soon.
    Senator Chafee. Okay, well, thank you all very much for 
coming.
    You've got a point?
    Mr. Manning. Yes, Senator, I would like to make one final 
point, if you would allow me?
    Senator Chafee. Sure, go ahead.
    Mr. Manning. In looking at the package that the Fish and 
Wildlife Service is reviewing, that package takes into 
consideration much biology of vegetative manipulation, 
etcetera, etcetera. Strict liability was one component, which 
was left out of the package, therefore, the need for some level 
of codification through the legal process that we have before 
us.
    Senator Chafee. All right, thank you.
    Does anybody else have a comment?
    [No response.]
    Senator Chafee. Okay, well, thank you all very much for 
coming. We appreciate it and sorry there were the delays there.
    [Whereupon, at 12:15 p.m., the committee was adjourned, to 
reconvene at the call of the chair.]
    [Text of H.R. 2863 and additional statements submitted for 
the record follow:]




     Statement of Hon. Trent Lott, U.S. Senator from the State of 
                              Mississippi
    Mr. Chairman, I want to thank you for the opportunity to show my 
support for legislation seeking to amend the Migratory Bird Treaty Act. 
I appreciate the committee's willingness hold hearings and mark up this 
bill, which was overwhelmingly passed by the House of Representatives 
this summer.
    Mr. Chairman, Members of the Environment and Public Works 
Committee, for the past 80 years there has been relatively little 
controversy over the U.S. Fish and Wildlife regulations governing 
migratory birds. In fact, the enforcement of these regulations has had 
a beneficial impact on their populations. One regulation, however, has 
sparked tremendous debate and has been inconsistently enforced across 
the United States.
    This regulation states that if an individual is hunting over a 
baited field--whether he knows it or not--he is guilty. There is no 
defense and there is no opportunity to present evidence in a case. If 
there is bait, the hunter is guilty. Automatically guilty. It does not 
matter how much bait was present--a handful or a field-full. It does 
not matter if the bait actually attracted the birds or not. It does not 
matter how far the bait is from the hunting venue. If the bait and the 
hunter are there simultaneously, the hunter is guilty. Case closed.
    I have been a hunter for many, many years, and I agree that baiting 
a field is an unacceptable action. However, I maintain that continuing 
to apply this strict liability legal standard to baiting cases is wrong 
and unfair. In fact, I believe that it violates one of our most 
precious and fundamental constitutional protections--that a person is 
innocent until proven guilty.
    Mr. Chairman, this strict liability standard is unreasonable. 
During this hearing, I hope that the committee hears from those who 
have been unfairly trapped by this unbending regulation. I also hope 
that you will also hear from those who have stopped hunting migratory 
game birds because they do not want to run the risk of being convicted 
of a Federal crime.
    Mr. Chairman, I support legislation to change this regulation, 
especially legislation that amends the standard to state that a hunter 
is guilty if he ``knows or reasonably should have known'' that he was 
hunting on a baited field. My colleagues, Senators Cochran and Breaux 
have shown tremendous leadership in introducing a bill that would fix 
this problem. I commend their efforts and congratulate them on tackling 
this issue head-on.
    I would also like to recognize and thank Rep. Don Young, chairman 
of the House Resources Committee and avid hunter, for his dedication to 
this issue. Not only is Chairman Young a renowned hunter, he is an able 
legislator. I hope that we can push Migratory Bird Act Reform across 
the Senate finish line, completing the good work he has already begun 
in the House.
    Before I close, Mr. Chairman, I want to draw the committee's 
attention to one other issue involving baiting. In Mississippi, we do 
not have a problem with strict liability. Our problem revolves around 
the top-sowing of wheat for dove hunting and moist soil management for 
duck hunting. I hope that the committee, as well as my fellow 
Southeasterners, Mr. Cochran and Mr. Breaux, will remain committed to 
addressing these issues for the benefit of hunters in our states.
    On that note, Mr. Chairman, I want to again thank you and the 
committee for dedicating time to this issue and for marking up and 
reporting out this bill as soon as possible. Let's finish the good work 
started by the House. Let's take the unbending stringency out of these 
baiting regulations. Thank you.
                               __________
 Statement of Kevin Adams, Chief, Office of Law Enforcement, U.S. Fish 
            and Wildlife Service, Department of the Interior
    Thank you for the opportunity to discuss the Administration's 
position on H.R. 2863, the Migratory Bird Treaty Reform Act of 1998, as 
passed by the U.S. House of Representatives. As passed, this bill would 
eliminate the current ``strict liability'' standard used in enforcing 
waterfowl baiting regulations and make it illegal for any person to 
place or direct the placement of bait on or adjacent to an area being 
hunted.
    The Department of the Interior shares your concern for the need to 
clarify and simplify the migratory game bird hunting regulations 
regarding baiting. On March 25, 1998, the U.S. Fish and Wildlife 
Service published in the Federal Register for public review and comment 
a proposed rule concerning hunting migratory birds by baiting or using 
baited areas. This rulemaking process was initiated after extensive 
review of the current regulations and in response to public concerns 
about interpretation and clarity of those regulations, especially with 
respect to current migratory bird habitat conservation practices. The 
Administration believes that H.R. 2863 will disrupt the Agency's 
ongoing decisionmaking process and is opposed to the bill.
    The Migratory Bird Treaty Act, which implements international 
treaties with four of our neighboring countries for protection and 
conservation of migratory birds, authorizes the Secretary of the 
Interior to determine by regulation ``. . . when, to what extent, if at 
all, and by what means, it is compatible with the terms of the 
conventions to allow hunting. . . ''
    Federal baiting regulations were established in 1935 when waterfowl 
populations suffered from drought, degradation of habitat, and over-
harvest by hunting. The two hunting practices primarily responsible for 
over-harvest were the use of bait and live decoys, both of which quite 
effectively lure birds to waiting guns. Of all the factors affecting 
migratory bird populations, these two can be controlled or curtailed by 
enforcement actions.
    Enforcement of the baiting regulations include a ``strict 
liability'' doctrine. Under strict liability, the government does not 
need to prove that the hunter knew he or she was violating the law. 
H.R. 2863, as passed by the House, would eliminate the ``strict 
liability'' standard and replace it with the ``know or reasonably 
should have known'' standard. This new standard will require Service 
law enforcement officers to prove that a person knows or reasonably 
should have known that the area in which he or she was hunting 
migratory birds was baited before it can establish that a violation 
occurred. This bill will also include this language in the Migratory 
Bird Treaty Act, rather than in the Code of Federal Regulations, where 
the current prohibitions are found.
    This concludes my statement. I would be glad to answer questions.
                                 ______
                                 
  Responses by Kevin Adams to Additional Questions from Senator Graham
    Question 1(a): Under current law, what type of discretion can your 
agent's use in enforcing baiting regulations?
    Response: Our agents are often required to exercise discretion in 
the course of their duties, including during enforcement of the baiting 
regulations. Decisions to issue a Notice of Violation or refer a case 
for prosecution are based on circumstances unique to each situation. 
These circumstances may include efforts made by a hunter to comply, a 
hunter's level of experience, an agent's prior intelligence about the 
area, including human and bird activities, the actual situation of the 
bait, and local rules of the courts. Options range from issuing a 
verbal or written warning, charging a single hunter, charging multiple 
hunters, or charging an individual who claims responsibility.

    Question 1(b): Do you provide any written guidance to your agents 
to limit or guide the extent to which individual agents can use 
discretion in enforcing your regulations?
    Response: Yes. Both training and guidance assist individual agents 
in determining the extent to which they may use discretion. The 
guidance received by agents includes 40 hours of mandatory Special 
Agent In-Service training each year. Guidance is also provided at both 
the Regional and Washington Office levels in the form of Law 
Enforcement Memorandums that contain policy statements on specific 
migratory bird hunting issues.

    Question 2: There has been discussion that modification of existing 
migratory bird law with the ``known or should have known'' standard 
that we are addressing today could be the first step down a road where 
``intent'' must be proven before enforcement of any migratory bird take 
or almost any environmental regulation. Do you believe these statements 
are valid?
    Response. Yes. The current proposal will include the knows or 
should have known standard only in the baiting provisions of the 
Migratory Bird Treaty Act. The Service is concerned that such a change 
to the MBTA would lead to other changes in the MBTA, lessening the 
protection currently afforded to migratory birds. The effects of hunter 
impact on the take of migratory game birds (waterfowl, doves, etc.) do 
not compare to the significant numbers of migratory game and non-game 
birds (including raptors, songbirds, eagles) routinely killed by oil 
spills, pesticides, electrocution, contamination, aquaculture 
operations, or habitat development, which also requires a strict 
liability standard for enforcement. In fact, as a result of awareness 
of strict liability, organizations have taken actions to prevent 
mortality. These actions include changing the manufacture and use of 
pesticides that are toxic and deadly to migratory birds; developing 
measures that prevent electrocution from power line strikes and 
contamination at petroleum pits, open oil pits, and cyanide leach 
operations; and avoiding impact to birds during habitat development. 
The Service is concerned that the courts may look at changes to the 
baiting section of the statute and may lead the business, industrial, 
and agricultural communities to seek similar changes.
                                 ______
                                 
     Responses by Kevin Adams to Additional Questions from Senator 
                               Lautenberg
    Question 1: What is it about baiting that is so objectionable that 
we should keep the strict liability standard in prohibiting it?
    Response: The baiting regulations support the spirit of fair chase. 
Hunters who exhibit and practice the spirit of fair chase in pursuit of 
wild game are required to be knowledgeable of the game they are in 
pursuit of. Baiting provides unnatural concentrations of birds, 
resulting in much greater opportunities for hunting success than would 
otherwise be the case. Our seasons and bag limits are predicated upon 
standard hunter success rates. Baiting gives those who engage in it an 
artificial advantage over those who do not.
    Baiting of migratory birds by unethical hunters has become so 
sophisticated that it has become difficult, if not impossible for of 
ricers to substantiate a violation. Agents must utilize the full range 
of criminal law enforcement techniques to obtain evidence of bait, 
including expensive and time-consuming round-the-clock surveillance and 
undercover techniques, to meet one of many statutory responsibilities. 
In many instances, there are simply an insufficient number of law 
enforcement agents, even in cooperation with state fish and wildlife 
law enforcement officers, to effectively substantiate knowledge of 
baiting by the hunter, reducing the standard for violations could well 
increase the number of hunters who engage in the practice.

    Question 2: Besides baiting, what other activities are misdemeanors 
under the Migratory Bird Treaty Act under a strict liability standard?
    Response: All Migratory Bird Treaty Act offenses are covered by 
strict liability and are misdemeanors except for situations in which 
the individual (or business) knowingly takes with the intent to sell, 
offer to sell, or barter, in which case the violation is a felony.
                               __________
Statement of Douglas B. Inkley, Senior Scientist and Special Assistant 
             to the President, National Wildlife Federation
    We appreciate this opportunity to testify before the Senate 
Committee on Environment and Public Works regarding H.R. 2863, the 
Migratory Bird Treaty Reform Act. The National Wildlife Federation 
(NWF) is the nation's largest conservation education organization. 
Founded in 1936, NWF works to educate, inspire and assist individuals 
and organizations of diverse cultures to conserve wildlife and other 
natural resources and to protect the Earth's environment in order to 
achieve a peaceful, equitable, and sustainable future.
    This nation is fortunate to have a rich avian diversity of over 600 
native species, ranging from hummingbirds and warblers, to ducks and 
geese, to our national symbol, the magnificent bald eagle. Birds have 
been and continue to be a tremendous historic, aesthetic, recreational 
and economic resource to the United States and its citizens. Of 
particular relevance to today's hearing are waterfowl and waterfowl 
hunting. In 1996, over three million people hunted for migratory birds 
according to the National Survey of Fishing, Hunting, and Wildlife-
Associated Recreation conducted by the U.S. Fish and Wildlife Service 
(Service).
    The conservation of this nation's waterfowl resource has long been 
of interest to NWF. We worked with the Service to prohibit the use of 
toxic shot in waterfowl hunting because of the mortality caused to 
birds, especially waterfowl and birds of prey, by the ingestion of 
spent lead shot. NWF supports the North American Waterfowl Management 
Plan and worked hard to assist Congress in passing the North American 
Wetlands Conservation Act. Furthermore, in the interest of conserving 
waterfowl habitat, among other purposes, we support strengthening the 
Clean Water Act and the Section 404 wetlands regulatory program. 
Finally, on behalf of NWF, I am a member of the International 
Association of Fish and Wildlife Agencies' Ad Hoc Committee on Baiting, 
which has addressed this issue.
    NWF is here today not only because of our interest in conserving 
the migratory bird resource, but also because of our long-standing 
support for properly regulated utilization of wildlife. Our nation's 
migratory bird resource must be properly managed and protected to 
provide a continuing rich and diverse avian heritage for future 
generations. H.R. 2863, the Migratory Bird Treaty Reform Act, passed by 
the U.S. House of Representatives on September 10, 1998 and the subject 
of today's hearing, concerns the regulations for hunting of migratory 
birds, particularly with respect to baiting of waterfowl.
    The placement of bait to facilitate taking of waterfowl has long 
been illegal under the Migratory Bird Treaty Act. This has long been 
accepted as consistent with the spirit of `fair chase' as well as 
necessary to facilitate the maintenance of waterfowl populations. As 
waterfowl are particularly susceptible to baiting, NWF believes not 
only that baiting of waterfowl is unethical for hunting purposes, but 
should continue to be illegal as well. However, at present, a hunter 
who has no knowledge of a baited situation or that hunted birds are 
influenced by bait can be found in violation of the baiting 
regulations. With this in mind, we understand and support fine-tuning 
of the baiting regulations to ensure fairness to hunters while 
protecting the migratory bird resource from being hunted over bait. 
Instead of ' strict liability', H.R. 2863 would require that ``the 
person knows or reasonably should know that the area is a baited 
area.''
    While the change seems appropriate for protecting innocent hunters, 
it is quite possible that the change could open a loophole in the law, 
thereby facilitating unethical hunters (poachers) in attracting 
waterfowl by baiting, and making it more difficult for law enforcement 
officers to successfully prosecute them. This in turn, could have a 
significant impact on the waterfowl resource. As the Service testified 
on this issue last year in the U.S. House of Representatives, they do 
not know what impact this will have on the waterfowl resource.
    NWF opposes H.R. 2863 on the grounds that changes to migratory bird 
regulations are most appropriately established within the regulatory 
rather than legislative arena. These regulations require complex 
analysis and implementation, with special knowledge by trained 
professionals in wildlife conservation and law enforcement. 
Furthermore, the Service needs the flexibility, which is impossible to 
obtain in the legislative process, to make necessary regulatory 
adjustments as dictated by unpredictable and highly variable 
environments and conditions inherent to the management of the migratory 
bird resource. Managers must be able to adjust quickly in order not to 
compromise the control or management of legal harvest and the waterfowl 
resource itself.
    Furthermore, the Service is currently engaged in a public review 
process and has solicited comments from the general public regarding 
the issues addressed in H.R. 2863. While the Service has proposed no 
change to the regulations, which has undoubtedly inspired Congress to 
take up this issue, the Service is still soliciting public comments 
(until October 1, 1998). Legislative action at this time would render 
moot, and in fact interrupt mid-stream, the public review process which 
is underway. Legislative action at this time is premature.
    In summary, the NWF urges the U.S. Fish and Wildlife Service to 
make regulatory/policy changes to the migratory bird regulations 
pertaining to baiting, and that Congress not take legislative action.
    Thank you again for this opportunity to testify.
                               __________
   Statement of Tanya K. Metaksa, Executive Director, National Rifle 
             Association, Institute for Legislative Action
    Mr. Chairman, on behalf of the National Rifle Association of 
America, I appreciate the opportunity to testify on H.R. 2863, the 
Migratory Bird Treaty Reform Act. This Act enjoys the wholehearted 
support of an Association that has safeguarded hunting and scientific 
wildlife management for more than a century.
    With over 2 million hunter-members, NRA believes ardently that the 
conservation of our migratory bird resource is vital. It is a core NRA 
belief that hunters are called to be faithful stewards of America's 
wildlife bounty. Hunting is an American cultural heritage--one of our 
nation's most precious--but this noble pursuit requires us to commit 
ourselves to sustaining healthy, vibrant wildlife populations. In that 
spirit, the NRA embraces laws and regulations that safeguard both sport 
hunting and scientific wildlife management. That includes laws carrying 
criminal sanctions, and NRA has always supported fair, consistent and 
effective enforcement of those laws throughout our nation.
    Eighty years ago, hunters clamored for passage of the Migratory 
Bird Treaty Act of 1918. Small wonder. At that time, wildlife was being 
eradicated, and sport hunters were in danger of losing not only their 
noble pursuit--but an even greater nobility--America's wildlife 
resources. The problem was not the American hunter. The American hunter 
numbered among the victims. The problem was the voracious appetite of 
the marketplace at the close of the 19th century. Mercenaries for both 
the marketplace and the milliners of the era all but consumed entire 
populations of white-tail deer, bison, waterfowl and other species. It 
has taken decades for American hunters and our allies in wildlife 
biology and game management to bring these species back, some from the 
brink of extinction.
    While they migrated, when they wintered over, wherever they were 
seen, waterfowl were slaughtered. The most threatened species of the 
era are now the very populations hunters have worked so hard to 
nurture--snow geese, wood ducks, Canada geese. The marketplace 
mercenaries used devices like the ``punt gun.'' Weighing as much as 120 
pounds with a bore of up to 2\1/2\ inches, it could bring down as many 
as 100 birds with a single shot. The NRA termed this ``slaughter.'' 
Clearly, it was not hunting. Worse yet were battery guns, crude boxes 
akin to organ pipe containments. From the boxes protruded a dozen or 
more punt gun barrels. In the 1870's, as many as 15,000 canvasbacks 
were taken each day by market mercenaries on the Chesapeake Bay alone.
    That was the backdrop for the 1918 Act. I urge this august body to 
consider who made conservation history in this dark era by breathing 
life into the 1918 Act. It was hunters--hunters motivated by the very 
core principle of the outdoor ethic--respect for wildlife.
    Indeed, the heart of the American hunter was at the very center of 
a wave of legislation that swept America at the time. Hunters led this 
movement. Hunters organized their fellow hunter-conservators, mounting 
what we would term today as grassroots pressure on elected 
representatives to stop the strip mining of America's sharply dwindling 
wildlife resources. But when Maryland established ``rest days'' to ease 
waterfowl hunting pressure in 1872, the marketplace mercenaries took no 
rest. When the hunters and naturalists of New England pressured 
legislatures there to list wood ducks as protected, the mercenaries 
either ignored the listing or simply moved their batteries elsewhere.
    Because of their migratory nature, waterfowl could not be 
effectively conserved by one action in one state and a similar action 
in another. Federal regulation seemed the most appropriate course. 
Among the results--the Migratory Bird Treaty Act of 1918.
    Eighty years have transpired since hunters bequeathed this nation a 
landmark, visionary wildlife conservation law. And in those 80 years, 
just one aspect of this sweeping regulation stands out as the center of 
perpetual controversy. CFR Part 20.21. A prohibition of hunting over, 
or with the aid of, bait.
    While the words themselves do not embody a strict liability 
standard of guilt, most courts have treated violations of the baiting 
prohibition as a strict-liability criminal offense. The 1918 Act 
created a system to conserve wildlife and protect sport hunting. But 
today, the ``system'' the American hunter helped put in place does not 
care who placed the bait. Shouldn't it? To that ``system,'' it doesn't 
matter where the bait lies with respect to the hunter's location. To 
that ``system,'' it doesn't matter if the bait actually lures a single 
bird to the hunting site. All that matters is whether an officer 
testifies that, yes, bait was present. If so, the hunter is guilty.
    Strict liability does not allow the hunter to present convincing 
evidence that he or she did not know or reasonably could not have known 
that bait was present. The great great grandchildren of the sportsmen 
and naturalists responsible for this 80-year-old Act are being deprived 
the opportunity to mount any defense--a condition their forebears would 
find absurd and unacceptable.
    Over the years, we are thankful that Congress has held hearings on 
the need to reexamine the issue of strict liability. In 1990, the U.S. 
Fish and Wildlife Service established a Law Enforcement Advisory 
Commission to look at an array of enforcement issues within the 
Service's jurisdiction. One of the Commission's recommendations: create 
a task force to review the baiting regulations. Action taken? None. The 
task force was never created.
    Critics of H.R. 2863 say reform of the 1918 law is unnecessary. 
They suggest that if American hunters have any problems with the 
baiting regulations, the rulemaking process is the avenue to address 
those problems, not the legislative process. This has a very reasonable 
ring to it, but when it comes to the serious issue of strict liability, 
the ring is hollow indeed.
    In 1991, the Fish and Wildlife Service published a notice of intent 
in the Federal Register to review the baiting regulations. In our 
comments, NRA encouraged the Service to act on its own Advisory 
Commission's recommendation: namely, create the task force you called 
for in 1990. We also asked that the strict liability interpretation of 
the regulations be replaced with clear regulatory language that adopts 
a standard of reasonable diligence. (That reasonable standard is now 
reflected in H.R. 2863.) The response from the Service? There wasn't 
any. Nothing was heard. Two years later, in 1993, the Service published 
a supplemental notice of review--but made no mention of the strict 
liability issue.
    For 3 more years, the Service was silent on the issue--and 
remember, this is the only serious issue of dispute over the 1918 law 
for 8 decades. Yet, nothing was heard from the Service until 1996, when 
it published another notice of intent on another aspect of the baiting 
regulations. The NRA recommended that the focus be broadened to include 
the strict liability issue.
    This past Spring, prompted by Congressional action on earlier 
versions of H.R. 2863, the Fish and Wildlife Service proposed a rule to 
amend the baiting regulations. The Service, however, excluded from 
public review and comment the very crux of the baiting issue from the 
perspective of the American hunter: adoption of the ``knows or 
reasonably should know'' standard--termed the Delahoussaye standard--
now embodied in H.R. 2863.
    We must note that the decision to sidestep this important issue 
lies in stark contrast to the views expressed by the Service's own 
witness at a Congressional oversight hearing in May 1996. At that 
hearing, a Service witness, in response to query, responded that the 
Delahoussaye standard could be acceptable as the standard for criminal 
liability. Its unwillingness to follow-through and support adoption of 
the Delahoussaye standard can mean only one thing: the Fish and 
Wildlife Service is looking to you, the U.S. Congress, to resolve the 
issue. Tacitly, the Service is saying, while Delahoussaye is 
acceptable, we prefer it be codified through legislation, not 
rulemaking.
    Those opposed to H.R. 2863 claim that requiring law enforcement to 
prove intent of the hunter to break the law would make baiting cases 
impossible to prosecute. We believe there is substantial evidence to 
the contrary. Under this bill, law enforcement would only need to prove 
that a person knew or reasonably should have known that he or she was 
hunting over bait. Even if a hunter could prove in court that he or she 
had no intent to hunt over bait, the hunter could still be found guilty 
if the court determined that due diligence was not applied in examining 
the hunting area for the presence of bait.
    Hunters have been prosecuted in cases where they could not 
reasonably have known that a field was baited. In some cases, the 
quantity of bait was minute. In others, the bait was half a mile from 
where they were hunting. This was the very reason why, in 1978, the 5th 
Circuit Court of Appeals ruled in favor of the hunter in United States 
v. Delahoussaye, 572 F.2d 910 (5th Cir.1978). The court recognized that 
there are situations exceeding reasonable expectations of human 
responsibility. H.R. 2863 gives the American hunter the opportunity to 
defend himself or herself in court, a right afforded all other criminal 
defendants. American hunters should be treated as innocent until proven 
guilty--not be proven guilty irrespective of facts.
    The hearing held last year in the House Resources Committee on the 
predecessor to H.R. 2863 provided ample evidence that the 3 states that 
comprise the 5th Circuit--Louisiana, Mississippi and Texas--have 
experienced no hardship in prosecuting baiting cases. A conviction rate 
of 88 percent belies dire warnings that this bill would undermine the 
resource. Frankly, the Fish and Wildlife Service has had 20 years to 
challenge the Delahoussaye ruling if it truly believed that the 
standard was having a detrimental impact upon law enforcement to 
perform its duty or upon the Service's ability to protect the resource.
    H.R. 2863 does not remove the prohibitions against baiting. Rather, 
it ensures that such prohibitions are enforced fairly. As the court 
acknowledged in Delahoussaye, unless a hunter can be held to a 
reasonable standard of responsibility, criminal conviction can become 
an unavoidable consequence of duck hunting. Rules should be clear and 
understandable so that hunters, farmers, landowners and professional 
guides who intend to comply with the law can readily do so. Above all, 
this bill achieves that objective while preserving the lofty goals and 
objectives for migratory bird conservation our great great grandparents 
struggled to enact.
    In summary, H.R. 2863 continues to prevent the use of bait in 
migratory bird hunting. It preserves the fundamental principle of 
``fair chase.'' It does not weaken any of the protections for our 
migratory bird resource. It prevents the irresponsible--the criminal--
to escape prosecution. It provides a balanced solution to our country's 
statutory and treaty obligations to protect and conserve migratory 
birds while meeting our fundamental responsibility to protect the 
rights of our citizens to fair and equitable enforcement of laws.
    H.R. 2863 lays on the shoulders of American hunters a fair and 
reasonable requirement to take responsibility for their actions afield. 
Hunters welcome this burden. Indeed, one of the great contributions 
American hunters make to the greater American culture is the outdoor 
ethic. In A Sand County Almanac, Aldo Leopold, a Great American hunter 
and naturalist, wrote,
    ``The hunter has no gallery to applaud or disapprove of his 
conduct. Whatever his acts, they are dictated by his own conscience. It 
is difficult to exaggerate the importance of this fact. Voluntary 
adherence to an ethical code elevates the self-respect of the 
sportsman. . . ''
    H.R. 2863 is a tribute to the hunters and conservationists who 
created the Migratory Bird Treaty Act of 1918. When it becomes law, NRA 
is confident of our continued success in conserving America's wildlife 
resource, because that is a duty of every American hunter.
    There can be no passion to hunt without the passion to conserve, 
and that sentiment springs from the heart of the American hunter.
                               __________
Statement of Laura C. Hood, Director, Science Department, Defenders of 
                                Wildlife
    Mr. Chairman, thank you for the opportunity to testify before your 
committee this morning regarding restrictions against hunting by using 
bait, as prohibited under the Migratory Bird Treaty Act of 1918. My 
name is Laura Hood and I am Director of the Science Department at 
Defenders of Wildlife (Defenders), a non-profit conservation advocacy 
group consisting of over 250,000 members and supporters. Defenders is 
headquartered in Washington DC, with field offices in Montana, Alaska, 
Oregon, Arizona, and New Mexico. Defenders' mission is to protect 
native wild animals and plants in their natural communities.
    As an organization that is committed to science-based protection 
and sustainable management of migratory birds, Defenders of Wildlife 
opposes H.R. 2863. By changing the standard of proof for prosecuting 
hunters who use bait from strict liability to a ``knew or should have 
known'' (i.e., scienter) standard, H.R. 2863 would cripple enforcement 
of this important prohibition against baiting. In effect, this change 
would provide a huge loophole for hunters who use unethical baiting 
practices, overturn 62 years of case law, and negatively impact bird 
populations across the country. Most importantly, this legislative 
change requires careful scrutiny and expanded analysis of its potential 
impact on bird populations, not accelerated decisionmaking by Congress. 
Finally, legislative action is not necessary right now, because the 
U.S. Fish and Wildlife Service, working with a number of conservation 
groups and the public, is in the middle of rulemaking on this issue.
    H.R. 2863 with its ``knew or should have known'' standard of proof 
is opposed by numerous conservation organizations, including the 
American Bird Conservancy, the Izaak Walton League, the National 
Audubon Society, and the Humane Society of the United States. Like 
Defenders, a number of those groups are not anti-hunting organizations. 
In addition, the Secretary of Maryland's Department of Natural 
Resources opposes the legislation, and has sent a letter on the matter 
to the entire Maryland Congressional Delegation. In my comments today I 
will emphasize three key points. First, changing the strict liability 
standard will curtail enforcement against baiting. Second, there is no 
immediate crisis to address through legislation, instead we must take 
enough time to examine the potential impacts of this change on 
migratory bird populations and the prevalence of baiting. Third, there 
is no need for legislation because the matter is being dealt with 
administratively through an open, public process.
    First, I am concerned that enforcement against hunters who use bait 
will be crippled by this legislative change. For over 60 years, Federal 
courts have interpreted the MBTA as imposing strict liability for 
misdemeanor violations, including hunting birds over bait. By changing 
the strict liability standard to the scienter standard (that the hunter 
``knew or should have known'' about the bait), H.R. 2863 will make it 
very difficult for enforcement officers to prove that a hunter had such 
knowledge. As U.S. Magistrate Judge Frederic N. Smalkin, District of 
Maryland, wrote in a statement to Congress in 1984,

  ``. . . in addition to being a shield for the innocent, such a 
    requirement could be a windfall for the guilty, in view of the 
    difficulty of proving scienter beyond a reasonable doubt . . . the 
    Government would have to come up with some direct proof of 
    participation in the baiting, ownership of the property, or some 
    other circumstance directly proving scienter if it were made an 
    express element of the offense. It would appear to me from my 
    practical perspective that the requirement of proving scienter 
    would effectively curtail enforcement of the prohibition of 
    baiting.''

Judges have repeatedly upheld the strict liability standard, in light 
of the practical difficulties of proving that a hunter knew about the 
presence of bait. Over the last 62 years of case law, hunters and 
enforcement officers have understood this unambiguous and effective 
standard of proof.

    As judges, wildlife officers, and the Fish and Wildlife Service 
have stated repeatedly, passing H.R. 2863 will protect hunters who 
purposely bait birds to the gun. Hunting over bait violates the spirit 
of fair chase and is unsportsmanlike. Birds can be so attracted to bait 
and focused on the abundant food resources that they do not perceive 
danger from nearby hunters. This legislation would protect hunters who 
easily kill birds that are virtually drunk from food--if caught, the 
hunters only have to claim that they did not know that bait was 
present. Other hunters will actually have a disincentive to find out if 
a field is baited before they hunt there. Moreover, hunters using bait 
may also exceed their bag limits. In light of the difficulties of 
enforcing baiting restrictions with the scienter requirement, it is no 
surprise that the Federal Wildlife Officers Association also opposes 
H.R. 2863.
    Part of the wildlife officers' concern is that the doctrine of 
strict liability applies not only to baiting prohibitions, but also to 
other forms of take of migratory birds. They worry that if H.R. 2863 
becomes law, judges could rule in the future that the new scienter 
requirement extends to other types of cases, including all of the 
misdemeanor provisions of the Migratory Bird Treaty Act. This could 
have far-reaching consequences, indeed. For example, birds are 
attracted to open oil pits, and when oil companies do not cover the 
pits, hundreds of birds can die in them. In many cases, it would be 
difficult to prove that the company knew that their open pits would 
kill migratory birds, and enforcement would be severely curtailed. This 
can apply to oil spills as well. In 1996, a terrible oil spill occurred 
along Rhode Island's coast. For 8 days, dead and injured migratory 
birds washed up on shore and were retrieved--the final count of dead 
birds that could be recovered was 300. In January 1998, the owners of 
the oil barge were sentenced to a $3 million fine for violating the 
Migratory Bird Treaty Act. The strict liability standard was essential 
to enforcement of the Act in that case. Do we want this to happen 
again?
    In addition to poisoning by oil spills, strict liability is 
important for penalizing companies that kill birds through pesticide 
poisoning, building construction, and power line strikes. Awareness of 
the strict liability standard induces companies in these and other 
industries to take measures to prevent killing migratory birds. 
Changing the strict liability standard could result in an increase in 
all kinds of activities that cause bird kills.
    In light of the potentially dramatic effects of changing the strict 
liability standard and the opposition by conservation groups and 
wildlife officers, we must ask ourselves why this change is being 
considered. There is no crisis that necessitates a drastic change by 
Congress. True, we must be sympathetic to the hunter who was invited to 
hunt on someone's property and then receives a misdemeanor for baiting 
when he or she did not know that the bait was present. In cases like 
these, however, the judicial system provides a crucial check by 
minimizing the sentence for such an unwitting offender. We simply do 
not need a quick but potentially far-reaching change right now. 
Instead, we have every reason to carefully consider the arguments for 
and against the change. The U.S. Fish and Wildlife Service must be able 
to analyze how this change is likely to affect the prevalence of 
baiting and how it will impact bird populations. This analysis should 
include the combined effects of changes in hunting regulations and 
widespread habitat destruction and degradation. An Environmental Impact 
Statement (EIS) under the National Environmental Policy Act would be 
warranted if this change were to be proposed administratively. An EIS 
would address all of these factors and compare their likely effects 
with the status quo.
    In addition, the U.S. Fish and Wildlife Service is in the middle of 
rulemaking on this issue, and a legislative change right now would 
undermine that process. The agency has listened to concerns on all 
sides of this issue and published a proposed rule for public comment on 
March 25th. The public comment period will expire on October 1. 
Legislation on baiting would explicitly preempt the agency's 
decisionmaking on baiting.
    The Fish and Wildlife Service's monitoring of duck populations 
indicates that now is a time to take caution with managing waterfowl 
populations. The Waterfowl Breeding Survey, conducted by U.S. and 
Canadian officials since 1955, indicates that through 1996 the long-
term population of Northern Pintails is down 43 percent and Scaups are 
down by 36 percent. The American Black Duck population also has 
experienced a significant long-term decline. For the first time in 
history, the Canada Goose hunting season in the Atlantic Flyway has 
been closed since the 1995-1996 season because of a steep decline in 
their breeding population. The breeding survey for these geese revealed 
a decline from 180,000 nesting pairs in 1988 to 29,000 pairs in 1995 
(when the season was closed). Overhunting was identified as a major 
factor in that decline. Given these population declines and the 
increasing threat of habitat destruction throughout the ranges of 
migratory waterfowl, taking measures that would increase baiting and 
bird kills is especially risky.
    For all of these reasons, changing strict liability for hunters who 
use bait is not the solution to a problem faced by a small number of 
innocent hunters. For decades, Defenders of Wildlife has defended the 
Migratory Bird Treaty Act because it is one of the most important laws 
protecting wildlife in the United States. The migratory bird treaties 
with Canada, Mexico, Great Britain, Japan, and Russia recognize that 
migratory birds are a valuable, multi-national resource that must be 
protected across borders from numerous threats. Any change to the 
Migratory Bird Treaty Act should be carefully examined and judged as to 
whether migratory birds will continue to be protected and managed 
sustainably. Liberalizing baiting restrictions will likely increase the 
number of hunters who use bait, which will considerably complicate 
management of this important resource and put bird populations at risk.
                               __________
 Statement of Brent Manning, Director, Illinois Department of Natural 
   Resources, on behalf of the International Association of Fish and 
                           Wildlife Agencies
    Good Morning, Mr. Chairman. I am Brent Manning, Director of the 
Illinois Department of Natural Resources, and chairman of the IAFWA ad 
hoc Committee on Baiting. Thank you for the invitation to testify today 
on behalf of the Association on this important issue regarding the 
regulation of hunting of migratory game birds. The Association supports 
the change in the standard for baiting violations from strict liability 
to one of ``knows or reasonably should know'' as reflected in H.R. 
2863, plus the addition of liability for those who place or assist in 
the placement of bait so as to create a ``baited area.'' We believe 
this change will bring needed consistency to law enforcement, while 
continuing to protect the migratory bird resource.
    The Association, founded in 1902, is a quasi-governmental 
organization of public agencies charged with the protection and 
management of North America's fish and wildlife resources. The 
Association's governmental members include the fish and wildlife 
agencies of all 50 states, the Commonwealth of Puerto Rico, and 8 
Canadian provinces and 2 territories. The Association has been a key 
organization in promoting sound resource management and strengthening 
Federal, state, and private cooperation in protecting and managing fish 
and wildlife and their habitats in the public interest.
    The International Association of Fish and Wildlife Agencies, since 
its founding in 1902, has been a strong and consistent supporter of 
migratory bird conservation. No organization has been more dedicated to 
the protection, restoration and sustainable use of the waterfowl 
resource than this Association. As you are aware, the State fish and 
wildlife agencies are public trustees of fish and wildlife resources 
within their borders and have statutory authority and responsibility 
for conserving these resources for the use and enjoyment of present and 
future generations of the people of the States. State jurisdiction for 
migratory birds is concurrent with the U.S. Fish and Wildlife Service 
(FWS). The conservation of migratory birds is thus of vital interest to 
our Association and the citizens of this country who enjoy these 
resources.
    In most States through a cooperative agreement between the FWS and 
the State fish and wildlife agencies, State conservation officers 
enforce Federal conservation laws and regulations. State conservation 
officers often supplement a Federal law enforcement staff of only one 
or two officers per state. Thus, State conservation officers are 
frequently more familiar with local agricultural practices, bird 
populations and landowners. It seems important to us that the baiting 
regulation language be of such clarity and certainty that State and 
Federal law enforcement officers apply it with a significant amount of 
consistency. It is also important that hunters, landowners, outfitters 
and guides understand and respect the rules. We believe H.R. 2863 
provides that consistency in the liability standard for baiting 
violations.
    During the early years of our Association, we were instrumental in 
calling for and contributing to the drafting of the Migratory Bird 
Treaty with Great Britain on behalf of Canada, which was ratified in 
1916. We saw then the need for Federal involvement in the conservation 
and regulation of the take of migratory birds. The Migratory Bird 
Treaty Act was subsequently signed into law in 1918. This was followed 
by the passage of the Duck Stamp Act in 1934 and the Pittman-Robertson 
Act in 1937, both of which established funding for the conservation of 
these resources, and in which the Association was actively involved. 
The Association was primarily responsible for establishment of the four 
administrative flyways in 1947 to coordinate information and 
recommendations from the States and Canadian provinces to the U.S. 
Federal regulatory process, and worked actively to secure passage of 
the North American Wetlands Conservation Act of 1989, Farm bills, and 
others to facilitate habitat conservation. In short, the Association 
has a long history of key involvement in issues regarding the 
protection and management of migratory birds.
    For the past 2 years, the Association's ad hoc Committee on Baiting 
has undertaken an exhaustive review of the migratory bird hunting 
regulations that pertain to baiting (50 CFR 20). Waterfowl biologists, 
wetlands managers, wildlife enthusiasts, agency directors, law 
enforcement officers and hunters provided the IAFWA with input and 
advice. The recommendations we have submitted to the FWS as they 
promulgate a rule change on this issue protect the migratory game bird 
resource, clarify the intent of the regulations and promote the 
management of natural wetlands communities for the benefit of migratory 
birds and other wildlife.
    The one issue that the FWS has declined to address in its proposed 
rule is that of strict liability, which is the subject of H.R. 2863, 
and this hearing today. The Association supports the replacement of the 
strict liability standard with the standard adopted in 1978 by the U.S. 
Court of Appeals for the Fifth Circuit (commonly referred to as the 
Delahoussaye decision). The Association's support for this change, and 
the other recommendations of the ad hoc Committee on Baiting, were 
recently endorsed by our membership on September 14, 1998, in Savannah, 
GA.
    Under the strict liability standard, individuals unknowingly 
hunting waterfowl or doves a mile from bait--and without any knowledge 
of the presence of that bait--have been cited. We consider this 
unreasonable, unnecessary and unacceptable. It has been incorrectly 
suggested that U.S. courts have universally embraced the standard of 
strict liability. The Sixth Circuit in 1984 characterized the standard 
in the following way:
    ``We concede that it is a harsh rule and trust that prosecution 
will take place in the exercise of sound discretion only.'' United 
States v. Catlett, 747 F.2d 1102, 1105 (6th Cir. 1984).
    Furthermore, in the 1978 Delahoussaye case, the U.S. Court of 
Appeals for the Fifth Circuit rejected the strict liability 
interpretation. Instead, the Court required at a minimum that the 
presence of bait could reasonably have been ascertained by the 
conscientious hunter. The Court went on to say:
    ``Any other interpretation would simply render criminal conviction 
an unavoidable occasional consequence of duck hunting and deny the 
sport to those such as, say, judges who might find such a consequence 
unacceptable.'' United States v. Delahoussaye, 573 F.2d 910, 912-913 
(5th Cir. 1978).
    The Fifth Circuit does not follow the strict liability standard to 
this day.
    Our Association's recommendation is consistent with the Fifth 
Circuit's decision. Liability should require that a hunter knows or 
reasonably should know that an area being hunted is baited. Our 
proposal is essentially identical to H.R. 2863. This bill does not mean 
that hunters will have a ``free pass'' to hunt over a baited field. 
Quite the contrary. Hunters would be responsible for taking reasonable 
efforts to ensure they are not attempting to take migratory game birds 
by the aid of bait or baiting. Indeed, as the court in Delahoussaye 
stated, a hunter can reasonably be asked to take the precaution of 
clearing the area before he or she hunts. Hunters should ask the guide, 
manager or landowner about the presence of bait, inspect the hunting 
area personally and assess the behavior of the hunted birds. Under the 
proposed standard of liability, the hunter will be judged, not just on 
whether he or she knew the area was baited, but also on whether he or 
she should have known the area was a baited area.
    I have heard it said that this bill will require state and Federal 
agents to prove hunter knowledge and intent. Allow me to set the record 
straight. This bill would not require an officer to prove the hunter's 
intent. Nor will this bill require knowledge on the hunter's part. It 
merely requires that the hunter should reasonably have known the area 
was baited.
    I have also been told that all a hunter would have to do to avoid a 
citation is to claim not to have known about the presence of bait. That 
is also not accurate. At issue here is whether the hunter should have 
known--either by an inspection of the area or by the behavior of the 
birds. The issue is not whether the hunter did or did not in fact know.
    Some have complained that it will be impossible to obtain 
convictions under the Delahoussaye standard. We have seen no data to 
support that claim and are not aware of any significant difference in 
rates of conviction or pleas of guilty between states currently under 
the Delahoussaye standard and those that are not. Let me provide one 
example. Fish and Wildlife Service agents are on record stating that 
migratory bird baiting cases have dropped precipitously in Louisiana 
during the last decade. The agents attribute the decline to better 
state/Federal cooperation, negative publicity about the extent of 
baiting and tougher penalties handed down by Federal judges and 
magistrates. I would like to remind the committee that this ``crack 
down'' on illegal baiting and other related activities took place under 
the ``knew or should have known'' Delahoussaye standard of liability as 
proposed by this bill.
    It has also been alleged that any standard other than strict 
liability will measurably and seriously harm the migratory bird 
resource. There is no basis for that concern. Allow me to provide one 
example why. The Fish and Wildlife Service's current approach to 
regulating the impact of harvest on ducks is known as Adaptive Harvest 
Management or AHM for short. AHM takes into account variations in 
harvest rates caused by fluctuations in hunting pressure, habitat, bird 
populations, season length and bag limit. This system makes annual 
adjustments for these factors. No waterfowl expert with whom we've 
consulted believes the adoption of the Delahoussaye standard will 
result in a measurable increase in harvest. But even if it did--and 
again there is absolutely no evidence to support that prediction--AHM 
would compensate by prescribing shorter seasons or reduced bag limits 
or both.
    Opponents of this bill have claimed that the proposed minimum form 
of scienter would apply to all other ``takings'' of migratory game 
birds. Examples such as a mining company using cyanide leach, a farmer 
using harmful pesticides and a refinery spilling oil have been offered. 
This bill eliminates the strict form of liability in baiting cases and 
replaces it with a minimum form of scienter in such cases--not in all 
other forms of ``takings.'' Any suggestion to the contrary is 
incorrect.
    In 1990, a Law Enforcement Advisory Committee created by the Fish 
and Wildlife Service found that enforcement of the ``baiting'' 
regulations was ``confusing'' and ``too complex,'' and recommended that 
an effort be made to clarify and simplify the existing regulations. 
Earlier this year the Service inaugurated a rulemaking proposal to 
``clarify and simplify'' the baiting regulations ``in response to 
public concern about interpretation and clarity of the regulations'' 
(63 Fed. Reg. 14415, March 25, 1998). The Service noted that it had 
received comments from State wildlife management agencies, the general 
public, hunters and conservation organizations that the baiting 
regulations ``are outdated, unclear, arid difficult for the general 
public to interpret and understand.'' Specifically addressing the 
strict liability standard, the Service recognizes in its current 
rulemaking proposal that ``application of the standard to baiting 
regulations is of concern to many hunters.'' Nevertheless, the Service 
proposes no change in the application to hunters of the strict 
liability standard.
    I referred above to the Catlett decision where the U.S. Court of 
Appeals for the Sixth Circuit characterized strict liability in this 
context as a ``harsh rule.'' The court went on to say:
    It is for Congress and the Secretary of the Interior to establish 
and change the policies here involved.'' 747 F.2d at 1105.
    Because the Fish and Wildlife Service declined to take a ``hard 
look'' at the application of strict liability to hunters in baiting 
cases, Congress should do so.
    Our Association also supports the creation of a new violation of 
the Migratory Bird Treaty Act as proposed in this bill. We share the 
belief that hunting club owners or operators who place or direct the 
placement of bait to attract migratory game birds to unknowing hunters 
should be subject to prosecution. This unethical and unfair 
exploitation of our migratory bird resource, undertaken for personal 
gain or profit, should be expressly prohibited.
    The International Association of Fish and Wildlife Agencies 
appreciates the opportunity to address you today. I offer the 
Association's as well as my personal assistance in reaching a goal I 
believe we share--common sense regulations that protect the migratory 
game bird resource and the future of responsible hunting. Thank you.
                               __________
  Statement of the American Bird Conservancy; Submitted by Gerald W. 
                  Winegrad, Vice President for Policy
    Mr. Chairman and Members of the Senate Committee on Environment and 
Public Works: American Bird Conservancy submits these comments in 
opposition to the passage of H.R. 2863, which would amend the Migratory 
Bird Treaty Act (MBTA). The American Bird Conservancy is a national 
non-profit organization dedicated to the conservation of birds. Through 
our 73 member organizations on our Policy Council, we work 
collaboratively to enhance avian populations in the United States and 
throughout the Western Hemisphere. Our members include the 
Environmental Defense Fund, World Wildlife Fund, Center for Marine 
Conservation, Peregrine Fund, and the Cornell Ornithological 
Laboratory. Members who have written and/or testified before the 
committee in opposition to H.R. 2863 include the National Audubon 
Society, National Wildlife Federation, Defenders of Wildlife, and the 
Humane Society of the United States. In addition, the Izaak Walton 
League, U.S. Fish and Wildlife Service, Federal Wildlife Officer's 
Association, PEER, and the Secretary of Maryland's Department of 
Natural Resources have written in opposition to this legislation.
    H.R. 2863 is mix--labeled as the ``Migratory Bird Treaty Reform 
Act'' and would severely hinder the enforcement of anti-baiting laws 
and the conservation of migratory birds. We in the conservation 
community view the MBTA as the nation's most important law ever enacted 
for the protection of migratory birds. Originally passed by Congress in 
1918, the Act was designed to implement the Migratory Bird Treaty of 
1916 between Canada and the United States. The Treaty and the MBTA were 
enacted to end the indiscriminate slaughter of migratory birds that was 
occurring. The Treaty has since been extended to Mexico, Canada, 
Russia, and Japan. The MBTA established a strict liability standard in 
1918 that has been essential in the conservation of migratory birds, 
both game and non-game species. This strict liability standard has been 
used over the last 80 years to successfully prosecute the illegal 
killing of migratory birds by oil spills, pesticides, toxic waste 
pools, and deliberate poisonings. Since 1935, the MBTA and its strict 
liability standard have been used to protect migratory game birds from 
illegal hunting using bait. We urge the committee not to eliminate this 
standard and require ``scienter'' in all illegal baiting cases. We 
believe that such a change will undermine the MBTA and the protection 
of migratory birds. The U.S. Fish and Wildlife Service has proposed 
rule changes at 50 CFR Part 20 dated March 25,1998 relating to baiting 
and agricultural practices designed to address hunters' concerns. The 
comment period ends on October 1, 1998. We urge the committee to allow 
this rulemaking to proceed and to avoid action to reverse the strict 
liability standard and the 65 years of law enforcement and case law 
under its provisions.
    Violations of the Migratory Bird Treaty Act constitute criminal 
offenses and include application of a ``strict liability'' standard. 
Because of this, since 1916 the MBTA has provided significant 
protection to migratory birds. Under strict liability, the fact that a 
person acted in a way so as to cause a prohibited result is sufficient 
basis to impose liability. Thus, in the prosecution of a strict 
liability crime, the government need not prove ``scienter'' (that the 
accused knew that he or she was violating the law) or even that the 
accused should have known he or she was violating the law. Federal 
courts, with one exception, have repeatedly upheld application of the 
strict liability doctrine. For example, The MBTA and its strict 
liability provision were successfully used to prosecute Eklof Marine, 
the offenders in the 828,000 gallon oil spill in that occurred in 
January, 1996 in Rhode Island's Block Island Sound. Under the strict 
liability standard of the MBTA, a $3 million penalty was assessed by a 
Federal District Court earlier this year against the offending company 
for killing migratory birds. Eliminating the strict liability standard 
in baiting cases may prevent such applications of the MBTA if changes 
as directed by H.R. 2863 are made Congressionally or judicially.
    Discussing strict liability as applied to baiting cases, the courts 
have long recognized the standard's importance in protecting migratory 
birds. In U.S. v. Schultz, 28 F. Supp. 234 (W.D. Kentucky 1939), the 
court stated: ``The beneficial purpose of the treaty and the act would 
be largely nullified if it was necessary on the part of the government 
to prove the existence of scienter on the part of defendants accused of 
violating the provisions of the act.'' In Holdridge v. United States, 
282 F.2d 302 (8th Cir. 1960), the court stated that strict liability 
was utilized to ``enact the broad policy of protecting an important 
natural resource, migratory game birds.'' In U.S. v. Miller, 
unpublished (D. Ariz. 1982), the court stated: ``The importance of the 
goal of preserving certain migratory birds in our environment, the 
difficulty the government would have in enforcing its laws if it were 
required to prove scienter . . . and the contemplated leniency of the 
sentence need all be considered.'' In written testimony to the U.S. 
Congress in 1984, Judge Frederic Smalkin, District of Maryland, wrote: 
``In addition to being a shield for the innocent, such a requirement 
[to prove scienter] could be a windfall for the guilty, in view of the 
difficulty of proving scienter beyond a reasonable doubt. . . . The 
requirement of proving scienter would effectively curtail enforcement 
of the prohibition of baiting.''
    These cases clearly indicate the absolute need and fairness of 
application of the strict liability standard. Again, the doctrine of 
strict liability applies equally to hunters and to industrial concerns, 
agricultural concerns, oil transporters, and traders in eagle claws and 
feathers. The strict liability standard has been important in the 
prevention of the illegal killing of migratory birds not only by 
hunters but by these other entities. The U.S. Fish and Wildlife Service 
sites these examples of changes that industries have made to comply 
with the strict liability standard: the chemical industry has made 
changes in the manufacture and use of pesticides that are toxic and 
deadly to migratory birds; the electric power industry has taken steps 
to prevent electrocution and power line strikes to migratory birds; the 
agriculture community modifies farming practices to prevent the 
accidental loss of migratory birds due to pesticide poisonings; the 
petroleum and mining industries have implemented measures to prevent 
contamination to migratory birds at petroleum pits, open oil pits, and 
cyanide leach operations; the commercial aquaculture industry modifies 
its operations to reduce bird mortality; and developers monitor 
construction sites to avoid destruction to migratory birds, their 
habitat, nests, and young. The vast majority of hunters also 
scrupulously avoid shooting waterfowl over bait and want to know if a 
shooting area is ``dirty'' to avoid citations under the strict 
liability standard. The committee should not act to change this 
important piece of the Migratory Bird Treaty Act. The strict liability 
doctrine has long been recognized in Federal courts throughout the 
Nation as a reasonable and necessary element in protecting the Nation's 
valuable migratory bird resource.
    H.R. 2863 would drastically change the law regarding baiting of 
migratory waterfowl that has been in effect since 1935. By requiring 
``scienter'' or knowledge in every baiting case, a strict liability 
statute would be modified to ease enforcement against illegal baiting. 
Such a change damages the MBTA and places the nation's waterfowl 
resources at risk of over harvest. That is why the Federal Wildlife 
Officers Association and State wildlife enforcement agencies vehemently 
oppose these proposed changes. Maryland is a major waterfowl hunting 
State and is one of the nation's greatest migratory waterfowl wintering 
habitats. The Secretary of Maryland's Department of Natural Resources 
has sent a strong letter of opposition and the Superintendent of 
Maryland's Natural Resources Police has written that such a change in 
requiring scienter ``. . . .will eliminate our ability to effectively 
enforce the baiting laws. . . .''. The Superintendent further states 
that such a proposal. . . ``will undoubtedly lead to the collapse of an 
already fragile resource.'' Copies of these letters have been provided 
to committee staff and I ask that they be made part of the record. U.S. 
Fish and Wildlife Field Agents share these concerns, are strongly 
opposed to such changes, and have expressed their concerns in writing 
to the chairman and committee staff. Simply put, these Federal and 
State field officers strongly believe that H.R. 2863 will undermine 
their ability to enforce anti-baiting laws that have been in effect 
since 1935. What is the pressing need? As noted, proposed regulations 
published on March 25, 1998 by the USFWS attempt to resolve some of the 
issues surrounding current anti-baiting provisions. While the pending 
regulations initially rejected adding the scienter requirement, these 
regulations are not finalized. Why not allow the regulatory process to 
proceed before acting?
    H.R. 2863 is a serious weakening of the MBTA and any such changes 
should be enacted only after much study and deliberation. How will 
enactment of H.R. 2863 better protect our nation's waterfowl? What 
impact will the passage of H.R. 2863 have on waterfowl populations? We 
cannot find adequate answers to these questions that would justify the 
passage of H.R. 2863. We do know that baiting results in much higher 
kill rates and by the mid-1930's baiting was resulting in a substantial 
over harvest of birds. Such high kill rates and over harvest led to its 
prohibition in 1935. In an article in Illinois Natural History Survey 
Bulletin, Volume 23, Article 2, November 1944 by Frank C. Bellrose, 
Jr., data analysis indicated that the kill rate was two to three times 
as great before the anti-baiting provisions were enacted in 1935. Our 
wildlife resources cannot sustain any where near such an increase in 
kill rates due to increased baiting that may occur as a result of 
passage of H.R. 2863. Please consider that when the initial anti-
baiting provisions were enacted in 1935, there were 635,000 hunters; 
today there are 3.1 million hunters of migratory waterfowl.
    The Courts have interpreted the current regulations in many cases 
and this case law gives clarity to the existing regulations. What is 
needed is better education not a weakening of present regulations. 
Adding the knowledge requirement would undermine 63 years of anti-
baiting prohibitions and enforcement. We must act to prudently mange 
our waterfowl resources, permitting lawful and sustainable hunting, but 
not allowing over harvest. Liberalizing anti-baiting regulations could 
lead to over harvest, could alter the distribution of migratory 
waterfowl, and could alter migratory behavior. Additionally, baiting 
brings into question the ``sportsmanship'' of hunting.
    Unfortunately, a number of our traditionally hunted migratory 
waterfowl are in steep declines. The population of breeding ducks 
dropped 8 percent in 1998 over the previous year according to the U.S. 
Fish and Wildlife Service's annual breeding duck survey. Breeding 
populations of Mallards dropped slightly while other species continued 
steep declines. Northern Pintails were down 29 percent over the 
previous year, Northern Shovelers down 23 percent, Green-winged Teal 
were down 17 percent, and Scaup were down 16 percent. These steep 
declines were a continuation of substantial declines documented by U.S. 
and Canadian officials since 1955 in populations of certain hunted 
waterfowl species. The breeding surveys indicate that through the 1998 
counts, the long-term population of Northern Pintails was down 43 
percent, Scaups were down by 36 percent, and the American Black Duck 
population was down by 28 percent. For the first time in history, the 
Canada Goose hunting season in the Atlantic Flyway was closed for the 
1995-1996 season because of a steep decline in their breeding 
population and remains closed. The breeding survey for these geese 
revealed a decline from 180,000 nesting pairs in 1988 to 42,200 pairs 
in 1998. The 1998 breeding season was a major disappointment as the 
number of breeding pairs was 63,200 in 1997. One of the major reasons 
attributable to the decline of Canada Geese precipitating the hunting 
closure was the over harvest by hunters. This harvest was exceeding 40 
percent of the adult populations of the Atlantic Flyway Canada Goose. 
These declines in waterfowl populations buttress the case against any 
weakening of anti-baiting regulations and enforcement. H.R. 2863 should 
be defeated. Relaxing anti-baiting provisions of the MBTA may lead to a 
further decline in these species.
    We believe that the MBTA is essential to the conservation of birds 
in North America and we would vigorously oppose any weakening in its 
implementation and enforcement. H.R. 2863 does not reform the MBTA but 
rather guts its anti-baiting provisions by adding the scienter 
provision. Additionally, baiting brings into question the 
``sportsmanship'' of hunting. We request your support for our migratory 
birds and our wildlife enforcement officers in rejecting this 
legislation.
                               __________
                  Maryland Department of Natural Resources,
                                                 February 10, 1997.

    Col. V.J. Garrison,
    Georgia Department of Natural Resources,
    Atlanta, Georgia 30334.

    Dear Col. Garrison: The Maryland Natural Resources Police strongly 
oppose the proposed revision to the Federal baiting regulation, 50 CFR 
20.21 paragraph (i). If this proposal is approved. the new Federal 
baiting regulation will undoubtedly lead to the collapse of an already 
fragile resource.
    The proposed change requiring law enforcement and prosecutors to 
prove that ``the person knows or through reasonable care should have 
known,'' that bait was present, will eliminate our ability to 
effectively enforce the baiting laws for all migratory game birds. This 
change will require that an officer actually observe the bait being 
placed in the hunting area; which even with the best planned 
surveillance operation, is a rare occurrence.
    Since the inception of the Federal baiting law in 1935, never has a 
person having knowledge been a part of the Federal baiting law, making 
it apparent that those who created the law realized that ``strict 
liability'' was the real core of the law. Any change In this concept 
would certainly promote a ``willful lack of knowledge'' among hunters 
and defeat the very purpose of the law. Even the most ethical hunter 
would be discouraged from making an effort to determine if an area was 
baited, as it would be in his/her best interest not to know.
    Another proposed revision to the baiting law relates to the 
``alteration of natural vegetation'' and the exclusion of millet as an 
agricultural crop. This proposal would allow hunters to bush hog or 
otherwise scatter the seeds of natural vegetation and millet, then hunt 
over the area. There is no requirement that the feed be removed prior 
to hunting the area, only that no alteration of natural vegetation or 
naturalized plants occur within 10 days prior to the waterfowl season. 
The hunter could literally be standing in feed inches deep, shooting 
ducks and geese. The legalization of this practice would unfairly 
concentrate birds for the benefit of those who could afford to join 
private hunt clubs or otherwise have the ability to practice this type 
of activity, thus limiting the opportunities available to the average 
hunter. This change would potentially result in overbagging and 
generally increase hunter success.
    Waterfowl populations are presently at critical levels, and any 
liberalization of the current Federal baiting regulations will 
adversely impact the future of this resource.
    As a conservation law enforcement agency charged with protecting 
the natural resources, it is incumbent upon the Maryland Natural 
Resources Police and all conservation agencies/organizations to oppose 
this legislation.
    I urge your support on this issue by voicing your opposition on the 
proposed Federal baiting law to Secretary Bruce Babbitt, Department of 
the Interior and to your U.S. Senators and Congressmen. By defeating 
this proposal we will play a vital part in ensuring that there is a 
viable population of all migratory game bird specks to be enjoyed by 
future generations. Again, I thank you for your support, and if I may 
be of any assistance to you or your organization. please feel free to 
contact me.
            Sincerely,
                                    Colonel John W. Rhoads,
                                                    Superintendent.
                                 ______
                                 
                  Maryland Department of Natural Resources,
                           Annapolis, Maryland 21401, June 25, 1998

    The Honorable Paul S. Sarbanes,
    Senate Hart Office Building,
    Washington, DC 20510.

    Dear Senator Sarbanes: I am writing to express Maryland's strong 
opposition to H.R. 2863 and S. 1533 which would substantially change 
the Federal migratory bird baiting regulations by eliminating the 
``strict liability'' requirement from the statute. I have been advised 
by our Natural Resources Police and Wildlife and Heritage staff that 
this change will have a detrimental impact on Maryland's, and the 
nation's migratory bird resources.
    The Maryland Department of Natural Resources did not have an 
opportunity to present testimony before the Committee on Resources, 
Fisheries Conservational and Wildlife and Oceans, in opposition to H.R. 
2863. It is my understanding that this bill passed out of committee 
favorably and will be heard on the House floor in the very near 
fixture. Regarding S. 1533, it is my hope that the Department would toe 
provided the opportunity to offer testimony before the appropriate 
Senate committee expressing Maryland's opposition.
    Thank you in advance for your understanding and assistance in this 
important manner.
            Sincerely,
                                           John R. Griffin.
                               __________
                        Fowl Play in Washington
                           (By David Helvarg)
    For more than 60 years it has been illegal to use bait hunting 
waterfowl, a once widespread practice that decimated whole populations 
of birds and continues to result in more than 800 violations per year. 
Even so, the U.S. Fish and Wildlife Service (USFWS) is planning to 
loosen its birdbaiting regulations and Congress is pushing a bill to 
reform the the Migratory Bird Treaty Act and weaken enforcement of the 
baiting law.
    Last March the USFWS tried to squelch dissent on the issue by 
instructing its law enforcement officer not to speak publicly about it. 
``We've been told to keep our mouths shut,'' complains one agent who 
spoke with ``Sports Afield'' on condition of anonymity, and we know 
more about this baiting business than anyone alive.''
    Waterfowl lured to seed and other baits will fly directly into 
discharging shotguns in their rush to feed. So why is the Government 
permitting baiting ever years of efforts by resource agencies, wetlands 
activists and conservation-minded hunters to restore in America's 
migratory bird populations? The answer may reflect the political juice 
of certain interested parties rather than any real need for reform.
    The internal Fish and Wildlife memo gagging its agents noted the 
``very difficult time'' Congressman Don Young (R-AK) and Senator John 
Breaux (D-LA) were giving agency director Jamie Clark. Among those 
who've been caught hunting on bait are former Kentucky Governor Julian 
Carroll, Florida sheriffs, Virginia judges, and a political adviser to 
Senator Phil Gramm (R-TX).
    Many Washington politicians and lobbyists like to get in a quick 
hunt at elusive duck clubs and private reserves on the Eastern Shore of 
Maryland, including several that have been cited for baiting.
    The latest wave of regulatory reform can be traced to two specific 
law enforcement actions during the anti-Federal hysteria of 1994 and 
1995. The first took place when Fish and Wildlife agents on ariel 
patrol spotted an Illinois hunt club illegally using millet to attract 
ducks and called in local game wardens. Club member Randy Vogel tried 
to get the citation fixed through his friend, state Department of 
Natural Resources director Brent Manning. When that didn't work, he and 
other hunters fought the case in court and lost. Vogel then founded the 
Sportsman's Defense Fund to oppose ``overzealous law enforcement'' 
while Manning, through the International Association of Fish and 
Wildlife Agencies, began pressing for regulatory changes in Federal 
baiting laws.
    One year later a dozen agents in Dixie County, Florida busted the 
heavily baited Predators Dove Hunt, a charity shoot for the Florida 
Sheriffs' Youth Ranches that featured a silo's worth of cracked corn, 
millet and wheat. During the raid agents scored more then 500 bird 
carcasses, which included non-game birds and out more than 80 citations 
to sheriffs and state politicians, among others.
    These raids led to a Congressional hearing with House Resources 
Committee chairman Don Young, joined by Representative Helen Chenoweth 
(R-ID), focusing on what Young called ``the heavy hand'' of the Feds. 
The baiting raid was even labeled a ``little Ruby Ridge,'' a reference 
to the FBI shootout with Idaho white separatist Randy Weaver that left 
Weaver's wife and son dead--although the only shooting victims in 
Florida appeared to be doves and bluejays. The anti-baiting regulation, 
Young declared, ``is a bad law. It has to be changed.''
    Under the law, anyone found hunting on bait will be cited and 
fined, regardless of whether or not they say they knew it was there. 
Young's proposal would require agents to prove hunters knew or should 
have known. they were shooting on bait.
    If they enact Young's language it will destroy baiting regulations 
that have been there since 1935, ``cause it's near impossible to prove 
what's in someone's mind,'' says Dave Hall, a recently retired agent 
from Louisiana. ``And we'd have to stake out every site to catch them 
in the act, and there are only about 200 agents for the whole nation.''
    ``If there is a bucket of corn sitting in a field or a legitimate 
baiting problem, the guilty hunter will be successfully prosecuted,'' 
Young insists.
    The Fish and Wildlife Service's proposed baiting rule changes 
(originally in Young's bill the agency agreed to adopt them) would 
legalize the cutting of millet and other ``manipulation'' of plants. 
Pointing out that the loss of wetlands is the major threat facing 
migrating and nesting waterfowl, head of USFWS's Management Program 
Paul Schmidt says the new rules will inspire private landowners to 
establish new wetlands and plant them with a variety of feed to benefit 
the birds. Asked whether such feeding stations won't threaten bird 
populations by making them easy targets for lazy hunters, Schmidt says, 
``We protect populations by the way we set seasons and bag limits.''
    ``If everyone who hunted killed their bag limit, good grief, 
there'd be no ducks left,'' counters one agent. ``The people pushing 
this issue are the big duck clubs. Suppose everyday duck hunters like 
me and my son want to go to our local marsh. All the ducks will be 
headed over to the club where they're . planting and manipulating 
millet for their $300-a-day clients. But if you get taken to a blind, 
and treated like a king, and have 40 or 50 mallards lined up in front 
of you, where's the fair chase?''
    The USFWS has extended its comment period for proposed baiting, 
regulation changes to October 1, at which point agency officials will 
tabulate the results and announce their next action. In the meantime, 
if the bill to reform the MBTA is not passed early this fall, its 
proponents will be required to start from scratch during the next 
congressional session in January 1999.
                               __________
                                                September 29, 1998.

    Honorable John H. Chafee, Chairman,
    Committee on Environment and Public Works,
    Dirksen Senate Office Building,
    Washington, DC 20510-6175.

    Dear Senator Chafee: During this morning's hearing in the 
referenced matter, the witness for the International Association of 
Fish and Wildlife Agencies, Mr. Brent Manning, who is also Director of 
the Illinois Department of Natural Resources, pointed out that the Fish 
and Wildlife Service could not amend the strict liability rule for 
hunting over a baited field on the basis of its current rulemaking 
proposal of March 28, 1998. The basis for Mr. Manning's observation is 
set forth in the following.
    The proposed rule of the Fish and Wildlife Service dated March 17, 
1998, proposes to clarify existing regulations with respect to current 
migratory bird habitat conservation practices (i.e., moist soil 
management), and public comment was invited on specific changes in 
regulatory language to that end. 63 Fed. Reg. 14415 (March 28, 1998). 
In its rulemaking, the Service expressly declares: ``At this time, no 
changes are proposed in the application of strict liability to the 
migratory game bird baiting regulations.'' 63 Fed. Reg. at 14416.
    Not only does the preamble state that no changes to strict 
liability are proposed in the March 1998 rulemaking, the Service in its 
preamble to the proposed rule sets forth several policy reasons why 
such a change would in its view be unwise. While the International 
Association certainly does not agree with these views, the point is 
that the Service's proposal foreshadows maintenance of strict 
liability, not a change in strict liability.
    The notice and comment provisions of the Administrative Procedure 
Act require that notice include either the terms or substance of the 
proposed rule. 5 U.S.C. Sec.  553(b)(3). While a proposed rule need not 
be identical to the final rule, if the final rule deviates sharply from 
the proposal, the question for a court would be whether the final rule 
is a ``logical outgrowth'' of the rulemaking proceeding. American 
Federation of Labor v. Donovan, 757 F.2d 33O, 338 (D.C. Cir. 1985 
(opinion of Starr, J.). If the final rule deviates sharply, affected 
parties will be deprived of notice and an opportunity to respond to the 
proposal. Small Refiner Lead Phase-Down Task Force v. EPA, 705 F.2d 
506, 546-550 (D. C. Cir. 1983) (opinion of Wald, J.). A ``180'' would 
likely be considered a ``sharp'' deviation.
    Should the Service desire to change the strict liability standard 
for hunting over a baited field, a new rulemaking proceeding would be 
necessary.
            Sincerely,
                            Paul A. Lenzini, Legal Counsel,
           International Association of Fish and Wildlife Agencies.
                               __________
  North American Wildlife Enforcement Officers Association,
                   Lovettsville, VA 20180-8505, September 28, 1998.

    Senator John Chafee,
    Committee on Environment and Public Works,
    U.S. Senate,
    Washington, DC 20510-6175.

    Dear Senator Chafee: My name is Bruce Lemmert and I am offering 
testimony regarding H.R. 2863, the Migratory Bird Treaty Reform Act of 
1998. My testimony is on behalf of the over 7000 officers of the North 
American Wildlife Enforcement Officers Association (NAWEOA).
    On June 19, 1998, NAWEOA officially took a position in opposition 
to any change in the strict liability doctrine as it exists with 
respect to the migratory bird hunting laws. NAWEOA feels that much of 
the illegal baiting of migratory game birds would be unenforceable of 
existence of scienter were required.
    I respectfully ask that this aspect of the migratory bird hunting 
laws be left as is for the continued protection of our wildlife 
resources. This law has worked to the benefit of migratory game birds 
and to the benefit of sportsman and wildlife watchers, for many years 
and we believe that it would be counter-productive to change a proven 
law.
    If we can be of assistance to you or if you need any type of 
clarification from us, please do not hesitate in contacting me.
            Sincerely,
                                           Bruce A. Lemmer,
                                 Executive Member, Region 6 NAWEOA.
                               __________
                                  National Audubon Society,
                                                September 28, 1998.

    Dear Senator: On behalf of the National Audubon Society, I'm 
writing to urge your opposition to S. 1533, the ``Migratory Bird Treaty 
Reform Act.''
    The National Audubon Society has nearly one million members and 
supporters in the Americas, and it is dedicated to the preservation and 
protection of birds, other wildlife and their habitat. Throughout our 
history, we have worked diligently to establish a strong and effective 
legal foundation for the management of wildlife. These efforts have 
included encouraging the Congress to enact the Migratory Bird Treaty 
Act, and working for decades to protect this important statute from 
attempts to weaken its provisions.
    There are a number of reasons why S. 1533 should not be enacted at 
this time. First, we believe any legislation to amend the Migratory 
Bird Treaty Act should be passed by the Congress only after long and 
careful scrutiny. The proponents of this legislation have failed to 
make a compelling case that there is a crisis that needs addressing It 
is in the public interest to protect migratory birds, not just for 
hunters, but for all Americans. We have always set a very high standard 
of protection of migratory birds by using a strict liability test and, 
with one exception, the courts have upheld this standard. Any change 
from this standard should take place only after a compelling case has 
been made. We do not believe such a case has been made for S. 1533.
    Second, the U.S. Fish and Wildlife Service is currently engaged in 
a rulemaking on baiting regulations to address legitimate concerns that 
have been raised by the hunting community. Until that rulemaking is 
completed, it would be premature to pass this legislation.
    Third, the law enforcement personnel charged with protecting 
migratory waterfowl and enforcing Federal wildlife statutes feel this 
bill is ill-advised and will seriously complicate their job of battling 
illegal hunting. It is essential that we not ignore the views of these 
law enforcement officials and make potentially sweeping changes in the 
law based on a few isolated cases.
    Finally, I think it is important that we thoroughly understand how 
this legislation will impact our conservation and management of 
migratory bird species. At the present time, the Fish and Wildlife 
Service is unable to tell us what impact this bill would have on 
wildlife populations, where and when. These are important questions 
that should be carefully addressed before any legislation is moved.
                               __________
                                     Defenders of Wildlife,
                                                September 25, 1998.

    U.S. Senate,
    Washington, DC 20510.

    Dear Senator: Defenders of Wildlife, a national conservation 
organization with over 250,000 members and supporters, requests your 
assistance in opposing H.R. 2863, which was passed out of the House 
Resources Committee in April 1998. This bill would alter the Migratory 
Bird Treaty Act (MBTA) by severely undermining enforcement against 
hunting birds over bait. Defenders of Wildlife is not an anti-hunting 
organization, but we oppose this bill because, if passed, it would 
likely have a negative effect on bird populations and it would 
virtually preclude enforcement against hunters who use unfair, 
unsportsmanlike baiting practices.
    For more than half a century, Federal courts have interpreted the 
MBTA as imposing strict liability for misdemeanor violations, including 
hunting birds over bait. H.R. 2863 would change the standard of proof 
regarding baiting from strict liability to the scienter standard (that 
the hunter ``knew or should have known'' about the bait). Such a change 
would make it exceedingly difficult to prosecute violations, overturn 
62 years of Federal judicial case law, and increase the civil liability 
of investigating of ricers. As U.S. Magistrate Judge Frederic N. 
Smalkin, District of Maryland, wrote in a statement to Congress in 
1984, ``. . . in addition to being a shield for the innocent, such a 
requirement could be a windfall for the guilty, in view of the 
difficulty of proving scienter beyond a reasonable doubt . . . it would 
appear to me from my practical perspective that the requirement of 
proving scienter would effectively curtail enforcement of the 
prohibition of baiting.'' U.S. Fish and Wildlife Service enforcement 
agents agree that this change imposes an almost impossible burden of 
proof.
    H.R. 2863 with its ``knew or should have known'' standard of proof 
is opposed by numerous conservation organizations, including the 
National Wildlife Federation, the Izaak Walton League, the National 
Audubon Society, and the Humane Society of the United States. In 
addition, the Federal Wildlife Officers Association opposes the bill. 
The Secretary of Maryland's Department of Natural Resources opposes the 
legislation, and has sent a letter on the matter to the entire Maryland 
Congressional Delegation.
    The U.S. Fish and Wildlife Service is opposed to H.R. 2863. The 
Service recently has given considerable attention to this matter, and 
they have drafted regulation changes on baiting. Proposed regulations 
are open for public comments until October 1. The proposed regulations 
contain changes and clarifications about what activities constitute 
baiting, but the Service purposefully left the strict liability 
standard intact. Therefore, rot only would passage of H.R. 2863 
undermine the Service which has carefully studied this issue, but it 
would significantly interfere with the rulemaking process on baiting 
that is already underway.
    Changing the standard for baiting does not make sense because it 
would help to protect hunters who bait birds and would put wildlife 
enforcement of ricers at greater risk. Hunting over bait is 
unsportsmanlike. Birds can be so attracted to bait and focused on the 
abundant food resources that they do not perceive danger from nearby 
hunters. Protecting hunters who easily kill birds that are virtually 
drunk from food is particularly inappropriate because the same change 
would put enforcement agents at much higher risk of being accused of 
civil damages. Indeed, issuing a citation without probable cause to 
believe that the arrested had knowledge of the presence of the bait 
could easily lead to civil damages action. Moreover, changing to a 
``knew or should have known'' requirement would increase the amount of 
time that of ricers spend developing a case against a hunter, and 
informants would have to be revealed during testimony in court, in 
order to prove knowledge. All of these factors--informants less willing 
to come forward publicly, increased time required to build a case, and 
increased civil liability for officers--would severely negatively 
affect enforcement agents and decrease the number of cases brought 
against hunters who violate the law.
    The MBTA has been protecting migratory birds since its passage in 
1918. Integral to its success has been the courts' interpretation of 
strict liability for misdemeanor violations. H.R. 2863 may have serious 
implications for the future viability of the MBTA as a means of 
protecting migratory birds. Defenders of Wildlife is quite concerned 
that the resultant lack of enforcement against baiting would 
significantly decrease the U.S. Fish and Wildlife Service's ability to 
protect bird populations so that they are managed sustainably. Rather 
than protecting unsportsmanlike hunters, we urge you to join us in 
protecting bird populations and the MBTA by opposing H.R. 2863. Thank 
you for your time.
            Sincerely,
                                             Laura C. Hood,
                                      Director, Science Department.
                               __________
                            The Baiting Game
                           (By Ted Williams)
vocal hunters are seeking to relax the ban on using bait to lure birds 
                              to the kill
    I have just come in from baiting mourning doves. Every fourth day 
since I started researching this article, I have sown a bucket of 
cracked corn on the grass between our barn and the locust trees. Now, 
as I write, doves are swirling out of a copper sky--''coming down the 
chimney,'' to use the old bait hunter's cliche. Doves are drab only at 
a distance. From 10 feet away I can distinguish shades of violet, pink, 
cinnamon, and iridescent purple. Bills are splashed with azure, wings 
and cheeks spotted as if held respectively by sooty fingers and a sooty 
thumb. There are white halos around obsidian eyes, white trim on long, 
tapered tails. I am struck by how closely this species is related to 
the passenger pigeon, its lost cousin, ushered into oblivion largely by 
unregulated hunting.
    I am not shooting these doves, but neither am I doing them any 
favors. I have hooked them on junk food--the avian equivalent of French 
fries and Hostess Twinkies. They don't need it, but they can't resist 
it. Wilton, my 60-pound Brittany, barks and slavers at the window, and 
still the doves bob and strut and stuff their crops. I have converted 
these normally wary birds into the sort of idiot fowl that mill around 
your feet when you eat a sandwich in Central Park.
    Ducks and doves will pitch into bait even when poachers are 
standing up and blasting away with shotguns. They become zombies, 
floating into the barrage with flaps down and landing gear extended. 
That's why hunting over bait was outlawed in 1935, under provisions of 
the Migratory Bird Treaty Act, which was enacted to save birds ``from 
indiscriminate slaughter.'' In Illinois--the birthplace of the baiting 
tradition in the United States--a 1941 study demonstrated that annual 
waterfowl kills dropped from about 1 million birds with bait to about 
175,000 without.
    The Migratory Bird Treaty Act (MBTA), facilitated by a 1916 
convention with Canada, makes it illegal to kill migratory birds except 
during hunting seasons established for a relatively few species by the 
Secretary of the Interior. Today the MBTA, amended to reflect similar 
agreements with Mexico, Japan, and the former Soviet Union, is this 
country's and the world's basic bird-protection law. But it and the 
birds it was written for are being jeopardized by hunters who would 
like to kill more game with less effort and who, therefore, seek to 
relax the regulation that prohibits baiting. Migratory-bird populations 
are already badly stressed by baiting, by far the most common of all 
MBTA violations. If baiting were legalized, increased kills would 
drastically reduce game bird populations.
    A lot of the pressure is coming from the directors of the state 
game and fish departments, who are frequently pro baiting. Organized as 
the International Association of Fish and Wildlife Agencies, they are 
urging the U.S. Fish and Wildlife Service to make a legitimate excuse 
out of ignorance, a condition claimed by virtually every baiter 
apprehended during the past 62 years. Under the association's proposed 
amendment to the regulation, law enforcement personnel would be 
assigned the nearly impossible task of proving that a violator ``knows 
or through the exercise of reasonable diligence should have known'' 
that the area was baited. ``Having to prove intent would basically mean 
our work is over, says a Fish and Wildlife Service agent, who asked 
that I not use his name, since he has been ordered not to speak to the 
press about the controversy.
    The antibaiting regulation is under attack in Congress, too. On 
February 12, 1997, House Resources chairman Don Young (R-AK) introduced 
H.R. 741, the Migratory Bird Treaty Reform Act. The bill weakens the 
treaty in a number of ways, most seriously by codifying the request of 
the International Association of Fish and Wildlife Agencies to prove 
intent. ``Neither the treaty nor the Federal statute calls for intent, 
and I don't see how you can make regulation that does,'' declares 
another agent, who also asked for anonymity. ``If they pass a law for 
intent, I think it's a violation of the treaty. In any case, it would 
be absolutely devastating to migratory birds.''
    Special Agent John Mendoza of the Fish and Wildlife Service agrees, 
pointing out that baiting virtually assures that hunters will get their 
bag limit, and a bag limit for every hunter every time out means a 
dangerous overkill. ``There is nothing sporting about baiting,'' he 
wrote in an April 22, 1996, memo to his Agency's director. ``Hunting 
over or with the aid of any form of bait. . . is illegal, unethical. . 
. . The anti baiting regulation does not need to be changed. Rather, 
people's greedy attitudes need to be called for what they are.''
    But calling things for what they are has never been the forte of 
the Fish and Wildlife Service. Mendoza was responding to a March 22, 
1996, notice in The Federal Register, soliciting comments on his 
agency's plan to reassess the antibaiting regulation as it applies to 
growing and cutting food plants for ducks and geese in low, soggy 
places--moist-soil management,'' to use the agency's biobabble. The 
plan was inspired by disgruntled hunters, none more vocal than busted 
baiters. And the same complaints had prompted the service to invite the 
International Association of Fish and Wildlife Agencies to tell it how 
to improve the moist-soil rules.
    Somehow the project got our of control. Before the association knew 
what had happened, people on both sides of the issue were shouting at 
it. To disperse the heat, it formed the Ad Hoc Committee on Baiting, 
which picked up the ball and, like Forrest Gump, ran down the field and 
off the field, hatching recommendations--bad, dangerous ones--on new 
and different issues. So the Fish and Wildlife Service now finds itself 
in a duck press. If it follows the Ad Hoc Committee's advice, 
migratory--game bird resources will be jeopardized. If it ignores the 
committee, it will be accused of trampling states' rights and maybe 
sued. Moreover, there is an Elmer Fudd figure cavorting around the 
nation's capital in the form of Don Young, whose duck-hunting strategy 
frightens even the Ad Hoc Committee. If Young succeeds in changing the 
regulation by law, no part of it can be relaxed or strengthened in 
response to real-world events except by a further act of Congress. And 
that could take more time than migratory birds have.
    Since 1935 the antibaiting regulation has been amended 18 times. It 
has been tweaked, tuned, and tested not just by the Fish and Wildlife 
Service but also by the courts. A new statute or even a rewrite would 
destroy an enormous body of case law, paralyzing MBTA enforcement. 
Finally, baiting is now a ``petty offense,'' carrying a maximum fine of 
only $5,000. Add the element of intent, and the rationale for such 
leniency takes wing. The only fair and logical tradeoff would be to 
make baiting at least a misdemeanor, in which case the maximum fine 
would be $100,000. But here's the rub: with misdemeanors, agents 
wouldn't be able to hand out tickets, which give the baiter the option 
of just mailing in the fine. They would have to seek criminal charges, 
which, they say, would create a paper blockage the Justice Department 
couldn't begin to cut through.
    As an avid hunter of migratory birds, as well as an advocate for 
them, I naturally fear getting cited for inadvertently violating the 
Migratory Bird Treaty Act. And even if ignorance were an excuse, 
claiming it would be almost as embarrassing. So I was distressed to 
read about the victimization of clueless Floridians who had gathered in 
Dixie County on October 13, 1995, to enjoy each other's company, shoot 
a few doves, and especially, raise money for the Florida Sheriff's 
Youth Ranches. According to these public spirited folks, a dozen 
``overzealous'' Federal wildlife officers in ``inappropriate and 
provocative dress'' (camouflage and boots) crashed the party, issuing 
88 baiting citations and collecting $38,850 in fines. A headline in the 
Florida Times-Union referred to the operation as ``Little Ruby Ridge'' 
(after the place in Idaho where FBI agents apprehended white separatist 
Randall C. Weaver and managed to kill his wife and son in the process) 
No one, save the officers, reported seeing any bait. State Senator 
Charles Williams, who had sponsored the event, explained that the 
Federal agents had ``tarnished'' the reputation of ``innocent people.''
    In a letter to U.S. Representative Don Young, Alachua County 
sheriff Stephen M. Oelrich described the high profile of fellow fund-
raisers ``descended upon'' by the Feds: ``local ranchers, utility 
managers, state officials, and local elected county office holders. . . 
. Four Florida sheriffs were on the field that day, along with the 
Regional Director of the State Game and Fish Commission, Clerks of 
County Courts, and several people of leadership positions in their 
communities, all sharing in their embarrassment at this treatment from 
Federal officers.''
    An outraged U.S. Representative Cliff Stearns (R-FL) prevailed on 
the House Resources Committee to hold a hearing. This colorful affair, 
conducted on May 15, 1996, featured lengthy and plaintive testimony by 
the baiters and a thorough roasting of the agents by committee chairman 
Don Young and Congressman (as she insists on being called) Helen 
Chenoweth (R-ID). Chenoweth implied that the agents had faked evidence 
and declared that ``federal agencies are trampling over the rights of 
humans.''
    Young, the baiters, and George Reiger, conservation editor for 
Field and Stream magazine, told the committee that if the agents had 
really cared about wildlife, they would have stopped the hunt before it 
began. Particularly memorable was the exchange between Sheriff Oelrich 
and staunch MBTA defender Representative George Miller (D-CA). When 
Miller inquired if the sheriff's department made a general practice of 
stopping crimes before they begin, Oelrich allowed that it did.
    Miller: It you know someone is going to buy drugs on the street 
corner, you go to the purchaser and say, ``Do not do that, because that 
is illegal? . . . Is it policy, that, to prevent crime from taking 
place, you interrupt crimes in progress?''
    Oelrich: ``Yes.''
    Miller: `` . . . So you do not watch people buy drugs and then 
arrest the purchaser and the seller? Your department does not do these 
things?''
    Oelrich: ``Oh, yes, we do that as well.''
    The antibaiting regulation, proclaimed Young, ``is a bad law; it 
has to be changed.'' A ``handicapped'' person who ``cannot see'' the 
bait could get cited, he observed. ``That is why we are going to change 
the law.'' When Bob Streeter, the Fish and Wildlife Service's assistant 
director for refuges and wildlife, opined that for safety reasons the 
blind should not hunt, the Congressman accused him of being ``against 
the handicapped.''
    Gradually, from my collection of documents and interviews, a less 
heartrending account of what really happened at ``Little Ruby Ridge'' 
emerged. A dozen officers had proved too few, because when they showed 
up most of the suspects ran from the field. ``It was pandemonium,'' 
recalls Special Agent Joe Oliveros. ``People were running around 
honking horns and yelling, ``Get out, the game wardens are here.'' 
There was heavy drinking before and during the hunt. Bag limits were 
being exceeded everywhere, and protected nongame birds were dropping 
from the sky along with the doves. From Fish and Wildlife Service 
photos it appears that the participants had been wading through a silo 
full of cracked corn, kernel corn, millet, wheat, milo, and Bahia seed.
    ``Show us the bait,'' the hunters kept demanding. According to Fish 
and Wildlife Service reports, the agents said, ``Look down, you're 
standing in it.'' Or: ``We'll be glad to show you as soon as we finish 
writing tickets.'' Not one participant stuck around to see the bait, 
but at the hearing they testified that the agents refused to show it to 
them. Oliveros calls it one of the most flagrant baiting cases'' he has 
worked on in 24 years of enforcing the MBTA and ``a prime example'' of 
what bait does to birds. ``Doves, and I mean constant flights, were 
pouring into this field with 150 guns being shot,'' he says.
    According to Fish and Wildlife Service documents, any guest at 
Senator Williams's dove shooting bash who didn't know the field was 
baited had to have been as visually impaired as the blind hunters 
championed by Don Young. But the antibaiting regulation for waterfowl 
is different than for doves. In 1972 the dove-baiting rules were 
relaxed to allow hunters to apply bait to a field by planting grain and 
then cutting the ripe seed heads. With ducks and geese, which are much 
less prolific than doves, hunters can grow all the bait they want, even 
flood it. But if they cut or manipulate the plants, they must do so 
before the seeds form or make sure there are no seeds on the ground or 
water for 10 days before hunting. I have never had the slightest 
trouble understanding this, but some of my fellow outdoor writers 
approach it as if it were the theory of relativity.
    ``Baiting laws are ambiguous,'' wrote Garvey Winegar of the 
Richmond Times Dispatch in a September 15, 1996, expose of 
``overzealous tactics'' by Fish and Wildlife Service agents ''An 
acquaintance was charged with baiting when someone far above hunt on a 
creek threw corn in the water. The corn eventually floated by my 
friend, who was unlucky enough to have a Federal law enforcement 
officer walk up just as the kernels floated by.'' But when I contacted 
Mr. Winegar for more details about this shocking incident, he couldn't 
remember when or where it had occurred. Nor could he remember the name 
of his ``friend.'' In fact, he wasn't even sure where he had heard the 
tale. ``Probably In a duck blind:' he allowed.
    Another ugly episode has been widely publicized by Randy Vogel, 
director and founder of the ``Sportsmen's Defense Fund'' which seeks 
carefully written ``examples of overzealous law enforcement 
activities'' along with money for the legal defense of federally abused 
hunters. On September 30, 1994, Federal agents on routine patrol near 
Browning, Illinois, noticed that the Long Lake Hunt Club had planted 
millet to attract waterfowl. Nothing wrong with that. But some of the 
millet appeared to be cut. The Feds took some photos and had a chat 
with game wardens of the Illinois Department of Natural Resources 
(DNR). When the state wardens made a routine inspection on October 24, 
they found the millet fields mown and the hunting area awash with 
millet seeds. This might or might not have attracted significantly more 
ducks thin if the seeds were still attached to the living plants. But 
if hunters were allowed to shoot over cut seed plants, they could keep 
adding seeds to the field; and if they were careful, the Fish and 
Wildlife Service would never be the wiser. Dove poachers do it all the 
time.
    So the state wardens and two Federal agents staked out the place, 
and when club members went hunting on the season's October 27 opener, 
the wardens pinched them for shooting over bait.
    One of the members cited was Randy Vogel. According to court 
documents, Vogel told the officers that he'd take care of the whole 
matter with just one phone call--apparently to his hunting buddy, 
Department of Natural Resources director--Brent Manning. After the 
officers had left, the captain got a call on his car phone from 
Manning's law-enforcement chief, ordering the team to return to the 
club and see if this whole thing wasn't just a big misunderstanding. It 
was not, reported the captain after the second inspection. Vogel and 
his associates were fined, and the Seventh Circuit Court of Appeals 
upheld the decision.
    But Manning and Vogel did not quit the fight. They spoke out 
everywhere about the Feds end their unfair antibaiting regulation. 
Manning toured the country, whooping it up for bait regulation 
``reform.'' In Memphis he addressed the International Waterfowl 
Symposium. In Tulsa, the North American Wildlife Conference. According 
to Manning, reported the Chicago Tribune, ``untold numbers [of plant-
cutting waterfowlers] have gotten into legal trouble simply by doing 
what they thought was right.'' (The Fish and Wildlife Service says 
these have been about 10 such plant cutters prosecuted in the United 
States during the past 20 years.) Ducks Unlimited quickly fell in step, 
issuing a statement that any manipulation of non-agricultural plant 
species should he made legal, whether or not they are bearing seed''
    Manning and Vogel offered more testimony against the antibaiting 
regulation at the House Resources Committee's May 15, 1996, dog and 
pony show. So much noise did Manning make that the International 
Association of Fish and Wildlife Agencies selected him as chairman of 
its Ad Hoc Committee on baiting. The Fish and Wildlife Service had 
requested a review only of moist-soil-plant management for ducks and 
geese, but Manning's committee has taken it upon itself to recommend 
not only that law-enforcement personnel be assigned mind-reading 
responsibilities (that is, to determine intent to bait) but that 
waterfowl hunts be allowed over all cut ``natural plants,'' and even, 
in some circumstances, millet (which has no agricultural purpose other 
than as birdseed). Manning says his committee will even look at the 
bait regulation as it applies to doves.
    ``What's to look at with doves?'' asks Dave Hall, who retired from 
the Fish and Wildlife Service in 1994 after 34 years with its 
enforcement division and who now serves the Ad Hoc Committee as a 
technical adviser. ``There's nothing a dove hunter can't legally do 
when it comes to cutting or manipulating ripe [food] plants. The only 
change they can make for doves is write a law that says you can dump 
bait out of a sack.''
    To understand the politics of bait fully, it is necessary to place 
the current ``reform'' initiative in its proper historical perspective. 
Identical initiatives motivated by identical appetites have 
consistently been launched since baiting was outlawed in 1935. The most 
recent battle occurred in 1988 along the Pacific Flyway, when the Fish 
and Wildlife Service reignited passions by suggesting cancellation of 
the special baiting permission it had granted to California in 
settlement of a suit brought by the state on behalf of its wealthy duck 
clubs. When Audubon sent me to the Salton Sea to report on the fracas, 
the executive secretary of the state Fish and Game Commission told me 
that without ``feeding,'' all the ducks in California would fly to 
Mexico for the winter. (That is, they would do what ducks everywhere in 
the Northern Hemisphere do each autumn, fly south.) I had to agree. 
With the help of legitimate duck hunters and the National Audubon 
Society, the Fish and Wildlife Service won. So did the ducks.
    Four years earlier, when Don Perkuchin took over as manager of the 
Blackwater National Wildlife Refuge, in Maryland, the baiters had the 
place surrounded. They were sucking ducks out of the refuge; so 
Perkuchin started passing out tickets like a conductor on a rush-hour 
commuter train. The baiters, especially the politicians from 
Washington, DC, didn't like getting busted. When they told Fish and 
Wildlife Service director Frank Dunkle to call off the duck cops, he 
meekly obeyed, ordering the Blackwater staff to stay inside the refuge 
and literally ``disappearing'' Perkuchin to Okefenokee.
    In 1972 Federal agents Fred Williams, Willie Parker, and Dave Hall 
were called before Congress to testify about rampant baiting. After 
telling the truth--i.e., that the agency was failing in its duty to 
protect migratory birds--Parker and Hall were transferred; Williams, 
demoted. But Congress and conservationists rallied to their defense. 
Eventually, the ducks won.
    The baiting war that was going to end all baiting wars got under 
way in 1951, when Federal agent Fred Jacobson moved into the Lake Erie 
marshes like Eliot Ness into the South Side of Chicago. So undone was 
the Ohio Wildlife Council that it convened an emergency session to 
legalize baiting (at least under state law). The chairman of Ohio's 
Natural Resources Commission promised co fight the ``unconstitutional'' 
Migratory Bird Treaty Act all the way to the Supreme Court. ``We're not 
baiting,'' he explained. ``We're feeding.'' After Jacobson busted a 
hunting buddy of U.S. Senator John Bricker (R-OH). Bricker introduced 
``reform'' legislation that would have overridden the president's power 
to make treaties such as the one that spawned the MBTA. Through it all 
the Fish and Wildlife Service stood tall. Finally, director Al Day was 
given the choice of calling Jacobson off the baiters or getting fired. 
He chose the latter.
    Jacobson knew the ducks had won in 1954. When a hunter announced he 
couldn't afford to keep his marsh now that he was scared to bait it. 
That season the hunter had shot only 263 ducks. ``How many do you 
usually kill?'' Jacobson asked.
    ``Between 300 and 500.''
    ``How big is your marsh?''
    ``About three-fourths of an acre.''
    Jacobson says he doesn't know who will win the 1997 battle. But 
Vernon Ricker, the soon-to-retire agent responsible for the Eastern 
Shore of the Chesapeake Bay, doesn't think that it will be the birds.
    ``I've enforced the MBTA for 28 years,'' he told me. ``And I can 
tell you the Fish and Wildlife Service was going to go with the flow. 
It will cave in on anything. If it cared about the resource, we would 
have people here on the Eastern Shore to enforce the law.'' Maybe 
Ricker has a point; under pressure from big-shot baiters, the agency 
has reduced the number of agents patrolling the area from 12 to 1.
    Always the bastard child of the Fish and Wildlife Service, the 
Division of Law Enforcement is constantly nagged to be more 
``preventive,'' more ``customer friendly.'' But maybe it's time for the 
Fish and Wildlife Service to have a long think about who its customers 
really are. They are the 50 million Americans who enjoy watching 
migratory birds. And they are the 3 million Americans who enjoy hunting 
migratory birds without bait--who take the time to read water, wind, 
and law, who can work a circling drake pintail with a call, coaxing him 
down out of an icy autumn dawn; who train dogs; who have learned how to 
build a blind and position a decoy set; who have always believed that 
there can't be any thrill to the chase if there is no chase.
                               __________
   Sitting Ducks: The U.S. Fish & Wildlife Service's Assault On The 
                       Migratory Bird Treaty Act
                               june 1998
    Public Employees for Environmental Responsibility (PEER) is an 
association of resource managers, scientists, biologists, law 
enforcement officials and other government professionals committed to 
upholding the public trust through responsible management of the 
nation's environment and natural resources.
    PEER advocates sustainable management of public resources, promotes 
enforcement of environmental protection laws, and seeks to be a 
catalyst for supporting professional integrity and promoting 
environmental ethics in government agencies.
    PEER provides public employees committed to ecologically 
responsible management with a credible voice for expressing their 
concerns.
    PEER's objectives are to:
    1. Organize a strong base of support among employees with local, 
state and Federal resource management agencies;
    2. Monitor land management and environmental protection agencies;
    3. Inform policymakers and the public about substantive issues of 
concern to PEER members; and
    4. Defend and strengthen the legal rights of public employees who 
speak out about issues of environmental management.
    PEER recognizes the invaluable role that government employees play 
as defenders of the environment and stewards of our natural resources. 
PEER supports resource professionals who advocate environmental 
protection in a responsible, professional manner.
                           about this report
    This PEER white paper documents the retreat of the U.S. Fish and 
Wildlife Service (USFWS) from strong and uncompromised enforcement of 
the Migratory Bird Treaty Act (MBTA). According to its own enforcement 
personnel, the agency is bowing to intense political pressure to allow 
unethical hunting techniques, principally baiting, which will 
facilitate detrimental over-harvesting of game birds.
    This report was prepared by USFWS law enforcement officers charged 
with the difficult duty of enforcing hunting regulations on the 
millions of sportsmen who participate in the taking of game birds 
during the annual hunting season. These special agents--who 
collectively have more than 500 years of wildlife law enforcement--are 
forced to remain anonymous not only to avoid repeated threats of 
retaliation from politicians and their own agency, but also to let the 
facts contained herein speak for themselves.
    Information relating to particular cases discussed in this white 
paper was obtained through published media coverage and other public 
sources.
    While critical of baiting, this report is by no means a critique of 
the practice of sport hunting. Many of the authors of this report hunt, 
but are outraged by what they see as hunting which contradicts the 
principles of fair chase and damages the very resources whose survival 
makes recreational hunting possible.
    On behalf of special agents, PEER has also submitted to USFWS, as 
part of the public comment process, a detailed analysis opposing 
specific elements of the proposed rule change. A copy of the PEER 
comments is available upon request.
    For more information about out how the agency's regulatory proposal 
would weaken the anti-baiting provisions, consult the Federal Wildlife 
Officers Association website at http://www.nauticom.net/www/harts/fwoa/
fwoahome.htm
    PEER is proud to serve conscientious public employees who have 
dedicated their careers to the faithful execution of the laws that 
protect our natural resources.
                                              Jeffrey Ruch,
                                           PEER Executive Director.
                                 ______
                                 
                          i. executive summary
    At a time when migratory bird populations are stressed by habitat 
loss, pollution and hunting, the Department of Interior's Fish and 
Wildlife Service (USFWS)--the Federal agency mandated to conserve 
America's wild fowl--is proposing changes to liberalize restrictions 
against the use of bait to attract waterfowl. According to its own law 
enforcement personnel, USFWS has succumbed to mounting political 
pressure to loosen the Federal baiting prohibition.
    Baiting is the illegal practice of using feed to attract game. It 
is a highly effective way to lure birds within a hunter's range of fire 
because feeding birds conditions them to return to a specific area time 
and time again. In this regard, a baited area is essentially no 
different than a bird feeder. Law enforcement officers and ethical 
hunters agree that this activity, which has been outlawed since 1935, 
violates the tradition and sporting heritage of hunting.
    Despite more than six decades of enforcement, baiting remains one 
of the most common hunting violations. Baiting usually occurs in 
conjunction with other illegal hunting practices, such as exceeding 
kill or ``bags limits. Due to the vulnerability of migratory birds to 
the lure of bait, large-scale baiting usual Iy results in the slaughter 
of hundreds of birds in a short period of time.
    Enforcement of anti-baiting laws has significantly reduced the 
unsustainable taking of game birds, but other factors continue to place 
pressure on bird populations. As habitat continues to decline in both 
quality and quantity, migratory birds are forced to concentrate into an 
ever-shrinking area, making them easier targets for hunters. For 
instance, North America's duck population, which has declined by 60 
percent since the 1950's, is being decimated by hunters, many of whom 
use bait. The reason is evident--ducks are more scarce and baiting 
assures kills. The same is true for other migratory game species, 
including geese, swans and doves.
    USFWS special agents, empowered to strictly enforce hunting laws, 
fear proposed changes that would hinder prosecution of hunters who 
shoot birds over bait and, as a result, drastically reduce game bird 
populations, undermining the intent of species protection laws. The 
officers question the motives of those and particularly their own 
agency--in favor of allowing the use of ban' to hunt game birds. Like 
most Americans, the agents disagree with any government policy that 
promotes the use and abuse of migratory birds in a manner that has been 
banned for more than six decades.
    Each year, the nation's approximately 200 USFWS law enforcement 
officers issue hundreds of citations for violating hunting laws, many 
for baiting. Many of these flagrant cases involve prominent individuals 
who use bait to ensure kills and often shoot more birds than the law 
allows. Despite their efforts, these few Federal agents cannot possibly 
ensure total compliance among the nation's more than 20 million 
hunters. Their job would be made more difficult if the USFWS weakens 
existing regulations.
    The powerful sportsmen lobby and its state and Federal political 
supporters are pressuring the agency to change existing standards. 
State game agencies and hunter constituency groups want to relax 
baiting regulations that they claim hurt the average hunter. The 
proposed changes discriminate in favor of commercial interests--namely 
private hunt clubs which cater to wealthy and influential members--who 
want to enhance their hunting through baiting. Since birds would no 
doubt flock to the clubs' many acres of prime, heavily manipulated 
habitat, the common hunter would no longer have an equal chance to 
compete for limited waterfowl resources.
    Congressional legislation has also been introduced to relax 
regulations by making it more difficult to punish hunting violators who 
fail to understand baiting laws. Most offenders are indeed victims of 
ignorance. They failed to learn the cardinal rule of Federal game 
laws--the hunter is always responsible when it comes to hunting over 
baited areas. If passed into law, the bill would, among other things, 
shift the burden of proof from hunters to law enforcement, making it 
more difficult to prosecute violators; eliminate the incentive to 
comply with regulations; and put migratory birds at greater risk.
    In light of these issues, USFWS agents are baffled by their 
agency's recent, inexplicable turnaround on the issue. In May 1997, 
USFWS Assistant Director Robert Streeter testified before Congress 
against proposals to loosen MBTA provisions, arguing that such measures 
would ``liberalize bird baiting laws and result in more birds being 
killed as a result of baiting'' and possibly ``result in overharvest 
of. . . waterfowl.
    On the issue of hunter equity, Streeter warned that 
``liberalization. . . could promote and encourage an inequity whereby 
those with the greatest financial motivation and resources, such as. . 
. hunting clubs and commercial hunting operations, would benefit the 
most at the expense of the wildlife resource and the common hunter.'' 
In terms of the impact on the sport of hunting, Streeter said the 
loosening of regulations amounted ``to the elimination of the 
traditional 'fair chase' hunting standard'', providing ``the anti-
hunting segment of society a new platform to pursue for closure of all 
hunting activities.''
    Now, just one year later, there seems to be widespread complicity 
and cooperation on the part of the USFWS to deregulate antibaiting 
regulations.
    Given the agency's new position, it is not surprising that in 
January, 1998 a USFWS employee was caught illegally hunting swan at a 
Virginia farm that had been the scene of repeated illegal baiting 
activity. The violator, Mr. Ronald Kokel--a wildlife biologist with the 
Office of Migratory Bird Management--was deeply involved in formulating 
the agency's proposed rule change regarding baiting.
    In the opinion of USFWS special agents, both the agency's proposed 
regulatory changes and pending legislation endorse politics at the 
expense of conservation, riddling the regulations with loopholes that 
will render them unenforceable. By eliminating proven deterrents, 
baiting relaxation would increase enforcement costs at the expense of 
the too few officers in the field. The net effect would be a drastic 
reduction in game bird populations.
                          ii. world of baiting
    As post-industrial values continue to gain ascendancy in rural 
areas of the United States, increasing amounts of criticism of the 
poacher and his fading culture are sure to follow. This criticism 
eventually will find its way into the vocabularies and motives of the 
game wardens who have acted as a cultural buffer between poachers 
caught between the norms of society and survival and the encroaching 
modern world.--Craig Forsyth, The Game of Poaching.
    The Migratory Bird Treat Act (MBTA) has been the principal statute 
protecting migratory birds in the United States for 80 years. Enacted 
to save birds ``from indiscriminate slaughter,'' the law makes it 
illegal To hunt, take, capture, kill, attempt to take, capture or kill, 
possess, offer for sales more than 800 avian species. The MBTA does, 
however, permit hunting of migratory birds such as ducks, geese, swans, 
doves and others, subject to Federal regulations. The ``taking'' of 
game birds for sport occurs yearly during fall and winter hunting 
seasons.
    Perhaps the most important of the MBTA regulations, in terms of 
preventing dramatic population declines, are those governing baiting. 
Baiting is the practice of illegally using grain, seed or other 
substances to attract birds to a hunt. This practice has been outlawed 
since 1935. And for good reason--ducks, doves and many other migratory 
birds are notoriously easy to attract to bait.
    This inherent vulnerability means that once exposed to sufficient 
quantities of salt, rice, grain, or other substances, the birds lose 
their natural wariness and return repeatedly to the food, whether or 
not they are being shot at by hunters. The need to prohibit hunting 
over bait was demonstrated quite clearly in a well-known study 
conducted in the early 1940's which found that kill levels dropped from 
1 million birds to 175,000 when bait was eliminated.
Law of the Land
    Current rules regarding baiting are based on time-honored, court-
tested principles which are straightforward and simple to understand. 
Federal regulations (CFR 50, Part 20) specify that No person shall take 
migratory game birds by the aid of baiting or on or over any baited 
area. Baiting is defined as The placing, exposing, depositing, 
distributing, or scattering of shelled, shucked, or unshucked corn, 
wheat or other grain, or salt or other feed so as to constitute for 
such birds a lure, attraction or enticement to, on, or over any areas 
where hunters are attempting to take them. In other words, baiting 
occurs when food is spread or placed in the open or in water in order 
to lure migratory game birds, usually ducks or doves.
    It follows then that a baited area is any area where the food is 
placed and where shunters are attempting to take--shoot, possess, 
kill--the targeted birds. The present regulations further state that 
the area where bait is spread is considered off-limits to hunting for a 
set period following complete removal of the bait. All grain or feed 
must be completely gone from the area for 10 days before the area can 
be legally hunted. The 1O-Day Rule is essential because the birds 
habitually return to the same spot for several days after their food 
supply no longer exists. Some hunters refer to birds exposed to bait as 
``drugged or Daffy ducks,'' so blinded by the quest for food that these 
wild creatures ignore instinct by acting almost tame.
    All of the crimes under the MBTA are classified as misdemeanors or 
petty offenses, carrying a maximum $5,000 fine. There is a possibility 
of jail time and loss of license for repeat offenders.
Legal practices
    There is a difference between an illegally baited field and one 
which has legally been prepared with seeds for a legitimate purpose, 
such as farming or wildlife management. Both may contain food for 
birds, the difference basically being how and why it is there.
    Federal regulations recognize that agricultural lands afford good 
migratory bird hunting. Birds are predictable and prefer farm land 
where crops have been harvested, providing them with their preferred 
food source--seeds. It is perfectly legal, for instance, to hunt 
waterfowl over areas where normal crop planting and harvesting have 
occurred. Likewise, it is permissible to hunt doves over an area where 
scattered grain is present solely due to a ``bona fide'' agricultural 
operation or where standing crops have been manipulated--cut, mowed, 
dragged down, bush-hogged, dished or burned--for wildlife management 
purposes.
    Planting crops or creating habitat which attracts game is 
permissible; indeed, wildlife agencies will actually help. But 
spreading the seed to attract the birds is forbidden. The general 
theory is that planting the crops has a long-term benefit for wildlife 
because the scattered seed is there before and after the hunting. That 
type of planting is thought to benefit wildlife other than the game 
birds.
    The mistake too many landowners make is instead of preparing their 
crops earlier in the year for hunting season, they wait until a few 
days before the season starts to top-sow wheat, for instance. The only 
purpose for spreading seeds around generally at that time of year is to 
guarantee bird kills.
Legal Agricultural Hunting Areas
      Standing crops: fields of unharvested commercial crops 
such as wheat, corn, sorghum or mile.
      Flooded crops: crops that are grown, led standing and 
flooded.
      Aquatic plants: plants which live and grow in water.
      Flooded harvested crops: flooded crops where grain is 
present solely as a result of a normal harvest.
      Shocked grain crops: stacking stalks of grain upright on 
the same field where they were grown.
      Normally planted crops: planting must be done in a way 
where normal methods are used to produce a crop (does not include top-
seeding or the placement of grain in piles or other large 
concentrations).
      Harvested crops: normal harvest scatters grain over a 
wide area, rarely in long rows or piles.
Too Close for Comfort
    Many hunters wonder, ``how close can I be to bait without breaking 
the law?'' There is no set distance. Court rulings on baiting 
violations state that the distance between the hunter and the bait 
varies. The influence of bait can extend or shrink on the basis of many 
factors, including the topography or landscape of the area, the 
weather, and bird flight patterns. The question of distance is decided 
on a case-by-case basis. Regardless, agents estimate that the number of 
truly unaware hunters cited for illegal baiting represents an 
infinitesimal number of cases.
    In those rare situations, the hunter could probably have avoided 
trouble by taking preventative steps to avoid hunting in a baited area:
      Ask before hunting. It is the hunter's responsibility to 
talk to the host or property owner to find out what was done to the 
field and when. Some landowners may try to manipulate the rules by 
placing food out continuously through the summer, stopping 2 weeks 
before hunting season. Regardless, anyone who hunts over an illegally 
prepared field is subject to the baiting law.
      Look before hunting. Simply asking his it legally and 
then hunting is not enough. Neither is a cursory examination of the 
first few yards in front of a shooting vantage. Hunters must make a 
vigorous visual inspection of the field. This involves arriving early 
enough to walk the field, preferably in a zig-zag pattern from one end 
to the other, looking for signs of baiting. Grain for legitimate crops 
are always evenly distributed, not clumped or broadcast. Piles or rows 
of grain and seed recently turned under the topsoil are not part of 
normal planting or harvesting or the result of a bona fide agricultural 
practice.
      Use logic before hunting. A hunter should consider why 
birds would be attracted to the area. If the field recently has been 
plowed and is nothing but rows of mud, something obviously is wrong. 
Birds are not attracted to bare dirt or tall green plants. They seek 
seeds and grains. If there is any doubt that a field the hunter plans 
to hunt may be illegal, it is not worth the risk to hunt.
Strict Liability
    Federal wildlife officers live by a simple credo--the regulations 
regarding baiting are clear and the law will be enforced. The hunter is 
ultimately responsible for his actions and should make an effort to 
assure his area is bait-free. Tried and tested for more than half a 
century in state and Federal courts, baiting laws come under the legal 
principle of ``strict liability''--that is, judges do not require the 
prosecution to prove the hunter had prior knowledge of baiting. All 
they have to prove is the defendant was hunting over bait. So as soon 
as he attempts to hunt over a baited field, the hunter has technically 
broken the law, and can be prosecuted.
    In establishing this precedent, the courts clearly place the 
responsibility on the hunter, regardless of who owns the field or who 
actually prepared it. Law enforcement officers agree strongly with this 
rationale because there is no practical alternative to this approach to 
enforcement.
Tricks of the Trade
    Before shooting, hunters should look for any signs of seed, grain, 
salt or anything else not attached to natural vegetation growing in the 
field. If something seems suspicious, hunting is not worth the risk. 
Some sure baiting giveaways even ``city slickers'' can notice:
      Birds flocking to a field without any crops or plants. 
Doves and ducks do not eat dirt. Birds attracted to a seemingly barren 
field are a sign the owner probably had bait out and plowed it under a 
day or two before the season--an illegal act.
      The heavy presence of seeds in the dirt on a field 
growing a crop. One baiting trick is to spread grain and seed after the 
crop has started to come up. Agents usually spot it quickly. So should 
hunters.
      Birds flocking to an adjacent field in inordinate 
numbers. Shooting birds attracted by bait is against the law--whether 
the bait is on the field the hunter is sitting on, or one next to it.
    Omitting or relaxing strict liability in any way would cripple the 
MBTA regulations and lead to a host of problems. For instance, officers 
would have to catch people in the act of baiting to make a solid case. 
In order to do this, they would require expensive, high-tech equipment 
like helicopters to enforce the regulations. Also, many more agents 
would be needed in the field to conduct sting operations and 
investigations, particularly since even more of the agents' time would 
have to be spent in the office developing cases.
    Realistically, if an agent had to keep a field under surveillance 
24 hours a day, 365 days a year, and also read a hunter's mind, there 
would never be a conviction. Without convictions there is no deterrent, 
and the law is rendered meaningless.
Off the Hook
    The concept of strict liability is common among environmental 
statutes such as oil spill and toxic pollution laws. Not only is strict 
liability central to the MBTA, this standard also extends even to non-
hunting violations, providing leverage over individuals, and 
particularly industries, to take steps to avoid killing birds. 
Replacing strict liability with a ``scienter'' standard--requiring 
agents to prove prior knowledge of or intent to violate--would create 
so many avenues of ``reasonable doubt'' that convictions would be few 
and far between. Examples of potentially valid excuses without strict 
liability:
      a hunter who shoots a Western Kingbird--``I thought it 
was a dove.''
      an oil company whose open oil pit kills geese--``We 
didn't realize it posed a danger.''
      a mining company using cyanide leach--``We never intended 
to kill any birds.''
      a farmer using harmful pesticides--``I couldn't help that 
ducks fed on the field.''
      a person who poisons swans--``I only meant to kill 
starlings.''
      a seller of Indian artifacts--``I had no idea they were 
eagle feathers.''
    Finally, agents worry that the need to prove the hunter's knowledge 
or intent would result not only in more case dismissals but also more 
lawsuits against wildlife officers themselves for false arrest. Even 
under the current regulations, commercial hunting operators have tried 
to sue officers for economic damages resulting from ``closure'' of a 
club or the bad publicity surrounding an arrest. Many of the well-
connected hunters would not hesitate to sue agents as a bullying tactic 
or for revenge. Even though many of these suits would be defended by 
the government on the agent's behalf, the uncertainty and stress 
inherent in this type of litigation are not welcomed by overworked law 
enforcement officers.
Ducks Not So Unlimited
    The most hunted and the most harvested migratory game bird in North 
America is the mourning dove, of which 45 million of the estimated 500 
million population are killed annually in the United States during 
hunting season. Waterfowl is also a highly prized game bird. So much so 
that over the last five decades, North America's duck population has 
declined by 60 percent.
    Migratory birds face many pressures in this country, not the least 
of which is habitat loss. The Mississippi Flyway, the area running the 
length of the country's mid-section, is suffering the loss of thousands 
of acres of habitat annually. Originally, the Mississippi Alluvial 
Plain comprised nearly 24 million acres of bottomland forested 
wetlands. By 1937, only 11.8 million acres (50 percent) of these 
remained. Today, there are less than 5.2 million acres left, roughly 20 
percent of the original acreage.
    The Mississippi's bottomland hardwood forests are among nation's 
most important wetlands, serving as primary winter breeding ground for 
many waterfowl, including 85 percent of the 3 million mallards (among 
the species hardest hit), nearly all of the 4 million wood ducks, and 
countless other migratory birds. Since the 1950's, these forested 
wetlands have been converted for crop production, drained for Federal 
flood control and navigation projects and cleared for other development 
at an accelerated rate. An estimated 2 percent of remaining bottomland 
forests are lost annually.
    Each year hundreds of miles of coastal marshes also disappear, 
primarily due to erosion.Without the constant infusion of fresh water 
from rivers, the marshes subside, and are virtually defenseless against 
the Gulf of Mexico's ever-pressing saltwater. Indeed, the freshwater 
marshes that once lay before the Gulf, teeming with healthy and 
abundant fisheries, have largely vanished. In their place are vast 
expanses of brackish and salt water.
Baiting's Impact on Wildlife
    As habitat continues to decline in both quantity and quality, the 
dwindling waterfowl population is forced to concentrate into an ever-
shrinking area, making the birds easier targets for natural predators 
and hunters alike. Even with continental duck populations dropping 
faster than habitat is being destroyed, the USFWS, along with many 
sportsmen and conservation groups continue to ignore the impact of 
hunting on the resource. As a result, North America's battered ducks 
are being decimated by hunters, many of whom hunt over bait.
    When asked why he illegally baited, a convicted hunter replied: 
``You have to if you want to get ducks these days.'' The reason is 
simple: Ducks are more scarce and baiting assures kills. Repeatedly 
told by the USFWS and groups like Ducks Unlimited that ``hunting is 
compensatory,'' ``hunting has no impact,'' it is little wonder many 
conclude that cheating a little to ensure a day's kill is not really a 
big deal.
    Agents contend and studies confirm that baiting is usually 
associated with other hunting violations. According to a survey 
conducted during the 1986-90 hunting seasons by wildlife experts at 
Mississippi State University, 36 percent of all Mississippi Flyway 
waterfowl hunters admitted committing one or more violations. The 
southern region of the Flyway--Arkansas, Mississippi, Tennessee and 
Louisiana--consistently had the greatest percentage of violators. For 
example, Federal law enforcement officers estimate that illegal 
waterfowl hunting in Texas and Louisiana exceeds by four times the 
annual legal kill.
    Most guilty hunters surveyed said they broke laws intentionally, 
primarily those concerning baiting and bag limits. The fact that many 
hunters engage in unethical practices in the field suggests there is a 
continuing need for wildlife law enforcement. Indeed, in all states 
surveyed, violators and legal hunters thought increased law enforcement 
(particularly undercover operations), mandatory loss of hunting 
privileges, large fines and jail terms were the most effective 
deterrents to illegal hunting. As the scientists who designed the MSU 
survey suggest, ``Unfortunately, there will always be a segment of the 
hunter population that must be regulated into lawful behavior.''
    If every hunter killed the bag limit every time out, overharvest 
would result. So what will it take to wake hunters up to the true cost 
of baiting in terms of the resource? Perhaps when the last duck flies 
over the marsh. ``If that happens,'' warns one agent, ``I just hope 
everyone doesn't rush to get their guns and shoot it.''
                        iii. poacher's paradise
    Nobody left me any buffalo to shoot. Why should I leave anyone any 
ducks?--Louisiana hunter
    In March 1971, USFWS law enforcement officers stationed in 
Louisiana wrote a memorandum to their superiors in Atlanta and 
Washington, DC, describing the widespread waterfowl poaching problem. 
The memo details a 3-day period during a previous hunting season in 
which the officers made random spot checks wherever they observed duck 
hunters and concentrations of waterfowl. With the use of a helicopter 
they inspected a number of hunting parties and found frequent evidence 
of baiting.
    According to the memo, the special agents ``filled litters attached 
to each pontoon of the helicopter with seized ducks.'' They also filled 
the cockpit with ``additional burlap bags of seized waterfowl. The 
large number of illegal duck kills forced the helicopter to return to 
the airport several times to off-load and dispose of the carcasses.
    In a later foray, the officers inspected more than two dozen duck 
hunting clubs. As stated in their memo, ``one hundred percent of these 
clubs produced evidence of baiting.''
    A standing joke in Louisiana is that if you wanted to control a 
bird's population, make the bag limit two and close the season. ``We 
did wrong, we admit that,'' said Dennis Badeaux, a hunter found guilty 
of shooting more than 50 birds over a baited pond in a Louisiana bayou. 
``It's just that for so long, killing ducks like we did was the 
accepted practice down here. Nobody thought anything about it. We 
killed what we wanted to kill. . 200, maybe 300 [birds] a day. No big 
deal.''
    In some places, men are often judged by the number of birds they 
kill. Indeed, for many baiting is more than just a standard hunting 
practice--it is a way of life. Other hunting violators are ``weekend 
warriors'' from urban areas who are either too lazy or too pressed for 
time to sit in a blind all day and risk going home without a duck.
Playing Catch
    Every year wildlife officers around the Nation issue thousands of 
citations for hunting violations. The lure of using bait to draw 
migratory birds into an open field of the hunters' choosing is a 
powerful one and has led to many flagrant cases. The following are 
typical examples of what agents experience during the annual hunting 
season:
    Earlier this year in Nebraska, former Minnesota Vikings football 
coach Bud Grant and members of his hunting party were caught baiting 
migratory birds during the filming of an outdoor television show. More 
than 100 pounds of corn were scattered among decoys in order to 
guarantee televised shooting action.
    In 1996, a former Kentucky Governor, his son, a member of the board 
of education, two police officers and a mayor were among 36 prominent 
citizens cited for taking part in an illegal dove hunt. The traditional 
opening day paid event involved the use of sunflowers and top-sown 
wheat to attract birds to the farm.
    In 1993, a Washington, DC lobbyist and 20 of his friends and 
clients slaughtered nearly 200 ducks in 45 minutes at a Chesapeake Bay 
area private hunt club.
    At an opening weekend ``charity shoot'' in 1991, law enforcement 
officers busted 88 Louisiana hunters, many of them prominent 
businessmen, for baiting at a private hunt club. A team of state and 
Federal agents closed down the hunt because surveillance photographs 
revealed that piles of grain had been illegally placed on several 
fields a few days before the hunt and then ``turned under'' the surface 
the day before the opener. Many of the hunters had paid as much as $80 
each for the chance to take part in the event, billed by club operators 
as ``the hottest dove action north of the border.''
    In another Louisiana joint state-Federal crackdown, a state game 
warden was among more than 50 people pinched for hunting doves over a 
heavily baited wheat field. Another 40 hunters were cited for baiting 
on the same day in a nearby parish.
    In South Carolina, at a time when declining waterfowl populations 
forced a shortened hunting season and reduced the bag limit to two 
ducks per hunter, nine men were cited for killing 144 wood ducks. The 
hunters committed the violations in an area that had been set aside as 
a waterfowl sanctuary.
    A few years ago in Virginia, two county judges and a retired State 
Police Captain were among a group of 50 hunters who bagged hundreds of 
doves over a wheat scattered farm field. That same season, 18 county 
lawyers, one a former Commonwealth's attorney, were nabbed using a 
``borrow pit''--a large, shallow hole filled with gravel, wheat and 
water--to kill doves as they descended to the trap. In another case, 
two men without valid duck ``stamps'' used 100 pounds of corn and live 
bait--two caged, honking Canada geese--to lure ``some meat,'' as they 
later referred to the birds. The use of live bait was banned along with 
baiting in 1935. The hunters were prepared to shoot the incoming geese 
and ducks with outlawed semiautomatic shotguns capable of shooting five 
shots without re-loading (instead of the legal maximum of three shots).
    In 1990, an Alabama lawyer, his father and two other men were 
charged with multiple hunting violations, including baiting. Using mile 
to attract hundreds of ducks to a pond, the hunters bagged 52 birds, 
including 46 mallards. Aside from taking 27 catches over the limit, 
nearly half of the ducks killed were hens, which were scarce that year. 
When the hunters noticed the agents, two tried to flee in boats but 
were tracked by a helicopter.
    A sting operation in Texas netted $250,000 in fines, 1,300 
citations and criminal indictments against 200 hunters, their guide 
services and several ``four star'' hunt clubs for massive hunting 
violations. Over a ton of wheat was used as bait to ensure high ``body 
counts.'' Hunters packed into blinds, hid until the birds settled on 
the water in large concentrations, and then fired en masse. With so 
many targets, there was no need to aim. One professional guide was 
charged with encouraging his clients to ignore bag limits and ``just 
keep shooting.'' Hundreds of ducks, geese and non-game bird were killed 
in what the media later dubbed the ``Texas Waterfowl Massacre.''
Spread Too Thin
    A ``reformed'' poacher in Maryland told officials that for 50 years 
he baited ``two or three times a day'' without ever getting caught. He 
estimated that he killed more than 30,000 ducks during his poaching 
career. Taking a look at enforcement numbers in this country, it's not 
surprising that hunters can avoid getting caught breaking the law given 
the obstacles officers face.
    The ratio of hunters to wildlife officers is approximately 9,000 to 
1. This means that there are only 7,000 state and Federal officers 
covering the entire nation, from Alaska to the Virgin islands, from 
Main to Guam, monitoring the activities of 20 million hunters. Year-
round these officers enforce laws during hunting seasons for a variety 
of game species ranging from deer and bear to pheasant and quail. In 
addition to migratory bird laws, USFWS special agents nationwide are 
also charged with enforcing interstate wildlife transportation laws 
(the Lacey Act), the Endangered Species Act (ESA), the Airborne Hunting 
Act and all other Federal laws regulating wildlife, including fish.
    Not surprisingly, these paltry few Federal law enforcement 
officers--roughly 200 special agents nationwide--are so underfunded and 
under-equipped that they can do little more than sit and watch as 
wildlife is gunned down. In Colorado, for example, where nearly two 
million hunting licenses are sold each year, there are three Federal 
field agents to cover the entire 104,000-square-mile state. Because of 
paper work requirements and other competing demands, agents never get 
around to enforcing wildlife laws at all in some states. While poachers 
take animals year-round, agency funding restrictions keep most agents 
deskbound after waterfowl hunting season ends, making enforcement 
virtually non-existent for many months at a time.
    The minimal Federal presence in some areas is more troublesome 
given that Federal law enforcement is comparatively free of certain 
political constraints that are a fact of life for state agents. Like 
their Federal counterparts, state agents are charged with enforcing 
waterfowl laws but their jobs oftentimes are vulnerable, especially 
when they nab the wrong person. Political interference often comes with 
the territory in some state game agencies, with some states more 
political than others. Indeed, a state game warden who pinches someone 
who knows a legislator or high official, might put his job in jeopardy, 
or at least find life more difficult in the field.
Taking the Bait Out of Crime
    Despite the seemingly uphill fight agents face, enforcement can 
have an impact. For instance, things have changed dramatically in 
Louisiana in the last decade. Migratory birdbaiting cases, along with 
other hunting violations, have dropped precipitously in recent years.
    Surveys made in the late 1980's show that Louisiana trailed only 
California and Texas in the number of hunting citations issued--not bad 
considering that a quarter of all waterfowl winter in Louisiana 
(ranking the state second only to California in that regard).
    There are a variety of contributing factors to the state's sudden 
turn around. Nationwide negative publicity in the 1980's surrounding 
baiting and other hunting crimes embarrassed Louisiana into finally 
taking action. State game wardens then began assisting Federal law 
enforcement agents in actively pursuing violators.
    Federal judges and magistrates began cracking down with tough 
penalties, often handing down jail time along with stiff fines. A 
former Louisiana Governor became so paranoid about being caught hunting 
over bait that he posted State Police officers on look-out to warn him 
if Federal law enforcement officers were spotted in the area.
    In Virginia, after waterfowl violations dropped considerably over a 
6-year period due to strong enforcement, some citizen members of the 
state game commission criticized Federal agents as ``overzealous'' in 
performing their duties. ``If hunters are mad, we must be doing our 
jobs,'' commented one of the agents.
    Statistics show that deterrence is working in Illinois, as well. 
Since 1993, as baiting fines have increased and more violators have 
lost hunting privileges, the number of citations have dropped 
dramatically, especially for baiting.
    Thanks in large part to certain and consistent enforcement, hunters 
have begun to realize that baiting is a serious offense. And it is no 
longer acceptable, in Louisiana, Virginia, Illinois, or anywhere else 
in the country. At least for now.
                        iv. in the line of fire
    Always the bastard child of the Fish and Wildlife Service, the 
Division of Law Enforcement is constantly nagged to be more 
`preventive', more `customer friendly.' But maybe it's time for the 
Fish and Wildlife Service to have a long think about who it's customers 
really are. They are the 50 million Americans who enjoy watching 
migratory birds. And they are the 3 million Americans who enjoy hunting 
migratory birds without bait. . . who have always believed that there 
can't be any thrill to the chase if there is no chase.--Ted Williams, 
The Baiting Game.
    USFWS law enforcement officers have a reputation of 
incorruptibility in enforcing laws and regulations. This even-
handedness has historically generated controversy when a person of 
influence gets caught.
A Gramm of Prevention
    In the Fall of 1987, just before opening day of waterfowl season, 
two USFWS special agents flying a routine early morning patrol over the 
Eastern Shore of the Chesapeake Bay spotted huge piles of bait ringing 
a pond below. They immediately suspected that local hunters were 
illegally trying to lure ducks into shotgun range.
    The area, located near the Blackwater National Wildlife Refuge, 
ranks among the country's most desirable locations for waterfowl 
hunting. Just a convenient 2-hour drive from the nation's capital, 
private hunt clubs abound to entertain rich and powerful clients. 
Sometimes, in the zeal to maximize their harvest during a stay, guests 
run afoul of game laws, usually by baiting.
    The pond that caught the eye of the agents that day happened to be 
adjacent to a vacation home owned by U.S. Senator Phil Gramm (R-TX). A 
followup inspection revealed clear signs of active baiting, including 
several hundred pounds of feed and spent shotgun shells around a duck 
blind. But after 4 days of undercover surveillance, no hunters showed 
up. Although Gramm denies it, a former Interior Department assistant 
secretary submitted sworn testimony to a congressional panel in 1989 
that then USFWS Director Frank Dunkle, aware of the ongoing 
investigation, tipped off the Senator to avoid an ``embarrassing 
situation for a politician Dunkle said was ``useful to Interior.
    The investigation soon fell apart amid a political firestorm 
generated by Gramm. An internal investigation into the episode found 
photographs of the baited duck blinds were mysteriously ``lost'' by the 
agency. As a result, the Senator's friends who owned the pond were 
exonerated of wrongdoing.
    The political fallout incited by Senator Gramm was swift and 
severe. After the inquiry, one of the agents was transferred. Gramm 
then met with Director Dunkle to complain on behalf of his neighbors--
many of whom were his political contributors--about the local refuge 
manager's aggressive crack-down on illegal baiting in the area. Gramm 
admitted telling Dunkle ``that people all over the country are up in 
arms over this guy.''
    After the meeting Dunkle told his deputy director that ``the 
management of the [Blackwater] refuge would go better if they had a 
change in the head of operations down there.'' When the deputy director 
and his regional supervisor disagreed, voicing strong support for the 
32-year USFWS veteran, they were demoted. The first order of business 
for their successors was to oust the refuge manager.
    Other changes followed. Dunkle ordered officers on the Eastern 
Shore to practice ``preventative'' law enforcement by notifying owners 
when bait was found on their land instead of issuing citations. He also 
restricted agents to the Blackwater's boundaries--an order that did not 
apply to the nation's more than 500 other refuges. Coincidentally, the 
number of special agents patrolling the more than 100 miles of 
shoreline has dropped from 12 to 2.
States' Rights and Wrongs
    Since their implementation in 1935, the MBTA regulations have been 
amended 18 times, the last time 25 years ago, in an effort to make them 
as clear as possible to hunters and to the agents charged with 
enforcing the law. Based on pressure exerted by a few politically 
powerful hunters, a 19th set of amendments is now under consideration. 
The reason is simple--hunters clamoring for more game to shoot, and who 
want to make the hunting experience easier, have set their sights on 
relaxing the regulations that prohibit baiting.
    The proponents of regulatory change have found support among some 
state game and fish agencies, which have long been in conflict with the 
USFWS over baiting laws. Illinois provides a classic illustration of 
the states' obstruction of Federal regulations.
    In 1933, a report declared Illinois the most heavily baited state 
in the nation. To some extent, that tradition continues, although 
baiting techniques are no longer as blatant or as easy to detect. The 
new, more sophisticated methods used by hunters essentially achieve the 
same purpose as dumping seeds from a sack. Today, manipulating crops, 
supplementing or adding seeds, and employing dubious farming practices 
are the norm, providing a real challenge for wildlife officers.
    As if these kinds of cases are not hard enough for Federal agents 
to deal with every day, their progress has been impeded by the Illinois 
Department of Natural Resources (DNR). In 1993, for instance, the DNR 
gave into pressure from hunters complaining about a lack of food for 
ducks. Just before the start of hunting season, in an effort to 
initiate a ``green up'' to draw birds, the agency conducted aerial 
wheat seeding on the water and around blinds.
    When USFWS agents informed the DNR that allowing hunting in those 
areas would put hunters in jeopardy of violating the anti-baiting 
regulations, the state agency reluctantly agreed to postpone hunting 
until all seeds were removed from the area. When hunters complained, 
the DNR blamed ``the feds'' for imposing the restrictions.
    A year later, state wildlife officers requested USFWS assistance in 
determining if a waterfowl management area had been improperly planted 
with millet and mowed prior to teal season. The special agents 
confirmed heavy amounts of seeds on the water around every blind site 
and observed ducks in a feeding frenzy, ``like drug addicts on dope.'' 
Despite DNR Director Brent Manning's concern that closing the area 
would upset hunters, the evidence of an impending duck slaughter left 
no choice. The DNR issued a press release about the closure that was 
highly critical of the Federal agents' ``interpretation'' of the 
regulations, sparking media outrage against the USFWS.
No Fear
    In September 1997, USFWS law enforcement officers documented 
widespread evidence of baiting at hunt clubs in the Suisun Marsh area 
of central California, wintering ground for 20 percent of North 
America's migratory waterfowl. The agents set up a meeting to alert the 
local Resource Management District to potential violations. The 
district's executive director angrily denounced the regulations, 
telling the agents to ``get your ticket books,'' because his office did 
not intend to enforce certain baiting laws for the clubs. He also 
threatened the agents, informing them that ``we're going to do 
everything we can to get your ass out of our area.'' Following the 
incident, the USFWS assistant regional director for law enforcement 
informed a California sportsmen group that hunters ``should not fear 
prosecution during the 1997-98 season'' for violating the controversial 
baiting restrictions.
    In 1995, following the Enclosures controversy, Federal law 
enforcement officers on an aerial patrol along the Illinois river 
spotted possible hunting violations at a hunt club. State officers 
alerted to the site confirmed baiting activity--seeds floating among 
the duck blinds--and cited the club for illegally cutting and mowing 
millet.
    One of the club members hunting that day, Randy Vogel, happened to 
be a close friend of DNR Director Manning. Vogel told the officers that 
he would ``take care of [the problem] with one phone call'' to his 
buddy Manning. In response to the call, Manning ordered a second site 
visit of the club just to be sure. The officers, accompanied by DNR's 
law enforcement chief, inspected the area and again concluded that it 
was baited.
    Some of the hunters decided to fight the charges in court. After 
losing the case [U.S. v. Hogan, 906 F.Supp. 455 (1995)], the hunters 
appealed. This time, Manning even had a DNR waterfowl biologist testify 
against his own wildlife officers. The court ruled the case, ``duck 
soup--misdemeanor convictions, only fines imposed, and a challenge on 
appeal only to the sufficiency of the evidence. . . . In short, there 
was sufficient evidence in this record to support a conviction, and the 
judgment is affirmed'' [U.S. v. Hogan, 89 F.3d 403 (1996)]. In 
upholding the fines against the baiters--which ranged from $100 to 
$2,100--the court did not overlook the fact that Vogel attempted to 
involve Manning, and chastised the DNR director for misusing ``the 
power of his position in an attempt to shield a friend.''
A Free Lunch
    In January 1997, at a southern Illinois hunt club--with a history 
of hunting violations--wildlife officers observed thousands of geese 
flying in and out of a baited field, while as many as 50 hunters shot 
and killed the birds. Officers advised the club owner that manipulating 
corn was illegal and that the area would remain a baited area until 10 
days after the corn was removed. No individual hunters were charged and 
no geese were seized from any hunters.
    In addition to initiating congressional inquiries, the club filed 
an injunction the next day to continue the hunt. Neither the wildlife 
agencies nor the U.S. Attorney pursued the baiting charges. The hunt 
club also filed a lawsuit against one of the DNR officers for $100,000, 
citing lost revenue for being prohibited from hunting the baited area 
for 2 days. Despite the fact that his agency has been named in the 
pending lawsuit, DNR Director Manning recently coordinated and attended 
a Republican lunch and geese shoot fundraiser for a gubernatorial 
candidate at the same club.
Seeding Discontent
    After the case, both men took their fight to the public. Vogel 
founded the Sportsmen's Defense Fund and in his newsletter urged people 
to contribute stories of ``overzealous law enforcement activities'' in 
order ``to convince Congress that some meaningful changes in our fish 
and wildlife laws are desperately needed.'' He also began raising money 
for the legal defense of federally abused hunters.
    Agreeing with his friend that hapless hunters are too often the 
victims of unreasonable Federal regulations, Manning launched a a one-
man crusade to stir up opposition to baiting laws. He traveled the 
country speaking to state game and fish departments and sportsmen 
groups, urging widespread regulatory ``reform'' under the rally cry of 
consistency, clarity and common sense.
    At about the same time, a number of state game directors asked the 
International Association of Fish and Wildlife Agencies (IAFWA) to 
press the USFWS for baiting law ``reform.'' At the association's annual 
convention, after Manning pledged to spearhead a campaign to change the 
regulations, the IAFWA tapped him to serve as chair of the newly 
created Ad Hoc Committee on Baiting.
    No conservation groups were asked to participate on the Committee, 
which is laden with Manning's DNR staffers (9 of 29 members). In 
February 1997, the IAFWA faxed the committee's draft baiting 
recommendations to all state game directors for comment. Only 15 states 
responded, with 6 rejecting either all or key portions of the proposed 
changes--not exactly a groundswell of opposition to the current 
regulations.
Ducking the Rules
    Nevertheless, the IAFWA adopted the Ad Hoc Committee's final 
recommendations and submitted them to the USFWS last year. Their 
proposal is twofold. One part deals with moist-soil management, with 
the association insisting that the manipulation of non-agricultural 
vegetation planted specifically to attract waterfowl to a hunt should 
not be considered baiting. Under the guise of wildlife management, they 
are essentially advocating the use of ``natural, wild plants, instead 
of piles of corn or wheat or grain, as bait. Tweaking the regulations 
in this way would produce the same results--birds will come in droves 
and be shot.
    The IAFWA argues that baiting regulations are too confusing or 
inconsistently applied, causing innocent hunters to be ensnared. To 
address this ``problem,'' they also favor the removal of ``strict 
liability,'' the more than half-century old standard by which hunters 
can be cited for baiting without any knowledge or intent to do so. 
Under the association's amendment to the regulation, law enforcement 
officers would face the nearly impossible task of proving that a 
violator ``knows or through the exercise of reasonable diligence should 
have known'' that the area was baited.
    The IAFWA is essentially urging the USFWS to make a legitimate 
excuse out of ignorance, as virtually every violator apprehended claims 
not to have known about the presence of bait. Powerful Members of 
Congress, subscribing to this ``ignorance is bliss'' argument, are 
pushing for similar regulatory relaxation on behalf of their 
constituents.
Little Ruby Ridge
    The first day of hunting season is when most baiting occurs, 
serving as a festive occasion for hunters to get reacquainted with one 
another and to make plans for later hunting excursions. One reason for 
baiting fields on opening day is that no one wants their first party of 
the season to flop, especially if it's a pay hunt with the added 
pressure to guarantee birds. To avoid this problem, illegal baiting 
sometimes takes place.
    A high-profile opening day baiting bust in 1995 triggered a new 
wave of Congressional attacks on Federal regulations, leading to 
intense legislative scrutiny and an attempt to weaken the law. On that 
October day, USFWS special agents raided the second annual ``Predators 
Dove Hunt''--a charity dove shoot and beer blast--in Dixie County, 
Florida. Officers found illegal bait everywhere and saw doves settling 
down in the fields despite all the blasting guns. As soon as the agents 
arrived to break up the hunt, most of the 150 hunters fled.
    Agents seized nearly 500 bird carcasses, many of them non-game 
birds. In all, 86 hunters were cited for baiting and bag limit 
violations, and later paid nearly $40,000 in fines. One of the agents 
called it the most flagrant baiting cases he'd worked in 24 years and a 
prime example of what bait does to birds. ``It was a complete war,'' he 
said. ``Very effective baiting.''
    Present at the Dixie County ``hunt'' that day were four Florida 
sheriffs, the regional director of the Florida Game and Fresh Water 
Fish Commission, state wildlife officers and a host of local 
politicians. These individuals contacted their Congressmen and so began 
a concerted effort to dismantle the baiting law.
    Upon hearing of the ``heavy hand'' of Federal law enforcement 
agents, U.S. Representative Don Young (R-AK) introduced the Migratory 
Bird Treaty Reform Act to loosen baiting restrictions. As chairman of 
the House Committee on Resources, Young called a hearing and solicited 
testimony from angry hunters.
    Not surprisingly, the episode was depicted as ``a little Ruby 
Ridge'' and the Federal agents involved were lambasted for 
``overzealousness'' in enforcing the law. Even Brent Manning and Ron 
Vogel flew in to offer testimony on the need to ``fix'' baiting laws.
With Friends Like These . . .
    As a result of the staged revolt of state agencies and hunter 
constituency groups, and driven more by politics than biology, in March 
1996, the USFWS put a notice in The Federal Register soliciting 
comments on the agency's plan to reassess the MBTA regulations related 
to baiting. The agency invited the IAFWA to tell it how to ``improve'' 
the rules.
    A group of USFWS special agents also took the time to review the 
baiting regulations, concluding that changes were not necessary. A 
number of them even wrote a scathing memo to their superiors in 
Washington charging that any liberalization of the baiting regulations 
``has nothing do with protection'' and ``everything to do with the 
enhancement of killing opportunities.'' Their protest fell on deaf 
ears.
    The USFWS caved in to the threat of legislation by promising to 
address the baiting ``problem'' through the regulatory process. In May 
1997, law enforcement officers were notified by headquarters to accept 
``politically certain givens,'' including the fact that ``there will be 
a scienter standard applied to baiting.'' The agents were also told 
that other changes, relating to the IAFWA's concerns, were forthcoming.
    On March 25, 1998 the axe fell. A week after providing the IAFWA 
with advance notice, the USFWS published in the Federal Register a 
proposed rule change to the current MBTA regulations. The agency's 
stated rationale was to provide ``clarity for the public and 
consistency and fairness in law enforcement operations.'' In a press 
statement, USFWS Director Jamie Rappaport Clark admitted that the 
proposal is based on input from state fish and wildlife agencies and 
sportsmen groups. But she insisted that ``no adverse effect on 
migratory bird populations'' would result.
    USFWS law enforcement officers wholeheartedly disagree with the 
director. While they support the proposal to ban hunting over topsown 
seeds, the agents insist that other proposed changes would weaken 
baiting restrictions, causing increased waterfowl mortality. Of 
particular concern to law enforcement officers are changes that would 
liberalize the regulations to allow hunting over areas that have been 
manipulated under the guise of ``moist soil management practices.''
    Under the agency's proposed rule change, hunters or commercial hunt 
club operators would be permitted to grow, cut and then flood certain 
crops with mature seed heads. Allowing the mowing of vegetation with 
seed heads present serves no purpose other than to attract waterfowl, 
producing a legal loophole for hunters to enhance their ``harvest'' 
opportunities--in short, to kill more birds. Moist soil management 
practices for habitat conservation purposes are already allowed, the 
agents contend, and therefore this provision does not need to be 
changed.
    Although the removal of the strict liability standard is not part 
of the USFWS's current proposal, if adopted, the agency's sweeping 
regulatory re-write will accomplish much of what Don Young and Brent 
Manning intended all along. Vernon Ricker, a retired Federal agent once 
responsible for the Eastern Shore of the Chesapeake Bay, is among many 
who are not optimistic that the agency will act in the best interest of 
the resource:
    ``I've enforced the MBTA for 28 years and I can tell you the USFWS 
is going to go with the flow. It will cave in on anything. If it cared 
about the resource, we would have people here in the Eastern Shore to 
enforce the law.''
The Young Bill
    Baiting restrictions have drawn heat from politicians primarily 
because some constituents have complained that they were invited to a 
hunt where they were unaware bait was being used. Under the law, a 
hunter can be convicted of the crime even if he did not know the field 
was baited.
    This strict legal interpretation is necessary given that every 
person caught hunting over bait naturally claims to have had no idea 
the bait was there. Without strict liability, it would be much more 
difficult to prosecute violators.
    In May 1997, Rep. Don Young introduced legislation to significantly 
weakened the MBTA regulations in a number of ways, most seriously by 
codifying the IAFWA's intent element. Supporting the measure were a 
small, vocal group of hunters, mainly paid professional guides, 
commercial hunt clubs and lobbyists for the sport hunting industry.
    Young recently struck everything from his bill except the most 
threatening aspect, the scienter standard requiring proof beyond a 
reasonable doubt that a hunter had prior knowledge of baiting activity. 
In speaking to his bill, Young said he had given USFWS the opportunity 
to address the strict liability issue in the regulatory process and 
they failed to do so. He defended his actions by bringing up the 1995 
Dixie, Florida baiting case, saying that ``the present regulations make 
people criminals.''
    In late April of this year, the House Resources Committee approved 
Young's modified baiting ``reform'' bill.
Muffling Dissent
    Federal law enforcement officers contend that the proposed 
regulatory and legislative changes would, among other things, erase 
decades of case law that have aided in the prosecution of hunters who 
shoot birds over bait; it would place further burdens on Federal 
wildlife officers, at a time when there are already too few of them in 
the field enforcing the law; and it would drastically reduce game bird 
populations, undermining the very spirit and intent of the wildlife 
protection statute.
    If enacted, they argue, the new rules would take the sport out of 
hunting--fair chase would become nonexistent; high numbers of birds 
would be killed in a short period, shot while eating and accustomed to 
the presence of humans. ``Slob hunters could lure birds with piles of 
food and shoot them at point-blank range,'' noted an agent. ``There 
might be more challenge in shooting caged birds in a pet store.''
    The freedom to speak their minds honestly and openly is 
unfortunately not an option for these public servants. In addition to 
repeated threats from Congressmen to ``punish'' agents for discussing 
their personal views on baiting, the USFWS has also issued what amounts 
to a gag order on its officers.
    Special agents have been formally warned not to have any contact 
with outside groups on this hot-button issue. A memo, circulated a few 
days prior to public notification on the proposed rule change, advised 
the agents to, in part:
  ``Feel free to discuss among yourselves, but don't get caught going 
    outside the agency. . . Congressman Young and Senator Breaux gave 
    Director Clark a very difficult time over the fact that some agents 
    were believed to be lobbying against the draft Migratory Bird 
    Treaty Reform bill. Young made it clear that he will hold hearings 
    and agents accountable if they lobby against the bill and get 
    caught. . . be careful. . . ``[He] means business. . . ''
    The agency may insist that this order is meant to protect 
employees, but as one agent put it, ``With all the threats and 
intimidation, there are those of us who feel a bit like a scared 
rabbit, with the hawk circling our head just waiting for us to make the 
mistake of sneaking out of the bushes by going public.
    The message USFWS agents would like the public to hear in regard to 
attempts to liberalize baiting regulations is simple: Protection of the 
resource should be the primary objective here instead of increasing 
kills. After committing themselves to the pursuit of this cause, day in 
and day out in the field, they are understandably disappointed that 
their agency is more concerned with its own self-protection than it is 
for the protection of migratory game birds.
    Some agents maintain a fatalistic attitude about the ultimate 
impact of impending changes in the MBTA law. ``Maybe we shouldn't worry 
about the baiting regulations,'' suggested an agent. ``When the ducks 
end up on the endangered species list, we can finally go back to 
protecting them.''

                                 
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