[Congressional Record Volume 142, Number 125 (Thursday, September 12, 1996)]
[Extensions of Remarks]
[Pages E1599-E1600]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




      INTRODUCTION OF THE MIGRATORY BIRD TREATY REFORM ACT OF 1996

                                 ______
                                 

                             HON. DON YOUNG

                               of alaska

                    in the house of representatives

                      Thursday, September 12, 1996

  Mr. YOUNG of Alaska. Mr. Speaker, I am pleased to introduce today the 
Migratory Bird Treaty Reform Act of 1996.
  It has been nearly 80 years since the Congress enacted the Migratory 
Bird Treaty Act [MBTA]. Since that time, there have been numerous 
congressional hearings and the establishment of a distinguished Law 
Enforcement Advisory Commission.
  What there has not been is any meaningful effort to revise or update 
this law. In my judgment, it is time to carefully review this statute 
and its accompanying regulations, and to change those provisions which 
are unfairly penalizing many law-abiding citizens. While this reform is 
long overdue, my bill will in no way undermine the fundamental goal of 
protecting migratory bird resources.
  Before explaining this legislation, I would like to provide my 
colleagues with some background on this issue. In 1918, Congress 
enacted the Migratory Bird Treaty Act, which implemented the 1916 
Convention for the Protection of Migratory Birds between Canada and the 
United States. This Convention has now been expanded to include Mexico 
and Russia. The Convention and the act are designed to protect and 
manage migratory birds as well as regulate the taking of that renewable 
resource.
  As part of appropriate regulation and management, certain 
restrictions have been imposed over the years on the taking of 
migratory birds by hunters. Many of these prohibitions were recommended 
by sportsmen who felt that certain restrictions were necessary to 
protect and manage migratory bird populations. Those regulations have 
clearly had a positive impact and have helped to maintain viable 
migratory bird populations, despite the loss of natural habitat due to 
agricultural expansion and industrial development.
  Since the passage of the act and the development of the regulatory 
scheme, various legal issues have been raised and most have been 
resolved. However, one restriction regarding the taking of migratory 
birds which have generated more controversy than any other is the 
restriction that prohibits hunting migratory birds ``by the aid of 
baiting, or on or over any baited area''. This controversy has not been 
satisfactorily resolved. This prohibition has been at issue for two 
reasons.
  First, by case law in the Federal courts, a doctrine has developed 
where the actual guilt or innocence of an individual hunting migratory 
birds on a baited field is not an issue. If it is determined that bait 
is present, and the hunter is there, he is guilty under the doctrine of 
strict liability, regardless of whether there was knowledge or intent. 
Courts have ruled that it is not relevant that the hunter did not know 
or could not have reasonably known bait was present. Understandably, 
there has been much concern over the injustice of this doctrine.
  A second point of controversy is the related issue of the zone of 
influence that such bait has in actually luring or attracting migratory 
birds to a hunting site. Currently, the courts have developed the zone 
of influence concept in which limitation is defined by whether such 
bait could act as an effective lure or attraction and without regard 
for any other factors that may have influenced the migratory bird. 
Again, a number of hunters have been unfairly prosecuted by the blanket 
application of this doctrine.

  Under the current regulations, grains scattered as a result of 
agricultural pursuits are not considered bait as the term is used. The 
courts and the U.S. Fish and Wildlife Service, Fish and Wildlife 
Service, Division of Law Enforcement, however, disagree on what 
constitutes normal agricultural planting or harvesting or the result of 
bona fide agricultural operations or procedures.
  Through hearings, the Congress has addressed various aspects of the 
baiting issue on many occasions during the last three decades. The 
baiting issue has also been addressed by a Fish and Wildlife Service 
appointed Law Advisory Commission. Sadly, absolutely nothing has 
resulted from these examinations and the problems still persist.
  On May 15, 1996, a hearing was held before the House Resources 
Committee, which I chair, to review the problems associated with the 
MBTA regulations, their enforcement, and the case law that has resulted 
from judicial rulings. It was abundantly clear from this, and previous 
hearings, that the time has come for the Congress to substantively 
address the problem through comprehensive legislation. From a 
historical review, it is obvious that the problems have not, and will 
not, be corrected either administratively or by future judicial 
rulings.
  Therefore, the Congress has an obligation to present rational and 
concise solutions to correct the injustices that now exist. It is also 
important that guidance be provided to law enforcement officials who 
are charged with the responsibility of enforcing the law and the 
accompanying regulations.
  It must be underscored that sportsmen, law enforcement officials and, 
indeed, Members of Congress all share the fundamental intent of the 
Migratory Bird Treaty Act that our migratory bird resources must be 
protected from overexploitation. As mentioned above, many of the 
regulations restricting the methods and manner of taking migratory 
birds were suggested by sportsmen. Sportsmen have historically 
demonstrated that they are dedicated to the wise use of renewable 
wildlife resources through reasoned management and enforcement of 
appropriate regulations.
  Over the years, various prohibitions on the manner and methods of 
taking migratory birds have been embodied in regulations. Many of these 
prohibitions are decades old and have the support of all persons 
concerned with protecting migratory birds. Consequently, it would be 
prudent to put these regulations in a statute where all restrictions 
are contained in a single document. The Secretary of the Interior 
annually makes certain findings regarding bag limits, duration of 
seasons, and other findings. The proposed legislation does not restrict 
or alter that duty nor does it prohibit additional regulation of 
migratory bird hunting, including hunting methods. However, this 
proposed legislation does embody all of the current regulations 
promulgated over the years and contained in the Code of Federal 
Regulations.

  Second, the fundamental purpose of the Migratory Bird Treaty Reform 
Act of 1996 is to address the baiting issue. Under section 3 of the 
proposed 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 provision removes the strict liability 
interpretation made first by a Federal court in Kentucky in 1939, and 
presently followed by a majority, but not all, of Federal courts. By 
this amendment, uniformity in the application of the prohibition is 
established.

[[Page E1600]]

  As important, however, is the establishment of a standard that 
permits a determination of the actual guilt of the defendant. If the 
facts demonstrate that the hunter knew or should have known of the 
alleged bait, liability--which includes fines and potential 
incarceration--will be imposed. If by the evidence, however, the hunter 
could not have reasonably known that the alleged bait was present, 
liability would not be imposed and guilt will not be assessed. This 
would be a question of fact to be determined by the court based on the 
totality of the evidence presented.
  Furthermore, under section 3 of the proposed legislation, the 
exceptions to baiting prohibitions contained in Federal regulations 
have been amended to permit exemption for grains found on a hunting 
site as a result of normal agricultural planting and harvesting as well 
as normal agricultural operations and procedures. The proposed 
amendment maintains the intent of the current exceptions contained in 
the regulations but removes ambiguity and establishes guidelines for 
both the hunter and the law enforcement official.
  To determine what is a normal agricultural operation and procedure in 
a given region, the Fish and Wildlife Service will be required to 
annually publish in the Federal Register a notice for public comment 
defining what is a normal agricultural operation or procedure in given 
areas. This determination is to be made only after meaningful 
consultation with relevant State and Federal agencies and an 
opportunity for public comment. Again, the goal of this effort is to 
provide uniformity and clarity to landowners and hunters so that they 
know what is a normal agricultural operation for their respective 
region.

  In addition, the proposed legislation permits the scattering of 
various substances, like grains and seeds, which would now be 
considered bait, if it is done to feed farm animals and is a normal 
agricultural operation or procedure in a given area, as recognized by 
the Fish and Wildlife Service and published in the Federal Register. 
This change will clarify case law where it was determined that such an 
agricultural procedure was not considered an exception since it did not 
constitute planting or harvesting.
  Finally, the term bait is defined as the ``intentional'' placing of 
the offending grain, salt, or other feed. This concept removes from 
violation the accidental appearance of bait at or near the hunting 
venue. There have been cases where hunters have been charged under the 
baiting regulations for grain found on a public road obviously spilled 
from delivery to another site. It also removes as a violation the 
minimum evidence of foreign grain found in a field where it was proved 
to be present as the result of inadvertently being mixed in with other 
seed grain by the seller of the seed. Further, it removes from 
violation such cases where the minimal foreign grain came to be present 
as a result of being deposited by animals or running water. These 
examples are actual cases where citations were given for violations of 
the baiting regulations.
  Under the proposed legislation, the hunter would also be permitted to 
introduce evidence at trial as to what degree the alleged bait acted as 
the lure or attraction to the migratory birds in a given area. In cases 
where 13 kernels of corn were found in a pond in the middle of a 300-
acre field planted in corn or 34 kernels of corn found in a wheat field 
next to a fresh water river, the bait was clearly not the reason 
migratory birds were in the hunting area. First, it was not 
intentionally placed there and, second, it could not be considered an 
effective lure or attraction under the factual circumstances. Again, 
however, these are questions of fact to be determined in a court of 
law. Currently, evidence of these matters is entirely excluded as 
irrelevant under the strict liability doctrine.
  In 1934, Congress enacted the Migratory Bird Conservation Act as a 
mechanism to provide badly needed funds to purchase suitable habitat 
for migratory birds. Today, that need still exists and section 4 of my 
legislation will require that all fines and penalties collected under 
the MBTA will be deposited into the Migratory Bird Conservation Fund. 
This is an essential reform and it is critical to the long-term 
survival of our migratory bird populations.
  Finally, this measure proposes that seized personal property can be 
returned to the owner by way of a bond or other surety, prior to trial, 
at the discretion of the court.
  Mr. Speaker, the purpose of the proposed Migratory Bird Treaty Reform 
Act is to provide clear guidance to landowners, hunters, law 
enforcement officials, and the courts on what the restrictions are on 
the taking of migratory birds. The conflict within the Federal judicial 
system and the inconsistent application of enforcement within the U.S. 
Fish and Wildlife Service must be resolved. The proposed legislation 
accomplishes that objective without, in any manner, weakening the 
intent of current restrictions on the method and manner of taking 
migratory birds; nor do the proposed provisions weaken protection of 
the resource. Finally, the proposed legislation does not alter or 
restrict the Secretary of the Interior's ability to promulgate annual 
regulations nor inhibit the issuance of further restrictions on the 
taking of migratory birds.
  While there may be only a few legislative days left in this session, 
I am introducing this legislation to stimulate debate on this issue. I 
would welcome the input and recommendations of all interested parties. 
I intend to reintroduce this measure early in the new Congress. Let me 
be clear The intent of this proposal is to provide clarity for both the 
hunter and the law enforcement community without undermining the 
protection of our precious migratory bird resources. I urge my 
colleagues to carefully examine the Migratory Bird Treaty Reform Act of 
1996.

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