[Congressional Record Volume 143, Number 18 (Wednesday, February 12, 1997)]
[Extensions of Remarks]
[Pages E244-E245]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




      INTRODUCTION OF THE MIGRATORY BIRD TREATY REFORM ACT OF 1997

                                 ______
                                 

                             HON. DON YOUNG

                               of alaska

                    in the house of representatives

                      Wednesday, February 12, 1997

  Mr. YOUNG of Alaska. Mr. Speaker, I am pleased to introduce today, 
along with the cochairman of the Congressional Sportsmen's Caucus, John 
Tanner, and our colleague, Cliff Stearns, the Migratory Bird Treaty 
Reform Act of 1997. This measure is basically identical to legislation 
I proposed at the end of the previous Congress.
  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 a distinguished Law Enforcement Advisory 
Commission was constituted to review the application of the MBTA 
regulations. Although these efforts clearly indicated serious problems, 
there has been no meaningful effort to change the statute or modify the 
regulations. Due to administrative inaction and the clear evidence of 
inconsistent application of regulations and confusing court decisions, 
it is time for the Congress to legislatively change certain provisions 
that have, and will continue to penalize many law-abiding citizens. I 
assure my colleagues, as well as landowners, farmers, hunters, and 
concerned citizens, that this legislation in no way undermines 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, that implemented the 1916 
Convention for the Protection of Migratory Birds between Great 
Britain--for Canada--and the United States. Since that time, there have 
been similar agreements signed between the United States, Mexico, and 
the former Soviet Union. The convention and the act are designed to 
protect and manage migratory birds as well as regulate the taking of 
that renewable resource.
  In an effort to accomplish these goals, over the years certain 
restrictions have been imposed by regulation on the taking of migratory 
birds by hunters. Many of these restrictions were recommended by 
sportsmen who felt that they were necessary management measures to 
protect and conserve renewable migratory bird populations. Those 
regulations have clearly had a positive impact, and viable migratory 
bird populations have been maintained despite the loss of natural 
habitat because of agricultural, industrial, and urban activities.
  Since the passage of the MBTA and the development of the regulatory 
scheme, various legal issues have been raised and most have been 
successfully resolved. However, one restriction that prohibits hunting 
migratory birds by the aid of baiting, or on or over any baited area 
has generated tremendous controversy, and it has not been 
satisfactorily resolved. The reasons for this controversy are twofold:

  First, a doctrine has developed in Federal courts whereby 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 that is 
contrary to the basic tenet of our criminal justice system: that a 
person is presumed innocent until proven guilty, where intent is a 
necessary element of that guilt.
  A second point of controversy is the related issue of the zone of 
influence doctrine developed by the courts relating to the luring or 
attracting of migratory birds to the hunting venue. Currently, courts 
hold that if the bait could have acted as an effective lure, a hunter 
will be found guilty, regardless of the amount of the alleged bait or 
other factors that may have influenced the migratory birds to be 
present at the hunting site. Again, a number of hunters have been 
unfairly prosecuted by the blanket application of this doctrine.
  In addition, 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, however, 
disagree on what constitutes normal agricultural planting or harvesting 
or what activity is the result of bona fide agricultural operations.
  During the past three decades, Congress has addressed various aspects 
of the baiting issue. It has also been addressed by a Law Enforcement 
Advisory Commission appointed by the Fish and Wildlife Service. Sadly, 
nothing has resulted from these examinations and the problems still 
persist. As a consequence, landowners, farmers, wildlife managers, 
sportsmen, and law enforcement officials are understandably confused.
  On May 15, 1996, the House Resources Committee, which I chair, 
conducted an oversight hearing to review the problems associated with 
the MBTA regulations, their enforcement, and the appropriate judicial 
rulings. It was abundantly clear from the testimony at this hearing, as 
well as previous hearings, that the time has come for the Congress to 
address these problems through comprehensive legislation. From a 
historical review, it is obvious that regulatory deficiencies 
promulgated pursuant to the Migratory Bird Treaty Act will not be 
corrected, either administratively or by future judicial rulings.

  Since there is inconsistent interpretation of the regulations under 
MBTA that the executive and judicial branches of Government have failed 
to correct, the Congress has an obligation to eliminate the confusion 
and, indeed, the injustices that now exist. It is also important that 
Congress provide guidance 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

[[Page E245]]

Congress all strongly support the basic intent of the Migratory Bird 
Treaty Act that our migratory bird resources must be protected from 
overexploitation. Sportsmen have consistently demonstrated their 
commitment 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. In my judgment, it would be 
appropriate to incorporate these regulations in statutory law, and my 
proposed bill accomplishes that objective. This provision does not, 
however, restrict or alter the Secretary of the Interior's annual 
responsibilities to establish bag limits or duration of seasons. Nor 
does it prevent additional prohibitions, including hunting methods of 
migratory birds, from being implemented.
  Second, a fundamental goal of the Migratory Bird Treaty Reform Act of 
1997 is to address the baiting issue. Under my 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 
of Federal courts. With this provision, uniformity in the application 
of the prohibition is established.
  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 penalties would 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, 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. This proposed 
change will establish reasonable guidelines for both the hunter and the 
law enforcement official.
  To determine what is a normal agricultural operation in a given 
region, the U.S. 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 for that particular geographic 
area. 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 for landowners, farmers, wildlife 
managers, law enforcement officials, and hunters so they know what a 
normal agricultural operation is for their region.
  In addition, the proposed legislation permits the scattering of 
various substances like grains and seeds, which are currently 
considered bait, if it is done to feed farm animals and is a normal 
agricultural operation in a given area, as recognized by the Fish and 
Wildlife Service and published in the Federal Register.
  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 with 
violating baiting regulations as a result of grain being 
unintentionally spilled on a public road, where foreign grain was 
inadvertently mixed in with other seed by the seller and later found at 
a hunting site, and where foreign grain was deposited by animals or 
running water. These are examples of actual cases where citations were 
given to individuals for violations of the baiting regulations.
  Under my proposed legislation, the hunter would also be permitted to 
introduce evidence at trail on what degree the alleged bait acted as 
the lure or attraction for 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 where 34 kernels of corn were found 
in a wheat field next to a freshwater 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. These are 
questions of fact to be determined in a court of law. Currently, 
however, 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 my legislation 
will require that all fines and penalties collected under the MBTA be 
deposited into the Migratory Bird Conservation Fund. These funds are 
essential to the long-term survival of our migratory bird populations.
  Finally, this measure proposes that personal property that is seized 
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, farmers, wildlife 
managers, hunters, law enforcement officials, and the courts on what 
are the restrictions 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.
  Mr. Speaker, I urge my colleagues to carefully review the Migratory 
Bird Treaty Reform Act of 1997. It is a long overdue solution to 
several ongoing problems that regrettably continue to unfairly penalize 
many law-abiding hunters in this country.

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