[Congressional Record Volume 143, Number 155 (Friday, November 7, 1997)]
[Extensions of Remarks]
[Pages E2208-E2209]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




          INTRODUCTION OF THE MIGRATORY BIRD TREATY REFORM ACT

                                 ______
                                 

                             HON. DON YOUNG

                               of alaska

                    in the house of representatives

                       Thursday, November 6, 1997

  Mr. YOUNG of Alaska. Mr. Speaker, today I am introducing--along with 
our colleagues John Tanner, Cliff Stearns, John Dingell, and Curt 
Weldon--a new and improved Migratory Bird Treaty Reform Act.
  This legislation is a revised version of H.R. 741, which I introduced 
on February 12, 1997. It is the product of many months of extended 
discussions with a number of conservation and hunting groups.
  This new legislation addresses concerns raised by the Clinton 
administration and other witnesses during the May 15 subcommittee 
hearing. For instance, the original bill codified the various 
prohibitions on the manner and methods of taking migratory birds that 
had been embodied in regulations over the years. During our hearing, 
both the Fish and Wildlife Service and the National Wildlife Federation 
testified that this provision would restrict the Service's ability to 
respond to changing conservation and management needs. The Service is 
now grappling with a huge population explosion of snow geese and their 
permanent destruction of thousands of acres of Arctic tundra. In the 
next few months, the Service may recommend ways to stop this 
destruction, and has indicated that it is considering the use of 
electronic calls, unplugged shotguns, and intentional baiting. Since it 
was not my intention to deny the Service the flexibility to respond to 
this type of emergency, I have deleted the codification of existing 
regulations from this revised bill.
  Second, I have modified my solution to the problems caused by strict 
liability in baiting cases by establishing a knows or reasonably should 
have known standard that is reflected in the 1978 Federal District 
Court decision known as the Delahoussaye case.
  Under current law, if you are hunting over a baited field, whether 
you know it or not, you are guilty. There is no defense and there is no 
opportunity to present evidence in your case. It does not matter 
whether there was a ton of grain or a few kernels, whether this feed 
served as an attraction to migratory birds, or even how far the bait is 
from the hunting site.
  This interpretation--if you were there, you are guilty--is 
fundamentally wrong. It violates one of our most basic constitutional 
protections that a person is innocent until proven guilty.
  The language in the bill is identical to the Delahoussaye case, it 
has been effectively utilized throughout the fifth circuit, it has not 
imperiled any migratory bird populations, and it has resulted in 
numerous baiting convictions. A representative of the U.S. Fish and 
Wildlife Service indicated earlier this year that the Service could 
support the statutory codification of the Delahoussaye decision.
  This is not a radical proposal. Nevertheless, there will be a few 
Fish and Wildlife Service law enforcement agents who will oppose the 
elimination of strict liability. They will oppose it because currently 
there is nearly a 100-percent conviction rate in baiting cases since 
there is not an opportunity for the defendant to provide any evidence 
to oppose the charge. There is no need to provide intent or knowledge. 
If the bait is present and the hunter is there, guilt is established 
beyond a reasonable doubt.
  In addition, those who oppose the changes will suggest that the Fish 
and Wildlife Service will be unable to prosecute individuals for 
hunting over bait in the future, an assertion that is simply not true. 
If a preponderance of evidence so demonstrates, the defendant will be 
found guilty. This standard is far less stringent than beyond a 
reasonable doubt applied in all other criminal cases. Further, the 
Service has never challenged or attempted to overturn the Delahoussaye 
decision during the past 20 years.
  Moreover, it shouldn't matter whether there are only a handful or 
hundreds of people who have been prosecuted for unknowingly hunting 
over a baited field. Frankly, I was angry when I heard the testimony of 
a retired Fish and Wildlife Service agent who responded to this 
question from the subcommittee chairman: ``Have I ever charged someone 
for hunting over bait and I truly believed they didn't know the area 
was baited? Yes, but they were very few and far between.'' Since this 
agent had the option of just issuing a warning to these individuals, I 
am aghast that he chose to cite them anyway.
  Third, our bill includes a number of refinements and modifications 
dealing with soil stabilization practices, accepted agricultural 
operations and procedures, and the alteration of a crop or other feed 
for wildlife management

[[Page E2209]]

purposes. In addition, the bill stipulates that the State fish and 
wildlife agencies will decide, in consultation with USDA State 
research, education, and extension services and the U.S. Fish and 
Wildlife Service, what type of agricultural methods are accepted in a 
particular areaa. For instance, it may be appropriate to sow winter 
wheat for soil stabilization purposes in Maryland, but no one would 
suggest such a practice in Arizona. These recommendations, which are 
contained in section 3 of the bill, are the product of many months of 
careful deliberation by the International Association of Fish and 
Wildlife Agencies' Ad Hoc Committee on Baiting. This committee has 
representatives from each of the migratory flyways, Ducks Unlimited, 
the National Wildlife Federation, and the North American Wildlife 
Enforcement Officers Association.
  Finally, the revised bill deletes the section of H.R. 741 that would 
have required that all fines and penalties collected under the 
Migratory Bird Treaty Act be deposited into the Migratory Bird 
Conservation Fund. I have been persuaded to allow these moneys to 
remain in the North American Wetlands Conservation Fund so that they 
can be used to buy essential wetlands habitat in Canada, Mexico, and 
the United States. It has been demonstrated to me that each dollar paid 
into this fund is matched with at least $3 of private donations.
  In the past few weeks, I have shared copies of this legislation with 
a number of hunting and conservation groups. I am pleased to report 
that Ducks Unlimited, the International Association of Fish and 
Wildlife Agencies, the International Foundation for the Conservation of 
Natural Resources, the Izaak Walton League, the National Rifle 
Association, Safari Club International, the Wildlife Legislative Fund 
of America, and the Wildlife Management Institute all have indicated 
they support the fundamental objectives of this legislation. While 
several groups have indicated they would prefer that baiting problems 
be alleviated through a regulatory solution, there was a consensus that 
the Delahoussaye decision should be codified in law. I am hopeful that 
the U.S. Fish and Wildlife Service will issue new proposed baiting 
regulations before the end of this year. Otherwise, I will vigorously 
pursue the passage of this bill.
  Mr. Speaker, the fundamental purpose of this legislation is to 
provide clear guidance to hunters, landowners, law of enforcement 
officials, wildlife managers, and courts on what the restrictions are 
on the taking of migratory birds. This proposed legislation will not 
weaken the restrictions on the method and manner of taking migratory 
birds, nor will it weaken the protection of the resource. It will, 
however, allow individuals to have their day in court. It is patently 
wrong to convict hunters who do not know that a field or water is 
baited, for a few kernels of corn in a sunflower field, bait that is 
over a mile from the hunting site, or some grain found on the bottom of 
a pond or river.
  I want to again thank my distinguished colleagues for joining with me 
in this effort, and I urge a careful review of the new Migratory Bird 
Treaty Reform Act. It is a long overdue solution to a problem that 
regrettably continues to unfairly penalize law-abiding hunters in this 
country.

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