[Congressional Record Volume 143, Number 160 (Thursday, November 13, 1997)]
[Senate]
[Pages S12590-S12591]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. BREAUX (for himself and Mr. Cochran):
  S. 1533. A bill to amend the Migratory Bird Treaty Act to clarify 
restrictions under that act of baiting, and for other purposes; to the 
Committee on Environment and Public Works.


                  The Migratory Bird Treaty Reform Act

  Mr. BREAUX. Mr. President, I am pleased to join with the 
distinguished senior Senator from the State of Mississippi, Senator 
Cochran, in introducing the Migratory Bird Treaty Reform Act. I believe 
it is legislation all of our colleagues should support.
  As members of the Migratory Bird Conservation Commission, Senator 
Cochran and I recognize the importance of protecting and conserving 
migratory bird populations and habitat.
  Eighty years ago, Congress enacted the Migratory Bird Treaty Act, 
which implemented the 1916 Convention for the Protection of Migratory 
Birds between Great Britain, for Canada, and the United States. Since 
then, the United States, Mexico, and the former Soviet Union have 
signed similar agreements. The Convention and the Act are designed to 
protect and manage migratory birds and regulate the taking of that 
renewable resource. They have had a positive impact, and we have 
maintained viable migratory bird populations despite the loss of 
natural habitat because of human activities.
  Since passage of the Migratory Bird Treaty Act and development of the 
regulatory program, several issues have been raised and resolved. One 
has not--the issue concerning the hunting of migratory birds ``[b]y the 
aid of baiting, or on or over any baited area.''
  A doctrine has developed in the federal courts by which the intent or 
knowledge of a person hunting migratory birds on a baited field is not 
an issue. If bait is present, and the hunter is there, he is guilty 
under the doctrine of strict liability. It is not relevant that the 
hunter did not know or could not have known bait was present. I 
question the basic fairness of this rule.
  Mr. President, I do not want anyone to misunderstand me. I strongly 
support the Migratory Bird Treaty Act. We must protect our migratory 
bird resources from overexploitation. I would not weaken the Act's 
protections.
  The fundamental goal of the Migratory Bird Treaty Reform Act is to 
address the baiting issue. It is the result of months of negotiation by 
the International Association of Fish and Wildlife Agencies' Ad Hoc 
Committee on Baiting. The Committee has representatives from each of 
the migratory flyways, Ducks Unlimited, the National Wildlife 
Federation, and the North American Wildlife Enforcement Officers 
Association.
  Under this legislation, no person may take migratory birds by the aid 
of bait, or on or over bait, where that person knew or should have 
known the bait was present. It removes the strict liability 
interpretation presently followed by federal courts. In its stead, 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.
  This legislation would require the U.S. Fish and Wildlife Service to 
publish, in the Federal Register, a notice for public comment defining 
what is a normal agricultural operation for that geographic area. The 
Service would make this determination after consultation with state and 
federal agencies and an opportunity for public comment. The purpose of 
this provision is to provide guidance for landowners, farmers, wildlife 
managers, law enforcement officials, and hunters so they know what a 
normal agricultural operation is for their region.
  The goal of the Migratory Bird Treaty Reform Act is to provide 
guidance to landowners, farmers, wildlife managers, hunters, law 
enforcement officials, and the courts on the restrictions

[[Page S12591]]

on the taking of migratory birds. It accomplishes that without 
weakening the intent of current restrictions on the method and manner 
of taking migratory birds; nor do the proposed provisions weaken 
protection of the resource.
  Mr. President, I urge my colleagues to join us in supporting this 
important legislation, and I ask unanimous consent that the full text 
of this legislation be printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 1533

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Migratory Bird Treaty Reform 
     Act''.

     SEC. 2. FINDINGS.

       The Congress makes the following findings:
       (1) The Migratory Bird Treaty Act was enacted in 1918 to 
     implement the 1916 Convention for the Protection of Migratory 
     Birds between the United States and Great Britain (for 
     Canada). The Act was later amended to reflect similar 
     agreements with Mexico, Japan, and the former Soviet Union.
       (2) Pursuant to the Migratory Bird Treaty Act, the 
     Secretary of the Interior is authorized to promulgate 
     regulations specifying when, how, and whether migratory birds 
     may be hunted.
       (3) Contained within these regulations are prohibitions on 
     certain methods of hunting migratory game birds to better 
     manage and conserve this resource. These prohibitions, many 
     of which were recommended by sportsmen, have been in place 
     for over 60 years and have received broad acceptance among 
     the hunting community with one principal exception relating 
     to the application and interpretation of the prohibitions on 
     the hunting of migratory game birds by the aid of baiting, or 
     on or over any baited area.
       (4) The prohibitions regarding the hunting of migratory 
     game birds by the aid of bait, or on or over bait, have been 
     fraught with interpretive difficulties on the part of law 
     enforcement, the hunting community, and courts of law. 
     Hunters who desire to comply with applicable regulations have 
     been subject to citation for violations of the regulations 
     due to the lack of clarity, inconsistent interpretations, and 
     enforcement. The baiting regulations have been the subject of 
     multiple congressional hearings and a law enforcement 
     advisory commission.
       (5) Restrictions on the hunting of migratory game birds by 
     the aid of baiting, or on or over any baited area, must be 
     clarified in a manner that recognizes the national and 
     international importance of protecting the migratory bird 
     resource while ensuring consistency and appropriate 
     enforcement including the principles of ``fair chase''.

     SEC. 3. CLARIFYING HUNTING PROHIBITIONS.

       Section 3 of the Migratory Bird Treaty Act (16 U.S.C. 704) 
     is amended--
       (1) by inserting ``(a)'' after ``Sec. 3.''; and
       (2) by adding at the end the following:
       ``(b)(1) No person shall--
       ``(A) take any migratory game bird by the aid of baiting, 
     or on or over any baited area, where the person knows or 
     reasonably should have known that the area is a baited area; 
     or
       ``(B) place or direct the placement of bait on or adjacent 
     to an area for the purpose of causing, inducing, or allowing 
     any person to take or attempt to take any migratory game bird 
     by the aid of baiting or on or over the baited area.
       ``(2) Nothing in this subsection prohibits any of the 
     following:
       ``(A) The taking of any migratory game bird, including 
     waterfowl, from a blind or other place of concealment 
     camouflaged with natural vegetation.
       ``(B) The taking of any migratory game bird, including 
     waterfowl, on or over--
       ``(i) standing crops, flooded standing crops (including 
     aquatics), flooded harvested croplands, grain crops properly 
     shocked on the field where grown; or
       ``(ii) grains, agricultural seeds, or other feed scattered 
     solely as a result of--
       ``(I) accepted soil stabilization practices or accepted 
     agricultural planting, harvesting, or manipulation after 
     harvest; or
       ``(II) entering or exiting of areas by hunters or normal 
     hunting activities such as decoy placement or bird retrieval, 
     if reasonable care is used to minimize the scattering of 
     grains, agricultural seeds, or other feed.
       ``(C) The taking of any migratory game bird, except 
     waterfowl, on or over any lands where salt, grain, or other 
     feed has been distributed or scattered as a result of--
       ``(i) accepted soil stabilization practices;
       ``(ii) accepted agricultural operations or procedures; or
       ``(iii) the alteration for wildlife management purposes of 
     a crop or other feed on the land where it was grown, other 
     than distribution of grain or other feed after the grain or 
     other feed is harvested or removed from the site where it was 
     grown.
       ``(3) As used in this subsection:
       ``(A)(i) Except as otherwise provided in this Act, the term 
     `baiting' means the intentional or unintentional placement of 
     salt, grain, or other feed capable of attracting migratory 
     game birds, in such a quantity and in such a manner as to 
     serve as an attractant to such birds to, on, or over an area 
     where hunters are attempting to take them, by--
       ``(I) placing, exposing, depositing, distributing, or 
     scattering salt, grain, or other feed grown off-site;
       ``(II) redistributing grain or other feed after it is 
     harvested or removed from the site where grown;
       ``(III) altering agricultural crops, other than by accepted 
     agricultural planting, harvesting, or manipulation after 
     harvest, altering millet planted for nonagricultural purposes 
     (planted millet), or altering other vegetation (as specified 
     in migratory bird hunting regulations issued by the Secretary 
     of the Interior) planted for nonagricultural purposes; or
       ``(IV) gathering, collecting, or concentrating natural 
     vegetation, planted millet, or other vegetation (as specified 
     in migratory bird hunting regulations issued by the Secretary 
     of the Interior) planted for nonagricultural purposes, 
     following alteration or harvest.
       ``(ii) The term `baiting' does not include--
       ``(I) redistribution, alteration, or concentration of grain 
     or other feed caused by flooding, whether natural or man 
     induced; or
       ``(II) alteration of natural vegetation on the site where 
     grown, other than alteration described in clause (i)(IV).
       ``(iii) With respect only to the taking of waterfowl, the 
     term `baiting'--
       ``(I) does not include, with respect to the first special 
     September waterfowl hunting season locally in effect or any 
     subsequent waterfowl hunting season, an alteration of planted 
     millet or other vegetation (as specified in such 
     regulations), other than an alteration described in clause 
     (i)(IV), occurring before the 10-day period preceding the 
     opening date (as published in the Federal Register) of that 
     first special season; and
       ``(II) does not include, with respect to the first regular 
     waterfowl hunting season locally in effect or any subsequent 
     waterfowl hunting season, such an alteration occurring before 
     the 10-day period preceding the opening date (as published in 
     the Federal Register) of that first regular season.
       ``(B) The term `baited area' means any area that contains 
     salt, grain, or other feed referred to in subparagraph (A)(i) 
     that was placed in that area by baiting. Such an area shall 
     remain a baited area for 10 days following complete removal 
     of such salt, grain, or other feed.
       ``(C) The term `accepted agricultural planting, harvesting, 
     and manipulation after harvest' means techniques of planting, 
     harvesting, and manipulation after harvest that are--
       ``(i) used by agricultural operators in the area for 
     agricultural purposes; and
       ``(ii) approved by the State fish and wildlife agency after 
     consultation with the Cooperative State Research, Education, 
     and Extension Service, the Natural Resources Conservation 
     Service, and the United States Fish and Wildlife Service.
       ``(D) The term `accepted agricultural operations or 
     procedures' means techniques that are--
       ``(i) used by agricultural operators in the area for 
     agricultural purposes; and
       ``(ii) approved by the State fish and wildlife agency after 
     consultation with the State Cooperative State Research, 
     Education, and Extension Service, the State Office of the 
     Natural Resources Conservation Service, and the United States 
     Fish and Wildlife Service.
       ``(E) The term `accepted soil stabilization practices' 
     means techniques that are--
       ``(i) used in the area solely for soil stabilization 
     purposes, including erosion control; and
       ``(ii) approved by the State fish and wildlife agency after 
     consultation with the State Cooperative State Research, 
     Education, and Extension Service, the State Office of the 
     Natural Resources Conservation Service, and the United States 
     Fish and Wildlife Service.
       ``(F) With respect only to planted millet or other 
     vegetation (as designated in migratory bird hunting 
     regulations issued by the Secretary of the Interior) planted 
     for nonagricultural purposes, the term `planted'--
       ``(i) subject to clause (ii), means sown with seeds that 
     have been harvested; and
       ``(ii) does not include alteration of mature stands of 
     planted millet or of such other vegetation planted for 
     nonagricultural purposes.
       ``(G) The term `migratory game bird' means any migratory 
     bird included in the term `migratory game birds' under part 
     20.11 of title 50, Code of Federal Regulations, as in effect 
     October 3, 1997.''.

     SEC. 4. PENALTIES.

       Section 6(c) of the Migratory Bird Treaty Act (16 U.S.C. 
     707(c)) is amended as follows:
       (1) By striking ``All guns,'' and inserting ``(1) Except as 
     provided in paragraph (2), all guns''.
       (2) By adding the following at the end:
       ``(2) In lieu of seizing any personal property not crucial 
     to the prosecution of the alleged offense, the Secretary of 
     the Interior shall permit the owner or operator of the 
     personal property to post bond or other collateral pending 
     the disposition of any proceeding under this Act.''.
                                 ______