[House Report 105-542]
[From the U.S. Government Publishing Office]



105th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES

 2d Session                                                     105-542
_______________________________________________________________________


 
                MIGRATORY BIRD TREATY REFORM ACT OF 1998

                                _______
                                

  May 19, 1998.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

_______________________________________________________________________


  Mr. Young of Alaska, from the Committee on Resources, submitted the 
                               following

                              R E P O R T

                        [To accompany H.R. 2863]

      [Including cost estimate of the Congressional Budget Office]

  The Committee on Resources, to whom was referred the bill 
(H.R. 2863) to amend the Migratory Bird Treaty Act to clarify 
restrictions under that Act on baiting, to facilitate 
acquisition of migratory bird habitat, and for other purposes, 
having considered the same, report favorably thereon with an 
amendment and recommend that the bill as amended do pass.
  The amendment is as follows:
  Strike out all after the enacting clause and insert in lieu 
thereof the following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``Migratory Bird Treaty Reform Act of 
1998''.

SEC. 2. ELIMINATING STRICT LIABILITY FOR BAITING.

  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) It shall be unlawful for any person to--
          ``(1) take any migratory game bird by the aid of baiting, or 
        on or over any baited area, if the person knows or reasonably 
        should know that the area is a baited area; or
          ``(2) 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 on or over the baited area.''.

                          Purpose of the Bill

    The purpose of H.R. 2863, as introduced, is to amend the 
Migratory Bird Treaty Act of 1918 to clarify restrictions under 
that Act on baiting, to facilitate acquisition of migratory 
bird habitat, and for other purposes.

                  Background and Need for Legislation

    In 1916, the United States and Great Britain (for Canada) 
signed a Convention for the Protection of Migratory Birds. The 
fundamental goal of this Convention was to establish an 
international framework for the protection and conservation of 
migratory birds.
    Under the Treaty, unless and except as permitted by 
regulation, it is unlawful at any time to ``pursue, hunt, take, 
capture, kill, possess, offer for sale, sell, offer to barter, 
barter, offer to purchase, purchase, deliver for shipment, 
ship, export, import * * * any migratory bird, any part, nest, 
or egg of any such bird * * * included in the terms of the 
convention between the United States and Great Britain for the 
protection of migratory birds.'' The United States has also 
signed similar agreements with Mexico and the former Soviet 
Union.
    What is a migratory bird? Under the Convention, the term 
``migratory bird'' means all wild species of ducks, geese, 
brants, coots, gallinules, rails, snipes, woodcocks, crows, and 
mourning and white-winged doves.
    In 1918, the U.S. Congress passed the Migratory Bird Treaty 
Act. This Act became our domestic law implementing the 
Convention and it committed this nation to the conservation of 
migratory birds. In addition, the Act instructed the U.S. Fish 
and Wildlife Service to develop regulations on the harvest of 
this renewable resource. Both the Convention and the 1918 Act 
were designed to reduce the take of migratory birds on an 
international basis.

                            u.s. regulations

    In the 80 years since Congress passed the Migratory Bird 
Treaty Act, the U.S. Fish and Wildlife Service has issued 
numerous Federal regulations governing the circumstances by 
which a hunter may take a migratory bird. For instance, the 
U.S. Fish and Wildlife Service annually issues regulations 
establishing the hunting seasons and bag limits (number an 
individual may kill) for each migratory bird. These regulations 
are issued only after an extensive biological review of 
population levels, reproduction rates, and the amount of 
available habitat for these species.
    Over the years, the Service has also issued regulations, 
strongly supported by the hunting community, restricting the 
methods by which an individual may harvest a migratory bird. 
For example, it is illegal to take a migratory bird by:
          Use of a sinkbox or any other type of floating device 
        that places the hunter beneath the surface of the 
        water;
          Use of a motor vehicle or aircraft;
          Use or aid of live birds or decoys;
          Use or aid of recorded or electronically amplified 
        bird calls or imitations of those sounds; and
          Use of any shot except steel shot, bismuth-tin shot, 
        or other shot approved by the Secretary of the Interior 
        that is nontoxic to waterfowl.
    Generally, there has been little controversy over these 
regulations, and their enforcement has had a beneficial impact 
on migratory bird populations. However, there is one regulation 
dealing with the hunting of migratory birds over a ``baited 
field'' that has sparked tremendous debate.

                    problematic baiting regulations

    Congress has never passed a law that says: this is baiting 
and this practice is illegal. In fact, it is not illegal to 
bait a field or to feed migratory birds. It is, however, 
strictly prohibited to hunt in such an area. While the U.S. 
Fish and Wildlife Service has modified its baiting regulations 
17 times, there have been no changes in the last 25 years, 
despite continuing problems with fairness and clarity. For 
example:
          If you are hunting over a baited field, whether you 
        know it or not, you are guilty. There is no defense.
          There is virtually no opportunity to present evidence 
        in a case. It does not matter whether there is a little 
        or a lot of bait, or if it served as an attraction to 
        the migratory bird.
          It does not matter if you have a signed affidavit 
        from the landowner asserting that bait was not present. 
        This document has no value in court.
          It does not matter if the bait is a mile away from 
        the hunting site.
    There are also continuing inconsistencies in law 
enforcement, conflicting decisions issued by Federal courts, 
and, most importantly, injustices experienced by migratory bird 
hunters, farmers, wildlife managers, landowners, and 
professional guides who are being cited for violating baiting 
prohibitions. The judicial record and the history of law 
enforcement under this prohibition demonstrate that the courts 
and law enforcement officials have not and, in far too many 
cases, conscientiously will not provide the clarity necessary 
for uniform and just application of baiting prohibitions. 
Therefore, Congress has an obligation to bring uniformity to 
enforcement since these regulations were promulgated as the 
result of an international treaty and should not mean one thing 
in one State and another elsewhere.
    Over the past decade, there have been several attempts to 
address the problems associated with the baiting regulations. 
In 1990, a Law Enforcement Advisory Commission, created by the 
U.S. Fish and Wildlife Service, found the enforcement of 
regulations concerning baiting were ``confusing'' and ``too 
complex.'' One of the Commission's recommendations was that ``a 
taskforce should be established to review 50 CFR Part 20 
(migratory bird hunting regulations) in an effort to clarify and 
simplify the existing regulations. This task group should include field 
agents, Service biologists, representatives of private organizations, 
State agencies, and possibly Technical Committee members from the 
various flyways.'' It took seven years for this task force to be 
established at the request of the Service.
    On May 1, 1997, the International Association of Fish and 
Wildlife Agencies Ad Hoc Committee on Baiting submitted its 
recommendations to the U.S. Fish and Wildlife Service. This Ad 
Hoc Committee included representatives from the various flyway 
councils, Ducks Unlimited, the National Wildlife Federation, 
North American Wildlife Enforcement Officers Association, the 
Wildlife Legislative Fund of America, and the Wildlife 
Management Institute.
    The Ad Hoc Committee made a number of recommendations to 
modernize and improve the baiting regulations. The Committee 
recommendations focus on four major areas: agricultural crops, 
management of natural vegetation, migratory game birds other 
than waterfowl, and strict liability. In particular, the 
Committee rejected the ``strict liability'' aspect of existing 
regulations. In its Executive Summary, the Committee stated:

          In an attempt to address every intentional violator, 
        the regulations compromise the truly innocent hunter. 
        The Committee therefore recommends the hunter be 
        required to know or have had a reasonable opportunity 
        to know that a hunted area is considered a baited area. 
        Additionally, this change will effectively reduce the 
        ``zone of influence'' in many cases because the farther 
        hunters are from the actual bait, the less likely they 
        are to have a reasonable opportunity to determine its 
        presence.

The Committee also recommended that it be ``unlawful for any 
person to place or direct the placement of bait'' for the 
purpose of causing hunters to take migratory game birds by the 
aid of baiting or on or over the baited area.
    In his cover letter to Mr. John Rogers, then Acting 
Director of the U.S. Fish and Wildlife Service, Mr. R. Max 
Peterson, Executive Vice President of the International 
Association of Fish and Wildlife Agencies, requested that the 
Ad Hoc Committee's recommendations receive ``favorable 
consideration * * * and that these ultimately be submitted to 
the Federal Register as a Fish and Wildlife Service proposal 
for public review and comment.'' Instead, the U.S. Fish and 
Wildlife Service promulgated its own proposed rule in the March 
25, 1998, Federal Register, for public comment until May 26, 
1999. This rule would make a number of modifications in key 
terms such as baited area, baiting, manipulation, natural 
vegetation, and normal agricultural and soil stabilization 
practices. However, the proposed rule stipulates that ``no 
changes are proposed in the application of strict liability to 
the migratory game bird baiting regulations.'' This is a 
repudiation of the Ad Hoc Committee's recommendations and 
contrary to the Administration's testimony presented to the 
Resources Committee last year.\1\
---------------------------------------------------------------------------
    \1\ In presenting the Administration's view on H.R. 741 [a 
predecessor bill to H.R. 2863], Dr. Robert Streeter expressed a number 
of concerns but stated that ``the known or should have known standard, 
I think, could be addressed.'' Subcommittee on Fisheries Conservation, 
Wildlife and Oceans hearing on H.R. 741, May 15, 1997.
---------------------------------------------------------------------------

            Strict Liability for Hunting Over a Baited Field

    The majority of courts apply a legal standard of strict 
liability for hunting migratory birds over a baited field. The 
hunter is guilty of hunting over bait, regardless of whether 
the hunter knew of the bait, or if there was a reasonable 
opportunity to know of its presence. If the hunter is there, 
and the bait is there, he or she is guilty. There is no legal 
defense, and this strict liability standard violates one of the 
basic tenets of criminal law where intent must be proved, or 
reasonably imputed, before a person can be found guilty of the 
crime charged.
    Such a doctrine has resulted in cases where defendants were 
liable for knowledge of bait a mile from the hunting site,\2\ 
and a citation where there were as few as 13 kernels of corn in 
a pond in the middle of a 3,000-acre cornfield.\3\ Even though 
a court may find that a hunter did not place the alleged bait, 
did not know, and could not have reasonably known of its 
presence, it ``reluctantly'' will affirm a conviction of 
``unfortunate'' defendants.\4\
---------------------------------------------------------------------------
    \2\ United States v. Orme, 851 F. Supp. 708 (D. Md. 1994), aff'd 
without opinion, 51 F.2d 268 (4th Cir. 1995).
    \3\ United States v. Lonergran, No. 89-0468 (E.D. Cal. 1989).
    \4\ United States v. Catlett, 747 F.2d 1102 (6th Cir. 1984).
---------------------------------------------------------------------------
    Adding further insult, a retired law enforcement agent of 
the U.S. Fish and Wildlife Service, Mr. Vernon G. Ricker, 
testifying in opposition to a predecessor bill to H.R. 2863, 
candidly asked and responded to his own question, ``Have I ever 
charged someone for hunting over bait that I truly believed did 
not know the area was baited? And I would say yes. I have in my 
career. I probably charged people for hunting over bait that 
truly didn't know.'' Mr. Ricker could have chosen to simply 
issue a warning and not a citation to those individuals who 
were unaware of any baiting problems involving migratory birds.
    These circumstances are unacceptable.
    H.R. 2863, as amended in Committee, removes strict 
liability for hunting for a baited field. The bill is simply 
designed to provide an opportunity for a defendant to place 
evidence before the court that he or she did not, in fact, know 
of the alleged bait and that he or she could not have 
reasonably known of its presence. This standard has been 
followed since 1978 in the Federal 5th Judicial Circuit 
pursuant to United States v. Delahoussaye.

          We conclude that at a minimum [the bait] must have 
        been so situated that [its] presence could have been 
        reasonably ascertained by a hunter properly wishing to 
        check the area of his activity. Any other 
        interpretation would simply render criminal conviction 
        an unavoidable consequence.\5\
---------------------------------------------------------------------------
    \5\ 573 F.2d 910, at 912-913 (5th Cir. 1978).

573 F.2d 910, 912-913 (5th Cir. 1978).
    The 5th 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 prohibitions. 
For example, based on information supplied by the U.S. Fish and 
Wildlife Service, in the most recent hunting season in 
Louisiana (1996-97), of the 52 persons cited by the Service for 
hunting over a baited field, 43 were found guilty. In 1995 in 
Mississippi (the most recent year statistics are available), 22 
baiting citations were issued; all 22 cited persons were found 
guilty or paid fines. In Texas, the Service also batted .1000, 
with six persons charged in the 1996-97 hunting season, and six 
found guilty or paid fines. In total, from 1984 to the 1996-97 
hunting season, 2318 citations were issued in these three 
states using the ``known or should have known'' liability 
standard. The Service obtained guilty pleas or payments of 
fines in 2042 cases, over 88 percent.\6\
---------------------------------------------------------------------------
    \6\ This number does not include the 210 instances in which the 
U.S. Fish and Wildlife Service or the relevant court dismissed the case 
for other grounds.
---------------------------------------------------------------------------
    As these statistics show, for the past 20 years, the 
Delahoussaye decision has been effectively used to protect 
migratory birds. During that time, no migratory bird population 
has been put at risk, and there have been numerous baiting 
convictions under the ``knows or should know'' standard. Based 
on this evidence, it is not surprising that the U.S. Fish and 
Wildlife Service has never attempted to overturn or challenge 
this decision.
    Application of the Delahoussaye standard will not lessen 
the protection of migratory birds or eliminate the opportunity 
for conviction of those persons who have, in fact, as 
demonstrated by the evidence, violated the baiting 
prohibitions. The standard of proof and defense still requires 
evidence as in any criminal case. If a preponderance of 
evidence so demonstrates, a defendant in a baiting case will be 
found guilty. This standard is far less stringent than the 
``beyond a reasonable doubt'' standard in all other criminal 
cases.
    Over the years, sportsmen have demonstrated their support 
to maintain viable and healthy fish and wildlife resources by 
the millions of dollars and untold volunteer hours they have 
contributed to conservation efforts. By the confusing and 
inappropriate application of the legal standard of strict 
liability, many migratory bird hunters have left the field 
rather than face a potential criminal conviction even when they 
would be totally innocent of the charges.
    The Committee intends to periodically review the effects of 
changing the strict liability standard. It is expected that 
this change will have no adverse effect on migratory bird 
populations nor will it compromise law enforcement. Subsequent 
oversight, however, will enable the Committee to evaluate the 
effects of H.R. 2863 and make additional changes, or return to 
the strict liability standard, if warranted by the facts.

                           Zone of Influence

    A second area where the strict liability doctrine has 
caused unreasonable problems is the doctrine of the ``zone of 
influence'' of the alleged bait bringing the migratory bird to 
the gunning venue. The Committee heard where Fish and Wildlife 
Service agents have testified that bait five miles from the 
gunning area is a circumstance requiring citation and, under 
strict liability, criminal conviction. In other cases, baiting 
convictions have been returned against unknowing hunters a full 
mile away from the alleged baited site. Such circumstances 
clearly place an unwarranted and impossible burden on a hunter 
to reconnoiter such unreasonable distances from a blind or a 
dove stand. The Committee expects the Fish and Wildlife Service 
to act reasonably in regard to the zone of influence in 
promulgating regulations, and issue citations only in 
circumstances where a reasonably diligent hunter could 
ascertain the presence of sufficient bait to influence 
migratory birds.

                           Placement of Bait

    H.R. 2863 also seeks to ensure that a person actually 
placing the bait for purpose of luring migratory birds to a 
given area will be cited for ``baiting'' even though he or she 
may not be hunting. In many cases, citations are only given to 
the hunters, and the person causing the illegal condition is 
not charged since he or she is not present when the citations 
are issued. In this case, someone doing the baiting could be 
charged even though the hunter may prove that he or she did not 
know, or could not have reasonably known, of the presence of 
bait. This change in the law implements one of the 
recommendations of the Ad Hoc Committee on Baiting, discussed 
above.

                            Committee Action

    H.R. 2863 was introduced by the Chairman of the Resources 
Committee, Congressman Don Young (R-AK), and Congressmen John 
Tanner (D-TN), John Dingell (D-MI), Curt Weldon (R-PA), and 
Cliff Stearns (R-FL) on November 6, 1997, and referred to the 
Committee on Resources.
    On May 15, 1997, the Subcommittee on Fisheries 
Conservation, Wildlife and Oceans conducted a hearing on H.R. 
741, a predecessor bill to H.R. 2863. Testimony was heard from 
Senator John Breaux (D-LA); Congressman Cliff Stearns (R-FL); 
Dr. Robert Streeter, Assistant Director for Refuges and 
Wildlife, U.S. Fish and Wildlife Service; Mr. Brent Manning, 
Director, Illinois Department of Natural Resources; Mr. William 
P. Horn, Birch, Horton, Bittner and Cherot; Mr. Stephen S. 
Boynton, Henke and Associates; Dr. Rudolph Rosen, Executive 
Director, Safari Club International; Mr. Dan Limmer, Regional 
Executive, National Wildlife Federation; Dr. Rollin D. 
Sparrowe, President, Wildlife Management Institute; Ms. Susan 
Lamson, Directorof Conservation, Wildlife and Natural 
Resources, National Rifle Association; Mr. W. Ladd Johnson, Board 
Member, National Waterfowl Federation; Mr. William Boe, Gainesville, 
Florida; Mr. Vernon Ricker, Retired Special Agent, U.S. Fish and 
Wildlife Service; Mr. Terrance J. Sullivan, Secretary, League of 
Kentucky Sportsmen; Mr. Charles Conner, Germantown, Tennessee; and Mr. 
Fred Bonner, Carolina Adventure.
    On April 29, 1998, the full Resources Committee met to 
consider H.R. 2863. Chairman Young offered an amendment in the 
nature of a substitute that limited the scope of the bill to 
the replacement of ``strict liability'' with the ``knows or 
reasonably should know'' standard. The amendment was adopted by 
voice vote. The bill, as amended, was then ordered favorably 
reported to the House of Representatives by voice vote.

                      Section-by-Section Analysis

                         Section 1. Short Title

    This Act may be cited as the ``Migratory Bird Treaty Reform 
Act of 1998.''

          Section 2. Eliminating Strict Liability for Baiting

    Section 3 of the Migratory Bird Treaty Reform Act is 
amended by adding the following: ``It is unlawful for any 
person to take any migratory game bird by aid of baiting, or on 
or over any baited area, if the person knows or reasonably 
should know that the area is a baited area; or 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 on or 
over the baited area.''

            Committee Oversight Findings and Recommendations

    With respect to the requirements of clause 2(l)(3) of rule 
XI of the Rules of the House of Representatives, and clause 
2(b)(1) of rule X of the Rules of the House of Representatives, 
the Committee on Resources' oversight findings and 
recommendations are reflected in the body of this report.

                   Constitutional Authority Statement

    Article I, section 8 of the Constitution of the United 
States grants Congress the authority to enact H.R. 2863.

                        Cost of the Legislation

    Clause 7(a) of rule XIII of the Rules of the House of 
Representatives requires an estimate and a comparison by the 
Committee of the costs which would be incurred in carrying out 
H.R. 2863. However, clause 7(d) of that rule provides that this 
requirement does not apply when the Committee has included in 
its report a timely submitted cost estimate of the bill 
prepared by the Director of the Congressional Budget Office 
under section 403 of the Congressional Budget Act of 1974.

                     Compliance With House Rule XI

    1. With respect to the requirement of clause 2(l)(3)(B) of 
rule XI of the Rules of the House of Representatives and 
section 308(a) of the Congressional Budget Act of 1974, H.R. 
2863 does not contain any new budget authority, spending 
authority, credit authority, or an increase or decrease in tax 
expenditures. According to the Congressional Budget Office, 
enactment of H.R. 2863 could reduce receipts from criminal 
fines, but any loss of receipts would be insignificant and 
largely offset by decreased direct spending from the Crime 
Victims Fund, where these fines are deposited.
    2. With respect to the requirement of clause 2(l)(3)(D) of 
rule XI of the Rules of the House of Representatives, the 
Committee has received no report of oversight findings and 
recommendations from the Committee on Government Reform and 
Oversight on the subject of H.R. 2863.
    3. With respect to the requirement of clause 2(l)(3)(C) of 
rule XI of the Rules of the House of Representatives and 
section 403 of the Congressional Budget Act of 1974, the 
Committee has received the following cost estimate for H.R. 
2863 from the Director of the Congressional Budget Office.

               Congressional Budget Office Cost Estimate

                                     U.S. Congress,
                               Congressional Budget Office,
                                      Washington, DC, May 14, 1998.
Hon. Don Young,
Chairman, Committee on Resources,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 2863, the 
Migratory Bird Treaty Reform Act of 1998.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Deborah Reis.
            Sincerely,
                                         June E. O'Neill, Director.
    Enclosure.

H.R. 2863--Migratory Bird Treaty Reform Act of 1998

    CBO estimates that enacting H.R. 2863 would have no 
significant effect on the federal budget. Because the bill may 
reduce receipts from criminal fines, pay-as-you-go procedures 
would apply. Any loss of receipts would not be significant, 
however, and would be largely offset by decreased direct 
spending from the Crime Victims Fund (into which these fines 
are deposited). H.R. 2863 contains no intergovernmental or 
private-sector mandates as defined in the Unfunded Mandates 
Reform Act of 1995 and would not affect the budgets of state, 
local, or tribal governments.
    H.R. 2863 would codify a standard for determining when 
someone is guilty of hunting migratory birds over an area 
baited with bird feed. At present, there is no statutory rule 
for deciding the issue; thus, the standard is determined by the 
courts and differs from jurisdiction to jurisdiction. In most 
areas of the country, courts usually apply strict liability--
anyone found hunting over a baited field is guilty of violating 
federal law whether the person knew that the area was baited or 
not. In contrast, H.R. 2863 would establish a national 
standard, presently applied in only a few states, that would 
make it unlawful for a person to hunt over a field only if that 
person knows or reasonably should know that the area is baited.
    It is possible that applying the new standard nationally 
could make it somewhat more difficult for some prosecutors to 
prove that the law has been violated, resulting in fewer 
convictions in some states. CBO estimates, however, that the 
aggregate decrease in federal revenues from fines would be 
insignificant because the overall conviction rate would be 
unlikely to fall by much--these rates are already extremely 
high in all states, regardless of which standard is applied. In 
any case, losses of revenues would result in similar decreases 
in direct spending from the Crime Victims Fund.
    The CBO staff contact for this estimate is Deborah Reis. 
This estimate was approved by Robert A. Sunshine, Deputy 
Assistant Director for Budget Analysis.

                    Compliance With Public Law 104-4

    H.R. 2863 contains no unfunded mandates.

         Changes in Existing Law Made by the Bill, as Reported

    In compliance with clause 3 of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (new matter is 
printed in italic and existing law in which no change is 
proposed is shown in roman):

               SECTION 3 OF THE MIGRATORY BIRD TREATY ACT

    Sec. 3. (a) That subject to the provisions and in order to 
carry out the purposes of the conventions, the Secretary of 
Agriculture is authorized and directed, from time to time, 
having due regard to the zones of temperature and to the 
distribution, abundance, economic value, breeding habits, and 
times and lines of migratory flight of such birds, to determine 
when, to what extent, if at all, and by what means, it is 
compatible with the terms of the conventions to allow hunting, 
taking, capture, killing, possession, sale, purchase, shipment, 
transportation, carriage, or export of any such bird, or any 
part, nest, or egg thereof, and to adopt suitable regulations 
permitting and governing the same, in accordance with such 
determniations, which regulations shall become effective when 
approved by the President.
    (b) It shall be unlawful for any person to--
          (1) take any migratory game bird by the aid of 
        baiting, or on or over any baited area, if the person 
        knows or reasonably should know that the area is a 
        baited area; or
          (2) 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 on 
        or over the baited area.