[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\
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\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.
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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\
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\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).
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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\
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\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\
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\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.
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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.