SPEAKERS CONTENTS INSERTS
Page 1 TOP OF DOC
42–875 CC
1997
MIGRATORY BIRD TREATY REFORM ACT
HEARING
before the
SUBCOMMITTEE ON FISHERIES CONSERVATION, WILDLIFE AND OCEANS
of the
COMMITTEE ON RESOURCES
HOUSE OF REPRESENTATIVES
ONE HUNDRED FIFTH CONGRESS
FIRST SESSION
on
H.R. 741
Page 2 PREV PAGE TOP OF DOC
MAY 15, 1997—WASHINGTON, DC
Serial No. 105–23
Printed for the use of the Committee on Resources
COMMITTEE ON RESOURCES
DON YOUNG, Alaska, Chairman
W.J. (BILLY) TAUZIN, Louisiana
JAMES V. HANSEN, Utah
JIM SAXTON, New Jersey
ELTON GALLEGLY, California
JOHN J. DUNCAN, Jr., Tennessee
JOEL HEFLEY, Colorado
JOHN T. DOOLITTLE, California
WAYNE T. GILCHREST, Maryland
KEN CALVERT, California
RICHARD W. POMBO, California
BARBARA CUBIN, Wyoming
HELEN CHENOWETH, Idaho
LINDA SMITH, Washington
Page 3 PREV PAGE TOP OF DOC
GEORGE P. RADANOVICH, California
WALTER B. JONES, Jr., North Carolina
WILLIAM M. (MAC) THORNBERRY, Texas
JOHN SHADEGG, Arizona
JOHN E. ENSIGN, Nevada
ROBERT F. SMITH, Oregon
CHRIS CANNON, Utah
KEVIN BRADY, Texas
JOHN PETERSON, Pennsylvania
RICK HILL, Montana
BOB SCHAFFER, Colorado
JIM GIBBONS, Nevada
MICHAEL D. CRAPO, Idaho
GEORGE MILLER, California
EDWARD J. MARKEY, Massachusetts
NICK J. RAHALL II, West Virginia
BRUCE F. VENTO, Minnesota
DALE E. KILDEE, Michigan
PETER A. DeFAZIO, Oregon
ENI F.H. FALEOMAVAEGA, American Samoa
NEIL ABERCROMBIE, Hawaii
SOLOMON P. ORTIZ, Texas
OWEN B. PICKETT, Virginia
FRANK PALLONE, Jr., New Jersey
Page 4 PREV PAGE TOP OF DOC
CALVIN M. DOOLEY, California
CARLOS A. ROMERO-BARCELÓ, Puerto Rico
MAURICE D. HINCHEY, New York
ROBERT A. UNDERWOOD, Guam
SAM FARR, California
PATRICK J. KENNEDY, Rhode Island
ADAM SMITH, Washington
WILLIAM D. DELAHUNT, Massachusetts
CHRIS JOHN, Louisiana
DONNA CHRISTIAN-GREEN, Virgin Islands
RON KIND, Wisconsin
LLOYD DOGGETT, Texas
LLOYD A. JONES, Chief of Staff
ELIZABETH MEGGINSON, Chief Counsel
CHRISTINE KENNEDY, Chief Clerk/Administrator
JOHN LAWRENCE, Democratic Staff Director
Subcommittee on Fisheries Conservation, Wildlife and Oceans
JIM SAXTON, New Jersey, Chairman
W.J. (BILLY) TAUZIN, Louisiana
WAYNE T. GILCHREST, Maryland
WALTER B. JONES, Jr., North Carolina
JOHN PETERSON, Pennsylvania
Page 5 PREV PAGE TOP OF DOC
MICHAEL D. CRAPO, Idaho
NEIL ABERCROMBIE, Hawaii
SOLOMON P. ORTIZ, Texas
FRANK PALLONE, Jr., New Jersey
SAM FARR, California
PATRICK J. KENNEDY, Rhode Island
HARRY BURROUGHS, Staff Director
JOHN RAYFIELD, Legislative Staff
CHRISTOPHER STEARNS, Democratic Counsel
C O N T E N T S
Hearing held May 15, 1997
Statement of Members:
Abercrombie, Hon. Neil, a Representative in Congress from the State of Hawaii
Saxton, Hon. Jim, a Representative in Congress from the State of New Jersey; and Chairman, Subcommittee on Fisheries Conservation, Wildlife and Oceans
Prepared statement of
Stearns, Hon. Cliff, a Representative in Congress from the State of Florida
Prepared statement of
Young, Hon. Don, a Representative in Congress from the State of Alaska, prepared statement of
Page 6 PREV PAGE TOP OF DOC
Statement of Witnesses:
Boe, William, Gainesville, Florida
Prepared statement of
Bonner, Fred, Carolina Adventure, Raleigh, North Carolina
Prepared statement of
Boynton, Stephen S., Henke and Associates
Prepared statement of
Breaux, Hon. John, a Senator in Congress from the State of Louisiana
Prepared statement of
Conner, Charles, Germantown, Tennessee
Prepared statement of
Horn, William P., Birch, Horton, Bittner and Cherot
Prepared statement of
Johnson, W. Ladd, Board Member, National Waterfowl Federation
Prepared statement of
Lamson, Susan, Director of Conservation, Wildlife and Natural Resources Division, National Rifle Association
Prepared statement of
Limmer, Dan, Regional Executive, National Wildlife Federation
Prepared statement of
Manning, Brent, Director, Illinois Department of Natural Resources
Prepared statement of
Ricker, Vernon, Retired Special Agent, U.S. Fish and Wildlife Service, Salisbury, Maryland
Prepared statement of
Rosen, Dr. Rudolph, Executive Director, Safari Club International
Page 7 PREV PAGE TOP OF DOC
Prepared statement of
Sparrowe, Rollin, President, Wildlife Management Institute
Prepared statement of
Streeter, Robert, Assistant Director for Refuges and Wildlife, U.S. Fish and Wildlife Service
Prepared statement of
Sullivan, Terrance J., Secretary, League of Kentucky Sportsmen, Prospect, Kentucky
Prepared statement of
Additional material supplied:
Letter from the Subcommittee Staff to Members of the Subcommittee on Fisheries Conservation, Wildlife and Oceans
Text of H.R. 741
HUNTING AND WILDLIFE HABITAT UNDER MBTA
THURSDAY, MAY 15, 1997
House of Representatives, Subcommittee on Fisheries Conservation, Wildlife and Oceans, Committee on Resources,
Washington, DC.
The Subcommittee met, pursuant to call, at 10:30 a.m., Room 1324 Longworth House Office Building, Hon. Jim Saxton (Chairman of the Subcommittee) presiding.
STATEMENT OF HON. JIM SAXTON, A U.S. REPRESENTATIVE FROM NEW JERSEY; AND CHAIRMAN, SUBCOMMITTEE ON FISHERIES CONSERVATION, WILDLIFE AND OCEANS
Page 8 PREV PAGE TOP OF DOC
Mr. SAXTON. Good morning. The Subcommittee will come to order. The subject of today's hearing is H.R. 741, the Migratory Bird Treaty Reform Act of 1997. The measure, introduced by the Full Committee Chairman Don Young, is basically identical to legislation proposed at the end of last Congress.
Due to administrative inaction, inconsistent application of regulations and confusing court decisions, there are those in Congress who believe that it is time to legislatively change certain provisions regarding baiting that have penalized many law-abiding citizens.
In 1918, Congress enacted the Migratory Bird Treaty Act, which implemented the 1916 Convention for the Protection of Migratory Birds between Great Britain and the United States. Since that time, there have been similar agreements signed between the United States, Mexico and the 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 or 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 over a baited area has generated tremendous controversy, and it has not been satisfactorily resolved. Today's witnesses will enlighten us on the problems they perceive regarding the issue.
Page 9 PREV PAGE TOP OF DOC
During the past three decades, Congress has addressed various aspects of the baiting issue. It has also been addressed by the Law Enforcement Advisory Commission appointed by the Fish and Wildlife Service. Unfortunately, no positive action 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 conducted an oversight hearing to review the problems associated with MBTA regulations, their enforcement and the appropriate judicial rulings. It was clear from the testimony at that hearing, as well as previous hearings, that the time has come for Congress to address these problems through comprehensive legislation. I look forward to hearing from our witnesses and their views on this issue.
Mr. Abercrombie.
[Statement of Jim Saxton follows:]
STATEMENT OF THE HONORABLE JIM SAXTON, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW JERSEY
Good morning. The Subcommittee will come to order. The subject of today's hearing is H.R. 741, the Migratory Bird Treaty Reform Act of 1997. This measure, introduced by Full Committee Chairman Don Young, is basically identical to legislation proposed at the end of the previous Congress.
Due to administrative inaction, inconsistent application of regulations, and confusing court decisions, there are those in Congress who believe it is time to legislatively change certain provisions regarding ''baiting'' that have penalized many law abiding citizens.
In 1918, 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 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.
Page 10 PREV PAGE TOP OF DOC
In 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. Today's witnesses will enlighten us on the problems they perceive regarding this issue.
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. Unfortunately, no positive action 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 conducted an oversight hearing to review the problems associated with the MBTA regulations, their enforcement, and the appropriate judicial rulings. It was clear from the testimony at that hearing, as well as previous hearings, that it is time for the Congress to address these problems through comprehensive legislation. I look forward to hearing from our witnesses about their views on H.R. 741.
STATEMENT OF HON. NEIL ABERCROMBIE, A U.S. REPRESENTATIVE FROM HAWAII
Page 11 PREV PAGE TOP OF DOC
Mr. ABERCROMBIE. Thank you very much, Mr. Chairman. I would like to read into the record a statement by the ranking member, Mr. Miller.
One year ago today, the committee held a hearing that provided an excellent example of why we have such strict regulations against hunting over bait under the Migratory Bird Treaty Act. At that hearing, as it did in court, the Fish and Wildlife Service produced compelling evidence demonstrating that in that case people were caught red handed hunting doves over bait and violating a number of other wildlife laws, yet they still claimed to be unaware that the fields they were hunting in were baited. But rather than have their day in court, as they are legally entitled to, they chose to complain to Congress and demand a legislative fix.
Mr. Chairman, people whose eyesight is that poor or who are so unobservant should not be turned loose with guns. I wouldn't want to be out in the woods with them. May I add parenthetically Mr. Miller might not want to be out with the woods with them in any event. But today we have a second round of hearings on the issue and I hope it provides a more balanced look at the real issues.
I favor clear regulations which well-intentioned hunters can comply with reasonable effort, but I oppose any effort to establish a standard of evidence that is impossible for law enforcement agents to satisfy. The migratory bird populations would suffer in that case and we would be rewarding the scoff laws.
My concern with Chairman Young's legislation is that it places an unreasonable burden of proof on the Fish and Wildlife Service, effectively vitiating enforcement of baiting regulations in the field. Moreover, by codifying in law what is now governed through regulation, future changes would require an act of Congress.
Page 12 PREV PAGE TOP OF DOC
I understand that the Fish and Wildlife Service is currently contemplating revisions to the MBTA regulations. I support that process, and I am sure that some revisions are probably long overdue but legislative preemption of that process is not justified. If innocent hunters are being cited, then perhaps enforcement agents and their supervisors need to be educated better as to what constitutes bait and what constitutes a clear violation, but the MBTA has done a good job in protecting migratory bird populations and this legislation would substantially decrease that protection. The result would be that both the wildlife resource and the hunters would ultimately suffer.
Thank you very much, Mr. Chairman.
Mr. SAXTON. Thank you. I ask unanimous consent at this point that other member's statements be included in the record at this point.
[Statement of Hon. Don Young follows:]
STATEMENT OF HON. DON YOUNG, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF ALASKA
Mr. Chairman, today is the anniversary of an oversight hearing I conducted last year on our migratory bird ''baiting'' regulations and an infamous charity dove hunt in Cross City, Florida.
It has been nearly 80 years since enactment of the Migratory Bird Treaty Act (MBTA). During that time, there have been many Congressional hearings, a thorough review of the regulations by the distinguished Law Enforcement Advisory Commission, and an Ad Hoc Committee on Baiting, which has just released its final recommendations. In each case, there has been a recognition that there are serious problems with our ''baiting'' regulations and that innocent hunters have been unfairly prosecuted.
Page 13 PREV PAGE TOP OF DOC
While it may not be perfect, H.R. 741 will correct these regulations and ensure that law-abiding citizens are not trapped, tried, fined, and burdened with a Federal criminal record for unintentionally violating our baiting regulations.
Before explaining my bill, let me categorically state that I strongly support: the conservation of migratory bird resources; the hunting philosophy of ''fair chase'', and the citing of those individuals who knowingly hunt ''on or over any baited field.''
The fundamental change in H.R. 741 is the elimination of the ''strict liability doctrine'' and the establishment of a ''knew or should have known standard.''
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. What is interesting is that the strict liability standard applies only in Federal criminal cases involving hunting migratory birds and the spilling of toxic waste.
In addition to removing the strict liability standard, my bill allows defendants to submit evidence in court, including whether the ''bait'' acted as a lure, and permits the scattering of grains and seeds, if it is done as a ''normal agricultural operation.'' H.R. 741 also defines the term ''bait,'' requires that all fines collected under the MBTA be deposited in an account to purchase additional habitat, and codifies each of the other restrictions on the harvesting of a migratory bird except for baiting.
This is not a radical proposal. Nevertheless, I expect that the U.S. Fish and Wildlife Service will strongly oppose this legislation. They will oppose it because currently there is nearly a 100 percent conviction rate in baiting cases, there is no requirement to collect evidence, and there is no need to prove intent or to demonstrate a defendant's guilt beyond a reasonable doubt.
Page 14 PREV PAGE TOP OF DOC
In a recent article in the Congressional Quarterly, Mr. Keith Morehouse of the U.S. Fish and Wildlife Service argues that H.R. 741 would lead to over hunting.
To be frank, that argument is nonsense. My bill does not affect in any way either bag limits or hunting seasons. Furthermore, if the law enforcement branch of the Service is so committed to the protection of migratory birds, then why did they allow more than 440 doves to be killed in the famous Florida dove hunt. On that day in October 1995, they failed to uphold their fundamental obligation to protect the resource. They did, however, collect over $39,000 in fines.
Today we will also hear from Mr. Vernon Ricker, a recently retired Fish and Wildlife Service agent. Mr. Ricker is quoted as saying, ''I could count on one or two hands the ones who didn't know the bait was there.''
If that is true, then Mr. Ricker should be supporting my bill because we would be talking about only a handful of innocent people.
Mr. Chairman, it is patently wrong to convict hunters who do not know that a field is ''baited,'' for a few kernels of corn in a sunflower field, and for bait that is over a mile from the hunting site.
It was also wrong for our government to ruin the military career of Mark Cobb, a University of Florida student who was cited by the Service in the Cross City dove hunt. Mark paid his $250 fine, after erroneously being told this was a minor infraction—like a speeding ticket—and would not be part of his permanent record. Since then, Mark has lost his ROTC scholarship and forever has a Federal criminal record. For what it's worth, Mark has stated that ''I know what bait is illegal and saw none where I hunted.''
I look forward to hearing from our witnesses and would like to warmly welcome our former distinguished colleague from Louisiana, Senator John Breaux, who is certainly well versed on the problems caused by our ''baiting'' regulations.
Page 15 PREV PAGE TOP OF DOC
LETTER FROM THE SUBCOMMITTEE STAFF TO MEMBERS OF THE SUBCOMMITTEE ON FISHERIES CONSERVATION, WILDLIFE AND OCEANS
MEMORANDUM
H.R. 741, Migratory Bird Treaty Reform Act of 1997
On Thursday, May 15, 1997, the Subcommittee on Fisheries Conservation, Wildlife and Oceans will conduct a hearing on H.R. 741, the Migratory Bird Treaty Reform Act of 1997. The hearing will be held at 10 a.m. in room 1324 Longworth House Office Building. Those invited to testify include: Members of Congress; the Honorable Bruce Babbitt, Secretary, Department of the Interior; the Honorable James S. Gilmore III, Attorney General, Commonwealth of Virginia; the Honorable Julian M. Carroll, former Governor, Commonwealth of Kentucky; Mr. William P. Horn, Birch, Horton, Bittner and Cherot; Mr. Stephen S. Boynton, General Counsel, Henke and Associates; the Honorable Ron Marlenee, Director of Legislative Affairs, Safari Club International; Mr. R. Max Peterson, Executive Vice President, International Association of Fish and Wildlife Agencies; Mr. Dan Limmer, Regional Executive, National Wildlife Federation; Ms. Susan Lamson, Director of Conservation, Wildlife and Natural Resources Division, National Rifle Association; Mr. W. Ladd Johnson, National Waterfowl Federation; Mr. Terry Sullivan, Secretary, League of Kentucky Sportsmen; and public witnesses.
BACKGROUND
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.
Page 16 PREV PAGE TOP OF DOC
In fact, under the Treaty, unless and except as permitted by regulations, 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 (MBTA). This Act became our domestic law implementing the International Convention and it committed this nation to the protection and management of migratory birds. In addition, the Act instructed the U.S. Fish and Wildlife Service to develop regulations on the harvest or ''take'' of this renewable resource. Both the Convention and the MBTA were designed to ensure the proper utilization of renewable migratory bird resources.
U.S. REGULATIONS
In the nearly 80 years since the Congress passed the Migratory Bird Treaty Act, the U.S. Fish and Wildlife Service has issued numerous Federal regulations on how and under what circumstances 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 species. These regulations are issued only after an extensive biological review of population levels, reproduction rates, and the amount of available habitat for these species.
Page 17 PREV PAGE TOP OF DOC
Over the years, the Service has also issued regulations, strongly supported by the hunting community, restricting the methods an individual may use to harvest a migratory bird. For example, it is illegal to take a migratory bird by:
• the use of a sinkbox or any other type of floating device that places the hunter beneath the surface of the water;
• the use of a motor vehicle or aircraft;
• the use or aid of live birds or decoys;
• the use or aid of recorded or electronically amplified bird calls or imitations of those sounds; and
• the 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.
There is no controversy over these regulations, and the enforcement of these restrictions has had a beneficial impact on migratory bird populations for many years. However, there is one regulation dealing with the hunting of migratory birds over a ''baited field'' that has sparked tremendous debate—inconsistent enforcement and conflicting judicial opinions. This has resulted in many cases of unfair prosecution under the Migratory Bird Treaty Act of 1918.
BAITING REGULATION
By way of background, it is interesting to note that Congress has never passed a law that says ''this is baiting and this practice is illegal''. 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 24 years. It is fair to say that virtually no hunter supports the excessive harvest of this resource or the intentional shooting of birds over bait. However, there are a number of troubling aspects to the baiting regulations and how the courts have interpreted those rules.
Page 18 PREV PAGE TOP OF DOC
For instance, 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 a case. In short, if there is ''bait'' and the hunter is present, he or she is automatically guilty. It does not matter whether there is a lot or a little bait present, if it has served as an attraction to migratory birds, or how far the ''bait'' is from the hunting venue.
Over the years, there have been several prominent court cases on these regulations. Three of the most famous are:
U.S. v. Lonergran No. Misc. 89/0468 (E.D. Cal. 1989), This case involved the presence of 13 kernels of corn found in a pond by a law enforcement agent in a 300-acre cornfield;
U.S. v. Twin Ponds Duck Club, where 34 kernels of corn were found in a wheat field next to a freshwater river; and
U.S. v. Orme, 851 F. Supp. 708 (D. MD. 1994), where bait was found almost one mile from the hunting site.
While these are troubling cases, the overriding problem has been the development of the strict liability doctrine. Under the doctrine—if you were there, you are guilty—hundreds of innocent hunters have been cited for violating Federal baiting regulations and now have a Federal criminal record.
To date, only the Fifth Circuit Court has shown any willingness to deviate from the strict liability standard. In fact, in United States v. Dlahaussaye Case, 573, F. 2d 910, 912 (5th Cir. 1978), the Court found that the U.S. Fish and Wildlife Service must prove that the hunter ''should have known'' that bait was present at the hunting site. In this case, the Court stated that:
''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 for illegal devices. There is no justice, for example, in convicting one who is barred by a property line from ascertaining that birds were being pulled over him by bait . . . If the hunter cannot tell which is the means next door that is pulling birds over him, he cannot justly be penalized. Any other interpretation would simply render criminal conviction unavoidable occasional consequence of duck hunting and deny the sport to those such as, say, judges who might find such a consequence unacceptable.''
Page 19 PREV PAGE TOP OF DOC
Under current law, those convicted of shooting over a ''baited field'' are not normally incarcerated, since this a misdemeanor violation; but they must pay fines of several hundred dollars and have had firearms and equipment confiscated. In addition, they have a Federal criminal record. What is interesting is that only in Federal criminal cases involving hunting over a baited field or the spilling of toxic waste does the strict liability standard apply. The usual criminal standards of justice, where a defendant's guilt can only be established after a finding beyond a reasonable doubt, do not apply.
104TH CONGRESS
On May 15, 1996, the House Resources Committee conducted an oversight hearing on Federal baiting regulations and a particular baiting case in Cross City, Florida. In that instance, 88 individuals were cited for shooting over a ''baited'' 200-acre field that was being used to host a charity dove hunt to benefit the Florida Sheriffs Youth Ranches, Inc. These Youth Ranches exist to help young people who are abused, at risk, or orphans, deal with juvenile delinquency, crime or emotional problems.
One of the individuals cited at the Florida dove hunt was a 20-year-old University of Florida student who paid the minimum $250 fine despite the fact he was serving soft drink refreshments to those participating in the hunt at the time he was cited and was unaware the field might be ''baited.'' After being incorrectly advised that this violation was a minor infraction, the student lost his commission in the Army's ROTC program.
During the Full Committee oversight hearing on Federal baiting regulations, witnesses provided a number of interesting observations. For instance, a representative of the U.S. Fish and Wildlife Service testified that ''the Service is committed to a fair and objective review of this potential baiting issue.'' The director of the Illinois Department of Natural Resources stated that ''hunters feel trapped by regulations that bind them so tightly that, regardless of intent, it is nearly impossible to avoid violating the letter of the law. We need consistency, clarity, and common sense.''
Page 20 PREV PAGE TOP OF DOC
Furthermore, the Washington Counsel for the Wildlife Legislative Fund of America argues that ''existing regulations regarding the use of bait for take of migratory birds are too subjective, too obscure, and put thousands of law-abiding hunters at risk for potential violations.''
Finally, a private attorney who has been involved in dozens of baiting cases testified that ''the baiting issue has become more exacerbated due, unfortunately, to the twin prongs of unreasonable administration of the regulations by the U.S. Fish and Wildlife Service's Division of Law Enforcement and the unyielding position of the Federal courts—including U.S. Attorneys—in a joint rush to convict under the doctrine of strict liability in baiting cases.''
Following this hearing, the Chairman of the Resources Committee, the Honorable Don Young, introduced H.R. 4077, the Migratory Bird Treaty Reform Act of 1996. While there was no further action on this issue, the general thrust of this legislation was that our wildlife protection laws should not unfairly penalize law-abiding citizens.
MIGRATORY BIRD TREATY REFORM ACT
On February 12, 1997, the Chairman of the House Resources Committee, the Honorable Don Young, the Honorable John Tanner, Co-Chairman of the Congressional Sportsmen's Caucus, and the Honorable Cliff Stearns (R–FL) introduced H.R. 741. The goals of this legislation are to:
• Incorporate into Federal law the existing regulations, except for hunting over a ''baited field,'' that regulate the taking of a migratory bird;
• Allow defendants to submit evidence in court. If the facts demonstrate that a hunter knew or should have known of the alleged bait, then fines and potential incarceration will be imposed;
Page 21 PREV PAGE TOP OF DOC
• Allow the scattering of various substances like grains and seeds, which are normally considered bait, if it is done as a ''normal agricultural operation'' in a given area, including the use of these substances to feed farm animals;
• Define the term ''bait'' as the ''intentional'' placing of the offending grain, salt, or other feed;
• Allow the hunter to introduce evidence at trial on whether or not the alleged ''bait'' actually acted as a lure or attraction for the migratory birds in a given area; and
• Deposit all fines and penalties collected under the Act in the Migratory Bird Conservation Fund. This money would be used to buy additional habitat for migratory bird populations.
A fundamental goal of this legislation is to provide guidance to farmers, hunters, landowners, law enforcement officials and the courts. Without this legislation, hunters will continue to be unfairly cited in the future, individuals will continue to be denied the opportunity to present evidence in court, the frustration over these regulations will grow, and ultimately fewer people will choose to participate in waterfowl hunting. This will result in the purchase of fewer duck stamps and, therefore, less money to acquire essential wetland habitat for migratory birds in the future.
It is interesting to note that our Federal baiting regulations are unusual because normally a law enforcement agent must prove that there was criminal intent to break the law. Under the strict liability doctrine, the conviction rate for those individuals cited for violating our baiting regulations is nearly 100 percent. It will, therefore, not be surprising if the U.S. Fish and Wildlife Service argues that H.R. 741 will make it more difficult to prosecute hunters under these regulations. A fundamental purpose of this hearing is not to examine prosecution rates but to determine whether the strict liability policy is fair to the hunting community and essential to the protection of migratory bird populations.
Page 22 PREV PAGE TOP OF DOC
ISSUES
(1) Doesn't the U.S. Fish and Wildlife Service each year undertake a population assessment of each migratory bird species and, based on this scientifically obtained data, establish specific hunting seasons and bag limits for each of the regional flyways?
(2) While the issue of hunting ''on or over a baited field'' has attracted considerable attention, are there other restrictions on the ''taking'' of a migratory bird that have sparked controversy?
(3) How does a U.S. Fish and Wildlife Service enforcement agent determine that a particular piece of property is a ''baited field''?
(4) What is the fundamental priority of the U.S. Fish and Wildlife Service—to protect migratory bird populations or to arrest those shooting over a ''baited field''?
(5) How many individuals were cited for hunting migratory birds over a ''baited field'' in 1995 and 1996?
(6) What was the conviction rate in these cases? What was the percentage of those cited who simply decided to pay their fines and forego further legal action?
(7) Of those who chose not to initially pay their fines, how many of these individuals were able to present evidence in court and what weight was their evidence given?
(8) Is not having to prove intent an essential safeguard for the viability of migratory bird populations?
(9) Since most of our criminal statutes are predicated on the notion that there is a knowing intent to violate a particular law, what is wrong with requiring the U.S. Fish and Wildlife Service to prove that an individual knew or should have known they were hunting over a baited field?
Page 23 PREV PAGE TOP OF DOC
(10) How close must grain or other feed be to a hunting site to be considered ''bait''? For instance, if grain or ''bait'' is one or two miles from a hunt, can and should that individual be cited under the Migratory Bird Treaty Act when there is no definite proof that ''bait'' lured a bird to the hunting venue?
(11) Is there any determination made whether grain or ''bait'' acted as a lure or attraction to migratory birds?
(12) What are considered ''bona fide'' agricultural practices? Don't these practices differ greatly throughout the United States?
(13) How much money in fines was paid in 1995 and 1996 by those individuals cited for hunting over a ''baited field''?
(14) Where was this money deposited and how many additional acres of wetland habitat were purchased from the proceeds of these fines?
(15) Would the goals of the Migratory Bird Treaty Act be promoted by mandating that all fines paid under the Act be deposited into the Migratory Bird Conservation Fund?
(16) What is the status of the Task Force that the U.S. Fish and Wildlife Service and the International Association of Fish and Wildlife Agencies established to address the issue of ''moist soil'' management?
Mr. SAXTON. And our good friend from Florida, Mr. Stearns, has arrived, so we will proceed at this point with Mr. Stearns' testimony. I understand, Cliff, that some of your constituents have run into problems with this baiting issue, and we are here anxiously awaiting your clarification of some of these issues for us. So you may proceed at your leisure.
Page 24 PREV PAGE TOP OF DOC
STATEMENT OF HON. CLIFF STEARNS, A U.S. REPRESENTATIVE FROM FLORIDA
Mr. STEARNS. Good morning, Mr. Chairman. And let me just say that I appreciate the opportunity to be here. And also good morning to the other distinguished members of the Subcommittee. I think it is important that you hold this hearing, and giving me the opportunity to testify on the Migratory Bird Treaty Reform Act of 1997.
I am here to continue the efforts begun during the 104th Congress to effectively clarify hunting provisions under the Migratory Bird Treaty Act. Gentlemen and ladies, this issue hits close to home in an area I used to represent. As you will recall during the testimony given last year, an incident which occurred in 1995 was cited. In that case, almost 90 sportsmen were cited for violating the Migratory Bird Treaty Act during a charity dove hunt in Dixie County, Florida. Members of this committee have previously heard accounts of this unfortunate incident, and today you will hear about the unfair consequences many innocent encountered.
While I will not take the time to recount every detail of this incident, I will say that many sportsmen were cited and fined about $40,000 for ''allegedly'' hunting on a baited field. In fact, most of the hunting took place on land which was never even inspected for baiting. And remember, this was a charity dove hunt with distinguished citizens in the area. The U.S. Fish and Wildlife agents did not make their presence known, allowing the hunt to continue for three hours before issuing citations. Keep in mind these citations were delivered without any regard to the actual guilt or innocence of the hunters.
Page 25 PREV PAGE TOP OF DOC
Sadly, many participants have faced tarnished records and threatened careers as a result of the misrepresentation of the current regulations. Even though they did not fully willfully violate hunting regulations, it was easier for many of them to plead guilty and pay their fines. One young man participating in this charity event who attends the University of Florida planned to join the Coast Guard as an officer. With this on his record, he will be joining the Coast Guard, but not as an officer.
Mr. Chairman, this is a perfect example of why H.R. 741 is so necessary. Congress has never passed a law defining what qualifies as a baiting field. While this activity is justifiably illegal, there are various legal interpretations that have—that should be clarified, just simply clarified. In addition, Federal courts have not acted uniformly in cases involving hunting. Under current standards a person is held liable for hunting on a baited field even though that person did not realize the field was baited. This is unfair, as many of my constituents have realized.
Clearly, Congress needs to act by defining what constitutes a baited field. Just as important, we must allow hunters who unknowingly hunt on or near a baited field to offer a defense without presuming them guilty.
This bill addresses the need for clarifying the regulations and establishing standards for enforcement. Under the Migratory Bird Treaty Reform Act, the term ''bait'' is defined as the intentional placing, exposing, depositing, distributing or scattering of wheat, grain, salt or other feed. I am confident that this comprehensive definition will leave little room for misinterpretation.
Page 26 PREV PAGE TOP OF DOC
There have been other incidents where individuals have been cited for grain being accidentally spilled on public roads, or for luring migratory birds when a handful of corn was found in a wheat field. Again, these are examples of innocent people found guilty under the doctrine of strict liability. H.R. 741 also addresses these issues by allowing hunters to provide evidence as to what degree the bait acted as the lure for migratory birds.
Mr. Chairman, H.R. 741 makes no attempt to undermine efforts to effectively protect and manage migratory birds. In fact, many current regulations were enacted at the recommendation of sportsmen who recognize the importance and necessity of migratory bird conservation. I support these regulations and have no intention in weakening them.
However, as you can see, current law is unclear and interpretations have been inconsistent. I am confident that the Migratory Bird Treaty Reform Act will clarify baiting restrictions in a manner that protects migratory birds and their habitats while protecting law-abiding citizens from unfair enforcement.
While enactment of this legislation will arrive too late for the hunters in Dixie County, Florida, it will prevent others from facing unfair consequences of being at the wrong place at the wrong time.
Mr. Chairman, I thank you again for this opportunity to testify today, and I look forward to working with my colleagues on this Subcommittee to consider this important legislation.
[Statement of Hon. Cliff Stearns follows:]
Page 27 PREV PAGE TOP OF DOC
STATEMENT OF HON. CLIFF STEARNS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF FLORIDA
Mr. Chairman and distinguished members of the Subcommittee, I want to thank you for holding this hearing and for giving me the opportunity to testify on the Migratory Bird Treaty Reform Act of 1997.
I am pleased to be here today with my distinguished colleague, Congressman John Tanner, to continue the efforts begun during the 104th Congress, to effectively clarify hunting provisions under the Migratory Bird Treaty Act.
This issue hits close to home, in an area I used to represent. As you will recall during testimony given last year, an incident which occurred in 1995 was cited. In that incident, almost ninety sportsmen were cited for violating the Migratory Bird Treaty Act during a charity dove hunt in Dixie County, Florida. Members of this Committee have previously heard accounts of this unfortunate incident, and today you will hear about the unfair consequences many innocent people encountered.
While I do not intend to recount every detail of this incident, I will say that many hunters were cited and fined almost $40,000 for ''allegedly'' hunting on a baited field. In fact, most of the hunting took place on land which was never even inspected for baiting. The U.S. Fish and Wildlife agents did not make their presence known, allowing the hunt to continue for 3 hours before issuing citations. Keep in mind, these citations were delivered without any regard to the actual guilt or innocence of the hunters.
Sadly, many participants have faced tarnished records and threatened careers as a result of the misinterpretation of current regulations. Even though they did not willfully violate hunting regulations, it was easier for many of them to plead guilty and pay their fines. One young man participating in this charity event, who attends the University of Florida, planned to join the Coast Guard as an officer. With this on his record, he will be joining the Coast Guard, but not as an officer.
Page 28 PREV PAGE TOP OF DOC
Mr. Chairman, this is a perfect example of why H.R. 741 is so necessary; Congress has never passed a law defining what qualifies as ''baiting'' a field. While this activity is justifiably illegal, there are various legal interpretations that should be clarified. In addition, Federal courts have not acted uniformly in cases involving hunting. Under current standards, a person is held liable for hunting on a baited field even though that person did not realize the field was baited. This is unfair, as many of my constituents have realized.
Clearly, Congress needs to act by defining what constitutes a baited field. Just as important, we must allow hunters who unknowingly hunt on or near a baited field to offer a defense without presuming them guilty.
This bill addresses the need for clarifying regulations and establishing standards for enforcement. Under the Migratory Bird Reform Act, the term ''bait'' is defined as the intentional placing, exposing, depositing, distributing, or scattering of wheat, grain, salt, or other feed. I am confident that this comprehensive definition will leave little room for misinterpretation.
There have been other incidences where individuals were cited for grain being accidentally spilled on public roads, or for luring migratory birds when a handful of corn was found in a wheat field. Again, these are examples of innocent people found guilty under the doctrine of strict liability. H.R. 741 also addressed these issues by allowing hunters to provide evidence as to what degree the bait acted as the lure for migratory birds.
Mr. Chairman, let me say that H.R. 741 makes no attempt to undermine efforts to effectively protect and manage migratory birds. In fact, many current regulations were created at the recommendation of sportsmen who recognize the importance and necessity of migratory bird conservation. I support these regulations and have no intention of weakening them.
However, as you can see, current law is unclear and interpretations have been inconsistent. I am confident that the Migratory Bird Treaty Reform Act will clarify baiting restrictions in a manner that protects migratory birds and their habitats, while protecting law-abiding citizens from unfair prosecution.
Page 29 PREV PAGE TOP OF DOC
While enactment of this legislation will arrive too late for the hunters in Dixie County, Florida, it will prevent others from facing unfair consequences of being at the wrong place at the wrong time.
Mr. Chairman, I thank you again for the opportunity to testify before you today. and I look forward to working with my colleagues on this Subcommittee to consider this legislation.
Mr. SAXTON. Thank you very much, Cliff. Can you stay for a few minutes?
Mr. STEARNS. Sure, happy to.
Mr. SAXTON. We have some questions that we would like to ask, but we would like to have you and Senator Breaux be able to respond to them at the same time. So we will proceed at this point with Senator Breaux's testimony. This is a great pleasure for us to welcome—I want to say back to the committee, but as you can see, the committee structure has changed some since you were here, Senator. But we welcome you to the committee today, and we are interested in what you have to present to us, because we know that you have long been an advocate of fair baiting laws and have worked very hard on this issue over the years. And so you may proceed as you see fit.
STATEMENT OF HON. JOHN BREAUX, A U.S. SENATOR FROM LOUISIANA
Senator BREAUX. Thank you very much, Mr. Chairman and members of the Subcommittee. I appreciate the invitation to make some comments. I will try and be very brief. I congratulate you for holding hearings on this. It seems like some things never go away. I was on the predecessor to this Subcommittee back in 1972. It is hard to believe it was that long ago. The place looks cleaner and nicer, a new coat a paint, a few more flags, pretty much the same pictures it always had, except for Young looking over my shoulder.
Page 30 PREV PAGE TOP OF DOC
Mr. ABERCROMBIE. Mr. Chairman, I was going to remind the Senator there is a looming presence behind him on the wall.
Senator BREAUX. I am kind of afraid of what I might say and what might happen with that picture. But very briefly, I remember—it is really interesting. I remember chairing the Fish and Wildlife Subcommittee many years ago, and had offered the very same legislation that you all are considering today, and this has probably been 15, maybe 20 years ago, because I felt there was something fundamentally unfair to tell American citizens that we are going to hold you criminally liable for something that you may not even have known was there or that you had no knowledge or presumptive knowledge of having committed a crime but we are going to cause you to be criminally liable. It is a big difference from a civil standard on holding somebody responsible for things they may not have known, But to hold an American citizen criminally responsible with all the negative implications, in addition to the penalties, without that person knowing or should have known that what he was doing or attempting to do was in fact a crime, I think, is fundamentally unfair in our society.
I think Congressman Stearns has laid it out very clearly what the problem is. As a hunter and someone who strongly supports the migratory bird conservation programs—I am a member of the Migratory Bird Conservation Commission. I represent the State of Louisiana, which is at the bottom of the funnel of most of the ducks coming down to Central and Mississippi Flyway. This is a big, important issue in my state. But I would suggest that it is an important issue for all of us as Americans to make sure that the criminal laws of this country are fair.
And what disturbs me—in a typical situation in my state of Louisiana, people are brought to a hunting area the night before. They may have a dinner with the folks at the hunting lodge. They will go out to go duck hunting early in the morning, before daylight. They are put in a blind as a guest on someone else's property that they have never, ever been to in their life. They are sitting in a duck blind and it is dark and first light of day and hunting time becomes available and they start shooting and the guy knocks down the first duck or even doesn't kill the first duck and the Federal agent comes in and puts handcuffs on him and takes him out of the field and charges him with hunting over a baited field.
Page 31 PREV PAGE TOP OF DOC
Now that person, by any stretch of the imagination, did not know that was a baited field. He had never been to that property in his lifetime, never hunted there, never been in the county, may have never been in my State of Louisiana in his life, had no way of knowing by any reasonable standard that that field happened to be baited by someone who may just have wanted to make it a better hunt for the guests that were there.
Now I think that we ought to be as tough and as hard as we possibly can on people who knowingly violate our game laws, people who intentionally bait a field in order to attract migratory waterfowl ought to have the book thrown at them, because they are not playing by fair rules. And there is nobody in this legislation trying to change that. We ought to make those penalties as tough as they should be. If a landowner, for instance, owns the property, the standard of liability for the landowner can be very, very strict. A person who rents the property, the standard should be very, very strict, but I would suggest that the approach of Chairman Young is the proper approach by saying that for hunters the standard should be that they knew or should have known the field was baited in order to be criminally prosecuted and convicted and having to pay a penalty.
Now we had the hearings a long time ago, and I am sure that some of my friends in the Fish and Wildlife Service are going to come back and say well, that is just too difficult for us to enforce, we can't make a case against somebody showing that they had actual knowledge or should have known by reasonable check. I would suggest a response to that is that we are talking about American citizens and their lives and their families who are being subjected to criminal penalties and prosecution. And while it may be a little more difficult for the Service to make a case with this standard, I would suggest that in fairness, under our principles of being innocent until you are shown to be guilty, that standard is not too difficult to reach.
Page 32 PREV PAGE TOP OF DOC
The second point is that there is confusion on the exemption to a baited field, and the exemption is that it is not a baited field under the criminal terms if the field was subject to normal agricultural practices. Now the problem is what is normal agricultural practices. Is letting a cornfield in Maryland lie and not be harvested and not harvesting it at all, is that normal agricultural practices? It may be in Maryland. It may not be in California. It may be somewhere else, but it is different.
I think that this legislation is correct in saying that the Service should be required to publish in the Federal Register a notice for public comment defining what normal agricultural practices are in the region. That is not that difficult to do. They can meet with USDA officials in that area. They know what the normal agricultural practices are in that area. And define a set of rules and regulations so everybody, the commercial hunters, the guides, the individuals can know that this is a normal agricultural practice in this area and therefore we can hunt without worrying about whether our guests and our customers are going to be hauled off to jail because this was not a normal agricultural practice in this agent's interpretation and maybe another agent would have a different interpretation.
So this legislation requires specificity. It requires a clear statement of what normal agricultural practices are. And that would be helpful to the Service. The agents do not know what agricultural practices are. That is not their background. They are wildlife managers, and they do a terrific job and I applaud them. But we have to bring in the agricultural people to define what are normal agricultural practices if in fact that is going to be an exemption to the baited definition.
Page 33 PREV PAGE TOP OF DOC
The final point, and I think it is good, the Migratory Bird Conservation Act, there is a need for additional funds. And I think it is appropriate and fair and proper that all fines and penalties collected under the Migratory Bird Treaty Act be deposited into the Migratory Bird Conservation Fund. You know, probably you will have a lot of people who are busted that would be more willing to pay the fine if they know it is going into the Migratory Bird Conservation Fund and feel a little bit better about it and probably not appeal all of the cases and everything else. But be that as it may, I think it is an appropriate area for the funds to be used. The person guilty would be penalized, and yet the migratory bird program would benefit from it, and I think it is something that would be a good trade.
But I urge you all to try and proceed with this legislation. I think it makes sense. It protects Americans and it still allows the Service to get the job done. Thank you, Mr. Chairman.
[Statement of Senator John Breaux follows:]
STATEMENT OF HON. JOHN B. BREAUX, A SENATOR IN CONGRESS FROM THE STATE OF LOUISIANA
Thank you Chairman Saxton, Mr. Abercrombie and the members of the Subcommittee for inviting me to speak in support of H.R. 741, the Migratory Bird Treaty Reform Act of 1997. Soon, I will introduce companion legislation in the Senate that mirrors Chairman Young's bill.
As a member of the Migratory Bird Conservation Commission, 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, similar agreements have been signed between the United States, Mexico, and the former Soviet Union. 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.
Page 34 PREV PAGE TOP OF DOC
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.
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 of 1997 is to address the baiting issue. 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 strict liability interpretation presently followed by Federal courts.
It also 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.
Also, the exceptions to baiting prohibitions contained in Federal regulations have been amended to permit an exemption for grain found on a hunting site because of normal agricultural planting and harvesting and normal agricultural operations. This legislation will establish guidelines for both the hunter and the law enforcement official.
Page 35 PREV PAGE TOP OF DOC
The U.S. Fish and Wildlife Service will be required to publish, in the Federal Register, a notice for public comment defining what is a normal agricultural operation for that geographic area. The Service makes this determination after consultation with State and Federal agencies and an opportunity for public comment. Again, the goal of this effort is to provide clear guidance for landowners, farmers, wildlife managers, law enforcement officials, and hunters so they know what a normal agricultural operation is for their region.
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 this legislation will require that all fines and penalties collected under the Migratory Bird Treaty Act be deposited into the Migratory Bird Conservation Fund. These funds are essential to the long-term survival of our migratory bird populations.
The Migratory Bird Treaty Reform Act will provide guidance to landowners, farmers, wildlife managers, hunters, law enforcement officials, and the courts on the restrictions on the taking of migratory birds. It accomplishes that objective 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.
Finally, the proposed legislation does not alter or restrict the Secretary of the Interior's ability to promulgate regulations or issue further restrictions on the taking of migratory birds.
Again, I thank Chairman Saxton, Mr. Abercrombie and members of the Subcommittee for this opportunity to be heard, and I urge everyone to join me in supporting the Migratory Bird Treaty Reform Act of 1997.
Mr. SAXTON. Thank you very much. Let me just start with a couple of questions and then turn to the ranking member.
Page 36 PREV PAGE TOP OF DOC
After reading the language in this bill and after hearing both of your explanations and testimony, do you believe it is an accurate statement to say that this bill does not in any way change practices, hunting practices, relative to the practice of baiting? In other words, does this bill in any way give opportunities that don't presently exist under current law to hunters to bait?
Senator BREAUX. I would think the answer, Mr. Chairman, is clearly no. Baiting would still be an illegal practice. It would be subject to criminal penalties for anyone who baits. The only difference is that someone to be convicted for hunting over a baited field would have to be shown to have known or should have known, actual knowledge or presumptive knowledge, he should have known because this person—for instance, what is presumptive knowledge? A person has been there, has hunted there all of his life. He has hunted there the week before. He was there during the daytime and he had a chance to be out in the field. He saw the field, and by reasonable expectation and inspection, he could have seen the corn sitting out in the middle of the pond right in front of the duck blind. That would be presumptive knowledge, but the bottom line is that baiting, intentional baiting, would be an illegal act under this legislation. It would be a crime that would be subjected to criminal penalties.
Mr. SAXTON. So then—go ahead, Mr. Stearns.
Mr. STEARNS. I would agree. You know, all we are doing is defining what baiting means. We are not saying that what occurs has changed. It is just defining what it means. And the presumptive guilt is the people who are there participating. In this case, you had 90 people. Some of them were sheriffs. Sheriffs of local counties were at this fundraiser, and obviously they had no idea that they were involved with a hunting in a baited field, so they clearly would not be guilty. And all we are doing is not changing the punishment for people who know that it is baited and continually do so, but we are just saying we are defining so that these people, these sheriffs of these local counties who are law-abiding citizens, voted to, elected to enforce the laws, have some prior knowledge before they have to have these penalties placed upon them and put in their record.
Page 37 PREV PAGE TOP OF DOC
Mr. SAXTON. Thank you. I have no further questions at this time. I would just like to point out to the other members that the language in this bill seems to me to be very clear on this point. And on page 6, line 3, it simply reads, ''no person shall take or aid in the taking of any migratory bird by the aid of baiting or on or over any baited area where that person knows or should have known through the exercise of reasonable diligence that bait was present.'' That seems to be pretty clear. We are not in any way intending to loosen or change the practices which have been historic practices that prohibit baiting.
Thank you very much for helping me clear up that point. Mr. Abercrombie.
Mr. ABERCROMBIE. Thank you very much, Mr. Chairman. The key, would both agree, is the page 6—I don't know if you happen to have the bill in front of you, but it does refer to what the Chairman has just gone over. The key is, is it not, the lines on page 6 where the person—starting on line 4, where that person knows or should have known through the exercise of reasonable diligence that the bait was present. That is the key to this, is it not?
Senator BREAUX. Mr. Abercrombie, I think that you have really put your finger on exactly what the key is. That is what is missing in the current practices and the court decisions. When a person comes before a judge, a person can say Judge, Your Honor, I didn't know, I had never been there before, I exercised reasonable practices in my hunting procedures, I looked around, we started shooting at daybreak or 30 minutes after, 30 minutes before, very important, and I just could not know that someone a week before had baited this field, I had never been to this county before in my lifetime. That would be something that would be addressed by that line knew or should have known.
Page 38 PREV PAGE TOP OF DOC
Mr. STEARNS. I would just add to that, my colleague from Hawaii, if you were driving out on the turnpike and there were no signs telling you the speed limit and suddenly you went up to 75 miles an hour or even 60 miles an hour and a policeman stopped you and said you should have known that you can't go 60 miles an hour, well, you said there are no signs, I haven't seen any signs, I have no idea. I mean, how could you say that person is guilty if he is on the turnpike going 60 miles an hour when there is no sign.
Mr. ABERCROMBIE. I guess that depends on what county you are in.
Mr. STEARNS. Well, since we have——
Mr. ABERCROMBIE. I have heard of that happening some places in the country, but it wouldn't be right. That would be wrong, I think.
Mr. STEARNS. Yes, and I am trying to draw an analogy.
Senator BREAUX. There is a little bit of a different in Cliff's analogy. I mean, I think he is making a good point, but the hunter that is being, I think, abused by the current law knows it is illegal to hunt over a baited field.
Mr. ABERCROMBIE. Can I address that, Senator?
Senator BREAUX. He knows that. I mean, this hunter knows it is illegal to hunt over a baited field, but by any exercise of reasonable diligence he would not know that this was a baited field.
Page 39 PREV PAGE TOP OF DOC
Mr. ABERCROMBIE. Okay, I would like to address that. The reason that I would is that, as you know, lots of times on committees you are required to vote on things with which you may not be familiar except in the abstract. In this instance, I am one of those persons. When I was younger, there was hunting in the area that I was in, especially for pheasants, and my mom and dad kept me in because people came right through the back yard for those pheasants, so I was not aware of the rather detailed explication in law that existed around baiting and the shooting of birds, which I am now aware of as a result of going through the bill.
If you go to page 7, that is where I have a question then. If the key is the exercise of due diligence or reasonable diligence known or should have known, you go to page 7, part B, line 8, it says ''the term baited area means any area where shelled, shucked or unshucked corn, wheat or other grains, salt and other feed whatsoever capable of attracting migratory game birds is intentionally placed, exposed, deposited, distributed or scattered.'' The reason I bring that up is not to try to put too fine a point on it, but precisely for the reasons you give, how are you supposed to know. Wouldn't it be almost an automatic defense that Fish and Wildlife could not disprove if you simply claim well, I didn't know it was intentional, I thought it was unintentional? How would you deal with that?
Senator BREAUX. You make a good point, Congressman, but the difference is this. There are two things here. One is the person who is doing the baiting would have had to do it intentionally in order to be guilty of baiting a field. The second question is hunting over a baited field. And that is the difference. Assume a field is baited, what we are trying to address in this legislation is hunting over a baited field, which right now you are guilty of whether you knew it or not. And that is the difference. So if the game agents are going after the person who baited the field, they have to show that it was intentionally baited. And that is not that difficult.
Page 40 PREV PAGE TOP OF DOC
Mr. ABERCROMBIE. Okay, then as someone who has not hunted under these circumstances——
Senator BREAUX. Me neither.
Mr. ABERCROMBIE. [continuing] would it be part of the section on exercising reasonable diligence? Is it the case that hunters ordinarily are able to determine fairly quickly with a reasonable amount of regard for the area whether it looks baited or not? I would have to rely on your experience.
Senator BREAUX. Well, it is not that easy. I mean, if someone baited a pond and a duck blind with corn, it generally shows up very well as soon as the light of day comes on, but still it is not that easy to make that determination. That is why I think you have flexibility in the legislation, knew or should have known. You don't have to prove actual knowledge. I mean, that person would still be liable under our legislation even if they didn't know, but because of a reasonable check of the surrounding areas it was pretty clear that there was a sack of corn sitting in the middle of that pond. That person should have known that that was a baited field.
Mr. ABERCROMBIE. I see. Well, Mr. Chairman, I will stop at this point. I am perfectly willing to take the intention of the legislation on its face as being reasonable. The question is can we write it in such a way as to actually accomplish that flexibility that you mention. That is to say we don't put words into that in effect put it into one side or the other in terms of impossibility or where you make a mockery of it. Your argument today is that the language as presently written essentially makes a mockery of fair play and presumption of innocence, and the question is whether this language as written in the bill right now rectifies that or puts it possibly on the other side where nobody would ever get convicted.
Page 41 PREV PAGE TOP OF DOC
So maybe we should just take another look at it to see what kind of previous case law operates where there are definitions or parameters, boundaries around the point of reasonable knowledge of should know or should have known or a reasonable exercise of diligence. This can't have happened for the first time in the United States in 1997. That kind of question must have been raised thousands or maybe tens of thousands of times in different kinds of cases, so it shouldn't be too difficult to figure out language that will accomplish what you seek.
Thank you very much. I appreciate your helping me with this. Thank you, Mr. Chairman.
Mr. SAXTON. Thank you. Mr. Farr.
Mr. FARR. Thank you very much, Mr. Chairman. I am neither a hunter nor a lawyer, but I can see that this is a very difficult area that needs very careful attention. I mean, the irony here is that we are trying to take the burden off of a person with a gun trying to kill a wild animal and really put the burden more on the animal, because on page 8 of the bill on line 15, 16, it says the terms attraction and attracting mean that the bait was a major contributing factor in luring the migratory birds. It really requires the intent of the bird to be able to prove that the—why the bird went to that particular spot, and I think that that is why you get into difficult problems in trying to draft a law where it essentially, I think, shifts an awful lot of burden of responsibility. Now as I understand, this is regulation now, and with the bill the way it is written we are trying to codify it into Federal law, which then makes it very difficult to change without a Congressional act, and I am just wondering if there is some other way. Shouldn't we just, perhaps, prohibit baiting altogether, ban it?
Page 42 PREV PAGE TOP OF DOC
Senator BREAUX. Congressman—I am sorry, go ahead.
Mr. STEARNS. I was just going to say I think the pendulum has swung here. There have been cases where people have been on fields five miles from the baited fields and have been charged, so obviously they had no idea.
Mr. FARR. Well, wait a minute. That is——
Mr. STEARNS. All I am saying is that——
Mr. FARR. Is that a proper arrest? I mean, there is some responsibility of law enforcement here, too. I mean, it is like probable cause and pulling you over on a highway. They can't——
Mr. STEARNS. Let me give you another example. In this case I gave you, these 90 individuals for a charity fundraiser, the U.S. Fish and Wildlife inspectors presence wasn't known for three hours. They were in and close to the area, but they didn't even, you know, advise these people who thought they were at a charity situation. So I think the pendulum has swung and it is time now to try and bring forth a little more specificity. And I think that is all this legislation does.
Senator BREAUX. Congressman, let me just make a comment on—I don't—you can ask the Fish and Wildlife Service when they present testimony. I don't think that this is a problem for them at all. I don't think—I can't imagine a lot of cases ever being dismissed because they were not able to prove that once a field is baited that it was not a major contributing factor in luring migratory birds there. That is almost a given. If the bait is there, the determination is that if birds was there that was a major contributing factor.
Page 43 PREV PAGE TOP OF DOC
Mr. FARR. Senator, that is precisely my point. Why don't we just prohibit baiting?
Senator BREAUX. Baiting is illegal. It would still be illegal under this bill.
Mr. FARR. It is only illegal if you are going to hunt on bait. It is not illegal——
Senator BREAUX. That is the—which is the only thing which is a criminal violation, is hunting over a baited field. Hunting over a baited field—baiting a field would still be illegal for trying to lure migratory birds there, and a person hunting would still be guilty of a criminal violation if he knew or should have known it was baited.
Mr. FARR. I accept that, but that is not what the law says. It says where the person should have known. It doesn't require that the person really does know. And you pointed out that there is a lot of money being made—I mean, those hunters that came to that area and were put out in the blind. Somebody guided them there. Somebody lured them to spend the night in that lodge. Somebody who lives there in that spot had responsibility for knowing about——
Senator BREAUX. Oh, absolutely, and that person should be put in jail and should be fined. He has a greater responsibility, the landowner, to protect his property from illegal baiting. The person who runs the hunting club has a greater responsibility than the innocent hunter. That person knew or should have known because it is his property.
Page 44 PREV PAGE TOP OF DOC
Mr. FARR. I agree, and there is nothing in this law that says that. I mean, let us put the strict liability on the person that is making the money from the hunt rather than, as you say, the innocent hunter. But I don't think that is the way this bill is drafted, and I would support that.
Senator BREAUX. The same principles would apply to anybody that is potentially a violator of the law, and the principle is that if you knew it was baited, whether you are the landowner or a hunter who has never been there before or you should have known that it was a baited field. And I would suggest that the person making the money, the landowner or the person running the duck camp, it is a lot easier for them to get nailed under a knew or should have known standard because it is their property.
Mr. FARR. But then if you read the other qualifying language down on Section 2, starting on line 7 on page 6, it sort of, I think, just opens a big wedge in there, taking of all migratory game birds, including waterfowl, is possible where grains are found scattered solely as a result of normal agricultural planting or harvesting. I mean, that——
Senator BREAUX. That is current law.
Mr. FARR. Yes. Is the following section, too, where the taking of all migratory birds except waterfowl, down on line 20 it says or other feed on the land where grown for wildlife management purposes? Is that——
Page 45 PREV PAGE TOP OF DOC
Senator BREAUX. Yes, normal agricultural practices are exempted from baiting. We are saying that there ought to be better guidelines as to what normal agricultural practices are. The problem with the current law is that if it is normal agricultural practice, it is not baiting. We are saying they ought to issue regs as to what constitutes normal agricultural practices in that region.
Mr. FARR. I don't think I am trying to disagree with you. I am trying to figure out how this law could be crafted so that we don't find ourselves every year coming back with exceptions to the law that we are trying to invent today. I mean, you really put an awful lot of burden, it seems to me, here more so on the wildlife management process, perhaps government in this case, that the term baiting has to be intentional. It has to be intentionally placed. It has to prove that the major contributing factor was the bait being put. I mean, there is a really tremendous shift of responsibility here from somebody trying to prove the intent of all of these things, not holding the hunter and the process that got the hunter to the field responsible. It takes the burden off the people with a weapon and puts it on the person with a badge.
Senator BREAUX. I would suggest, Congressman, that when you are talking about a person's individual civil rights and the potential for going to jail with a criminal violation, there should be a burden on the officers who are enforcing the law to at least show that the person had actual knowledge or even that he knew or should have known. We are talking about a criminal violation here, not a civil penalty. And I would suggest the standards for the law enforcement people should be pretty difficult. This is a criminal charge. A person could go to jail and have his career ruined by doing this, and they should have at least the ability to show that the person at least should have known that he was committing a crime.
Page 46 PREV PAGE TOP OF DOC
Mr. STEARNS. The only thing I would add to it is in this case these 90 people had no knowledge, were there under the assumption that they were going to help a local youth group in a fundraising, and they got—and they all paid their money. They were so intimidated by the process they were scared to go to the courts. They were just—the whole process, they all paid their money. And they have that now as a permanent record. So what the Senator is saying, these people are presumed to be guilty even though they had no prior knowledge, had no idea.
Now, using your interpretation, you could go forward to the fellow who owned the land. That would be a different story, but I think the pendulum has swung here and I think what the Senator is trying to say is under our Bill of Rights, we want to extend to the hunters the Bill of Rights. And under the present Migratory Bird Act, they don't have a full Bill of Rights.
Mr. FARR. Well, my time—let me just say that as I understand under current law, those convicted of shooting over baited areas are not normally incarcerated. I wonder if there have been people incarcerated. It is a——
Mr. STEARNS. These people, these 90 people, citizens including sheriffs, were not incarcerated.
Mr. FARR. And that is a misdemeanor violation, that they have to pay fines of several hundred dollars?
Page 47 PREV PAGE TOP OF DOC
Mr. STEARNS. That is true. They had to pay about $400, $300.
Mr. SAXTON. Mr. Farr, would you yield to me for just a minute?
Mr. FARR. Yes, Mr. Chairman.
Mr. SAXTON. Let me try to put this in perspective. I live in an area where a lot of people hunt, including myself. We hunt waterfowl. And law enforcement officers have a pretty darn good idea in any given region who is baiting and who isn't baiting. When you bait for waterfowl, it is not like you go out and throw a bag of corn in the water and all of a sudden somehow magically the ducks all know it is there and they come get it. This is a long process which may be over a series of weeks and, you know, the baiters will essentially train the ducks that there is bait here and they may even put up a marker someplace so the ducks will be able to easily identify the spot. They will get in their boats, oftentimes in the dark of night, with a couple of hundred-pound bags of corn, scatter it in the boat, scatter it along the way. Law enforcement officers know exactly what to look for, and therefore it is pretty easy to identify who is baiting.
Now let us just say for a minute that some 18-year-old high school person sees this gang of guys out there hunting and he thinks it is pretty neat because there are a lot of birds around, and all of a sudden one day after school without having any idea whatsoever why those birds are there he gets in his rowboat or his canoe and paddles out there, gets in the other guy's blind and has great luck. And all of a sudden the warden comes along and this guy all of a sudden is arrested, charged with and is almost automatically guilty of hunting over bait.
Page 48 PREV PAGE TOP OF DOC
Mr. FARR. Mr. Chairman, is that factual case that happened? I mean, I am—I don't hunt, but I am a fisherman.
Mr. SAXTON. It happens all the time, Sam.
Mr. FARR. You know, there are all kinds of areas where you should know. You don't—you can say you go to the river and you didn't know it was a catch and release river, because we don't have signs all up and down rivers saying everything you catch here you have got to let go. I mean, where in this process is the responsibility for the hunter? I mean, you are spending a lot of money buying a gun and going to a spot. Frankly, I think if the American public knew that public wildlife refuges were allowed hunting they would be appalled by it. You know, we have set up these public lands and we lure the wildlife there and then we shoot them.
Mr. SAXTON. We are talking about private lands here. We are not——
Mr. STEARNS. Mr. Chairman, I just want to——
Mr. FARR. This is all lands, as I understand, both public and private.
Mr. STEARNS. Just to put it in perspective for Mr. Farr, five of the students that were cited in the ''allegedly baited field'' were not even on the field. So, I mean, that shows you that the interpretation of this law is so broad that you could cite young students who are starting out in life, who are going to the University of Florida, and put a criminal misdemeanor on their record when they were not even on the field, but they were part of these 90 people and they were out, you know, maybe getting a coke or something. And they just swooped in and gave all of them, including these five students, and put a criminal misdemeanor on their record. Their parents had to pay the money. They were not on the baited field, so surely, surely the U.S. Fish and Wildlife in this case overstepped. And these five men, five students now, as they grow up to men are going to say every time they fill out a form there is a criminal misdemeanor because I was supposed to be not on this land and I didn't even know about the land and I wasn't on the land. And where do they go?
Page 49 PREV PAGE TOP OF DOC
Mr. FARR. Well, first of all, I don't think you have to report criminal misdemeanors. If so, every driving speeding ticket is a criminal misdemeanor. Secondly, if I understand this issue, you had 88 people cited at that hunt. 82 paid their fines without dispute. Four were required to appear in court because they had assaulted enforcement officers and two appealed their citations.
Mr. STEARNS. That leaves a lot of people getting criminal misdemeanors. And in some—as you know, some forms you—some applications you do have to check off.
Senator BREAUX. Mr. Chairman, I think the final point Congressman Abercrombie, I think, hit the nail on the head. This legislation doesn't require that the hunter have to have knowledge of the actual baiting to be guilty. It only needs to be required that he should have known by a reasonable exercise of diligence, surveying the place, checking with neighbors or by any reasonable exercise or normal diligence. If they should have known, even if they didn't, they still would be guilty under this legislation.
Mr. FARR. But, Senator, where is the penalty in here for the provider, for the person that guides them to this spot?
Senator BREAUX. If a person intentionally did it, if the landowner is found to have baited the field, we are not changing any of the penalties there at all. The same penalties that are in the law today.
Page 50 PREV PAGE TOP OF DOC
Mr. FARR. But that person isn't—the person that did that isn't there with the gun, isn't cited.
Senator BREAUX. If someone—if the landowner baited a field that he owns the property of, it is going to be pretty clear that he knew about it because he did it or he should have known about it because it was his own property under his control. That person would be subject to the same penalties after this legislation is passed as before. No change at all.
Mr. FARR. I don't think that the law is strong enough in that point, because it does——
Senator BREAUX. That is another question.
Mr. FARR. The part you are talking about is no person shall take. You have got to have actually been in the action of taking.
Mr. STEARNS. Aiding and abetting.
Senator BREAUX. Oh, no, you don't have to kill a single bird. You can miss every shot you have got and you are still guilty. You don't have to take—you don't have to knock down a single bird to be guilty of hunting over a baited field, just sitting in the blind never firing a shot with a gun is hunting over a baited field.
Mr. SAXTON. Mr. Farr, your actually second five minutes is just about to expire, so we are going to move on to Mr. Peterson.
Page 51 PREV PAGE TOP OF DOC
Mr. ABERCROMBIE. Mr. Chairman, before we do, can I just comment that, Senator Breaux, you are such a reasonable person I fail to understand why the Senate and the House has all this difficulty all the time. We just ought to get together ourselves, I think, and we can settle everything, don't you?
Senator BREAUX. I am trying. We are making some progress.
Mr. PETERSON. It appears to me that if I committed a crime against man or a person, that it is much more difficult to convict me than if I commit a crime of being in the position where I could have shot an animal on a baited field. Is that a fair comparison?
Senator BREAUX. Oh, sure. The other one you have to at least show intent or the presumed intent to convict them for shooting a person, whereas it is absolute strict liability over a baited pond.
Mr. PETERSON. So we have different standards of evidence. And I guess, as I have been listening to this discussion—I am a hunter, lifetime hunter. It appears to me that if you innocently show up in an area that is considered by some enforcement officer a baited field, you are guilty.
Senator BREAUX. Not only that. I didn't mention in my testimony, but, you know, the regs under the Fish and Wildlife Service say that the bait has to have been gone when you are hunting for at least the previous ten days. In other words, if you go hunting and the bait has been gone from that field for nine days, you are still legally liable for hunting over a baited field, even though the bait has been removed for the previous nine days. You may not have even been in the country nine days before when the field was baited, but you are still guilty.
Page 52 PREV PAGE TOP OF DOC
Mr. PETERSON. You know, I dislike illegal hunters as much as anybody and people who break the game laws, but it seems like—I know in Pennsylvania we made it easier to prosecute those who break game laws. It is much simpler than it is to prosecute someone who hurts people, and I don't understand the logic in that. And I guess the part of giving anybody a criminal record when they are innocent and they have no ability to defend themselves, it appears to me that you have no ability here to defend yourself if you are innocently in a position that was a baited field or had been a baited field nine days ago. That is just wrong.
Senator BREAUX. You have no defense. The reason why so many people just plead guilty to it and pay the fine is because they know under the law they have no defense. Innocence is not a defense. Innocence is not a defense hunting over a baited field.
Mr. PETERSON. I think in this country every law enforcement officer, including game officers and Fish and Wildlife Officers, have the duty to prove you are guilty. And you have—should have the fundamental right to prove you are innocent. That is just what this country is all about, and it appears to me it is obvious this law needs changed.
Mr. STEARNS. Mr. Chairman, I just—something, if I could add to your comments and where you are taking the argument. As Mr. Farr mentioned, two of the people who were cited appealed. They were acquitted. They won their case. So the judge actually agreed, which in a sense agreed with what this legislation is all about. And that is an important point, that when these two students appealed, they won. Now the other people paid from 250 to 500, but remember, these students that went ahead and appealed had to pay for an attorney and they went through all the process and anxiety and they won their case. So I think the courts has almost justified this legislation.
Page 53 PREV PAGE TOP OF DOC
Mr. SAXTON. Thank you. Thank you both very much. We are going to move on to our second panel. We appreciate the very clear explanation that you have given us relative to this issue.
Senator BREAUX. Good luck.
Mr. SAXTON. Thank you. Dr. Bob Streeter, would you come forward please and take your place. Good to see you again, sir. Welcome, and we are obviously interested in hearing your perspective and views relative to this matter. So, Doctor, you may proceed as you wish.
STATEMENT OF ROBERT STREETER, ASSISTANT DIRECTOR FOR REFUGES AND WILDLIFE, U.S. FISH AND WILDLIFE SERVICE
Dr. STREETER. Thank you, Mr. Chairman and members of the Subcommittee. I am Bob Streeter, Assistant Director for Refuges and Wildlife, U.S. Fish and Wildlife Service. I am located here in Washington, D.C., it was good to get to New Jersey also.
Thank you for the opportunity to appear before you here today to discuss H.R. 741, the Migratory Bird Treaty Reform Act of '97. Mr. Chairman, first I would like to thank you, Congressmen Young, Miller, Dingell, Tanner, and your other associates for demonstrating great leadership in developing and sponsoring H.R. 1420, to improve the management of the National Wildlife Refuge System. This was an example of a great spirit of cooperation and synergy between Congress, the Administration and some private citizens that will result in strengthening the National Wildlife Refuge System, and benefiting citizens and wildlife and including to a large degree migratory birds. And it will benefit the migratory bird hunters, bird watchers, and conservation education groups.
Page 54 PREV PAGE TOP OF DOC
However, in the case of H.R. 741, Mr. Chairman, we are opposed, as we believe it could significantly harm our nation's migratory bird resources and negatively impact the millions of hunters and conservation education persons who enjoy these national treasures. The Service does share your concern, however, about modifying portions of the current hunting regulations, as I testified before you one year ago. Although we have been not as speedy as desired in this process, we are working with our state partners to do so.
With your permission, Mr. Chairman, I would like to submit my written testimony to the Subcommittee for the record and then briefly summarize our primary concerns with H.R. 741, if I might be allowed to do so, sir. Thank you.
Mr. Chairman and members of the Subcommittee, our primary concern, overriding all others, is the rigidity that is inherent in formulating hunting rules by statute rather than by regulations. Procedurally, the proposed changes to the Migratory Bird Treaty Act would cause extreme hardship to all sportsmen and sportswomen of this country by creating an inflexible statutory process that could not possibly accommodate the changing wildlife management situations that occur.
H.R. 741 could compromise the Service's ability to manage this very dynamic migratory bird resource and damage our commitments to the four international convention partners for the wise use of these valuable resources. Let me give you one vivid example of this. It relates to the current burgeoning growth of mid-continent snow goose population, which has grown to such a size that these birds are now impacting their breeding grounds, destroying habitat in the frigid arctic, and causing serious depredation problems in Canada and the U.S. in migration and wintering areas.
Page 55 PREV PAGE TOP OF DOC
An international team has recommended several actions, including hunting options that would result in major reductions in the breeding population. Some of these hunting options would include special seasons where electronic calls and bait could be used to attract these very wary birds so that the hunters could assist in this absolutely necessary reduction process. H.R. 741 would prevent the Service and our state partners from even considering such management tools.
H.R. 741 would also make it illegal under any circumstance to use shotguns holding more than three shells for hunting migratory birds. Under the current regulatory approach, however, the Service and its state partners have the flexibility to change these kinds of rules when the situation dictates and involve the public each time in the public review process when they propose those changes. I repeat, our greatest concern is the inflexibility of the statute versus a regulatory process for professional management of such a dynamic resource.
Now, Mr. Chair, a couple of brief points on the specific impacts of the proposed legislation. H.R. 741, in addressing what constitutes normal agricultural practices would load the Service, the states and our hunting public with a tremendous regulatory burden and cost. As we considered this, we determined that we annually would promulgate rules on what constitutes normal agricultural practices. We would likely have to address this on a county-by-county basis in every state and territory of the U.S. This would basically be a veritable Sears and Roebuck catalog of regulations that we would have to publish and print. The cost of doing this as well as the cost of publishing would be a great load on all of us, as well as the hunter. The current process of using the extension service as a resource has worked quite well in an overwhelming majority of cases.
Page 56 PREV PAGE TOP OF DOC
Several sections of this bill in aggregate, not individually but in aggregate, seem tantamount to legalizing baiting. They would replace the strict liability standard with a knows or should have known standard. If that were the only thing, we probably could work with that as discussed, but when you add to that a requirement that government officials have to prove the hunter's intent and you add to that that officials would also have to prove that the bait is an attraction that is a major contributing factor that lured the birds not to the area but within shotgun range, then you have an unreasonable burden on state and Federal officials and it simply would make any baiting rule unenforceable.
[Statement of Robert Streeter may be found at the end of the hearing.]
Mr. ABERCROMBIE. Mr. Chairman, excuse me. Mr. Chairman, may I interrupt for a moment. We do have all your statement. Dr. Streeter, I want to make sure I understand correctly for the benefit of myself and the Chairman, did I understand you correctly to say if the question—the word intentional is a key element here, that you think this can be worked out? Because if that is the case, virtually everything else that you are talking about we can deal with in another context and we don't have to prolong this hearing and have five dozen people come up and testify. If that is the case, we ought to be able to end this hearing and deal with the thing forthwith.
Dr. STREETER. If we have to prove, if Federal law enforcement officials have to prove the intent of the hunter and the intent of the bird——
Mr. ABERCROMBIE. No, no, you don't have to answer for me. I am just saying you said—am I correct that if that is the key element here, that you think that you can—you have some ideas on how this can be addressed and what you think is the right thing to do so that we can deal with this in the criminal/civil side or however we want to work it out? Did I understand you correctly?
Page 57 PREV PAGE TOP OF DOC
Dr. STREETER. Congressman——
Mr. ABERCROMBIE. Because we have got—I am going to be frank with you, we have got something like five panels and 150 hours of testimony, it looks like, we are going to deal with here, but the key, as far as the looming presence is concerned behind you, is the question of intention and criminality and whether that is going to mess people's lives up. And if Fish and Wildlife says that that issue you believe—if you believe as Fish and Wildlife that this can be addressed in a reasonable way, I am willing to bet that the Chairman can sit down with you and staff and get this worked out.
Dr. STREETER. The knows or should have known standard, I think, could be addressed.
Mr. ABERCROMBIE. Thank you very much. Mr. Chairman, I think that we might be able to cut through an awful lot of extra discussion here if that, in my judgment at least, is the key element here, maybe we can move expeditiously. I am perfectly willing to have everybody put their testimony into the record.
Mr. FARR. If the gentleman will yield. If I may just——
Mr. ABERCROMBIE. Well, the Chairman granted me the time, so——
Page 58 PREV PAGE TOP OF DOC
Mr. SAXTON. If I may, I would just like to ask Dr. Streeter if he would conclude his statement and then we will get to the questions.
Dr. STREETER. Yes, Mr. Chairman, I would, and I would like to just conclude with that statement that our overriding concern is handling what is now in regulations, handling those as a statute and the inflexibility that that would provide for Federal and state professional wildlife mangers.
Thank you very much for being able to provide this.
Mr. SAXTON. Thank you very much. Mr. Farr.
Mr. FARR. Mr. Chairman, I was just going to say that on a day like this I miss the state legislature where you really have a bill with a strikeout language of what you are taking out and the new language put in, because this bill is difficult to understand. But I think the key of what we are supposed to do here in Congress is to write good law. And I think what you have heard today is that the way this law is proposed, and we have been dealing with it one of the few—and I congratulate you for that, because normally we talk in generalities not about specific pages and lines and words—is that the way this bill is drafted it has some unintended consequences that are not good law. You are taking regulations and putting them into statutory law. And I agree with Mr. Abercrombie that I think the burden here on the intent could be easily removed.
But also, Mr. Chairman, in drafting a bill I hope that we will get to the responsibility that Senator Breaux talked about, because it is nowhere mentioned in here as the responsibility of the provider, of the hunting lodge, of the, you know, the people that are on the land. They normally know what goes on in their backyard. And if the problem is that innocent people come into this backyard or come into this field and they don't know but the people around them do know, then let us hold the people accountable for that and use the same language and the same degree of responsibility for the people that are providing the use of that land or providing the person to be there in the first place.
Page 59 PREV PAGE TOP OF DOC
Mr. SAXTON. Sam, we can work this out. My understanding is that under current law there is a section which we are not touching which relates to aiding and abetting or the provider's responsibility. And further, if it would help to clear up the matter, we can strengthen that language, which we have not touched in this bill. But we certainly can address those concerns that you have relative to the so-called provider.
Mr. FARR. I think the should have known language which is key to this bill should be in that, and they ought to strengthen the penalties for them, because they are frankly the ones that are making the money off of this activity and they hold a greater responsibility. You know, the other side of this is that we are also here to protect the wildlife. It is not just to protect the hunter. There is a balance here, and it is our job to draft this in a careful way.
Mr. SAXTON. Thank you very much, Dr. Streeter. We have no further questions at this time.
Panel three of five consists of Mr. Brent Manning, Director of the Illinois Department of Natural Resources, Mr. Bill Horn of Birch, Horton, Bittner and Cherot, and Steve Boynton of Henke and Associates. Welcome aboard. Brent, you may begin.
Mr. MANNING. Thank you, sir, very much. Good morning, Mr. Chairman. I am Brent Manning, Director of the Illinois Department of Natural Resources.
Mr. SAXTON. May I just say I know that many people are accustomed to testifying. That little green light there in front of you will turn red at some point. When it does, we would appreciate you summarizing your testimony at that point.
Page 60 PREV PAGE TOP OF DOC
STATEMENT OF BRENT MANNING, DIRECTOR, ILLINOIS DEPARTMENT OF NATURAL RESOURCES
Mr. MANNING. Thank you, sir. I am Brent Manning, Director of the Illinois Department of Natural Resources, and also representing today the International Association of Fish and Wildlife Agencies. I have been selected as their ad hoc committee chair on the subject of baiting. I thank you for the invitation to testify on behalf of the Association and many sportsmen throughout the United States.
I wish to point out that the Association's ad hoc committee spent almost a year carefully considering the subject before us. The recommendations of the committee were adopted by the Association and forwarded two weeks ago to the U.S. Fish and Wildlife Service for their consideration. We hope the Service will adopt the proposal and publish it for public comment.
I would like to highlight our proposal and briefly compare it with H.R. 741. Please refer to my written testimony for greater detail. And for the sake of clarity I will divide our recommendations into three main subject areas, the first being agricultural crops, the second the management of natural vegetation and the third the issue of strict liability, which we have spent 90 percent of the time on this morning.
First on the subject of agricultural crops, we make the common sense recommendation that hunters who incidentally scatter feed while entering or exiting hunting areas not be cited for baiting. Furthermore, we believe that the current terms ''normal'' and ''bona fide'' in reference to certain agricultural techniques are too vague and only have been defined thus far in case law. We recommend replacing those terms ''normal'' and ''bona fide'' with the word ''accepted'', and we define the word accepted. The distinct advantage offered by this approach is that for the first time the regulations would clearly designate a final authority for making such determinations. Comparatively, H.R. 741 in many cases may leave some doubt about who is ultimately responsible for making that decision.
Page 61 PREV PAGE TOP OF DOC
Second, the management of natural vegetation. Moving to the subject, natural vegetation, the Association very strongly believes that Federal baiting rules were not originally drafted with the intent of preventing hunting over manipulated natural plant communities. However, a more strict interpretation of Federal baiting regulations by the U.S. Fish and Wildlife Service appears to have emerged during the last decade or so. Such an interpretation discourages professional wildlife managers from maintaining or restoring natural wetlands. Therefore, our proposal clarifies the regulations in this regard. H.R. 741 does not address the issue of natural vegetation and thus leave the intent of the existing regulations subject to continued speculation.
The third issue is that of strict liability. On the subject of strict liability, both the Association's recommendation and H.R. 741 reject this aspect of existing regulations. In 1978, the Delahoussaye case, the U.S. Court of Appeals for the Fifth Circuit District rejected a strict liability interpretation of the regulation. Instead, the court required at a minimum that the presence of bait could have been reasonably ascertained by the conscientious hunter. Our recommendation is consistent with that already done Federal ruling. We require that the hunter know or should have had a reasonable opportunity to know that a hunted area is considered baited. That is very simply what the Delahoussaye case says, and it is now applicable in five states in these United States.
H.R. 741 proposes a similar approach. However, as a result of this change, a critical loophole has been created. David Hall, former special agent in charge and advisor to the ad hoc committee on baiting, said the Delahoussaye decision was very workable and allowed him to make good, consistent and reasonable baiting cases. By the way, Mr. Hall has made more baiting cases than any other Fish and Wildlife Service special agent.
Page 62 PREV PAGE TOP OF DOC
We do have a couple of issues of special concern with H.R. 741 that I would like to point out. They are slight differences that I think can be worked out. First, H.R. 741 requires that salt or feed capable of attracting migratory game birds be intentionally scattered. The requirement to show intent by a hunter is a much more difficult standard of proof than the requirement to demonstrate that a hunter should have knowledge that the area was baited. We think this change has the potential to erode the protection of the migratory bird resource.
H.R. 741 also requires the effect of bait be separated in the field from the effects of other important attractants like hunting location and subjective methods such as decoy arrangement and calling expertise. Because the relative attractiveness of the bait must be shown, a much higher standard of proof is again imposed. We believe that may have the potential to create as many problems in this section as it attempts to solve.
Finally, this bill appears to remove an important prohibition in existing regulations. Currently, doves can be hunted over lands where feed has been distributed as a result of alteration for wildlife management purposes provided the alteration does not include redistributing feed after being harvested or removed from the site. H.R. 741 omits this very important restriction, thus allowing feed to be returned to and scattered on a field after being harvested or removed. We recommend that the prohibition be restored.
In summary, the Association agrees that Federal migratory game bird hunting regulations need clarification. Consistency, clarity and common sense are of paramount importance. We believe strict liability is the heart of the issue before this Subcommittee, and we are willing to participate in a working group to bring our respective proposals together.
Page 63 PREV PAGE TOP OF DOC
The International Association of Fish and Wildlife Agencies appreciates the opportunity to address you today, and I offer my personal assistance in reaching the goal I believe that we all share. Common sense regulations that protect the migratory bird resource and the future of responsible hunting are very important to all of us. Thank you again for allowing me to be here.
[Statement of Brent Manning and additional information may be found at the end of the hearing.]
Mr. SAXTON. Mr. Director, thank you very much. Incidentally, we want to apologize. Our material has consistently referred to you as Brett rather than Brent, and we apologize. And so for the record, Mr. Manning's first name is Brent.
Mr. MANNING. Thank you, Mr. Chairman. And I am very happy that you did not call me Forrest Gump or Elmer Fudd as a journalist just recently did in regard to this issue.
Mr. SAXTON. Nor did we call you late for dinner, right.
Mr. MANNING. Yes, thank you.
Mr. SAXTON. Mr. Horn.
STATEMENT OF WILLIAM P. HORN, BIRCH, HORTON, BITTNER AND CHEROT
Page 64 PREV PAGE TOP OF DOC
Mr. HORN. Thank you, Mr. Chairman. My name is William Horn, and I appreciate the opportunity to appear today before the Subcommittee. I thank you for scheduling this hearing to address a regulatory issue that is long overdue for reform. Existing regulations regarding the use of bait for the take of migratory birds are presently too subjective, too obscure and put thousands of law-abiding hunters at risk for potential violations.
My position on this issue arises from two perspectives. First, I had the privilege to serve as Assistant Secretary of Interior for Fish, Wildlife and Parks under President Reagan, and basically enforced, wrote and signed the migratory bird rules for a number of years. Second, I am also a hunter who struggles with these rules every time I step into a duck blind or set up in a dove field. Reform is needed to end, or at a minimum reduce, the level of struggle associated with efforts by reasonable hunters to comply with these regulations.
Now the sporting community and the Fish and Wildlife Service have long recognized the need for clarification and simplification of these rules. Indeed, the Director's 1990 Law Enforcement Advisory Commission specifically proposed a revisitation of the baiting regulations found at 50 CFR 20.21. In addition, the Commission raised the issue of strict liability as one requiring review and attention and prospective change.
Unfortunately, no action has been taken by the Service to implement this now seven-year-old recommendation. We are persuaded that the committee and Congress ought to act on its own via passage of H.R. 741 to pursue the original recommendations made by the 1990 commission. Now, as Mr. Streeter indicated, these matters could be addressed administratively, but frankly years of inaction by FWS demonstrate that Congressional leadership and action is needed or nothing is going to happen.
Page 65 PREV PAGE TOP OF DOC
Now regarding the law, the first objective is to change this matter of strict liability. I think, as Senator Breaux very eloquently stated, the imposition of strict liability eliminates the ability of a hunter or landowner to mount a defense against charges of illegal baiting. And this is completely contrary to the fundamental premise of American justice that one is innocent until proven guilty. Establishing a standard that requires some reasonable measure of intent or knowledge is more just and equitable, but still enables law enforcement officers to pinch and successfully prosecute genuine wrongdoers.
Another goal of reform must be the creation of objective rules and policies that law-abiding hunters can comply with. As indicated, I have overseen the Fish and Wildlife Service, I have practiced wildlife law, and I have hunted ducks, doves and geese for years, and I still hunt these birds with a great deal of trepidation. I personally scrupulously examine fields before hunting and make pointed inquiries about agricultural practices, yet I still cannot be sure that I am complying with Federal regulations and enforcement policies.
Can an agent find some tiny amount of leftover grain from an earlier legitimate feeding program? Does the agent agree that the agricultural practices used in the field that I am hunting are bona fide? Can the agent determine that baiting has occurred on an adjacent field up to over a mile or more away that I have never seen and cite me for taking birds on their way to that field? All of these determinations are so subjective that even the most diligent and careful hunter can be cited for a violation, notwithstanding their best efforts to comply with the law. That is simply bad public policy. The rules must be remade in a way that the diligent and careful hunter who makes the effort can be assured that he or she is in compliance with the rules.
Page 66 PREV PAGE TOP OF DOC
On the compliance front, I would like to add that it is unfortunate that Fish and Wildlife enforcement personnel are unwilling to provide advice or guidance about baiting. I am aware of many hunt organizers contacting law enforcement from Fish and Wildlife to ask the agents to examine a field and give it a clean bill of health in an effort to comply with the existing baiting regulations. And these organizers are routinely turned down flat. I pose this inquiry: even the IRS is willing to help citizens with tax compliance—why can't the Fish and Wildlife Service help us with migratory bird compliance?
Lastly I would like to bring one other issue to the committee's attention, and ask it to deal with this in the context of legislation or in terms of guidance to the Service. I would be very concerned about efforts by the Fish and Wildlife Service to close hunting in very large zones proximate to farms where waterfowl feeding is occurring. The apparent policy rationale is that the feeding farm, even if it is not hunted, constitutes an illegal lure; it brings birds into a generalized area.
This kind of policy could easily become a tool of the animal rights extremists because aggressive feeding on a few strategically parcels on, for example, the Eastern Shore could close down hundreds of waterfowl hunting locations. I think the committee needs to direct the Service to be extremely careful and not provide anti-hunting zealots a weapon to be used against waterfowl hunters.
Thank you again for the opportunity to address this issue. I think reform of the MBTA, the 20.21 regulations and related policies is necessary to achieve greater objectivity and clarity so that the diligent and careful hunter can comply with the law and applicable regulations and policies. Thank you.
Page 67 PREV PAGE TOP OF DOC
[Statement of William Horn may be found at the end of the hearing.]
Mr. SAXTON. Thank you very much, Mr. Horn. Steve, proceed.
STATEMENT OF STEPHEN S. BOYNTON, HENKE AND ASSOCIATES
Mr. BOYNTON. Thank you, Mr. Chairman. My name is Stephen Boynton. I am an attorney in private practice in the District of Columbia, and I have devoted much of my practice over the past 20 years to wildlife and conservation law. I have tried a number of these baiting cases and handled them from California to Pennsylvania and from South Carolina to Delaware. Mr. Chairman, I have also had the dubious distinction of having been a defendant, an unsuccessful defendant, in a case that went all the way to the Fourth Circuit Court of Appeals. And being a defendant, it catches your attention to know the law very quickly.
I have submitted a rather comprehensive statement, which gives a judicial background that Congressman Abercrombie referred to earlier of having these issues considered before. Some of them have quite considerably. Some of them have been ignored on the basis that any evidence of what the defendant knew, or should have known, is irrelevant. If he is there, the bait is there, get out your checkbook. It is as simple as that.
I would also like to comment on something Congressman Farr said. I think it should be underscored that the primary and singular and most important problem when you face any change to regulations or law is to protect the renewable resource. I think that is a primary consideration. In considering this law, this proposed law carefully, I think some of the issues that have been raised are important. I would like to address those that I have heard this morning and read about.
Page 68 PREV PAGE TOP OF DOC
Number one, the question of whether or not the person actually putting out the feed possibly slipping through in this particular proposed legislation. First of all, as the Chairman mentioned, he could be pulled in as an aider and abetter, which is under the criminal law even though he isn't in the field, even if he isn't there. If he perpetrated the crime, he could be pulled in. But let us assume for a moment that he did put out the feed to bait but the hunter was successful in his defense so that he didn't know or should not have known or did not have a reasonable opportunity. That means the person putting out the bait with the intent would take a walk, because there is no primary defendant.
Consequently, I would suggest on page 6, line 3, it would be very simple to add the words no person ''shall take or assist in the taking.'' As the Chairman indicated earlier, that would take care of the problem very quickly.
There has been some, in my judgment, wrong interpretation on page 7 of the term baiting means the intentional placing. I think as this has been drafted it doesn't mean you have to prove the intent of the person placing it. It means that the bait was put there purposefully. In other words, we are excluding accidental distribution of seed. I have had cases where, and Congressman Stearns referred to it, where there has been corn found on a public road. Both sides stipulated and it was agreed to it fell off a truck, but it was ''bait'' within that ''zone of influence'' and the defendants were found guilty. That is what this section refers to, is that a person is not going to be charged with accidental distribution of seed, which can be proved.
The basic concern that everyone has, and I have heard it and read it, is that they will never be able to make a case under this law. And I think that is nonsense. First of all, this is a criminal violation, and the normal standards in criminal law are beyond a reasonable doubt. That has been eliminated and you are talking about a preponderance of the evidence, which is basically a civil standard. And both sides have a level playing field to come in court. If the defendant cannot prove by a preponderance of the evidence, obviously the government is going to get a conviction.
Page 69 PREV PAGE TOP OF DOC
Now the conviction rates are very substantial. In fact, the previous director of law enforcement, who has since passed away, once bragged that they had a 97 percent conviction rate. And I said I didn't believe that. He came in with his three-inch stack of records to prove it. And I asked him without looking at it how many of them just paid the fine. He was considering that in a conviction rate because there is really no sense going to court unless you have some way under today's standards of either proving you weren't there, which is kind of silly, or that that bait was not bait at all, it was rocks or it was so far away or there is some hook to get away from strict liability. It doesn't happen or very seldom does it happen.
One of the other concerns has been the question of flexibility for the regulatory process. First of all, Congress has the duty to administer the Migratory Bird Treaty Act pursuant to treaty. It has delegated that duty to an executive branch of government, which it has every right to do. However, the Congress has the primary duty. Now these laws have been administered inconsistently throughout the nation. There is actually a Congressional duty under that treaty to make sure they are consistent. And I suggest to you that the Congress not only has the opportunity to change this law but it has the duty to change the law to make it consistent.
As to flexibility—a year ago today we had a hearing, seven years ago the Advisory Commission made a report, twelve years ago then Congressman Breaux held a hearing, twenty four years ago was the last change in the regulation, and the first case in 1939, the Reese case was 58 years ago. It said that the hunter—the only problem—the hunter must investigate ''bait'' at his peril. However, today we just don't know what the peril is or where it is. And I think Congress not only has a duty but it has an opportunity to define it. With all the time and treasure that sportsmen put into the conservation of renewable resources, I think it is only fair that it be addressed by the Congress and corrected.
Page 70 PREV PAGE TOP OF DOC
Thank you, Mr. Chairman.
[Statement of Stephen Boynton may be found at the end of the hearing.]
Mr. SAXTON. Thank you very much. I have no questions at this point. Mr. Farr.
Mr. FARR. I wonder if Mr. Boynton has read Mr. Manning's proposed regulations?
Mr. BOYNTON. Yes, I have.
Mr. FARR. What do you think of them?
Mr. BOYNTON. Mr. Manning and I met yesterday for several hours going over that. I have trouble with the word ''normal'' to change ''accepted'' as a standard. However we agree that you could use both words, normal and accepted. I had a case where under the current law it says ''bona fide agricultural practice.'' The court said that bona fide wasn't the intent of the person doing it, it was by somebody else's standard. So I had some questions with Mr. Manning. We discussed this and Mr. Manning has made a proposal that he did not refer here to today, but there is—if there can be a standard that is put in with all the input from the Fish and Wildlife Service, from the state fish and game agencies, from the soil conservation districts, and they come out with what is the ''normal accepted'' standard of agriculture in a given area, I am all for it.
Page 71 PREV PAGE TOP OF DOC
Mr. FARR. I agree with you that there is something that is broken and needs fixing, but I am not convinced that the bill in its present language fixes it in a way that both Mr. Boynton and Mr. Horn talked about. And I appreciate Mr. Manning's diligence on it, and hopefully we can come to some resolution to write a law that will work, not that will cause other problems so we will be back here a year from now.
One of the biggest problems I have is just lack of law enforcement in wildlife management. I happen to have a marine sanctuary out in my district in California that is 200 miles long, and we have one enforcement officer to go from San Francisco to the Mexican border for all marine wildlife management. I mean, it is impossible for him to do his job in any reasonable way. And I find that the local folks think that the fact is we just don't have enough enforcement in game management.
So if we are going to write a law, when it does get enforced, it ought to be enforced properly. And I think that, as you say, the responsibility here is for the renewable resource and what you are learning—the big picture is that loss of habitat and pesticides and so on, the species are all declining. So there is a real—there is a big management responsibility here, and I appreciate your testimony.
Mr. SAXTON. Thank you. Mr. Abercrombie.
Mr. ABERCROMBIE. Mr. Boynton, I have not had the opportunity to examine in detail your testimony, but I will. Am I correct in understanding that you indicate in that testimony previous cases that address the question of intention and known and should have known as it applies in this particular area?
Page 72 PREV PAGE TOP OF DOC
Mr. BOYNTON. In some exhaustive detail, I am afraid.
Mr. ABERCROMBIE. No, no, that is good. Do you agree, then, that if we can solve that—that problem is resolvable? Reasonable people can resolve that and thus move off this 58 years of stasis?
Mr. BOYNTON. I think it is solvable. And as far as the time element, that is in your hands. But yes, I think it is solvable. And most people, although quibbling over some of the other portions of this legislation, those people agree that that standard is too high and should be addressed appropriately. Yes, sir.
Mr. ABERCROMBIE. And one last point about the criminality side. Reference was made earlier, perhaps you heard it, about someone whose application for entrance into military services was compromised by virtue of a conviction in this. So am I correct that when we say a criminal conviction we are talking about something that can adversely effect someone's life goals and so on?
Mr. BOYNTON. That is correct, sir. This specific case, I believe, was Naval ROTC, and he had to put down whether or not he had a criminal conviction. He did, albeit a misdemeanor, it was still there, and he lost——
Mr. ABERCROMBIE. Would you agree that perhaps we then should take up whether we should differentiate in this bill or what comes out of this legislation, perhaps, going to civil penalties rather than criminal penalties where appropriate? Now not getting rid of criminal penalties, because that might be—not accomplish what needs to be accomplished, but perhaps there ought to be some consideration of civil penalties as opposed to criminal penalties where that seems appropriate.
Page 73 PREV PAGE TOP OF DOC
Mr. BOYNTON. I think that could be considered. And I might also add at the hearing 12 years ago that Senator Breaux chaired when he was with the Merchant Marine Committee, there was a suggestion that these penalties remain criminal but be similar to the Juvenile Corrections Act where after a five-year period and there has been no other conviction under the act, they be purged.
Mr. ABERCROMBIE. Okay, thank you very much, Mr. Boynton. It was very valuable.
Mr. BOYNTON. Thank you.
Mr. SAXTON. Thank you all very much. We are going to move to panel four at this point, Dr. Rudolph Rosen representing the Safari Club, Mr. Dan Limmer representing the National Wildlife Federation, Mr. Rollin Sparrowe representing the Wildlife Management Institute, Ms. Susan Lamson of the NRA, National Rifle Association, and of the NRA the Natural Resources Division, Mr. William Ladd Johnson of the National Waterfowl Federation. Welcome.
Mr. Rosen, you may begin. And let me just remind you that there is a five-minute time limit. When the red light goes on, please finish your thought. You may proceed, sir.
STATEMENT OF DR. RUDOLPH ROSEN, EXECUTIVE DIRECTOR, SAFARI CLUB INTERNATIONAL
Page 74 PREV PAGE TOP OF DOC
Mr. ROSEN. Thank you, Mr. Chairman. My name is Rudolph Rosen, and I am Executive Director of Safari Club International. Mr. Chairman and members of the Subcommittee, I do appreciate the opportunity to appear before you today to speak about H.R. 741. I am going to abbreviate my comments, and I ask that the full text of my comments be entered into the record.
My most direct experience with regulation of migratory bird hunting was from 1991 through February of this year when I was responsible for migratory bird management and harvest regulations first for the State of Texas as Director of Fisheries and Wildlife and then for the State of Oregon as Director of the Oregon Department of Fish and Wildlife, and also throughout my life as a hunter of migratory birds.
Safari Club is an international not-for-profit wildlife conservation organization with over 32,000 members, 168 chapters worldwide, and through affiliated organizations, our numbers increase to over one million. All of our members are hunters, and we work to conserve the world's wildlife species and protect the rights of hunters.
H.R. 741 would enact into law a variety of prohibitions dealing with different methods and practices for hunting migratory birds. Hunting migratory birds with the aid of bait is one of those prohibitions, and this bill makes an important clarification in regard to this particular provision in that a person charged with a baiting violation must know or should have known through the exercise of reasonable diligence that bait was present where they were hunting.
Page 75 PREV PAGE TOP OF DOC
We appreciate the leadership of the Chair and others in Congress bringing this bill forward. We support these efforts and we offer our help as the bill moves forward.
The Safari Club supports regulations that conserve migratory bird resources. We also support ethical hunting and a very strict adherence to all wildlife hunting rules and regulations. Our members pledge to follow a code of ethics that includes knowing and following hunting rules and regulations wherever and whenever they hunt. Rules prohibiting baiting of migratory birds and hunting over bait are no exception. Our members do not question the need for these regulations, including the prohibition on baiting. But we have a problem when it comes to the current rule on hunting over bait. The rule has been interpreted and administered for years as a so-called strict liability standard.
It has been the experience of our members that the current rule is often enforced so rigidly that hunters who are innocent of knowingly violating baiting laws are categorically judged guilty. The judgments of various law enforcement officers can vary as to whether the amount and nature of placement of various materials, as well as the handling of crops in agricultural areas amounts to baiting. Once a judgment has been made by a law enforcement officer, the strict liability nature of the baiting violation makes it very difficult for the alleged defender to contest. The costs and time required to argue with an officer's judgment are so high compared to the penalty that most people charged with hunting over bait simply pay the penalty.
Some may feel this is simply an annoyance factor, but our members take pride in the fact that they hunt lawfully and ethically. In one case, there was a move to bar a person from candidacy for the Safari Club presidency because he had paid a penalty for hunting over bait rather than contest it. The Safari Club undertook a detailed inquiry, hearing a number of witnesses, and determined that his action was only a violation because of the strict liability standard of the rule, that he had no intent to hunt with the aid of bait and he had no knowledge that bait had been placed. In this incident, over 25 people were involved, including a very well-known golfer.
Page 76 PREV PAGE TOP OF DOC
Wildlife managers generally seek to develop rules in cooperation with hunting license holders that protect the resource first, and where biologically-based management practices allow, permit hunting within defined limits. Such regulated hunting provides recreational and economic benefits, especially important to rural America where spending on hunting and fishing gives a much needed boost to the local economy.
We understand that wildlife law enforcement acts as a deterrent and this force of deterrent can be very, very effective and necessary in preventing harm to wildlife resources. But the baiting regulations have acted as an entirely different sort of deterrent, because here in addition to deterring would-be baiters, the regulations have acted as a deterrent to ethical hunters. Since hunters can't be assured any field is bait free, in self defense many hunters have given up or have highly limited their hunting activity.
And this is entirely a result, we believe, of how the current rule is written and has, at least in my opinion, little to do with focusing on those truly culpable for baiting or protecting migratory birds. Standards on baiting need to be clear in holding culpable two types of violators, those who bait for the purpose of hunting and those who knowingly hunt over bait or hunt where it is blatantly obvious there is bait drawing birds into shooting range.
As proposed, H.R. 741 focuses the law on the real culprits. Hunters will understand and agree with that kind of law. Hunters will back the Fish and Wildlife Service and the state law enforcement agencies in enforcing this kind of law.
We thank you very much for bringing this forward today.
Page 77 PREV PAGE TOP OF DOC
[Statement of Rudolph Rosen may be found at the end of the hearing.]
Mr. SAXTON. Thank you, sir. Mr. Limmer. Proceed, Mr. Limmer.
Mr. LIMMER. Thank you, Mr. Chairman and members of the Subcommittee, for this opportunity to come before you today. My name is Dan Limmer. I am a Regional Executive with the National Wildlife Federation, working in our Prairie Wetlands Resource Center located in Bismarck, North Dakota. I ask that our formal comments along with attached copy of NWF resolution, which I have with me today, be submitted for the record.
Mr. SAXTON. Without objection. Thank you.
STATEMENT OF DAN LIMMER, REGIONAL EXECUTIVE, NATIONAL WILDLIFE FEDERATION
Mr. LIMMER. Thank you. National Wildlife Federation is the nation's largest conservation education organization, with 45 state affiliates and over four million members and supporters. Our members and supporters are people who know and love wild things and wild places and value the ability to learn and benefit from them.
I am here today to address House Bill 741, the Migratory Bird Treaty Act Reform Act of 1997. The National Wildlife Federation opposes H.R. 741 for two primary reasons. First of all, we strongly believe that wildlife management is most appropriately and best accomplished by trained professionals in wildlife conservation and wildlife law enforcement. Wildlife management must retain the flexibility to be able to make timely regulation and rule changes in order to successfully adjust and adapt to unpredictable and highly variable conditions and events.
Page 78 PREV PAGE TOP OF DOC
Secondly, H.R. 741 would in fact weaken existing waterfowl protections by, for example, allowing the use of toxic lead shot to hunt captive reared waterfowl and by expanding the potential for the unethical hunter to bait based on the requirement that would force the field law enforcement officer to prove intent. Such a requirement can be a very difficult thing to prove and could, in fact, severely compromise the enforcement of these regulations.
Mr. Chairman, I have outlined the two basic reasons why the National Wildlife Federation opposes 741, and I would now like to tell the committee those things that we do support. First of all, we strongly urge the U.S. Fish and Wildlife Service to move forward quickly with the review and revision of regulations relative to waterfowl hunting restrictions. Any revised regulation must not allow waterfowl baiting and must adhere to the highest standards of ethical fair chase. National Wildlife Federation supports by resolution clear, concise, easily interpreted and uniformly enforceable hunting rules.
Mr. Chairman, I am also here today as a former wildlife law enforcement officer and wildlife manager with over 16 years experience with the South Dakota Department of Game Fish and Parks, stationed within the heart of the Central Flyway. I can personally attest to the absolute necessity that wildlife management retain the flexibility to deal with changing conditions and that we have regulations in place that will hold the unethical few in check. Without a doubt, if those unethical few are allowed to go forward unrestrained, they will quickly become a significant adverse effect on our migratory bird resource.
And finally, Mr. Chairman, I come to you today as a hunter, conservationist and a father with over 35 years of hunting experience. I have personally witnessed and I abhor unethical hunting methods, and I have come to learn and greatly respect true sportsmanship. I have dedicated my career to protecting and passing down to my children and all of our children, as my father and grandfather did to me, the ability, the opportunity to know, love and enjoy the great privileges that I have.
Page 79 PREV PAGE TOP OF DOC
To be sure, to be successful we must retain the flexibility within management to adapt to change within regulations that are clear, easily understood and consistently and uniformly enforced.
Once again, National Wildlife Federation urges the committee to reject House Bill 741. Thank you very much for this opportunity to testify.
[Statement of Dan Limmer may be found at the end of the hearing.]
Mr. SAXTON. Thank you very much, Mr. Limmer. Dr. Sparrowe, you may proceed. Incidentally, at the conclusion of Dr. Sparrowe's testimony, we are going to have to take a break for a vote, in fact two votes, and then we will return to Susan Lamson. Dr. Sparrowe.
STATEMENT OF ROLLIN SPARROWE, PRESIDENT, WILDLIFE MANAGEMENT INSTITUTE
Mr. SPARROWE. Thank you, Mr. Chairman. The Wildlife Management Institute has extensive experience and involvement in virtually all of the aspects of migratory bird management that have been mentioned today, including past citizens commissions and attention to the baiting issue. I have personal experience for more than 20 years with this through my employment with the Fish and Wildlife Service, during which time I supervised migratory bird management and law enforcement. And I participated in the ad hoc committee with the International on baiting during the past ten months. Perhaps of equal importance, I have been a co-owner and wildlife manager of the Island Creek Gun Club on the Eastern Shore of Maryland for the past 17 years. I have hunted actively in Maryland for 20 years and for 35 years nationwide. I am very familiar with the problems faced by both hunters and law enforcement agents in carrying out the law.
Page 80 PREV PAGE TOP OF DOC
We at the Institute believe that regulations through the established public participatory process are the proper way to make any adjustments that need to be made in these laws. We don't think that H.R. 741 does that in a way that we can support, and we particularly are concerned about the strict liability issue. I won't reiterate the testimony that has been given here. We think the issue needs some attention. We think there are ways it can be addressed. I am heartened by some of the suggestions by others testifying here about how a rule could be processed.
Please note that I referred to a rule, because we still prefer that wildlife management processes proceed with the input from the experienced people around the country and make these changes as needed, rather than have direct intervention by the Congress.
During my participation with the International during the past year, I particularly recommended at each juncture that any change made in these regulations must be measurable in terms of what its impact is. No one can predict what these changes will produce in the way of different kill or impact on the resource. We ought to do that through the system that we have used very successfully for several decades. Any changes are done through the open participatory process with an experiment set up, a requirement for data collection, analysis and then potentially a way out of the situation if we have done something that doesn't fit. That would be very difficult to do under H.R. 741 and a new Federal law.
The various examples of lack of flexibility mentioned earlier I would simply add to. The Eastern United States has a tremendous problem with Canada geese, and this nuisance is going to have to be dealt with just as the snow goose problem, aggressively and probably in ways that are non-traditional. We would hate to have to come back to the Congress for each one of these things. I don't think the Congress wants to get in the business of managing waterfowl each year.
Page 81 PREV PAGE TOP OF DOC
I have participated in hunting successfully for 20 years in the Chesapeake Bay region, and I would submit that no one has been more vulnerable than me to the embarrassment or the fear of being caught. As Chief of Migratory Birds and Administrator in the Fish and Wildlife Service or my current job, I certainly could not afford it. I have looked over my shoulder when I needed to. I have adjusted my hunting schedule. I have gone home a few times because I didn't like something I saw, but I have been able to live within the law.
The fact that a committee of state biologists and administrators and other organizations have been able to come forward with some initial recommendations through the international leads me to believe that we can get this done through the established management process, and I urge the Congress to let that happen. Thank you, Mr. Chairman.
[Statement of Rollin Sparrowe may be found at the end of the hearing.]
Mr. SAXTON. Thank you. As I stated a few minutes ago, we are going to have to take a break now, and we will come back as soon as we can, but there are two votes, so we will be 15 or 20 minutes. Thank you.
[Recess.]
Mr. SAXTON. Move on to Susan Lamson.
STATEMENT OF SUSAN LAMSON, DIRECTOR OF CONSERVATION, WILDLIFE AND NATURAL RESOURCES DIVISION, NATIONAL RIFLE ASSOCIATION
Page 82 PREV PAGE TOP OF DOC
Ms. LAMSON. Thank you, Mr. Chairman. The NRA appreciates the opportunity to testify on H.R. 741. It was made clear at last year's oversight hearing that the baiting regulations continue to cause problems, problems of inconsistent enforcement and court interpretation exacerbated by ambiguity and confusion on the part of the hunter.
The NRA fully supports H.R. 741 because it makes long-needed changes to the baiting regulations. It will provide the hunter with a law that is clear and reasonable and can be consistently and fairly enforced. At the same time, the bill will continue to protect the resource from excessive harvest. With over two million hunter members, protection of the resource is of vital importance to the NRA, because hunting is wholly dependent upon healthy, sustainable wildlife populations.
It has been suggested that any shortcomings with the baiting regulations can be overcome through the rulemaking process. That may be true, Mr. Chairman, but the Fish and Wildlife Service has already had ample opportunity to seize that initiative. Instead, the Service has given Congress no other choice but to step in, because it hasn't evidenced any sign of resolving the problems on its own.
It has been suggested that H.R. 741 will make it extremely difficult to bring convictions because it would increase the Federal Government's burden of proof. Well, I think that burden should be increased. Under the current regulations, the government's burden is minimal if nonexistent. But the problem is that under the strict liability standard, the hunter isn't given parameters by which his knowledge or lack thereof is held legally accountable.
Page 83 PREV PAGE TOP OF DOC
H.R. 741 resolves the issue by establishing the reasonable diligence standard and injecting fairness into enforcement by giving the hunter an opportunity to provide a defense in court. It doesn't require the government to prove intent, nor does it call for the traditional standard of proof beyond a reasonable doubt because the bill recognizes that such standards could make it extremely difficult to convict a law breaker.
It has been suggested that there is a danger in amending the regulations through legislation because it will remove agency flexibility, but part of the problem associated with the regulations is that it provides the agency with too much flexibility. For example, the agriculture terms used in regulations have been shown to lack the clarity necessary for a hunter who is not otherwise well versed in agricultural practices to know at all times whether an area is legal to hunt over or not. In the past, the Service has acknowledged that the determination of a baited area is based upon the expertise of law enforcement.
Mr. Chairman, a person of average intelligence should be given a reasonable opportunity to know what is allowed and what is prohibited. The hunter shouldn't have to develop an expertise in agricultural practices, nor rely on law enforcement's interpretation as to whether he is legally hunting or not. The clear definitions and guidance in the bill will resolve that problem and also provide the government with strong proof that a hunter should have known bait was present.
H.R. 741 also injects fairness into the application of the so-called zone of influence. To suggest a hunter be held responsible for knowing why birds are in the hunting venue absent the presence of seed or grain in the area being physically hunted is an unreasonable expectation of hunter responsibility. The hunter hopes to be in a hunting area where birds will be and should not be held accountable for not being suspicious as to why they are there. Hunters should be held accountable, instead, for the condition of the hunting grounds and not for an area of unknown extent.
Page 84 PREV PAGE TOP OF DOC
The bill gives a hunter an opportunity to present evidence in court as to whether the alleged bait acted as a lure but it also preserves the greatest amount of flexibility for the court in its review and for the government in making its case that a hunter knew or should have known.
It has also been suggested that the bill would undercut the principle of fair chase, but we fail to see the relevance of that argument. The bill is not removing the prohibitions against baiting, rather it is designed to ensure that such prohibitions are understood and interpreted such that the outcome is the same, whether it be through the eyes of the law enforcement officer, the hunter or a judge.
There are many hunters who have given up hunting migratory birds rather than risk their reputation on circumstances beyond their control. It is an unfortunate and unacceptable outcome of the regulatory and judicial process. Rules should be uniform, clear and understandable so that a hunter whose intent is to comply can comply. H.R. 741 achieves that objective without eroding the goals and objectives for migratory bird conservation.
In summary, the migratory bird resource, those charged with protecting it and those who would legally hunt it are all benefited by the Migratory Bird Treaty Reform Act of 1997. Thank you, Mr. Chairman.
[Statement of Susan Lamson may be found at the end of the hearing.]
Mr. SAXTON. Thank you very much, Ms. Lamson. Mr. Johnson.
Page 85 PREV PAGE TOP OF DOC
STATEMENT OF W. LADD JOHNSON, BOARD MEMBER, NATIONAL WATERFOWL FEDERATION
Mr. JOHNSON. Thank you, Mr. Chairman. My name is Ladd Johnson. I am a board member of the North American Waterfowl Federation, which is made up of state waterfowl organizations. I am also chairman of the State of Maryland Waterfowl Commission. I am here to speak to you about the injustices of the present Federal regulations pertaining to the enforcement of baiting migratory birds and the accompanying definitions of normal agricultural practices. Let me acknowledge that I and the people I represent do not support the taking of migratory birds with the aid of bait.
I personally have been a victim of the present regulations and their accompanying judicial interpretations. Twice I have been convicted of taking waterfowl with the aid of bait. In both cases, the bait was found on the property. And in both cases I was a guest of a person who assured me that no bait was present. Arriving before daylight, I was unable to personally observe the presence of bait in the hunt area, let alone the bait being a half a mile away and under several feet of water, but because I was there and the bait was present, I was cited. Both cases resulted in the payment of the imposed fine because the precedent established in the Federal court system pertaining to bait left me no other choice. Probation before judgment is not an option in Federal bait cases, and if the bait was there and I was there, the precedent set found me guilty. Since then, I have only hunted on my own personal farm or with those individuals with whom I have personal knowledge of their operations.
Many persons have fallen victim to the same circumstances that I have. Let me stress again that I and the people I represent do not condone the use of bait in attracting and harvest of migratory birds. The language of the present regulations states if bait is present or has not been removed for a period of ten days prior to hunting, all parties present are guilty in attempting to harvest waterfowl with the aid of bait. Let me also say that feed does not become bait until you choose to hunt over it. A person could arrive on the ninth day after the bait has been removed and still found guilty.
Page 86 PREV PAGE TOP OF DOC
The answer is simple. The landlord or the lessee or those responsible for the actions on the farm or in control of the property are the responsible party to any and all actions that may violate game regulations. Should a violation occur, the party in charge of the action should be cited. The imposed penalty should be placed on them equivalent to all those people present and then possibly doubled.
On the issue of normal agricultural practices, I also have the privilege of administering a national wildlife food planting program which this year should exceed over one million acres. The question of what is a normal agricultural practice that is planted for wildlife could be jeopardized and could be misinterpreted under the present regulations. With this private sector and this private initiative in jeopardy, the language should be clarified.
Moist soil management hasn't been mentioned here today, which is new type of management, particularly for waterfowl. It is economical and very effective in the—in sustaining waterfowl populations. Manipulation in moist soil management is an essential practice to ensure the effectiveness of the moist soil management program. Manipulation of any area under the Federal interpretation can be assumed as creating a baited area.
I and the people I represent support H.R. 741 and its amendments to the Migratory Bird Treaty Act. Let us protect the innocent sportsmen with the same regulations that protect the migratory resource. Thank you, sir.
[Statement of W. Ladd Johnson may be found at the end of the hearing.]
Page 87 PREV PAGE TOP OF DOC
Mr. SAXTON. I would like to thank each of you for obviously very articulate and good testimony. I don't have any questions at this point, and I would just like to thank you each for being here and sharing in some cases your experiences and in other cases your thoughts with us. Thank you very much.
We will now move to our fifth and final panel, Mr. William Boe of Gainesville, Florida; Mr. Vernon Ricker, who is a retired special agent from the Fish and Wildlife Service who currently makes his home in Salisbury, Maryland; Terrance Sullivan, Secretary of the League of Kentucky Sportsmen; Mr. Charles Conner of Germantown, Tennessee; and Mr. Fred Bonner of Raleigh, North Carolina. Welcome, and when you are comfortable, Mr. Boe, you may proceed.
STATEMENT OF WILLIAM BOE, GAINESVILLE, FLORIDA
Mr. BOE. Mr. Chairman and members of the committee, I would like to thank you for the opportunity to be here again. I was here a year ago speaking to the House Resources Oversight Committee about the situation with the Florida hunters, and I am here today in the capacity as the Chapter Advisor to the Alpha Gamma Rho Agricultural Fraternity at the University of Florida.
We had numerous members of that fraternity receive citations in the infamous Florida raid, and Congressman Stearns, I think, was quite accurate in some of his comments in reference to the young men. And I would like to clarify some issues, and I would hope that those who write the laws will listen to what happened to some of these young men to make sure that other people in their situation certainly won't be victims of the confusion and perhaps the overzealous actions which impacted them so hard that day.
Page 88 PREV PAGE TOP OF DOC
I would like to comment very briefly, though, on some of the comments that were put in the record by Congressman Abercrombie that were left with him for Congressman Miller. I have also seen some things in the media that have been published in the Washington area where it keeps getting referred to the fact that the people in the Florida raid were caught ''red handed''. I think this term ''red handed'' perhaps needs to be better defined. I am somewhat concerned about that.
''Red handed'' is confusing when you have five young men hunting on the property of one of their parents, which is an active agricultural production, down the road and separated from the field raided by the Federal agents. The agents came to this field where these boys were and ''red handedly'' caught them in their own field where they had hunted many times before. When they addressed this issue to the agents, that they were not in the field being raided, they were told, ''well, you are close enough as far as we are concerned, that is why we have courts of law, and you can get an attorney and go to court if you so desire.''
I met with the parents of all five of those young men. In my testimonial package you have the comments from the parents of one of those people. I hope that is read by every member on this committee, including those that aren't present here today.
I also have the letter from the young man in question, who was denied access to the ROTC program. It was the Army ROTC program. Congressman, right now he is in your home state of New Jersey. He is at the Coast Guard training facility at Cape May. He will do very well there. He, however, is going to be an enlisted man in the Coast Guard Reserve. Following his training in New Jersey, he will go back to the University of Florida. He will graduate, probably, with honors. I will be at his graduation along with his other friends next year. And hopefully at that time he will qualify for officer candidate school within the Coast Guard.
Page 89 PREV PAGE TOP OF DOC
I had the pleasure of going to the ceremony for three of my young men who were commissioned in the Army, and fortunately for them they did not go to that dove hunt or their commissions also would have been interrupted.
Congressman Miller talked about a ''legislative fix.'' Perhaps that is what we are here for today, a ''legislative fix.'' After all, the members of this committee are in a position to fix a very serious problem, and I hope they do so.
Also, one other comment in reference to Mr. Miller's comments that he made. He talked about the people having poor eyesight. I would like to point out the fact I do wear glasses, and I was in that field that day. I hunted in about a two-acre area of the field. There was no grain in the two acres in which I hunted that would have enticed any birds there.
I graduated from a university in the State of Texas where hunting is very popular, and I know what constitutes a large volume of birds flying within an area. There were five of us hunting. Within a two and a half hour period of time, we killed ten birds. There was nothing going on in the part of the field that I hunted in that would reasonably suggest there was bait there, and there certainly was no bait where I was hunting. I know that because I asked the agent that cited me to show it to me. He would not do so. And obviously if it was there, I think he at least could be able to demonstrate the evidence to me.
I would like to share with you the letter provided to me, hand carried by pickup truck from Dixie County right before coming up here. This is from Mr. Bobbie Hatch of Cross City. He is the owner of the property where the young men got the citations from that was adjacent to the field raided. He was away, but this is his letter to this committee.
Page 90 PREV PAGE TOP OF DOC
''Members of the House Committee, I was angered after returning from the Florida versus Auburn football game to discover that some of my son's fraternity brothers had been fined for hunting on a baited field while on my property. These young men had been invited by my son to come and hunt dove in our field with my permission. My land is rich in dove population and always has been due to the accessibility of fields, cover and water supply which in no part has anything to do with baited fields. These young men came to have a peaceful day hunting on my land, and were then unjustly accused.
I take offense to this happening. If this law reads in any way that these boys were guilty, it is an absurd law and therefore should be changed. Bobby Hatch, Post Office Box 611, Cross City, Florida, phone number 352–498–3712.''
And I hope someone has the courtesy of contacting him to find out why he feels the way he does.
From my interpretation and observations of what I saw that day, I saw a very elastic law. I saw a law which in reality is whatever the agents want it to be on any given day. And that law is whatever the judge in a court of law defines, usually in favor of these people.
The reason I did pay my fine a year ago—and a lot of people have said why did all these people pay fines if they are indeed innocent. I went to a friend who was a former state prosecutor that convicted serial killer Ted Bundy, and who also played a major role as states attorney in convicting Danny Rollings, who killed five University of Florida students six years ago. I went to him and I said I would like you to represent me in this situation. He studied the law. His name is Lynn Register. He was a private attorney then. Now he is a Federal prosecutor in Tennessee. He said Bill, as this law is written, if you are there you are guilty. You don't have to see the bait. You don't even have to have any desire to break the law. I recommend you to cut your losses, pay your fine and try to talk to someone to bring some reason to this law so that it will be more practical and more fair to all people concerned.
Page 91 PREV PAGE TOP OF DOC
That is why at my own expense I have come up here twice. I would hope this elastic law would be better defined so it is not quite so elastic to impact the lives and careers of young men who are hunting on adjacent fields, trying to get away from the University of Florida and their studies for just a day or two.
In reality, when my license was taken that day I was indicted, tried and convicted in the field. I was told that someone would investigate my case. I never heard from anyone. The next letter I got was a letter stating you have the option of mailing in your money or perhaps—you can use Visa or Mastercard. It is very convenient, I might add—or you can go to court, and if you go to court and are found guilty, you will pay $500—actually you will pay up to $5000 and possibly spend one year in a Federal prison. Being the fact that I had an ill wife, children with braces, et cetera, et cetera, I thought that was not a very reasonable option at that point in my life.
I do think it is a good option to come up here. I am glad Cliff Stearns listened to some of our concerns. I think he is a good Congressman. He returns his phone calls and he cares about the people within his district, and I think that is what this is about. I am a reasonable person. I like to hunt birds, but I do have good eyesight. I might add I walked point in Vietnam and I never got my boys in an ambush. If grain had been where I was, I would have seen it.
And I would like to entertain any possible questions. I am up here wanting fairness for people and respect for wildlife, and I don't think any was provided in the Florida case.
Page 92 PREV PAGE TOP OF DOC
Clarifying a point made by Cliff Stearns, these two men, two of the boys from the adjacent field. I talked with their parents. One of them was a young man. He was married, just had an infant daughter. He was in his senior year in college. He was already in debt to go to school. He said, ''Mr. Boe, I don't have money for an attorney and I am not paying $500 fine for something I didn't do.'' And I asked what are you going to do? He said, ''By God, I am going to go to court and defend myself!'' And he did. And the judge acquitted him. He said son, there is no logical reason why you should know what was going on somewhere else. And I praise that judge in Gainesville, Florida for his sense of justice.
Thank you, sir.
[Statement of William Boe may be found at the end of the hearing.]
Mr. SAXTON. Thank you very much, Mr. Boe. Mr. Ricker.
STATEMENT OF VERNON RICKER, RETIRED SPECIAL AGENT, U.S. FISH AND WILDLIFE SERVICE, SALISBURY, MARYLAND
Mr. RICKER. Thank you, Mr. Chairman. I come before you today as a recently retired Special Agent with the U.S. Fish and Wildlife Service, having served 25 of my 28 years on Maryland's Eastern Shore. 17 of those 25 years was served as a Special Agent with the Service, an additional seven years as a Maryland Natural Resources police officer.
Page 93 PREV PAGE TOP OF DOC
When I came on with the State of Maryland and the U.S. Fish and Wildlife Service, the Eastern Shore was in its heyday for illegal waterfowl hunting violations, particularly baiting. The mid–60's through the mid–80's was the peak of migratory waterfowl hunting and outlaw gunning on the Delmarva Peninsula. There was little defense for hunters caught red handed shooting over baited areas and the courts correctly showed no difference to status within the community.
I want to make several important points first. Changing the law is not the solution. During my 28 years in law enforcement, I have heard all types of complaints about the unfairness of baiting laws. I have seen the courts uphold the Migratory Bird Treaty Act and have basically seen the U.S. Fourth Circuit of Appeals in Richmond, Virginia say enough is enough. They have heard these arguments before many times. I am here to tell you that if the strict liability standard is removed from the regulations, it will be devastating. And I repeat, it will be devastating to migratory birds.
I have been involved in apprehending and prosecuting nearly 1000 individuals in my career for hunting on or over baited areas. I have seen 50 people bait these areas, ten of which I could physically identify. That is 28 years of law enforcement working prime waterfowl areas. The reasons I couldn't identify more individuals would vary from weather conditions, rain, snow, fog, et cetera, reduced lighting, distances and concealment from the individuals baiting the areas. There have been times in my career when individuals have nearly scattered grain on top of me when they were baiting the areas, but I still couldn't identify them.
Oftentimes in my career I personally knew who owned, rented or hunted a particular location being baited or owned a boat similar to what the subject was in that was doing the baiting, but I could still only give a generic description. After seeing the subjects bait an area, they would still deny how the bait got there, even if you find grain in the bottom of the boat. People have a hard time looking an agent in the eye and saying yes, I baited the area yesterday afternoon.
Page 94 PREV PAGE TOP OF DOC
I have seen many hunters standing in shelled corn in soybean fields asking what bait, hunters standing on bushhogged sunflower fields with milo scattered saying I thought it was gravel pellets, hunters on marshes with cracked corn under decoys saying I thought it was just a sandy bottom. Hunters complained to me after they were caught that someone else baited the area. And my response, they also baited the bottom of your boat.
Strict liability is needed because knowledge of bait is too difficult to establish. Hunters have to start being responsible themselves by asking hosts and guides and by inspecting the site. By just saying I didn't know the bait was there doesn't protect migratory birds.
My recommendations to this committee would be to require or mandate the Service to establish annual training to be conducted by the most experienced special agents regarding all types of baiting situations. This type of training could possibly take place on national fish and wildlife refuges whereby actually hunting plots could be established to set up different scenarios. These plots should be both legal and illegal on planted, harvested and manipulated fields to simulate actual field situations. With this requirement, the Service would have a uniform enforcement standard nationwide. It would also better train the less experienced agents and supervisors alike in making prudent decisions regarding questionable baiting situations.
To also increase the penalty for people who have actually been proven to have put the bait out and consider a sum of $10,000.
Page 95 PREV PAGE TOP OF DOC
In conclusion, House Bill 741 may be well intended, but it won't protect migratory birds. I ask that you please leave the regulations, statutes and case law alone and concentrate on better training for all Fish and Wildlife agents. I truly believe it will serve in the best interests of both hunters and non-hunters alike and will continue to protect migratory birds for future generations.
I thank you for the opportunity to comment on House Bill 741.
[Statement of Vernon Ricker may be found at the end of the hearing.]
Mr. SAXTON. Thank you very much, Mr. Ricker. Mr. Sullivan.
STATEMENT OF TERRANCE J. SULLIVAN, SECRETARY, LEAGUE OF KENTUCKY SPORTSMEN, PROSPECT, KENTUCKY
Mr. SULLIVAN. Good afternoon, ladies and gentlemen. I am Terry Sullivan of Prospect, Kentucky. I am a Director of the Harrod's Creek Field and Stream Club and Secretary of the League of Kentucky Sportsmen. I have studied and written a good deal on the subject at hand. As a result, I have come to the conclusion that I cannot safely hunt doves. The rules governing baiting are so confusing, ambiguous and unevenly enforced that I am afraid of unintentionally running afoul of these laws. Make no mistake, there is no greater shame that a hunter can feel than to be a convicted game law violator. I will not take that chance.
For the life of me, I cannot understand why such a small issue has been so difficult to resolve. In my home state of Kentucky, dove hunting comprises about five percent of all hunting and angling activities. It has been the largest source of complaint in the Kentucky Department of Fish and Wildlife. Are dove hunters that much more difficult than other hunters and anglers? I don't think so. The problem lies with the rules.
Page 96 PREV PAGE TOP OF DOC
The definition of what is and isn't a bona fide agricultural operation is ill defined. To some degree it is what an enforcement officer says it is. The rules don't give sufficient weight to regional differences and farming practices and local tradition. If the vagueness of the rules isn't bad enough, this one-size-fits-all approach from Washington makes the problem even worse. Add strict liability provisions which presume guilt and a no-win situation for hunters is created.
At least one leader at the U.S. Fish and Wildlife Service knows this all to be true. Noreen Clough, Director of the Fourth Region, made a landmark decision in 1995. She came to an agreement with the states in her region that the Departments of Fish and Wildlife and the state extension services would decide what is an isn't a bona fide agricultural operation and what is and isn't baiting. Since the implementation of this agreement, baiting citations have reduced markedly. Complaints to the Kentucky Department of Fish and Wildlife have diminished significantly. The problem of uneven enforcement and strict liability and the presumption of guilt still exists. That notwithstanding, Ms. Clough's agreement has been a success.
I believe that the intent of this agreement should be codified into this law. It should take the place of the language calling for meaningful discussion between the Secretary of the Interior and the states with regards to what is and isn't baiting.
The U.S. Fish and Wildlife Service is the appropriate agency to macro manage the dove flock. Their national presence and resources make it possible for them to know the condition of the flock in general. Issues like setting bag limits are appropriate macro management decisions and should be left to the Service. Micro management decisions, such as the determination of what is and isn't baiting, are best made by the people closest to the situation. This division of responsibility makes sense.
Page 97 PREV PAGE TOP OF DOC
I have reviewed the testimony that was given on this subject last year. The overwhelming advice from hunters, writers, association and various experts was to codify simple, even handed and understandable laws regarding baiting for migratory fowl. The only people who differed from this opinion were the U.S. Fish and Wildlife Service and other wildlife bureaucrats. It appears that their reason is that by simplifying these laws, removing the doctrine of strict liability and having the presumption of guilt, it will make their job of building a case against the hunter more difficult.
That in and of itself may be the best reason to simplify and clarify these rules. The treaty under which these regulations were drafted was designed first to protect the resource and second the consumptive user of the resource, not to make the job of law enforcement easier. Law enforcement serves people. People do not serve law enforcement.
Finally, I would like to say that the dove flock is in absolutely no danger. From its own pamphlet, the U.S. Fish and Wildlife Service asserts that the flock in the continental United States is 475 million birds, of which approximately 45 million birds fall to hunters guns. I am told that the average life span for a dove is about a year. Given current bag limits, hunting has virtually no impact on the dove flock. The baiting issue has no foundation in conservation of the resource. It is strictly a moral issue.
No one who has testified before this committee last year or at this hearing has asked for more or less stringent rules. We simply ask for rules that we can understand and obey. We simply ask to be presumed innocent, the same as bank robbers and horse thieves. We are not criminals. It appears clear that if Ms. Clough's agreement became the law of this land, this problem would be solved. Maybe then the time and energy that has been wasted on this issue could be turned to more productive issues, and I can get back to dove hunting.
Page 98 PREV PAGE TOP OF DOC
I would like to thank you.
[Statement of Terrance Sullivan may be found at the end of the hearing.]
Mr. SAXTON. Thank you, Mr. Sullivan. Mr. Conner.
Mr. CONNER. Good afternoon, Mr. Chairman. If it please the Chair, I would like to have my remarks that are in print made part of the record, and I will just address a couple of points brought by the Congressman from California.
Mr. SAXTON. That would be fine. Yes, sir.
STATEMENT OF CHARLES CONNER, GERMANTOWN, TENNESSEE
Mr. CONNER. With respect to the changes in the law, I have been hunting waterfowl migratory birds for more than 40 years, fortunately enough, came from the south on a farm where we were able to do this tied directly to production agriculture. Approximately 1979 I became involved with the Federal enforcement of laws that pertain to migratory gamebirds because of the fact that I was publishing a magazine, Waterfowlers World, which dealt strictly with waterfowl.
During the years that have subsequently passed since the late '70's, I began writing about the subject, covering the agents in the field, watching what they did, generally making a study, developing some good friendships along the way and renewing some others. I worked with people that I am sure Mr. Ricker knows and their sons and other agents that I am sure he is familiar with. These agents have done a commendable job in the field.
Page 99 PREV PAGE TOP OF DOC
The problem is that these agents are going to continue to make good cases, I believe, irrespective of what we are told about the case laws being their only access to it. These are the people that will go and put in the extra time and effort to make sure that the individual who creates the adverse impact on the resource is punished. And I believe that is all we are addressing here, is a fact that we are going to change that a little bit. It is not the unsuspecting lawyer from Memphis that goes out there the first time waterfowl hunting and gets cited because he didn't know an area was baited.
Congressman Ambrose brought up the fact that he didn't want to be in the woods, I believe he said, with a man with a gun who couldn't tell whether he was hunting over a baited field. Well, I beg to differ with him. It is very difficult to tell sometimes. And a lot of that has to do with the agricultural procedure that goes on. That is to say in the South if I am seeding wheat at the rate of three bushels an acre and all of a sudden I start seeding it at 15, I am going to do it for a reason other than to grow wheat. So these are some of the things that I believe this bill addresses that are very needed changes.
In conclusion, I would urge the committee to take heed of the testimony of Congressman Breaux. I found it very on point. I appreciate the committee's time.
[Statement of Charles Conner may be found at the end of the hearing.]
Mr. SAXTON. Thank you very much, Mr. Conner. Mr. Bonner.
STATEMENT OF FRED BONNER, CAROLINA ADVENTURE, RALEIGH, NORTH CAROLINA
Page 100 PREV PAGE TOP OF DOC
Mr. BONNER. Thank you, Mr. Chairman. I am going to go along with a lot of the others here and ask if my testimony, written testimony, be entered in the record, and I will deviate from that just a little bit.
I am a Fish and Wildlife biologist by trade. I have been a deputy game warden over in the State of Delaware. I think I have met Mr. Ricker on several occasions. I would also like to state for the record that I am a former poacher and former baiter from Eastern North Carolina. I put out many a bucket of corn for waterfowl when I was growing up. I don't do that now. I wouldn't be caught dead putting out bait for ducks or geese now, and I certainly wouldn't hunt in a baited field. It is against the law. I am saying this to familiarize you with the fact that I know what I am talking about with it. I have never been caught for baiting and hope I never am, but I am scared to death to go in the field right now because of the fact that it is so easy to be caught for baiting waterfowl when you haven't done anything.
When I was a young biologist over in Delaware, the first week I was there I was invited to hunt in a goose field. The president of Ducks Unlimited for the State of Delaware was the host on this farm. I looked over the goose pond as good as I could. I asked the man, I said please, I am new here, please, there is no bait here. He said certainly not. We went on and hunted that day. The next day the Federal game wardens raided that pond. Norman Wilder, who was director of Fish and Wildlife at that time, was in there that day, and I guess this was the person that the Fish and Wildlife agents wanted.
What I had not been aware of and no matter how much I would have looked for bait in that situation I would never have known it was there. He was using what is called a duck plate. That is a washtub that you put out in the goose pond full of shelled corn that the geese come in and they feed on it. They go in and take this washtub out, take it to the barn before the hunters get out there. There is no bait there. There is no way you could possibly know it was there. And yet I would have been just as guilty as the other ones were in this case when they raided it to catch Norman Wilder. Bob Halstead, incidentally, Mr. Ricker, was the game warden that was handling that case at the time.
Page 101 PREV PAGE TOP OF DOC
I have—I am currently editor of a magazine in North Carolina. I have a syndicated outdoor column. Several years ago I had a syndicated radio show. It covered Virginia and North Carolina radio networks. I had a call one day from a woman from P.E.T.A. I think everybody knows who P.E.T.A. is. She said Mr. Bonner, we are getting ready to do something we would like for you to give us some publicity on; we are going to take a bucket full of corn and go out in front of every waterfowl blind we can find in North Carolina and Virginia and throw it in front of every blind we can find, then we are going to call the game wardens and tell them what we have done; we haven't broken any law, we are feeding the birdies, perfectly legal, but we are going to shut waterfowl hunting down. I said lady, I am not going to give you any publicity on that, I am sorry.
I don't know whether she did that or whether she didn't do that. I never will know, but my point is that the anti-hunters, the P.E.T.A. bunch, whatever, can literally shut waterfowl hunting down. You are responsible even though all the corn is gone. Ten days after it is gone you can't hunt there. This happens very commonly.
Bill Wagner, Director of Fish and Wildlife in Delaware years ago, somebody had a vendetta against him. The morning before waterfowl season, bright and early in the morning before he ever got out there, they went out there and just threw a bucket full of corn in front of his blind. They put him out of business for a minimum of ten days.
We approached this subject in North Carolina with our North Carolina Waterfowl Resources Commission several years ago. In North Carolina we have a different state law. We are responsible for bait within 300 yards of the blind where we are hunting. Again, we had the no liability—strict liability, rather, standard there, but the State of North Carolina has changed that. If a North Carolina game warden now finds you hunting over a baited area within the 300 yards, you are given a temporary ticket. This ticket is then turned over to his superior and they investigate this case. If you should have known and you made every reasonable effort to see if bait was there, then that ticket is torn up. If you have not looked carefully in the judgment of the game warden's supervisor, then you will get a ticket and the fine is very stiff.
Page 102 PREV PAGE TOP OF DOC
And we are pretty well satisfied with our law in North Carolina. 300 yards is a reasonable thing. You can look there, but can you imagine, that is 600 yards in diameter around your blind you are responsible for. That water might be 20 feet deep out there. How are you going to check this area for bait not that you put there, necessarily, but that somebody else put there that would be out to get you for some reason? And this is happening, and the anti-hunters are going to realize this. They are realizing this and they are using this. They can shut down hunting for migratory birds by doing that.
Thank you, Mr. Chairman.
[Statement of Fred Bonner may be found at the end of the hearing.]
Mr. SAXTON. Well, thank you. I don't know that we need to clarify this situation too much more. I just have to ask Mr. Ricker one question. First of all, I appreciate the job you fellows do. It is difficult and we support you, Mr. Ricker. I just have to mention this one sentence in your written testimony that I noticed when I was reading this before I came over here this morning. It says—the sentence in your testimony says, ''have I ever charged someone for hunting over bait that I truly believe they didn't know the area was baited? Yes, but these were very few and far between.'' I don't understand why anybody would ever charge anybody with baiting where they were convinced that somebody didn't know the bait was there.
Mr. RICKER. The way the law is, the way the law is, it is impossible and it would be impossible to try to determine actually if everybody knew the bait was out. People that bait these areas are not going to tell you if they know the culprit is going to be the only person that baited the area. They are not going to voluntarily tell you yes, I put it there. In my time on, I had a way with people after they were caught it didn't matter whether they would tell me the truth or not, because they were going to be charged anyway. If a fellow had grain in back of his truck, grain in his boat, I had seen him at the area two or three days before, I had watched the birds—we don't have the luxury of having the number of Fish and Wildlife agents on the Eastern Shore, as you saw in my written testimony, that we had back in the '60's and '70's. If we did, then maybe we could do away with the strict liability and we could have a game warden in the sky behind every blind and we could prove what hunters knew. But right now we just don't have that.
Page 103 PREV PAGE TOP OF DOC
Mr. SAXTON. Well, I want you to charge people that are baiting. I mean, that is what this law is all about. We want you to do that. Every member of this committee, I will bet you, wants you to charge people who are baiting, but that is not what this sentence says. This sentence says, ''have I ever charged someone for hunting over bait that I truly believed they didn't know the area was baited?''
Mr. RICKER. And I would say yes. I have in my career. I have probably charged people for hunting over bait that truly didn't know. I have caught 1000 people in my career hunting over bait. I have heard the same thing from 1000 people, nobody knew the bait was there.
Mr. SAXTON. Couldn't you issue them a warning or something?
Mr. RICKER. Sir, if we did that, migratory birds would be depleted from the Eastern Shore, which they nearly are.
Mr. SAXTON. The people who you believe truly didn't know the area was baited?
Mr. RICKER. That is correct. That is absolutely correct. They are few and far between. Probably on both hands in my whole career out of 1000 people did I truly really didn't believe they knew the bait was there. But I couldn't prove that they did.
Mr. SAXTON. Well, I am glad there were a few that you charged only that didn't know the bait was there, but I just—I wouldn't have charged any. If I really, truly thought somebody didn't know the bait was there, I will be damned if I would charge them. I don't understand.
Page 104 PREV PAGE TOP OF DOC
Mr. RICKER. The law does not require that. The Fourth Circuit has argued that time after time after time. We can't prove what that individual knows. I am only assuming in my mind they didn't know. Maybe they were good. Maybe they could fake me out. Maybe they truly did know, I don't know, but in my mind, no, I believe there was probably a handful of people or so that I truly charged that didn't know the bait was there. But I could not prove that. Maybe they foxed me.
Mr. SAXTON. Well, I wish I could chat with everybody longer about this, because it is really an interesting and important subject, but I have got to go. We have been here for the better part of three hours, in fact more than three hours, and I have got people waiting for me in my office. So I thank all of you for coming from your homes to be here to share this information and your experiences with us.
[Letter from Stephen Oelrich may be found at the end of the hearing.]
Mr. SAXTON. The hearing is adjourned. Thank you very much.
[Whereupon, at 1:20 p.m., the Subcommittee was adjourned; and the following was submitted for the record:]
[Additional material submitted for the record follows.]
INSERT OFFSET FOLIOS 1 TO 122 HERE