Testimony of Senator John Breaux of Louisiana
before the Senate Environment and Public Works Committee
Tuesday, September 29, 1998

Thank you for inviting me to speak in support of H.R.2863, the Migratory Bird Treaty Reform Act of 1998.

More than 80 years ago, Congress enacted the Migratory Bird Treaty Act, which implemented the 1916 Convention for the Protection of Migratory Birds between Great Britain, for Canada, and the United States. Since then, the United States has signed similar agreements with 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. As a member of the Migratory Bird Conservation Commission, I recognize the importance of protecting and conserving migratory bird populations and habitat.

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 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 a 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 believe it is fundamentally unfair for the federal government to hold American citizens criminally liable for something they could not have reasonably known. Hunting over a baited field does not impose a civil penalty. The baiting regulation holds a person criminally liable -- with all the negative implications of a criminal charge -- in situations where the person could not have reasonably known that what he was doing or attempting to do was criminal.

The U.S. Fish and Wildlife Service believes this bill would make baiting offenses more difficult to prosecute. The Service believes it's more difficult to make a case if they have to prove that a hunter had actual knowledge of the bait, or that a hunter, with an exercise of reasonable diligence, could have become aware of the bait. My response is that we are talking about American citizens whose lives and families are being subjected to criminal penalties and prosecution. The maximum penalty is a $5,000 fine and six months in prison. Making a case may become a little more difficult for the Service. However, I would suggest that, under this nation's bedrock principle that a person is innocent until the government proves him guilty, H.R.2863 restores the appropriate balance.

Keep in mind that, under the Service's current baiting regulations, bait has to been removed from the area 10 days before you began hunting. In other words, if an area is baited on October 1st and the bait removed on October 3rd and you happen to hunt there October 12th (nine days later), with absolutely no knowledge of what has happened October 1st through 3rd, you are strictly and criminally liable for hunting over a baited field. You may not have been in the country nine days earlier, but you are guilty.

I represent the State of Louisiana, which is at the bottom of the funnel of most of the ducks coming through the Central and Mississippi Flyways. This is an important issue in my State. However, I would suggest that it is an important issue for all of us as Americans to make sure that the criminal laws of this nation are fair.

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. believe we should be as tough as we possibly can on people who knowingly violate our game laws. People who intentionally bait a field to attract migratory waterfowl should have the book thrown at them. This legislation would not change that.

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. The Migratory Bird Treaty Reform Act of 1998 simply removes the strict liability interpretation presently followed by most federal courts. It establishes a standard that permits a determination of the actual guilt of the defendant. If the facts show the hunter knew or should have known of the bait, liability, which includes fines and possible incarceration, would be imposed. However, if the facts show the hunter could not have reasonably known bait was present, the court would not impose liability or assess penalties. This is a question of fact determined by the court based on the evidence presented.

Under this bill, the responsibility is still squarely on the shoulders of the hunter. The hunter must act reasonably. He must ask the host if the field is baited. He must go out on the field and conduct a serious search of the grounds looking for signs of bait.

The Migratory Bird Treaty Reform Act also makes the act of baiting unlawful. Right now, baiting is not illegal. Hunting over a baited field is illegal. This bill ensures that a person placing bait, or directing the placement of bait, to lure migratory birds to an area will be cited for baiting even though he or she is not hunting.

The Migratory Bird Treaty Reform Act will provide guidance to landowners, wildlife managers, hunters, law enforcement officials, and the courts on the restrictions on the taking of migratory birds. It accomplishes that without weakening current restrictions on the method and manner of taking migratory birds. It does not weaken protection of the resource.

Again, I thank Chairman Chafee, Senator Baucus and the members of this Committee for the opportunity to be heard, and I urge everyone to join me in supporting the Migratory Bird Treaty Reform Act of 1998.