STATEMENT OF SENATOR THAD COCHRAN
before the SENATE ENVIRONMENT AND PUBLIC WORKS COMMITTEE
September 29, 1998

Mr. Chairman, thank you for the opportunity to appear before the Committee today. I am particularly pleased to join my distinguished colleague from Louisiana.

In November of last year, I joined him in introducing legislation to address problems that hunters in our states have experienced with the current regulations issued by the U.S. Fish and Wildlife Service concerning baiting.

The House of Representatives recently passed legislation dealing with the issue of strict liability associated with baiting. However, this is only one of the three issues addressed in the legislation proposed by Senator Breaux and me.

Currently, a hunter that is pursuing migratory birds who has no knowledge of a baited situation and who cannot reasonably determine the presence of bait (or that hunted birds are influenced by bait) can be cited by a law enforcement official. In other words, in an attempt to address intentional violators, the regulations compromise the truly innocent hunter.

The U.S. Court of Appeals for the Fifth Circuit, which includes the states of Louisiana, Mississippi, and Texas, has rejected a strict liability interpretation of the regulation, requiring at a minimum that the presence of bait could reasonably have been ascertained by the conscientious hunter. According to the court, strict liability renders criminal conviction "an unavoidable consequence of duck hunting." [United States v. Delahoussaye, 573 F.2d 910, 913 (5th Cir. 1978)].

I agree with the House that since the Migratory Bird Treaty is an international agreement, the regulation should be available to all states, not just my state, Senator Breaux's state, and Texas. I support the House language, which is also a component of our Bill.

The House and Senate version's were basically identical in the beginning, but due to time constraints, only strict liability was addressed in the House version. Our bill also addresses two other very important issues.

Active management of native vegetation occurs throughout the United States, but is most common in California's Central Valley, marshes of the Great Lakes, and Mississippi River habitats in Illinois and the surrounding states. In the rice prairies of Texas, the Lower Mississippi River Valley, and the Low country of South Carolina, moist-soil management is the single, most important practice used to improve natural habitat for waterfowl and other migratory birds

According to the International Association of Fish and Wildlife Agencies, practices such as water-level manipulation, water circulation techniques, impounding water, ditching, salinity control, mowing, shredding, discing, roller chopping, grazing, burning, trampling, flattening, herbicide treatment, and wetland-associated plant propagation techniques do not create the kind of lure or attraction to waterfowl typically associated with the dumping of grain.

However, the manipulation of native vegetation by waterfowl biologists, landowners, and hunters has placed waterfowl hunters in jeopardy of violating current regulations. According to Bill Gaines, Director of Government of Affairs of the California Waterfowl Association, "Confusion over the meaning and enforcement of these regulations is compromising the willingness of many landowners to employ preferred waterfowl habitat management practices on their lands."

Eric Frasier, Executive Director of the Wetland Habitat Alliance of Texas. states, "These native and agricultural plant communities are vital in meeting the nutritional needs of waterfowl and other wetland-dependent birds." He also states that such an interpretation discourages wetland managers, landowners, and hunters from conserving, restoring, and/or enhancing natural wetlands. The legislation we introduced in the Senate would preserve landowners' ability to manage wildlife habitat without the threat of prosecution.

The third area our bill addresses is that of agricultural practices. This provision primarily affects migratory game birds other than waterfowl - such as doves.

The major problem with enforcement of dove baiting regulations has been the lack of a uniform understanding among landowners, farmers, and hunters as to what constitutes "a bona fide agricultural operation or procedure," "agricultural planting," or "soil stabilization practice." Landowners and hunters need clarification in terms of what practices meet these definitions, which may vary substantially in various parts of the country. Our Bill simply allow state fish and wildlife agencies to determine what is "normal," or "bona fide" with respect to these practices.

We have about 83,000 dove hunters in my State of Mississippi. According to the March 25, 1998, Federal Register, "The (U.S. Fish and Wildlife) Service is proposing a prohibition that would apply to the hunting of all migratory game birds (including doves) over any area that has been planted by means of top sowing (including aerial application) where seeds remain on the surface of the ground as a result. The Service is proposing that this prohibition apply regardless of the purpose of the seeding, and proposes to explicitly exclude top sowing from the proposed definition of "normal agricultural and soil stabilization practice." In a letter I received yesterday from John Frasier, Executive Director of the Wetland Habitat Alliance of Texas, this one practice is vital to supporting our waterfowl populations.

Let me conclude Mr. Chairman, by saying that there is a tremendous amount of misinformation about the bill we have proposed and is pending in this Committee. A leaflet circulated by the Humane Society of the United States opposing this legislation wrongly states that it will increase the annual waterfowl harvest by hunters. There are some who don't want any hunting and will say anything to further their cause. I will not give credence to this statement other than to reemphasize to you it is wrong.

I very much appreciate the opportunity to appear before the Committee. I support the bill passed by the House. However, our bill, S. 1533, the Migratory Bird Treaty Reform Act, addresses all three issues that hunters and landowners face. I hope you will act on it favorably in the remaining days of this Congress.