Laura C. Hood, Director, Science Department
Defenders of Wildlife
Statement on H.R. 2863: Baiting and the Migratory Bird Treaty Act
Before the Senate Committee on Environment and Public Works
September 29, 1998

Mr. Chairman, thank you for the opportunity to testify before your Committee this morning regarding restrictions against hunting by using bait, as prohibited under the Migratory Bird Treaty Act of 1918. My name is Laura Hood and I am Director of the Science Department at Defenders of Wildlife (Defenders), a non-profit conservation advocacy group consisting of over 250,000 members and supporters. Defenders is headquartered in Washington D.C., with field offices in Montana, Alaska, Oregon, Arizona, and New Mexico. Defenders' mission is to protect native wild animals and plants in their natural communities.

As an organization that is committed to science-based protection and sustainable management of migratory birds, Defenders of Wildlife opposes H.R. 2863. By changing the standard of proof for prosecuting hunters who use bait from strict liability to a "knew or should have known" (i.e., scienter) standard, H.R. 2863 would cripple enforcement of this important prohibition against baiting. In effect, this change would provide a huge loophole for hunters who use unethical baiting practices, overturn 62 years of case law, and negatively impact bird populations across the country. Most importantly, this legislative change requires careful scrutiny and expanded analysis of its potential impact on bird populations, not accelerated decision-making by Congress. Finally, legislative action is not necessary right now, because the U.S. Fish and Wildlife Service, working with a number of conservation groups and the public, is in the middle of rule-making on this issue.

H.R. 2863 with its "knew or should have known" standard of proof is opposed by numerous conservation organizations, including the American Bird Conservancy, the Izaak Walton League, the National Audubon Society, and the Humane Society of the U.S. Like Defenders, a number of those groups are not anti-hunting organizations. In addition, the Secretary of Maryland's Department of Natural Resources opposes the legislation, and has sent a letter on the matter to the entire Maryland Congressional Delegation. In my comments today I will emphasize three key points. First, changing the strict liability standard will curtail enforcement against baiting. Second, there is no immediate crisis to address through legislation, instead we must take enough time to examine the potential impacts of this change on migratory bird populations and the prevalence of baiting. Third, there is no need for legislation because the matter is being dealt with administratively through an open, public process.

First, I am concerned that enforcement against hunters who use bait will be crippled by this legislative change. For over 60 years, federal courts have interpreted the MBTA as imposing strict liability for misdemeanor violations, including hunting birds over bait. By changing the strict liability standard to the scienter standard (that the hunter "knew or should have known" about the bait), H.R. 2863 will make it very difficult for enforcement officers to prove that a hunter had such knowledge. As U.S. Magistrate Judge Frederic N. Smalkin, District of Maryland, wrote in a statement to Congress in 1984,

"... in addition to being a shield for the innocent, such a requirement could be a windfall for the guilty, in view of the difficulty of proving scienter beyond a reasonable doubt ... the Government would have to come up with some direct proof of participation in the baiting, ownership of the property, or some other circumstance directly proving scienter if it were made an express element of the offense. It would appear to me from my practical perspective that the requirement of proving scienter would effectively curtail enforcement of the prohibition of baiting."Judges have repeatedly upheld the strict liability standard, in light of the practical difficulties of proving that a hunter knew about the presence of bait. Over the last 62 years of case law, hunters and enforcement officers have understood this unambiguous and effective standard of proof.

As judges, wildlife officers, and the Fish and Wildlife Service have stated repeatedly, passing H.R. 2863 will protect hunters who purposely bait birds to the gun. Hunting over bait violates the spirit of fair chase and is unsportsmanlike. Birds can be so attracted to bait and focused on the abundant food resources that they do not perceive danger from nearby hunters. This legislation would protect hunters who easily kill birds that are virtually drunk from food -- if caught, the hunters only have to claim that they did not know that bait was present. Other hunters will actually have a disincentive to find out if a field is baited before they hunt there. Moreover, hunters using bait may also exceed their bag limits. In light of the difficulties of enforcing baiting restrictions with the scienter requirement, it is no surprise that the Federal Wildlife Officers Association also opposes H.R. 2863.

Part of the wildlife officers' concern is that the doctrine of strict liability applies not only to baiting prohibitions, but also to other forms of take of migratory birds. They worry that if H.R. 2863 becomes law, judges could rule in the future that the new scienter requirement extends to other types of cases, including all of the misdemeanor provisions of the Migratory Bird Treaty Act. This could have far-reaching consequences, indeed. For example, birds are attracted to open oil pits, and when oil companies do not cover the pits, hundreds of birds can die in them. In many cases, it would be difficult to prove that the company knew that their open pits would kill migratory birds, and enforcement would be severely curtailed. This can apply to oil spills as well. In 1996, a terrible oil spill occurred along Rhode Island's coast. For eight days, dead and injured migratory birds washed up on shore and were retrieved -- the final count of dead birds that could be recovered was 300. In January 1998, the owners of the oil barge were sentenced to a $3 million fine for violating the Migratory Bird Treaty Act. The strict liability standard was essential to enforcement of the Act in that case. Do we want this to happen again?

In addition to poisoning by oil spills, strict liability is important for penalizing companies that kill birds through pesticide poisoning, building construction, and power line strikes. Awareness of the strict liability standard induces companies in these and other industries to take measures to prevent killing migratory birds. Changing the strict liability standard could result in an increase in all kinds of activities that cause bird kills.

In light of the potentially dramatic effects of changing the strict liability standard and the opposition by conservation groups and wildlife officers, we must ask ourselves why this change is being considered. There is no crisis that necessitates a drastic change by Congress. True, we must be sympathetic to the hunter who was invited to hunt on someone's property and then receives a misdemeanor for baiting when he or she did not know that the bait was present. In cases like these, however, the judicial system provides a crucial check by minimizing the sentence for such an unwitting offender. We simply do not need a quick but potentially far-reaching change right now. Instead, we have every reason to carefully consider the arguments for and against the change. The U.S. Fish and Wildlife Service must be able to analyze how this change is likely to affect the prevalence of baiting and how it will impact bird populations. This analysis should include the combined effects of changes in hunting regulations and widespread habitat destruction and degradation. An Environmental Impact Statement (EIS) under the National Environmental Policy Act would be warranted if this change were to be proposed administratively. An EIS would address all of these factors and compare their likely effects with the status quo.

In addition, the U.S. Fish and Wildlife Service is in the middle of rule-making on this issue, and a legislative change right now would undermine that process. The agency has listened to concerns on all sides of this issue and published a proposed rule for public comment on March 25th. The public comment period will expire on October 1. Legislation on baiting would explicitly preempt the agency's decision-making on baiting.

The Fish and Wildlife Service's monitoring of duck populations indicates that now is a time to take caution with managing waterfowl populations. The Waterfowl Breeding Survey, conducted by U.S. and Canadian officials since 1955, indicates that through 1996 the long-term population of Northern Pintails is down 43% and Scaups are down by 36%. The American Black Duck population also has experienced a significant long-term decline. For the first time in history, the Canada Goose hunting season in the Atlantic Flyway has been closed since the 1995-1996 season because of a steep decline in their breeding population. The breeding survey for these geese revealed a decline from 180,000 nesting pairs in 1988 to 29,000 pairs in 1995 (when the season was closed). Overhunting was identified as a major factor in that decline. Given these population declines and the increasing threat of habitat destruction throughout the ranges of migratory waterfowl, taking measures that would increase baiting and bird kills is especially risky.

For all of these reasons, changing strict liability for hunters who use bait is not the solution to a problem faced by a small number of innocent hunters. For decades, Defenders of Wildlife has defended the Migratory Bird Treaty Act because it is one of the most important laws protecting wildlife in the U.S. The migratory bird treaties with Canada, Mexico, Great Britain, Japan, and Russia recognize that migratory birds are a valuable, multi-national resource that must be protected across borders from numerous threats. Any change to the Migratory Bird Treaty Act should be carefully examined and judged as to whether migratory birds will continue to be protected and managed sustainably. Liberalizing baiting restrictions will likely increase the number of hunters who use bait, which will considerably complicate management of this important resource and put bird populations at risk.