TESTIMONY BEFORE THE SENATE ENVIRONMENT AND PUBLIC WORKS COMMITTEE
ON H.R. 2863, THE MIGRATORY BIRD TREATY REFORM ACT OF 1998
by BRENT MANNING, DIRECTOR, ILLINOIS DEPARTMENT OF NATURAL RESOURCES
for the INTERNATIONAL ASSOCIATION OF FISH AND WILDLIFE AGENCIES
September 29, 1998

Good Morning, Mr. Chairman. I am Brent Manning, Director of the Illinois Department of Natural Resources, and chairman of the IAFWA ad hoc Committee on Baiting. Thank you for the invitation to testify today on behalf of the Association on this important issue regarding the regulation of hunting of migratory game birds. The Association supports the change in the standard for baiting violations from strict liability to one of "knows or reasonably should know" as reflected in H.R. 2863, plus the addition of liability for those who place or assist in the placement of bait so as to create a "baited area." We believe this change will bring needed consistency to law enforcement, while continuing to protect the migratory bird resource.

The Association, founded in 1902, is a quasi-governmental organization of public agencies charged with the protection and management of North America's fish and wildlife resources. The Association's governmental members include the fish and wildlife agencies of all 50 states, the Commonwealth of Puerto Rico, and 8 Canadian provinces and 2 territories. The Association has been a key organization in promoting sound resource management and strengthening federal, state, and private cooperation in protecting and managing fish and wildlife and their habitats in the public interest.

The International Association of Fish and Wildlife Agencies, since its founding in 1902, has been a strong and consistent supporter of migratory bird conservation. No organization has been more dedicated to the protection, restoration and sustainable use of the waterfowl resource than this Association. As you are aware, the State fish and wildlife agencies are public trustees of fish and wildlife resources within their borders and have statutory authority and responsibility for conserving these resources for the use and enjoyment of present and future generations of the people of the States. State jurisdiction for migratory birds is concurrent with the U.S. Fish and Wildlife Service (FWS). The conservation of migratory birds is thus of vital interest to our Association and the citizens of this country who enjoy these resources.

In most States through a cooperative agreement between the FWS and the State fish and wildlife agencies, State conservation officers enforce Federal conservation laws and regulations. State conservation officers often supplement a Federal law enforcement staff of only one or two officers per state. Thus, State conservation officers are frequently more familiar with local agricultural practices, bird populations and landowners. It seems important to us that the baiting regulation language be of such clarity and certainty that State and Federal law enforcement officers apply it with a significant amount of consistency. It is also important that hunters, landowners, outfitters and guides understand and respect the rules. We believe H.R. 2863 provides that consistency in the liability standard for baiting violations.

During the early years of our Association, we were instrumental in calling for and contributing to the drafting of the Migratory Bird Treaty with Great Britain on behalf of Canada, which was ratified in 1916. We saw then the need for federal involvement in the conservation and regulation of the take of migratory birds. The Migratory Bird Treaty Act was subsequently signed into law in 1918. This was followed by the passage of the Duck Stamp Act in 1934 and the Pittman-Robertson Act in 1937, both of which established funding for the conservation of these resources, and in which the Association was actively involved. The Association was primarily responsible for establishment of the four administrative flyways in 1947 to coordinate information and recommendations from the States and Canadian provinces to the U.S. federal regulatory process, and worked actively to secure passage of the North American Wetlands Conservation Act of 1989, Farm bills, and others to facilitate habitat conservation. In short, the Association has a long history of key involvement in issues regarding the protection and management of migratory birds.

For the past two years, the Association's ad hoc Committee on Baiting has undertaken an exhaustive review of the migratory bird hunting regulations that pertain to baiting (50 CFR 20). Waterfowl biologists, wetlands managers, wildlife enthusiasts, agency directors, law enforcement officers and hunters provided the IAFWA with input and advice. The recommendations we have submitted to the FWS as they promulgate a rule change on this issue protect the migratory game bird resource, clarify the intent of the regulations and promote the management of natural wetlands communities for the benefit of migratory birds and other wildlife.

The one issue that the FWS has declined to address in its proposed rule is that of strict liability, which is the subject of H.R. 2863, and this hearing today. The Association supports the replacement of the strict liability standard with the standard adopted in 1978 by the U.S. Court of Appeals for the Fifth Circuit (commonly referred to as the "Delahoussaye" decision). The Association's support for this change, and the other recommendations of the ad hoc Committee on Baiting, were recently endorsed by our membership on September 14, 1998, in Savannah, GA.

Under the strict liability standard, individuals unknowingly hunting waterfowl or doves a mile from bait - and without any knowledge of the presence of that bait -- have been cited. We consider this unreasonable, unnecessary and unacceptable. It has been incorrectly suggested that U.S. courts have universally embraced the standard of strict liability. The Sixth Circuit in 1984 characterized the standard in the following way:

"We concede that it is a harsh rule and trust that prosecution will take place in the exercise of sound discretion only." United States v. Catlett, 747 F.2d 1102, 1105 (6th Cir. 1984).

Furthermore, in the 1978 Delahoussaye case, the U.S. Court of Appeals for the Fifth Circuit rejected the strict liability interpretation. Instead, the Court required at a minimum that the presence of bait could reasonably have been ascertained by the conscientious hunter. The Court went on to say:

"Any other interpretation would simply render criminal conviction an unavoidable occasional consequence of duck hunting and deny the sport to those such as, say, judges who might find such a consequence unacceptable." United States v. Delahoussaye, 573 F.2d 910, 912-913 (5th Cir. 1978).

The Fifth Circuit does not follow the strict liability standard to this day.

Our Association's recommendation is consistent with the Fifth Circuit's decision. Liability should require that a hunter knows or reasonably should know that an area being hunted is baited. Our proposal is essentially identical to H.R. 2863. This bill does not mean that hunters will have a "free pass" to hunt over a baited field. Quite the contrary. Hunters would be responsible for taking reasonable efforts to ensure they are not attempting to take migratory game birds by the aid of bait or baiting. Indeed, as the court in Delahoussaye stated, a hunter can reasonably be asked to take the precaution of clearing the area before he or she hunts. Hunters should ask the guide, manager or landowner about the presence of bait, inspect the hunting area personally and assess the behavior of the hunted birds. Under the proposed standard of liability, the hunter will be judged, not just on whether he or she knew the area was baited, but also on whether he or she should have known the area was a baited area.

I have heard it said that this bill will require state and federal agents to prove hunter knowledge and intent. Allow me to set the record straight. This bill would not require an officer to prove the hunter's intent. Nor will this bill require knowledge on the hunter's part. It merely requires that the hunter should reasonably have known the area was baited.

I have also been told that all a hunter would have to do to avoid a citation is to claim not to have known about the presence of bait. That is also not accurate. At issue here is whether the hunter should have known - either by an inspection of the area or by the behavior of the birds. The issue is not whether the hunter did or did not in fact know.

Some have complained that it will be impossible to obtain convictions under the Delahoussaye standard. We have seen no data to support that claim and are not aware of any significant difference in rates of conviction or pleas of guilty between states currently under the Delahoussaye standard and those that are not. Let me provide one example. Fish and Wildlife Service agents are on record stating that migratory bird baiting cases have dropped precipitously in Louisiana during the last decade. The agents attribute the decline to better state/federal cooperation, negative publicity about the extent of baiting and tougher penalties handed down by federal judges and magistrates. I would like to remind the committee that this "crack down" on illegal baiting and other related activities took place under the "knew or should have known" Delahoussaye standard of liability as proposed by this bill.

It has also been alleged that any standard other than strict liability will measurably and seriously harm the migratory bird resource. There is no basis for that concern. Allow me to provide one example why. The Fish and Wildlife Service's current approach to regulating the impact of harvest on ducks is known as Adaptive Harvest Management or AHM for short. AHM takes into account variations in harvest rates caused by fluctuations in hunting pressure, habitat, bird populations, season length and bag limit. This system makes annual adjustments for these factors. No waterfowl expert with whom we've consulted believes the adoption of the Delahoussaye standard will result in a measurable increase in harvest. But even if it did - and again there is absolutely no evidence to support that prediction - AHM would compensate by prescribing shorter seasons or reduced bag limits or both.

Opponents of this bill have claimed that the proposed minimum form of scienter would apply to all other "takings" of migratory game birds. Examples such as a mining company using cyanide leach, a farmer using harmful pesticides and a refinery spilling oil have been offered. This bill eliminates the strict form of liability in baiting cases and replaces it with a minimum form of scienter in such cases - not in all other forms of "takings." Any suggestion to the contrary is incorrect.

In 1990, a Law Enforcement Advisory Committee created by the Fish and Wildlife Service found that enforcement of the "baiting" regulations was "confusing" and "too complex," and recommended that an effort be made to clarify and simplify the existing regulations. Earlier this year the Service inaugurated a rulemaking proposal to "clarify and simplify" the baiting regulations "in response to public concern about interpretation and clarity of the regulations" (63 Fed. Reg. 14415, March 25, 1998). The Service noted that it had received comments from State wildlife management agencies, the general public, hunters and conservation organizations that the baiting regulations "are outdated, unclear, arid difficult for the general public to interpret and understand." Specifically addressing the strict liability standard, the Service recognizes in its current rulemaking proposal that "application of the standard to baiting regulations is of concern to many hunters." Nevertheless, the Service proposes no change in the application to hunters of the strict liability standard.

I referred above to the Catlett decision where the U.S. Court of Appeals for the Sixth Circuit characterized strict liability in this context as a "harsh rule." The court went on to say:

It is for Congress and the Secretary of the Interior to establish and change the policies here involved." 747 F.2d at 1105.

Because the Fish and Wildlife Service declined to take a "hard look" at the application of strict liability to hunters in baiting cases, Congress should do so.

Our Association also supports the creation of a new violation of the Migratory Bird Treaty Act as proposed in this bill. We share the belief that hunting club owners or operators who place or direct the placement of bait to attract migratory game birds to unknowing hunters should be subject to prosecution. This unethical and unfair exploitation of our migratory bird resource, undertaken for personal gain or profit, should be expressly prohibited.

The International Association of Fish and Wildlife Agencies appreciates the opportunity to address you today. I offer the Association's as well as my personal assistance in reaching a goal I believe we share -- common sense regulations that protect the migratory game bird resource and the future of responsible hunting. Thank you.