Testimony of TANYA K. METAKSA, Executive Director
National Rifle Association
Institute for Legislative Action
on H.R. 2863 Migratory Bird Treaty Reform Act of 1997
before the Committee on Environment and Public Works
U.S. Senate
September 29, 1998

Mr. Chairman, on behalf of the National Rifle Association of America, I appreciate the opportunity to testify on H.R. 2863, the Migratory Bird Treaty Reform Act. This Act enjoys the wholehearted support of an Association that has safeguarded hunting and scientific wildlife management for more than a century.

With over 2 million hunter-members, NRA believes ardently that the conservation of our migratory bird resource is vital. It is a core NRA belief that hunters are called to be faithful stewards of America's wildlife bounty. Hunting is an American cultural heritage -- one of our nation's most precious -- but this noble pursuit requires us to commit ourselves to sustaining healthy, vibrant wildlife populations. In that spirit, the NRA embraces laws and regulations that safeguard both sport hunting and scientific wildlife management. That includes laws carrying criminal sanctions, and NRA has always supported fair, consistent and effective enforcement of those laws throughout our nation.

Eighty years ago, hunters clamored for passage of the Migratory Bird Treaty Act of 1918. Small wonder. At that time, wildlife was being eradicated, and sport hunters were in danger of losing not only their noble pursuit -- but an even greater nobility -- America's wildlife resources. The problem was not the American hunter. The American hunter numbered among the victims. The problem was the voracious appetite of the marketplace at the close of the 19th century. Mercenaries for both the marketplace and the milliners of the era all but consumed entire populations of white-tail deer, bison, waterfowl and other species. It has taken decades for American hunters and our allies in wildlife biology and game management to bring these species back, some from the brink of extinction.

While they migrated, when they wintered over, wherever they were seen, waterfowl were slaughtered. The most threatened species of the era are now the very populations hunters have worked so hard to nurture -- snow geese, wood ducks, Canada geese. The marketplace mercenaries used devices like the "punt gun." Weighing as much as 120 pounds with a bore of up to 2 1/2 inches, it could bring down as many as 100 birds with a single shot. The NRA termed this "slaughter." Clearly, it was not hunting. Worse yet were battery guns, crude boxes akin to organ pipe containments. From the boxes protruded a dozen or more punt gun barrels. In the 1870s, as many as 15,000 canvasbacks were taken each day by market mercenaries on the Chesapeake Bay alone.

That was the backdrop for the 1918 Act. I urge this august body to consider who made conservation history in this dark era by breathing life into the 1918 Act. It was hunters -- hunters motivated by the very core principle of the outdoor ethic - respect for wildlife.

Indeed, the heart of the American hunter was at the very center of a wave of legislation that swept America at the time. Hunters led this movement. Hunters organized their fellow hunter-conservators, mounting what we would term today as grassroots pressure on elected representatives to stop the strip mining of America's sharply dwindling wildlife resources. But when Maryland established "rest days" to ease waterfowl hunting pressure in 1872, the marketplace mercenaries took no rest. When the hunters and naturalists of New England pressured legislatures there to list wood ducks as protected, the mercenaries either ignored the listing or simply moved their batteries elsewhere.

Because of their migratory nature, waterfowl could not be effectively conserved by one action in one state and a similar action in another. Federal regulation seemed the most appropriate course. Among the results -- the Migratory Bird Treaty Act of 1918.

Eighty years have transpired since hunters bequeathed this nation a landmark, visionary wildlife conservation law. And in those eighty years, just one aspect of this sweeping regulation stands out as the center of perpetual controversy. CFR Part 20.21. A prohibition of hunting over, or with the aid of, bait.

While the words themselves do not embody a strict liability standard of guilt, most courts have treated violations of the baiting prohibition as a strict-liability criminal offense. The 1918 Act created a system to conserve wildlife and protect sport hunting. But today, the "system" the American hunter helped put in place does not care who placed the bait. Shouldn't it? To that "system," it doesn't matter where the bait lies with respect to the hunter's location. To that "system," it doesn't matter if the bait actually lures a single bird to the hunting site. All that matters is whether an officer testifies that, yes, bait was present. If so, the hunter is guilty.

Strict liability does not allow the hunter to present convincing evidence that he or she did not know or reasonably could not have known that bait was present. The great great grandchildren of the sportsmen and naturalists responsible for this 80-year-old Act are being deprived the opportunity to mount any defense -- a condition their forebears would find absurd and unacceptable.

Over the years, we are thankful that Congress has held hearings on the need to reexamine the issue of strict liability. In 1990, the U.S. Fish and Wildlife Service established a Law Enforcement Advisory Commission to look at an array of enforcement issues within the Service's jurisdiction. One of the Commission's recommendations: create a task force to review the baiting regulations. Action taken? None. The task force was never created.

Critics of H.R. 2863 say reform of the 1918 law is unnecessary. They suggest that if American hunters have any problems with the baiting regulations, the rulemaking process is the avenue to address those problems, not the legislative process. This has a very reasonable ring to it, but when it comes to the serious issue of strict liability, the ring is hollow indeed.

In 1991, the Fish and Wildlife Service published a notice of intent in the Federal Register to review the baiting regulations. In our comments, NRA encouraged the Service to act on its own Advisory Commission's recommendation: namely, create the task force you called for in 1990. We also asked that the strict liability interpretation of the regulations be replaced with clear regulatory language that adopts a standard of reasonable diligence. (That reasonable standard is now reflected in H.R. 2863.) The response from the Service? There wasn't any. Nothing was heard. Two years later, in 1993, the Service published a supplemental notice of review -- but made no mention of the strict liability issue.

For 3 more years, the Service was silent on the issue -- and remember, this is the only serious issue of dispute over the 1918 law for 8 decades. Yet, nothing was heard from the Service until 1996, when it published another notice of intent on another aspect of the baiting regulations. The NRA recommended that the focus be broadened to include the strict liability issue.

This past Spring, prompted by Congressional action on earlier versions of H.R. 2863, the Fish and Wildlife Service proposed a rule to amend the baiting regulations. The Service, however, excluded from public review and comment the very crux of the baiting issue from the perspective of the American hunter: adoption of the "knows or reasonably should know" standard -- termed the Delahoussaye standard -- now embodied in H.R. 2863.

We must note that the decision to sidestep this important issue lies in stark contrast to the views expressed by the Service's own witness at a Congressional oversight hearing in May of 1996. At that hearing, a Service witness, in response to query, responded that the Delahoussaye standard could be acceptable as the standard for criminal liability. Its unwillingness to follow-through and support adoption of the Delahoussaye standard can mean only one thing: the Fish and Wildlife Service is looking to you, the U.S. Congress, to resolve the issue. Tacitly, the Service is saying, while Delahoussaye is acceptable, we prefer it be codified through legislation, not rule-making.

Those opposed to H.R. 2863 claim that requiring law enforcement to prove intent of the hunter to break the law would make baiting cases impossible to prosecute. We believe there is substantial evidence to the contrary. Under this bill, law enforcement would only need to prove that a person knew or reasonably should have known that he or she was hunting over bait. Even if a hunter could prove in court that he or she had no intent to hunt over bait, the hunter could still be found guilty if the court determined that due diligence was not applied in examining the hunting area for the presence of bait.

Hunters have been prosecuted in cases where they could not reasonably have known that a field was baited. In some cases, the quantity of bait was minute. In others, the bait was half a mile from where they were hunting. This was the very reason why, in 1978, the 5th Circuit Court of Appeals ruled in favor of the hunter in United States v. Delahoussaye, 572 F.2d 910 (5th Cir.1978). The court recognized that there are situations exceeding reasonable expectations of human responsibility. H.R. 2863 gives the American hunter the opportunity to defend himself or herself in court, a right afforded all other criminal defendants. American hunters should be treated as innocent until proven guilty-- not be proven guilty irrespective of facts.

The hearing held last year in the House Resources Committee on the predecessor to H.R. 2863 provided ample evidence that the 3 states that comprise the 5th Circuit -- Louisiana, Mississippi and Texas -- have experienced no hardship in prosecuting baiting cases. A conviction rate of 88% belies dire warnings that this bill would undermine the resource. Frankly, the Fish and Wildlife Service has had 20 years to challenge the Delahoussaye ruling if it truly believed that the standard was having a detrimental impact upon law enforcement to perform its duty or upon the Service's ability to protect the resource.

H.R. 2863 does not remove the prohibitions against baiting. Rather, it ensures that such prohibitions are enforced fairly. As the court acknowledged in Delahoussaye, unless a hunter can be held to a reasonable standard of responsibility, criminal conviction can become an unavoidable consequence of duck hunting. Rules should be clear and understandable so that hunters, farmers, landowners and professional guides who intend to comply with the law can readily do so. Above all, this bill achieves that objective while preserving the lofty goals and objectives for migratory bird conservation our great great grandparents struggled to enact.

In summary, H.R. 2863 continues to prevent the use of bait in migratory bird hunting. It preserves the fundamental principle of "fair chase." It does not weaken any of the protections for our migratory bird resource. It prevents the irresponsible - - the criminal -- to escape prosecution. It provides a balanced solution to our country's statutory and treaty obligations to protect and conserve migratory birds while meeting our fundamental responsibility to protect the rights of our citizens to fair and equitable enforcement of laws.

H.R. 2863 lays on the shoulders of American hunters a fair and reasonable requirement to take responsibility for their actions afield. Hunters welcome this burden. Indeed, one of the great contributions American hunters make to the greater American culture is the outdoor ethic. In A Sand County Almanac, Aldo Leopold, a Great American hunter and naturalist, wrote,

"The hunter has no gallery to applaud or disapprove of his conduct. Whatever his acts, they are dictated by his own conscience. It is difficult to exaggerate the importance of this fact. Voluntary adherence to an ethical code elevates the self-respect of the sportsman..."

H.R. 2863 is a tribute to the hunters and conservationists who created the Migratory Bird Treaty Act of 1918. When it becomes law, NRA is confident of our continued success in conserving America's wildlife resource, because that is a duty of every American hunter.

There can be no passion to hunt without the passion to conserve, and that sentiment springs from the heart of the American hunter.