Overview of Proposed Changes

The Service proposes to add new definitions to 50 CFR 20.11, Meaning of Terms, for the following terms: baited area, baiting, manipulation, natural vegetation, and normal agricultural and soil stabilization practice. The purpose of these additions to section 20.11 is to provide a base of reference for terminology used in the regulation and to remove perceived ambiguity about what the Service means when using a particular term. For simplification of the regulations, the Service also proposes to add new language to section 20.21(i), Methods of Take, regarding baited areas and baiting.

The Service is proposing new regulatory language to address situations involving the accidental scattering of grains or seeds from agricultural crops or natural vegetation incidental to a migratory game bird hunter's activities. Specific concerns include entering or exiting hunting areas, placing decoys, retrieving downed birds, and using natural vegetation to camouflage blinds.

Current exemptions allow for the hunting of migratory game birds over agricultural lands, and separate those practices allowed for the hunting of waterfowl from those allowed for the hunting of other migratory game birds, such as doves. In this rule, the Service proposes to consolidate the different practices into one term normal agricultural and soil stabilization practice that is intended to apply to the hunting of all migratory game birds. The Service is not proposing to change the current exemption in the regulation that allows the hunting of migratory game birds, except waterfowl, over wildlife management food plots that have been manipulated. However, in addition to the words except waterfowl, the Service is proposing to exclude cranes as well by changing the language to read except waterfowl and cranes.''

The Service is proposing a new prohibition that would apply to the hunting of all migratory game birds 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.

The Service has long supported and encouraged the use of moist-soil management to benefit wildlife by providing important food and habitat. While the Service believes it is very important to continue encouragement of this valuable practice on both public and private lands, clear guidance on what constitutes baiting should accompany this encouragement. Currently, hunting over manipulated moist soil areas could be considered illegal since seeds can be made available to waterfowl as a result of a manipulation. To address moist-soil management issues, the Service proposes to distinguish between those moist-soil practices that will constitute baiting for migratory birds and those that will not. The Service is proposing to provide for the hunting of waterfowl and cranes over natural vegetation that has been manipulated, provided that the manipulations are conducted within specified parameters. The hunting of migratory game birds other than waterfowl and cranes will not be restricted as a result of any such manipulation.

As a related issue, the Service is proposing specific regulatory changes dealing with millet species. Millet, which is easily and readily naturalized, is somewhat unique in that it has applications for both agricultural and wildlife management (i.e., moist-soil management) purposes. After careful consideration and review, the Service has decided to include millet species in its proposed definition of natural vegetation.

Violations of the Migratory Bird Treaty Act constitute criminal offenses and because of this, since 1916 the MBTA has provided significant protection to migratory birds. Enforcement of its regulations includes application of a ``strict liability'' doctrine. Under strict liability, the fact that a person acted in such a way as to cause a prohibited result is sufficient basis to impose liability. Thus, in the prosecution of a strict liability crime, the government need not prove ``scienter'' (that the accused knew that he or she was violating the law) or even that the accused should have known he or she was violating the law.

In 1978, the Fifth Circuit Court of Appeals took exception to the strict liability standard in the judicial decision U.S. v. Delahoussaye, 572 F.2d 910 (5th Cir. 1978). In this decision, the court found that a hunter must make a determination prior to hunting about the legality of a hunting area and the presence or absence of any bait, and a law enforcement officer must show that a hunter knew or should have known about any bait. In 1993, in the Fifth Circuit judicial decision U.S. v. Garrett (5th Cir. 1993, No. 92-3483), the court revisited Delahoussaye and found evidence that it was, in fact, contrary to the intent of a subsequent Congress.

Other Federal courts have repeatedly upheld application of the strict liability doctrine. In U.S. v. Schultz, 28 F. Supp. 234 (W.D. Kentucky 1939), the court stated: ``The beneficial purpose of the treaty and the act would be largely nullified if it was necessary on the part of the government to prove the existence of scienter on the part of defendants accused of violating the provisions of the act.'' In Holdridge v. United States, 282 F.2d 302 (8th Cir. 1960), the court stated that strict liability was utilized to ``enact the broad policy of protecting an important natural resource, migratory game birds.'' In U.S. v. Miller, unpublished (D. Ariz. 1982), the court stated: ``The importance of the goal of preserving certain migratory birds in our environment, the difficulty the government would have in enforcing its laws if it were required to prove scienter * * * and the contemplated leniency of the sentence need all be considered.'' In written testimony to the United States Congress in 1984, Judge Frederic Smalkin, District of Maryland, wrote: ``In addition to being a shield for the innocent, such a requirement [to prove scienter] could be a windfall for the guilty, in view of the difficulty of proving scienter beyond a reasonable doubt * * *. The requirement of proving scienter would effectively curtail enforcement of the prohibition of baiting.'' These are provided as mere samples of a strong foundation of existing case law that supports application of the strict liability doctrine.

At this time, no changes are proposed in the application of strict liability to the migratory game bird baiting regulations. However, the Service recognizes that the application of the strict liability standard to the baiting regulations is of concern to many hunters. Unlike other Federal wildlife laws that provide for both criminal and civil remedies, the Migratory Bird Treaty Act is limited to criminal penalties. The Service invites comments that identify alternatives to the existing penalty provisions dealing with these regulations.

The Service is the principal Federal agency responsible for conserving, protecting, and enhancing fish and wildlife and their habitats for the continuing benefit of all American people. As such, the Service must give due regard not only to the interests of migratory bird hunters but to the interests of all groups. Any other action would conflict with the Service's ability to be fair, impartial, and equitable in accomplishing its mission, and would serve to undermine enforcement efforts and negatively impact migratory birds and their habitat. For example, the doctrine of strict liability applies equally to hunters, who enjoy the privilege of hunting migratory game birds, and to industrial and agricultural entities, whose combined actions create the potential for far-reaching impact on migratory birds and their habitat.

Awareness of the strict liability standard has been important in initiating changes in agricultural and industrial practices to protect migratory birds. For example, the chemical industry has made changes in the manufacture and use of pesticides that are toxic and deadly to migratory birds. In order to comply with the strict liability standard, the electric power industry has taken steps to prevent electrocution and power line strikes to migratory birds; the agriculture community modifies farming practices to prevent the accidental loss of migratory birds due to pesticide poisonings; the petroleum and mining industries have implemented measures to prevent contamination to migratory birds at petroleum pits, open oil pits, and cyanide leach operations; the commercial aquaculture industry modifies its operations to reduce bird mortality; and developers monitor construction sites to avoid destruction to migratory birds, their habitat, nests, and young.