The strict liability doctrine has long been recognized in Federal courts throughout the Nation as a reasonable and necessary element in protecting the Nation's valuable migratory bird resource. The Supreme Court discussed the necessity for application of the strict liability doctrine in ``public welfare offenses,'' such as violations of the migratory bird regulations, finding that since an injury is the same no matter the intent of the violator, intent is not specified as a necessary element of the offense [see Morissette v. United States, 342 U.S. 246 (1952)].

Overview

Description of Proposed Regulations Accidental Distribution and Scattering of Grains or Seeds Incidental to Hunting

While the Service does not believe that the accidental distribution and scattering of grains or seeds occurring incidental to migratory game bird hunting has been an enforcement problem in the past, the proposed regulation addresses concerns and provides clarity to law enforcement officers and hunters alike. Therefore, areas where grains or seeds from agricultural crops or natural vegetation have been accidentally scattered as a result of hunters entering or exiting areas, placing decoys, or retrieving downed birds will not be considered baited areas.

Natural vegetation

North America has lost many of its original wetlands in the last 200 years. Dahl (1990) estimates that 22 States have lost over 50%, and 11 States have lost over 70%, of their original wetlands. Overall, about 53% of the original wetlands in the lower 48 States have been lost (Dahl and Johnson, 1991). In many of the remaining wetlands, large-scale land-use changes have often altered the natural water regime to the point that many wetlands are no longer functional. The Service believes that one of the most important factors affecting waterfowl and other migratory bird populations is the amount and availability of quality habitat.

Because of the extensive loss and alteration of wetlands, managers have intensively managed remaining wetland areas to maximize their value to wildlife, especially migratory birds, through moist-soil management. Moist-soil management, or the management of man-made, seasonally flooded impoundments, is a technique that uses manipulation of soil, water, and vegetation to enhance habitat for migratory birds. Modern moist-soil management includes water level manipulation, mowing, burning, and other practices to: (1) Encourage production of moist soil plants for use by wildlife; (2) promote the production of invertebrate and vertebrate food sources; (3) control undesirable plants; and (4) increase biological diversity. Moist-soil plants provide essential nutritional requirements, consistently produce more pounds and diversity of food per acre than agricultural crops, provide seed that are more nutritionally complete and resistant to decay when flooded (providing longer and more constant use by waterfowl), and are more economical and efficient to manage than agricultural crops.

To address moist-soil management issues, the Service is proposing several regulatory changes to ensure that this valuable wildlife management practice continues to be encouraged while also clarifying what constitutes baiting. The proposed regulations provide several new definitions and parameters that attempt to make it clear to the public how natural vegetation may be manipulated for moist-soil management purposes and subsequently hunted over.

The Service proposes to define natural vegetation as any non- agricultural, native, or naturalized plant species, including millet, that grows at a site in response to planting or from existing seeds or other propagules. This definition is not intended to include plants grown as agricultural crops.

In determining how any proposed regulatory changes should deal with millet, the Service recognizes that millet species have both agricultural and moist-soil management purposes. Millet is readily naturalized and can be an important food source for migrating and wintering waterfowl. Because of these valuable wildlife management traits, the Service believes that the potential benefits justify including millet in the proposed definition of natural vegetation. Therefore, the Service is proposing to treat millet species separately from agricultural crops and include millet in the proposed definition for natural vegetation.

Manipulation

Because the term is an important component of the proposed regulation, the Service is proposing to add a new definition for manipulation. The proposed definition for manipulation is mowing, shredding, discing, rolling, chopping, trampling, flattening, or wetland-associated plant propagation techniques. The term manipulation will not include the distributing or scattering of grain, salt, or other feed once it has been removed from or stored on the field where grown. The Service intends that the proposed definition for manipulation apply both to natural vegetation and agricultural crops.

Manipulation of Natural Vegetation

The Service recognizes that the artificial maintenance and restoration of natural vegetation through moist-soil management often creates important habitat for waterfowl and other migratory bird species. The Service intends that any proposed changes to the regulations regarding natural vegetation should be readily understood, enforceable, and provide flexibility for habitat managers to perform wildlife management practices beneficial to breeding, migrating, and wintering migratory birds.

The Service acknowledges that the current regulations were not intended to prevent the manipulation of naturally vegetated areas or to discourage moist-soil management practices of benefit to migratory birds. However, the Service recognizes that there appears to be some disagreement over the interpretation of the current regulations regarding moist-soil management, and that this disagreement could potentially discourage the maintenance and/or restoration of wetland areas. Therefore, the Service is proposing to expressly provide for the hunting of waterfowl and cranes in areas where natural vegetation, including millet, has been manipulated in accordance with certain restrictions. The Service is proposing no restrictions on the manipulation of natural vegetation when hunting migratory game birds other than waterfowl and cranes.

Several commenters pointed out that in wetland situations under ideal conditions some improved varieties of natural vegetation can outproduce their wild counterparts. While seed retention rarely rivals that of agricultural crops, seeds from natural vegetation can persist in the environment for long periods of time after the manipulation of such plants. In recognition of this difference, some recommended that certain wetland plants that have been planted (as opposed to grown naturally), could not be hunted over for 10 days following any alteration (i.e., manipulation). While the Service agrees that some time restriction is necessary (for the reasons outlined above), the Service also believes that any change in the regulations should be clear, consistent, enforceable, and easily understood by the public. Thus, the Service is proposing to treat all natural vegetation, whether or not it is planted, in the same manner.

The Service is proposing that any natural vegetation may be manipulated and subsequently hunted over, provided that: (1) The manipulation must be completed 10 days prior to any waterfowl season, and (2) the manipulation is not done during any open waterfowl season. The Service believes that this proposed change will accomplish several objectives. First, it provides for the manipulation of planted natural vegetation areas (i.e., moist-soil management areas) while also allowing subsequent hunting. Second, it provides the public with a clear, specific cut-off date for legal manipulation of such areas, if such areas are to be hunted. Third, it provides multiple opportunities to manipulate the same area during the fall and winter. This is especially important in those areas where there may be long breaks in between waterfowl seasons, such as a September teal season and the regular waterfowl season. Fourth, it provides law enforcement with clear time periods when manipulations are not allowable if such areas are to be hunted. And finally, it does not require a determination of whether the area has been planted or naturally grown, and does not have different requirements for different plant species.

Normal Agricultural and Soil Stabilization Practice

In response to public concerns about the need for greater clarity and consistency when interpreting the regulation covering those agricultural practices that are and are not allowed when hunting migratory game birds, the Service is proposing new regulatory language. The proposed new term to apply to all agricultural activities is normal agricultural and soil stabilization practice. This proposed term would replace the agricultural terms in the current regulations (i.e., normal agricultural planting and harvesting for waterfowl hunting, and bona fide agricultural operations for the hunting of other migratory game birds, such as doves). In addition, the proposed new term would add language to allow post-harvest manipulation activities (such as discing or mowing stubble after harvest and removal of grain) and soil stabilization practices. The proposed term, like the terms it replaces, is intended to apply to the hunting of all migratory game birds over agricultural fields.

In the new definition of normal agricultural and soil stabilization practice, the Service is proposing to include specific language providing for the Service to rely upon recommendations by the U.S. Department of Agriculture (USDA) for determinations with respect to planting, harvesting, post-harvest manipulation, and soil stabilization practices. This proposed language will codify current Service policy, and provide the public with a reliable and consistent source of guidance when making determinations about the legality of hunting in agricultural areas. Each year, USDA State specialists, through the cooperative agricultural extension services, make agricultural recommendations that are readily available to farmers, landowners, and the general public. By codifying the role of the USDA, the Service proposes to recognize USDA's State specialists across the United States as an authority on agricultural matters. Since 1980, the Service has relied upon these specialists for assistance with questions on agricultural practices.

Some commenters suggested that the term normal used in the current regulations was too vague and that the term accepted was a more accurate representation when referring to agricultural operations and procedures. While the final responsibility for determining the conditions by which migratory birds may be harvested remains with the Service, this new definition that relies on recommendations and determinations of USDA State specialists can provide the public with clear and concise direction for obtaining guidance on agricultural practices and their compatibility with migratory game bird hunting.