In addition to the Delahoussaye case, the FWS cites the Garrett case as somehow supporting its notion that the U.S. Court of Appeals for the 5th Circuit "revisited" the Delahoussaye case and reversed its holding. However, nothing could be further from the truth. If anything, the Garrett case only further reinforces the holding of Delahoussaye. In fact, the Garrett decision involved a woman who attempted to board a commercial airliner while carrying a loaded handgun. Under those circumstances, the Garrett court held that the "should have known" standard was the appropriate standard, and rejected the two extremes of either actual knowledge on the one hand, or strict liability on the other hand.

For several reasons, the "should have known" standard would be far more reasonable for purposes of prosecuting persons suspected of violating the prohibition against hunting waterfowl over "baited" fields (let alone, boarding airplanes with loaded hand guns), not the least of which is the fact that it is currently mandated under case law. In support of its decision, the Garrett court quoted from Morissette in reminding us that:

The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the nor-mal individual to choose between good and evil.

Ironically, and completely out of context, the FWS cites the Morissette case for the proposition that it can enact administra-tive migratory bird regulations with impunity while, simultaneously, utilizing "strict liability" standards. Unfortunately, the U.S. Supreme Court said no such thing in its Morissette decision. In fact, the Supreme Court overturned Mr. Morissette's conviction on the basis that the trial Court applied an erroneous "strict liability" standard. In its Morissette decision, the Supreme Court stated:

Crime, as a compound concept, generally constituted only from concurrence of an evil-meaning mind with an evil-doing hand, was congenial to an intense individualism and took deep and early root in American soil.

Justice Jackson went on in his Morissette opinion to actually take the opportunity to warn the American public that "strict liability" crimes were intended for the obvious purpose of doing away with the criminal element of "guilty intent" so as to ease the prosecution's path to conviction. At the same time, Justice Jackson noted that these crimes carried the visible hardship of stripping away the rights of a defendant at common law by penalizing transactions, though consciousness of wrongdoing was totally wanting. Therefore, contrary to the sweeping approval that the FWS deceptively gives itself based upon this (Morissette) decision, the Supreme Court was not quite as glib about the matter as is the FWS.

Further, and so as to bolster its erroneous perception that a "strong foundation of existing case law" supports the FWS' application of the strict liability doctrine, the FWS quotes a portion of Judge Frederick Smalkin's 1984 Congressional testimony. However, Judge Smalkin's testimony does not carry the force of "law," rather, it is merely one man's opinion. Unfortunately, the FWS all too quickly dismisses Judge Smalkin's cautionary warning that criminal laws which require some form of mens rea (wrongful intent) act as a shield for the innocent. Lamentably, the FWS' manifest willingness to sell out the innocent in favor of obtaining an assured conviction, scarcely can serve as a banner of esteem. The FWS' eagerness to trade an individual's freedom in exchange for a guaranteed conviction is, indeed, most distressing.

A prime example of the inherent problems associated with such a questionable statute was recently reported by the Minneapolis Star Tribune. Apparently, as a result of a waterfowl hunt on March 6th, Bud Grant, the ex-Minnesota Viking football coach, was cited by the FWS for supposedly hunting snow geese in Nebraska over a "baited" field. It was also suggested in the published newspaper accounts that the Democratic Governor of Nebraska, Ben Nelson (who was to have joined Bud Grant on the hunt), was evidently tipped-off prior to the time of the actual FWS bust. Regardless of whether Governor Nelson was tipped off, and regardless of whether the citation was approved by "Washington," the Bud Grant incident is just one more case, in what is becoming a lengthy history of shameful and inexcusable "baiting" cases, brought by the FWS. Here, the facts aren't disputed: Bud Grant was invited on a promotional hunt for the State of Nebraska. Everything (including hunting licenses) was pre-paid by the State of Nebraska. Bud Grant was being guided by a state-licensed waterfowl guide at the time of the bust. Bud Grant had never been to the field prior to the incident and, certainly, had no reason to suspect that he was violating any game laws. Further, the hunting party had been present in the field for all of ten minutes before being approached by a FWS agent. Nevertheless, while they were eating their lunch, an FWS agent determined that these individuals, including Bud Grant, were deserving of a federal "baiting" citation.

The foregoing Bud Grant incident reveals both the ultimate flaw in the FWS' thinking, as well as the absolute irony of its position. Firstly, the flaw in the FWS' proposed "strict liability" standard is that it results in making criminals out of those who, in utmost good faith, wish to obey the laws of our land. Thus, where individuals have every intention of complying with the law, and in this case, individuals who would not otherwise knowingly violate the federal prohibition of hunting over a "baited" field, are, nonetheless, turned into everyday common criminals by the sheer oppressiveness of the "strict liability" standard, we have, of course, all failed. Accordingly, there is unquestionably something seriously wrong with our government when agencies such as the FWS employ laws that result in turning honest, decent and hard working citizens into average criminals. Not only do such laws work great individual harm, they also result in bringing enormous public resentment towards government. In other words, laws as this create such extensive public alienation as to constitute a societal harm far greater than the good they could ever hope to achieve. Such laws bespeak of a pro-found lack of respect by FWS officials for the honest and well-intentioned waterfowler. When, as in the Bud Grant case, the FWS is left to only arrest the good guys, the purpose of the law has obviously ceased to exist.

In addition, when the FWS (which has been privy to numerous Congressional hearings on this exact subject matter) elects to ignore the complaints of both Congress and a collection of law-abiding citizens, it smacks of unprecedented governmental arrogance which, in turn, suggests that the FWS is entirely detached from the pulse of the community it regulates. Simply stated, it serves absolutely no societal benefit to have the FWS perceived by the public as a bunch of lawless bullies and thugs. Moreover, the rational offered by the FWS in support of this mordant liability standard is frankly not a compelling one. Paradoxically, the snow geese which Bud Grant was hunting have been labeled as the "Tundra Maggots" of the arctic by a number of scientists retained by the FWS to study this most unique phenomena (a whole different story). Consequently, if the FWS' "strict liability" standard were even remotely defensible, the FWS assuredly has not made a convincing case for it in its proposed Baiting rule.

The true irony of the FWS' Baiting rule is that it places the FWS in exactly the same moral position as those who it boldly accuses of unfair conduct. In other words, the "strict liability" standard found in the FWS' Baiting rule is nothing more than a rule that permits the FWS to "bait" the alleged "baiters." Consequently, if the notion of "fair chase" is somehow violated by a person using "bait" to lure waterfowl, why then doesn't the FWS comprehend that it is in an equivalent moral dilemma when it relies on the "strict liability" standard to prosecute would-be suspects? The answer is obvious - it's in the very same boat. Just because the FWS doesn't want to risk its prosecutorial success, at the same time, should the FWS be permitted to accuse others of "cheating" the system because they, too, wish to minimize risk and maximize their take? Isn't the FWS in essence saying, "Do as I say, not as I do?" Regrettably, this appears to be the case with the "strict liability" standard. As Gertude Stein might well have concluded, "unfairness is unfairness, is unfairness," no matter where you might find it.

Although it is clear that the FWS is charged with regulating the hunting of migratory birds, and though it is also certain that the FWS must promulgate rules that embody the idea of "fair chase" in these rules, however, if one were to select the true enemy of migratory waterfowl, it wouldn't be as a result of the loss attributable to violations of any "baiting" prohibition, or even to waterfowl hunting in general. Rather, the real enemies of waterfowl would undoubtedly be the combination of the continuing loss of waterfowl habitat (wetlands), combined with the consistent, albeit, periodic outbreak of serious avian diseases such as cholera and botulism. Compared with these loss estimates, those losses sustained by means of alleged "baiting" violations amount to nothing more than the proverbial "pimple on an elephant's butt." In other words, this perceived "baiting" problem, if it exists at all, is truly small potatoes in terms of the overall waterfowl picture.

Does the fact that staggering migratory bird losses, which are primarily due to outbreaks of avian disease and/or habitat loss, in any way relieve the FWS from attempting to promulgate or enforce reasonable game laws? Certainly not. But it does mean that if the FWS is serious about conserving wildlife, in this case, migratory waterfowl, it would appear to be a far better thing to devote more resources, both human and financial, to resolving situations like the Salton Sea NWR disaster, than it would be to pour millions of dollars into propositions such as prosecuting rather questionable and, certainly, highly controversial game laws. That's a certified losing proposition.

Thus, for all of the above-stated reasons, it is clear that the notion of a minimum form of scienter (knowledge on the part of the suspect) is what is called for here. Presently, the "strict liability" standard is an all-around bad idea. Because the current standard is so controversial, by its own nature it tends to demean and debase the entire FWS, including its law enforcement personnel. Instead of being an esteemed and influential federal agency, the standard tends to depict the FWS as a second-rate government agency, one incapable of engaging in serious and substantial law enforcement activities. In other words, the present standard portrays the FWS in a very bad light. Without belaboring the point further, the FWS should modify its position and employ the "should have known" standard in any proposed Baiting rule. At the very least, if the FWS were to adopt this rule of fairness, it would certainly remove one of the biggest black marks against the FWS that currently exists. Doing so would also go a long way towards regaining a sense of respect for the FWS from the law-abiding community which it presently attempts to regulate.

Other Practical Considerations

While it was earlier mentioned that there is a general unavailability of certain reports and studies (i.e., the '97 IAFWA report, the FWS Section 7 consultation, etc.), it seems obligatory of the FWS to make available to the public-at-large all of the reports and studies which are mentioned in the subject FWS proposed rule, preferably, by means of posting the same on its Internet web pages.

Along these same lines, it is noted that the FWS speaks of a new "normal agricultural and soil stabilization practice" standard and the fact that it has delegated this definition to the USDA. However, the question which comes to mind, but which doesn't appear to have been answered by the FWS is, where would a waterfowler go to learn about the relevant pronouncements by the USDA's State specialists in terms of recommenda-tions for planting, harvesting, etc.? Is there some common knowledge pool here, or can waterfowlers rely on future announcements from the FWS in terms of directing them to such information in the event they should have any questions? Currently, it doesn't appear there is any readily available source or database for purposes of reviewing the USDA's declarations.

Conclusions and Recommendations

The following conclusions and recommendations are respectfully submitted for the FWS' consideration:

1. Conclusion: Currently, the FWS does not actively encourage the use of the Internet for purposes of effective communication, including, without limitation, two-way communication with the public, dissemination of actual Federal Register notices such as the FWS Baiting rule, or posting reports and/or studies cited within certain Federal Register publications. Unlike the EPA, the FWS does not even have a process whereby FWS Federal Register publications can be automatically and timely emailed to persons interested in the same. For these reasons, FWS communication concerning troublesome issues wherein public comment is invited is, at best, limited and incom-plete and, at worst, results in a tacit message to the public of, "Don't even bother to write."

1. Recommendation: Similar to the EPA, and similar to its own national press release listserv, the FWS should create a separate public listserv wherein all FWS Federal Register publications are automatically sent to individual subscribers of the listserv. Further, the FWS should make an effort to have available on (or at) its various web sites, copies of all reports and/or studies which are referenced in any of its Federal Register publications. Further, by way of URL reference (hyperlink) to the particular web sites wherein referenced reports and/or studies reside, a reader of a certain FWS Federal Register publication can easily comprehend the full import of what the FWS is attempting to do by way of its publication by quickly and efficiently reviewing the subject referenced report or study.

2. Conclusion: The FWS appears to have no credible scientific reports or studies which serve to justify the genesis for either the existing and/or the subject FWS' proposed rule in the first instance. At least, if it does possess such information, the FWS has not referred to it, nor has it seen fit to make the same available for public review. Also, other than for passing mention of its concern for fostering private waterfowl habitat creation, the FWS fails to cite any historical facts (current or otherwise) which would similarly justify the basis for its present, or any revised Baiting rule. In fact, the FWS appears to be in conflict in terms of its justifying its expressed favoritism of privately developed wetlands over typical agricultural settings. Both the "millet" and the "10-day" rule are examples of conflicting FWS policies relative to the Baiting rule.

2. Recommendation: In conjunction with its "exhaustive" review of its regulations, the FWS should consider whether scientific and/or historical facts candidly support its ban on hunting migratory birds over certain "baited" fields. Therefore, if the FWS is sincere in terms of promulgating a meaningful revision to its present Baiting rule, it can only reasonably do so if the rule is supported by either a credible scientific and/or historic study.

3. Conclusion: The FWS' "strict liability" standard found in its Baiting rule is both an unfair as well as an unwise standard. Undeniably, it creates an air of suspicion by FWS law enforcement about all waterfowlers. In turn, the harsh standard creates enmity towards the FWS and its law enforcement personnel by normally law-abiding individuals. This atmosphere of mutual disrespect between FWS law enforcement agents and the general waterfowling community serves no one's best interest. Overall, the FWS' adoption of a "strict liability" standard is demeaning and degrading to an otherwise esteemed federal agency and, certainly, has accomplished far more harm than good. Currently, the "strict liability" standard is so onerous and so difficult to defend against, that it results in turning truly innocent individuals into petty criminals. The outcome is neither good for the FWS, nor for society in general, nor does it in anyway thoughtfully benefit the waterfowl resource.

3. Recommendation: The FWS should abandon the "strict liability" standard in favor of the more reasonable and much more fair "should have known" standard.

4. Conclusion: This commentator was unable to fully develop his remarks to the FWS relative to the Baiting rule on account of the fact that the FWS referenced numerous studies and reports in the subject FWS proposed rule (i.e., the '97 IAFWA report, the FWS Section 7 consultation, the Dahl studies, etc.), which were simply not available for review. Further, it is presently unclear where the public might go to learn more about USDA pronouncements as mentioned in the Baiting rule.

4. Recommendation: It is respectfully requested that the FWS extend the period of public comment in order to accommodate the reasonable expectations of those wishing to sensibly critique the FWS' Baiting rule. At the same time, it is further requested that the FWS make available to the public at large all of the reports and studies which are referred to the subject FWS proposed rule, preferably, by means of posting the same on its Internet web pages. Alternatively, the FWS should make these reports and consultations available upon request.