Did Changes Improve Bird-Baiting Rules?
10/02/01

For the first time in 25 years, the USF&WS has reformed its regulations defining migratory bird baiting. The USF&WS is touting the regulations as being more user friendly, i.e., they treat hunters and landholders more reasonably. The Service Director Jamie Rappaport Clark, stated that “[e]veryone will find it easier to conserve and enjoy wetlands once it is in place.” Although that is true, the regulations are most significant for the regulatory changes the service had proposed that were not adopted. A disaster has been narrowly avoided. The service had intended that incidental trampling and leveling of vegetation and inadvertent distribution of seeds would be unlawful as baiting by “manipulation.” Instead the Final Rule expressly provides that inadvertent, normal distribution and trampling from making a blind, entering and leaving a blind, putting out decoys and retrieving downed birds is not to be prohibited. The service had intended that both intentional and inadvertent disturbances of natural vegetation be made illegal if they occurred at any time during the season or within the 10-day period before the season started. Instead the Final Rule provides that all the disturbance and manipulation of natural vegetation are excluded from regulation no matter when they occur. Natural vegetation is exempt. Hooray! Intentionally planted millet is to be treated as naturally occurring after one year from its planting to solve the special dispute over whether it is natural. After that one year it is to be exempt as well. The service had proposed prohibiting the hunting of migratory game birds over all top-sown fields regardless of the purpose of the seeding. The Final Rule continues to allow hunting over top-sown seeds that are present as a result of a normal agricultural planting or as part of a normal soil stabilization practice. The Final Rule is published at 106 FR 29799 and 50 CFR Part 20. If you want a copy, fax Conservation Force at 504-837-1145. The Final Rule is the opposite of what the USF&WS had intended and proposed... That is no accident. One has to wonder what would have happened had Congressman Don Young not been proactively at the helm. He watches over the USF&WS’s shoulder in his position as Chair of the House Natural Resources Committee. The International Association of Fish and Wildlife Agencies (IAFWA) must also share a large part of the credit for treating the proposed regulations very seriously and cautiously. IAFWA is the association of the 50 state game departments. Their committee earnestly opposed the proposed regulations that were not adopted. Conservation Force was in there too with both barrels, filing comments for multiple organizations, sending information and legal analysis to alert those that should be concerned. We even attended IAFWA meetings and counseled state directors on the legal implications of the proposed regulation changes that were ultimately rejected. It is another victory for wildlife management and the sportsmen, but I’d much rather not have such threatening close calls such as the proposed final rule before the USF&WS did a turn around. The new regulations are more significant for not making hunting and waterfowl management more difficult than for liberalizing the 25-year-old rules. They are also significant in their new appreciation and treatment of hunting and hunters. The USF&WS press release states that the regulations “will promote migratory bird habitat restoration efforts and make it easier for hunters to comply with federal and state regulations.” The change is “a crucial incentive for landowners that benefit a wide range of species.” The service actually admits that “wetland restoration efforts on private land have been hampered by existing regulations.” The new rule is an admission that the past regulations were serving as a “disincentive” for land managers to manage habitat for migratory birds and caused “public confusion about the types of activities considered to be baiting.” The old regulations led to a reduction in migratory bird habitat when the “[l]oss of habitat is the leading threat to the nation’s migratory birds . . .” The new regulations implicitly recognize hunting and habitat management for hunting as being a force for conservation, and that is the difference. The USF&WS describes this recognition as “new and innovative approaches to our traditional habitat protection and management programs to actively invite and encourage participation from private landowners in migratory bird habitat conservation efforts.” The new regulations treat hunting as part of the solution instead of the problem, and hence the regulations themselves have been made less a conservation impediment.

Serious New Penalties for Migratory Bird-Baiting

In the waning hours of the Congressional session, the Bird Baiting bill I have mentioned in these pages before did pass the Senate and is on the President’s desk for his signature as this is written. The legislation overrides the longstanding USFWS regulation applying strict criminal liability (irrefutable presumption of knowledge) to hunters found hunting in baited areas. The USFWS refused to change the regulation itself so Congress did. The new standard will not appreciably lessen the conviction rate, except in rare instances, though it may protect the truly innocent. There is an 88 percent conviction or guilty plea rate in Louisiana, Mississippi and Texas, where the courts have long applied the Delahoussaye “knew or should have known” standard. In those states where the new rule has already been applied, 2,042 of 2,318 cases from 1984 to 1996/1997 resulted in guilty pleas or convictions. But there is more that you must really be alerted to. The new legislation has more than doubled the penalties! Before, the baiting offense was punishable by up to six months imprisonment and a $500 fine. Now, imprisonment can be up to one full year and the potential fine is $15,000. So be forewarned. Under the new legislation you will probably have to make an inquiry as to whether the hunting area is baited and make an inspection to make sure it is not baited; otherwise, you will be convicted on the basis that you “should have known” even if you did not in fact know of the presence of the bait. As a safeguard the Migratory Bird Treaty Reform Act of 1998 also expressly provides that the USFWS must do an analysis and report to House and Senate committees on the effect of the amendment before the passage of five years. The report is to cover the effect the reform has had on the general practice of baiting, on migratory bird conservation and its effects on law enforcement efforts as well. Thus, those who abuse the reform effort may hurt one and all.
 

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