LETTER TO U.S. FISH AND WILDLIFE SERVICE ON MIGRATORY BIRD TREATY ACT


July 9, 1997

Mr. John G. Rogers
Acting Director
U.S. Fish and Wildlife Service
1849 C Street, N.W.
Washington, D.C. 20240

Dear Mr. Rogers:

It has recently come to the attention of The Fund for Animals that the U.S. Fish and Wildlife Service may soon propose revisions to the regulations pertaining to the hunting of migratory birds over bait. On behalf of our hundreds of thousands of members nationwide, I would like to express serious concerns over this matter. Language under consideration to relax the baiting prohibition, by eliminating the strict liability standard for misdemeanor violations and by giving individual states the authority to determine what is "accepted" agricultural or soil stabilization practices, would, if promulgated, seriously undermine enforcement of the Migratory Bird Treaty Act and will result in the "indiscriminate slaughter" of birds that Congress sought to prohibit by passing the Act in 1918. The Fish and Wildlife Service should abandon these politically motivated and scientifically unsound concepts.

I. Background.

The Migratory Bird Treaty Act, 16 U.S.C. $ 703-712, implements provisions of treaties between the United States and Canada, Mexico, and Japan for the protection of migratory birds. These treaties, and their implementing legislation, have as their goal the protection of migratory birds against indiscriminate slaughter and killing through forbidden means, such as baiting. For more than 60 years, regulations promulgated pursuant to the authority of the Act have prohibited the taking of migratory birds by the aid of baiting, or on or over any baited area. 50 C.F.R. $ 20.21 (1996). Violation of this regulation is a misdemeanor. 16 U.S.C. $ 707(a).

For more than half a century, federal courts have interpreted the Migratory Bird Treaty Act as imposing strict liability for misdemeanor violations. With the single exception of the Fifth Circuit, all federal circuits that have decided this issue have concluded that the lack of a requirement of "scienter" (the requirement that a hunter knew or should have known that the area was baited) in the provision is exactly what Congress intended. See e.g., United States v. Engler, 806 F.2d 425, 431 (3rd. Cir. 1986) (surveying cases) (scienter not an element of criminal liability under the Migratory Bird Treaty Act's misdemeanor provisions); United States v. Catlett, 747 F.2d 1102, 1104-05 (6th Cir. 1984) (baiting is a strict liability offense that does not require proof of scienter). But see United States v. Delahoussaye, 573 F.2d 910, 912-913 (5th Cir. 1978) ("should have known" standard of scienter required for misdemeanor criminal liability under the Migratory Bird Treaty Act).

Congress amended the Migratory Bird Treaty Act in 1960, thereby adding the felony provision of 16 U.S.C. $ 707(b). As originally enacted, $ 707(b) did not require scienter for liability. In 1986, Congress revised $ 707(b), adding a requirement of "knowingly" to the felony provision. It did not, however, add a "knowingly" requirement to $ 707(a), and the legislative history of the amendment supports the conclusion that Congress intended that scienter would not be required under $ 707(a). See S. Rep. No. 445, 99th Cong., 2d Sess., reprinted in 1986 U.S.C.A.A.N. 6113, 6128 ("Nothing in this amendment is intended to alter the 'strict liability' standard for misdemeanor prosecutions under 16 U.S.C. 16 $ 707(a), a standard which has been upheld in many Federal court decisions."). Thus, Congress repeatedly has chosen not to require scienter under the Migratory Bird Treaty Act's misdemeanor provision, and has clearly stated its intent that misdemeanor prosecutions be based on a strict liability standard. Amending the baiting prohibition to require scienter violates this clear expression of Congressional intent.

II. Enforcement.

Requiring proof that an individual knew or should have known that an area was baited would force federal agents to become mindreaders. Such a burden of proof would significantly hamper enforcement of any prohibition on baiting, and thus would undermine the Migratory Bird Treaty Act itself and the goals of the international treaties aimed at protecting migratory birds. Numerous courts over many years have recognized this premise. See, e.g., United States v. Boynton, 63 F.3d 337 (4th Cir. 1995). "The beneficial purpose of the [migratory bird] 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." Id. at 344, quoting United States v. Schultze, 28 F. Supp. 234, 236 (W.D. Ky. 1939). Requiring proof of scienter "would produce the absurd result, clearly not contemplated by Congress, of nullifying the ease of prosecution created by the designation of hunting over a baited area as a strict liability crime." Boynton, 63 F.3d at 344-45. See also United States v. Engler, 806 F.2d at 431.

Even the Fifth Circuit, which alone among federal courts has held that some degree of scienter is necessary for a misdemeanor conviction under $ 707(a), acknowledges that requiring proof of actual guilty knowledge "would render the regulations very hard to enforce and would remove all incentive for the hunter to clear the area, a precaution which can reasonably be required." United States v. Delahoussaye, 573 F.2d at 912. As numerous other circuits have recognized however, the difficulty with the Fifth Circuit's "knew or should have known" formulation is that removing the strict liability nature of the offense removes all incentive for a hunter to take reasonable precautions or conduct reasonable investigation to determine if an area has been baited. The Fish and Wildlife Service's proposed change suffers from the same flaw. If such change is implemented, the prohibition on baiting would be virtually unenforceable.

Nor can it be presumed that Congress inadvertently neglected to include an element of scienter in the misdemeanor provisions. "Congress deliberately omitted scienter as an essential ingredient of [this] minor offense [because it] clearly intended to make real the protection against the holocaustic slaughter of migratory birds." United States v. Reese, 27 F. Supp. 833, 835 (W.D. Tenn. 1939). Indeed, the Fifth Circuit itself has stated that "Some evidence has emerged that Delahoussaye is contrary to the intent of a subsequent Congress." United States v. Garrett, 984 F.2d 1402, 1410 n.7 (5th Cir. 1993) (quoting S. Rep. No. 445, supra (1986 amendment adding "knowingly" requirement to felony prosecution under $ 707(b) not intended to change strict liability standard for misdemeanor prosecution under $ 707(a)).

The Fish and Wildlife Service's proposal to add a "knowingly" requirement to the baiting prohibitions directly contradicts Congress' expressed intent and is contrary to the holdings of a majority of federal circuits. Weakening the Migratory Bird Treaty Act would give a green light to poachers and make it almost impossible to prosecute baiting cases.

III. Regulatory provisions must be based on science, not politics.

Section 704 of the Migratory Bird Treaty Act authorizes the Secretary of the Interior to adopt regulations permitting the governing and taking of migratory game birds. In exercising that authority, the Secretary must have "due regard to the zones of temperature and to the distribution, abundance, economic value, breeding habits, and times and lines of migratory flight of such birds, to determine when, to what extent, if at all, and by what means, it is compatible with the terms of the [various treaties between the United States and other nations] to allow hunting [or] taking." 16 U.S.C. $ 704.

The Fish and Wildlife Service's proposed change in the baiting regulation does not address any of the factors cited in $ 704, but instead is based on political considerations. Such considerations are not properly part of the determination that the Secretary is authorized to make under $ 704. Congress has not retreated from its commitment to a strict liability standard for misdemeanor violations of the Migratory Bird Treaty Act, and in fact has reaffirmed this commitment clearly and consistently.[1] In light of this firm commitment, and in view or the weight of judicial opinion affirming the strict liability standard, it would be improper and a violation of $ 704 for the Fish and Wildlife Service to add a "knowingly" requirement to the baiting prohibitions.

IV. Service, not states, must determine "accepted" practices.

The Fund is also very concerned that the Service may accept state wildlife agency determinations of what constitutes "accepted" agricultural plantings, harvests, operations, post-harvest practices, or soil stabilization practices. It is no secret that many state wildlife agencies lack expertise in making such determinations. What will likely happen in a number of states is that whatever activity dramatically increases hunter success -- the number of ducks killed -- will be considered by the state agency to be an "accepted" practice.

More fundamentally, the Secretary of the Interior -- not a state employee -- determines when, to what extent, and by what means to allow hunting of migratory birds. 16 U.S.C. $ 704. The Migratory Bird Treaty Act does not permit state officials to determine what activity is illegal baiting, and allowing state officials to decree what is an accepted agricultural or soil stabilization practice would unlawfully delegate the Service's rulemaking authority.

Relying on state officials also would eliminate the uniform application of baiting regulations. In effect, there could be 50 different baiting laws, for each state agency could have varying interpretations. Not only would this hodge-podge of opinions confuse those hunters who actually are trying to follow the law, but it would make prosecution of illegal hunters more difficult. The Service will be giving defendants an almost iron-clad defense, for hunters will just have their friends at the local office of the game agency testify that some planting really is an accepted practice in the locality.

The Service is well aware of the vocal opposition of several state game agencies to existing federal baiting prohibitions. In light of these local efforts to avoid enforcement of existing federal regulations, The Fund is amazed that the Service could even contemplate handing over to these same agencies the purported authority to carve out massive exemptions to the baiting prohibitions. One again, as with the changes to the strict liability standard, the Service is considering a change which would dramatically weaken the Migratory Bird Treaty Act.

V. Conclusion.

Luring birds to point-blank range with food is a particularly objectionable form of hunting. As hunter Ted Williams noted in the enclosed article, birds just "can't resist" bait and are lured to their deaths. See Attachment A. There is no pretense of "fair chase" in baiting. This approach can only lead to one result: the slaughter of large numbers of birds. As stated in the Ted Williams article, an Illinois study found that hunters can take six times as many waterfowl kills with bait as they can without bait, an unacceptably high kill rate that can lead to "a dangerous overkill" of migratory bird populations.

This repugnant, unsporting, and biologically reckless practice will sharply increase if the Fish and Wildlife Service eliminates the strict liability standard, as hunters will know that law enforcement officials will have an almost impossible task. Please do not abandon the birds and those dedicated Fish and Wildlife Service officials in the field who have to enforce the law. We strongly urge you to reject the illegal efforts of the radical hunting extremists who wish to weaken the Migratory Bird Treaty Act for their own purposes.

Sincerely,

Heidi Prescott
National Director

cc: Secretary Bruce Babbitt, Department of the Interior
Mr. Paul Schmidt, Fish and Wildlife Service
Mr. Thomas Striegler, Fish and Wildlife Service

FOOTNOTE:

1. Although Congressman Don Young (R-AK), the most radical of the congressional hunting advocates, this year introduced H.R. 741 to amend the Migratory Bird Treaty Act to include a "knows or should have known" clause in the baiting prohibition, Congress has not accepted such an extreme measure.

oOo


The Fund for
Animals

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