98 



Under the current regulations, an area is considered baited for ten days after 

 any bait is removed. This is warranted because birds will return to an area for a period 

 of time after the food is gone. A hunter is considered guilty of baiting, however, for 

 unknowingly hunting over such an area even after he has made every attempt to 

 determine if it is, or had been, baited Similarly, a hunter can be arrested if doves are 

 flying over him to bait that was on adjacent land. This is the case even if that land is 

 posted, and the hunter could not know the area was baited without breaking 

 trespassing laws. Sportsmen should not be subject to arrest for breaking a regulation 

 that they cannot be reasonably expected to comply with. Hunting doves or ducks over 

 bait is not such an egregious offense that we should have to prosecute innocent people 

 in order to discourage the lawless from doing it 



The U.S. Fish & Wildlife Service stated that the hunters involved in our charity dove 

 hunt should have taken the initiative to find out whether or not the field was legal. The 

 fact is, many of the hunters inspected the area being hunted and found no sign of bait. 

 The hunters took the initiative and asked questions, but apparently this was not 

 sufficient for federal regulations. 



These problems could be simply addressed by specifying in the regulation that a 

 hunter must "knowingly and intentionally" be hunting baited birds to be guilty. This 

 would be consistent with recent federal court 



cases that held that knowledge is a necessary element of a baiting offense (United 

 States v. Delahoussaye 573 F.2d 910 [5th Cir. 1978] and United States v. Sylvester 

 848 F.2d 520 [5th Cir. 1988]). These decisions have been followed by the magistrate 

 for the United States District Court in the Northern District of Florida (e. G , United 

 States V. Love et al , Case No P93-032-042 [Order dated November 8, 1993]). To 

 preclude a person from facilitating the taking of migratory birds by others over bait (for 

 example, by removing bait less than ten days before others are invited to hunt), the 

 regulations should also specify that it is a violation to knowingly and intentionally cause 

 others to take migratory birds by the aid of baiting This would help eliminate the 

 problem of baiting and help protect the hunter from unscrupulous persons 



The current regulations specify that taking migratory game birds is not prohibited 

 over "grains found scattered solely as the result of normal agricultural planting or 

 harvesting." The definition of "normal" as referenced in this regulation is not clear, and 

 this provision is not being enforced consistently or with proper consideration of local 

 farming practices. "Normal" has been interpreted by the Fish and Wildlife Service to 

 mean what the state cooperative extension service "recommends." Under this 

 interpretation, hunter can be prosecuted for hunting over an agricultural planting that 

 was done for agricultural purposes and is an accepted agricultural practice in the area 

 but is not specifically identified by the state cooperative extension service cooperative 



