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with misdemeanor convictions if they had the slightest clue that 

 the field in question was baited. 



Director Clough makes the point that Service agents have no 

 legal authority to "declare a field off limits" or to "prevent 

 hunting" on the field. They do however have a responsibility to use 

 every reasonable means to protect the game resource and I was 

 therefore amazed to hear testimony from the primary Special Agent 

 in this enforcement action to the effect that agents allowed 

 hunters to shoot for approximately an hour before making their 

 presence known. This was ostensibly done to "apprehend more 

 violators" to "maximize the deterrent effect". As a result of the 

 agents allowing the hunt to go on for an hour after they had 

 probable cause to intervene, some 480 dove were recovered. It is 

 safe to assume that many others were killed, but never found. For 

 the life of me, I fail to understand why the agents could not have 

 advised hunters entering the field of their suspicions that the 

 field was baited and reminding them of their individual duty to 

 inspect the field to ensure it was in compliance with state and 

 federal game laws. This would have avoided the whole situation 

 without "declaring the field off limits" or "preventing the hunt". 

 The hunters could have made their own assessment of the field and 

 suffered the consequences if geime laws were violated during a 

 subsequent hunt . Such proactive intervention with hunters would 

 have certainly been more effective in protecting the game resource. 

 Thank God street cops don't wait until the convenience store or the 

 bank is robbed if they believe an armed robbery is planned and 

 about to take place. Would the Service suggest a burglar be allowed 

 to enter a residence and plunder and steal for an hour prior to 

 making an arrest simply to maximize the deterrent value by catching 

 the thief red-handed? I seriously doubt it, and an earlier 

 intervention was called for in this case. 



One of the most serious difficulties posed for the 

 law abiding hunter is the strict liability provisions of 

 16 U.S.C § 703, known as the Migratory Bird Treaty Act (MBTA or 

 Act), and 50 CFR §20.21(i). Under the MBTA and this regulation, a 

 field is deemed "baited" for a full 10 days after the removal of 

 all corn, wheat, grain, salt, or other feed. Thus, even though a 

 conscientious hunter carefully inspects the field being hunted, on 

 the day of the hunt, he or she risks violating the MBTA (resulting 

 in a federal misdemeanor conviction) unless they have inspected the 

 field in question for each of the 10 days preceding the hunt. 

 Director Clough, in fact, admitted the impracticality of "constant 

 surveillance for a full 10 days prior to the hunt" as a reason the 

 Service itself does not inspect fields at the request of the 

 public. Director Clough stated in her letter to Congressman 

 Stearns, "the practice itself is flawed". How can hunters be 

 treated fairly being held to a standard the Director acknowledges 

 is practically impossible to guarantee compliance with? 



Director Clough seeks to reassure Congressman Stearns that the 

 Service is giving hunters a break by not applying the "strict 

 liability" standard of the MBTA, but rather applying the more 

 relaxed "duty to inspect" standard (also known as the "should have 

 known" standard) enunciated by the United States Fifth Circuit 

 Court of Appeals in United States v. Sylvester , 848 F.2d 520 (5th 

 Cir. 1988) and United States v. Delahoussaye . 573 F.2d 910 (5th 

 Cir. 1978). Director Clough refers to the salient language of the 

 Sylvester decision which says "...with little effort, they 



