117 



(hunters) could have made a zig zag inspection and discovered the 

 presence of wheat...". Director Clough suggests to avoid violating 

 the MBTA in the eyes of the Service, hunters need only conduct a 

 "zig zag inspection" to discover if "bait" is present. The only 

 problem with the Director's analysis is that not only are hunters 

 required to inspect the immediate area to be hunted, they must 

 inspect an area which might later be construed by a United States 

 District Court Magistrate Judge as within the "zone of influence" 

 of any baited area, if they are to be completely free from the risk 

 of being issued a citation by the Service. See United States v. 

 Dize, 839 F.Supp. 1170 (D.Md. 1993) where hunters were convicted 

 for hunting geese "within the zone of influence" of a baited area, 

 with the court noting geese approached the feeding area "from all 

 directions " . 



What constitutes a "zone of influence"? How can hunters guard 

 against an inadvertent violation? How large an area are they 

 required to inspect? In Yandell v. U.S. By and Through Dept. of 

 Interior . 550 F.Supp. 572 (D.Miss. 1982), a landowner was cited for 

 hunting 3,700 feet (7/10 of a mile) from an area construed to be 

 baited. How far away from the "baited" area would Mr. Yandell have 

 had to travel before he would have been allowed to hunt under the 

 MBTA? The Yandell court only tells us that 3,700 feet (7/10 of a 

 mile) is not far enough away from a "baited" area to be lawful. The 

 Act gives no guidance, and it is impossible for hunters to guess, 

 as to what distance would be beyond the "zone of influence". 

 Accordingly, they are subject to the whim of a Service agent and 

 any sympathetic magistrate. Perhaps Director Clough would have 

 hunters "zig zag" across an area with a radius greater than 7/10 of 

 a mile (over 1.5 square miles) to be completely sure they were not 

 hunting within the "zone of influence" of a baited area for each of 

 the 10 days preceding a hunt. Of course, requiring such an 

 inspection by hunters is would destroy the sport and would make 

 sense only to a self-perpetuating government bureaucracy. 



I respectfully suggest that the Committee consider amending 

 the MBTA in a manner that will accomplish the goals of the Act in 

 conserving migratory bird resources , yet provide reasonable 

 guidance to the nation's hunting public as to what conduct is 

 proscribed. As a minimum, the strict liability provisions of the 

 MBTA should be abolished and replaced with a reasonable "duty to 

 inspect" standard applied to limited geographic area. No prosecutor 

 should be allowed to convert law abiding sportsmen into convicted 

 criminals based on ambiguities and variations in enforcement, 

 without proving a knowing violation of or an intent to violate the 

 Act beyond every reasonable doubt . 



I wish to thank the Committee for allowing me the opportunity 

 to provide input during these important proceedings and want you to 

 know how much I appreciate the vigilance each of you have shown in 

 the protection of our migratory bird resources. 



May 9, 1996 



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