167 



heal thyself," I was a defendant in a baiting case that I unsuccessflilly took to the court of 

 appeals. United States v. Boynton. et al..63 F.3d 337 (4th Cir. 1995). 



First and foremost, the point needs to be underscored that the sportsmen, the law 

 enforcement officials and, indeed, the Members of the Congress, all share the basic concern 

 reflected in the MBTA that renewable migratory bird resources must be protected from over 

 exploitation by the implementation of appropriate management and enforcement policies. No 

 sportsmen I know would disagree with that premise. The disagreement and frustration are due to 

 the absence of clear and appropriate regulations coupled with reasonable wildlife law 

 enforcement. 



It would be useful to review the background of the MBTA and the cases that have 

 addressed the issue of baiting. First of all, in 1920, the Supreme Court upheld the constitutionality 

 of the MBTA as well as the Act implementing it. Missouri v. Holland, 252 U.S. 544 (1920). 

 Various challenges have been made to the Act since that decision' but none so consistently as the 

 attacks on the regulation that prohibits hunting "[b]y the aid of baiting, or over a baited area." 50 

 CFR §20.2 l(i). The controversy centers on a basic departure from Anglo-American concept in 

 the common law that the government must prove criminal intent beyond a reasonable doubt 

 before a conviction can take place. However, since 1939, it has been determine that no scienter, 

 or guilty knowledge, that the area has been baited is required to prove a violation of the 

 regulation: 



There appears no sound basis here for an interpretation 

 that the Congress intended to place upon the Government 

 the extreme difficulty of proving guilty knowledge of bird 

 baiting on the part of persons violating the express language 



'See. e.g.: Bailey v. Holland. 126 F.2d 317 (4th Cirri. 1942)-challenge that closing hunting on private property 

 next to a federal wildlife refiige was a "taking" of private property; Cochrane v. United States. 92 F.2d 623 (7th 

 Cir. 1937)-challenge of authority to limit the means of taking waterfowl; National Rifle Ass 'n v. Kleppe. 425 

 F.Supp. 1 101 (D.D.C. 1976)-challenge of non-toxic shot regulation. There was also a marathon of litigation 

 challenging the closing of lands to hunting next to a preserve in Illinois. See. Landsden v. Hart, 168 F.2d 409 (7th 

 Cir. 1948), cert.den., 335 U.S. 858 (1948); Landsden v. Hart. 180 F.2d 679 (7th Cir. 1951), cert.den.. 340 U.S. 824 

 Q.95\); Sickman V. United States, 184 F. 2d 616 (7th Cir 1950), cerr.den., 314 U.S. 939 (1951); Bishopv. United 

 States, 126 F.Supp. 449 (Ct.Cl. 1954). 



