169 



preventing hunting on their land. The court avoided the constitutional issue of state property 

 rights versus federal regulatory authority by rejecting the strict liability doctrine. They held that 

 the hunters should not be liable for the acts of third parties by stating that "[t]he prohibited acts 

 refer to those of the hunter, not to the independent and unrelated acts of others." ^382 F.2d at 

 591. 



The Allen decision was followed, in part, in the case of United Stales v. Bryson, 414 

 F.Supp. 1068 (D.Del. 1974) as far as prohibiting the taking of migratory birds "by the aid of 

 baiting" but followed the strict liability for taking "on or over a baited area." The phrase "on or 

 over a baited area" is vague in definition but the courts have risen to the occasion by speaking of 

 a "zone of influence" that defines a geographical extent of the "baited area." See, United States v. 

 Manning, 787 F.2d 43 1, 437 (8th Cir. 1986). In terms of "how far is far," the "zone of influence" 

 is limited "only by the capacity of bait placed anywhere within it to act as an effective lure for the 

 particular hunter charged." United States v. Chandler, 753 F.2d 360, 363 (4th Cir. 1985). Thus, 

 when a wildlife officials says that, in his or her opinion, the alleged bait influenced the birds to 

 come to the gunning site of the hunters, since the "bait" is there, you are guilty of violating the 

 regulations—regardless of intent or knowledge. 



In United States v. Jarman, 491 F.2d 764 (4th Cir. 1974) the defendants hunted doves in 

 a field that was separated fi-om three others by a road and a hedgerow. It was undisputed that the 

 hunting field was not "baited" but there was grain on the other fields. The court had no trouble in 

 finding that the division by a road and hedgerow was not a factor and that all four fields were in 

 the "zone of influence." 



^But see, Bailey v. Holland, 126 F.2d 317 (4th Cir. 1942) noted above and cases cited in note 1 infra. The baiting 

 regulations were changed after \ht Allen case to exclude the taking of migratory game birds other than waterfowl 

 over areas where feed has been distributed as a result of manipulation of a crop for wildlife management purposes. 

 38 Fed.Reg. 22021 (Aug. 15, 1973). The Fish & Wildlife Service presently has a Notice of Intent and Request for 

 Comment to remove the waterfowl regulations from the general regulations regarding migratory birds and seek 

 public comment regarding "artificial manipulation" of any vegetation to attraa waterfowl for hunting purposes. 61 

 Fed.Reg. 11805 (Mar. 22, 1996). 



