170 



In United States v. Orme, 51 F.3d 268 (4th Cir. 1995). off ming without a pub. 

 opin. United States v. Diez, 851 F.Supp. 708 (D.Md. 1994), the hunting venues were stipulated to 

 be 4,899 feet and 2,790 feet from the alleged bait. The court determined on the basis of the 

 agents testimony that the hunters were in the "zone of influence." Based on the strict liability that 

 the hunter knew, or should have known, the alleged bait was present, this case now stands for the 

 proposition that a hunter has a duty to reconnoiter one-half to one mile around his blind to 

 determine if there is a baiting problem.^ As another court has observed, " 'the baited area' is as 

 exact as the subject matter permits" and "[t]here is no scienter requirement to mitigate the 

 indefiniteness of the term 'baited area' or the 'zone of influence' concept..." United States v. 

 Manning. 787 F.2d 43 1, 438 (8th Cir. 1987). Unfortunately, under the current state of the law, 

 this imprecise "guideline" is "as good as it gets." It is respectfully submitted that this should not 

 be the state of affairs for the sportsmen who wants to hunt legally. 



Only one court has had the presence to at least put reason into the regulatory scheme by 

 holding "that a minimum form of scienter-the 'should have known' form-is a necessary element of 

 the oflfense." United States v. Delahoussaye, 573 F.2d 910, 912 (5th Cir. 1978). 



We conclude that at a minimum [the bait] must have been 

 been so situated that [its] presence could have been reasonably 

 ascertained by a hunter properly wishing to check the area of his 

 activity for illegal devices. There is no justice for example, 

 in convicting one who was barred by a property line from 

 ascertaining that birds were being pulled over him by bait.... 

 If the hunter cannot tell which is the means next door that 

 is pulling birds over him, he cannot justly be penalized. Any other 

 interpretation would simply render criminal conviction an un- 

 avoidable occasional consequence of duck hunting and deny 



^There was also grain found on a public road that divided the blind sites. The court ignored the pubic road issue 

 by sating, again, that how it came to be there was irrelevant. 83 1 F. Supp. at 7 1 1 . This case now stands for the 

 proposition that the hunter knew or should have known that there was 'bait" on public road. First of all, no hunter 

 would think of looking on a road for possible grain. Secondly, this offense took place on the Eastern Shore of 

 Maryland where most blinds are in walking distance from a paved road. Now to have anyone arrested for gunning 

 over or with the aid of bait, all one has to do is go down a road, find a blind in a field, shovel out some com, and 

 call the wildlife law enforcement officials. 



