171 



the sport to those such as, say, judges ^ho might find such a 

 consequence unacceptable.^ (Emphasis added). Id. at 912-913. 



The observation of the court that criminal conviction becomes an "unavoidable occasional 

 consequence" of hunting migratory birds has become, sadly, an established pattern. So much so 

 that many hunters have left the field because of the uncertainty of the " what and where" that 

 constitutes bait in their hunting venues and the certainty that they will be convicted regardless of 

 their innocence. * The latter point under the majority case law is irrelevant. This is an extremely 

 sad state of affairs given the time and treasure sportsmen have given to the conservation of 

 renewable resources in this nation. 



In the case I mentioned above where I was a defendant, the issue concerned the exception 

 under the regulations where hunting is permitted when grain is "scattered solely as the result of 

 normal agricultural planting or harvesting" or "distributed or scattered as the result of bona Jide 

 agricultural operation." 50 CFR §20.2 l(i). In this case, the landowner had distributed grain 

 "screenings"'around a pond in early August in an eflFort to help bind the soil of a leaking pond. 

 This was a practice was followed for six (6) years. Due to lack of rain, the grain was still present 

 when the field was hunted a month later. Defendants maintained that this was a bona fide 



"Although one could readily insert "Congressmen" here, the appropriate insertion would be "men, women and 

 young people." 



'The Delahoussaye case has been followed in the Fifth Circuit by United States v. Sylvester. 848 F.2d 520 (5th 

 Cir. 1988). In United States v. Angueira, 951 F.2d 12 (1st Cir. 1988), the court stated that "[w]e assume for the 

 present purposes that scienter is required [for violation of the baiting regulation] . " 95 1 F. 2d at 1 5 . However, in 

 this case it was found that the defendants knew of the "bait" and, consequently, left "for another day a 

 determination of that issue." Id. 



"See, Beware of the Baiting Lcm's, Reiger, George, Field & Stream (Dec. 1994); Dove Hunting By Seedy 

 Standards. Phillips, Angus, The Washington Post (Sept. 10, 1995); Waterfowl-Baiting Laws Should Be 

 Re-examined, Bonner, Fred, Washington (N.C.) Daily News (Dec. 20, 1992). 



^Screening: a. an undersirable material that has been seperated firom usable material by means of a screen or sieve: 

 screening of imperfect grain. (Emphasis in the original) Random House Dirt, of Eng. Lang. (2d ed.) Although 

 "imperfect" for sale, the seeds were capable of germinating. 



