172 



agriculture practice and introduced evidence that such top seeding was normal for the area. 

 Although the courts said that this was a "close case," (which is about as comforting as being 

 "reluctantly" found guilty and considered an "unfortunate" defendant as in Catlett mentioned 

 above) and specifically found that the land owner had no intent to spread bait as the word is used, 

 the defendants were found guilty. The court agreed with the Fish & Wildlife Service that the 

 method used by the landowner was not bona fide or normal since it was not the "best" method to 

 retard erosion as defined by the local County Soil Conservation Service. Thus, in the collective 

 wisdom of the court of appeals it was determined that after several thousand years of use, the 

 Latin phrase bonafiide " does not mean the good faith of the person doing the act, but means 

 good faith and without fi"aud as determined by a third party. In this case, what is the best 

 agriculture practice as the Fish & Wildlife Service as determined under guidelines prescribed by 

 the County Soil Conservation Service. The legal leap in logic was admittedly done to keep a 

 consistent ruling that baiting cases must be determined on a strict liability doctrine. Untied Sates 

 V. Boynton, et al, 63 F.3d 337 (4th Cir. 1995). 



In the case of United States v. Brandt, 1\1 F.2d 955 (6th Cir. 1993), the court made an 

 appropriate and logical distinction for interpreting the regulations when a bona fide agriculture 

 practice is being considered by stating: 



[I]t is not to distinguish between orthodox and unorthodox 

 practices, but to distinguish between areas to which birds are 

 attracted as a consequence of farming, and areas to which 

 birds are intentional lured by baiting. Id at 958 



In sum, the intent of the person undertaking the agricultural act is relevant. The 

 Magistrate Judge in the Boynton case, however, took the position that it would be a problem on 

 "how to prove it; how the government would ever prove a case to this." United States v. 

 Boynton, etal, Doc. No. 94-005K/S94-0131, TR., p. 33 (Mar. 24, 1994), The court of appeals 

 was not as subtle; they just said they declined "to follow a subjective measure of the grain 



