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was, according to the witnesses for the government, basically from horizon to horizon. All the 

 other issues of legal standing crops, fresh water ponds, lack of hunting pressure, and other 

 attributes that made the farm attractive to waterfowl were irrelevant to the imposition of the 

 strict liability doctrine. Intent of the hunters was ignored and the person helping Mr. Owings 

 place the feed on the property was fined $5000.00 and required to spend thirty (30) days in prison 

 on a work release program. Justice? Hardly. 



It is unfortunate that at present, the Fish & Wildlife Service Division of Law 

 Enforcement's recipe for these cases is basically the philosophy of the Queen of Hearts in Lewis 

 Carroll's Alice 's Adventure in Wonderland: "Sentence first— verdict afterward." Under the strict 

 liability doctrine, the verdict is all too predictable. 



The issue before this committee, then, is where do we go from here? The above cases 

 clearly indicate there is a problem. There are many, many other instances where hunters are, in 

 fact, innocent of actual wrong-doing but choose to pay the fine rather than incur the costs and 

 time in contesting the charges that they feel they will lose anyway. Even the Fish & Wildlife 

 Service would concede there is a problem. Dr. Keith Moorehouse, a biologist with the Fish & 

 Wildlife Service, has been recently quoted as saying that "[t]he language in the regulations is not 

 consistently clear" acknowledging that "[ijinterpretation varies from one law enforcement agency 

 to another." ^^Conservation Ne^s From Washington (April 15, 1996). 



During the litigation in the Boynion case, I received an anonj-mous telephone call from someone identtfting 

 himself as being with the Fish & Wildlife Service. He stated that as a result of the case, at least one Regional 

 Director instructed the staff to determine what were "normal agricultural practices" actually undertaken by the 

 farmers in that area. That information would be the basis of "normal agricultural practices" and not what an 

 outside agency might say is the "best" agricultural practice that was the determining factor in the Boynion case. 

 Again, a conflict in enforcement of the regulations. 



Many commentators have also recognized the problems. See, e.g.. Illegal Waterfowl Hunting, Gray, Brian and 

 Kaminski, 48 Joum of Wild. Mgt. (Supp July 1994); The Anti-Baiting Regulation Pursuant To The Migratory 

 Bird Treaty Act: Ha\'e ihe Federal Courts Flown the Coop, Or Js The Regulation For The Birds, Schmatz, Arther 

 E., 14 Geo. Mason Law Rev 407 (1991), Of Birds and Men: The Migratory Bird Treaty Acl, Sjostrom, Craig D., 

 26 Idaho Law Re\' 371 (1990); The Resurrection and Expansion of the Migratory Bird Treaty Acl, Coggins, 

 George C. and Pani, Sebastian T., 50 U. Colo. Law Rev. 165 (1983); 



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