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planting or harvesting." For the hunting of other migratory game birds*, 50 CFR § 20.21(i)(2) 

 exempts scattered grains that resuh from "bona fide agricultural operations or procedures or as a 

 result of manipulations of a crop or other feed on the land where grown for wildlife management 

 purposes."" 



Ill 



Enforcement—The Problem 



As stated, the migratory bird baiting regulations are generally accepted by the hunting 

 community as a necessary means to control the harvest. In recent years, however, the 

 enforcement of these regulations have caused considerable confusion, disagreement, and 

 consternation within the hunting community. This is due to the following factors: 



• A violation of the regulations requires no showing of intent or knowledge that the 

 violator is hunting within a baited area. It is a strict liability crime. 



• The regulations are vague as to what constitutes a "baited area" or what the act of 

 "baiting" entails. This not only leads to unknowing violations by conscientious hunters, 

 but is difficult to consistently enforce. 



• There is a qualitative difference between what is considered baiting for waterfowl and 

 what is considered baiting for other migratory birds. This dichotomy adds yet another 

 layer of confusion and vagueness. 



On the first point, the regulations are written and enforced in such a way that a lack of knowledge 

 that the area hunted is "baited" is not a defense to the crime. Nor can an individual hunter escape 

 prosecution under the regulations by proving his or her lack of involvement in the act of 

 "baiting" itself Rather, the act of hunting over a baited area, irrespective of knowledge or intent, 

 is a violation of the regulations and an individual who does so is subject to prosecution. 



Secondly, because the regulations provide an explicit exemption for activities related to 

 agricultural "planting or harvesting" and ""bone fide agricultural operations or procedures," 

 without further explanation, violations are based upon an enforcement official's subjective 

 determination of whether a specific site has been baited. Even if waste or scattered grain exists 

 at a site due to agricultural cultivation or harvest, an individual game warden can still find that a 

 violation has occurred. The conscienscious hunter is therefore discouraged from surveying his or 

 her surroundings to ensure compliance with the law because the difference between baiting and 



E.g., mourning doves. 



' The wildlife management exemption cannot be used, however, if the grain or feed being scattered has 

 been "removed from or stored on the field where grown." 



