MIGRATORY BIRDS AND FWS
Y 4. R 31/3: 104-69 ^^^^^^^^
Higratory Birds and FHS, Serial No....
OVERSIGHT HEARING
BEFORE THE
COMMITTEE ON RESOURCES
HOUSE OF REPRESENTATR^S
ONE HUNDRED FOURTH CONGRESS
SECOND SESSION
ON
THE MIGRATORY BIRD TREATY ACT AND REVIEW THE
IMPLEMENTATION BY U.S. FISH AND WILDLIFE
SERVICE OF BAITING REGULATIONS
MAY 15, 1996— WASHINGTON, DC
Serial No. 104-69
Printed for the use of the Committee on Resources
^"'^tnn
°4 J996
U.S. GOVERNMENT PRINTING OFFICE
25-640cc» WASHINGTON : 1996
For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington. DC 20402
ISBN 0-16-052879-8
MIGRATORY BIRDS AND FWS
^ Y 4. R 31/3: 104-69 ^^^^^^
riigratory Dirds and FUS, Serial Ho
OVERSIGHT HEARING
BEFORE THE
COMMITTEE ON RESOURCES
HOUSE OF REPRESENTATR^S
ONE HUNDRED FOURTH CONGRESS
SECOND SESSION
ON
THE MIGRATORY BIRD TREATY ACT AND REVIEW THE
IMPLEMENTATION BY U.S. FISH AND WILDLIFE
SERVICE OF BAITING REGULATIONS
MAY 15, 1996— WASHINGTON, DC
Serial No. 104-69
Printed for the use of the Committee on Resources
"'â– '""""oen^oT
U.S. GOVERNMENT PRINTING OFFICE
25-640cc« WASHINGTON : 1996
For sale by the U.S. Government Printing Office
Superintendent of Documents. Congressional Sales Office, Washington. DC 20402
ISBN 0-16-052879-8
COMMITTEE ON RESOURCES
DON YOUNG, Alaska, Chairman
W.J. (BILLY) TAUZIN, Louisiana
JAMES V. HANSEN, Utah
JIM SAXTON, New Jersey
ELTON GALLEGLY, California
JOHN J. DUNCAN, Jr., Tennessee
JOEL HEFLEY, Colorado
JOHN T. DOOLITTLE, California
WAYNE ALLARD, Colorado
WAYNE T. GILCHREST, Maryland
KEN CALVERT, California
RICHARD W. POMBO, California
PETER G. TORKILDSEN, Massachusetts
J.D. HAYWORTH, Arizona
FRANK A. CREMEANS, Ohio
BARBARA CUBIN, Wyoming
WES COOLEY, Oregon
HELEN CHENOWETH, Idaho
LINDA SMITH, Washington
GEORGE P. RADANOVICH, California
WALTER B. JONES, Jr., North CaroHna
WILLIAM M. (MAC) THORNBERRY, Texas
RICHARD (DOC) HASTINGS, Washington
JACK METCALF, Washington
JAMES B. LONGLEY, Jr., Maine
JOHN B. SHADEGG, Arizona
JOHN E. ENSIGN, Nevada
GEORGE MILLER, California
EDWARD J. MARKEY, Massachusetts
NICK J. RAHALL II, West Virginia
BRUCE F. VENTO, Minnesota
DALE E. KILDEE, Michigan
PAT WILLIAMS, Montana
SAM GEJDENSON, Connecticut
BILL RICHARDSON, New Mexico
PETER A. DeFAZIO, Oregon
ENI F.H. FALEOMAVAEGA, American
Samoa
TIM JOHNSON, South Dakota
NEIL ABERCROMBIE, Hawaii
GERRY E. STUDDS, Massachusetts
SOLOMON P. ORTIZ, Texas
OWEN B. PICKETT, Virginia
FRANK PALLONE, Jr., New Jersey
CALVIN M. DOOLEY, Cahfornia
CARLOS A. ROMERO-BARCELO, Puerto
Rico
MAURICE D. HINCHEY, New York
ROBERT A. UNDERWOOD, Guam
SAM FARR, California
PATRICK J. KENNEDY, Rhode Island
Daniel Val Kish, Chief of Staff
David Dye, Chief Counsel
Christine Kennedy, Chief Clerk /Administrator
John Lawrence, Democratic Staff Director
(II)
CONTENTS
Page
Hearing held May 15, 1996 1
Statement of Members:
Brewster, Hon. Bill K., a U.S. Representative from Oklahoma 7
Prepared statement 91
Cubin, Hon. Barbara, a U.S. Representative from Wyoming 33
Duncan, Hon. John J., Jr., a U.S. Representative from Tennessee 13
Gilchrest, Hon. Wayne T., a U.S. Representative from Maryland 6
Miller, Hon. George, a U.S. Representative from California 2
Pickett, Hon. Owen B., a U.S. Representative from Virginia 5
Vento, Hon. Bruce F., a U.S. Representative from Minnesota 3
Young, Hon. Don, a U.S. Representative from Alaska, and Chairman,
Committee on Resources 1
Statement of Witnesses:
American Bird Conservancy (prepared statement) 178
Boe, William K., Chapter Advisor, Alpha Gamma Rho fraternity, Univer-
sity of Florida, Gainesville 19
Prepared statement Ill
Boynton, Stephen S., Vice President and General Counsel, Henke &
Associates, Ltd 81
Prepared statement 165
Clemons, Chadwell Bruce, University of Florida, High Springs 22
Prepared statement 126
Cooper, John, Secretary, South Dakota Department of Game, Fish and
Parks (prepared statement) 158
Eno, Amos S., Executive Director, National Fish and Wildlife Foundation
(prepared statement) 198
Halcomb, Monty, Assistant Director, Law Enforcement, U.S. Fish and
Wildlife Service, Atlanta 40
Horn, William P., Washington Counsel, Wildlife Legislative Fund of
America 70
Prepared statement 147
Inkley, Douglas B., Wetlands Team Leader, National Wildlife Federa-
tion 72
Prepared statement jointly with Dan Limmer and Lynn A.
Greenwalt 150
Manning, Brent, Director, Illinois Department of Natural Resources 65
Prepared statement 138
National Rifle Association of America (prepared statement) 182
Oelrich, Stephen M., Sheriff, Alachua County, Florida 17
Prepared statement 103
Oliveros, Joseph, Special Agent, U.S. Fish and Wildlife Service, Jackson-
ville 42
Pelham, John, Florida Power Corporation, Crystal River 21
Prepared statement 124
Reiger, George, Conservation Editor of Field and Stream 78
Schulze, Richard T., former Member of Congress 9
Prepared statement 93
Streeter, Robert, Assistant Director, Refuges and Wildlife, U.S. Fish and
Wildlife Service, Atlanta 40
Prepared statement 129
Taylor, Gary J., Legislative Director, Internation Association of Fish and
Wildlife Agencies 68
Prepared statement 143
Vogel, Randy L 186
(III)
IV
Page
Statement of Witnesses — Continued
Williams, Charles, a State Senator in Florida 15
Prepared statement 96
Additional material supplied:
Boe, William K.: Newspaper articles on students charged 120
Communications submitted:
Bonner, Fred (Carolina Adventure): Letter with attachment of May 21,
1996, to Congressman Don Young 189
Grandy, John W. (Wildlife and Habitat Protection): Letter of May 30,
1996, to Hon. Don Young 196
Jones, Lloyd A. (Delta Waterbowl): Letter of May 14, 1996, to Hon.
Don Young 192
Kendall, David B. (Jackson County Conservation Board): Letter of June
13, 1996, to Hon. Jim Nussle '. 208
Sparrowe, Rollin D. (Wildlife Management Institute): Letter of May 20,
1996, to Hon. Don. Young 194
Wiesner-Hanks, Neil (North American Paddlesports Assn.): Letter with
attachment to Hon. Jim Saxton 201
MIGRATORY BIRD TREATY AND FWS
WEDNESDAY, MAY 15, 1996
House of Representatives,
Committee on Resources,
Washington, DC.
The Committee met, pursuant to call, at 11:08 a.m., in room
1324, Longworth House Office Building, Hon. Don Young (Chair-
man of the Committee) presiding.
STATEMENT OF HON. DON YOUNG, A U.S. REPRESENTATIVE
FROM ALASKA; AND CHAIRMAN, COMMITTEE ON RESOURCES
The Chairman. The Committee will come to order.
More than a decade ago, the House Fisheries Subcommittee con-
ducted a series of hearings on Federal baiting regulations and the
Migratory Bird Treaty Act. At that time, there were many wit-
nesses who believed that these regulations were flawed, and inno-
cent hunters were being prosecuted.
Today, these regulations remain highly controversial, and bird
hunters still face a minefield of confusion as to what constitutes a
baited field and what is a bona fide agricultural practice and what
is a zone of influence. In addition, unlike most other laws, the U.S.
Fish and Wildlife Service does not have to prove intent or that a
hunter even knew a field was baited.
The fundamental issue in these baiting cases is whether our mi-
gratory birds are being protected or whether the Fish and Wildlife
Service is more interested in obtaining headlines through high-pro-
file law enforcement sting operations. On October 13th of last year,
Senator Charles Williams of Tallahassee invited 500 Floridians to
join with him in a charity dove hunt in Dixie County, Florida. The
purpose of the hunt was to raise money for Florida Sheriffs Youth
Ranches, a nonprofit organization that provides a lifeline for
abused, troubled and orphaned children throughout the State.
After more than 3 hours of hunting, law enforcement agents of
the Fish and Wildlife Service stopped the hunt, seized more than
440 birds and cited 88 individuals for allegedly hunting over a bait-
ed field. Among those cited were three county sheriffs, a regional
commissioner of the Florida Game and Freshwater Commission,
mayors, clerks of the court, Florida prison officials and city and
county commissioners. The agents even raided an adjoining farm
and cited several University of Florida students.
While I do not know whether it was a good or a bad bust, a num-
ber of those cited strongly believe that the only thing baited,
trapped, tried and fined on that hot October day were law-abiding
citizens.
(1)
What I do not know is that the wildHfe resources were not pro-
tected. If there was baiting, the Fish and Wildlife Service had a re-
sponsibility to stop the hunt at 1:15 or 1:30 p.m., not hours later,
when the amount of the fines had substantially increased. In addi-
tion, I understand that the Service cannot stop an individual from
hunting in a baited field. Nevertheless, the agents should have ad-
vised Senator Williams or somebody involved in the charity hunt
that in their professional judgment, there was a problem with the
field. By doing so, the resource would have been protected.
Finally, we will hear testimony from two panels of experts who
will discuss what improvements could be made to our baiting regu-
lations to better protect both wildlife and sportsmen. Let me con-
clude by quoting Sheriff Larry Edmonds, who was cited and paid
his fine in the Florida case. He said: "I was only on the field that
day because I felt an obligation to be there to support the youth
ranches. I do not intend to shoot any more doves, because it is too
hard to do it legally when they have laws like this, and this is a
bad law."
As I have mentioned in my opening statement, I have been
through this business now for 24 years. This law, I do believe, will
have to be changed.
The gentleman from California, Mr. Miller.
STATEMENT OF HON. GEORGE MILLER, A U.S.
REPRESENTATIVE FROM CALIFORNIA
Mr. Miller. Thank you, Mr. Chairman, and this, I think, prom-
ises to be a most interesting hearing, since the facts seem to be in
substantial contention here among the parties. I think in fact what
we will see at this hearing is that the questions of baiting are not
as ambiguous as you suggest in this particular case. I think we will
also see that the Service acted according to regulation, and I think
that we will also see that there is a suggestion that somehow, they
would act differently in a law enforcement situation than what we
would require any other law enforcement agency in that particular
situation to act. And that we would somehow suggest that because
of the nature of those who were arrested that somehow, this should
have been allowed or should have been stopped, or somebody
should have been warned when, in fact, the violations of the law,
both at the time and the actions of those who were cited and those
who went on to have further involvement with the courts that this
case is pretty clear in terms of classic baiting.
But unfortunately, it got beyond that in terms of altercations
against law enforcement officials or game officials in this particular
case, who were there to enforce a law and were apparently doing
it quite properly when, in fact, people decided they were going to
abuse them. It would be a shame when we suggest that somehow,
if you disagree with a law enforcement agent or in this case a game
enforcement agent who becomes a law enforcement agent at the
time of violations of the law that somehow there is an ability to as-
sault those individuals. I notice that those people who assaulted
the law enforcement people here from the Service are not on the
witness list.
But you do not get a right to do that. You do not do that when
an officer stops you for exceeding the speed limit when you say I
did not know it was 35 miles an hour or I think it should be 50
miles an hour, or I think this is a stupid place to have a speed
limit. You do not get to start assaulting the officer. There have got
to be some rules of a civil society. You know, Pete Rose did not get
to slug the umpire, and Magic Johnson did not get to push the ref-
eree, and hunters do not get to push around the Fish and Wildlife
Service individuals because they disagree with them.
So, this hearing invokes a number of levels of concern. Yours is
that the baiting laws are apparently — from our discussions that the
baiting laws are too ambiguous and that hunters should not be
held liable, because they did not know. That is also to suggest that
speeders should not be held liable if they did not know what the
speed limit was. The fact is that there is some obligation on the
hunters. But I think in this case, we will see that there was not
a lot of ambiguity about whether this was baited or not baited.
And secondly, the suggestion that this was all on the up-and-up
because we had a lot of sheriffs and judges and lawmakers and oth-
ers participating. I have hunted most of my life, and every now and
then, I have watched our colleagues in public service and elected
office be embarrassed because they are hunting without a plug in
their gun, or they are hunting without their license, or they did not
think anybody would really care. And from time to time, they get
snared. And so, they do not put a patina of legality on an activity
because of their presence or of their title in office.
So, I look forward to the hearing.
The Chairman. Well, I thank the gentleman. I think the wit-
nesses can understand the difference of opinion between the rank-
ing member and the Chairman himself I would just like to suggest
that when there are 250 hunters involved here, and four of those
were charged with assault, and most of that was just hollering, and
it took the agents to holler back. It takes two to tango in this game.
The gentleman from Minnesota.
STATEMENT OF HON. BRUCE F. VENTO, A U.S.
REPRESENTATIVE FROM MINNESOTA
Mr. Vento. Mr. Chairman, this hearing is an interesting hearing
in an oversight nature, and I hope that we all will approach it with
an open mind. Obviously, there are sharp differences of opinions
with regards to the issue of manipulation of vegetation and so-
called baiting and the violations in terms of responsibility of the
Fish and Wildlife Service. And they have substantial responsibil-
ities in terms of coordination with State game and fish. In fact, for
most of my constituents and probably yours, Mr. Chairman, they
do not know where the State ends and the Federal Government be-
gins with regard to some of these laws. And so, we want to set a
clear path and policy in place with regard to this.
I am fearful that so often the examples that are portrayed tend
to be sort of anecdotal stories, and we are hearing from one side
and perhaps not the other in these. So, I think that I would just
suggest again, Mr. Chairman, as I did earlier when we were deal-
ing with the Endangered Species Act that we try to get before us
at that point both sides of the story, so to speak, so that we could
judge the facts rather than just hearing from one group. I look at
hearings as being a way that we can learn something, not just ex-
change rhetorical flourishes, Mr. Chairman.
The Chairman. Will the gentleman yield for one moment?
Like I say, this is not the first time I have been involved in this
issue. When we were on the Fish and Wildlife Subcommittee, we
had about five different hearings on this issue.
Mr. Vento. Yes.
The Chairman. What has happened is this law is an ambiguous,
bad law. The gentleman from California talks about speed limit
signs. Now, if I see a speed limit sign, I know what the speed
should be. But if I am hunting on a field, and I have been invited
there, and I do not know it is baited, and I am arrested for it, that
is wrong, because I do not know what the speed limit is.
Mr. Vento. You know what the old Navy adage is: ignorance of
the law is no excuse.
The Chairman. Well, ignorance is an excuse when we do not
change the law. I do not know why you are defending this law.
Both of you are defending this law; it is a bad law.
Mr. Vento. I am suggesting that simply because you do not
know something does not mean you are right in terms of your be-
havior, Mr. Chairman.
The Chairman. The comment here — if you will listen to the testi-
mony, then, you will make up your mind, if you defend the law
then, I will be terribly disappointed.
Mr. Vento. OK.
The Chairman. This is a bad law; it has to be changed.
Mr. Vento. Well, I do not know that that is the case, Mr. Chair-
man. I am very concerned about the fact because I understand that
the incidence of hunting and the associated agricultural activities
are often compatible, and that they work and work together. I
think the issue here of actually, for instance, in wet soil manage-
ment for ducks and geese, which goes on — and there are a lot of
groups that work in good faith. The Pheasants Forever groups, the
Ducks Unlimited, many others, and the clubs and organizations
have a real interest in promoting, I think, a sound habitat and pro-
duction and, for that matter, reproduction and sustaining various
populations of species that they are interested in game hunting.
The fact is, though, that some of the incidents of doing this, if,
in fact, you are just doing this for the purpose of the propagation
of the species and maintaining it, then, it should not really be asso-
ciated with the incidence of hunting. But when a club or organiza-
tion puts up and does wet soil management, and then, during the
hunting season, mows it down and leaves the seeds lying on the
ground all around the duck blind, it does not take much imagina-
tion. It does not take much imagination to understand that the
purpose here is not just a good faith effort to, in fact, manage the
habitat for the propagation of those species but to, in fact, increase
the success rate in terms of hunting.
And so, I would suggest that if you suspended the hunting activ-
ity from the incidence of these manipulations of vegetation that we
would have no question. I understand that some states have good
natural vegetation for propagation of species and a good success
rate with regards to the exotics like pheasants or the indigenous
species like ducks in my State. Some states have better habitats
than others. But the absolute manipulation of this to increase the
success rate in terms of the hunt is what gives rise to the problem
here. And we know the incidence of agriculture and farming is not
the problem, I do not think. It is the manipulation specifically for
that purpose.
And so, I just want to underline the importance. And I think that
in some cases, even this manipulation, we can talk about the start-
ing of this; raising this grain; stopping and then the starvation of
the species when it is done improperly. But that may be a good
faith effort that goes wrong. But we are talking about when it is
associated with the incidence of hunting to substantially increase
the success and bagging of geese, ducks and, for that matter, other
types of species like doves, which are being talked about. We think
of those as songbirds in Minnesota, Mr. Chairman, but I under-
stand that other states have different attitudes with regard to the
hunting of doves.
But I think that in looking at this, we want to make certain, and
we should be certain, that we give a broad range of responsibility
to the Fish and Wildlife Service, the professionals, to, in fact, fulfill
this mission. For us to get in specifically — because I hunt or you
hunt, and we have certain views about it — for us to get in and try
to micromanage this on a basis that can lend itself to become politi-
cal, I think, is a real mistake. I do not think these particular poli-
cies ought to be run like a political yoyo, up and down, depending
upon who the hell is sitting in the chair over here that particular
day.
And so, so many of these laws have been around for a long time
that I think legislatively, we ought to leave this mostly to the pro-
fessionals to provide close oversight so we are providing clarity in
terms of our constituents and sportspersons who are using this,
like myself or others. And I would just suggest — you cannot even
put a posted sign up on private property unless you have permis-
sion to do it, so you cannot say, for instance, or even prewarn hun-
ters. So maybe, we ought to have some suggestions like that
The Chairman. The gentleman's time has expired.
Mr. Vento. [continuing] — at least, in order to solve this problem.
The Chairman. The gentleman's time has expired.
Mr. Vento. I thank the Chairman.
The Chairman. The gentleman from Oklahoma, Mr. Brewster.
Thank God for America.
Mr. Pickett. Mr. Chairman, may I
The Chairman. Mr. Pickett, I am sorry.
STATEMENT OF HON. OWEN B. PICKETT, A U.S.
REPRESENTATIVE FROM VIRGINIA
Mr. Pickett. I know it is past time to get to our distinguished
witnesses here this morning, but I do not want this opportunity to
pass without commenting on the fact that any law that an average
citizen cannot read, interpret and apply is a bad law, and I come
down on the side of wanting things to be understandable so that
citizens who want to be good citizens can be good citizens. And
equivocal and difficult laws are not ones that we should have on
the books.
So, I am very interested in hearing what has to be said this
morning, but I would disagree with my friend from Minnesota that
we give special prerogatives to enforcement officers in the Federal
Government. I do not think they know any more about wildlife or
any more about issues than anyone else, and they do not have any
special prerogative to go out and take action that is not warranted
by the facts and circumstances. Too often, they seem to think they
do, but that is not the case, and I hope we make that clear in the
course of this hearing.
Thank you, Mr. Chairman.
The Chairman. I thank the gentleman. I am sorry; I was so agi-
tated with the previous speaker that I did not see you at the end
of the line.
Mr. Vento. I was agitated too, Mr. Chairman.
The Chairman. Well, I know you do.
The gentleman from Maryland, Mr. Gilchrest.
STATEMENT OF HON. WAYNE T. GILCHREST, A U.S.
REPRESENTATIVE FROM MARYLAND
Mr. Gilchrest. I will just take a minute. I come to this section
of hearings today with a totally open mind. I certainly do not want
to open the door for the wholesale slaughter of migratory birds or
other species. I do think, however, there ought to be some clear un-
derstanding as far as what the rules and regulations are so that
we do not get innocent people caught up in them.
Management of wild species, especially migratory birds, is a very
difficult, very complex thing for humans to endeavor to accomplish
successfully. On the Eastern Shore of Maryland in 1980, we had
about 600,000 wintering geese on the Eastern Shore alone. We
have about 250,000 now, and that is for a number of different rea-
sons. But there are farmers who grow corn out there so the geese
can eat the corn, or they leave a little bit of wheat, or they leave
the corn standing, or they leave a lot of other things. And on the
next field over, where they happen to land, you are going to have
hunting.
In the county where I come from, we actually have legalized bait-
ing deer. Now, you cannot do that unless it is very carefully man-
aged. Now, I am not sure if I like that on a continuing basis, but
there are so many deer there that to manage them, you have to
make sure that the herd has enough food to eat. It is a very com-
plicated issue.
So, Mr. Chairman, I am going to listen very carefully to the testi-
mony. I do not think we want to open the door to the slightest
crack to give anybody an advantage over shooting geese or what-
ever, but I think we have to be careful that is making a law that
is clear, that the public can understand so we do not have an inci-
dent like that which occurred in Florida.
Thank you.
The Chairman. Are there any other opening statements? The
gentleman from Oklahoma has to
How much time have you got, Bill?
STATEMENT OF HON. BILL BREWSTER, A U.S.
REPRESENTATIVE FROM OKLAHOMA
Mr. Brewster. Mr. Chairman, I had an appointment at 11:00
waiting in my office that I was hoping to get back for. What I
would Uke to do is turn in my statement. I would like to make just
a couple or three very quick comments, if I could.
I appreciate you and my friend from California, Mr. Miller, for
having this hearing. One thing that I would like to point out to my