Changes to U.S. Migratory Bird Hunting Regulations on Baiting Laws

By Mike Brasher, Ph.D., and Dale Humburg, former DU Chief Scientist

Ducks Unlimited has built its reputation as a leader in science-based conservation on the steadfast pursuit of reliable information. A core responsibility of ours is to ensure that information influencing our actions is properly vetted before being used or shared with our members and supporters. Recent events have presented us with an opportunity to address misinformation that is circulating among the waterfowl hunting community, specifically that related to the history of baiting regulations in the United States.

History of Federal Baiting Laws

Federal regulations to restrict baiting for waterfowl hunting in the U.S. were initially established in the early 1930s. Concerns about commercial shooting over baited areas and live decoys increased as waterfowl populations declined dramatically during the “Dirty Thirties.” Initial controls on baiting were through a system of permits with a provision that baited areas would not be shot after 3:00 p.m. Further clarification and strengthening during 1935 and 1936, however, led to a regulation that stated:

Specific regulatory language, however, clearly defined permitted methods as:

1998 Migratory Bird Treaty Reform Act and Hunter Liability

During the 1990s, U.S. Migratory Bird Hunting Regulations (50 CFR Part 20) underwent lengthy review to bring greater clarity and consistency to baiting regulations. This review ultimately produced a series of amendments, some of which were enacted by statute (i.e., the Migratory Bird Treaty Reform Act of 1998; Public Law 105-312), but most of which were promulgated by rule.

One question related to a hunter’s legal liability for knowing whether an area was baited. Prior to this time, the strict liability standard was applied, which meant that a hunter was wholly responsible for violations regardless of their knowledge. The Migratory Bird Treaty Reform Act of 1998 clarified liability, by specifying that:

The Act clarified that that it would also be a violation for individuals to place bait for the purpose of hunting, regardless of whether they were the ones hunting. The violation came with a higher penalty and was intended to offer fairness to individuals that were unaware they were hunting over bait, while holding to a higher account those that purposefully baited to aid the act of hunting.

1999 Final Rule: Definitions and Clarifications

Amendments carried out by rule further clarified baiting definitions and addressed interpretations of natural vegetation and agricultural activities. The U.S. Fish and Wildlife Service published a Final Rule in 1999 amending Migratory Bird Hunting Regulations. Key changes included:

• Defined a baited area as any area on which salt, grain, or other feed has been placed, exposed, deposited, distributed, or scattered, if that salt, grain, or other feed could serve as a lure or attraction for migratory game birds to, on, or over areas where hunters are attempting to take them. Any such area will remain a baited area for ten days following the complete removal of all such salt, grain, or other feed.
• Clarified that the hunting of any migratory game bird, including waterfowl, coots, and cranes, is allowed over lands where either a normal agricultural planting, harvesting, and post-harvest manipulation or normal soil stabilization practice has occurred.
  • Normal agricultural planting, harvesting, or post-harvest manipulation means a planting or harvesting undertaken for the purpose of producing and gathering a crop, or manipulation after such harvest and removal of grain.
• Clarified that the hunting of migratory game birds, except waterfowl, coots, and cranes, is allowed over a normal agricultural operation.
  • Normal agricultural operation means a normal agricultural planting, harvesting, post-harvest manipulation, or agricultural practice.
  • The distinction between an agricultural operation and the more specific terms of agricultural planting, harvesting, and post-harvest manipulation, was necessary to encompass other normal agricultural activities over which hunting of other migratory birds is permitted but the hunting of waterfowl, coots, and cranes is not. In other words, the agricultural activities over which waterfowl, coots, and cranes may be legally hunted are more restrictive.
• Specified that definitions for agricultural activities were to be based on recommendations of State Extension Specialists of the Cooperative Extension Service of the U.S. Department of Agriculture.
• Clarified that hunting of any migratory game bird, including doves, is allowed over lands planted by means of top sowing or aerial seeding if seeds are present solely as the result of a normal agricultural planting, or a normal soil stabilization practice.
• Clarified that hunting of any migratory game bird over manipulated natural vegetation is allowed without any restrictions. This enabled landowners and wildlife habitat managers to conduct valuable moist-soil management in wetland areas and promote increased benefits to migratory birds and other wildlife without being in violation of baiting rules should they or other individuals manipulate and hunt over these areas.
• Excluded planted millet from the definition of natural vegetation and therefore treated it analogous to agricultural crops for the purpose of determining baiting violations. However, planted millet that grows on its own in subsequent years (naturalized) is considered natural vegetation that can be manipulated at any time and hunted over without restriction.
• Clarified that it is allowable to hunt over grains that are inadvertently scattered from standing or flooded standing crops solely as the result of a hunter entering or exiting a hunting area, placing decoys, or retrieving downed birds.
• Clarified that it is allowable to take migratory game birds from a blind or other place of concealment camouflaged with natural vegetation and allows the hunting of migratory game birds from a blind or other place of concealment camouflaged with vegetation from agricultural crops as long as the use of such camouflage does not result in the exposing, depositing, distributing, or scattering of grain or other feed.

Current Legal Language and Specific Excerpts

Even after the 1998 and 1999 updates, regulations on hunting flooded standing crops remained unchanged. This is best demonstrated by comparing published regulatory language from different time periods:

1959–60 Migratory Bird Regulations (6.3(b)(9)): 
 "Nothing in this subparagraph shall prohibit the taking of such birds over standing crops, flooded standing crops (including aquatics), flooded harvested crop lands, grain crops properly shocked on the field where grown, or grains found scattered solely as the result of normal agricultural harvesting."

1999 Final Rule (20.21(i)): 
 "However, nothing in this paragraph prohibits the taking of any migratory game bird, including waterfowl, coots, and cranes, on or over the following lands or areas that are not otherwise baited areas: standing crops or flooded standing crops (including aquatics); standing, flooded, or manipulated natural vegetation; flooded harvested croplands; or lands or areas where seeds or grains have been scattered solely as the result of a normal agricultural planting, harvesting, post-harvest manipulation or normal soil stabilization practice."

A more detailed summary of regulations can be found: https://www.fws.gov/media/waterfowl-hunting-and-baiting

The Importance of Understanding Regulations

Waterfowl hunting regulations — whether related to seasons, limits, or methods — have always been a topic of debate. A quote from J.N. "Ding" Darling, Chief of the Bureau of Biological Survey in 1935, still holds weight:

"The regulations adopted for the last shooting season were considered by many to be entirely satisfactory, while to others they were wholly unsatisfactory... It is obviously impossible to satisfy everyone, but it is equally obvious that in too many cases opinion is based entirely upon prejudicial grounds or upon limited observations made in one small area."

As hunters and conservationists, it’s our responsibility to take time to understand the background of these regulations and to communicate them accurately when doing so.