By Mike Brasher, Ph.D., and Dale Humburg, former DU Chief Scientist
Ducks Unlimited has built its reputation as a leader in science-based wetland conservation in support of waterfowl populations on the steadfast pursuit and application of reliable information. Part of our organizational responsibility is to ensure that all information that influences waterfowl conservation is properly interpreted and communicated to our members and supporters, with waterfowl hunters being among our most passionate. Recent events have presented us with an opportunity to clarify some misinformation that is circulating among the waterfowl hunting community, specifically that related to the history of baiting regulations in the United States.
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:
“migratory game birds may not be taken … by the aid of baiting, or on or over any baited area … ‘baiting’ shall mean the placing, exposing, depositing, distributing or scattering of shelled, shucked, or un-shucked corn, wheat or other grain, salt or other feed so as to constitute for such birds a lure, attraction or enticement to, on or over any area where hunters are attempting to take them;”
Specific regulatory language, however, clearly defined permitted methods as:
“… 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 planting or harvesting.
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” (i.e., Migratory Bird Hunting: Regulations Regarding Baiting and Baited Areas; 50 CFR Part 20; FR 99-14039).
One question related to a hunter’s legal liability for knowing whether an area was “baited,” as defined by the Migratory Bird Hunting Regulations. Prior to this time, the “strict liability” standard was applied, which basically meant that a hunter was wholly responsible for violations of hunting over a “baited” area regardless of whether they possessed knowledge of the area being “baited.” The Migratory Bird Treaty Reform Act of 1998 clarified a hunter’s liability, by specifying that:
“It shall be unlawful for any person to—
- take any migratory game bird by the aid of baiting, or on or over any baited area, if the person knows or reasonably should know that the area is a baited area; or (emphasis added)
- place or direct the placement of bait on or adjacent to an area for the purpose of causing, inducing, or allowing any person to take or attempt to take any migratory game bird by the aid of baiting on or over the baited areas.”
The Migratory Bird Treaty Reform Act of 1998 also increased the penalties for baiting violations, but more importantly created a new, higher penalty for individuals found responsible for the placement of bait for the purpose of taking migratory game birds. Elimination of the strict liability standard and establishment of stricter penalties for baiting were deemed to provide a degree of fairness for instances where individuals were found hunting over bait but could not have reasonably known they were doing so.
Reviews and amendments to migratory bird hunting regulations that were carried out by “rule” largely addressed disagreements on whether manipulation of natural vegetation and moist-soil management constituted baiting, as well as how to define and interpret agricultural activities that may influence whether an area is deemed to be baited. Following several years of stakeholder engagement, public review, and comment, the U.S. Fish and Wildlife Service published in 1999 a Final Rule (FR 99-14039) amending Migratory Bird Hunting Regulations. Primary amendments and clarifying language included the following:
- 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.
It is important to note, that even after amendments in the Migratory Bird Treaty Reform Act of 1998 and 1999 Final Rule on Migratory Bird Hunting: Regulations Regarding Baiting and Baited Areas, there was no change in the regulation specific to hunting in flooded standing crops.
To illustrate, §6.3(b)(9) of the Migratory Bird Regulations for 1959–60 as published in the Federal Register (21 F.R. 6596) read as follows:
“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.”
Also, §20.21(i) of the 1999 Final Rule on Migratory Bird Hunting: Regulations Regarding Baiting and Baited Areas (FR 99–14039) read as follows:
“…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 related to baiting and waterfowl hunting can be found at the following link - https://www.fws.gov/le/waterfowl-hunting-and-baiting.html
Waterfowl hunting regulations, whether season lengths, bag limits, or methods of harvest, always have been the focus of considerable debate. Perhaps the following except from J.N. “Ding” Darling in 1935 when he was serving as Chief of the Bureau of Biological Survey provides a perspective that remains relevant more than 80 years later:
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.
Our obligation as waterfowl hunters and conservationists is to take the time to understand the background behind regulations and accurately communicate them when inclined to do so.