Summer/Fall 1999

Membership Dollars at Work: Revising the Baiting Regulations

Since its formation the Mississippi Fish and Wildlife Foundation, or Wildlife Mississippi as it is commonly called, has worked with Senator Thad Cochran, Congressman Chip Pickering and the U.S. Fish and Wildlife Service (USFWS) to clarify the baiting regulations. Although both Cochran and Pickering introduced legislation to revise the baiting regulations, the USFWS revised the regulations without the mandate of a new law.

Hunting in agricultural areas is very important in Mississippi. Photo by Mississippi Fish and Wildlife Foundation.

Below, we'll review the new baiting regulations, which clarify current regulations and promote sound wildlife habitat management. According to Peyton Self, President of Wildlife Mississippi, "The new regulations seek to encourage the creation of new habitat for migratory birds while continuing to provide hunting opportunities consistent with the conservation of this precious resource."

Overall, the new rule allows the hunting of all migratory game birds, including waterfowl, in areas where natural vegetation has been manipulated. It excludes planted millet from the definition of "natural vegetation" but allows for hunting over manipulated naturalized millet. The rule retains agricultural settings where hunting is allowed for doves, but not permitted for waterfowl, coots and cranes.

Moist-soil management is the management of man-made, seasonally flooded impoundment; it involves the manipulation of soil, water and vegetation to enhance habitat for migratory birds. Modern moist-soil management practices include water level manipulation, planting, mowing and burning. These practices encourage the growth of moist-soil plants for use by wildlife, including migratory birds; promote the production of invertebrate and vertebrate food sources; control undesirable plants; and increase biological diversity.

Moist-soil plants provide essential nutritional requirements; consistently yield more pounds and diversity of food per acre than agricultural crops; produce seeds that are more nutritionally complete and resistant to decay when flooded (allowing longer and more constant use by waterfowl); and are more economic and efficient to manage than agricultural crops.

The USFWS will treat planted millet, which is a naturally occurring plant, like other agricultural crops. Although they recognize that naturalized millet can be an important food source for migrating and wintering migratory birds, the USFWS is concerned that the inclusion of planted millet as "natural vegetation" could ultimately discourage moist-soil management of native plants. They do not want to imply that planting an agricultural crop (i.e., millet) is ecologically equivalent to traditional moist-soil management. While agriculturally improved plant varieties can be more dependable than diverse natural moist-soil plants and have predictable maturation dates, they provide much less ecological and migratory bird management benefits.

Although planted millet is not considered natural vegetation, planted millet that becomes naturalized by growing on its own in subsequent years can be manipulated as natural vegetation.

Another point supported by Wildlife Mississippi is the deletion of the proposed 10-day restriction on manipulation of natural vegetation prior to the start of the hunting season. Eliminating this provision from the final rule also recognized the fact that optimal management of moist-soil areas depends on manipulations driven by such natural factors as rainfall and temperature. Ensuring that wildlife managers have the flexibility to manipulate natural vegetation throughout the year, without regard to hunting seasons, best serves the habitat.

Hunting in agricultural areas is very important in Mississippi. Although the rule does simplify this aspect of the baiting regulations, the hunting of all migratory game birds, including waterfowl, coots and cranes, over agricultural lands and those allowed for hunting doves are treated differently.

The rule specifies that waterfowl, coots and cranes can be hunted over scattered grains in an agricultural field only if the grains are present "solely as the result of a normal agriculture planting, harvesting, post-harvest manipulation or normal soil stabilization practice." The definition of a "normal agricultural planting, harvesting or post-harvest manipulation" limits acceptable farming practices for hunting to those typically undertaken to produce and gather a crop and manage the field afterwards. The rule defines "normal soil stabilization practice" as a planting intended to control agricultural soil erosion or reclaim surface mined land.

Doves and other migratory game birds, except waterfowl, coots and cranes, may also be hunted "on or over lands where grain or other feed has been distributed or scattered as a result of the manipulation of an agricultural crop" or "as a result of a normal agricultural operation." The latter term encompasses a greater range of acceptable activities that are important in Mississippi, including practices not directly tied to crop production – such as livestock feeding, for example. The new rule continues to provide greater hunting opportunities for this group of migratory game birds.

The new rule defines the three terms ("normal agricultural planting, harvesting or post-harvest manipulation," "normal soil stabilization practice" and "normal agricultural operation") used to describe land-use activities compatible with hunting different migratory birds in agricultural areas. In each case, those definitions specify that allowable activities are those conducted in accordance with official recommendations of Mississippi Extension Service. Hunters from Mississippi hunting other states should remember that recommended agricultural practices might vary from state-to state, region-to-region within a state, even from site to site.

The USFWS has traditionally relied on the Mississippi Extension Service to determine the validity of agriculture practices and operations. The new rule incorporates our existing policy and makes the U.S. Department of Agriculture the official authority for determining what farming activities are or are not "normal" in a given area.

Post-mining land reclamation is included in the definition of "normal soil stabilization practice". This is very important in Northeast Mississippi where gravel mining operations occur. In many cases, reclamation of post-mining lands is required by law. The USFWS has historically excluded these lands from allowable hunting areas because they were not planted for agricultural purposes. However, other than purpose, the process of reclaiming mining lands differs little from the process of preparing agricultural lands. These lands are not excluded from hunting merely because the purpose of the planting is not agricultural.

"There was a lot of concern by Wildlife Mississippi about prohibiting the hunting over top-sown fields for doves. On March 25, 1998, in the Federal Register, the USFWS proposed to 'prohibit hunting any migratory birds over any areas planted by top sowing of seeds where, as a result, the seeds remain on the ground.' The proposed action by the USFWS was to simplify and clarify federal laws regulating hunting migratory birds. If the USFWS had adopted the rule, an area seeded by top sowing would have been considered baited until 10 days after the seed or grain has been removed. We are extremely pleased that the USFWS decided not to prohibit hunting over top-sown fields," stated Self.

Moist soil plants, such as smartweed, provide essential nutritional requirements for waterfowl and other wetland-dependent wildlife. Photo by Mississippi Fish and Wildlife Foundation.

"The top sowing of crops is a commonly used practice for both agricultural and soil conservation purposes, especially in Mississippi. Top sowing can be used to quickly convert plowed and harvested fields to pastures, reduce erosion and prevent the transfer of nutrients to wetlands, rivers and streams from adjacent lands," continued Self.

In many states, top sowing is not only a "normal" agricultural practice but is the "recommended" practice as it disturbs less soil than traditional tilling and planting. Some top sowing is based on incentive payments for cover crops to capture unused nutrients and prevent their loss into ground or surface water. After further review, the USFWS could see no biological reason for eliminating hunting over this valid, widespread agricultural practice. Excluding top-sown areas would, in essence, penalize farmers and landowners for practicing soil conservation.

According Self, "Thanks to the many comments to the USFWS by concerned wildlife enthusiasts throughout Mississippi and other states, the democratic process worked and the will of the people came forth."

The Foundation was also pleased to see that the USFWS included provisions concerning camouflaging blinds. The rule now makes it clear that hunters can use both natural and agricultural vegetation to camouflage blinds. No restrictions apply when natural vegetation is used. Hunters, however, may only use agricultural plants for camouflage if such use does not expose, deposit, distribute or scatter grain or other feed.

In the past, there has been much misinterpretation as to what the rule was concerning inadvertent scattering of grain. While the USFWS did not change their enforcement policy, by inclusion of this new language, hunters will have assurance that the inadvertent scattering of grain from standing or flooded standing agricultural crops during normal hunting activities, such as entering and leaving hunting areas and retrieving downed birds, will not be considered baiting offenses.

The Fifth Circuit Court, which includes Mississippi, Louisiana and Texas, has historically applied a strict liability standard to baiting offenses. Under this standard, law enforcement officers did not have to prove that hunters knew bait was present in order to prove a violation had occurred.

On October 30, 1998, the Congress passed a law that eliminated strict liability for baiting offenses and instead made it unlawful for anyone to hunt with the aid of bait "if the person knows or reasonably should know that the area is a baited area." The USFWS has incorporated this "knows or reasonably should known" standard in the baiting regulation.

Sam Hamilton, Southeast Regional Director for the U.S. Fish and Wildlife Service.

According to Sam Hamilton, the Southeast Regional Director of the USFWS, "Hunters still have to make a good faith effort to ensure the hunting area is legal by looking at the area and asking the landowner to verify that the field hasn't been baited."

Congress increased the maximum fine for hunting over bait from $5,000 to $15,000. They also made the placement of bait a violation of the Migratory Bird Treaty Act punishable by a fine up to $100,000 for an individual or $200,000 for an organization, a prison term of up to one year or both. In the past, individuals who baited fields were charged with "aiding and abetting," that is, helping someone else commit the crime of hunting over bait. They face stiffer penalties under the new law.

The new rule will provide for the long-term conservation of migratory birds. "We believe that one of the most important factors affecting migratory birds is the amount and availability of habitat. It is critical that wildlife managers manage the remaining habitat to maximize its value to migratory bird populations."

Since the vast majority of wetland and other migratory bird habitat is privately owned, new and innovative approaches to traditional habitat protection, restoration and enhancement programs are required to encourage private landowners to participate in habitat conservation.

The USFWS believes that the new rule should not discourage private landowners and others from conserving, restoring and managing wetland areas for the benefit of migratory birds and other wildlife. Under existing regulation, modern moist-soil management practices, which often expose or scatter seeds, could potentially result in the creation of possible baiting situations. The USFWS's rules may have served as a disincentive to landowners to create and maintain wetland habitat, because of concerns about the legality of hunting the property.

To promote moist-soil management and habitat conservation, the USFWS has decided to allow the manipulation of natural vegetation at any time. "We expect to achieve significant benefits in the Southeast by further promoting the clearing of brush and other natural vegetation to enhance habitat crucial for wintering waterfowl," said Hamilton. "To the extent it provides more habitat, it will also provide more hunting opportunities." As a result, waterfowl populations and their long-term conservation will benefit from additional feeding, roosting and resting habitat in important migration and wintering areas.

The revision of the baiting regulations include ensuring that any new provisions contribute to the fair and consistent enforcement of protection for migratory birds. As with any new rule, only time will tell whether this goal has been met.

The rule, of course, changes some of the parameters for baiting enforcement. In some cases, these changes may create new challenges for state and federal officers in the field. Other changes eliminate ambiguities that may have caused problems in the past. The clarifications provided should serve the interests of conservationists, hunters and law enforcement officers.

U.S. Fish and Wildlife Service contributed to this article.