Absence of Internet Communication

It is to be noted at the outset that the FWS proposed revisions to its baiting regulation indicated that public comments could either be mailed by way of the U.S. Post or, alternatively, hand delivered to the FWS at its Arlington, VA offices. It is remarkable that the FWS has provided no discernible method for citizen reviewers to comment on the subject FWS proposed rule by means of Internet email.

Notwithstanding the FWS' express invitation for public comment and its accompanying promise to carefully review and consider the same, for several reasons, the FWS' current efforts to obtain public comment relative to its Baiting rule are, at best, misguided and, at worst, arguably disingenuous. The use of the Internet for purposes of communication has permitted for the first time in our country's history the ability of the public to easily, effectively and promptly communicate with government officials, both elected and non-elected. Based upon its past requests for public comment, it appears that the FWS has gone out of its way to avoid the use of the Internet as a communication tool. The proposed revision to the FWS' Baiting rule publication is but just another in what is otherwise a long line of FWS requests for public input which seemingly preclude comment via Internet email.

Indeed, in contrast to the Environmental Protection Agency's (EPA) use of the Internet as an proficient tool for enhancing two-way communication, the FWS has headed in the exact opposite direction. For some inexplicable reason the FWS evidently objects to receipt of public comments to many, if not most, of its filings via Internet email. Precisely why the FWS shuns receipt of public email communication is unknown, but the fact that the FWS makes public comment more burdensome than it need be, is indicative of the implicit message that it is sending to the public. That message is - "The FWS has already made up its mind about whatever rule it intends to publish, therefore, public comment is pointless and, in fact, utterly futile."

This unspoken message by the FWS is only further reinforced when one examines the FWS' proposed notice of the Baiting rule itself. In this regard, reference is made to a March 22, 1996 request by the FWS for a report by the International Association of Fish and Wildlife Agencies (IAFWA) relative to baiting issues in connection with "moist soil" management. Apparently, after a one year investigation of the matter, a report on this subject was delivered by the IAFWA to the FWS in May, 1997. However, the FWS has conveniently ignored any invitation to make this report available to the public and, certainly, it eliminates all possibility of making it readily available via posting it on any of its various web sites. A recent review of the respective FWS and the IAFWA web sites (FWS Law Enforcement, MBMO and IAFWA, together with searches therein) revealed absolutely no trace of this report.

The same thing can be said for the FWS' Endangered Species Act Considerations (Section 7 consultation). Here, the FWS merely states that it has initiated a Section 7 consultation and that the same can be viewed by the public, at least by anyone willing to come all the way to Arlington, VA. In this respect, not only hasn't the FWS posted this consultation on its web site, it doesn't even make the offer to mail the same to the public upon request. Hence, if anyone should care to review this document, it's presumably incumbent upon them to get on a plane and head to Arlington, VA, in order to do so. Again, this fact clearly sends the wrong message to the public - the message that the FWS is only going through the motions with respect to publishing its Baiting rule while, at the same time, it ostensibly feigns efforts to solicit public comments relative to this rule.

Of course, this writer submits that the FWS should avoid sending such negative signals to the public at all costs. In truth, the FWS should promptly reconsider its position in this respect and, further, it should actively encourage public comment by posting all relevant information on the topic on its web pages, and, as an alternative to mailing or hand delivering one's comments, the FWS should likewise permit and, indeed, encourage public comment via Internet email.

Absence of Scientific and/or Historic Data

In reviewing both the Baiting rule as well as the subject FWS press release, it was readily apparent that, unlike other waterfowl issues in which the FWS has expressed a concern, there was a veritable dearth of references to either scientific and/or historic data. That is, while the FWS professes its desire to "clarify and simplify the migratory game bird hunting regulations regarding baiting," no where is the public informed of the underlying basis, either in scientific or historic terms, for the subject FWS proposed rule. Rather, all that the public is informed of, is that there has been some past confusion over the FWS "baiting" regulations and that the FWS is concerned that its Baiting regulation does not discourage the development of much needed private-sponsored waterfowl habitat. In fact, the only reference to any scientific data whatsoever are those reports and studies which substantiate the steady loss of wetlands over the past 200 years (i.e., the unavailable reports of Dahl and Johnson).

For example, the FWS does not cite one scientific study wherein it was demonstrated that the act of spreading seed on a field resulted in an "unfair" or even effective luring device in terms of migratory game birds. Nor, for that matter, does the FWS make reference to any historic problem which the FWS has encountered relative to the use of "baited" fields. Although the FWS repeatedly states that it has performed an "exhaustive" review of its regulations, apparently, this extensive review never benefited from, nor employed, any sound science. Simply put, the FWS has concluded that "baiting" is somehow wrong and/or immoral and that's the end of the discussion.

Thus, the essential questions which invariably comes to mind are, "What effect, if any, does placing seeds on a dry field have in terms of luring migratory birds? Would such conduct really lure migratory birds, or is this simply a case of much more hunter myth than actual fact? Does 'baiting' work the same for all migratory birds?" Further, one might ask, "How does feed act as a lure to migratory birds? Is the purported 'lure' the same for 'baited' flooded fields as it is for 'baited' dry fields, or frozen vs. unfrozen soil? What, if anything, do migratory birds see when they fly over a 'baited' field and/or a 'baited' pond? Are ducks primarily nocturnal feeders? If so, how does this impact 'baiting' efforts? Is the subject of 'baiting' just so much common knowledge that it doesn't merit any further discussion or investigation? Also, is the act of seeding a field in order to attempt to lure migratory birds offensive to the notion of 'fair chase'? Is it truly unethical behavior? If so, how is it so?"

It is respectfully submitted that a scientific study similar to the one that Professor Al Afton of Louisiana State University is engaged in (concerning electronic calling of snow geese), might indeed reveal some rather interesting and, hopefully, valuable information on this subject. However, absent such credible research, when one stops and ponders the whole idea of the FWS' Baiting rule, it becomes obvious that the FWS is acting in a rather arbitrary and capricious manner, if for no other reason than the FWS completely lacks any current scientific and/or credible historical documentation for its rule. At least, to date, it hasn't revealed any such foundation.

By way of further illustration, the FWS has drawn an artificial line wherein it permits millet to be included in the definition of a non-agricultural plant. The reason? Well, it's because the FWS expressly believes that millet is such an important food source for migratory waterfowl that an exception should be made. However, if millet is, no doubt, such an important food source for migratory waterfowl, wouldn't it also be the number one "lure" for migratory waterfowl? Presumably, this raises the old adage of wanting to have one's cake and eat it, too. Consequently, how can the FWS, on the one hand, make an exception for millet, while, on the other hand, it self-righteously proclaims a genuine desire to prohibit the perceived ills associated with "baiting" waterfowl? Unfortunately, the end result is a specious contradiction, not an accord.

In addition to the above-mentioned millet exception, the FWS continues on with the promulgation of an arbitrary "10-day rule" for purposes of permitting the intentional manipulation of any migratory waterfowl food sources. One can only wonder the basis (either in science or fact) upon which the FWS has relied for this rule. Does this rule truly work? If so, how can the FWS possibly substantiate this? More importantly though, is the fact that this rule clearly flies in the face of the FWS' efforts to make its Baiting rule clear and simple.

Obviously, the 10-day rule does anything but "clarify or simplify." In this regard, one again can't help but wonder how a well-intentioned waterfowler (i.e., one wishing to obey the law no matter how arbitrary it might be) could ever hope to know whether a manipulated waterfowl food source was, in fact, manipulated within 10 days prior to the start of a particular waterfowl season. Short of relying on the now defunct Psychic Friends Network (which failure, incidentally, was strongly suspected by the undersigned, but sadly not actually predicted), this writer is without explanation. Doubtless, the FWS is assuming that most waterfowlers, especially those that are being guided in a new region containing such manipulated vegetation, are somehow clairvoyant. Similar to this commentator, the FWS is conspicuously speechless when it comes to explaining how it arrived at such a rule, let alone, how it expects individuals to follow the rule, or how it anticipates the FWS field agents will enforce the rule.

Therefore, if the FWS is sincere in terms of promulgating a meaningful, albeit, revised Baiting rule without first studying the issue from both a scientific as well as historic perspective, it can only be concluded that the FWS is acting capriciously in doing so. At very best, the subject FWS proposed rule would clearly be premature without there at least being some scientific and/or historical justification for its derivation.

Mens Rea and Scienter

Mens Rea (wrongful intent) and Scienter (having knowledge) are two words which, no doubt, are rather meaningless terms to the lay person, but which nevertheless form the crux of the problem with the existing as well as proposed Baiting rule. These legal terms, however, translate into the understandable "strict liability" rule employed by the FWS in terms of the prosecution of individuals charged with violating the Baiting rule.

Here, in light of several noteworthy cases, the FWS simply ignores the true problem with its prohibition against "baiting" migratory birds. Obviously, and notwithstanding case law to the contrary, the FWS has determined that strict liability is still the way to go in order to enforce this most arbitrary of rules. In support of its position, the FWS cites a number of cases, one of which is an unpublished District Court case (the Miller case). As mentioned, another cited case, the Delahoussaye case, clearly contradicts the FWS' Baiting rule, opting instead for the more reasonable "should have known" standard.