The prohibition against hunting migratory birds (doves) over baited fields, the exemption for normal agricultural practices, and the relevance of Cooperative Extension Service planting guidance have been the topic of some conversation in past threads.

The federal appellate court for TX, LA, and MS recently issued a decision that addressed those issues, just in time for dove season.

A NE LA farmer/hunter had a 1,200-acre deer farm, and he fed the deer fodder that he grew. He planted wheat in mid-August by broadcasting seed (top-sown) on freshly disced land. (His field had a brush-hide in the middle, a fake power line, and was near clean water. Farmer admitted he hoped doves stopped by for a bite of wheat, and agents got him and others on video hunting birds.)

Regulations under the Migratory Bird Treaty Act (“MBTA”) offer a limited safe harbor provision, which states that seed or grain scattered “solely as the result of a normal agricultural operation” does not make a field a “baited area.”

The next three paragraphs are a more detailed statement of the regs, copied from the court decision: It is unlawful for a 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.” 16 U.S.C. § 704(b)(1). Regulations promulgated by the U.S. Fish and Wildlife Service define 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.” 50 C.F.R. § 20.11(j).

The limited safe harbor provision under the MBTA states that “[t]he taking of any migratory game bird” is not prohibited “over lands or areas that are not otherwise baited areas, and where grain or other feed has been distributed or scattered solely as the result of . . . a normal agricultural operation.” Id. § 20.21(i)(2) (emphasis added).

A “[n]ormal agricultural operation” is defined as “a normal agricultural planting, harvesting, post-harvest manipulation, or agricultural practice, that is conducted in accordance with official recommendations of State Extension Specialists of the Cooperative Extension Service of the U.S. Department of Agriculture.” Id. § 20.11(h).

Louisiana’s Cooperative Extension Service offers guidance pamphlets for planting wheat. The guy at the agency who wrote the guidance testified at trial that the farmer failed to follow the recommended guidelines for normal agricultural procedures in three ways: (1) he scattered the winter wheat seed prior to the recommended date of September 1, (2) he left the seed uncovered rather than using one inch of soil cover, and (3) he distributed the seed too densely, 120 pounds of seed per acre rather than the recommended 80 pounds of seed per acre.

The farmer pointed to advice from the Mississippi extension service that recommended (1) a planting date range of August 15 to October 15, and (2) a broadcast density up to 120 pounds of seed per acre for wheat field planting in the Southeast. (He left out the part where MS recommended covering the seed with an inch of soil.)

The farmer did not follow the LA extension service rules. He was found guilty in fed court in Monroe and sentenced to a fine of $1,500 plus a year of probation with a special condition of no hunting of migratory birds. (The amount of the fine and the extent/length of a hunting prohibition can vary a lot, depending on the judge and the specific facts of the case.)

The appellate court upheld the conviction, holding that "The Cooperative Extension Service’s recommendations are state-specific." You must follow the extension service guidance for your state if you want to depend on the safe harbor for normal agricultural operation.

Appellate court decision