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Baited fields and Extension Service recommendations; federal court decision out of LA
Posted on 8/1/23 at 5:40 am
Posted on 8/1/23 at 5:40 am
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
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
Posted on 8/1/23 at 7:37 am to Twenty 49
Knowing the defendant, none of this is surprising. And $1500 to them would be like buying a happy meal for most folks, me included.
Posted on 8/1/23 at 7:51 am to Twenty 49
It’s pretty wild that some of this has been allowed
Not one legit cattle operations is:
A. Planting wheat in august
B. Planting 120lbs per acre
Not one legit cattle operations is:
A. Planting wheat in august
B. Planting 120lbs per acre
Posted on 8/1/23 at 11:44 am to Twenty 49
In essence, we need to lobby our State Cooperative Extension Service to update their normal agriculture practice info to allow earlier planting and top sewn seed.
I like it. It's like elections, let each state decide how to operate independently. You know we have enough outlaws calling the shots in our state government to get this done.
I like it. It's like elections, let each state decide how to operate independently. You know we have enough outlaws calling the shots in our state government to get this done.
Posted on 8/1/23 at 11:46 am to Clyde Tipton
quote:
lobby our State Cooperative Extension Service to update their normal agriculture practice info to allow earlier planting and top sewn seed.
My first thought as well.
Posted on 8/1/23 at 12:36 pm to Ron Cheramie
quote:
It’s pretty wild that some of this has been allowed
Not one legit cattle operations is:
A. Planting wheat in august
B. Planting 120lbs per acre
Completely agree, allow full blown baiting, hell it is doves, look at how many millions they kill in Mexico and South America
Or outlaw it completely, but this BS of 80#/acre, top sewn, plant after August 15, etc etc Just stupid loop holes
Posted on 8/1/23 at 12:42 pm to CootKilla
Anyone have a link to Louisiana's State Coop Extension Service for ducks? If this exists?
Posted on 8/1/23 at 1:13 pm to Clyde Tipton
You may get traction if you find crop varieties that can be planted at that time and still yield. Not sure you’ll ever get left uncovered to be recommended by an extension agent
Posted on 8/1/23 at 1:22 pm to Twenty 49
Hell yeah! I'm about to "plant" my food plots a week or two before dove season too.
Posted on 8/1/23 at 1:37 pm to Motorboat
quote:
Manipulation of standing crops to improve their attractiveness to doves is allowed to a great extent, but these same crops must be left undisturbed where waterfowl will be hunted. Time and distance are two factors to consider when baited areas are associated with bird usage. Any area in which the bait has been removed is considered baited for a 10-day period following removal of the bait source. There is no set distance from a “baited” source from which a person is considered legal in hunting any migratory bird. Baited areas can influence the movement and concentration of migratory birds over other areas. Where “influence” can be determined, the area is considered baited and off limits to hunting.
From their wildlife planting pamphlet. LCES isn't going to go against the federal regulations.
Wildlife Plantings
Posted on 8/1/23 at 3:33 pm to Motorboat
I can tell you its written very vaguely on purpose and they don't really care what LCES says. I've sat on the stand in the courtroom.
Posted on 8/1/23 at 4:26 pm to Twenty 49
I would’ve said I planted early prior to a forecasted rain event, I would’ve said I planted a second time because the seed germ on the first planting tested bad. Didn’t cover b/c waiting on Chinese bearing for disc to ship (Covid) Your court, counselor.
Posted on 8/1/23 at 4:27 pm to Twenty 49
the fact he came back out and put out more seed got him.
"On August 29, agents returned to Holdman’s field. After inspecting the field
and reviewing the footage from the PlotWatcher, agents noticed Holdman
had broadcasted more wheat seed"
These guy needed a better lawyer. AUG 15 in North Ms. Suggest you drag a Harrow or culitpack. I personally do not know one rancher in the state that waste the diesel to cover it back up as it grows without issues.
MSU on Winder annual grasses for grazing
"On August 29, agents returned to Holdman’s field. After inspecting the field
and reviewing the footage from the PlotWatcher, agents noticed Holdman
had broadcasted more wheat seed"
These guy needed a better lawyer. AUG 15 in North Ms. Suggest you drag a Harrow or culitpack. I personally do not know one rancher in the state that waste the diesel to cover it back up as it grows without issues.
MSU on Winder annual grasses for grazing
Posted on 8/1/23 at 4:30 pm to Ron Cheramie
quote:
A. Planting wheat in august
Out of the MSU pamphlet for winter foraging.
"The planting date varies with location. Seeding
can begin as early as August 15"
Posted on 8/1/23 at 4:33 pm to Twenty 49
quote:So he paid a lawyer thousands to save himself what exactly?
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.
I never thought the throw out your wheat deal would fly.
Posted on 8/1/23 at 4:35 pm to White Bear
quote:Your inability to follow the guidelines results in your hunting illegally. No one said you couldnt plant the wheat in a weird manner, or that you needed to be efficient....you just could not shoot doves over it.
I would’ve said I planted early prior to a forecasted rain event, I would’ve said I planted a second time because the seed germ on the first planting tested bad. Didn’t cover b/c waiting on Chinese bearing for disc to ship (Covid) Your court, counselor.
Posted on 8/1/23 at 4:51 pm to tigerfoot
quote:My arguments are legit and align the “normal practices” defense. I would’ve at least gotten a bit crafty. What would that’ve hurt? worth it regardless for $1500.
Your inability to follow the guidelines results in your hunting illegally. No one said you couldnt plant the wheat in a weird manner, or that you needed to be efficient....you just could not shoot doves over it.
Posted on 8/1/23 at 5:32 pm to White Bear
I’ve posted this a week or so ago in the other thread talking about this.
MDWFP private land agent said that I’d be fine to bush hog the millet and sunflower, disk the field, sow wheat at 90lbs per acre with a spreader at 10-14 days prior to the season.
ETA: considering I have the text from the agent, a court would have a hard time convicting me.
All I have to say is: I was following my agent’s recommendations.
MDWFP private land agent said that I’d be fine to bush hog the millet and sunflower, disk the field, sow wheat at 90lbs per acre with a spreader at 10-14 days prior to the season.
ETA: considering I have the text from the agent, a court would have a hard time convicting me.
All I have to say is: I was following my agent’s recommendations.
This post was edited on 8/1/23 at 5:37 pm
Posted on 8/1/23 at 5:47 pm to bbvdd
quote:
All I have to say is: I was following my agent’s recommendations.
And if he's not basing his recommendations on the Cooperative Extension Service guidance, that defense would probably amount to zilch.
The regs clearly say CES, not wildlife agency.
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