Court Finds Violation of MBTA For “Baiting” Birds

June 26, 2010 | Erin Herbold


The Migratory Bird Treaty Act (MBTA) was enacted to protect migratory birds that are not necessarily considered endangered species and, thus, not protected under the Endangered Species Act (ESA). The MBTA makes it illegal to “pursue, hunt, take, capture or kill” any migratory bird- at any time. A violation of the MBTA is punishable by a fine of up to $500 and imprisonment up to six months (a misdemeanor under Federal law). In addition, a person that takes a migratory bird andintends to, offers to, or actually sells or barters a migratory bird is guilty of a felony with fines of up to $2000, jail up to two years, or both.

The MBTA is a strict liability statute.  That means liability is imposed regardless of intent.  As a result, courts have imposed liability on farmers who accidentally poisoned migratory birds by use of pesticides. The MBTA also prohibits the “taking” of migratory game birds by the aid of “baiting”- the use of grain or other food to lure the birds to a specific location. However, an individual may take a migratory game bird where grains are found scattered solely as the result of normal agricultural planting or harvesting. There have been several cases from across the country on this issue, including this most recent case out of Louisiana. 
In this case, the federal district court found the defendants guilty of violating the MBTA (16 U.S.C.  Sec. 703) for illegally taking migratory birds by “baiting.”  At trial, the defendants argued that the United States Fish and Wildlife Service (USFWS) failed to establish that the field where they hunted migratory birds was “baited” in violation of the MBTA, and that the milo that had been grown on the land was harvested in accordance with a “normal agricultural practice” and any residue couldn’t be “bait” for purposes of establishing an MBTA violation. A farm hand testified that the field was harvested in a normal manner by use of a stripper header. But, the court disagreed.  The court viewed the testimony of an expert for the USFWS as more credible.  That testimony established that the use of a stripper header to harvest milo is not an acceptable agricultural practice and is rarely recommended.  The defendants further argued that they could not reasonably be expected to know that the field was baited because they were not farmers.  However, the court noted that the defendants had the duty to make a reasonable inspection of the property.  They didn’t do that and such an inspection, the court noted, would have revealed unharvested milo near where the defendants placed their duck blinds and decoys.

The appellate court affirmed on all points.  United States v. Andrus, No. 09-30479, 2010 U.S. App. LEXIS 12972 (5th Cir. Jun. 24, 2010).