Migratory Bird Treaty Reform Act of 1998 and Hunting Over Unharvested Crops

Duck hunters are skilled at finding scapegoats as to why their seasons don’t go so well. One of the hotter topics is the amount of and the ability to hunt over flooded crops. Namely corn. Is it legal? Should it be legal? When was it allowed? Who governs “normal agricultural practices”? Mike Brasher of Ducks Unlimited joins the show to break down the Migratory Bird Treaty Reform Act of 1998 and clarify what it did and didn’t do for duck hunting. 

• Changes to U.S. Migratory Bird Hunting Regulations on Baiting Laws - DU Magazine

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Transcript

Since 1937, Ducks Unlimited has been dedicated to conserving waterfowl habitat, from breeding grounds and migration routes to southern wintering areas. Thanks to the efforts of our volunteers and supporters, we've conserved millions of acres. However, our work is far from over. You can be part of our next million-acre year. Visit ducks.org/volunteer to join the team making a real difference. Your opportunity to help plan the biggest conservation party in town is waiting for you. That's what we do at DU. Ducks Unlimited, conservation for our continent.

Welcome to The Standard Sportsman Podcast. The show features trending topics, touching all aspects of duck and goose hunting in an effort to motivate others to leave the resource better than they found it. Hosts Cason Short and Brent Birch are lifelong Arkansas hunter conservationists, delivering thought-provoking discussions with engaging guests before, during and after duck season. Thanks for spending time with us today. Now let's jump into today's show with the guys.

Hey guys, it's Brent Cason back with another edition of The Standard Sportsman Podcast. We're coming into the spring rain season. We're having a little trouble getting some stuff in the ground and because we won't dry out. Another big rain yesterday that when we're recording this but yeah, we're a little slow and behind, how about y'all?

I don't know, we go from too dry to too wet and back and forth. So we're making do with what we got. I wouldn't say we're behind. Rice crop went in pretty timely. I wish I had some beans in the ground, but I think this point last year we planted a good bit of beans. Maybe we're close to done. So a little behind last year, but we were really early last year. So yeah, just play with what we get.

Yeah, I'm wondering what happened to some of these early beans because I was getting a ton of reports of guys already getting beans in the ground a month ago, maybe more, and we've had some substantial rain since then. I wonder if it just wiped all that out and they started over or do they just give up because they can't get the ground right to go back in there.

Could just be my part of the world, but soybeans come out of the ground trying to die.

Yeah, well, that's true.

They don't like to live or that or we're really good at killing them. I don't know. Kind of a weird plan.

I did drive down to Upper Valier, which Upper Vallier is one of the sections of Bayou Meto Wildlife Management Area, just to see what it looked like with water on the trees. The boat ditch looked like it was prime time January type water. So I know that fighting that uphill battle every spring here lately with the amount of water on the trees and those places, but hopefully, hopefully it could move out pretty soon. And those trees get a break. But it was water a duck hunter would kill for in December if they could get it.

Yeah.

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Well, I want to talk about something because it kind of leads into our show today and our guest and what we're going to talk about. But I've been reading a book that was written by a professor at University of Central Arkansas titled So Great Was the Slaughter. And it's a look back at a window in Arkansas' history of roughly either side of the Civil War era up until the 1920s and just how Arkansas became a place on the map to go basically shoot or catch anything. Fish, every kind of four-legged animal, every kind of flying animal. Arkansas used to have it all. And this particular book is really good, kind of capturing that history, but it leads up into the point of our topic today and also the formation of the Arkansas Game and Fish Commission because at the time there was nothing. And people were coming to Arkansas from all over the country to come hunt and fish, even spending two months, three months, six months in Arkansas accumulating game. Of course, you had a lot of market hunters come into the state. Trey Reed with the Arkansas Game and Fish Commission's got a podcast currently with the author that's worth a listen and you can get the book on Amazon, well worth a read. But what it does, it does trickle into our conversation today and kind of how we had to put some guardrails up for what's going on or what was going on at the time with Wildlife because they were getting beat up on pretty good. But yeah, I want to kind of talk about that book a little bit to give some people that are interested, that like to read, like a little non-fiction look back to check that book out. But I'll kick it over to you and let you introduce the guest and we'll get to talking about how we came up with some rules around shooting Ducks.

Yeah, well, the topic we're going to try to cover today, you and I, I think, hear a lot about here, it referenced a bunch and admittedly, I'm not a legal scholar, don't know a whole lot about this, although I was pretty, felt pretty confident that it didn't do the things some people claim that it does. We're talking about the Migratory Bird Treaty Reform Act of 1998. You hear a lot about agricultural practices, normal agricultural practices and baiting. A lot of people may have a misunderstanding of what this did and didn't do. We sought out an expert who could come on and discuss this with us and help us walk through this and find out really what it did and did not do and where it did a lot of good as well. Joining us today is a longtime friend of the show, guest on the show before, Mike Brasher from Ducks Unlimited. Mike, welcome to the show.

Hey, Cason. Hey, Brent. Thanks for having me. I will state very clearly up front, I am not an expert in the legal space. I'm not a legal scholar. Nor did I even stay at a hotel last night. I do not want to provide any free advertisement out there, but a lot of folks will remember those commercials, that little tagline. However, I did team up with a Ducks Unlimited retired now, colleague, a number of years ago, to try to provide some clarity around this topic, because it was, we heard a lot of it whenever I was, well, I guess it was maybe five, six years ago, I worked down in South Louisiana, and that was a hotbed for some of this, what I would call inaccurate information. And we felt compelled to try to put out some incredible information, as you've kind of alluded to, Cason, some of the things that are said about what the Migratory Bird Treaty Reform Act of 1998 did are just not true. And so whenever I got the request to come talk about this, I was like, okay, I've done some research. I've looked at those federal register documents and pieces of legislation, the actual language, and I can provide some color to this. But again, we'll restate, I am not a legal scholar. But I think most of the issues around this should be simple enough to state confidently that a lot of what people hear about baiting and the Migratory Bird Treaty Reform Act are simply not true.

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Yeah, I think that's the biggest takeaway anyone should get from this episode. And we were all talking before the show, we were reading through, you can find the transcript online and you can read it and you've got all the testimony there. But as we discussed before the show, just because someone made a statement, a senator represented whomever it may be, doesn't mean they're an expert or that what they said was actually fact. So you can pull sentences and paragraphs out of this thing that are completely wrong and inaccurate and not representative of what the actual act did. And I think that could be where some people kind of get off on the wrong foot there.

It could be. I will say, the decade of the 1990s was one during which there was a lot of discussion and a lot of decisions and a lot of proposed rules and a lot of proposed regulation to try to address several issues around the hunting of waterfowl and other migratory game birds. And so there were a lot of moving parts, kind of in fairness to the challenges of deciphering all of these different documents that you will find. There were a lot of things that were going on. There were some things that were advanced. It's like, okay, this is how we're going to take care of this. But then they got along in that process. And then a decision was made to, well, no, let's take care of that particular issue by way of an amendment to the Migratory Bird Treaty Act, where while we can take care of some of these other issues through proposed rulemaking to implement the Migratory Bird Treaty Act. And we can kind of differentiate the importance of those things if we want to, which I think is pretty important. But yeah, so in fairness, there was a lot going on. And if you don't follow things sequentially and wind up at the right place, you can draw some incorrect conclusions. But otherwise, like I say, when you get right down to those final documents, it's pretty clear. It's black and white on what it does and what it does not do and whether it changed or whether it didn't change.

Well, let's jump in first to what it did. I mean, my understanding is the strict liability issue of whether you did or didn't know that a field was baited and you hunted over it. And that was, correct me if I'm wrong, that was the biggest intent of this, was it not?

It turned out to be the biggest intent or the biggest change brought about by the Migratory Bird Treaty Reform Act itself, a piece of legislation. And this is where I will stop and say that the regulations that we as waterfowl hunters abide by, or hopefully abide by, come from several different sort of, I guess, items within this legal space. One is the actual act itself, the actual piece of legislation, and the law that gets passed by Congress. Now, a lot of times those pieces of legislation provide a broad framework for governing a certain issue. And that is certainly the case with the Marginatory Bird Treaty Act. You can read it, and it only mentions a couple of things about baiting. In the actual act itself, whether we're talking the original act or any amendments along the way and then the Reform Act of 1998. There's only a limited reference to baiting in it. Where the specific definitions and guidelines, allowances and illegalities around baiting, baited areas, et cetera, come about is through the rulemaking process. A lot of people will probably have heard about the Code of Federal Register. That's where every year the US. Fish and Wildlife Service will publish the regulations, the proposed regulations for an upcoming hunting season. There's a comment period. They take those comments in. They do a revision. Then they publish the final rule that establishes those annual waterfowl hunting regulations. The specifics of those regulations are not in the Migratory Bird Treaty Act itself. They come out as a result of the rulemaking process. Those things get published in the Code of Federal Register. So those two things are kind of important to distinguish. And so to get to the Migratory Bird Treaty Reform Act itself, it ended up... Because there were some of the things they may have been initially trying to address in the act itself through an amendment to the act, but then a decision was made somewhere along the way. It's like, no, I mean, we can do that in the rulemaking process. So the Migratory Bird Treaty Reform Act itself had a very limited... Made very few changes to the Migratory Bird Treaty Act. One of them, most important, I would say, is, as you stated, Jason, it relates to this issue of strict liability if a person is found to have hunted over a baited area. So prior to the Reform Act, as I'll recall it... I'll call it, just for simplicity, if someone was found... And again, this is where I will make the disclaimer. I'm not a legal scholar. So if I get a few things wrong, I'll ask for your forgiveness. But I think we have 98% of this correct. If someone was found to have hunted over a baited area prior to the Reform Act, then they were found in violation of that. And they were subject to whatever penalties came along with that. Regardless of whether that hunter knew the area was baited. That's what we mean or what was meant by strict liability. You are 100% liable for violating that baiting regulation, regardless of whether you knew the area that you hunted was baited. That was, I think there was some case law somewhere along the way. Maybe someone had challenged this. And I don't know how all that turned out. But that's what sort of led to a desire to address that particular issue. Through a change to the Migratory Bird, yeah, through a change to the MBTA, Migratory Bird Treaty Act. And so what the Reform Act did in that regard is said that, I can actually go to the language here, and it changed it from an issue of strict liability to where a person will be found in violation of that. But if, and I'll read it here, it shall be unlawful for any person, this is the language that was added to the MBTA as part of that Reform Act, said it shall be unlawful for any person to take any migratory game bird by the aid of baiting or on or over any baited area. This is the important part. If the person knows or reasonably should know that the area is a baited area. It protects those people that truly did not know the area was baited. For example, maybe it was a friend who went with somebody who owned the property, who baited it. But the friend who was hunting there legitimately did not know it. Previously, they would be unwittingly caught up as an equal party to that violation, just as responsible as the person who actually placed the bait. The other thing to get to that issue that the Margetory Bird Treaty Reform Act did is it created a separate sort of violation for the person that placed the bait, because you could imagine, and this was really one of the things they were trying to target in a situation where outfitters or guides might be the ones doing the baiting, but not the ones doing the hunting. So again, if you were to look at it and just say it's unlawful to hunt over bait, then the outfitter or the guide could have said, look, I wasn't hunting, so I'm not doing anything illegal. The Reform Act took care of that also by making it a separate offense for a person to quote, place or direct the placement of bait on or adjacent to an area for the purpose of causing, inducing or allowing any person to take or attempt to take any migratory game bird by the aid of baiting on or over the baited area. Basically, eliminating a loophole by which an outfitter could place bait but not be held liable for that. So, and I think there was an increase to the civil. They made that violation a higher class of violation. A more severe penalty came along with that one. So, it did a couple of things. Those were the most important ones. It did not change the definition of baiting or anything of that nature. And yeah, I'll stop there. Really, that's it. The Migratory Bird Treaty Act took on that issue of strict liability and increased the fine for a violation, for a baiting-related violation.

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That's correct.

Yeah, so I mean, the world was a lot different place back then. And so, you know, somebody had the foresight, hey, we're doing a lot of damage to wildlife in this time period. Let's write this thing up. And so, it's kind of amazing that it took that long to get to a point to do a modification to it, that we operated under that act for so long until this Reform Act came about.

Yeah, and Brent, I'm looking at this document here, and I mentioned something in my earlier comments there about there was some case law that challenged the strict liability, and I found it. There's actually, again, this is really cool to look into because you hear these things about what a person is saying or a group is saying it did or did not do, and you're like, all right, well, let me just go look at the actual document itself. And it lays all this stuff out pretty clearly. And so, it said here the crime, this was prior to the Reform Act, this is kind of describing what the Reform Act did. It says the crime, which was a class misdemeanor, was one of strict liability. It said until recently, all the offenses under the MBTA were strict liability, hallmark of the law. In 1978, the Fifth Circuit broke with that longstanding interpretation and became the first court to hold that before a person can be prosecuted for taking a bird over a baited field, the prosecution must show that the person, quote, should have known that the area was baited. So, it was indeed a series of lawsuits that kind of led to the need to bring some additional clarity to the MBTA because it would have, depending on how that language was, if it just said it's a violation to hunt over a baited area, then it would have had that loophole for outfitters or guides to be the one placing the bait and then just not tell the clients that they're bringing in. So, yeah, that's how some of this plays out over time. All right.

Well, let's talk about what it didn't do because I'll ask it pretty bluntly. I hear it all the time, this legalized baiting and it seems like through our first part of this conversation, it most certainly did not. Now, I'll go so far as to say, I think what most people are getting at when they make that claim is they get into the term normal agricultural practices, which this discussed. Let's dive off into that a little bit. It clarified some language on that subject. Is that correct?

The Markitory Bird Treaty Reform Act did not. It did not. Like I said, when you look at what that act did itself, it's actually pretty boring. It was an act, it was public law 105-312 of the 105th Congress. You can find it's how it was, HR 2807, all this stuff is out there. It's official. I mean, it's one page of the amendment. And the language that it amended is, I don't know, maybe 75 characters, 75 words, not characters, 75 words, it's not much. So it didn't change the definition of baiting. Now, and I'll say it a little more bluntly. I think what they're talking about when they make this claim about the MBTA legalizing baiting, they're talking about hunting over flooded corn, right? That's the big thing. That's the big, that's the flag under which they're-

A self in the room.

Some of these criticisms and actually some of these false claims. And so, let's just, we'll take that head on here in a second. But I do want to, I do want to talk about what the rule making process did that was happening. I think it came out after the passage of the MBTA, because whenever you, of the Reform Act, because when you're making these rules, you need to make sure that, especially of the type that we're talking about here, you need to make sure that they can form to whatever new changes have been made to the act. And so some of this has to happen in sequence. So, but I'll go back a little bit to the early 90s. Again, this gets to the point about it was a confusing time. It's confusing to go back and try to sort through some of this quickly. Now if you take some time, invest some time to figure it out and look at what was happening, then you can get to the final documents that are very, very clear about what they did or did not do. But during the 90s was a time when moist soil management was becoming a, moist soil management we know is where you're manipulating the soil and the water and the timing and treatments to the soils to encourage the growth of natural vegetation, grasses and sedges, weeds as most people call them, to maximize the production of the seeds that those types of plants produce. And that happens over the spring and summer months. And then once fall and winter rolls around, you can intentionally put water on those areas and ducks will love it. Moist soil management was becoming more and more popular around that time. Some people were wanting to kind of manipulate the vegetation of that natural vegetation in advance of the hunting season. There were also some situations in which people were worried that... But they were also concerned that some people may see that as a baiting violation because on the books at that time was... In the rules was something about... I don't have the right exact words, but it was illegal to manipulate vegetation, you know, and create sort of a baited situation. So there was this time when a new management practice was gaining popularity and there were people that was concerned about how certain... how the rules may be interpreted. And so they wanted clarity on whether moist soil management and the manipulation of that vegetation in advance of the hunting season should be considered baiting. That is one of the things that was happening in the 1990s. But it did not get addressed through the Reform Act itself. It got addressed through the rulemaking process. So, there was also a situation. If you think about what moist soil vegetation is, grasses, sedges, wheat, these things grow up in fields, regardless of whether you're manipulating the soil or manipulating the water. And a lot of people will go into those areas in late summer or fall, and they would bush hog those just as a normal activity, and then let's say a little ditch or stream gets out of its banks and ducks go into those areas. Can I hunt over that? Is that going to be considered a baited area? Because I had gone in there a few weeks prior, and I would have bush hogged it, scattered the seed as a result of that bush hogging. There was also some concern about that, that the way the existing rules were written didn't provide enough clarity and certainty about how some of those activities would be viewed in light of the existing baiting rules. So, that was, there was a lot of discussion during the 90s, and much of the change is that some of the most substantive changes regarding baiting regulations that came out of that 1990 period related to, related to the issue of how to treat moist soil vegetation and manipulation of that vegetation. So, I'll try to shorten this and say there was a lot of comment period. Actually, the International Association of Fish and Wildlife Agencies commissioned a committee to study this because there was a lot of concern that this could dissuade people from engaging if it was deemed to be illegal to bush hog a moist soil area or natural weeds and sedges and then hunt over that. A lot of people were really concerned that it would dissuade those types of management activities and research was showing that there's a lot of good food resources in those types of areas. It's very nutrient diverse. It's got good energy. It's got good fats. It's got good proteins. The seeds are resistant to decomposition, moist soil management, natural vegetation. The seeds it produces are what ducks evolved to use. There was legitimate concern that any overly burdensome regulations or rules that would cause those manipulated areas to be considered baited would curtail that type of very valuable habitat management activity. So that's what would the central, the main focus was. So there's a lot of discussion, proposed rules, there are a lot of public comments that were received. In the end, and let me actually find this, there was a rule published in the Code of Federal Register Thursday, June 3rd, 1999, Department of the Interior Migratory Bird Hunting Regulations Regarding Baiting and Baited Areas. It's 50 CFR Part 20, yada, yada, yada. But it is from, yeah, Thursday, June 3rd, 1999. And so this would have been after the Reform Act. And so this is again, making sure that the rules that are written and promulgated are consistent with any new changes in the act itself. And it said, we're mending the baiting regulations that apply to any persons taking migratory game birds in the US and yada, yada, yada. They include new definitions for baiting, baited areas, normal agricultural planting, harvesting, and the things that you talked about as well, Cason. So ultimately, the original proposal was, the original proposal of the Fish and Wildlife Service put forward was to say that you can hunt a moist soil area so long as it hasn't been manipulated, mowed, or whatever, within 10 days of when you hunted it. There are a lot of comments, and again, we're talking only about moist soil vegetation here. Flooded corn, all that type of stuff, they weren't even on the table. They weren't even part of this discussion. I'll get to that in a second. I'll tell you what I know about that as well. This was just about that natural moist soil vegetation, whether those areas are intentionally managed or not. The original proposal was to make it illegal to hunt those areas if they had been manipulated, mowed, et cetera, within 10 days of when a person was hunting there. But then that cost a lot of people to say, well, wait a minute, what if I'm just doing bush hogging of my natural areas and then I get some, I get a rain, you're saying that I can't go hunt that within 10 days. And so it also would be very difficult to enforce some of these things, knowing exactly when it was bush hogged or whatever. And that's another part of making rules is that they have to be written in a way where they can be, to the extent possible, provide certainty and make it easier to, fair to, to enforce, objective to enforce. And so ultimately, the final rule that came out, that 10 day restriction was removed. And it basically said in these moist soil areas where they characterized by natural vegetation, there is no prohibition on manipulating those and then hunting over those, regardless of the time between when the vegetation is manipulated and when you hunt on it. So that's one of the things that it clarified. And that was seen as a big win for habitat management and the value that that practice provides to meeting the nutritional needs of waterfowl really in a diverse way and in a way that flooded agricultural crops cannot. And so there's another important thing associated with that that I'll talk about in a second. It deals with planted millet and how they treated it in this new rule. But I'll stop and we can, if y'all have any questions to clarify, we can touch on those.

Well, yeah, I'm sitting here reading from the transcript that I've referenced here before. And you can see, I've tried my best. I can't find who actually said this. But he's speaking here and he says, I quote, we're encouraging the development of habitat. We're trying not to unfairly punish those who are engaged in normal agricultural practices. What we don't want the Fish and Wildlife Service to do is insist that every time somebody engages in practices that nurture the development of wildlife habitat, that they have to treat the land as a wildlife refuge, end quote. Basically, what he's saying there is, we don't want everyone who improves habitat to be quote unquote guilty abating and then forced to not be able to hunt it. I think that is really defining the spirit of the law here in terms of where they did discuss normal agricultural practices. I'm glad you brought up the millet because that was going to be a follow-up question I had in her discussion. We had that discussion with Jim Ronquest on the show back months ago, in terms of some volunteer rice that came up. He asked me last fall what I thought about it. I said, well, again, I'm no expert, but you didn't plan it. I do think you're okay, because you're allowed to, you will obviously get into this with us here in a second. With millet, if it's volunteer millet, you didn't plan it. You can manipulate that like Moisul. But apparently, there's somewhere, and there's differing opinions on this, but somewhere there's a distinction between volunteer millet and volunteer rice. Maybe you might not be prepared to touch on that, but if you can, go for it.

I'm not equipped.

Neither am I. That's why I told Jimbo, I was like, just be safe and don't do it.

Jimbo called me about that same thing, and I told him, I said, well, I know what it says about millet. I do find it interesting that the rule that we're talking about here, again, we're beyond the Reform Act. None of this is in the Reform Act. This is the rule making process, which came out after that. The rules draw pretty clear, it appears to draw a pretty clear boundary around millet, as the planted millet, as the focus of this particular rule. I don't know on how volunteer rice, that comes up the next year, would be treated. Another important part of these new rules that came out was the recognition that, as you mentioned a couple of times, these identification of normal agricultural practices or normal agricultural operations, those things would be defined and interpreted at the state level, because normal is a, admittedly, somewhat subjective word. And what is normal in one state is not normal in another. And especially when you're talking about agricultural practices, farming practices, the way things are done in one area may not be done in another and may not be deemed normal. So this rule said that it will, what is defined or identified as these normal agricultural operations or practices will be defined at the state level by, I believe it is the Cooperative Extension Service, USDA, is that right? I think that's right. That's in here somewhere. That's right. That's the entity that's doing it. So that was made explicit with regard to planted millet. Essentially, it was treated as a planted crop. And you cannot manipulate it and then hunt over it during the year in which it is planted. Manipulate it, I mean by, I mean manipulating the vegetation itself, scattering the seeds and deliberately scattering the seeds and things of that nature. That would be considered hunting over a baited area if you hunted it. You can do that as long as you're not hunting or allowing, encouraging someone else to hunt it. That's another kind of distinction there. You can, a person could go out and plant some corn and leave it unharvested and then go in and mow it and flood it. There's nothing illegal about that if you are not hunting it or if you're not doing it to influence the hunting of somebody else. That's just a private property rights thing. It's like, can I go and do that? You're sure you can go do that. But we're talking about situations here that fall under the definition of baiting within the Migratory Bird Treaty Act where people are doing these things for the sake of hunting migratory birds. But yes, planted millet during the year in which it is planted is considered essentially the same as a planted crop. If you go and manipulate it and hunt over it, that is considered baiting and a violation, hunting over a baited area. So, yeah, that's how that turned out. Now, it does also say that if that millet, if some of that millet comes up voluntarily the following year, then it is considered to have sort of become naturalized over that year. And you can then manipulate the vegetation and hunt over it without being, without fear of being cited for hunting over a baited area. So, again, that's what I know about that. I do not know about volunteer rice that comes up the following year. I have my thoughts, but that's not worth, that's not, yeah, that's not worth very much.

It won't save you in court, will it?

No.

Yeah. It would be neat or interesting to find if there is a distinction and why the decision is. I mean, again, I have my thoughts, I express them to Jimbo, but yeah, they're not worth much. They're just my own thoughts.

And what I told Jimbo, I'm like, man, get in touch with your federal agent, or your state wildlife agent. See what they say, get as much information as you can, because you do not want to be, you don't want to find yourself inadvertently in a violation situation there. So that's my, always will be my advice. Check the people that, check with the people that are authorized to make those determinations. And yeah.

I don't want to give up too much, and I'm not gonna name any names here, but he did talk to a retired federal enforcement agent who told him, go for it, make them prove you wrong. And Jimbo was like, well, I'm not really willing to take that risk. I told him the same, I was like, well, I'll stand behind you and hope it works out.

We'll be in the courtroom watching you, Jimbo. We'll hold up the fathead signs of you as a baby and all that kind of stuff. So the other thing that I do want to talk about is, and this is what you hear, is that the MBTA Reform Act made it legal for the first time to hunt over flooded, unharvested corn. 100 percent false, absolutely 100 percent false. The Migratory Bird Treaty Reform Act and the rules that we just talked about changed nothing about the way hunting over flooded, unharvested corn is viewed in federal migratory bird hunting regulations. Changed absolutely nothing as far as I can see. I'll add that small caveat. But what we did in this article, one of the best ways to prove that in my mind was to go back and find regulations from decades prior and see what they said, if anything, about the permissibility of hunting over flooded, unharvested corn. Cason, you can't get much clearer than some of what we found. There you can find some summary language about how these exclusions for hunting over unharvested, flooded corn originally came about in the late 30s. Baiting regulations came out in the 1930s and so forth. Even as early as those times, there was specific language. This is in that article, the Ducks Unlimited article on the website, changes to US migratory bird hunting regulations on baiting laws. If you guys include links associated with some of your podcasts, I can certainly make sure you have these. But you go back as early as the 1930s and it said, Nothing in this sub-paragraph shall prohibit the taking of such birds over standing crops, flooded standing crops, including aquatics, flooded harvested croplands, green crops properly shocked on the field were grown or grains found scattered solely as a result of normal agricultural planting or harvesting. That was laying it from back in the 30s. I also found it in the Migratory Bird Regulations put out for the 1959 and 60 season, as well as for the 61 and 62 season. These things are super cool to look at. It says the exact same thing. Nothing, it says nothing, or let me make sure I get this right. Shall govern the methods, be taken only. Trying to make sure I find this. Yeah, it's permitted methods. This is phrased a little bit differently. It says permitted methods. It has a paragraph, on or over standing crops, including aquatics, flooded standing crops, flooded harvested croplands, grain crops, properly shocked, et cetera, et cetera, the same type of things I just read. So dating back to the 30s, the late 1950s, early 1960s, explicitly stating that it was permissible to hunt over flooded, unharvested or flooded harvested crops or other situations that are solely the result of normal agricultural planting or harvesting. I mean, there's a lot, I deal with a lot of uncertainty in the work that I do, Cason and Brent, in terms of natural phenomena and behaviors and what birds are doing and so forth. People ask all the time, what are the things that are responsible for changing distributions of waterfowl? And so a lot of things that play there, there's a lot of uncertainty there. I don't know if there's anything that I've ever dealt with in my professional career where I can read something and be as certain as this right here. And so it is so frustrating when you hear this narrative about how a piece of legislation made it legal to do this for the first time in 1998. People have been able to hunt over flooded standing crops since baiting regulations were first put in place, period.

Yeah, it really, it's so plainly written. It makes this show, this episode, just really redundant. Unfortunately, it felt like we needed to since this was coming back up again. And that's always my reply to anyone that brings us up. Like, oh, they changed everything when they legalized it. Like, hang on, I have pictures of my grandfather standing in rice that was flown with an airplane into a deadening in the early 1960s, and they hunted over that. Fast forward into the 80s, there were government programs for cover crops. We, through government incentives, whatever, was set aside ground, grew Milo, grew Millet, whatever, you know, we wanted to that year, as a cover crop flooded and then hunted over it. This has been going on for decades, and it is nothing new, nothing changed. So they have this idea that somehow down the bottom of this rabbit hole is this big change that affected the entire flyway. It's just a fallacy. It's not true.

Yeah. Now, you can have your opinions about whether that should be considered baiting. You can have your opinions about a whole bunch of other things. That's fine. That's not what this is about. The other thing is you can say, well, I bet there's more of that happening right now than there used to be back in the 30s and 50s and 60s and 80s, etc. Maybe so. I know there are a lot of people that are asking that question. I have wondered that myself. There has been some work to try to answer that through remote sensing analyses. It has proven very difficult to confidently classify those type of cover types, flooded, unharvested corn or flooded, unharvested agricultural crops more broadly. Through those remote sensing methods, maybe we'll someday get there, but we won't be able to go back as confidently and look at what the extent of that was in the 60s or 70s. That's a different question though. Look, if you want to ask that question, we can have that conversation all day long. That's a legitimate question to ask. Whether it should be considered baiting, that's another issue in its entirety, and that's an issue that I'm not going to get involved in. Ducks Unlimited is not going to get involved in. The other thing that I'll say is that, given what we've talked about and the clarity of what that MBTA Reform Act did or did not do, there is just no debate here, Cason, on this idea that all of a sudden in 1998, hunting over flooded standing corn became legal. It's just not true. And so if you're listening to someone who is advancing that narrative, I would encourage you to question everything else you're hearing from that person or from that group, because something as clear as this, I mean, if that person or that group doesn't get this right, I can't really, I have to be very skeptical of anything else that they're telling me. That's just the way I view these things, because there's a lot of information out there. People will ask all the time, how do you know what to trust? I don't think there's a simple rule other than be a critical thinker. Question everything, and that is why whenever this first came up, one of the instinct of a lot of people in our profession was to say, we're not even going to dignify this with a response, but I think that would have been a mistake, because it would have gone against what I just said, in encouraging people to always be a critical thinker, always be willing to ask the question. Okay, and I'm absolutely 100 percent there, always be willing to ask the question. But when you look into it, and you get the answer, and the answer is as clear as this one is, then there's your answer. Once that is the case, that becomes evidence that you can use to help determine how much of this other information that a person may be sharing with you, that you would believe. So how do you know what to believe? It's a weight of evidence thing in my mind, and it requires you to always be a critical thinker and ask the questions, and don't always just assume that you know the answer going in, or believe that your view is correct. Be willing to do the extra legwork to do some research, and be willing to admit that you're wrong. That's the other thing. But it is frustrating. And again, it's like, do we even dignify this outlandish claim with a response? I think the answer in this case, as we are doing here, is yes. Because people need to know, people need to hear some of these things, so they can help form opinions on who it is that they're trusting when they're hearing these things, and where they're getting this information.

Yeah, yeah. That's a great point. And all three of us know, duck hunters nowadays have a lot of questions, and they're trying to sift through things, not necessarily all conspiracy theories, and not necessarily all misinformation. They're just trying to understand, and when something doesn't make sense to them, you know, they scratch their head a little bit. I mean, Cason and I have spent a lot of time kicking around things that don't quite make sense, and so I think you're right. It's okay to ask questions and try to get to the answer, and that's why we wanted to go this route with the Migratory Bird Treaty Act, the Reform Act, because there's confusion out there on exactly as you said, it is black and white of what you can or cannot do. Some things aren't so clear. That's just the nature of how the world works, but this one's pretty clear. And I think you're right. I think there's a great debate whether you believe it's baiting or not. I can see both sides of the fence on that all day long. I think there is more unharvested crop left than there used to be, so it's become a bigger issue. I don't know that. I don't get an airplane and fly over and read all that, but you go on crop reports and you could see harvested and unharvested. And I bet if you went through there and spent all the time with all that by each state, you could probably determine, yeah, but then you got to figure out, okay, is that even a duck hunting part of the world? I mean, it could be unharvested corn in a part of the world that doesn't even draw a duck. So it'd be hard to extrapolate all that. But I will say this, and this is anecdotal, I think baiting goes on, true baiting goes on more than we're probably led to believe. You hear it, I mean, you hunt, you hear somebody shoot a lot, and when you go visit and hunt someplace else, now you would know if your neighbors, odds are you would know if your neighbors were doing it because you know how good a piece of property is in your neighborhood, and you know whether they should be shooting the amount that they're shooting. But when you go home with someone else, and you hear just a bunch of volleys, a bunch of volleys, you're like, man, who's that? That's so and so, and word is they're doing this. And you hear that a little more. I think that people are that desperate to kill a duck.

Yeah.

I think that's out there.

I don't doubt that. I'm not going to disagree with you on that. I also, I probably would not disagree with you on the idea of there being more flooded, unharvested corn out there right now than there was in the 90s, 80s, 60s. I don't know how much more it is. I have to believe there is more because people are managing their properties more intensively and so there's... I would be surprised if there's not more of that happening now. I try not to get too far out over my skis, given the position that I'm in, wanting to always make sure I've got the data, but I would be surprised if there's not. But to me, the critical question is, if there's not more, the critical question is how much more. The other, yeah, and so, then to your, does it go on more than we would like to believe? Probably so. I think what you said about people are that desperate to kill a limit of ducks or just kill ducks itself. I've heard it enough from other people to kind of telling a few anecdotal stories to make me think that, yeah, you're probably right. Whether it has increased now over whether it was 10 or 20 years ago, another interesting question. I really don't have a good feel for that.

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Yeah, yeah, for sure. Do you guys include links associated with your podcast or not?

Yeah, we'll do that. If you'll get those across to us.

I'll send you a few things and I'll at least send you that DU article. I don't know if it has links to any of these other documents in it or not, but we might even see if we can get some of those added, if I could find them. But anyway, yeah, I'll make sure you at least have that article. And I appreciate the opportunity. It's always good talking with you fellas. And it's springtime and y'all are busy planting and doing other things. And I'm getting antsy about what we're going to learn from the B-Pop numbers kind of later on this year. And I suspect we'll reconnect at some point about that.

That's what I was going to say. It's not far from survey season. We'll have to have you back on when we can discuss some numbers. So, yeah, it'd be interesting to see. I used to try to formulate a guess as to what I thought it was going to be, but I don't know. I'm just waiting and seeing at this point. This is kind of how I feel about our springtime. Just wait and see now.

Yeah.

All right.

Well, thanks again. Thank you all for tuning in to another episode of The Standard Sportsman. You can find us online at standardsportsman.com or anywhere you get your podcasts.

Duck Hunting Podcast, Arkansas duck hunting, waterfowl conservation podcast, outdoors podcasts