ELR Citation: ELR 21596
No(s). 94-5481 (4th Cir. Aug 28, 1995)

The court affirms misdemeanor convictions of three individuals for hunting mourning doves over an area baited with scattered wheat seeds in violation of the Migratory Bird Treaty Act (MBTA), holding that there was sufficient evidence to find that the seeds had not been scattered in the course of "normal agricultural practices" or "bona fide agricultural procedures" under 50 C.F.R. §20.21(i). The court notes that in a pamphlet interpreting the regulation, the U.S. Fish and Wildlife Service (FWS) indicates that the intent of the person who spread the grain is not determinative of whether the spreading was performed in the course of normal agricultural practices; rather, the inquiry applies an objective standard, asking only whether the grain is spread bymeans of the methods used in the area to produce a crop. The court determines, however, that the FWS' interpretation of bona fide agricultural procedures is ambiguous and that the court must resolve the ambiguity as to whether the regulatory exception applies a subjective or an objective standard. The court holds that a subjective interpretation of the regulation is plainly erroneous and inconsistent with the BTA's regulatory scheme. Such an interpretation would mark a radical shift in the regulatory scheme, yet the FWS manifested no intent to do so when it adopted the regulations. Also, such an interpretation would lead to the absurd result of requiring the prosecution to prove an intent element when Congress intended that misdemeanor violations of the MBTA be strict liability crimes. Furthermore, an interpretation requiring proof to the subjective intent of the person who scattered the grain would stymie enforcement of the MBTA. The court thus holds that the exceptions for normal planting and bona fide procedures both refer to an objective measure of the community's agricultural practices. Finally, the court holds that there was sufficient evidence from which a reasonable trier of fact could have found that the wheat scattering at issue was not an objectively normal and bona fide agricultural practice of the area.

Counsel for Plaintiff
Ethan L. Bauman, Ass't U.S. Attorney
U.S. Attorney's Office
820 U.S. CtHse, 101 W. Lombard St., Baltimore MD 21201
(410) 962-4822

Counsel for Defendants
Stephen S. Boynton
1015 Moorfield Hillgrove, Vienna VA 22180
(703) 281-0207

Before Ervin and Phillips, JJ.