ELR Citation: ELR 20480
No(s). 00-31437 (5th Cir. Feb 15, 2002)

The court affirms the conviction of a hunter for possessing ducks in excess of the two-duck daily bag limit in violation of §703 of the Migratory Bird Treaty Act (MBTA). The hunter claimed that he only shot two ducks and that his dog, badly trained, retrieved the remaining ducks, which were shot by other hunters. The other hunters corroborated him story. The court first holds that daily bag limit violations are strict liability offenses. The hunter relied on cases involving baited field offenses, which require proof of intent, for the general proposition that all misdemeanor offenses under the MBTA require intent. Baited field offenses, however, present a unique risk that unsuspecting hunters will be held responsible for the unlawful conduct of others, namely, the actual baiting. Further, other courts have held that misdemeanor possession offenses under MBTA §703 are strict liability offenses. The court also holds that the hunter failed to present a justification defense. He argued that were he to leave the other hunters' ducks in the water, he would be committing wanton waste in violation of MBTA regulations. The regulation concerning wanton waste, however, does not apply to an individual who leaves a bird he did not shoot. Consequently, because there is no question that the hunter was in possession of a number of ducks in excess of the daily bag limit, and because he failed to satisfy the requirements for a justification defense, the court affirms his conviction.

The full text of this decision is available from ELR (6 pp., ELR Order No. L-453).

Counsel for Plaintiff
Stephen Higginson
U.S. Attorney's Office
501 Magazine St., New Orleans LA 70130
(504) 680-3000

Counsel for Defendant
Vincent J. Booth
Booth & Booth
110 Veterans Blvd., Ste. 202A, Metairie LA 70005
(504) 482-5292/838-8534