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There is no law against bird lovers seeing to it that their friends are fed during the cold weather, but the government says this does not apply to hunters who get too corny

On a sweltering night this past summer at the Tidewater Inn in Easton, Md. a group of drinking men were talking about gunning, a subject that is as much a part of life on the Eastern Shore as fishing and crabbing. Briefly stated, the conversation went like this:

"There we were, the wind howling, and ol' Bill, he was trying to handle that damn skiff and the two of us were rolling and hanging on to the gunnel with one hand and trying to dump that corn over with the other. Well, the boat was pitchin', and was it cold? My hands near froze. It was all we could do to corn that blind properly and not get swamped."

A second man, younger than the others and obviously a stranger in town, cut in.

"But isn't that baiting? I mean, putting all that corn out to bring the ducks in. It's illegal, isn't it?"

"Look," the shoreman replied, "I don't know where you gun, but if you go down here, you bait. Sure, it's illegal, and you got to watch for them federal boys snooping around. But at our club we got a eight-foot steel fence around the marsh and telephones in every blind connected to the guardhouse at the main gate. They have a hard time getting to us before we're back in the clubhouse playing cards. They can't touch us. Hell, you jest ain't getting your money's worth if you don't sweeten up your goose field or dump a few bushels of corn around your shore blind. That's what the birds want. The guy on your left is doing it, and the guy down the bay is doing it. If you don't do it, too, why you're gonna get no gunning at all."

As every waterfowl hunter in the U.S. knows, or should know, it is illegal, under the Migratory Bird Treaty Act, to shoot or even attempt to shoot wild ducks and geese over any area that has been deliberately baited with corn, grain, soybeans, sliced yams, Fritos or any other feed that acts as an enticement to such birds. In other words, you may not spot-bait—dump a bushel of wheat in front of your duck blind or pile up ears of corn around your goose decoys in a cornfield. But it is perfectly legal to shoot in a standing corn crop or over a flooded rice field (SI, Oct. 3) or over any harvested crops, provided they are harvested in a "normal" manner and not manipulated with a disc harrow or a log dragged behind a tractor so an excess spillage is scattered around. If you can afford it, you can legally farm your land strictly for the birds, by planting natural waterfowl foods such as duck potato, sago, widgeon grass, browntop millet and wild rice and celery, flood the fields in the fall and bang away.

No other game law in the U.S. is as confusing or as widely flouted or as difficult to enforce. Roughly 90% of the country's wildfowlers shoot over some form of bait, legal or illegal, and the line between the two is often so fine that many hunters are never sure exactly which side they are shooting on. As one disgruntled hunter puts it, "We are hunting waterfowl under a double standard."

The law against baiting was added to the federal waterfowl regulations in 1935, when severe droughts and dwindling habitat had so diminished the supply of ducks and geese that many people advocated closed seasons for three or four years. But the late Ding Darling, then the chief of the Biological Survey (now the Fish and Wildlife Service) instead decided to shorten the season, reduce bag limits and abolish two hunting methods—live decoys and bait—that invariably resulted in overkill. Dr. Ira Gabrielson, a former chief of the Biological Survey who is now president of the Wildlife Management Institute in Washington, feels that the baiting law came just in time.

"There's really nothing so terribly immoral about spot-baiting," Gabrielson says. "It's just that it is too damn effective. The whole idea, of course, is to gang the birds up, to hold them with feed in one area and keep the shooting going hot and heavy. And it works. Corn is particularly effective because it is ideal cold-weather fuel. Ducks and geese will come from miles away to a pile of bait, passing up the best clumps of natural foods and standing or harvested crops on the way."

Aside from the fact that baiters are killing a great many birds illegally, the greatest danger is that heavily baited areas can hold the birds too long in one place. This means they are not migrating south to their normal wintering grounds on schedule and not giving other shooters in the flyway their fair share. Ducks and geese will stay anywhere as long as there is enough food and open water. But once the season is over, most baiters cut off the feed and the birds often get caught in blizzards, sleet storms or iced-over water and simply waste away. The waterfowl population fluctuates each year. This year it is up, but over the past 13 years it was down nearly 20%. Most hunters continue to bait despite the shortage because it is traditional—like hillbilly moonshine. It conjures up "those memorable old days," such as Richard Parks describes in Duck Shooting Along the Atlantic Tidewater: "It is unbelievable how...the ducks came in to these towers of Babel [baited booby blinds on Virginia's Eastern Shore]. When baited with corn, even the shrewd old Blackies would stool to them on most days. But then, as one old waterman once remarked, 'Yer kin bait a Black-duck up a concrete road'...half the fun was watching the pet quackers [live decoys] take little baths between flights of their wild brethren, when baiting was the proper way to localize ducks, when you naturally shot as long as you could see—sometimes when you couldn't—when you staggered home under weight of ducks enough to feed the neighborhood." Sometimes the toll was more than enough to feed an entire village.

Ah, those good old lawless days are gone forever. Or are they?

Anthony Stefano, former chief of the Fish and Wildlife Service's undercover operations, recently estimated that at least 500,000 migratory birds are killed illegally every year in the U.S. There are no figures available on how many of them are shot over bait. Federal and state game wardens last year brought more than 500 cases of waterfowl baiting to state and federal courts. The federal courts have ruled consistently that the government does not have to prove intent or knowledge on the part of the hunter. "In other words," says a government man, "the birds are just as dead, one way or another." The government naturally will not even hazard a guess as to how many hunters were not caught, but in the states where baiting is most flagrant—Maryland, Virginia, North Carolina, Delaware and New Jersey—there is good reason to believe that 50% or more of all the ducks and geese taken during the season are shot over illegal bait. Baiting is so commonplace that only the most prominent gunners make the papers. Among those caught and fined during the 1965-66 hunting season:

•Senators Eugene J. McCarthy (D., Minn.) and Edmund S. Muskie (D., Maine), on a friend's Eastern Shore farm. Forfeited $27.50 each, plus court costs.

•Robert M. Carpenter Jr., owner of the Philadelphia Phillies, and his son, Robert III, on their farm on Maryland's Choptank River. Fined $100 each—they were second offenders.

•Congressman Charles A. Halleck (R., Ind.), at a private club near Morehead City, N.C. Fined $34.40. Presented with the evidence (wardens found rows of corn three or four feet across within 20 or 30 feet of the blinds), Halleck said: "The warden scratched around and found a few kernels of corn."

Not surprisingly, the government is well aware of the inequities in the baiting regulations. Says Allan T. Studholme, chief of enforcement and management for the Bureau of Sport Fisheries and Wildlife: "To most people, the very idea of shooting or trapping ducks for the market is repugnant, but putting out a little bait—or a lot—doesn't seem so bad. Yet they are both federal offenses, and they should be. Sure, the man who can afford to belong to a private duck club gets far superior shooting most of the time. But you must remember that most clubs—and refuges—provide room and board for the birds. What some hunters do not seem to understand is the important difference between shooting over legal crops—standing, harvested or flooded—and over spot bait. Ducks and geese will not necessarily come anywhere near a blind in a flooded corn field. The feed is too widely dispersed. But you sweeten up a field with concentrated feed—fresh, yellow shelled corn piled around your goose decoys—or dump a bushel or two in the water around a point blind, and the birds will pour right into it, plain and simple."

One decided advantage to the baiting law is that it helps keep the annual harvest of birds down. If universal baiting were permitted, several million hunters could take several million full bags of ducks and geese several times a season. To compensate for such high hunter success, the government would have to cut the seasons and bag limits. But the entire continental waterfowl resource might well be wiped out, and by then any such cutback would be academic.

In 1953, after a rash of raids in Maryland by federal agents, influential gunners and politicians tried to pressure the government into legalizing baiting. When that failed, they simply pushed a ruling through the state legislature making it legal to put out bait, as long as it was 200 yards from any blind.

Finally, in 1959, at Governor McKeldin's urging, the state law was amended to conform with the federal regulation. Baiting violations have decreased somewhat, but many baymen refuse to conform, and they have become more ingenious at circumventing the law.

There are some 4,400 state game wardens in the U.S. and, for the most part, when they are not tied up supervising native game seasons they are encouraged to work freely with the 155 federal agents who patrol every state but Hawaii. Even in those states where the political strings are taut and encumbering, there are a few who will always tip the Feds whenever a baiting operation is spotted. Still, a surprising number of hard-core baiters go undetected, or at least manage to avoid being caught year after year. In Assawoman Bay on Maryland's Atlantic coast, hunters stand small trees up in the shallow water and bait them with corn before the season. By the time the season opens, the ducks are flocking in to feed. The night before opening day the trees are moved to within shotgun range of the blinds. No more bait has to be put out. The birds will continue to home in on these "watermarks" for several days or more.

There are other equally deadly methods, and the evidence of baiting is often hard to get, but the government is also becoming more resourceful. In Maryland, Delaware and Louisiana, wardens in helicopters hover over suspect blinds and direct other wardens on the ground or in boats. When Defense Attorney Robert Carson complained in court that wardens had descended on the Carpenters by "land, sea and air," Judge R. Dorsey Watkins snapped back: "What about submarines?" The government is setting up a central computer system in Washington into which will be fed a complete dossier on all accused baiting violators in the U.S. Thus all repeat offenders will be subject to stiffer fines.

One painful weakness in the baiting regulation is that far too many innocent gunners are caught and fined. In tidal waters kernels of corn and other grains can drift or roll along the bottom, and sometimes they end up in front of someone else's blind. Worse, it is a simple matter for an angry or greedy hunter to bait his neighbor's blind and then tip the wardens. Many innocent gunners, however, are caught at commercial camps.

A Maryland lawyer recently complained that he did not believe the law "required people to conduct a mining operation when they go out to hunt." In fact, that is exactly what the law does require. Says Charles Lawrence, assistant chief of management and enforcement for the Bureau of Sports Fisheries and Wildlife: "You don't have to be an agricultural expert to detect bait in a goose or a dove field. But then it is pretty difficult for a hunter to see corn in 10 or 12 feet of water 50 yards offshore from a duck blind." Wardens often can spot bait from the air. They have color slides taken from 1,000 feet that clearly show bushels of corn dumped from skiffs or spread over large areas by low-flying crop dusters. Wardens can also detect the presence of bait by watching the way the birds are working an area. Hunters can learn how, too, but they had better do so before they load their guns and enter a blind.

For every hard-core baiter, there are at least 10 penny-ante hunters who spread a little bait, which stands out like a cue ball on a billiard table. Says Lawrence: "We'll find nice golden-yellow ears of corn in a field at the end of January. Now that is not a late crop. How about piles of wheat in a cornfield or, say, 20 bushels of corn in and around a farm pond?" The majority of apprehended hunters plead guilty, in person or by mail, to the local magistrate or the U.S. commissioner and pay fines ranging from $25 to $50 for a first offense. Only the most serious violators are taken to federal court.

Many gunners truly believe that baiting, or, more politely, feeding, is absolutely essential to the welfare of the birds. Roy E. Walsh, a realtor and insurance broker from Easton, Md. who is chairman of Maryland's Board of Natural Resources, thinks feeding should be legalized and licensed on a permit basis. "The feed would be scattered at least 500 yards from the blind," says Walsh, "not only during the season, but until spring. That way we would be sending the birds we don't shoot away with enough stamina to winter over. The permit would knock out the blackleg—the guy who baits a path right to his blind and usually overshoots the limit."

The government argues that there are those who want to legalize baiting so they can get a limit of birds every time they hunt. "Feeding the birds is fine," says Charles Lawrence, "as long as you don't shoot over that feed."

But is feeding really fine? On many federal and state refuges, as well as on a number of large shooting clubs, the ducks and geese are growing so accustomed to the easy living that they have to be driven away with electric cannons, shotguns fired in the air and even planes, so they will continue south to their ancestral wintering grounds. When all else fails, young birds are trapped and transported farther south at considerable expense, in the hope that they will bypass the refuge cafeterias the following fall. "What we really have," says Dr. Gabrielson, "is a kind of vicious circle. Waterfowl habitat in the Canadian nesting grounds and in the feeding and resting areas of the U.S. is being permanently removed at an alarming rate. Everyone knows the reasons—dredging of river bottoms and bays, pollution and filling and development of prime marshlands. Ducks and geese are thus being more concentrated every year. As the circle tightens, I think we can expect to see more illegal baiting in the years to come."

The nation's bird baiters are now out again in full force—the commercial shooting camps, the private clubs, the individual hunters and the federal and state refuges—all trying to outbait each other. About this time several years ago, The Delaware State News carried an editorial headlined, WHIP THE BIRD BAITERS. It read, in part: "It's difficult to pity any so-called sportsman found guilty of baiting birds, which can be compared to dealing off the bottom of the deck...It's cheating. The fine for probably too lenient. Maybe a few lashes at the whipping post would serve as a better deterrent. After all, they used to shoot double-dealers."

Come to think about it, The Delaware State News has a pretty good idea there. There is one complication: Who should be tied at the post and who should administer the whipping?