Bag limits --strict liability offense

[Po Monkey Lounger]

Came across a recent federal 5th Circuit Court of Appeals decision re violation of federal bag limits that I thought might be of interest to some of you. In US v Morgan, No. 00-31437, the 5th Circuit held for the first time that possession of migratory game birds exceeding the daily bag limit, in violation of the Migratory Bird Treaty Act, is a strict liability offense. This means that if you are over the possession limit, for ANY reason, you are in violation of the law. There is no legal excuse. Intent has nothing to do with it. Sounds harsh, but probably good for the greater good. Something we all need to think about the next time we consider taking out someone else's ducks, allowing hunting partner to leave without taking his ducks, mixing bags in the field, etc.

[TMoore]

I'm still going to let THE DUCKSLAYER carry my limit out every time. It makes him feel good !


Damn water of course !!!!!!!!!!!!!

[Lacuna]

Can you have possession of a limit, but no have a hunting liscense?

We used to just give one guy all the ducks on a run and somebody else take the next ones and take them to be cleaned.

Can't do that without big trouble I suppose.

To be honest it doesn't matter because only fear enforces those laws, they certainly don't have the manpower to enforce them.

[Po Monkey Lounger]

I think the "duck run" you described would not be a legal excuse if you were over the daily bag limit on the "run".

In the Morgan case, a hunter was in his pirogue with birds over the limit. He claimed that he did not intend to violate the bag limit and that his dog had picked up birds that had drifted from other hunters. (I am not making this up, he blamed it on his dog ). Well, the federal warden and the court did not bite (pun intended).

Some suggestions. Don't get caught in the field with birds in your personal possession over the daily bag limit ---period. Also, there is no bag limit for your dog ---any he gets counts toward your limit. [img]images/smiles/icon_biggrin.gif[/img]

[Meeka]

The story is in the La. Sportsman print edition. I could not find it on the website, though.

I recall from the mag. article that the hunter claimed that other hunters shot the birds and they drifted over to his area and his dog retrieved them. He claimed his dog was poorly trained. So he finished up and the wardens stopped him in his pirougue and he had the extra few ducks. The impression I got was that the evidence bore his story out - that the other hunters actually shot the extra birds.

[Morning Wood]

(excerpts)
Morgan, accompanied by his dog, hunted in a pirogue approximately two hundred yards away from the rest of his party. Morgan was picking up his decoys and returning to the main boat when Agent Gary Pierce of the Louisiana Department of Wildlife and Fisheries pulled alongside. Agent Pierce discovered eight ducks in Morgan's pirogue, which exceeded the daily bag limit by two. Morgan told Agent Pierce that not all of the birds belonged to him and that his dog had picked up birds that had drifted from the other hunters.
At trial, Morgan testified that he shot only two ducks, but that his dog retrieved an additional six ducks that two other hunters had shot. The two hunters corroborated Morgan's testimony. Morgan admitted that he knew that he was in possession of birds in excess of the legal limit, but he defended his conduct by explaining that his dog retrieved birds shot by other hunters because it was poorly trained. Morgan stated that he accepted the other hunters' birds in order to keep his dog from developing the additional bad habit of eating the birds that it retrieved. He explained that he failed to return the birds to the other hunters immediately because he was wet and cold and he wanted to get back to the main boat before becoming ill. Finally, Morgan argued that his conduct was justified because he believed that refusal to accept the birds would constitute "wanton waste" in violation of another MBTA regulation.
. . . .
In light of the above case law, the express intent of Congress, and the nature of the violation, we hold that possessing migratory game birds exceeding the daily bag limit in violation of the MBTA and its attendant regulations is a strict liability offense. [FN6] Because there is no question that Morgan was found in possession of a number of ducks greater than the daily bag limit, the evidence presented at Morgan's bench trial was sufficient to support his conviction.
. . . .
Alternatively, Morgan argues that his conduct was justified because he had no legal alternative to violating the law. Specifically, he argues that his conduct was justified because he thought that if he left the other hunters' birds in the water, he would be committing "wanton waste" in violation of 50 C.F.R. § 20.25 ("No person *327 shall kill or cripple any migratory game bird pursuant to this part without making a reasonable effort to retrieve the bird...."). In fact, as Morgan concedes, the regulation concerning wanton waste does not apply to an individual who leaves a bird he did not shoot. As a result, Morgan fails to satisfy one of the elements of a justification defense.

In sum, we hold that possessing migratory game birds exceeding the daily bag limit in violation of the MBTA and its attendant regulations is a strict liability offense. Because there is no question that Morgan was in possession of a number of ducks in excess of the daily bag limit, and because he has failed to satisfy the requirements for a justification defense, his conviction is AFFIRMED.
(dissent)

EDITH H. JONES, Circuit Judge, specially concurring:
While I agree with the panel's conclusion that current caselaw requires this statute to be construed as a strict liability offense, I note that Dr. Morgan did not base his defense on the meaning of "possession" under § 703. That is, he did not argue, and this opinion does not reach, whether the "possession" of migratory birds prohibited by § 703 must be more than merely constructive, incidental, or transitory. Otherwise, affixing strict liability for violating this statute could easily lead to absurd consequences, such as the criminal conviction of a hunter who was simply carrying the ducks of a disabled friend. The law should not be construed to invite absurdities.

[GulfCoast]

We had a discussion about this opinion a while back, too. I have had THE MAN get onto me before for having 2 limits on a strap, and carrying the guns out while the other guy hauled out the decoys. SO, I don't do that anymore, either.