# SD Commercial Hunting in the news



## Bob Kellam (Apr 8, 2004)

Jul 5, 1:43 PM EDT

Commercial hunting operations lose lawsuit

By JOE KAFKA 
Associated Press Writer

PIERRE, S.D. (AP) -- Owners and operators of hunting services in central South Dakota have lost a lawsuit with the U.S. Fish and Wildlife Service over threats of prosecution for certain farming and management practices.

U.S. District Judge Richard Battey had earlier ruled against the hunting services, and the 8th U.S. Circuit Court of Appeals on Wednesday upheld that decision.

The lawsuit against the FWS was filed in 2003 by a handful of people who provide paid hunting of waterfowl in Hughes County, a popular goose-hunting area adjacent to the Missouri River.

Arguing that they had violated no federal regulations and that FWS should back off, the plaintiffs said their farming practices were normal but also were designed to maximize goose-hunting opportunities.

Filing the lawsuit were Alex and Annie Falk of Aberdeen, Big Bend Ranch Hunting Inc., Bob Nystrom, and Mohammed Hattum. The Falks own a Hughes County ranch and lease hunting rights on the ranch to Big Bend. Nystrom and Hattum are landowners who also have commercial goose-hunting operations.

The federal appeals court noted that commercial hunting results in substantial income for those operators. For example, the court said Big Bend Hunting Ranch normally gets $284,250 in annual gross revenues from hunting - in addition to $9,000 in membership fees from its waterfowl-hunting club.

The plaintiffs said their farming activities help ensure that the hunting operations are financially practical by also helping attract waterfowl.

The Fish and Wildlife Service threatened prosecution of the landowners unless they prohibited waterfowl hunting on ground where grain has been harvested after Dec. 1 each year.

The Falks and Hattum had left corn standing in their farm fields to attract waterfowl, but the threat of prosecution forced them to cease hunting or harvesting in those areas after Dec. 1.

The landowners argued in their lawsuit that harvesting corn after Dec. 1 each year is a normal farming practice in South Dakota.

The appeals court disagreed, relying on testimony from Robert Hall, an Extension Service agronomist and professor at South Dakota State University. Hall researched records from 1970-1994 and determined that 95 percent to 100 percent of the corn harvest in South Dakota is typically done by Dec. 1.

Hunting over grain spread as bait has long been outlawed because birds will dive onto those fields and are easily shot.

The Migratory Bird Treaty Act, first passed in 1918, makes it unlawful to shoot waterfowl attracted by bait if a person knows or should know that an area is baited. Convictions can bring fines up to $15,000 and six months in prison.

The 8th Circuit also upheld a FWS determination that goose and duck hunting cannot be done in corn fields where winter wheat has been sown by aircraft because that is not a recommended farming practice.

The Falks also were advised by the appeals court that they cannot allow waterfowl shooting on their property after Dec. 1 if an adjacent landowner who competes for waterfowl hunters has harvested grain on his land after that date.

"Because harvesting corn after Dec. 1 is not normal harvesting, the neighbor's land was a baited area," the court wrote.


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## zettler (Sep 7, 2002)

Bob,

This is interesting and possibly scary. Here in Illinois, commercial, private and PUBLIC hunting areas use this practice (sans aerial winter wheat seeding). Would like to hear more as this baiting issue seems to crop up (no pun intended) every year...


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## WingedShooter7 (Oct 28, 2005)

Can you sum that up? I didnt really get it?


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## Old Hunter (Mar 8, 2002)

This is a no brainer its baiting. What I dont understand is why baiting is legal in the south. Growing corn and flooding it is not a normal agriculture proceedure. Correct me if I am wrong but isnt this a common practice in the south? Grow corn flood it then hunt it. The feds prevent us from hunting rolled corn and this is a normal ag practice. I think burned barley is off limits,again a normal ag practice. Maybe its time for another lawsuit .The State of North Dakota taking legal action to level the playing field may be the way to go. But then we Dakotans are good people and we dont sue others to take what they have.


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## Sasha and Abby (May 11, 2004)

Bait... :roll:


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## zettler (Sep 7, 2002)

Growing corn, millet and other related crops IS a common practice here in Illinois. At the Carlyle Lake walkins we look forward to hunting in flooded corn, millet and the like and it is never harvested except by the wildfowl. The only caveat is that if you do this, you cannot then simply knock the crops down as in to establish a landing zone without also either burning off the residue or removing it no later than (I believe) 10 days prior to hunting that area - otherwise, it is considered baiting. SOmeone else can better explain it but I hope you get the picture...

And that is why I have a dificult time understanding the fed's concerns here and over similar practices but then again, I am naive and have been married too many times... :wink: :roll:


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## zettler (Sep 7, 2002)

I copied this news item and posted it on our Illinois forum and here is one comment from today:

"I know that some corn in S IL doesn't get harvested until well into Jan. It is also harvested at a rate of a few rounds by the combine a couple times a week! I can see both sides but can't see how its not normal farming practice. What if you have a wet Nov and can't cut until Dec? Close all the hunting in the state?? Now if you are cutting 30" rows with a 36" head........"

*How does this jive with ND and SD???*


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## WingedShooter7 (Oct 28, 2005)

ok thanks for summing it up. Sorry didnt mean to offend anyone by not being smart enough to figure it out.


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## Old Hunter (Mar 8, 2002)

WingShooter7. The guiding operations in SD were leaving standing crops to attract waterfowl so they could poach them. What they were doing was illegal. It is called baiting. They were not following normal farming practices. 
Zettler farmers grow corn,millet, and other crops all over the country . Absolutley none of them flood their crops before harvest. These people plant a crop then flood it with no intention of ever harvesting it. Do you consider this normal farming practices? I'll call it duck farming. Modern Day Market Hunters (thanks h2ofowler) will do most anything to make a buck.


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## Old Hunter (Mar 8, 2002)

Zettler I in no way wish to belittle you or your hunting methods. I get a bit frustrated with the inconsistances in baiting laws. Farmers have been burning bad barley fields for 100 years. Corn not worth harvesting is rolled then the farmer digs it. I have never seen a farmer get his corn out in Jan and very seldom in Dec. If Its too wet or snow blows in the corn fields its usually shot. We have to tip toe around normal farming practices while others plant ducks favorite food then shoot over it.


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## zettler (Sep 7, 2002)

Old Hunter said:


> Zettler I in no way wish to belittle you or your hunting methods.


I realize that but you all have to realize that here in Illinois (at least) that state managed areas, commercial operations, private clubs, and the like ALL do this practice of planting crops specifically for waterfowl. In most cases it is never harvested by whoever farms it and in some they do it in strips but prior to the season.

I am no authority but for the life of me I was surprised the last two years over the discussion of "rolling" issues in ND and how it compared to what we do here in the Midwest...

Hopefully, someone more familar with the practices here and baiting laws can step in and elaborate.

And for the record, while I love hunting in flooded, standing corn or other similar crops here in the Midwest, I also love hearing the Mallards and Woodies bouncing off tree limbs in the flooded timber - also managed by the same organizations I previously mentioned. It wasn't till I started hunting in ND years ago that I learned the pleasure of field hunting ducks!


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## Bob Kellam (Apr 8, 2004)

The federal rules are pretty clear to me

See below

[Code of Federal Regulations]
[Title 50, Volume 2]
[Revised as of October 1, 2002]
From the U.S. Government Printing Office via GPO Access
[CITE: 50CFR20.21]

[Page 38-39]

TITLE 50--WILDLIFE AND FISHERIES

CHAPTER I--UNITED STATES FISH AND WILDLIFE SERVICE, DEPARTMENT OF THE 
INTERIOR--(Continued)

PART 20--MIGRATORY BIRD HUNTING--Table of Contents

Subpart C--Taking

Sec. 20.21 What hunting methods are illegal?

Migratory birds on which open seasons are prescribed in this part 
may be taken by any method except those prohibited in this section. No 
persons shall take migratory game birds:
(a) With a trap, snare, net, rifle, pistol, swivel gun, shotgun 
larger than 10 gauge, punt gun, battery gun, machinegun, fish hook, 
poison, drug, explosive, or stupefying substance;
(b) With a shotgun of any description capable of holding more than 
three shells, unless it is plugged with a one-piece filler, incapable of 
removal without disassembling the gun, so its total capacity does not 
exceed three shells. This restriction does not apply during a light-
goose-only season (lesser snow and Ross' geese) when all other waterfowl 
and crane hunting seasons, excluding falconry, are closed while hunting 
light geese in Central and Mississippi Flyway portions of Alabama, 
Arkansas, Colorado, Illinois, Indiana, Iowa, Kansas, Kentucky, 
Louisiana, Michigan, Minnesota, Mississippi, Missouri, Montana, 
Nebraska, New Mexico, North Dakota, Ohio, Oklahoma, South Dakota, 
Tennessee, Texas, Wisconsin, and Wyoming.
(c) From or by means, aid, or use of a sinkbox or any other type of 
low floating device, having a depression affording the hunter a means of 
concealment beneath the surface of the water;
(d) From or by means, aid, or use of any motor vehicle, motor-driven 
land conveyance, or aircraft of any kind, except that paraplegics and 
persons missing one or both legs may take from any stationary motor 
vehicle or stationary motor-driven land conveyance;
(e) From or by means of any motorboat or other craft having a motor 
attached, or any sailboat, unless the motor has been completely shut off 
and/or the sails furled, and its progress therefrom has ceased: 
Provided, That a craft under power may be used to retrieve dead or 
crippled birds; however, crippled birds may not be shot from such craft 
under power except in the seaduck area as permitted in subpart K of this 
part;
(f) By the use or aid of live birds as decoys; although not limited 
to, it shall be a violation of this paragraph for any person to take 
migratory waterfowl on an area where tame or captive live ducks or geese 
are present unless such birds are and have been for a period of 10 
consecutive days prior to such taking, confined within an enclosure 
which substantially reduces the audibility of their calls and totally 
conceals such birds from the sight of wild migratory waterfowl;
(g) By the use or aid of recorded or electrically amplified bird 
calls or sounds, or recorded or electrically amplified imitations of 
bird calls or sounds. This restriction does not apply during a light-
goose-only season (lesser snow and Ross' geese) when all other waterfowl 
and crane hunting seasons, excluding falconry, are closed while hunting 
light geese in Central and Mississippi Flyway portions of Alabama, 
Arkansas, Colorado, Illinois, Indiana, Iowa, Kansas, Kentucky, 
Louisiana, Michigan, Minnesota, Mississippi, Missouri, Montana, 
Nebraska, New Mexico, North Dakota, Ohio, Oklahoma, South Dakota, 
Tennessee, Texas, Wisconsin, and Wyoming.
(h) By means or aid of any motordriven land, water, or air 
conveyance, or any sailboat used for the purpose of or resulting in the 
concentrating, driving, rallying, or stirring up of any migratory bird;
*(i) By the aid of baiting, or on or over any baited area, where a 
person knows or reasonably should know that the area is or has been 
baited. However, nothing in this paragraph prohibits:
(1) the taking of any migratory game bird, including waterfowl, 
coots, and cranes, on or over the following lands or areas that are not 
otherwise baited areas--
(i) Standing crops or flooded standing crops (including aquatics); 
standing,

[[Page 39]]

flooded, or manipulated natural vegetation; flooded harvested croplands; 
or lands or areas where seeds or grains have been scattered solely as 
the result of a normal agricultural planting, harvesting, post-harvest 
manipulation or normal soil stabilization practice;
(ii) From a blind or other place of concealment camouflaged with 
natural vegetation;
(iii) From a blind or other place of concealment camouflaged with 
vegetation from agricultural crops, as long as such camouflaging does 
not result in the exposing, depositing, distributing or scattering of 
grain or other feed; or
(iv) Standing or flooded standing agricultural crops where grain is 
inadvertently scattered solely as a result of a hunter entering or 
exiting a hunting area, placing decoys, or retrieving downed birds.
(2) The taking of any migratory game bird, except waterfowl, coots 
and cranes, on or over lands or areas that are not otherwise baited 
areas, and where grain or other feed has been distributed or scattered 
solely as the result of manipulation of an agricultural crop or other 
feed on the land where grown, or solely as the result of a normal 
agricultural operation.*

(j) While possessing shot (either in shotshells or as loose shot for 
muzzleloading) other than steel shot, or bismuth-tin (97 parts bismuth: 
3 parts tin with <1 percent residual lead) shot, or tungsten-iron (40 
parts tungsten: 60 parts iron with <1 percent residual lead) shot, or 
tungsten-polymer (95.5 parts tungsten: 4.5 parts Nylon 6 or 11 with <1 
percent residual lead) shot, or tungsten-matrix (95.9 parts tungsten: 
4.1 parts polymer with <1 percent residual lead) shot, or tin (99.9 
percent tin with <1 percent residual lead) shot, or tungsten-nickel-iron 
(50% tungsten: 35% nickel: 15% iron with <1 percent residual lead), or 
such shot approved as nontoxic by the Director pursuant to procedures 
set forth in Sec. 20.134, provided that this restriction applies only to 
the taking of Anatidae (ducks, geese, (including brant) and swans), 
coots (Fulica americana) and any species that make up aggregate bag 
limits during concurrent seasons with the former in areas described in 
Sec. 20.108 as nontoxic shot zones, and further provided that:
(1) Tin shot (99.9 percent tin with 1 percent residual lead) is 
legal as nontoxic shot for waterfowl and coot hunting for the 2000-2001 
hunting season only.
(2) [Reserved]

[38 FR 22021, Aug. 15, 1973, as amended at 38 FR 22896, Aug. 27, 1973; 
44 FR 2599, Jan. 12, 1979; 45 FR 70275, Oct. 23, 1980; 49 FR 4079, Feb. 
2, 1984; 52 FR 27364, July 21, 1987; 53 FR 24290, June 28, 1988; 60 FR 
64, Jan. 3, 1995; 60 FR 43316, Aug. 18, 1995; 61 FR 42494, Aug. 15, 
1996; 62 FR 43447, Aug. 13, 1997; 64 FR 29804, June 3, 1999; 64 FR 
32780, June 17, 1999; 64 FR 45405, Aug. 19, 1999; 64 FR 71237, Dec. 20, 
1999; 65 FR 53940, Sept. 6, 2000; 66 FR 742, Jan. 4, 2001; 66 FR 32265, 
June 14, 2001]

Bob


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## Old Hunter (Mar 8, 2002)

Bob The way I read this we should be able to hunt rolled corn and burned barley correct? " However nothing in this paragraph prohibits lands or areas where seeds or grains have been scattered solely as the result of a normal agricultural planting harvesting. post harvest manipulation".


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## Bob Kellam (Apr 8, 2004)

Old Hunter

I am sorry I did not post the "definitions" provided for the Federal regulations.

Here is what they (feds) consider Normal Agricultural Practices.

*(g) Normal agricultural planting, harvesting, or post-harvest 
manipulation means a planting or harvesting undertaken for the purpose 
of producing and gathering a crop, or manipulation after such harvest 
and removal of grain, that is conducted in accordance with official 
recommendations of State Extension Specialists of the Cooperative 
Extension Service of the U.S. Department of Agriculture.
(h) Normal agricultural operation means a normal agricultural 
planting, harvesting, post-harvest manipulation, or agricultural 
practice, that is conducted in accordance with official recommendations 
of State Extension Specialists of the Cooperative Extension Service of 
the U.S. Department of Agriculture.

[[Page 37]]

(i) Normal soil stabilization practice means a planting for 
agricultural soil erosion control or post-mining land reclamation 
conducted in accordance with official recommendations of State Extension 
Specialists of the Cooperative Extension Service of the U.S. Department 
of Agriculture for agricultural soil erosion control.
(j) Baited area means any area on which salt, grain, or other feed 
has been placed, exposed, deposited, distributed, or scattered, if that 
salt, grain, or other feed could serve as a lure or attraction for 
migratory game birds to, on, or over areas where hunters are attempting 
to take them. Any such area will remain a baited area for ten days 
following the complete removal of all such salt, grain, or other feed.
(k) Baiting means the direct or indirect placing, exposing, 
depositing, distributing, or scattering of salt, grain, or other feed 
that could serve as a lure or attraction for migratory game birds to, 
on, or over any areas where hunters are attempting to take them.
(l) Manipulation means the alteration of natural vegetation or 
agricultural crops by activities that include but are not limited to 
mowing, shredding, discing, rolling, chopping, trampling, flattening, 
burning, or herbicide treatments. The term manipulation does not include 
the distributing or scattering of grain, seed, or other feed after 
removal from or storage on the field where grown.
(m) Natural vegetation means any non-agricultural, native, or 
naturalized plant species that grows at a site in response to planting 
or from existing seeds or other propagules. The term natural vegetation 
does not include planted millet. However, planted millet that grows on 
its own in subsequent years after the year of planting is considered 
natural vegetation.*

So in answer to you question I believe the intent of the regulations is to prohibit the hunting of rolled corn and burned barley fields.

The SD bunch tried to pass off there operations processes as "normal agricultural practices" It did not fly because many read the regulations and read in what they want it to say instead of understanding the entire document. Sorry for omitting the definitions! 

Bob


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## zettler (Sep 7, 2002)

I heard from Brent Manning (our former Illinois Department of Natural resources Director) the other day and he mentioned that a significant change in the baiting laws has been brought about by this federal case in South Dakota. It is his understanding the case was tried, appealed, and lost, therefore it has now established judicial law - putting more bite into what CPO's and Game Wardens can use to interpret and "enforce" the law.

Bottom line is that corn harvested after December 1 is not considered a normal agricultural practice. Therefore if it is harvested after that date and the field has not been "clean" (no grain present for ten days) it cannot be hunted. The ramifications for such a determination are huge and may put a number of folks that are trying to be legal at risk.

He wanted waterfowlers to protect themselves and be aware of the ruling.

It also implies a zone of influence, in other words birds coming from or going to such an area would be protected. You all just need to be aware.

This just confounds the issue and can adversely impact those folks that try to be legal and support the conservation of wetlands and waterfowl and then get hammered when they are trying to be legal. While this doesn't appear to have been the case in SD, they can now apply the judgement elsewhere...

This is something our CPO's and federal game wardens will start using that could impact people who hunt on private and commercial operations around the United States.


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## Ron Gilmore (Jan 7, 2003)

One thing not mentioned but that caught the attention of the Feds was the amount of grain left after the combines had been through the fields. Farmers do not intentionally set machines to discharge 20% of the grain on the ground behind the combine!

I do believe they went after them in a manner intended to stop this practice and the date of harvest was the avenue they had to go. I doubt anything would have been said or done if abnormal amounts of thrashed grain had not been present in these fields!!!


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## zettler (Sep 7, 2002)

Ron Gilmore said:


> One thing not mentioned but that caught the attention of the Feds was the amount of grain left after the combines had been through the fields. Farmers do not intentionally set machines to discharge 20% of the grain on the ground behind the combine!
> 
> I do believe they went after them in a manner intended to stop this practice and the date of harvest was the avenue they had to go. I doubt anything would have been said or done if abnormal amounts of thrashed grain had not been present in these fields!!!


Excellent point!


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