Summary of a Recent
Judicial Development in
Agritourism

Crop Lands Destroyed by Hurricane Gustav Are
"Baited" Areas Off-Limits to Hunters

Walt McCarter
National AgLaw Center Research Associate

Summary of Decision

In M.J. Farms, Ltd. v. U.S. Fish and Wildlife Service, 593 F. Supp. 2d 907, 2008 WL 5231588 (W.D. La. 2008), the United States District Court for the Western District of Louisiana held that the U.S. Fish and Wildlife Service's determination that Louisiana Delta crop lands destroyed by Hurricane Gustav and subsequently disced in order for farmers to obtain crop insurance constituted "baited" lands and were therefore off-limits to duck hunters was not unreasonable.

Background

On September 1, 2008, Hurricane Gustav made its landfall in the United States causing significant damage to wide areas of Louisiana. Id. at *1. About 40 percent of crops in the Delta area were destroyed or rendered unharvestable as a result of wind or flood damage. Id. Nearly all of the unharvestable crops were destroyed by shredding or discing in order to qualify the farmers for insurance proceeds and to prepare the fields for spring planting. Id. This created a unique problem-the Delta was a popular area for duck hunting, but federal law strictly prohibits the hunting of migratory waterfowl on land that is determined to be baited or on lands within the "zone of influence" of baited areas. Id. Wildlife agents determined that all 23,000 acres of the Delta were either baited or within the "zone of influence" surrounding baited areas due to the extra amounts of seed, beans, and grain on various areas, and warned Delta personnel that hunters would be subject to criminal prosecution. Id. Hunting leases were canceled and the Delta lost hundreds of thousands of dollars during the first phase of the 2008 duck season. Id.

The plaintiffs, a hunter and a commercial fanning operation that leased part of its farmland to hunters, brought a complaint seeking injunctive relief against the enforcement decision of the Fish and Wildlife Service, and the government defendants moved to dismiss based on the government agency's sovereign immunity, lack of subject matter jurisdiction, and deference to the agency's discretionary interpretation of its own regulations. Id.

Analysis and Holdings

The court determined there had been an appealable final agency determination by the Fish and Wildlife Service because there was evidence that agents had visited the area, determined it was baited, and warned the Delta's recreation manager that hunters would be prosecuted. Id. at *3. Moreover, the court noted that Delta personnel and hunters had no "administrative recourse." Id. The court also agreed that the definition of "baiting" was ambiguous; in fact, the court noted that the definition of the term was "so notoriously broad that hunters and others criminally charged with hunting or permitting the hunting of a baited area often challenge its constitutionality as being overly vague." Id. at *5. The court conceded that the agency's interpretation, that any post-planting natural disaster that requires farmers to shred and disc their fields will operate to render all land within that field's "zone of influence" a baited area where hunting waterfowl is off limits, seemed unduly harsh. Id. at *6. However, the court stated that it could not conclude that interpretation of the regulations was unreasonably interpreted or applied, nor did it have the power to rewrite the agency's regulations, and therefore denied the plaintiffs' motion for injunctive and declaratory relief. Id. at *6-7.

The case was decided on December 15, 2008.