The Alabama Dove Baiting Council of About 1980
Reprinted with permission from the 11th Circuit Newsletter, Volume XIX, Number 2 | Winter 2022
The Alabama Dove Baiting Council of About 1980: A Firsthand Historical Account
We will have to go by memory here, since there apparently are no records. This was at least 40 years ago. And I am 77 years old, and if cross-examined on the details of it, I would probably break down in tears. Or give you the much dreaded “deer in the headlights look” suggesting incipient dementia. But history demands that these things be recorded. Failure to do that is the regret of world history.
When was it? Well, let’s date it the way old people date everything unrelated to hurricanes. I was a U.S. Magistrate [before the word “Judge” was added by Congress], about 35 years old. The only one in the Southern District of Alabama, before my former law partner and fellow Frank Johnson’s law clerk, Pat Sims, was appointed to a second slot shortly after that, I think. And it was after Judge Frank Johnson went on the old Fifth Circuit in 1979, and before Judge Joel Dubina was appointed as a magistrate in 1983. Judge Frank Johnson had been chief judge of the Middle District of Alabama ever since he was appointed as the only judge in 1954 or so. He remained as chief judge until he went on the old Fifth Circuit in 1979. This was all before the so-called “Federal Court Improvement Act” which provided, consistent with its title [unlike, say, some other bills] that a chief judge could only remain in that position for seven years or something, and not in perpetuity. That was evidently the “improvement.” The chief judge of the Middle District of Alabama was Judge Robert Varner. So, I think about 1980, dating stuff the way old people do.
Judge Varner grew up in Tuskegee, Alabama, in Macon County. Macon County was a great dove hunting county. Remember that county for other reasons? It wasn’t Judge Varner’s fault, but just to remind you, it was the location of (1) Gomillion v. Lightfoot, 364 U.S. 339 (1960), which was a landmark decision of the Supreme Court of the United States that found an electoral district with boundaries created to disenfranchise African Americans violated the Fifteenth Amendment, and (2) the Tuskegee syphilis study, litigation over which Judge Johnson presided when I was his clerk. But mainly it was a great dove hunting place, and Judge Varner was a great dove hunter and so were his friends. That was a big deal for men in the South back then.
Chief Justice C. C. “Bo” Torbert was Chief Justice of Alabama from 1977-89. He grew up in Opelika, Alabama, in Lee County, the county just east of Macon County. Both Lee and Macon counties were Creek [Muskogee] Indian country until about 1825 or so, or just after LaFayette came through Alabama. Torbert was personable and successful, in practice and on the bench. He was fun to be with. He shot doves with a .410, which means that he was an exceptional bird hunter.
Now game bird nomenclature was a big deal back then. Both Judge Varner and Chief Justice Torbert were the perfect mold of gentleman Southern bird hunters, and certainly lifelong BIG dove hunters. They both called the doves “buh-eeds,” for “birds.” In the South, the word “birds,” “buh-eeds,” normally meant quail, which were also called “pottidges” for “partridges,” which quail are not, but heck. But in the early fall, “buh-eeds” meant doves. You just had to know the context. Like “trout” could mean “green trout” or largemouth bass, or it could mean speckled trout; context was everything. “We caught a nice mess of trout” could mean either one, so you always asked “where?” to find out, and they always lied.
So back to the Council. Judge Varner decided that the FEDERAL game wardens, and the STATE game wardens, who were supposed to be applying the same rules of law — the Migratory Bird Treaty and the statutes and regulations implementing it [see Missouri v. Holland] — were in practice applying them differently. Basically, this involved the dove BAITING rules. Now, the rules were supposed to be the same. I never knew exactly why Judge Varner thought that they differed in enforcement. He had a lot of bird hunting friends, and about then, they must have told him that there was a difference in enforcement. He was convinced of it. That probably meant that some tough federal game warden had caught Judge Varner’s friends for baiting.
Judge Varner, as Chief Judge of the Middle District of Alabama, got in touch with the Chief Judges of the Northern [I think it was Sam Pointer then] and Southern Districts [clearly W. Brevard Hand then] of Alabama and suggested that there be convened a council of some kind over Alabama, of state and federal officials, to decide whether there was a difference in enforcement of dove baiting rules, and if so what it was, and if so what to do about it. So, a council was convened.
For the Southern District, it was clear to Chief Judge Hand that although he knew a lot about dove hunting [more about turkey hunting], the U.S. magistrate handled all the dove baiting cases, not the district judges. So, he assigned me to deal with it. Plus, he didn’t want to do it, and my job was to do what he did not want to do. Now I had grown up in Montgomery and knew Judge Varner, and had gone to church with him, and knew him from my having clerked for Judge Frank Johnson after Judge Varner was appointed to a second slot there, and I knew I could get along with him. And I had been around Chief Justice Torbert enough to like him.
To my best recollection the Northern District decided they had better things to do than deal with this stuff, and I don’t think they came, but if they did, they didn’t say much. I don’t think any U.S. attorney came; they must have sent the game wardens.
The top state and federal game wardens in Alabama came. I knew several of them from having tried dove baiting cases, even one in which the bait was “Uncle Ben’s Converted Rice,” clearly not a normal agricultural product in Alabama. I also knew them from duck baiting cases where the rules differ, and from having presided over two jury trials of the same event under the Bald Eagle Act. The game wardens mostly kept their mouths shut and seemed amazed that something like this was happening.
So was I amazed, too, but heck. I had never heard of a bunch of state and federal judges and enforcement people convening to agree on enforcement of anything. And nobody invited any “dove hunting defense lawyers” [are there any?].
I knew what the federal regulations said, and I knew that federal enforcement of them in the Southern District of Alabama was in accordance with law, albeit complex. I knew that state regulations were supposed to follow federal law, but I had no idea about state enforcement, other than that state game wardens always called the federal game wardens when the targets were politically important, as they often seemed to be, from my experience. I could imagine a lot of problems here. For example, the state was entitled to make and enforce stricter rules; were they doing that? And there is a lot of talk nowadays about the federal government’s dragooning the state into enforcing federal laws; was that an issue? And how could the chief judges and the state appellate courts outside the normal appellate process tell the trial judge — here a magistrate, me — what the criminal laws said? This deal could easily go off the tracks. Maybe it already had.
So, I we went to Montgomery for our meeting. As I recall, we met at a counsel table in the wonderful courtroom of the chief judge, then Judge Varner, but where I had often sat as Judge Frank Johnson’s clerk some years before. There were stars in the ceiling, but nobody ever had the nerve to use the term “Star Chamber” in my hearing.
The meeting began as Judge Varner, in his wonderful Southern drawl, explained what he saw as the problem. Chief Justice Torbert—who called Judge Varner “Bawb” as in “Bob”—said “well, Bawb...” and suggested asking the game wardens what THEY thought. Obviously, only they knew anything important on this subject. The top federal and state game wardens promptly agreed that they were enforcing the baiting rules the same way. Which mostly ended the meeting right there.
Somebody asked me what I thought. Fortunately, I didn’t say what I thought, but instead, that in the Southern District of Alabama we tried hard to follow the law, and that I had no idea what the state was doing, other than bringing important defendants to federal game wardens.
It was all very nice, and very pleasant, and very southern. We all shook hands and left. Nothing got done, and no minutes appear to have been kept. But somebody needs to note its having happened. I am not sure there is any deeper meaning, except don’t do this. Plus know that in Central Alabama, the word “birds” is always said “buh-eeds” by old white Southrons.
About the author: David A. Bagwell practiced in Mobile and later Fairhope, Alabama, and from 1979-1985 was a full-time U.S. Magistrate for the Southern District of Alabama.