Federal court says no MBTA violation unless take was intentional

[Fern Davies]

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It has long been "established law" that the Migratory Bird Treaty Act (MBTA) is a "strict liability" statute. Strict liability means that it doesn't matter if the accused intended to harm or kill a bird of a species protected under the MBTA; if the conduct of the accused resulted in the take of a protected bird, the accused is guilty. For example, it doesn't matter that George W. Bush intended to shoot a Mourning Dove (legally hunted) but mistakenly shot a Killdeer (which the New York Times mistakenly called a songbird). Had the USFWS chosen to prosecute former President Bush, it would have been no defense that it was not his intent to kill the Killdeer.

 

And so it has been the USFWS, through the Department of Justice, has prosecuted wind energy companies*, energy transmission companies, companies that maintain uncovered oil and gas or chemical waste pits, and others whose take of protected species was incidental to otherwise lawful activities. 

 

(Note - Duke Electric pled guilty and settled the case. It is unknown how the court would have ruled had it gone to trial). 

 

Recently, however, federal courts have held that intent does matter and that the taking of a protected species is not a violation of the MBTA. 

 

Most recently, a court in the Fifth Circuit Court of Appeals held that the take must be intentional. The decision reversed a U.S. District Court convicting and fining $2 million Citgo Petroleum Corp. for the deaths of at least 35 protected birds that flew into two large, open-top petroleum tanks in 2003 in Corpus Christi. In overturning the lower court's decision, the 5th Circuit agreed with Citgo that the statute was misinterpreted as covering unintentional bird kills.

 

This Court of Appeals holding is similar to that of a lower court in 2012, dismissing three misdemeanor charges against three oil and gas companies that maintained open oil reserve pits. Birds died when they landed on the "ponds" and became coated in oil. 

 

In what must seem bizarre and unfair to normal people, these rulings apply only in the Circuits where issued. Thus, someone who maintains an open oil pit anywhere but the Fifth Circuit (Louisiana, Mississippi, Texas) that causes the death of MBTA-protected birds would be guilty but someone doing the same in the Fifth Circuit, Eighth, or Ninth Circuits would not. Generally, these "splits among the circuits" are decided when one of the parties asks the U.S. Supreme Court to rule on the issue.

 

In fact, the U.S. Fish and Wildlife Service and the Department of Justice are reviewing the 5th Circuit ruling before deciding whether to appeal to the U.S. Supreme Court, service spokeswoman Laury Parramore said. She added they may also ask the appeals court to reconsider.

 

This all comes in the face of the attempt by the USFWS to develop a permit system for incidental take despite the uncertainty about the applicability of the MBTA to incidental take. 

[Pat Baird]

Is the OC going to comment?

 

[Fern Davies]

The courts, unlike federal agencies, do not have a public comment process. 

 

There are only three ways to participate in the judicial process:

 

(a) be one of the litigants, i.e., file the lawsuit or be the person or group against whom the lawsuit is filed

(b) intervene (with permission of the court; it is not "as of right:)

© file an amicus (friend of the court) brief - which may or may not be considered, at the discretion of the court

 

Any of these three options is relevant only while the case is actually pending.