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Migratory Bird Treaty Act: birds and open oil pits

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On 17 January 2012 - a U.S. District Court ruled that oil companies shouldn't face criminal charges for the deaths of a half-dozen ducks in waste disposal pits, saying that prosecutors went too far in applying a law that protects migratory birds. U.S. District Court Judge Daniel L. Hovland found that criminalizing commercial activity in oil fields of North Dakota "was never contemplated under the Migratory Bird Treaty Act enacted by Congress in 1918."


For many years, bird conservation organizations and the U.S. Fish and Wildlife Service have struggled to develop effective mechanisms to reduce or eliminate the impacts on birds resulting from "incidental take." That term refers to the take of animals protected by law as a result of human activities that are otherwise legal and not undertaken for the purpose of taking the animal. Among the many examples: erecting buildings with windows, driving cars, night lighting of structures, long-line fisheries and gill net fisheries, flying aircraft, logging, erecting and operating wind turbines, cat trap-neuter-release programs....


Indeed, the judge in the oil pit case said exactly that,

"To be consistent, the government would have to criminalize driving, construction, airplane flights, farming, electricity and wind turbines ... and many other everyday, lawful activities," Hovland wrote.


Incidental take is treated differently under different wildlife protection laws. Under the Endangered Species Act, incidental take is clearly covered. Section 10 of the ESA expressly provides for the issuance of permits for incidental take:


SEC. 10.

(a) PERMITS.—(1) The Secretary may permit, under such terms and conditions as he shall prescribe— (A) any act otherwise prohibited by section 9 for scientific purposes or to enhance the propagation or survival of the affected species, including, but not limited to, acts necessary for the establishment and maintenance of experimental populations pursuant to subsection (j); or (B) any taking otherwise prohibited by section 9(a)(1)(B) if such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity.


When enacted, the Migratory Bird Treaty Act did not address the issue of incidental take and the history of the legislation suggests that it was not even contemplated at the time (1918), when the primary purpose of the legislation was to eliminate the over-exploitation of birds for their feathers, which were in demand in the millinery trade, and to regulate bird hunting so as to assure that there would always be enough birds of a given species for hunters. Because the American Ornithologists' Union was heavily involved in promoting this legislation, an exemption against the take prohibition was carved out for scientific research, subject to control via permits.


In 2002, a new provision was added to the law that covers incidental take - but only for military readiness activities. Under this provision, the USFWS has the authority to oversee the extent of take of migratory birds by the Department of Defense in the conduct of its military readiness activities and to stop those activities under certain conditions. Apart from this provision, however, the MBTA does not address incidental take.


An agency that attempts to take action - such as a regulation that will control or prohibit someone's conduct - that is not clearly authorized under the statute faces a number of barriers. The agency's own Department may block the activity. The White House may block the activity. If the agency is allowed to take the action, opponents of the regulation will likely file a lawsuit, and there is always a risk that a court will not only invalidate the particular regulation, but will also rule that the agency does not have the authority to take that kind of action.


Some argue that the "strict liability" provision of the MBTA covers incidental take. Strict liability means that intent is irrelevant; the crime is proved merely because the act occurred and caused a result that is prohibited by the law, whether the actor intended that outcome or not. When former President George W. Bush shot a Killdeer, thinking it was a Mourning Dove, he was guilty of a violation of the MBTA even though he didn't intend to shoot the Killdeer. In any case, the strict liability provision of the MBTA is found in the section of the law pertaining to the legal penalties - if the acting was "knowing" it is a felony violation, whereas all other violations are misdemeanors. Logically, one could say that if you can be penalized even if you didn't violate the law knowingly, much less intentionally, that the statute must cover all take, including incidental take.


The question has been addressed by several lower federal courts - the District Courts (the trial level) and the U.S. Courts of Appeal (the first appellate level). The question has never been addressed by the Supreme Court, and so it remains an open question, with conflicting rulings persisting in the different judicial circuits. Indeed, in 1977 Court of Appeals held that a company was liable for the death of birds that died in the company's waste water pond, which was full of carbofuran, even though the company had tried to keep birds away from the pond. Another District Court ruled that the Migratory Bird Treaty Act applies to bird deaths resulting from electrocution by power lines.


Only one relatively clear distinction seems to be emerging. The rulings that held that the MBTA applied to the circumstances before the court all involved actual human activity that entailed some type of physical contact that resulted in death. Thus far, there are no cases holding that habitat modification or destruction violates the MBTA. Two appellate courts ruled that the U.S. Fish and Wildlife Service has no authority under the MBTA to prosecute the take of birds protected by the MBTA as a result of logging, because the statute applies only to direct physical contact and not habitat modification. The ruling basically equated physical contact with the deliberate take that is prohibited by the law.


Canada's version of the Migratory Bird Treaty Act is called the Migratory Bird Conventions Act, and a Canadian court has found that it applies to bird deaths in the tailings ponds maintained by the companies extracting oil from Canada's tar sands. Only this past October, a court imposed a fine of nearly $3 million Canadian on Syncrude over 1,600 ducks died in its tailings ponds. Story here: http://www.nytimes.c...3ducksands.html

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