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Oil company challenges conviction for bird kills

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Full story: http://www.eenews.net/public/Greenwire/2012/05/21/2



Citgo Petroleum Corp. is challenging a 5-year-old conviction for killing 10 birds at a Texas refinery.

Citgo has filed a motion in the U.S. District Court for the Southern District of Texas seeking to purge the 2007 conviction under the Migratory Bird Treaty Act on the grounds that the law -- as the company's lawyers interpret it -- should not be applied to what are known in the jargon as "incidental takes" at industrial sites.

Depending on how U.S. District Judge John Rainey rules, it could help build momentum in the courts in favor of industrial defendants accused of killing birds.

Although the conviction was five years ago, DeGuerin was prompted to take action by a recent ruling by Judge Daniel Hovland of the U.S. District Court for the District of North Dakota. He dismissed charges against three oil companies accused of killing migratory birds that were found dead near their facilities.

After the ruling, the government said it would appeal but has since decided not to, leading to more raised eyebrows among watching lawyers.


Hovland wrote in his ruling that it's "highly unlikely that Congress ever intended to impose criminal liability on the acts or omissions of persons involved in lawful commercial activity which may indirectly cause the death of birds protected under the Migratory Bird Treaty Act."

The statute, he added, wasn't written to "criminalize lawful commercial activity conducted in the oil fields of North Dakota."

Ed. comment - part of the beef seems to be that no one has prosecuted the wind industry for bird deaths. However, it is well-settled law that the government has prosecutorial discretion, and at least according to some insiders, the Dept. of the Interior is investigating deaths at some wind turbine installations; presumably they would prosecute if the facts warrant such action.

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