In a recent opinion, the United States District Court for the District of North Dakota dismissed misdemeanor criminal charges against three oil and gas companies for violation of the Migratory Bird Treaty Act ("MBTA") arising out of the incidental death of migratory birds through contact with oil reserve pits operated by the defendants. United States v. Brigham Oil & Gas, L.P., No. 4:11-po-005-DLH et al., 2012 U.S. Dist. LEXIS 5774 (D.N.D. Jan. 17, 2012). This opinion is significant because it represents the latest in a number of cases that have interpreted the MBTA in a manner that does not criminalize the inadvertent taking of migratory birds.
By way of background, the MBTA was enacted in 1918 to implement four international treaties aimed at protecting migratory birds. The Act makes it unlawful "by any means or in any manner" to "take" or attempt to "take" any of approximately 800 species of migratory birds, including most common birds other than pigeons and starlings. Regulations promulgated under the Act further define the term "take" as to "pursue, hunt, shoot, wound, kill, trap, capture, or collect" any such birds. Companies or individuals who violate these provisions face misdemeanor criminal penalties that can result in fines of up to $15,000 per bird and/or six months' imprisonment.
The government has traditionally interpreted the MBTA as imposing strict liability on companies that engage in activities resulting in the "take" of migratory birds, regardless of whether there was any intent to take the birds. A number of courts have agreed, creating substantial risks for businesses involved in activities that may result in the inadvertent death of birds. See, e.g., United States v. Corrow, 119 F.3d 796, 805 (10th Cir. 1997); United States v. Engler, 806 F.2d 425, 431 (3d Cir. 1986) ("Scienter is not an element of criminal liability under the Act's misdemeanor provisions."); United States v. Manning, 787 F.2d 431, 435 n.4 (8th Cir. 1986) ("It is not necessary to prove that a defendant violated the Migratory Bird Treaty Act with specific intent or guilty knowledge."); United States v. FMC Corp., 572 F.2d 902, 907 (2d Cir. 1978) (affirming MBTA conviction for the deaths of migratory birds resulting from defendant's discharge of wastewater into a pond).
The Brigham Oil case represents a growing trend to the contrary, holding that the MBTA does not apply to the inadvertent death of birds resulting from oil and gas exploration and production activities. The facts in Brigham Oil are straightforward. Three oil and gas development companies were charged with violations of the MBTA as a result of the death of several birds that had come into contact with oil reserve pits operated by the companies. The defendants moved to dismiss the charges on grounds that the MBTA does not apply to activities that are not intended to result in the death of birds. The district court examined the plain language of the statute and found that the word "take," in the context of the MBTA and its implementing regulations was an "action word" that did "not refer to accidental activity or the unintended results of other conduct." It further found that this result was consistent with the holding in Newton County Wildlife Association v. United States Forest Service, 113 F.3d 110, 115 (8th Cir. 1997), in which the Eighth Circuit had previously held that the word "take" referred to "physical conduct of the sort engaged in by hunters and poachers." (Internal quotation marks and citation omitted.) Because the conduct that resulted in the bird deaths in Brigham Oil was not directed at protected birds but instead was a "legal, commercially-useful activity," the court held that it "stands outside the reach of the federal Migratory Bird Treaty Act": "[I]t is 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." 2012 U.S. Dist. LEXIS 5774, at *25, 32.
Although this decision does not represent new law in the Eighth Circuit, it is notable because it expands the holding of Newton County Wildlife Association to include commercial activity by oil and gas producers. In addition, the opinion is part of a growing trend away from interpreting the MBTA as a strict liability statute. This trend includes recent decisions by the District of New Mexico, United States v. Ray Westall Operating, Inc., No. CR 05-1516-MV, 2009 U.S. Dist. LEXIS 130674, at *1 (D.N.M. Feb. 25, 2009), and the Western District of Louisiana, United States v. Chevron USA, Inc., No. 09-CR-0132, 2009 WL 3645170 (W.D. La. Oct. 30, 2009).
Despite the recent trend away from strict liability enforcement of the MBTA by courts, the federal government so far has continued to prosecute incidental deaths of protected birds, and the outcomes of such prosecutions vary by jurisdiction. As such, businesses whose activities may result in the inadvertent taking of protected birds are encouraged to develop a compliance plan to establish best practices for avoiding preventable deaths wherever possible.
If you have any questions regarding the MBTA or enforcement of the MBTA, please contact a key contributor.