In a previous report, we discussed United States v. Brigham Oil & Gas, L.P., where the court dismissed several misdemeanor charges under the MBTA against three oil and gas companies that conducted drilling operations in North Dakota, because the underlying activities were lawful, commercial activities. In United States v. CITGO Petroleum Corp., however, a district court in Texas recently distinguished Brigham Oil and denied a motion to dismiss a conviction under the MBTA. Noting that the defendant was “aware that [protected birds were dying in its oil tanks] for years and did nothing to stop it” and the defendant’s activities were otherwise violating the Clean Air Act, the CITGO court followed the Tenth Circuit’s broader “proximate cause” requirement for imposing MBTA strict liability — i.e., a violation of the MBTA exists when the death of a migratory bird is a “reasonably anticipated or foreseeable consequence of” the underlying activity or the defendant otherwise had notice of the impropriety of the conduct at issue — and affirmed the conviction. In doing so, the CITGO court broke from its sister court’s opinion in United States v. Chevron and injected further uncertainty regarding the application of the MBTA, not only in the Fifth Circuit but also across the United States.
 840 F. Supp. 2d 1202 (D.N.D. 2012).
 2012 U.S. Dist. LEXIS 125996, 2012 WL 3866857 (S.D. Tex. Sept. 5, 2012).
 See, e.g., United States v. Apollo Energies, Inc., 611 F.3d 679, 682 (10th Cir. 2010) (“[A] strict liability interpretation of the MBTA for the conduct charged here [— migratory birds becoming trapped and dying in oil drilling equipment —] satisfies due process only if defendants proximately cause the harm to protected birds”).
 2009 U.S. Dist. LEXIS 102682, 2009 WL 3645170 (W.D. La. Oct. 30, 2009). In Chevron, the court expressly declined to follow the Tenth Circuit’s proximate cause reasoning, refusing to accept a guilty plea for a violation of the MBTA based on the defendant’s failure to cover an oil well caisson, which resulted in the deaths of migratory birds.