By Buck Endemann and Taiga Takahashi
A district court in North Dakota is the latest tribunal to reflect the growing reluctance among federal courts to criminalize otherwise lawful acts that result in the unintentional killing of birds protected by the Migratory Bird Treaty Act (“MBTA”). In United States v. Brigham Oil & Gas, L.P. (D.N.D. Jan. 17, 2012), the court dismissed several misdemeanor charges under the MBTA against three oil and gas companies that conducted drilling operations in North Dakota. The court concluded that the MBTA “prohibit[s] only conduct directed towards birds,” and does not “criminalize negligent acts or omissions that are not directed at birds, but which incidentally and proximately cause bird deaths.” Although the district court’s order is still subject to appeal, Brigham Oil offers additional comfort to wind developers, oil and gas companies, and mining operators who, during the course of lawful facility operations, accidentally kill MBTA-protected birds.
In Brigham Oil, the Government alleged MBTA violations arising from circumstances where migratory birds mistook the oil and gas companies’ “reserve pits” for safe landing areas. These reserve pits contained liquid and sludge byproducts of drilling operations, and the birds died after they landed in the pits and could not escape. Although the pits were not fenced or netted, the companies maintained the reserve pits in compliance with state law. After an inspection, the Government commenced prosecution under the MBTA, charging each company with a misdemeanor violation for each dead bird found in each company’s respective reserve pits.
Although the MBTA is written broadly to criminalize a range of conduct, including the pursuit, hunting, killing, and trading of protected migratory birds, the court found it troubling that the MBTA could extend criminal liability to lawful commercial activity that incidentally injured migratory birds. According to Judge Hovland, the Government’s broad interpretation of the MBTA would “criminalize driving, construction, airplane flights, farming, electricity and wind turbines” and “many other everyday lawful activities.” Such an interpretation stretched the MBTA “far beyond the bounds of reason and common sense.” The Brigham Oil court—consistent with Eighth and Ninth Circuit law—adhered to a relatively narrow, but clear, rule that the MBTA only criminalizes conduct “directed against wildlife”, such as conduct by hunters and poachers.
Brigham Oil reflects a trend where courts have been reluctant to impose criminal liability for truly unintentional acts that indirectly cause MBTA violations. Although the Brigham Oil decision provides comfort for companies in the energy industry, the Government still might appeal the ruling, and the law regarding this issue is still relatively unsettled. But there remains some divergence regarding the appropriate standard for evaluating criminal convictions under the MBTA. Although older decisions have imposed criminal liability for indirect violations from unintentional acts, some courts have either noted distinctive factual circumstances or imported some requirement of prior notice such as:
- Highly Toxic Chemicals: In United States v. FMC Corp., 572 F.2d 902, 908 (2d Cir. 1978), the court held the defendant strictly liable under the MBTA for the deaths of migratory birds. But the court limited its holding to the facts of the case, noting that the defendant “engaged in an activity involving the manufacture of a highly toxic chemical” and that “[i]mposing strict liability on [defendant] in this case does not dictate that every death of a bird will result in imposing strict criminal liability on some party.”
- Actual Notice: In United States v. Apollo Energies, Inc., 611 F.3d 679, 691 (10th Cir. 2010), the court upheld a criminal conviction under the MBTA because the defendant had actual notice that its equipment was causing the deaths of migratory birds in violation of the MBTA.
In the Ninth Circuit, where a substantial number of logging and renewable energy projects are being sited, it remains the law that “unlawful ‘taking’ under the MBTA describes physical conduct of the sort engaged in by hunters and poachers.” Still, one relatively recent outlier is United States v. Moon Lake Elec. Ass’n, Inc., 45 F. Supp. 2d 1070, 1077 (D. Colo. 1999), where the court expressly disagreed with a narrow reading, declaring that “[t]o the extent [Ninth Circuit law] may be read to say that the MBTA regulates only physical conduct normally associated with hunting or poaching, its interpretation of the MBTA is unpersuasive.” The court noted in its description of the factual background that that the defendant utility association was prosecuted for its “fail[ure] to install inexpensive equipment” in an area that was “home to several species of protected birds[.]” Moon Lake is somewhat consistent with the Tenth Circuit’s recent decision in Apollo Energies, where a party may be criminally liable if it has actual notice that its operations are “taking” MBTA-protected species. Nonetheless, Brigham Oil appears to be another step in the right direction.
 No. 4:11-po-005, 2012 U.S. Dist. LEXIS 5774.
 Id. at *23.
 Id. at *5.
 Brigham Oil, No. 4:11-po-005, 2012 U.S. Dist. LEXIS 5774, at *5-6.
 16 U.S.C. §§ 703(a), 707.
 Id. at *31.
 Id. at *33.
 Id. at *28.
 Several other courts have previously held that lawful commercial activity unrelated to active conduct like hunting does not violate the MBTA, and Brigham Oil’s holding is not unprecedented. See City of Sausalito v. O’Neill, 386 F.3d 1186, 1225 (9th Cir. 2004) (logging); Newton Cnty. Wildlife Ass’n v. U. S. Forest Serv., 113 F.3d 110 (8th Cir. 1997) (timber sale); Seattle Audubon Soc’y v. Evans, 952 F.2d 297 (9th Cir. 1991) (habitat destruction from timber sale); Citizens Interested in Bull Run, Inc. v. Edington, 781 F. Supp. 1502 (D. Or. 1991) (timber sale); Mahler v. U.S. Forest Serv. 927 F. Supp. 1559 (S.D. Ind. 1996) (logging operations); Curry v. U.S. Forest Serv., 988 F. Supp. 541 (W.D. Pa. 1997) (timber sale and logging operations); United States v. Ray Westall Operating, Inc., No. CR 05-1516-MV, 2009 U.S. Dist. LEXIS 130674 (D.N.M. Feb. 25, 2009) (evaporation pits); United States v. Chevron USA, Inc., No. 09-CR-0132, 2009 WL 3645170 (W.D. La. Oct. 30, 2009) (offshore oil well caisson).
 572 F.2d at 908; see also United States v. Corbin Farm Serv., 444 F. Supp. 510, 536 (E.D. Cal. 1978) (“When dealing with pesticides, the public is put on notice that it should exercise care to prevent injury to the environment and to other persons[.]”).
 City of Sausalito v. O’Neill, 386 F.3d 1186, 1225 (9th Cir. 2004) (second set of internal quotations omitted).
 Moon Lake, 45 F. Supp. 2d at 1071.
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