A U.S. District Court in North Dakota has added its voice to that of several other courts saying that the federal Migratory Bird Treaty Act (“MBTA”) does not prohibit otherwise lawful activities that result in unintended deaths or injuries of birds. While the ruling offers welcome relief to operators of wind turbines, owners of cats, and others whose activities sometimes lead to injuring or killing birds, cause for concern and confusion remains, since other courts have reached seemingly contrary conclusions, and the prospect of the Supreme Court resolving the matter seems far off. It remains to be seen whether this ruling furthers a trend that could lead lower courts eventually to reach consensus on the scope of the MBTA or instead merely represents one point of view in a conflict of opinion that will persist among the several federal circuits.

The MBTA makes it unlawful for anyone “at any time, by any means or in any manner, to pursue, hunt, take, capture, kill, attempt to take, capture, or kill, [or] possess” migratory birds or their nests or eggs except in accordance with regulations of the U.S. Fish and Wildlife Service (“USFWS”). About 836 species, nearly all birds in the United States, are covered by the MBTA; in that sense, it offers broader protection than does the Endangered Species Act, which protects only the 114 or so bird species listed as threatened or endangered. Violation of the MBTA’s take prohibition generally is a misdemeanor punishable by fines and imprisonment; some violations, e.g., those involving selling birds, are felonies.

In United States v. Brigham Oil and Gas, L.P., — F.Supp.2d –, 2012 WL 120055 (D. N.D. Jan. 17, 2012), the government charged several oil and gas development companies with violating the MBTA because as part of their drilling operations they maintained reserve pits where, in compliance with state law, they temporarily stored drill cuttings, mud, and such, and birds, apparently mistaking the pits as ponds of water, got into them, got covered with oily residue, and died. This, the government alleged, was an unlawful “taking” of the birds.

The court rejected the government’s reading of the MBTA and dismissed the charges. The critical issue, said the court, “is whether to ‘take’ or ‘kill’ a migratory bird refers to and prohibits any activity that may proximately cause a bird death or whether it only covers conduct directed against wildlife.” Noting that the MBTA does not define “take” and, in the absence of statutory definitions, courts construe terms according to their ordinary meanings, the court observed that the “ordinary meaning of the word ‘take,’ when applied to wildlife, denotes intentionally reducing wildlife to possession.” This “involves deliberate, not accidental, conduct” and refers “to a purpose to possess wildlife through capture, not incidental taking through lawful commercial activity.” This understanding, the court added, comports with the USFWS’s regulatory definition of “take” to mean “pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to [engage in such conduct].”

Acknowledging that a few courts have applied the MBTA to unintentional deaths of birds indirectly resulting from commercial activity, the court favored instead the opinion of the Eighth Circuit Court of Appeals in Newton County Wildlife Ass’n v. U.S. Forest Service, 113 F.3d 110 (8th Cir. 1997) that such a broad interpretation “would stretch this 1918 statute far beyond the bounds of reason.” As the Brigham court further explained, if the MBTA “were read to prohibit any conduct that proximately results in the death of a migratory bird, then many everyday activities become unlawful—and subject to criminal sanctions—when they cause the death of pigeons, starlings and other common birds.” The court noted, “[f]or example, ordinary land uses which may cause bird deaths include cutting brush and trees, and planting and harvesting crops” and “many ordinary activities such as driving a vehicle, owning a building with windows, or owning a cat, inevitably cause migratory bird deaths.” Finding it “highly unlikely that Congress ever intended to impose criminal liability on acts or omissions of persons involved in lawful commercial activity which may indirectly cause the death of birds,” the court ruled that “in the context of the [MBTA], ‘take’ refers to conduct directed at birds, such as hunting and poaching, and not acts or omissions having merely the incidental or unintended effect of causing bird deaths.”

The government has yet to say whether it will appeal. The government could decide to conform its future enforcement actions to the court’s understanding of the MBTA. Or it could continue to interpret the MBTA to impose strict liability and bring charges against individuals and companies engaging in activities that result in the deaths of birds regardless of whether they intended to kill the birds.

The court’s ruling adds to several decisions to much the same effect in the Eighth and Ninth Circuits. It stands in contrast to decisions in the Second and Tenth Circuits accepting, at least in certain circumstances, the government’s broader reading of the statute. Until these differences are resolved, owners and operators of various businesses, particularly wind energy, oil and gas, electrical transmission, and mining, face some uncertainty and risk to the extent their facilities and operations result in the deaths of birds. Those within the Eighth and Ninth Circuits (covering sixteen western and plains states) at least have the benefit of knowing courts there read the MBTA to prohibit activities directed at birds, such as hunting and poaching, and not normal commercial activities resulting in the incidental or unintended deaths of birds.

David Ivester
Briscoe Ivester & Bazel LLP
155 Sansome Street, 7th Floor
San Francisco, CA 94104
Telephone: (415) 402-2700
Fax: (415) 398-5630

Disclaimer: In our Newsletters and Bulletins, Briscoe Ivester & Bazel LLP intends to present general information to the public and does not intend to provide legal advice pertaining to a particular situation.


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