Case Studies

Continental Resources

Partner John C. Martin.
Counsel Sarah Bordelon.

Precedent-setting results in Migratory Bird Treaty Act litigation

The U.S. Fish & Wildlife Service (FWS) charged seven oil companies, including our client Continental Resources, with violating the Migratory Bird Treaty Act (MBTA) after agents discovered 28 dead birds near open reserve pits at oil operations in North Dakota. The case attracted notice in the 2012 presidential debates (and was satirized by "Saturday Night Live") as concerns with federal over-reach were pitted against the need for environmental protection.

We argued that the government's strict liability theory for actions inadvertently leading to bird death or injury is unsupported by the plain language of the statute. We also asserted that where the Court is confronted with two interpretations of a statute, only one of which impinges on state regulatory authority, U.S. Supreme Court federalism precedent instructs the court to choose the non-impinging interpretation.

In January 2012, the U.S. District Court of North Dakota rejected the government's sweeping interpretation of the MBTA, relying on the plain language of the statute identified in Crowell & Moring's brief, and dismissed the criminal cases brought against Continental and co-defendants. The court also relied on precedent-setting cases from the Eighth and Ninth Circuits, some of which had been led by Crowell & Moring in years past.

The court found that the use of reserve pits in commercial oil development is "legal, commercially-useful activity that stands outside the reach of the federal Migratory Bird Treaty Act," noting that the government’s interpretation would lead to "absurd results" by criminalizing everyday behaviors such as "driving, flying, or farming" which also cause inadvertent bird death.