District Court Imposes Migratory Bird Treaty Act Criminal Liability For "Takes" of Migratory Birds By Unprotected Oil Field Equipment

A U.S. District Court in Texas recently declined to vacate convictions based upon the Migratory Bird Treaty Act (MBTA) for "takes" of migratory birds by unprotected oil field equipment. United States v. CITGO Petroleum Corp., No. C-06-563, 2012 WL 3866857 (S.D. Tex. Sept. 5, 2012). This decision distinguishes recent MBTA case law, including United States v. Brigham Oil & Gas L.P., 840 F. Supp. 2d 1202 (D.N.D. 2012), which have refused to impose MBTA criminal liability for lawful acts that indirectly or unintentionally cause the death of protected birds. (Crowell & Moring represented defendant Continental Resources in Brigham Oil & Gas.)

Following a bench trial, CITGO was convicted under the MBTA for the deaths of ten birds found in two large open-top tanks at a refinery it owned and operated. After the decision, CITGO moved to vacate the conviction, arguing that the Government's Indictment failed to state an offense because the MBTA does not criminalize behavior that does not target the bird.  The district court weighed conflicting case law on the breadth of the criminal liability imposed by the MBTA. Brigham Oil & Gas is the most recent in a line of growing case law finding that otherwise lawful activity that has the unintended effect of taking a migratory bird is not subject to criminal liability under the MBTA. See Order at 3-4, 2012 WL 3866857 at *2. However, the court noted that "[a]n almost equal number of courts . . . have explicitly rejected the argument that the MBTA is limited to activities such as hunting, trapping, and poaching, but instead reaches other conduct that results in the taking and killing of migratory birds." Order at 4, 2012 WL 3866857 at *2. 

Courts adopting a broad interpretation of the MBTA that would criminalize activity that incidentally takes a protected bird have sought to express a limiting principle to avoid the extreme result of criminalizing many ordinary activities, such as driving a vehicle, owning a building with windows, or owning a cat, which inevitably cause migratory bird deaths. These limiting principles have included applying a strict liability standard that would require the Government to prove that the defendant's conduct constituted both the cause in fact and the proximate cause of the bird's death, and distinguishing liability based on the perceived hazard or unlawfulness of the action that incidentally caused the bird death.

In deciding to uphold CITGO's conviction, the district court cited all of these limiting principles. The Court observed that "the evidence presented at trial established that the migratory birds at the CITGO refinery were killed as a direct result of being exposed to waste oil in uncovered tanks," that the Clean Air Act requires such tanks to be covered, that Texas law requires such tanks to be screened or netted to render the tanks harmless to birds, and that CITGO had actual notice as early at 1997 that birds, both dead and alive, were found in the tanks. Order at 10, 2012 WL 3866857 at *6-7. While the court cited these facts as evidence that CITGO's actions were not lawful, it went further to agree with the Tenth Circuit's observation in United States v. Apollo Energies, Inc., 611 F.3d 679 (10th Cir. 2010) that "it is obvious that 'unprotected oil field equipment can take or kill migratory birds.'" Order at 11, 2012 WL 3866857 at *7 (quoting Apollo Energies, 611 F.3d at 686). The court further adopted the Tenth Circuit's reasoning that "'a strict liability interpretation of the MBTA for the conduct charged here satisfies due process only if defendants proximately caused the harm to protected birds.'" Id.  

This decision further confuses the state of the law under the MBTA and the range of activities potentially subject to criminal liability under the Act. Even within the Southern District of Texas, the CITGO decision does not provide clear guidance whether courts would impose liability where the defendant's actions resulting in deaths of protected birds were consistent with, or even compelled by, law.