Environmental, Energy, and Water Blog


ENERGY: INTERPRETATION OF THE MIGRATORY BIRD TREATY ACT

Posted February 27, 2012

Author: Walter G. Wright

Under the Migratory Bird Treaty Act, a company is not liable for “taking” a bird when the death of the bird results from a commercially legal and useful activity.  In United States v. Brigham Oil & Gas, L.P., 2012 U.S. Dist. LEXIS 5774 (D.N.D. Jan. 17, 2012), the government initially charged seven oil and gas companies, operating in North Dakota’s Williston Basin, with violating the Migratory Bird Treaty Act, a Class B misdemeanor.  The defendants, Brigham Oil & Gas, Newfield Production Company, and Continental Resources, are three separate corporate entities that were charged with “taking” migratory bird(s) found dead near or in each the company’s oil reserve pits.   

At the trial court level, the Government’s indictments alleged that the oil companies violated the Migratory Bird Treaty Act when dead birds were found near or in the company’s reserve oil pits.  The oil companies, where the dead bird(s) were found, were charged with “taking” the migratory bird(s), which is violation of the Act.  The Government’s indictments did not explain the manner in which the oil companies allegedly “took” the birds; rather, the indictments merely stated that the birds’ death resulted from the reserve oil pits owned and operated by the corporate entities.  The trial court held that there was an insufficient showing of probable cause with respect to the circumstances and causes of the bird(s) deaths.  However, the court raised the question as to whether “migratory bird kills resulting from lawful commercial activity that is unrelated to hunting or poaching constitutes a crime under the Migratory Bird Treaty Act.”

The Migratory Bird Treaty Act is a criminal statute that was enacted by Congress in 1919. See 16 U.S.C. §703.  The Act provides that it is unlawful to take, kill, or possess migratory birds. Under the Act,  “it shall be unlawful at any time, by any means or in any manner, to pursue, hunt, take, capture, kill, attempt to take, capture, or kill, possess…any such bird, or any part, nest, or egg thereof.”  16 U.S.C. § 703(a) Additionally, the act states that “any person, association, partnership, or corporation who shall violate any provisions” shall be “deemed guilty of a misdemeanor  and upon conviction thereof shall be fined not more than $15,000, or be imprisoned not more than six months, or both.”  16 U.S.C. 707(a).

The Government had requested that the Court apply a broad interpretation of the words “take” and “kill” in the Migratory Treaty Bird Act to encompass any physical activity directed against a bird, as well as habitat modification and other impacts that may arise from lawful commercial activity.  The defendants asked that the Court apply a narrow interpretation of the words “take” and “kill,” limiting a violation to acts that were intended to harm the birds. 

The key statutory language states that it shall be unlawful to “take” migratory birds.  To determine if the defendants are guilty of “taking” the migratory birds, the Court examined the plain language of the statute because the definition of the term was not provided for in the statute.  In the absence of a definition, the Court construed the term according to its ordinary meaning.  The Court, using a dictionary, reasoned that the literal definition of the word “take” involves a deliberate act or omission. Secondly, according to 50 C.F.R. 10, 12, the Act’s implementing regulation, “take” means “to pursue, hunt, wound, kill, trap, capture, or collect, or attempt to pursue, hunt, shoot, wound, kill, trap, capture, or collect.” In the Court’s opinion, the use of these action words in the regulation reinforced the dictionary definition, as confirmation that “take” does not refer to accidental activity or unintended results of other conduct. 

The Court found that it was unlikely that Congress intended to impose criminal liability on the acts or omissions of persons involved in lawful commercial activities that may indirectly cause the death of birds protected under the Migratory Bird Treaty Act.  The Court held that the use of the reserve pits in commercial oil development is legal, and, generally, have little effect on bird habitat, except for the instances and occasions when the bird mistakes the reserve oil pit for a pond or lake.  For that reason, the use of reserve oil pits are legal and commercially useful activities that are outside the reach of the federal Migratory Bird Treaty Act.  As a matter of law, the Court concluded that a lawful commercial activity that may indirectly cause the death of migratory birds does not constitute a federal crime.  Therefore, the Court granted the defendant’s motion to dismiss the cause of action.

A copy of the opinion can be downloaded below.

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