A recent Fifth Circuit decision overturning three convictions of
Citgo Petroleum Corporation and CITGO Refining and Chemicals
Company, L.P. (collectively “CITGO”) under the
Migratory Bird Treaty Act of 1918 (“MBTA”), 16 U.S.C.
§703, has cast doubt on the scope of the federal
government’s enforcement authority with regard to
“takings” under the MBTA. In particular, the
Circuit held that the district court misinterpreted the
MBTA’s “take” provision.
At issue was whether CITGO was liable for “taking”
migratory birds that allegedly died when they landed on two large,
uncovered equalization tanks where oil occasionally pooled when
unpredictable discharges occurred from CITGO’s
refinery. In particular, the court convicted CITGO of
violations of the MBTA based on the suspicion that migratory birds
had died in the uncovered equalization tanks.
The Fifth Circuit overturned the convictions citing the district
court’s erroneous definition of the word
“take.” Under the MBTA it is “unlawful at
any time, by any means or in any manner, to pursue, hunt, take,
capture, kill, attempt to take, capture, or kill . . . any
migratory bird,” in violation of regulations and permits.
See 16 U.S.C. § 703(a); § 704(a). The MBTA
imposes strict liability on violators, punishable by a maximum fine
of $15,000 and six months imprisonment per violation. 16
U.S.C. § 707(a). The district court, following the
Second and Tenth Circuits, adopted a broad view of a
“take,” concluding that “take” was an
ambiguous term involving more activities than hunting, poaching,
and intentional acts against migratory birds. See
United States v. Citgo Petroleum Corp., 893 F. Supp.
2d 841, 842-43 (S.D. Tex. 2012).
In contrast, the Fifth Circuit found that although the MBTA imposes
a strict liability standard for any of the aforementioned acts
(i.e. “pursue, hunt, take, capture, kill, attempt to take,
capture, or kill . . . any migratory bird”), for an unlawful
"taking" to occur the defendant must have taken a
"deliberate act done directly and intentionally to migratory
birds." In reaching this conclusion, the Fifth
Circuit, like the Eighth and Ninth Circuits, noted that the use of
the common law understanding of a “take” was
appropriate because there was no Congressional indication when the
MBTA was adopted in 1918 that the common law definition should not
be used. Surveying old cases and other sources of the common
law, the court held that to “take” wildlife under the
common law meant to “reduce those animals, by killing or
capturing, to human control.” Accordingly, the court
stated that “[o]ne does not reduce an animal to human control
accidentally or by omission; he does so
affirmatively.”
The Court further stated that the MBTA’s use of
“take,” as in “pursue, take or destroy”
animals, is fortified by the absence of temporizing modifiers like
“harm” or “harass,” which would have
expanded the scope of the statute to include negligent and
unintentional acts. On this point, the Court contrasted the
MBTA’s language with that found in the Endangered Species
Act, 16 U.S.C. § 1532(19), and Marine Mammal Protection Act,
16 U.S.C. § 1372(a), which have more expansive definitions for
what constitutes a “take,” including the terms harm and
harass in their definitions. Finally, in explaining why its
position differed from that reached by the Second and Tenth
Circuits, the Fifth Circuit pointed out that the relevant cases in
those circuits did not explore the meaning of “take” as
the respective defendants failed to make the argument that the
restricted activity did not include unintentional
conduct.
Although, CITGO was indicted for “taking” or
“aiding and abetting the taking” of migratory birds,
not for “killing” them, the Fifth Circuit noted that
there was little probability that CITGO could alternatively be
liable under the MBTA’s “kill” provision as there
was “reason to think it too is limited to intentional acts
aimed at migratory birds.” In particular, the court
noted that “kill” likely has no, or little, independent
force or meaning separate from the “take” provision,
since the MBTA lists “kill” as part of the definition
of “take” and prior judicial decisions have found that
the term “kill” generally refers to deliberate
actions.
As the Fifth Circuit observed, properly limiting the scope of
liability under the MBTA is of significant concern to any
commercial enterprise. Communication towers, renewable energy
facilities, including wind and solar, refineries, chemical plants
and many other resource development and manufacturing operations
could be deemed to result in some migratory bird deaths. If
the MBTA criminalized any activity with a foreseeable impact on
migratory birds, the scope of liability would have no practical
limit. While the Fifth Circuit result is a welcome limitation
on the MBTA, the decision does not apply nation-wide.
Businesses should recall that two other circuit courts (covering
Colorado, Connecticut, Kansas, New Mexico, New York, Oklahoma,
Utah, Vermont, and Wyoming) have already convicted corporate
entities under the MBTA for unintentional migratory bird
deaths. Whether the United States will appeal the reversal of
these convictions is uncertain, but if it decides to appeal, the
split among the circuit courts should increase the odds of Supreme
Court review. Interested parties should stay tuned for future
developments regarding this important case.
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