By Sara Orr and Jennifer Roy

On September 4, 2015, the US Court of Appeals for the Fifth Circuit issued a ruling in United States v. CITGO that a “taking” subject to prosecution under the Migratory Bird Treaty Act (MBTA) does not include the unintentional take of migratory birds. Reversing a district court decision and joining the position of the Eighth and Ninth Circuits, the appellate court held that the MBTA’s take prohibition is limited to “deliberate acts done directly and intentionally to migratory birds,” effectively exempting take that occurs incidental to otherwise lawful activities. While such incidental take may still be subject to prosecution under other federal laws protecting birds, such as the Bald and Golden Protection Act or the Endangered Species Act, the Fifth Circuit concluded that unintentional acts are not subject to the strict liability penalties of the MBTA. This ruling may provide additional assurances to a wide variety of industries with operations in the Fifth, Eighth and Ninth Circuits that have the potential to impact migratory birds, particularly oil and gas, wind, and solar energy. Given the divide among the courts and the importance of the issue, however, it is possible that the U.S. Supreme Court will take up the issue in the future.

The Migratory Bird Treaty Act

Congress enacted the MBTA in 1918 to implement a treaty between the United States and Great Britain. The general policy of the MBTA is to provide for the “preservation, distribution, introduction, and restoration of game birds and other wild birds.” The MBTA prohibits the take of all listed birds, and the take of any migratory bird’s parts, nest, or eggs without a permit. The regulations define “take” as “to pursue, hunt, shoot, wound, kill, trap, capture, or collect” or to attempt any of these acts.

The majority of courts have found that violation of the MBTA’s take prohibition is a strict liability offense, punishable by a fine and possible imprisonment. Several courts have specifically found that industry can be held strictly liable for the incidental take of migratory birds, especially where a company could have, but did not, take reasonable care to prevent avian mortality. On the other hand, a handful of recent cases in the Eighth and Ninth Circuits have concluded that the scope of the MBTA should be limited to exclude incidental take. For example, in 2004, the Ninth Circuit held that the definition of unlawful taking under the MBTA “describes physical conduct of the sort engaged in by hunters and poachers,” not incidental take that occurs as a result of habitat modification or destruction associated with project development.

United States v. CITGO Petroleum Corporation

On September 4, 2015, the Fifth Circuit joined the Eighth and Ninth Circuits in concluding that nonpurposeful incidental take should not be subject to strict liability under the MBTA. In United States v. CITGO Petroleum Corporation, CITGO appealed multiple convictions under the MBTA for potential harm to migratory birds from unprotected oil field equipment. CITGO argued that illegally “taking” migratory birds involves only “conduct intentionally directed at birds, such as hunting and trapping, not commercial activity that unintentionally and indirectly causes” migratory bird deaths. The government disputed CITGO’s interpretation, pointing to cases from the Second and Tenth Circuits holding that “because the MBTA imposes strict liability, it must forbid acts that accidentally or indirectly kill birds.”

The Fifth Circuit looked to the common law meaning of “take,” which was understood at the time of the enactment of the MBTA to refer to “killing or capturing, to human control.” The Court noted that if Congress had intended to expand the definition of “take” broader than its common law meaning, it could have included “harm” or “harass” in the statutory definition, as Congress did in the Endangered Species Act. In the Court’s view, the absence of such terms from the MBTA’s definition supports a narrow interpretation of “take.” Accordingly, the Court agreed with CITGO that the MBTA’s ban on takings “only prohibits intentional acts (not omissions) that directly (not indirectly or accidentally) kill migratory birds.”

As a final factor in the Court’s analysis, the Court noted that the “scope of liability under the government’s preferred interpretation” would be extremely broad, encompassing a wide variety of otherwise lawful activities that have some potential to harm migratory birds. The Court stated, “If the MBTA prohibits all acts or omissions that ‘directly’ kill birds, where bird deaths are ‘foreseeable,’ then all owners of big windows, communication towers, wind turbines, solar energy farms, cars, cats, and even church steeples may be found guilty of violating the MBTA.” Such a broad interpretation “would enable the government to prosecute at will and even capriciously.”

Future Implications

The Fifth Circuit’s decision expands the number of Circuits taking a narrow interpretation of the scope of liability under the MBTA. Because the Second and Tenth Circuits have adopted a broader interpretation, this issue may ultimately be resolved by the U.S. Supreme Court. At this time, however, the interpretation of “take” under the MBTA is Circuit-specific and industry should take careful note of the applicability of the relevant decisions to their operations on a state-by-state basis.

Other developments with respect to MBTA will require careful monitoring. For example, FWS has recently announced that it is considering a potential rulemaking to allow the issuance of take permits for owners of drilling pits, gas flares, power lines and communications towers which would provide companies some regulatory certainty in connection with their potential impacts on migratory birds. Whether the government will continue to criminally prosecute incidental take under the MBTA and its progress evaluating a potential permitting regime remains to be seen. Our Environment, Land, and Resources attorneys will be closely tracking these issues.