Fifth Circuit Limits The Scope Of The 'Take' Prohibition Under The Migratory Bird Treaty Act (MBTA), Rejecting Second And Tenth Circuit's Interpretations

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 atake 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 totake wildlife under the common law meant toreduce those...