Migratory Bird Treaty Act: Question Of Unintentional 'Take' Primed For Potential Fifth Circuit En Banc Or Supreme Court Review

Recently, industry won a major legal victory regarding liability—or lack thereof—for unintentional and indirect bird deaths under the Migratory Bird Treaty Act (MBTA). Unfortunately, that victory could be short lived, depending on the results of the rehearing and appeals process.

At first read, the MBTA's statutory language seemingly subjects companies to criminal liability for any bird that may die in or around industrial operations. MBTA liability not only extends to typical industrial operations—wind farms, wastewater ponds, oil and gas equipment, transmission lines, logging, communication towers, etc.—but could also extend to absurd results such as criminal prosecutions for building owners or even house-cat owners.

In fact, the Fish and Wildlife Service (FWS) estimated in 2002 that collisions with building windows " may account for 97 million to 976 million bird deaths each year" and "domestic and feral cats may kill hundreds of millions" of birds each year.1 In comparison, industrial operations accounted for far fewer deaths: (1) a tenuous estimate of "174 million deaths" for transmission lines; (2) 33,000 deaths for wind turbines; and (3) "[u]p to two million" deaths in oil and wastewater pits.2 Regardless of the impact of each cause of bird deaths, traditional industrial operations have borne the brunt of prosecutions for unintentional and indirect deaths.3

But an increasing number of courts have refused to convict, or have overturned convictions, for unintentional and indirect bird deaths related to industrial operations. Just this month, the United States Court of Appeals for the Fifth Circuit solidified the circuit split on the scope of liability for unintentional and indirect "take"4 under the MBTA. On one hand, some circuits apply strict liability for unintentional bird deaths with certain limitations. On the other, the Fifth Circuit resoundingly rejected that the MBTA applies to unintentional activity, concluding that "a 'taking' is limited to deliberate acts done directly and intentionally to migratory birds."5

WHAT HAPPENS NOW?

First and foremost, companies involved in MBTA investigations, indictments, or settlement negotiations related to unintentional bird deaths should reevaluate their downside risk and consider challenging the charges in court or pushing for more favorable settlement terms with the United States—especially for alleged violations in Texas, Louisiana, or Mississippi. Second, despite the Fifth Circuit's favorable opinion, companies should be wary of continued litigation in the Fifth Circuit and possibly before the Supreme Court that could overturn the Fifth Circuit's opinion. The United States will file a petition for rehearing with the Fifth Circuit, and regardless of that outcome, a petition for certiorari with the Supreme Court will likely be filed. Third, companies and trade associations should anticipate and begin planning for regulatory and legislative actions in response to the Fifth Circuit's decision. ARE COMPANIES NO LONGER LIABLE FOR UNINTENTIONAL "TAKE"?

Citgo found itself in MBTA trouble when the "government suspected birds had died in uncovered [equalization] tanks"6—38 birds in total7—at the company's Corpus Christi, Texas, refinery.

But the Fifth Circuit unequivocally rejected the United States' argument that merely owning uncovered tanks in which birds had died violates the MBTA. The court held: "the MBTA's ban on 'takings' only prohibits intentional acts (not omissions) that directly (not indirectly or accidentally) kill migratory birds."8

This holding, however, only binds courts and government enforcement authorities within the geographic boundaries of the Fifth Circuit—Texas, Louisiana, and Mississippi. In those states, at the moment, a company cannot be convicted under the MBTA for unintentional taking of migratory birds from industrial operations.

Outside the Fifth Circuit, companies still face significant MBTA risk from unintentional bird deaths at industrial...