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Prudence Prevails: Fifth Circuit Supports Narrow Reading of Liability under the Migratory Bird Treaty Act

The U.S. Court of the Appeals for the Fifth Circuit recently ruled that the criminal prohibition on killing or injuring birds under the Migratory Bird Treaty Act (“MBTA”) “only prohibits intentional acts (not omissions) that directly (not indirectly or accidentally) kill migratory birds.”  The appellate court reversed a criminal conviction under the MBTA for the deaths of migratory birds that had become trapped in uncovered equalization tanks containing oil and wastewater.  In so doing, the Fifth Circuit solidified the split among federal courts over the appropriate interpretation of an unlawful “taking” under the MBTA when commercial operations inadvertently impact birds.  In the process, it significantly increased the likelihood of the Supreme Court taking up the issue in the not-too-distant future.  And it further cast doubt on a recently-announced regulatory initiative of the U.S. Fish & Wildlife Service (“FWS”) to create “incidental take permits” under the MBTA covering commercial operations’ impacts on migratory birds.

Originally enacted in 1918 to prevent the overhunting and poaching of migratory birds, the MBTA makes it a crime to “take” any migratory bird “by any means and in any manner.”  The statute’s protections are far-reaching, covering virtually every bird species found in the U.S.  The Act authorizes the Interior Department to issue regulations governing the issuance of permits for the taking of migratory birds in certain circumstances.  Nevertheless those permits generally are not available for commercial activities that incidentally take migratory birds.  FWS has not developed a permitting program for activities that might result in the unintentional, incidental taking of migratory birds associated with the operation of projects such as industrial facilities.   Consequently, whether a business is prosecuted for the unintentional or incidental take of a migratory bird has depended solely on “prosecutorial discretion,” with inconsistent results throughout the country and across different industry sectors.   

While historically the U.S. reserved criminal actions under the MBTA for intentional takes by hunters and trappers, more recently the government has begun initiating such actions against otherwise lawful commercial activities that impact migratory birds.  These cases have arisen in connection with power plants, transmission lines, oil and gas facilities, chemical plants, timber harvesting, and wind farms, despite that the associated bird deaths were incidental to authorized operations.  The result has been heated disagreement between FWS and the regulated community, and subsequently among the federal courts, over whether incidental takes of birds may be prosecuted as strict liability crimes under the MBTA.  The Fifth Circuit’s ruling will add fuel to the fire.

The Fifth Circuit’s opinion holds that, despite its strict liability nature, the MBTA criminalizes only an affirmative act to “take” a migratory bird.  That was not present where birds simply landed in uncovered tanks.  The Court further reasoned that interpreting “taking” to include omissions – such as the failure to cover industrial tanks – that indirectly result in the death of birds could produce absurd results (for example, treating a domestic cat’s predatory behavior as a taking), and Congress would have made its intent unmistakable before exposing unsuspecting citizens to criminal liability for unintentional acts. 

The implications of the Fifth Circuit’s ruling are significant.  As a preliminary matter, the decision further deepens the divide among the federal appellate courts over the application of the MBTA.  With its ruling, the Court joined the Eighth and Ninth Circuits in concluding that the statute does not criminalize unintentional, involuntary acts and instead requires intentionality causing direct impacts to birds.  On the other side, the Second and Tenth Circuits believe that the MBTA is a strict strict liability statute and that it supports criminal prosecutions of individuals and companies whose legitimate activities accidentally or indirectly take birds – with the only safeguard being the prosecutorial leanings of the government at any given time.  The issue now is fully ripe for Supreme Court review.

This new court decision also dilutes FWS’s recent interest in developing an MBTA incidental take permit program and accompanying environmental review under the National Environmental Policy Act as recently announced.  The government already allows limited incidental taking under the MBTA for certain military and other activities; the government is now considering a broad-based incidental take permit available to a range of industry sectors, akin to regulations under the Endangered Species Act and Bald and Golden Eagle Protection Act.  Such regulations, however, would be unnecessary if these incidental takes of migratory birds do not violate the MBTA in the first instance.  In the meantime, project proponents and operators must look to the law of the jurisdiction in which their activities are located to understand the scope of potential MBTA liability, as well as the requirements of other potentially implicated species laws, in conjunction with their current or planned activities on private or public lands.

© 2020 Beveridge & Diamond PC


About this Author

W Parker Moore, Environmental Lawyer, Beveridge & Diamond Law firm

Parker dedicates his practice to successful project development. He helps clients nationwide from every economic sector navigate issues arising under the Clean Water Act (CWA), the Endangered Species Act (ESA), the National Environmental Policy Act (NEPA), the Migratory Bird Treaty Act (MBTA) and related environmental laws.  He also defends clients against agency enforcement actions and citizen suits, applying his substantive knowledge of natural resources law and project development to craft creative, sound and successful legal strategies. He co-chairs B&D’s...

James M. Auslander, Environmental Law Attorney, Beveridge Diamond Law Firm

James (Jamie) Auslander’s legal practice focuses on environmental, natural resources, and administrative law and litigation.  Mr. Auslander represents numerous major and small businesses, trade associations, and state agencies in a wide range of regulatory and litigation matters, both national and local in scope.  He serves clients in all phases of a case, including internal compliance, administrative proceedings and negotiations, and litigation when necessary.

Mr. Auslander devotes a significant part of his practice to counseling and litigation under the National Environmental Policy Act (“NEPA”) and similar state laws.  He has represented public and private clients in building strong administrative records and robust NEPA analyses to support complex projects and proposals.  For example, Mr. Auslander was integral in crafting and implementing a successful strategy to construct a major new highway in the Washington, D.C. area that presented NEPA and other environmental issues that many felt were impossible to resolve.  He also advises a biotechnology company regarding the NEPA sufficiency of petitions to commercialize genetically modified crop seeds.  Further, Mr. Auslander represents an industry association in a NEPA matter involving modes of recreation in national parks.

John Cossa, Environmental Attorney, Beveridge and Diamond Law Firm

John Cossa’s practice focuses on issues related to the development of energy and mineral resources on federally-managed lands. He advises clients on matters related to the leasing and development of oil and gas, wind, solar, and mineral resources both onshore and on the Outer Continental Shelf. Mr. Cossa also counsels clients on compliance with applicable operations, environmental, and safety regulations, agency notices and orders.

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 Maryam F. Mujahid, Beveridge Diamond, Environmental Lawyer, Regulatory Compliance Attorney,

Maryam Mujahid maintains an environmental regulatory and litigation practice.  She advises clients on various environmental compliance, contamination and liability matters, and provides guidance on federal environmental and occupational safety laws.  Maryam also has significant experience counseling clients on environmental risks and conducting environmental due diligence in the context of mergers and acquisitions, bankruptcies, initial public offerings, and other business transactions. 

Prior to joining Beveridge & Diamond, Maryam was an...

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