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

Last Updated: September 24 2015
Article by Tom Dimond and Freedom S.N. Smith

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.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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