United States: 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 sites. Although the Fifth Circuit's decision may sway other courts, those courts are free to depart from the Fifth Circuit's reasoning.

Indeed, some jurisdictions are already bound by precedent that allows MBTA prosecution for unintentional bird deaths at industrial sites.9 Most notably, companies still face MBTA prosecution in natural-resource-extraction-heavy states within the Tenth Circuit—including Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming.

But the liability question remains unanswered in some circuits that have addressed the definition of MBTA "take" in different contexts. Prior cases from the Eighth and Ninth Circuits suggest that those circuits agree with the Fifth Circuit's approach. But neither circuit has addressed the specific question of whether companies face MBTA liability for bird deaths caused by industrial activity.10

Rather, the Eighth and Ninth Circuits have rejected injunctive relief against the federal government for authorizing timber sales—i.e., logging—that might indirectly result in MBTA "take" caused by habitat destruction.11 Although the circuits' definition of "take" generally comports with the Fifth Circuit's, neither the Eighth nor the Ninth Circuit has directly addressed the question that was before the Fifth Circuit.12

At least one district court—the District of North Dakota—has rejected MBTA liability for industrial operations, following the Eighth Circuit's definition of "take."13 At this point, it is unclear whether sister districts within the Eighth Circuit will follow the District of North Dakota's lead.

If the Fifth Circuit's decision stands on rehearing, only the Supreme Court—or, as a long shot, Congress—can resolve the circuit split and resulting regional schism.

HOW WILL THE UNITED STATES AND SPECIAL INTEREST GROUPS ATTACK THE FIFTH CIRCUIT'S DECISION?

The Fifth Circuit's decision solidified a circuit split between (1) the Tenth and Second Circuits, which allow MBTA prosecutions for unintentional "take," and (2) the Fifth Circuit, which only allows MBTA prosecutions for direct and intentional "take," coupled with the Eighth and Ninth Circuits, which have narrowly defined MBTA "take" to apply only to conduct directed at migratory birds. The circuit split makes the Fifth Circuit more likely to grant en banc rehearing and the Supreme Court more likely to grant a petition for certiorari.

The historical background and legislative history of the MBTA support the Fifth Circuit's decision. Congress passed the MBTA in 1918 to curb commercial trade in and recreational hunting of birds.14 Commercial trade and hunting are intentional activities undeniably directed at birds; activities that are commonly described by the terms Congress used in the MBTA: pursuing, taking, capturing, and killing.15 Unfortunately, Congress failed to make this limitation clear in the statutory text of the MBTA. Instead, Congress included the all-encompassing phrase "at any time, by any means or in any manner," which seemingly stretches the MBTA's reach to any bird death.16

On rehearing or certiorari, the United States' argument to overturn the Fifth Circuit's decision will likely focus on two issues: (1) the court's reliance on the definition of "take" without squarely addressing the definition of "kill"; and (2) the court's treatment of the phrase "at any time, by any means or in any manner."

First, the Fifth Circuit's decision focuses on the word "take" because the court noted that the United States used that term in the indictment against CITGO.17 But the United States also explained in the indictment that the MBTA's statutory text "makes it unlawful for any person, at any time, by any means or in any manner, to take or kill" migratory birds.18 The indictment further referenced that the MBTA regulations define "take" to include "killing and wounding."19

Focusing on "take," the Fifth Circuit turned to the common law definition of the term at the time Congress passed the MBTA in 1918.20 But the court neither directly addressed the inclusion of "kill" in the MBTA's statutory text.21 Nor did the court address the regulatory definition of "take," specifically the indictment's explicit recognition that "take" includes "kill." By doing so, the Fifth Circuit departed from the analytical steps employed by the Tenth Circuit, which turned first to the FWS's regulatory definition of "take" in the same circumstance.22 The United States will likely argue that the Fifth Circuit too narrowly defined "take" without addressing the importance of the word "kill" in both the statutory and regulatory text. Such a narrow definition, the United States may contend, allowed CITGO to escape liability for the difficult-to-refute fact that whatever substance the birds encountered in the wastewater tanks likely "kill[ed]" them as proscribed by the MBTA's statutory and regulatory text.

Second, the Fifth Circuit interpreted the phrase "at any time, by any means or in any manner" as limited by the common law definition of "take." The court stated that "as applied to wildlife, to 'take' is to reduce those animals, by killing or capturing, to human control."23 Accordingly, the court concluded "[o]ne does not reduce an animal to human control accidentally or by omission; he does so affirmatively."24 In light of this limited definition, the court reasoned that the means or manner of "take" only applied to the modes of the direct and intentional acts, such as hunting with a bow or a rifle.25

The United States will likely argue that the narrow focus on the definition of "take" gave no significance to the MBTA's seemingly all-encompassing language. Had the court properly considered the MBTA's expansive language, the United States will likely contend, CITGO could not have escaped liability for the fact that a substance in the wastewater pond (the means or manner) killed (a word included in both the regulatory definition of "take" and the MBTA's statutory text) migratory birds.

While the Fifth Circuit's decision is a victory for industry, the decision must still survive the appeals process for both rehearing before the Fifth Circuit en banc and potential Supreme Court review—both of which have become more likely in light of the solidified circuit split. Even though the Fifth Circuit reached a clean, logical, and historically accurate resolution, the United States and special interest groups will fight for reversal.

WHAT REGULATORY OR LEGISLATIVE ACTIONS MIGHT THE FWS OR CONGRESS TAKE IN RESPONSE?

Regardless of the substantive resolution of the United States' petition for rehearing or a potential petition for certiorari to the Supreme Court, one or both of the FWS or Congress will be likely to respond. Companies and trade associations should anticipate such action and develop a plan to best advocate for a clear and beneficial outcome.

First, the Fifth Circuit's decision may disrupt the FWS's pending efforts to study a permitting system for incidental take under the MBTA.26 If the Fifth Circuit's decision stands, the FWS might abandon the permitting system to avoid a rulemaking that simply would not apply within Texas, Louisiana, and Mississippi and that may not apply within the Eighth and Ninth Circuits. Such an outcome would deprive companies operating outside those states of the added clarity and certainty that an incidental take permit system would provide. In states that remain subject to MBTA liability for unintentional take, companies and trade associations should advocate for an incidental take program, ensuring that such a program contains workable terms that decrease operational risk.

Second, the Fifth Circuit's decision may provide a spark for Congress to seriously address the MBTA. If the Fifth Circuit's opinion is overturned, proponents of limiting the MBTA's scope may gain momentum.27 Such movements are already underway but, to date, have gained little traction.28 A handful of congressmen—hoping to limit the MBTA's scope to intentional conduct—unsuccessfully proposed such a bill in early 2015. Companies and trade associations should continue to advocate for a congressional resolution, which would provide the simplest and most efficient outcome.

Footnotes

1 U.S. Fish & Wildlife Service, Migratory Bird Mortality: Many Human-Caused Threats Afflict Our Bird Populations at 2 (2002), available at http://www.fws.gov/migratorybirds/CurrentBirdIssues/Hazards/Mortality-Fact-Sheet.pdf.

2 Id.

3 Alexander K. Obrecht, Migrating Towards an Incidental Take Permit Program: Overhauling the Migratory Bird Treaty Act to Comport with Modern Industrial Operations, 54 Nat. Res. J. 107, 120-32 (2014).

4 "Take" is often colloquially used as a catch-all term meant to encapsulate all activities that violate the Migratory Bird Treaty Act. See 50 C.F.R.  § 10.12 (MBTA regulations defining "take" as "to pursue, hunt, shoot, kill, trap, capture, or collect, or attempt to pursue, hunt, shoot, wound, kill, trap, capture, or collect"). The word, however, is used independently in the statutory text. See 16 U.S.C. § 703(a) ("[I]t shall be unlawful at any time, by any means or in any manner, to pursue, hunt, take, capture, kill, attempt to take, capture or kill . . . ." (emphasis added)). In fact, charging documents often list only "take" of migratory birds as the defendant's violation. See, e.g., United States v. CITGO Petroleum Corp., No. 14-40128, 2015 WL 5201185, at *2 (5th Cir. 2015) ("[T]he indictment also accused CITGO of 'taking' migratory birds in violation of the MBTA . . . .").

5 CITGO Petroleum Corp., 2015 WL 5201185, at *9.

6 Id. at *2.

7 "Among the bird remains were five White Pelicans, twenty (regular old) Ducks, two Northern Shoveler Ducks, four Double Crested Cormorants, one Lesser Scaup Duck, one Black-Bellied Whistling Tree Duck, one Blue-Winged Teal Duck, and one Fulvous Whistling Tree Duck." Id. at *2 n.4.

8 Id. at *14.

9 See United States v. Apollo Energies, Inc., 611 F.3d 679 (10th Cir. 2010); United States v. FMC Corp., 572 F.2d 902 (2d Cir. 1978).

10 Alexander K. Obrecht, Migrating Towards an Incidental Take Permit Program: Overhauling the Migratory Bird Treaty Act to Comport with Modern Industrial Operations, 54 Nat. Res. J. 107, 123-25 (2014) (discussing the Eighth and Ninth Circuit opinions and how they may limit MBTA liability for federal agencies and companies).

11 See Newton Cnty. Wildlife Ass'n v. U.S. Forest Serv., 113 F.3d 110, 114-16 (8th Cir. 1997); Seattle Audubon Soc'y v. Evans, 952 F.2d 297, 302-03 (9th Cir. 1991).

12 See Newton Cnty. Wildlife Ass'n, 113 F.3d at 115 ("[W]e agree with the Ninth Circuit that the ambiguous terms 'take' and 'kill' in 16 U.S.C. § 703 mean 'physical conduct of the sort engaged in by hunters and poachers, conduct which was undoubtedly a concern at the time of the statute's enactment.'" (quoting Seattle Audobon Soc'y, 952 F.2d at 302)).

13 See United States v. Brigham Oil & Gas, 840 F. Supp. 2d 1202, 1209-11 (D.N.D. 2012) (discussing the Eighth Circuit's definition of "take" from Newton County Wildlife Association and the binding effect of that definition).

14 Alexander K. Obrecht, Migrating Towards an Incidental Take Permit Program: Overhauling the Migratory Bird Treaty Act to Comport with Modern Industrial Operations, 54 Nat. Res. J. 107, 110-13 (2014).

15 16 U.S.C. 703(a).

16 Id.

17 CITGO Petroleum Corp., 2015 WL 5201185, at *10 ("CITGO was indicted for 'taking' . . . migratory birds, not killing them. We confine analysis to the charging term."). See Indictment at 12-16, United States v. CITGO Petroleum Corp., No. 14-40128, (5th Cir. 2015) (CITGO "did unlawfully take and cause the taking of migratory birds in Tank 117."). The court does not discuss the conduct that the United States alleged in the indictment that led to the bird deaths. Id. at * 9 (stating only that "the government suspected birds had died in uncovered [equalization] tanks").

18 Indictment at 12 (emphasis added).

19 Id. (emphasis added).

20 CITGO Petroleum Corp., 2015 WL 5201185, at *10.

21 Id. at *10 n.10 (explaining why the court did not address the meaning of "kill" in the MBTA's statutory text but providing no clarification as to why the court did not address "kill" within the FWS's MBTA regulations); see 50 C.F.R.  § 10.12 (MBTA regulations defining "take" as "to pursue, hunt, shoot, kill, trap, capture, or collect, or attempt to pursue, hunt, shoot wound, kill, trap, capture, or collect" (emphasis added)).

22 Apollo Energies, Inc., 611 F.3d at 684 & n.3. And the United States – as the Tenth Circuit noted in Apollo Energies – could argue that the Supreme Court also turned first to a regulatory definition of "take" when interpreting the Endangered Species Act. See Babbitt v. Sweet Home Chapter of Communities for a Greater Or., 515 U.S. 689, 691 (1995).

23 Id. at *10.

24 Id. (internal quotation marks omitted).

25 CITGO Petroleum Corp., 2015 WL 5201185, at *11.

26 Phil Taylor, Appeals Court Blasts Obama Admin's View of Key Bird Law, E&E Publishing (Sept. 11, 2015), http://www.eenews.net/greenwire/stories/1060024567/ ("But that rulemaking, if FWS were to pursue it, assumes MBTA applies to incidental take, which the 5th Circuit explicitly denied.").

27 Alexander K. Obrecht, Migrating Towards an Incidental Take Permit Program: Overhauling the Migratory Bird Treaty Act to Comport with Modern Industrial Operations, 54 Nat. Res. J. 107, 132-38 (2014) (advocating that a congressional fix is the easiest way to add clarity to the MBTA and that a congressionally mandated incidental take program may be a viable political solution).

28 Phil Taylor, Bird Protection Law Could Spark Spending Battle With Big Consequences For Energy Companies, E&E Publishing (June 12, 2015), http://www.eenews.net/eedaily/stories/1060020127 ("Duncan and four other Republicans sought to clarify the law in January with the introduction of H.R. 493, which would specify that MBTA only outlaws the intentional killing of protected species, providing legal relief for wind farms and other energy producers.").

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