Article first appeared in The Journal Record - June 9, 2011.

Maybe you’ve heard this one: A hunter asks the game warden whether he may shoot a particular animal.

“No,” replies the warden, “I’m sorry, but the season doesn’t start for another month.”

“That’s OK,” responds the hunter, “with any luck I’ll be able to hit one with my truck.”

Perhaps the drafters of the Migratory Bird Treaty Act sought to avoid such linguistic distinctions when they chose to prohibit the “taking” of – rather than simply the shooting or trapping of – certain migratory birds. Whatever the reason behind their choice of language, the drafters’ decision to utilize this inclusive wording has had far-reaching and possibly unintended effects. Although the MBTA, which was first passed in 1918, was likely intended to prohibit only the intentional killing of migratory birds, the drafters’ choice of language has been construed broadly. Today, even the unknowing, unintentional killing of a protected animal may result in a misdemeanor violation of the act, punishable by a $15,000 fine and a six-month prison sentence.

The prohibition against even the accidental taking of protected birds has significant implications for industry groups in Oklahoma. Under the MBTA, both individuals and business entities may be held liable for the taking or killing of migratory birds, even where the taking is the accidental product of routine industrial activity. The 10th Circuit recently reaffirmed that business entities may be held strictly liable for accidental violations of the act, holding that drilling operators who utilized equipment that trapped and killed birds – heater treaters, in the case of United States v. Apollo Energies Inc. – were guilty of a misdemeanor violation of the MBTA.

Article authored by McAfee & Taft Attorney: Jessica John Bowman.