Summary
The recent Fifth Circuit Court of Appeals decision that unintentional bird deaths under the Migratory Bird Treaty Act (“MBTA”) are not “takes” under the MBTA and therefore not subject to criminal liability, adds fodder to the split in the circuits on this issue and uncertainty as to the implications for the U.S. Fish and Wildlife Service (“FWS”) potential permitting program, announced earlier this year. Industries with the potential to unintentionally impact migratory birds, particularly within the energy and utilities sectors, should take note of which circuit court presides in the location of their existing and proposed facilities and keep a watchful eye on the FWS. They should also monitor the Department of Justice (DOJ), which may appeal from the Fifth Circuit ruling or choose to allow the issue to evolve in the circuit courts that have not yet ruled on the question, or the Supreme Court, if DOJ chooses to appeal this or a subsequent decision.
In United States of America v. Citgo Petroleum Corporation, et al., No. 14-40128, 2015 WL 5201185, (5th Cir. Sept. 4, 2015), the court reversed the district court’s ruling that Citgo was criminally liable under the MBTA for bird deaths caused by exposure to wastewater in uncovered tanks at one of Citgo’s Texas oil refineries. The court held that the MBTA’s ban on “takes” prohibits only intentional acts that directly kill migrating birds. Unintended and inadvertent acts commonly referred to as “incidental takes” are excluded from this prohibition according to the court. Common examples of “incidental takes” are loss of birds caused by tree felling, windmills, reflective glass, and oil and gas wastewater pits, as occurred in the Citgo case. The court held that based upon the FWS regulatory definition of “take,” which means to “pursue, hunt, shoot, wound, kill, trap, capture, or collect,” (50 CFR § 10.12) a person cannot “take” an animal accidentally or by omission, but rather, “taking” requires an affirmative act.
The Fifth Circuit joins the Eighth and Ninth Circuits in a split from the Second and Tenth Circuits: both of which have upheld criminal liability for unintentional bird deaths. The First, Third, Fourth, Sixth, Seventh and DC Circuits have yet to address this issue.
In May 2015, the FWS announced a proposal to authorize “incidental takes” of migratory birds under the MBTA through rulemaking, authorizations, permits and possible voluntary guidance for industries to avoid unintentional bird deaths.
The FWS proposal specifically identified the need to address "incidental takes" from energy and utility operations such as:
-
Oil and gas wastewater pits
-
Methane burner pipes at production sites
-
Communication towers
-
Electric transmission lines
-
Wind towers
-
Solar panels
-
Tree felling
With the Fifth Circuit ruling as it did, it is now uncertain that a permit would be required for activities located within its jurisdiction, and the same may be true for the Eighth and Ninth Circuits.
Operators within industries resulting in “incidental takes” should determine which circuit court presides over their operations, and follow the progress of any challenges to FWS enforcement action, as well as the rulemaking process, which may be reviewed by the D.C. Circuit Court at some point.
View Document(s):
