Two Birds by the Pit: Courts Split Over Well Operator Liabilities under the Federal Migratory Bird Treaty Act



A recent federal court decision in North Dakota focuses on an issue of concern to oil and gas operators nationwide – whether unintended fatalities of migrating birds at well sites can give rise to criminal liability under the Migratory Bird Treaty Act (“MBTA”). The North Dakota district court dismissed criminal charges brought by the United States Fish and Wildlife Service (“FWS”) against several operators for unintended bird deaths that occurred near reserve pits at well sites. The court’s decision in United States v. Brigham Oil & Gas, L.P. represents the narrow view that the MBTA should only impose criminal liability on those who deliberately “take” or “kill” migratory birds, but not those engaged in lawful activities that happen to result in unintended deaths of migratory birds. Other federal courts have taken a different view, interpreting the MBTA as imposing criminal liability for reasonably foreseeable migratory bird fatalities proximately caused by otherwise lawful conduct, including well-site operations. As the Brigham Oil & Gas decision illustrates, the courts that have imposed criminal penalties for unintended bird deaths have struggled to define the scope of liability under the MBTA.

The federal government has appealed the decision to the Eighth Circuit Court of Appeals. Operators may wish to consider ways to weigh in on the issues, such as participating as an amicus party, to offer additional industry perspectives to the next court poised to decide this important and developing issue.

Please see full alert below for more information.

LOADING PDF: If there are any problems, click here to download the file.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© K&L Gates LLP | Attorney Advertising

Written by:


K&L Gates LLP on:

Popular Topics
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:

Sign up to create your digest using LinkedIn*

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.

Already signed up? Log in here

*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.