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.
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