On September 4, 2015, the U.S. Court of Appeals for the Fifth Circuit held in United States v. CITGO Petroleum Co. that the Migratory Bird Treaty Act’s take prohibition does not include the unintentional take of migratory birds. In doing so, the Fifth Circuit joins sides with the Eighth and Ninth Circuits in the growing divide among the federal circuit courts on the scope of the MBTA’s take prohibition.
MBTA’s Take Prohibition
The MBTA protects hundreds of species of migratory birds, many of which are common and abundant, such as sparrows, pigeons and hummingbirds. The MBTA is a strict liability criminal law with potentially broad applicability. Specifically, the MBTA makes it illegal to “pursue, hunt, take, capture, kill, attempt to take, capture, or kill, possess . . . any migratory bird . . . or any part, nest, or egg of any such bird.” 16 U.S.C. §§ 703-712. The MBTA was enacted in 1918 to implement an international treaty to protect migratory birds threatened by the commercial trade of migratory birds and their feathers. While the take prohibition’s language is broad, there is little in the Act’s legislative history supporting the view that the MBTA was intended to prohibit incidental or unintentional take of migratory birds.
Numerous circuit courts have examined the scope of the Act’s take prohibition and have come to conflicting conclusions. Prior to the CITGO decision, the Eighth and Ninth Circuits took the narrow view of the Act’s take prohibition, holding that it applied only to intentional take or capture of migratory birds, such as hunting or trapping. In contrast, the Second Circuit and Tenth Circuit have taken a broader view by holding that the Act prohibits not only intentional take but also unintentional take, which may include take resulting from contact with industrial wastewater ponds, power lines, wind turbines or solar arrays.
The scope of the MBTA’s take prohibition has become a key issue in the energy industry, both in the criminal and civil context. Federal prosecutors have obtained settlement agreements from, or convictions of, energy companies for violations of the MBTA. Project opponents have also unsuccessfully attempted to use the Act’s criminal prohibition to challenge approvals of energy projects. Resolution of this regulatory uncertainty is increasingly important as the MBTA has become an obstacle to the development of clean energy projects needed to achieve federal and state greenhouse gas emission goals. Resolution of this issue could become even more important considering the U.S. Department of Justice’s recent directive to hold more individuals accountable for illegal corporate conduct.
The Fifth Circuit’s CITGO Decision
In the CITGO case, CITGO Petroleum Corporation and CITGO Refining and Chemicals (collectively CITGO) were convicted of, among other things, violations of the MBTA based on migratory bird deaths that occurred when the birds landed in uncovered equalization tanks storing wastewater from the oil refining process. The indictment charged CITGO with “taking” or “aiding and abetting the taking” of migratory birds, not “killing” them. CITGO argued that the convictions must be overturned because the migratory bird deaths were unintentional and thus did not constitute a “take” under the MBTA.
In its decision, the Fifth Circuit became the most recent circuit court to hold that the MBTA’s take prohibition is limited to only intentional take of migratory birds. In doing so, the court focused on the take prohibition’s text, its origins in the common law and a comparison to the take prohibitions in other wildlife protection laws. The court found that the take prohibition mirrored the definition in the common law, applicable to wildlife, which means “to reduce those animals, by killing or capturing, to human control.” The court observed that “[o]ne does not reduce an animal to human control accidentally or by omission; he does so affirmatively.”
The Fifth Circuit reinforced its conclusion by comparing the MBTA’s take prohibition with the take prohibitions in the Endangered Species Act and the Marine Mammal Protection Act, both enacted over fifty years after the MBTA. These statutes include additional protections beyond the common law definition of take. For example, under these laws, the broad definition of “take” includes actions that “harass” protected species. The regulations promulgated under these statutes further reinforce that the “take” prohibition encompasses not only intentional acts but also negligent or unintentional acts. When the MBTA’s take prohibition is compared with these statutes, it “shows that Congress well knew how to expand ‘take’ beyond its common law origins to include accidental or indirect harm to animals” and agreed with the Ninth Circuit that such differences are “distinct and purposeful.”
The court rejected the government’s argument that Congress’ intent to establish a broad definition of “take” under the MBTA was demonstrated by “negative implication.” In 2002, a district court held that the military violated the MBTA when migratory birds were accidentally taken during military training exercises. In response, Congress quickly enacted an exemption for “military readiness activity” from MBTA liability. In the CITGO case, the government argued unsuccessfully that this exemption implied that Congress knew and implicitly approved of the broad interpretation prohibiting other forms of unintentional take. The court found that this argument “makes no sense” and that a “single carve-out from the law cannot mean that the entire coverage of the MBTA was implicitly and hugely expanded.”
Underlying the Fifth Circuit’s decision is a concern about the potential scope of liability under the broad interpretation of the Act’s take prohibition that is “hard to overstate.” The court observed that communication towers, cars and domesticated cats kill millions of birds per year, and the broad interpretation would cover all “owners of big windows, communication towers, wind turbines, solar energy farms, cats, and even church steeples,” subjecting such parties to risk of criminal liability for incidental and unintentional effects. Such “absurd results” further bolster the Fifth Circuit’s “confidence that Congress intended to incorporate the common-law definition of ‘take’ in the MBTA.”
Implications of the CITGO Decision
The CITGO decision further expands the geographic scope of states where the MBTA’s take prohibition is limited to only deliberate acts intended to kill or capture migratory birds. Now that the Fifth Circuit has joined the Eighth and Ninth Circuit, this narrow interpretation governs in a majority of the Western states where there is active energy and infrastructure development. In other jurisdictions, parties may be subject to criminal investigation for incidental take of migratory birds. Considering the increasing importance of the issue and the stark divide between circuit courts, the issue is ripe for review by the U.S. Supreme Court.
This decision could also undermine the recent effort of the U.S. Fish and Wildlife Service to promulgate regulations for an incidental take permit scheme under the MBTA. Underlying the U.S. Fish and Wildlife Service’s effort is the broad interpretation of the MBTA’s take prohibition that includes incidental take. The CITGO decision could provide additional support to undercut the legal foundation for any permitting regime developed by the Fish and Wildlife Service and any subsequent rule would likely be subject to litigation.
