The Fifth Circuit Court of Appeals reversed a district court decision holding CITGO liable for three misdemeanors under the Migratory Bird Treaty Act (MBTA) for bird deaths (the opinion lists 35 birds, including “twenty (regular old) ducks”) resulting from uncovered equalization tanks at its Corpus Christi refinery. The court also reversed two Clean Air Act (CAA) convictions for failure to cover the tanks.

The Fifth Circuit noted the exceptionally broad reach of the MBTA if it were applied to all activities that foreseeably result in bird mortality, observing that tens of millions of birds die annually due to buildings with broad windows, utility transmission lines, wind farms, and domestic cats. It was unwilling to accept that Congress intended such a large scope and to rely only on prosecutorial discretion to prevent arbitrary enforcement. The Fifth Circuit’s ruling on the application of the MBTA to bird mortality associated with industrial activities extends decisions in the 8^th and 9^th Circuits that had declined to apply the MBTA to habitat modification that would foreseeably result in bird mortalities. The 2^nd and 10^th Circuits have held that the MBTA does reach industrial activities that indirectly result in bird mortality, with the 10^th Circuit decision addressing bird deaths at an oil and gas facility. This direct split in the circuits may well result in the need for Supreme Court to weigh in.

In reaching its conclusion, the Fifth Circuit parsed the language of the statute regarding “take” of birds, which was the violation charged in the indictment. However, the Fifth Circuit suggested in a footnote that it would have reached the same conclusion if the company had been charged with “killing” migratory birds. It found no reason to believe that Congress in passing the statute had any intent to modify the common law meaning of “take.” Furthermore, the Fifth Circuit noted that other statutes such as the Endangered Species Act and the Marine Mammal Protection Act, which have been held to address indirect take of protected species, contain broader definitions of “take” than the MBTA.

While agreeing with other courts that the MBTA is a strict liability statute, the Fifth Circuit distinguished between eliminating the need for mens rea and eliminating the actus reus requirement. For the MBTA, the actus reus requirement compels the FWS to show that the defendant acted affirmatively toward the birds. The Fifth Circuit refused to find the required intent from the fact that the uncovered tanks were in violation of federal and state law, finding no support for such a conclusion in the language of the MBTA. Secondarily, the Fifth Circuit observed that it had reversed the finding of a violation under the CAA and the company had not been charged with a violation of state law.

The U.S. Fish and Wildlife Service (FWS) interpretation of the MBTA has been increasingly controversial, as both industry and environmental groups question the agency’s exercise of prosecutorial discretion in selecting enforcement targets. Likely as a result of that controversy, FWS has recently announced it is examining its regulatory programs under both the MBTA and the Bald and Golden Eagle Protection Act. Furthermore, FWS announced it will examine the possibility of an incidental take permit program under the MBTA for certain industrial sectors, including oil and gas. However, the now clear split among the circuits on the interpretation of the MBTA would appear to make even a limited incidental take permit program unsupportable, since by definition “incidental take” is not intentional.