Appeals court blasts Obama admin’s view of key bird law

By Phil Taylor | 09/11/2015 01:17 PM EDT

A decision last week by a federal appeals court to overturn an oil company’s convictions under a century-old bird law could hinder the Obama administration’s ability to prosecute companies that kill migratory birds and calls into question a potentially sweeping rulemaking.

A decision last week by a federal appeals court to overturn an oil company’s convictions under a century-old bird law could hinder the Obama administration’s ability to prosecute companies that kill migratory birds and calls into question a potentially sweeping rulemaking.

The 5th U.S. Circuit Court of Appeals ruling cleared Citgo Petroleum Corp. of violations under the Migratory Bird Treaty Act. It’s the latest appeals court to weigh in on what some argue is the government’s expansive interpretation of the 1918 law.

Energy company attorneys say the ruling confirms that Congress only intended the law to apply to the intentional killing of migratory birds through activities like unpermitted hunting.


But an attorney for the American Bird Conservancy disagreed, calling the 5th Circuit’s ruling a "minority view" among federal courts that severely undermines the law’s purpose to conserve migratory birds.

One thing’s for sure: This is likely not the last time courts and the federal government will wrestle over the scope of MBTA. The 5th Circuit’s opinion is a break from other circuit courts, which increases the chances the issue could find its way to the Supreme Court.

Moreover, the 5th Circuit’s ruling could boost efforts among some Republicans in Congress to shield wind farms, oil companies and chemical manufacturers from MBTA’s reach (E&E Daily, June 12).

The 1918 migratory bird law makes it illegal to "pursue, hunt, take, capture [or] kill" any of more than 1,000 covered bird species, but courts have disagreed over whether such actions need to be intentional.

Over the past few years, the Obama administration has taken a more expansive view by prosecuting two energy companies whose Wyoming wind farms had unintentionally killed migratory birds and several oil and gas firms in North Dakota whose wastewater pits became deathtraps for ducks.

But in the 5th Circuit case, a three-judge panel unanimously ruled that a district court was wrong to convict Citgo of violating MBTA when it unintentionally killed 10 ducks that ingested or were coated with oil at a Texas refinery.

The company argued that MBTA does not cover unintentional bird kills, and the court agreed.

"Taking" under MBTA, the court found, "is limited to deliberate acts done directly and intentionally to migratory birds."

The government’s expansive interpretation of MBTA would make a host of other bird-killing businesses and individuals liable for violations, including the owners of telecommunications towers, power lines, wind farms, skyscrapers and even domestic cats, the court ruled.

"This scope of strict criminal liability would enable the government to prosecute at will and even capriciously," the court said, yielding "absurd results."

The Justice Department has asked the court for additional time to decide whether to ask for a rehearing.

"All we can say at this point is that we are reviewing the court’s decision," said Laury Parramore, a spokeswoman for the Fish and Wildlife Service, which oversees MBTA and works with DOJ to prosecute violators.

The 5th Circuit aligned itself with similar rulings by the 8th and 9th circuits that also found "taking" under MBTA to be limited to deliberate kills.

But the 10th Circuit has taken an opposing view, ruling in 2010 to uphold the misdemeanor MBTA convictions of two Kansas oil rig operators after dead birds were found trapped in heater treaters. That court concluded that MBTA is a "strict liability" statute that covers all deaths of migratory birds.

Svend Brandt-Erichsen, an attorney at Marten Law who represents energy firms, said the 5th Circuit’s ruling was among the least ambiguous of the circuit courts. If it stands, it would force FWS to think twice before prosecuting wind farms or other energy facilities for incidental bird kills within the court’s Texas, Louisiana and Mississippi territory, he said.

The court drew a sharp distinction between the limited meaning of "take" under MBTA and a more expansive definition under the Endangered Species Act, he said.

Andrew Bell, another attorney at Marten Law, said the court was right to point out larger sources of incidental bird kills that could be liable under the government’s view of MBTA. It noted that Fish and Wildlife estimates between 97 million and 976 million birds are killed annually by running into windows and that communication towers kill an additional 4 million to 5 million each year.

Energy producers, who have recently borne the brunt of MBTA enforcements, are estimated to kill far fewer.

"This has been the refrain of the wind industry for over a decade, and it’s nice to see that someone has heard it," Bell said.

For its part, FWS has so far exercised prosecutorial discretion in enforcing the law, going after only the companies it feels are the most negligent.

Eric Glitzenstein, of Meyer Glitzenstein & Eubanks LLP, which represents the American Bird Conservancy, said the 5th Circuit adopted "an extraordinarily narrow and, in ABC’s view, legally bankrupt view of the MBTA’s scope that severely undercuts the act’s — and the underlying treaties’ — broad bird protection purposes."

He argued that it was also a minority view.

"Most courts have correctly concluded that the MBTA’s prohibition on taking birds without an MBTA permit encompasses bird deaths resulting from inherently hazardous activities — such as maintaining uncovered oil tanks and operating wind turbines in the habitat of migratory birds," he said.

Glitzenstein said the 2nd U.S. Circuit Court of Appeals has also held that MBTA applies to "inherently hazardous activities," as have district courts, including the one in Washington, D.C.

The 5th Circuit decision could also affect Fish and Wildlife Service plans to establish a permitting regime to more tightly regulate incidental take of birds under MBTA.

The agency in May said it will study the potential issuance of take permits for owners of drilling pits, gas flares, power lines and communications towers. The aim is to give companies legal cover under MBTA while securing commitments from them to offset their take with habitat restoration and protection (Greenwire, May 22).

But that rulemaking, if FWS were to pursue it, assumes MBTA applies to incidental take, which the 5th Circuit explicitly denied.

The American Bird Conservancy supports a permitting regime, arguing that the government must take better stock of impacts to ecologically important migratory bird species, many of which are in decline.

Glitzenstein helped ABC petition FWS to develop MBTA incidental take regulations.

"This ruling makes it all the more important that the FWS continue with its rulemaking establishing a system for regulating incidental take from industrial activities that are inherently harmful to migratory bird populations," he said.