Endangered Species Law & Policy

The United States District Court for the District of North Dakota issued a decision (pdf) granting the dismissal of criminal charges under the Migratory Bird Treaty Act (MBTA) based upon a finding that the MBTA was not intended to criminalize incidental "take" of migratory birds by lawful commercial activities.  The United States had charged seven oil and gas companies operating in North Dakota's Williston Basin (Defendants) with violating the MBTA by "taking" migratory birds after they were found dead in or near the companies' oil reserve pits.

The Government's case against each defendant was similar.  Defendants operated oil reserve pits on their respective sites.  Under North Dakota law, a "reserve pit" is "an excavated area used to contain drill cuttings accumulated during oil and gas drilling operations and mud-laden oil and gas drilling fluids used to confine oil, gas, or water to its native strata during the drilling of an oil and gas well."  North Dakota state sets forth requirements for operation and remediation of reserve pits.  Notably, state law did not require the fencing, screening, or netting of a reserve pit unless the pit was not reclaimed in excess of 90 days after the company's completion of operations.  On separate occasions, agents for the Government observed and collected dead birds at or near Defendants' reserve pits.

The key statutory language of the MBTA was: "[I]t shall be unlawful at any time, by any means or in any manner, to . . . take . . . any migratory bird."  The court stated that, in the context of the MBTA, "take" refers to conduct directed at birds (e.g. hunting or poaching), and not acts or omissions that have an incidental or unintended effect of causing bird deaths.  The MBTA's implementing regulations define "take" as "to pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to pursue, hunt shoot, wound kill trap capture, or collect."  The district court noted that these action words in the regulation reinforced the dictionary definition, and they confirmed that "take" does not refer to accidental activity or unintended results of other conduct.

The district court looked to both Eighth and Ninth Circuit decisions that limited the term "take" to the sort of conduct engaged in by hunters and poachers.  These courts would not apply the criminal prohibition on conduct in the MBTA to legal actions that indirectly killed migratory birds.  In particular, the district court pointed to an Eighth Circuit decision where the court contrasted the restrictive reading of "take" under the MBTA with the definition of "take" under the Endangered Species Act, which defines "take broadly to include "harm" and "harass," in addition to the verbs in the MBTA's definition.

In applying the restrictive reading of "take," the district court discussed the implications of a broader reading of the definition that would include conduct that resulted in the incidental take of migratory birds.  The court noted that, if the act were read so that "take" or "kill" prohibited any conduct that proximately resulted in the death of a migratory bird, then many every day activities would be unlawful - and subject to criminal actions - when the caused the death of "pigeons, starlings and other common birds."    Such activities would include ordinary activities, "driving a vehicle, owning a building with windows, or owning a cat," all of which are common and contribute to migratory bird deaths.

The district court concluded by holding, as a matter of law, that lawful commercial activity which may indirectly cause the death of migratory birds does not constitute a federal crime.  It thus granted Defendants' motion to dismiss.