Based on a broad interpretation of the Migratory Bird Treaty Act (MBTA),7 criminal liability has been imposed upon companies that operate ponds, transmission lines and wind turbines which have resulted in bird kills. However, on January 17, 2012, in United States v. Brigham Oil and Gas, L.P., et al.,8 the U.S. District Court for North Dakota held that oil and gas companies operating pits and ponds in North Dakota’s Williston Basin were not criminally liable under the MBTA for the deaths of protected birds. The US had charged three corporate defendants engaged in oil development with misdemeanor violations of the MBTA for “taking” protected migratory birds that were found dead near their oil reserve pits.

In Brigham, the defendants moved to dismiss the charges on the grounds that the United States failed to allege a crime under the MBTA. The MBTA is a criminal statute that was enacted by Congress in 1918 to implement the 1916 Convention between the US and Great Britain (for the Dominion of Canada) to protect migratory birds. The MBTA, as amended, makes it “unlawful at any time, by any means or in any manner, to . . . take. . . any migratory bird.”9

The court determined that the ordinary meaning of the term “take” as used in the MBTA involves deliberate, rather than accidental, conduct. Thus, the court dismissed the “taking” charges, because in the context of the MBTA, “‘take’ refers to conduct directed at birds, such as hunting and poaching, and not acts or omissions having merely the incidental or unintended effect of causing bird deaths.”10 The court concluded, as a matter of law, that conducting lawful commercial activities that may indirectly kill migratory birds does not constitute a federal crime.

As a result of the decision in Brigham, CITGO Petroleum Corporation and CITGO Refining and Chemical Company, L.P. (CITGO) have filed a Motion to Vacate CITGO’s conviction for violations of the MBTA in Texas.11 We anticipate other companies will do the same following this significant precedent.

7 16 U.S.C. §§ 703-712 (1918).

8 2012 U.S. Dist. LEXIS 5774 (D.N.D. Jan. 17, 2012).

9 16 U.S.C. § 703(a).

10 Brigham, 2012 U.S. Dist. LEXIS 5774, at *16.

11 United States v. CITCO Petroleum Corporation, etal., No. C-05-563 (S.D. Tex., Feb. 23, 2012).