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A Bird-Brained Use of the Migratory Bird Treaty Act

Written by Joe Luppino-Esposito

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Do you own a home with large windows? Is there a cat that you let out in your backyard?  If so, then you might just wind up violating the Migratory Bird Treaty Act (MBTA), if the federal government’s interpretation of the Act is allowed to stand.

timthumb.phpThe 1918 law was meant to protect migratory birds from those who would “take” them in violation of the treaty with Great Britain.  In that context, it was clear that the MBTA was meant to halt poachers and illegal hunting of the birds—that is, deliberate, not accidental, conduct.

Enter Brigham Oil & Gas and their co-defendants, 93 years later.  Brigham and the other companies use reserve pits to hold fluid and oil that accumulates from their drilling operations.  This practice is permitted by North Dakota law, which is where the relevant events occurred.  This storage practice is a basic and essential function of the business, and it is not intended to harm birds or any other wildlife.

But that did not matter to U.S. Attorney Timothy Purdon or the United States Fish & Wildlife Service in North Dakota.  The U.S. Attorney filed a criminal information against seven oil and gas companies for violating the MBTA by “taking” (killing) 28 migratory birds.  The three companies that moved to dismiss the criminal charges were accused of being responsible for 7 dead birds.

The federal courts for North Dakota expressed their hostility to such far-reaching claims more than a decade ago.  In 1997, the Eighth Circuit Court of Appeals held that logging activity does not violate the MBTA.  As the federal appellate court explained, deeming “logging” a “taking” of migratory birds “would stretch this 1918 statute far beyond the bounds of reason” and would lead to construing the MBTA “as an absolute criminal prohibition on conduct, such as timber harvesting, that indirectly results in the death of migratory birds.”

In the Brigham Oil & Gas case, District Judge Daniel L. Hovland made it clear that the MBTA also did not apply to drilling fluid storage and dismissed the government’s charges.  The use of reserve pits was declared to be “legal, commercially-useful activity” that cannot be considered criminal under the MBTA.  Judge Hovland noted that if the government’s interpretation were correct, then “many everyday activities become unlawful – and subject to criminal sanctions.”  The court noted that, if the government’s reading of the statute were correct, anything from driving a car to owning a cat could result in criminal prosecution. 

Indeed, under the government’s position it could easily be argued that baseball star Randy Johnson should have been thrown in jail for beaning a dove (if it was, a covered migratory dove) with a fastball while pitching in a spring training game.  The Wall Street Journal has suggested  that this reflects the Obama Administration’s bias against oil and gas companies, because the government’s own statistics show that thousands of birds are killed in wind turbines each year, but there appear to be no active prosecutions against those corporations.

Although it’s still early in 2012, the WSJ has already dubbed U.S. Attorney Purdon “Dodo of the Year.”  But unlike the dodo, Purdon says he won’t go away just yet—he is considering an appeal of the case.  Purdon was appointed by President Obama in 2010, a move that was immediately questioned as favoring politics over experience.

And the problem isn’t limited to unsympathetic defendants like oil companies.  How can anyone forget the story of the 11-year-old-girl who tried to care for a woodpecker but had the misfortune of running into a Fish & Wildlife agent?  Her mother was issued a summons (which the agency later claimed was accidental) that put Mom at risk of jail time for her daughter’s illegal capture the bird under the MBTA.

Overcriminalization in environmental law continues to be a problem, as prosecutors and federal agents pursue more and more innocent acts as being worthy of criminal punishment.  Calling government action like this “bird-brained” would be to severely underestimate its danger.

SOURCE: The Heritage Foundation

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