Mountain Plover. Photo: Glen Tepke

(Washington, D.C., July 29, 2010) The 10th Circuit Court of Appeals has reaffirmed a key provision of the Migratory Bird Treaty Act (MBTA)– that persons violating the MBTA do not need to intentionally kill birds to be found guilty – as they ruled on a case brought by two energy companies. The companies, two Kansas oil drilling operators had appealed earlier convictions stemming from 2007 and 2008, when migratory birds were discovered lodged in pieces of their oil drilling equipment called a heater-treater.

“I am thankful that the courts continue to strengthen the legal foundations of the MBTA. It needs to be a law that is respected by those who bump up against it and test its teeth every day. It is a critical if underused protection for migratory birds which are under assault from many directions. In cases where people knowingly cause the death of protected species, the MBTA should be used to the fullest extent.” said George Fenwick, President of American Bird Conservancy.

The MBTA declares it a misdemeanor to "pursue, hunt, take, capture, [or] kill" birds protected by several international treaties. The MBTA also specifies a maximum penalty of $15,000 and six months in prison for a misdemeanor violation. This particular case addressed the question of whether MBTA constitutionally can make it a crime to violate its provisions absent knowledge or the intent to do so.

After a trial before a magistrate judge, both Apollo Energies and Dale Walker from Red Cedar Oil were convicted of killing migratory birds, each misdemeanor violations. Apollo was fined $1,500 for one violation (a Northern Flicker), and Walker was fined $250 for each of his two violations totaling four protected birds. The federal district court affirmed the convictions, concluding that violations of the MBTA do not require that defendants knowingly or intentionally violate the law.

The companies appealed to the 10th Circuit Court, with Apollo and Walker making several arguments, including charging that the statute provides inadequate notice of what conduct would violate the MBTA. They asserted that the MBTA is unconstitutionally vague because of the multiplicity of actions the statute's language criminalizes.

The Court ruled that “…the MBTA is not unconstitutionally vague. It criminalizes a range of conduct that will lead to the death or captivity of protected migratory birds… The actions criminalized by the MBTA may be legion, but they are not vague.”

The court held that liability would occur when an injury "might be reasonably anticipated or foreseen as a natural consequence of the wrongful act.” The court found that “As to Apollo, the record shows it had notice of the heater-treater problem for nearly a year-and-a-half before the bird death resulting in its conviction. Indeed, Apollo admitted at trial that it failed to cover some of the heater-treaters' exhaust pipes as Fish and Wildlife had suggested after the December 2005 inspection. In effect, Apollo knew its equipment was a bird trap that could kill.”

With regard to Walker, the Court reversed a conviction for a 2007 violation, citing that no evidence had been presented to substantiate assertions that at that time, Walker was aware that his heater-treater machinery posed a hazard. The court did not accept a similar argument for the 2008 violation, dismissing Walker’s argument that he was not aware of hazards that caused bird deaths because they occurred in different parts of the equipment.