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  • A Bird-Brained Use of the Migratory Bird Treaty Act

    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.

    The 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.


    Posted in Legal [slideshow_deploy]

    13 Responses to A Bird-Brained Use of the Migratory Bird Treaty Act

    1. DanJ1 says:

      I heard a report on NPR a little while back about how canons are fired throughout the day over the reserve pits in order to drive off any birds that try to land there.

    2. Some Bird says:

      Wow, I think reading this article has actually injured my brain. In what world is "owning a cat" equivalent to "building a large pond of toxic sludge"!?!?!?

      • Dodo says:

        Because the intent of someone to harm a bird is not seen as the criminal action. The interpretation of the MBTA by the government is that if you harm a bird, you are held liable for criminal behavior. So the author is stating if you let a cat out and it kills a bird, then you could be in violation of the MBTA.

        I wonder if you even really read the article. Maybe your brain injury was a pre-existing condition.

    3. BaltimoreRon says:

      I believe that's a Black-necked Stilt in the picture.

    4. Jimm says:

      keep voting democrat and you'll get more ridiculous attempts to thwart big business

      • Longtucky says:

        Yeah! Who cares about clean air and the animals that live around us!
        Let's kill them all and pollute the planet to the point it is uninhabited all so the GOP Knob Junkies can make another buck!!

        GREAT IDEA!

      • Dev says:

        That's what we want though, right? Or are you okay with them asking for bailouts to keep their workers, but once they receive they money they still do their layoffs and instead give a bonus to their CEO?

    5. @akazip says:

      More tax feeders attempting to justify their jobs.

    6. Guest says:

      Honestly, I fail to see how Fluffy taking out a Baltimore Oriole in the back yard is the same as having a vast open pool of toxic sludge that instantly kills any waterfowl that have the misfortune to land in it. Such open pools are illegal in most states. Unfortunately for the birds, the Invisible Hand of the Marketplace doesn't seem to value them very high, which is why government should rightly step in.

    7. c. mo says:

      Ever notice how the carbon industry is extremely dangerous to life?

    8. Ihatebirds says:

      Stupid laws! Theres plenty of birds, we'll never run out. Just like fish, fresh water, and fossil fuels.

    9. EllieLight says:

      U.S. Attorney Purdon is destined for the Supreme Court during Obama's 2nd term. Purdon may have lost this one inning, but you conservatives are destined to lose the whole ballgame. Hope and Change baby. Hope and change.

    10. again says:

      I worked as a pipefitter contractor at Vulcan Chemical in Wichita,KS in the '80's. There were acid spills of varying degree almost every day. When (not if) ducks landed on nearby ponds, they would leave without bottom feathers depending on how long they were in the water.

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