Federal Court Holds That the Migratory Bird Treaty Act Does Not Apply to Lawful Activities That Result in the Incidental Taking of Protected Birds
A legal update from our colleagues Per Ramfjord and Steve Galloway:
In a recent opinion, the United States District Court for the District of North Dakota dismissed misdemeanor criminal charges against three oil and gas companies for violation of the Migratory Bird Treaty Act (“MBTA”) arising out of the incidental death of migratory birds through contact with oil reserve pits operated by the defendants. United States v. Brigham Oil & Gas, L.P., No. 4:11-po-005-DLH et al., 2012 U.S. Dist. LEXIS 5774 (D.N.D. Jan. 17, 2012). This opinion is significant because it represents the latest in a number of cases that have interpreted the MBTA in a manner that does not criminalize the inadvertent taking of migratory birds.
By way of background, the MBTA was enacted in 1918 to implement four international treaties aimed at protecting migratory birds. The Act makes it unlawful “by any means or in any manner” to “take” or attempt to “take” any of approximately 800 species of migratory birds, including most common birds other than pigeons and starlings. Regulations promulgated under the Act further define the term “take” as to “pursue, hunt, shoot, wound, kill, trap, capture, or collect” any such birds. Companies or individuals who violate these provisions face misdemeanor criminal penalties that can result in fines of up to $15,000 per bird and/or six months’ imprisonment.
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