Fifth Circuit Spurns Second and Tenth Circuits, Sides with Eighth and Ninth Circuits on Interpretation of MBTA "Take" Prohibition

Under the Migratory Bird Treaty Act (MBTA), it is unlawful to "pursue, hunt, take, capture, kill, attempt to take, capture, or kill . . . any migratory bird" protected by the Act.  16 U.S.C. 703(a) & 704(a).  In a recent decision, the U.S. Court of Appeals for the Fifth Circuit found that although the MBTA imposes a strict liability standard for any of the aforementioned acts, in order for an unlawful "taking" to occur, the defendant must have taken a "deliberate act done directly and intentionally to migratory birds."  United States v. CITGO Petroleum Corp., No. 14-40128 (5th Cir. Sept. 4, 2015).  Because the MBTA criminal convictions at issue were based on activities that were not targeted at migratory birds, the Fifth Circuit reversed the lower court's criminal convictions under the MBTA.

The defendants CITGO Petroleum Corporation and CITGO Refining and Chemicals Company, L.P. (collectively, CITGO) are the owner and operator of a petroleum refinery in Texas.  After a 2002 surprise inspection by the EPA, the Government filed a criminal indictment accusing CITGO of violating the Clean Air Act and "taking" migratory birds in violation of the MBTA.  The remains of various migratory birds were discovered in two large, unroofed equalization tanks that were holding approximately 130,000 barrels of oil at the time of the EPA's inspection.  The district court found CITGO guilty on three counts of "taking" migratory birds in violation of the MBTA, concluding that liability could be found, regardless of intent, so long as it was proven that CITGO proximately caused the death of a migratory bird.

Setting the stage, the Fifth Circuit explained that unless there is some contrary indication in the statute, courts are required to presume that Congress intended to adopt the common law definition of statutory terms.  Applying this rule of statutory construction, the Fifth Circuit found that when Congress enacted the MBTA, the term "take," as applied to wildlife, had a well-understood meaning in the common law that did not include accidental or indirect harm to animals.  The Fifth Circuit, citing to the Endangered Species Act and Marine Mammal Protection Act and their use of the terms "harm" and harass" when defining "take," also found that when Congress intends to go beyond the common law definition of "take" it will incorporate terms like "harm" and "harass" that encompass accidental or indirect harm to animals.  Therefore, "[t]he absence from the MBTA of terms like 'harm' or 'harass', or any other language signaling Congress' intent to modify the common law definition supports reading 'take' to assume its common law meaning."

Accordingly, the Fifth Circuit reversed the MBTA convictions for CITGO, finding that while equalization tanks caused the bird deaths, there was no deliberate act done directly and intentionally by CITGO to cause the bird deaths.  By interpreting the MBTA "take" prohibition in this manner, the Fifth Circuit rejected the contrary positions taken by the Second and Tenth Circuits.

In addition to addressing the legal arguments, the Fifth Circuit also provided a number of real-world examples in which MBTA liability would not arise, including bird collisions with electrical transmission lines.  This example is particularly noteworthy because earlier this year the U.S. Fish and Wildlife Service published a notice in the Federal Register regarding a potential permitting program authorizing incidental take permits for electrical transmission and distribution facilities. (See May 26, 2015 E-Alert.)  If collisions with electrical facilities cannot result in MBTA liability, there would be no reason for electrical generators or distributors operating within the Fifth Circuit's jurisdiction to seek an incidental take permit from the U.S. Fish and Wildlife Service.

  • Benjamin Z. Rubin

    Ben Rubin is chair of Nossaman’s Environment & Land Use Group. Ben assists developers, public agencies, landowners and corporate clients on a variety of complex land use and environmental matters. He counsels clients on matters ...

Nossaman’s Endangered Species Law & Policy blog focuses on news, events, and policies affecting endangered species issues in California and throughout the United States. Topics include listing and critical habitat decisions, conservation and recovery planning, inter-agency consultation, and related developments in law, policy, and science. We also inform readers about regulatory and legislative developments, as well as key court decisions.

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