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Energy & the Law

Operators Can Be Guilty of Killing Migratory Birds

Posted in Regulations

 If a bird flies into your open-top oil storage tank – or your unprotected reserve pit – and dies, could you be guilty of the crime of violating the Migratory Bird Treaty Act? The short answer is “ Maybe”.

In United States v. CITGO Petroleum Corp., ten dead birds were discovered in storage tanks at CITGO’s Corpus Christi refinery. The government brought criminal charges. CITGO was found guilty and moved to vacate the conviction. Their argument was that the company was engaged in a commercial activity that was not intended to kill birds, while the MBTA was intended to criminalize hunting, trapping, poaching and other activities actually intended to take or kill the birds. The district court upheld the conviction.

Federal courts disagree about whether oil companies can be convicted of violating the MBTA when birds are unintentionally killed as a result of their operations. The appeals court overseeing district courts in Oklahoma, Kansas, New Mexico, Colorado, Wyoming and Utah has held that companies may be criminally responsible. District courts in Louisiana and North Dakota have reached the opposite conclusion.

In CITGO, the Texas court held that companies can be held criminally liable, but due process requires that the defendant’s actions “proximately caused” the birds’ deaths (i.e., the deaths resulting from the activity must be reasonably foreseeable). Testimony at trial was that a number of people had seen birds in the tanks and reported them to management but CITGO failed to act.  CITGO’s failure to cover the tanks violated the Clean Air Act and Texas state regulations.

You don’t operate a refinery, so you’re off the hook, correct? Not so fast. In an earlier decision from Kansas, a producer was convicted under the MBTA after dead migratory birds were discovered lodged in heater treaters. The U.S Fish and Wildlife Service had warned operators and equipment suppliers of potential liablity and their intent to enforce in the future.   

But in another case from Texas, the operator of a well was not guilty when dead birds were found in its unprotected reserve pits.  The difference is that where there was guilt, the underlying activity of the defendant was unlawful (the Kansas operator had been warned that the statute was going to be enforced), whereas for the not-guilties, the activity (such as an un-netted reserve pit) was legal and permissible.

Takeaway:  This is a strict liability crime – no actual intent to take or kill a bird is required.  Guilt will depend on, among other factors, where you operate, whether the deaths were forseeable, and whether other laws were violated. You can’t change geography, but you can be sure you are not violating other law or regulation, and if you have knowledge of a potential death trap for a Northern Flicker on his semi-annual commute, fix it. 

Special thanks to Bill Drabble for his contribution to this post.

Companies can’t go to the penitentiary.  If  they did, this musical interlude explains how they could pass the time:  

http://www.youtube.com/watch?v=JxwjX8UQRrQ