The Migratory Bird Treaty Act (MBTA): Selected Legal Issues
Released: 2016-11-22T00:00:00

Background

The MBTA is a criminal environmental statute, enacted in 1918 to implement a 1916 treaty signed by the United States a nd Great Britain (acting for Canada) aimed at protecting birds that migrate between the two countries. Since 1918, the MBTA has been used as a vehicle to implement bilateral migratory bird treaties between the United States and Mexico (1936), Japan (1972), and the Union of Soviet Socialist Republics (now Russia) (1978). Under the MBTA, the Department of the Interior (DOI), through the U.S. Fish and Wildlife Service (FWS or Service), administers a program that currently covers 1,027 species of migratory birds that are found in the United States.

This report discusses two critical legal issues regarding the MBTA and its prohibition on certain "takes" of migratory birds: the obligations of the federal government to comply with the MBTA and the scope of its criminal penalties.

Major Provisions of MBTA

The major provisions of the MBTA, summarized below, address taking of migratory birds, permitted takings, enforcement, and penalties for violations. Other statutory provisions concern unlawful transport or import of migratory birds; arrests and search warrants; state regulation; authorization of appropriations; breeding on farms and preserves; regulations implementing the treaties and conventions; and seasonal takings for needs of indigenous Alaskans.

Section 703: The Prohibition on Taking and Killing

The MBTA prohibits the taking and killing of migratory birds. Section 703(a) of the MBTA states the following:

Unless and except as permitted by regulations ..., it shall be unlawful at any time, by any means or in any manner, to pursue, hunt, take, capture, kill, attempt to take, capture, or kill, possess, offer for sale, sell, offer to barter, barter, offer to purchase, purchase, deliver for shipment, ship, export, import, cause to be shipped, exported, or imported, deliver for transportation, transport or cause to be transported, carry or cause to be carried, or receive for shipment, transportation, carriage, or export, any migratory bird, any part, nest, or egg of any such bird, or any product , whether or not manufactured, which consists, or is composed in whole or part, of any such bird or any part, nest, or egg thereof....

The statute does not itself define the term "take," and there is limited guidance on the term's scope and limitations. The MBTA regulations define the term "take" as "to pursue, hunt, shoot, wound, kill, trap, capture, or collect" or to attempt to do so.

The White House has attempted to define how federal agencies should comply with the MBTA take provisions. In 2001, President Clinton issued an executive order that requires federal agencies that take or will likely take actions that have a "measurable negative effect" on migratory birds to develop and implement a Memorandum of Understanding (MOU) with FWS to promote conservation of migratory birds. As part of such MOUs, agencies must minimize "intentional take" and identify where "unintentional take" is having or likely to have a measureable negative effect on migratory birds. Under the order, "intentional take" is defined as a "take that is the purpose of the activity in question," whereas an "unintentional take" is defined as a "take that results from, but is not the purpose of, the activity in question." Accordingly, FWS's "longstanding position [is] that the MBTA applies to take that occurs incidental to, and which is not the purpose of, an otherwise lawful activity."

Section 704: Permitted Takings

Section 704(a) allows the Secretary of the Interior to permit the taking of migratory birds under certain circumstances. Under this authority, DOI has promulgated regulations for prescribed migratory bird hunting and permits that allow taking of migratory birds for specific purposes. FWS has created permit schemes for import, export, banding or marking, scientific collecting, taxidermy, waterfowl sale and disposal, falconry, propagation, rehabilitation, depredation, and population control. In addition, FWS has authorized incidental take by the Armed Forces during military-readiness activities after a bill was enacted in 2002 to permit this type of incidental taking of migratory birds.

FWS may also issue special purpose permits for activities not covered by the other listed categories. A special purpose permit is required before "any person" may lawfully take migratory birds and may be obtained by sufficiently showing the "benefit to the migratory bird resource, important research reasons, reasons of human concern for individual birds, or other compelling justification" of the activity.

Section 706: Enforcement

FWS has statutory authority and responsibility for enforcing the MBTA. Unlike the Endangered Species Act, the MBTA does not include a citizen suit provision that allows "any person" to enforce the MBTA provisions in court. However, citizen suits have been brought under the Administrative Procedures Act's (APA's) prohibition against unlawful agency action. Section 702 of the APA "entitle[s]" a "person" who is "adversely affected or aggrieved by agency action" to have a court review the challenged action. The U.S. Courts of Appeals for the District of Columbia and Ninth Circuits have allowed civil suits seeking to enjoin government actions that take or have the potential to take birds protected to proceed under the APA.

Section 707: Penalty Provisions

Failure to comply with the MBTA may result in either felony or misdemeanor penalties, depending on the type of violation. Under Section 707(a), "any person, association, partnership, or corporation" who violates the Act or its regulations is guilty of a misdemeanor and can be fined no more than $15,000 and/or a maximum jail sentence of six months.

The felony provision in Section 707(b) applies only to entities that knowingly take migratory birds and sell or barter them, or have intent to do so. For felony violations, the punishment is a fine of no more than $2,000 and/or a maximum jail sentence of two years.

Government Actions That Take Migratory Birds

Various government actions can be seen to take birds that are protected under the MBTA. For example, a federal agency could potentially implicate the MBTA by intentionally eliminating migratory birds in an effort to control overpopulation or indirectly harm birds when their habitats are disturbed as part of managing federal lands and property. Whether these actions violate the MBTA take prohibitions depends on whether federal agencies are subject to the MBTA.

The courts have differing opinions on the applicability of the MBTA to federal agencies. Federal Courts of Appeal for the Eighth and Eleventh Circuits have held that the MBTA can be enforced only through its Section 707 penalty provisions, which courts have agreed do not apply to federal agencies. However, where there is a separate enforcement authority that provides a civil remedy such as the APA, courts following the D.C. Circuit's precedent would require the federal government to comply with the MBTA take prohibitions in Section 703.

Federal Agencies Not Subject to MBTA Take Prohibitions

Several courts have concluded that the MBTA take provisions simply do not apply to federal agencies. In Sierra Club v. Martin , Sierra Club challenged the U.S. Forest Service's (USFS's) timber-cutting and road-building activities as violating the MBTA by relying on Section 706 of the APA, a provision that requires reviewing courts to "hold unlawful and set aside agency action, findings, and conclusions found to be ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Specifically, in Martin , Sierra Club claimed that the USFS activities would disturb the nesting season of certain migratory birds and result in the illegal taking of between 2,000 and 9,000 migratory birds.

The Eleventh Circuit denied review under the APA, explaining that, under the APA, an "agency's actions could only fail to be 'in accordance with law' when that agency's actions are subject to that law ." The Eleventh Circuit reversed an injunction issued by the district court, holding that the federal government and its officials were not subject to the MBTA according to the plain meaning of the statute and the legislative intent. The court concluded that, in reading the statute as a whole, the MBTA is a "criminal statute making it unlawful only for persons, associations, partnerships, and corporations to 'take' or 'kill' migratory birds," and the MBTA "does not subject the federal government to its prohibitions."

To support its conclusion, the court determined that there was "no congressional intent" that "person," as used in Section 707(a) regarding misdemeanor penalties, includes the "federal government[,] ... federal agency, or a federal official acting in his official capacity." The court emphasized the MBTA's historical context, explaining that the application of the MBTA to the federal government would "severely impair" the USFS's obligation "to furnish a continuous supply of timber" for the country, a duty that would "inevitably" result in deaths of birds and destruction of nests. The court explained that Congress intended that regulatory programs developed under the National Forest Management Act (NFMA) and the National Environmental Policy Act (NEPA)—both enacted after the MBTA—would ensure that the USFS considers the impact of federal land management on migratory birds.

Soon after the Eleventh Circuit's decision in Sierra Club v. Martin , the Eighth Circuit addressed similar issues in N ewton County Wildlife Ass ociation v. United States Forest Service . In that case, nongovernmental organizations (NGOs) alleged that the USFS violated the MBTA by failing to obtain "special permits" from the FWS for timber sales that would disrupt nesting of migratory birds and result in the death of some birds. After concluding that jurisdiction to review the timber sales fell under the NFMA, and not the APA, the court narrowed the issue to whether the USFS's actions under the NFMA were arbitrary and capricious because the agency "ignored or violated" its obligations under the MBTA. Similar to the Eleventh Circuit's reasoning in Sierra Club v. Martin , the court determined that the term "person" under Section 707 penalty provisions did not apply to sovereign governments based on common usage. The court rejected the NGOs' arguments that the MBTA must cover federal agencies if the U.S. government were to maintain its 1916 treaty obligations, concluding that the government's obligation to comply with the treaty came from the treaty itself. The parties' obligations under the treaty, the court explained, are to execute the treaty, which the United States did by enacting a statute that applies to private parties. The Eighth and Eleventh Circuits did not address whether the Section 703 take prohibitions apply to federal agencies independent from the Section 707 penalty provisions.

Federal Agencies Subject to MBTA Take Prohibitions

Other courts have held that the MBTA does apply to the federal government by focusing on who is subject to the MBTA Section 703 prohibitions as opposed to who is subject to the Section 707 penalties. For example, in Human e Society of the United States v. Glickman , the D.C. Circuit addressed whether the MBTA prohibits federal agencies from killing or taking migratory birds without a permit from DOI. In this case, the Department of Agriculture planned to capture and kill Canadian geese without a FWS depredation permit to address the negative impacts to crops and water quality from geese overpopulation in Virginia.

Although the court agreed with the agency that the misdemeanor penalty provisions in Section 707(a) do not apply to federal agencies, the court turned to Section 703 to determine if the agency was separately subject to its prohibition on killings and takings of migratory birds without a permit. The court held that the MBTA Section 703 prohibitions do apply to federal agencies based primarily on the plain meaning of the statute. The court explained that Section 703 does not restrict its prohibition to private parties and provides no exemption for federal agencies. In addition, the court rejected the agency's argument that Congress did not intend for Section 703 to apply to federal agencies because there is no means to enforce the restrictions if the Section 707(a) misdemeanor penalties do not apply, and there is no provision for injunctive relief in the statute. In disagreeing with the Sierra Club v. Martin decision from the Eleventh Circuit and the Newton County Wildlife Ass ociation decision from the Eighth Circuit discussed above, the court concluded that both decisions rest on the "mistaken idea that in 1918, [Section] 703 could be enforced only through the criminal penalty provision in [Section] 707(a)." The court cited the APA and other Supreme Court cases that allow equitable or injunctive relief for suits against federal officers for failing to comply with a specific statute. Ultimately, the court held that the agency did violate the MBTA by failing obtain a permit to take the geese.

The Humane Society court, in disagreement with the Eleventh Circuit decision in Sierra Club v. Martin , concluded that it would be "odd" if federal agencies were exempt from the Section 703 prohibitions because the U.S.-Canadian treaty underlying the MBTA "binds the contracting parties" to its terms. Article II of the treaty prohibits hunting of specific types of migratory birds during certain seasons, and Article V prohibits takings of nest or eggs of migratory birds at all times. The court stated that "the fact that the [MBTA] enforced a treaty between our country and Canada reinforces our conclusion that the broad language of §703 applies to actions of the federal government."

Scope of Federal Actions Subject to the MBTA

Among the courts that have applied the MBTA to federal agency actions, some courts have distinguished between (1) government actions that are directed at migratory birds and (2) regulatory actions (e.g., approving projects or granting permits) relating to third-party projects that take or have the potential to take migratory birds. In cases where the government intentionally takes migratory birds, courts require federal agencies to comply with the MBTA and obtain the necessary permits under Section 704. However, courts have declined to apply the MBTA to regulatory actions related to third-party projects based on two main principles: (1) agencies are not subject to the MBTA when their regulatory actions do not directly take migratory birds; and (2) agencies have no affirmative duty to guarantee a third-party's future compliance with the MBTA.

These principles are best illustrated in Protect Our Communities Foundation v. Jewell , a recent Ninth Circuit case decided in June 2016. Environmental groups claimed, among other things, that the U.S. Bureau of Land Management (BLM) (1) violated the MBTA by granting a right-of-way on public lands to a private company to develop and operate a wind energy facility that would incidentally take migratory birds; or (2) in the alternative, violated the APA because the BLM failed to require the facility to secure an MBTA take permit prior to granting the right-of-way. In affirming summary judgment for BLM, the Ninth Circuit rejected both claims, holding that the MBTA does not contemplate "secondary" liability of agencies that act in a purely regulatory capacity where those regulatory actions do not "directly or proximately cause the 'take' of migratory birds." The court concluded that the APA and MBTA place no "affirmative duty" on BLM to guarantee a grantee's future compliance with the MBTA or prevent future unlawful action by a grantee.

Similarly, the U.S. District Court for the District of Maine rejected a challenge of U.S. Army Corps of Engineers' (Corps') issuance of a Clean Water Act Section 404 permit as a violation of the MBTA. In granting summary judgment for the Corps, the court held the "relationship between the Corps' regulatory permitting activity and any potential harm to migratory birds appears to be too attenuated to support a direct action against the Corps to enforce the MBTA's prohibition on 'takes.'"

The issue of whether a federal agency is subject to MBTA when approving permits under separate regulatory programs arises often in litigation over energy infrastructure projects. For example, in Public Employees for Environmental Responsibility v. Beaudreu , the U.S. District Court for the District of Columbia rejected the plaintiffs' claim that the Bureau of Ocean Energy Management (BOEM) violated the MBTA by approving the Cape Wind energy project without first obtaining a permit from FWS for the taking of migratory birds. In granting summary judgment to the agency, the court held that BOEM did not violate the MBTA by merely approving a project that, if ultimately constructed, might result in the taking of migratory birds by the wind turbines. The court concluded that even if BOEM is required to obtain a permit, it is unclear whether it is required to do so prior to when the project is operational or at least after construction has commenced when a potential take is "more imminent." On appeal, the D.C. Circuit did not address the MBTA issue because BOEM conceded that an MBTA take permit was required and that Cape Wind intended to apply for one.

Similarly, in Protect Our Communities Foundation v. Chu , the U.S. District Court for the Southern District of California dismissed a claim that the Department of Energy was required to obtain a permit under the MBTA prior to issuing a permit approving the construction of a cross-border electric transmission line that would connect a wind power project to the electricity grid. The court determined that the agency is not required to obtain an MBTA permit "for an unintentional, third party killing of migratory birds incident to construction of a project."

Accordingly, the courts appear reluctant to place responsibility on federal agencies for the actions of third parties that will likely take migratory birds as a result of federal approval of the underlying action. FWS appears to agree with the courts by stating that "the agencies themselves are not subject to the prohibitions of the MBTA when acting in their regulatory capacities." Nonetheless, even if a federal agency is not required to obtain an MBTA permit, the third party may need to obtain a permit for incidental takes related to the project.

Scope of Takings Prohibited Under the MBTA

As discussed above, Section 703(a) of the MBTA makes it unlawful to "kill" or "take" a migratory bird (or its nest or eggs), acts that are punishable under Section 707(a) as misdemeanor crimes. Courts have been faced with defining what constitutes a "taking" of migratory birds under the MBTA. As described above, although the statute itself does not define the term "take," the MBTA regulations define the term "take" as "to pursue, hunt, shoot, wound, kill, trap, capture, or collect."

In general, the courts have looked at three different types of actions or omissions that result in the taking of migratory birds:

1. direct and intentional acts or omissions; 2. direct and unintentional acts or omissions; and 3. indirect and unintentional acts or omissions (incidental takes).

In examining these different types of takings of migratory birds, courts have reviewed the plain meaning, statutory construction, legislative history, and the constitutionality of the MBTA to determine whether the actions or omissions violate the statute. There is a wide range of federal district and appellate court cases that have addressed this issue. Below is a review of selected cases that provide examples of the major issues that courts have faced when determining the reach of the MBTA.

Direct and Intentional Takes

Courts generally agree that FWS's regulatory definition of "take" prohibits unpermitted direct and intentional actions that include hunting, shooting, wounding, killing, trapping, and capturing migratory birds. Direct actions refer to actions that kill a migratory bird, whereas intentional acts are those actions that intend to kill a bird for a specific purpose. For example, in the D.C. Circuit United States v. Glickman decision discussed above, the Department of Agriculture's planned actions to capture and kill Canadian geese to prevent overpopulation was viewed as being intentional and directed at protected migratory birds. The D.C. Circuit held that the agency violated the MBTA by failing to obtain a depredation permit prior to taking the geese.

Direct and Unintentional Takes

Several cases involve direct actions that violate the MBTA prohibitions but lacked intention or "guilty knowledge." Generally, a criminal offense consists of both a prohibited act (the actus reus ) and a guilty mind (the mens rea , also known as the "scienter" requirement). A criminal offense that does not require the mens rea element is viewed as a strict liability crime. In the context of the MBTA, the prohibitions under Section 703(a) are generally viewed as strict liability crimes, and proof of intent to take or knowledge of taking a migratory bird is not needed to establish a misdemeanor violation of the Act.

For example, in 1997, the Tenth Circuit decision in United States v. Corrow affirmed a criminal conviction for possession of eagle feathers in violation of Section 703's prohibition against possessing any part of a migratory bird. For the court, no mens rea was needed for a conviction: "Simply stated, ... 'it is not necessary to prove that a defendant violated the Migratory Bird Treaty Act with specific intent or guilty knowledge.'" The court concluded that the "plain language of §703 renders simple possession of protected feathers unlawful."

Other situations that involve direct but unintentional deaths of migratory birds generally involve MBTA Section 704(b)'s prohibition on taking birds by baiting. Prior to the MBTA amendments in 1998, courts held that there was no need to prove that the defendant intentionally baited a field to attract migratory birds or had knowledge that the field was baited to violate Section 704(b)'s prohibition because it was a strict liability crime. Congress amended the MBTA in 1998 to remove the strict liability standard making it unlawful to take migratory birds by aid of baiting if the person "knows or reasonably should know" that an area is baited.

Indirect and Unintentional (Incidental) Takes

FWS has stated that the MBTA applies to the take of migratory birds that occurs incidental to, and is not the purpose of, an otherwise lawful activity. Recent enforcement actions against wind energy developers reinforce the Service's broad interpretation that the MBTA prohibitions on taking migratory birds extend to actions that unintentionally result in bird deaths. In November 2013, Duke Energy Renewables Inc. pled guilty to violating the MBTA for the deaths of golden eagles and other migratory birds at two wind projects that included 176 wind turbines on private land in Wyoming. A year later, in December 2013, PacifiCorp Energy agreed to pay $2.5 million in fines, restitution, and community service after pleading guilty to charges arising from 38 golden eagle deaths and 336 other protected bird deaths at two of its wind farms in Wyoming.

Notwithstanding these criminal convictions, jurisprudence on the applicability of the MBTA to incidental taking of migratory birds remains unclear. Courts are split on whether MBTA's prohibition on taking of migratory birds includes incidental bird deaths that result from, but are not the purpose of, another lawful activity (e.g., industrial operations that inadvertently cause a migratory bird death, or destruction or modification of a bird habitat that will likely result in migratory bird deaths).

Broad Application of the Take Prohibitions in the Second and Tenth Circuits

Courts in the Second and Tenth Circuits view the taking of birds protected under the MBTA as strict liability crimes with varying limitations. For example, in a 1978 case involving preventable incidental deaths of migratory birds, the Second Circuit focused on the hazardous nature of pesticide manufacturing in evaluating the scope of the MBTA. In United States v. FMC Corp . , the Second Circuit affirmed the conviction of a manufacturer of pesticides for killing migratory birds as a result of storing wastewater in a retaining pond frequented by migratory birds. The court analogized the migratory bird injuries resulting from FMC's "affirmative act" of manufacturing "highly toxic" pesticides manufacturing to claims based on strict liability torts. The court concluded that lack of a statutory requirement of intention as an element of the MBTA Section 703 takings prohibition, the relatively minor fines imposed, congressional recognition of the public policy to protect migratory birds, and FMC's failure to prevent lethal amounts of the chemicals in the wastewater from the pond were sufficient reasons to impose strict liability.

Since FMC Corp. , several federal courts have limited the application of strict liability in the context of the MBTA by requiring that the acts or omissions must be the proximate cause of the incidental migratory bird taking (i.e., the injury caused must have been reasonably anticipated or foreseen as a natural consequence of the activity). Similar to FMC Corp. , some courts view the failure to take preventive or corrective measures in hazardous activities that result in foreseeable incidental takings of migratory birds as a strict liability offense. For instance, in United States v. Corbin Farm Service , a federal district court in California held that the MBTA applied to defendants that accidentally poisoned migratory ducks by applying pesticide to an alfalfa field, noting that Section 703 made it illegal to kill migratory birds "by any means or in any manner." In imposing strict liability for the accidental poisoning, the court concluded that the "guilty act alone is sufficient to make out the crime." The court also noted that a person applying pesticides might be able to foresee the danger to migratory birds and prevent it, unlike a car driver who is not in a reasonable position to prevent the bird's death.

Similarly, in 1999, in United States v. Moon Lake Electric Ass ociation , the U.S. District Court for the District of Colorado held that Moon Lake Inc., a rural electrical distribution cooperative, violated the MBTA by failing to take protective measures to prevent migratory birds from being electrocuted by its power lines. The court rejected the plaintiff's arguments that it did not violate the MBTA because the electrocutions were unintentional and that Congress intended to target only intentional harmful acts such as hunting and poaching. The court recognized that the plain text of Section 703 made it illegal to kill migratory birds "at any time, by any means or in any manner." In addition, the court concluded that "[by] prohibiting the act of 'killing' in addition to the acts of hunting, capturing, shooting, and trapping, the MBTA's language and regulations suggest that Congress intended to prohibit conduct beyond that normally exhibited by hunters and poachers. Indeed, the MBTA does not seem overly concerned with how captivity, injury, or death occurs." However, the court did acknowledge that "[a]lthough section 707(a) of the MBTA imposes strict liability, ... the government must prove that Moon Lake's power lines constitute the cause in fact, as well as the proximate cause, of death" of the birds, meaning that there are limits on the scope of criminal liability under the MBTA for incidental takings.

Another Tenth Circuit case recognizing but restricting the scope of strict liability offenses under the MBTA was United States v. Apollo Energies, Inc . In 2010, 13 years after its decision in United States v. Corrow that held that violating Section 703's prohibition against possessing any part of a migratory bird was a strict liability offense, the Tenth Circuit emphasized that constitutional constraints require that application of strict liability to incidental takings of migratory birds be limited to actions or omissions that proximately caused the bird deaths. In United States v. Apollo Energies, Inc ., the Tenth Circuit affirmed the conviction of oil drilling operators as violating the MBTA when dead migratory birds were discovered lodged in pieces of their oil drilling equipment. First, the court held that "[a]s a matter of statutory construction, the 'take' provision of the Act does not contain a scienter requirement," acknowledging that it was bound by its holding in Corrow that addressed this issue.

Second, the court rejected the operators' argument that application of the MBTA would be unconstitutional because the statute fails to provide adequate notice of what conduct constitutes a crime, requiring the statute to require prosecutors to prove proximate causation. The court explained that the MBTA is not unconstitutionally vague because 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 further concluded that because due process requires that criminal defendants have adequate notice that their conduct is a violation of the law, "a strict liability interpretation of the MBTA for the conduct charged here satisfies due process only if defendants proximately caused the harm to protected birds." The court explained the following:

Questions abound regarding what types of predicate acts—acts which lead to the MBTA's specifically prohibited acts—can constitute a crime. Conceptually, the constitutional challenge to the criminalization of these predicate acts can be placed under the rubric of notice or causation. The inquiries regarding whether a defendant was on notice that an innocuous predicate act would lead to a crime, and whether a defendant caused a crime in a legally meaningful sense, are analytically indistinct, and go to the heart of due process constraints on criminal statutes.... When the MBTA is stretched to criminalize predicate acts that could not have been reasonably foreseen to result in a proscribed effect on birds, the statute reaches its constitutional breaking point.

The court agreed with the lower court's assessment of proximate cause in concluding that "proximate cause is an 'important and inherent limiting feature' to the MBTA, and that liability would attach where the injury 'might be reasonably anticipated or foreseen as a natural consequence of the wrongful act.'" In affirming the convictions, the court held that the record showed that it was reasonably foreseeable that protected birds could be trapped in the operators' equipment because the operators had knowledge and notice from FWS that its equipment had the potential to trap and kill protected birds for nearly a year and a half before the bird deaths.

Narrow Application of the Take Prohibitions in the Eighth and Ninth Circuits

Courts in the Eighth and Ninth Circuits have taken a more narrow view by limiting the MBTA's take prohibitions to deliberate and intentional conduct directed at birds, such as hunting and poaching, and not acts or omissions having merely the incidental or unintended effect of causing bird deaths, such as federal activities that modify or disturb bird habitats or accidental deaths from commercial activity. In so holding, these courts have focused on the common law meaning of the term "take" as used and defined in the MBTA and other statutes to conclude that the MBTA prohibition is limited to intentional and direct action. In addition, these courts have compared the MBTA to the Endangered Species Act (ESA) that specifically addresses incidental take of endangered species. The ESA's definition of a "take" includes activities that "harm" or "harass" threatened or endangered wildlife. For the ESA, FWS defined "harm" to include wildlife deaths that are proximately caused by "habitat modification." In 1982, Congress amended the ESA, authorizing FWS to issue incidental take permits under certain circumstances. "Incidental take" is defined in the ESA as a wildlife take that is "incidental to, and not the purpose of, the carrying out of an otherwise lawful activity."

The Ninth Circuit relied on the different definitions of "take" adopted in the ESA and the MBTA in Seattle Audubon Society v. Evans to limit the scope of the MBTA taking prohibition to direct and intentional action. In that case, the court held that the MBTA does not prohibit the USFS and the BLM from selling and logging timber from lands within areas that may provide suitable habitat for the northern spotted owl. The court stated the MBTA's use of "take" refers to "physical conduct engaged in by hunters and poachers, conduct which was undoubtedly a concern at the time of the statute's enactment in 1918. The statute and regulations promulgated under it make no mention of habitat modification or destruction." The court noted that unlike the MBTA regulatory definition of "take," the ESA's definition of "take" includes the term "harm," which encompasses habit modification or degradation. In relying on this distinction, the court concluded that the agencies' logging and sale of timber, which was viewed as being likely to destroy migratory birds' habitat, did not violate the MBTA. In distinguishing the United States v. FMC Corp . and United States v. Corbin Farm Service decisions discussed above, the court explained that those cases (which addressed unintentional deaths of migratory birds through pesticide manufacturing and use) "do not suggest that habitat destruction, leading indirectly to bird deaths, amounts to the 'taking' of migratory birds within the meaning of the MBTA." The court concluded that "[h]abitat destruction causes 'harm' to the owls under the ESA but does not 'take' them within the meaning of the MBTA."

In Newton County Wildli fe Ass ociation v. U.S. Forest Service , the Eighth Circuit joined the Ninth Circuit, holding that the USFS did not violate the MBTA by failing to obtain "special permits" from the FWS for timber sales that would disrupt nesting of migratory birds and result in the death of some birds. As noted above, the court determined that the MBTA did not apply to the government. The court further concluded that the death of birds as a result of timber harvesting did not constitute a take under MBTA Section 703, explaining that "[s]trict liability may be appropriate when dealing with hunters and poachers. But it would stretch this 1918 statute far beyond the bounds of reason to construe it as an absolute criminal prohibition on conduct, such as timber harvesting, that indirectly results in the death of migratory birds."

Following Newton County Wildlife Ass ociation , a federal district court in North Dakota dismissed misdemeanor MBTA criminal charges against three oil and gas companies for the incidental death of migratory birds through contact with oil reserve pits operated by the defendants. In United States v. Brigham Oil & Gas, L.P. , the district court examined the plain language of the statute and found that the word "take" was an "action word" that "involves deliberate, not accidental, conduct. It refers to a purposeful attempt to possess wildlife through capture, not incidental or accidental taking through lawful commercial activity." The court concluded that the

use of reserve pits in commercial oil development is legal, commercially-useful activity that stands outside the reach of the [MBTA]. Like timber harvesting, oil development and production activities are not the sort of physical conduct engaged in by hunters and poachers, and such activities do not fall under the prohibitions of the Migratory Bird Treaty Act.

The court also noted that "[i]f there is a desire on the part of Congress to criminalize commercial activity that incidentally injures migratory birds protected under the Migratory Bird Treaty Act, it may certainly do so—but the criminal laws should be clear and certain."

Fifth Circuit Approach Limiting Strict Liability of the Takings Prohibition

The Fifth Circuit has sought to bridge the gap between the Second and Tenth Circuit courts that hold that incidental takings violate the MBTA as a strict liability offense, and the Eighth and Ninth Circuit courts that hold that only direct and intentional takings, such as hunting and poaching, violate the taking prohibition. In 2015, the Fifth Circuit in United States v. CITGO Petroleum Corp. limited the scope of strict liability offenses under the MBTA by requiring that takings of migratory birds be the result of an "affirmative action"—deliberate acts done directly and intentionally to migratory birds—before being subject to the MBTA. In so doing, the court reversed a criminal conviction for the death of migratory birds that flew into and died in oil production-related tanks.

The Fifth Circuit first confined its analysis to discerning the common law definition of "take," explaining that, absent other indications, Congress intends to adopt the common law definition of statutory terms. The court embraced Justice Scalia's definition of "take" as interpreted in Babbitt v. Sweet Home Chapter Communities for Greater Oregon . In that case, Justice Scalia, dissenting from the court's holding that the prohibition on "take" under the ESA extends to preserve habit, explained that "to 'take,' when applied to wild animals, means to reduce those animals, by killing or capturing, to human control.' ... One does not reduce an animal to human control accidentally or by omission; he does so affirmatively." Similar to the approach of the Eighth and Ninth Circuits, the court relied heavily on the distinction between the ESA and the MBTA, concluding that "[h]arm and harass are the terms Congress uses when it wishes to include negligent and unintentional acts within the definition of 'take.' Without these words, 'take' assumes its common law definition."

Although the court agreed with the Eighth and Ninth Circuits that "a 'taking' is limited to deliberate acts done directly and intentionally to migratory birds," the Fifth Circuit distinguished between two types of "intent": (1) the intentional and deliberate act ( actus reus ) that is fundamental to the common law meaning of "take" and (2) the guilty mind ( mens rea ) element that requires an intent to violate the MBTA. While acknowledging that the MBTA imposes strict liability that does not require a mens rea element, the court explained that the

act is "to take" which, even without a mens rea , is not something that is done unknowingly or involuntarily. Accordingly, requiring [that] defendants as an element of an MBTA misdemeanor crime, to take an affirmative action to cause migratory bird deaths is consistent with the imposition of strict liability.

The court explained that a defendant must commit an "intentional and deliberate act toward the bird" (the actus reus element) to be strictly liable under the MBTA even if the defendant has no intention to violate the MBTA. The court compared a hunter who shoots a migratory bird without a permit under the mistaken belief that the bird is not protected under the MBTA and a person whose car accidentally collides with a bird. The hunter, the court explained, would be strictly liable even though he did not intend to violate the MBTA because he engaged in an "intentional and deliberate act toward the bird" whereas the driver's act was not intentional and deliberate.

Accidental Takings of Migratory Birds

Although the courts have taken different positions on whether the incidental takings of migratory birds are subject to the MBTA, courts have tried to exclude wholly accidental, human-related deaths of birds—such as those caused by collisions with man-made structures, vehicles, and communication towers—from the reach of the MBTA. These accidental takings differ from other types of incidental takings (e.g., takings caused by birds flying into wind turbines) because accidental takings are generally unforeseeable and unpreventable accidents. Although the courts agree that the MBTA should exclude these types of accidental bird deaths, they disagree on how to interpret the statute to limit the application of the MBTA.

In courts that hold a more expansive view of MBTA's taking prohibition to include incidental takings, wholly accidental deaths still are not subject to the strict liability standard. For example, the Second Circuit in United States v. FMC Corp. acknowledged the potentiality that a broader interpretation of the MBTA that "would bring every killing within the statute, such as deaths caused by automobiles, airplanes, plate glass modern office buildings or picture windows into which birds fly, would offend reason and common sense," but nonetheless concluded that such situations could be handled through the "sound discretion of prosecutors and the courts." The court reasoned that a "nominal fine" and prosecutorial discretion would address such situations.

Other courts have criticized the reasoning in United States v. FMC Corp . , explaining that "prosecutorial discretion is not a limiting principle of statutory interpretation" and that "proper construction of a criminal statute cannot depend upon the good will of those who must enforce it." The U.S. District Court for the District of Colorado in United States v. Moon Lake Electric Ass ociation suggested that requiring that an act or omission be the proximate cause of a taking is an "important and inherent limiting feature of the MBTA's misdemeanor provision."

The Fifth Circuit in United States v. CITGO Petroleum Corp. disagreed that proximate cause was a sufficient limitation on the strict liability standard of the MBTA, however, reasoning that under such an interpretation of the MBTA the government could still prosecute for these types of accidental deaths and expand the scope of the MBTA to "absurd results." This expansion, the court explained, would subject owners of glass windows, communication towers, wind turbines, cars, cats, and "even church steeples" to the MBTA penalties upon a finding of guilt for killing a migratory bird. As a result, the Fifth Circuit held that requiring an "affirmative action to cause migratory bird deaths is consistent with the imposition of strict liability" such that a "person whose car accidentally collided with the bird ... has committed no act 'taking' the bird for which he could be held strictly liable."

Judicial Interpretation of Congressional Intent

The legislative history of the MBTA supports differing interpretations of the nature and scope of takings prohibited and types of migratory birds protected by the MBTA. The courts that have limited the scope of the MBTA prohibitions to direct and intentional actions have interpreted the legislative history to indicate that Congress was primarily concerned with illegal hunting and poaching of migratory birds when it enacted the MBTA. Other courts have interpreted the legislative history and statutory text to cover other types of activities that affect songbirds and insectivorous migratory birds that are not typically hunted.

Other courts have focused on amendments to the MBTA that added mens rea requirements for certain types of violations. For example, the felony penalty provision in Section 707(b) regarding the prohibition of selling migratory birds was amended in 1986 to limit application to entities that knowingly take migratory birds to sell or barter them, or have intent to do so. Congress proposed this amendment to address a court decision in which the U.S. Court of Appeals for the Sixth Circuit upheld the dismissal of a felony indictment on constitutional grounds. Specifically, the Sixth Circuit held that strict liability application of the MBTA to the sale of migratory birds violates the Fifth Amendment's Due Process Clause because without a mens rea requirement, "a person acting with a completely innocent state of mind could be subjected to a severe penalty and grave damage to his reputation." A Senate report stated that "[n]othing in this amendment is intended to alter the 'strict liability' standard for misdemeanor prosecutions under 16 U.S.C. 707(a), a standard which has been upheld in many Federal court decisions."

Similarly, in 1998, Congress eliminated strict liability for taking of migratory birds by baiting in Section 704(b) by requiring that a "person knows or reasonably should know that the area is a baited area." A Senate report explained the following:

This legislation modifies the standard of liability applicable to hunting with bait or over baited areas. Specifically, the standard is changed from one of strict liability to one requiring a degree of knowledge.... The elimination of strict liability, however, applies only to hunting with bait or over baited areas, and is not intended in any way to reflect upon the general application of strict liability under the MBTA [for misdemeanor offenses]. Since the MBTA was enacted in 1918, offenses under the statute have been strict liability crimes. The only deviation from this standard was in 1986, when Congress required scienter for felonies under the Act.

Some courts have pointed to these amendments of the MBTA to support their determination that MBTA prohibitions on takings are strict liability offenses. For example, in United States v. Morgan , the Fifth Circuit upheld the conviction of a hunter who exceeded the daily bag limit of birds allowed under applicable hunting regulations, holding that misdemeanor offenses under the MBTA are strict liability offenses. In so doing, the court noted that Congress has consistently referred to misdemeanor offenses under the MBTA as strict liability offenses. Similar, the Tenth Circuit in Apollo Energies, Inc . cited the legislative history of these amendments as "further evidence the legislative scheme invokes a lesser mental state for misdemeanor violations."

Congress has attempted to limit the penalty provisions of the MBTA. In June 2015, the House of Representatives passed the FY2016 Commerce, Justice, Science, and Related Agencies Appropriations Bill, which included an amendment sponsored by Representative Jeff Duncan that would prohibit the use of Department of Justice funds to prosecute or hold liable any person or corporation for a violation of the MBTA. The House appropriations bill was reported in the Senate but was not brought to the floor for consideration.

FWS's Proposed Incidental Take Permitting Program

To address some of the uncertainty regarding incidental takes and compliance with the MBTA, in May 2015, FWS announced that it was considering developing an MBTA permitting program to authorize incidental takes of migratory birds. The notice stated that FWS intended to prepare a draft environmental impact statement (EIS) pursuant to NEPA that would analyze alternatives for permitting incidental take under the MBTA for certain industries, requesting public comment on regulatory options. The notice indicated that the EIS will review various approaches to regulating incidental takes of migratory birds, including

general incidental take authorizations for some types of hazards to birds associated with particular industry sectors such as oil and gas disposal pits, methane burner pipes at oil production sites, communication towers, electric transmission lines, and wind energy generation; individual permits authorizing incidental take from particular projects or activities not covered under general or conditional authorizations; development of memoranda of understanding with federal agencies authorizing incidental take from those agencies' operations and activities (which may also address authorizing take by third parties regulated by the agencies); and/or development of voluntary guidance for industry sectors regarding operational techniques or technologies that can avoid or minimize incidental take.

FWS received over 140 public comments on its notice of intent. Some industries favor incidental take permits as a way to provide regulatory certainty and reduce inconsistent enforcement discretion. Other commentators questioned FWS's legal authority to regulate the indirect, incidental take of migratory birds resulting from lawful commercial activities. FWS is in the process of reviewing comments submitted and developing a draft EIS in conjunction with proposed regulations that will be published for public comment. FWS hopes to issue the draft regulations this winter before the end of the Obama Administration.

If FWS adopts incidental take regulations under the MBTA, the final regulations are likely to be challenged in the Fifth, Eighth, and Ninth Circuits, where the courts have more narrowly construed FWS authority and the scope of the MBTA to regulate only direct and intentional takings of migratory birds and not the taking of migratory birds that occurs incidental to, and is not the purpose of, an otherwise lawful activity.