Yesterday, the United States Court of Appeals for the Fifth Circuit released it opinion in the matter styled United States v. CITGO Petroleum Corp., et. al, No. 14-40128. The Fifth Circuit reversed and remanded the matter undoing the criminal convictions on two CAA counts and one Migratory Bird Treaty Act counts. The CAA counts essentially were that the equalization tanks at the refinery were oil-water separators under Subpart QQQ and that the remains of migratory bird found in those tanks were an unlawful taking under the MBTA.
The MBTA implemented the Migratory Bird Protection Agreement, U.S.-Can., Dec. 8, 1916, 39 Stat. 1702 and made it “unlawful at any time, by any means or in any manner, to pursue, hunt, take, capture, kill, attempt to take, capture, or kill . . . any migratory bird,” in violation of regulations and permits. See 16 U.S.C. § 703(a); § 704(a). The bird remains found in the tanks were of “five White Pelicans, twenty (regular old) Ducks, two Northern Shoveler Ducks, four Double Crested Cormorants, one Lesser Scaup Duck, one Black-Bellied Whistling Tree Duck, one Blue-Winged Teal Duck, and one Fulvous Whistling Tree Duck.” CITGO Opinion at fn 4. CITGO was convicted on these counts.
On appeal, CITGO asserted that the illegally “taking” migratory birds involves only conduct intentionally directed at birds, such as hunting and trapping and unintentional or indirect means like commercial activity that may cause migratory bird deaths. The Fifth Circuit agreed. It analyzed common law and all of the criminal case law enforcing the MBTA and declined “to adopt the broad, counter-textual reading of the MBTA by these [other] circuits. . . . More fundamentally, we disagree that because misdemeanor MBTA violations are strict liability crimes, a ‘take’ includes acts (or omissions) that indirectly or accidentally kill migratory birds. These and like decisions confuse the mens rea and the actus reus requirements. Strict liability crimes dispense with the first requirement; the government need not prove the defendant had any criminal intent. But a defendant must still commit the act to be liable. Further, criminal law requires that the defendant commit the act voluntarily.” CITGO, at 25.
The Fifth Circuit then went on to discuss all of the other ways that migratory birds are killed every day in the United States and concluded that “[i]f the MBTA prohibits all acts or omissions that ‘directly’ kill birds, where bird deaths are ‘foreseeable,’ then all owners of big windows, communication towers, wind turbines, solar energy farms, cars, cats, and even church steeples may be found guilty of violating the MBTA.” CITGO, at 28 (footnote omitted). As a result, the Fifth Circuit held “the MBTA’s ban on ‘takings’ only prohibits intentional acts (not omissions) that directly (not indirectly or accidentally) kill migratory birds.” Id.
Conviction overturned! Good defense work.
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