The Migratory Bird Treaty Act is general described as a strict liability crime (in laymen’s terms you do not need to prove that you intended to do the thing prohibited) and provides: "Unless and except as permitted by regulations made as hereinafter provided in this subchapter, 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 eggs 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, . . ..” 16 U.S.C. §703.
What that means in English is that it is unlawful for anyone to, at any time, by any means or in any manner, take or kill any migratory bird without a permit or as otherwise allowed by the regulations.
Any person who does so may be convicted of a misdemeanor and fined not more than $15,000.00. Or that person can be sentenced to prison for not more than six months. Or, that person can be sentenced to both (a fine and prison). 16 U.S.C. § 707(a). If one is found to have engaged in a knowing violation with the intent to sell, offer to sell, barter or offer to barter a migratory bird, or to actually sell, offer for sale, barter or offer to barter, any migratory bird, upon conviction, that person can be convicted of a felony and fined not more than $2,000.00 and imprisoned for not more than two years, or both. 16 U.S.C. § 707(b).
In the case of Tripp Isenhour (see blog post of March 6, 2008), under federal law, the golf clubs used to “take” the migratory bird could be “seized and held pending the prosecution of any person arrested for violating” the Migratory Bird Treaty Act. 16 U.S.C. § 707(d). And then, if convicted the golf clubs could be "forfeited to the United States.” 16 U.S.C. § 707(d).
Depending upon the mood of the DOJ, Mr. Isenhour could be in some more trouble.
More later.
As always, feel free to call me or e-mail me with any questions at walter.james@jamespllc.com.
WDJiii
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