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U.S. v. Chevron USA, Inc.

Summary: After 35 dead Brown Pelicans were discovered in the space between the inner wall of the caisson and the outer wall of a wellhead, Chevron was charged with a violation of the Migratory Bird Treaty Act. But, the Court held that the MBTA was clearly not intended to apply to commercial ventures where, occasionally, protected species might be incidentally killed as a result of totally legal and permissible activities. Therefore, at the plea hearing the Court refused to accept the plea of guilty from Chevron.

After 35 dead Brown Pelicans were discovered in the space between the inner wall of the caisson and the outer wall of a wellhead, Chevron was charged with a violation of the Migratory Bird Treaty Act. But, the Court held that the MBTA was clearly not intended to apply to commercial ventures where, occasionally, protected species might be incidentally killed as a result of totally legal and permissible activities. Therefore, at the plea hearing the Court refused to accept the plea of guilty from Chevron.

U.S. v. FMC Corp.

Summary: FMC operated a plant which manufactured various pesticides, requiring large amounts of wastewater which was stored in a pond. The pond attracted waterfowl during migration, some of which died. FMC attempted various measures to keep birds away from the pond. But, the Court held that FMC had engaged in an activity involving the manufacture of a highly toxic chemical and had failed to prevent this chemical from escaping into the pond and killing birds. The Court, therefore, held that this was sufficient to impose strict liability on FMC.

FMC operated a plant which manufactured various pesticides, requiring large amounts of wastewater which was stored in a pond. The pond attracted waterfowl during migration, some of which died. FMC attempted various measures to keep birds away from the pond. But, the Court held that FMC had engaged in an activity involving the manufacture of a highly toxic chemical and had failed to prevent this chemical from escaping into the pond and killing birds. The Court, therefore, held that this was sufficient to impose strict liability on FMC.

Newton County Wildlife Ass'n v. U.S. Forest Service

Summary: Newton County Wildlife Association sued the United States Forest Service seeking judicial review of four timber sales in the Ozark National Forest. The Wildlife Association filed sequential motions to preliminarily enjoin the sales as violative of the Wild and Scenic Rivers Act (WSRA) and the Migratory Bird Treaty Act (MBTA). The district court1 separately denied each motion, and the Wildlife Association separately appealed those orders. The Court held that because the Forest Service may limit WSRA plans to lands lying within designated river segments, failure to timely prepare the Plans cannot be a basis for enjoining timber sales on lands lying outside any designated area. With respect to the MBTA, the Court held that "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." Therefore, the Court affirmed the district court's denial of injunctive relief.

Newton County Wildlife Association sued the United States Forest Service seeking judicial review of four timber sales in the Ozark National Forest. The Wildlife Association filed sequential motions to preliminarily enjoin the sales as violative of the Wild and Scenic Rivers Act (WSRA) and the Migratory Bird Treaty Act (MBTA). The district court1 separately denied each motion, and the Wildlife Association separately appealed those orders. The Court held that because the Forest Service may limit WSRA plans to lands lying within designated river segments, failure to timely prepare the Plans cannot be a basis for enjoining timber sales on lands lying outside any designated area. With respect to the MBTA, the Court held that "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." Therefore, the Court affirmed the district court's denial of injunctive relief.

U.S. v. CITGO Petroleum Corp.

Summary: In 2007, CITGO was convicted of unlawfully taking and aiding and abetting the taking of migratory birds under MBTA § 707(a) after ten dead birds were found in two large open-top oil tanks. CITGO moved the Court to vacate its convictions, arguing that the MTBA criminalizes the unlawful taking or killing of migratory birds by hunting, trapping, poaching, or similar means, but does not criminalize commercial activities in which migratory birds are unintentionally killed as a result of activity completely unrelated to hunting, trapping, or poaching. In response, the Government argued that the MTBA prohibits the taking or killing of a migratory bird at any time, by any means or in any manner. The evidence presented at trial established that a number of individuals saw oil-covered birds, both dead and alive. An employee told senior management and suggested to another member of CITGO's senior management team that CITGO install nets on the tanks to prevent birds from landing in the oil. Based on this evidence, the court held that not only was it reasonably foreseeable that protected migratory birds might become trapped in the layers of oil on top of the tanks, but that CITGO was aware that this was happening for years and did nothing to stop it. Because CITGO's unlawful, open-air oil tanks proximately caused the deaths of migratory birds in violation of the MBTA, CITGO's Motion to Vacate CITGO's Conviction for Violations of the Migratory Bird Treaty Act was denied.

In 2007, CITGO was convicted of unlawfully taking and aiding and abetting the taking of migratory birds under MBTA § 707(a) after ten dead birds were found in two large open-top oil tanks. CITGO moved the Court to vacate its convictions, arguing that the MTBA criminalizes the unlawful taking or killing of migratory birds by hunting, trapping, poaching, or similar means, but does not criminalize commercial activities in which migratory birds are unintentionally killed as a result of activity completely unrelated to hunting, trapping, or poaching. In response, the Government argued that the MTBA prohibits the taking or killing of a migratory bird at any time, by any means or in any manner. The evidence presented at trial established that a number of individuals saw oil-covered birds, both dead and alive. An employee told senior management and suggested to another member of CITGO's senior management team that CITGO install nets on the tanks to prevent birds from landing in the oil. Based on this evidence, the court held that not only was it reasonably foreseeable that protected migratory birds might become trapped in the layers of oil on top of the tanks, but that CITGO was aware that this was happening for years and did nothing to stop it. Because CITGO's unlawful, open-air oil tanks proximately caused the deaths of migratory birds in violation of the MBTA, CITGO's Motion to Vacate CITGO's Conviction for Violations of the Migratory Bird Treaty Act was denied.

Protect Our Communities Foundation v. Jewell

Summary: The Protect our Communities Foundation challenged the Bureau of Land Management's Record of Decision authorizing development of a utility-scale wind energy facility on public lands in San Diego County, arguing that BLM's approval of a right-of-way violated the National Environmental Policy Act, the Migratory Bird Treaty Act, and the Bald and Golden Eagles Protection Act. The Court found that BLM did consider several alternatives to the proposed Project, took a "hard look" at the environmental consequences, and did not improperly defer specification and analysis of mitigation measures. The Court also held that Federal agencies are not required to obtain a permit before acting in a regulatory capacity to authorize activity, such as development of a wind-energy facility, that may incidentally harm protected birds. The Court denied the plaintiff's motion for summary judgment and granted the defendants' cross motions for summary judgment.

The Protect our Communities Foundation challenged the Bureau of Land Management's Record of Decision authorizing development of a utility-scale wind energy facility on public lands in San Diego County, arguing that BLM's approval of a right-of-way violated the National Environmental Policy Act, the Migratory Bird Treaty Act, and the Bald and Golden Eagles Protection Act. The Court found that BLM did consider several alternatives to the proposed Project, took a "hard look" at the environmental consequences, and did not improperly defer specification and analysis of mitigation measures. The Court also held that Federal agencies are not required to obtain a permit before acting in a regulatory capacity to authorize activity, such as development of a wind-energy facility, that may incidentally harm protected birds. The Court denied the plaintiff's motion for summary judgment and granted the defendants' cross motions for summary judgment.

Brief Summary of the Migratory Bird Treaty Act

The Migratory Bird Treaty Act (MBTA) was passed in 1918 to combat over-hunting and poaching that supplied the enormous demand for feathers to adorn women’s hats.  State-level hunting laws were not working, and bird populations were being decimated.  At first, the Act was based on a single, 1916 treaty between the United States and Great Britain (on behalf of Canada) to protect migratory birds.  Later, similar treaties were signed with Japan, Russia, and Mexico, and protection for the birds covered in these treaties was added to the MBTA.

Detailed Discussion of the Migratory Bird Treaty Act

Summary: This paper summarizes the history of the MBTA. It describes the current version of the law, including administrative responsibilities, the criteria used to define the list of covered birds species, the types of behavior that trigger enforcement, and the penalties for violators. The paper covers the major legal controversies that characterize the split in the courts’ decisions and proposed amendments. It also highlights some of the MBTA issues making headlines today. The discussion concludes with questions about the Act’s future, and Part VII is a timeline of the important moments in the MBTA.

This paper summarizes the history of the MBTA. It describes the current version of the law, including administrative responsibilities, the criteria used to define the list of covered birds species, the types of behavior that trigger enforcement, and the penalties for violators. The paper covers the major legal controversies that characterize the split in the courts’ decisions and proposed amendments. It also highlights some of the MBTA issues making headlines today. The discussion concludes with questions about the Act’s future, and Part VII is a timeline of the important moments in the MBTA.

Institute of Marine Mammal Studies v. National Marine Fisheries Service

Summary: The Institute of Marine Mammal Studies (IMMS) brought action against the National Marine Fisheries Service (NMFS) and others, alleging that NMFS regulations did not properly implement the Marine Mammal Protection Act (MMPA), and that the NMFS was improperly administering placement list for rehabilitated sea lions that could not be reintroduced into the wild. Parties cross-moved for summary judgment. After considering the parties' arguments, the administrative record, and the relevant law, the District Court found that the IMMS lacked standing to bring its claim that NMFS regulations did not properly implement the Marine Mammal Protect Act ("MMPA"). Further, the Court found that it lacked subject matter jurisdiction of IMMS' claims that the NMFS was improperly administering a placement list for non-releasable sea lions. However, the Court found it may review the claims concerning the permit allowing IMMS to "take" sea lions. The Court found that a term included in IMMS' permit improperly delegated federal authority to third parties. The permit was therefore remanded to the agency for reconsideration. Each summary judgment motion was granted in part and denied in part.

The Institute of Marine Mammal Studies (IMMS) brought action against the National Marine Fisheries Service (NMFS) and others, alleging that NMFS regulations did not properly implement the Marine Mammal Protection Act (MMPA), and that the NMFS was improperly administering placement list for rehabilitated sea lions that could not be reintroduced into the wild. Parties cross-moved for summary judgment. After considering the parties' arguments, the administrative record, and the relevant law, the District Court found that the IMMS lacked standing to bring its claim that NMFS regulations did not properly implement the Marine Mammal Protect Act ("MMPA"). Further, the Court found that it lacked subject matter jurisdiction of IMMS' claims that the NMFS was improperly administering a placement list for non-releasable sea lions. However, the Court found it may review the claims concerning the permit allowing IMMS to "take" sea lions. The Court found that a term included in IMMS' permit improperly delegated federal authority to third parties. The permit was therefore remanded to the agency for reconsideration. Each summary judgment motion was granted in part and denied in part.

U.S. v. Brigham Oil and Gas, L.P.

Summary: The Government charged Brigham Oil & Gas, L.P.with “taking” (killing) two migratory birds found dead near one of its reserve pits. But, the Court found that the use of reserve pits in commercial oil development is legal, commercially-useful activity that stands outside the reach of the federal Migratory Bird Treaty Act. Therefore, the Court held that the oil and gas companies' use of reserve pits did not violate Migratory Bird Treaty Act's prohibition against taking of protected birds, since death or injury was not intentional, and grated the defendant's motion to dismiss.

The Government charged Brigham Oil & Gas, L.P.with “taking” (killing) two migratory birds found dead near one of its reserve pits. But, the Court found that the use of reserve pits in commercial oil development is legal, commercially-useful activity that stands outside the reach of the federal Migratory Bird Treaty Act. Therefore, the Court held that the oil and gas companies' use of reserve pits did not violate Migratory Bird Treaty Act's prohibition against taking of protected birds, since death or injury was not intentional, and grated the defendant's motion to dismiss.
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