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Fifth Circuit Adopts Narrow Reading of Bird Protection Law

By Casey C. Sullivan, Esq. on September 14, 2015 | Last updated on March 21, 2019

There's some big news for Bird Law practitioners out there. The Fifth Circuit has ruled that the oil and gas company Citgo did not violate the Migratory Bird Treaty Act when it unintentionally killed birds who landed in an uncovered oil separator in Texas.

The Fifth's narrow reading of the MBTA, that it does not cover incidental or unintentional take of birds, puts it in line with the Eighth and Ninth Circuits in a growing circuit split on the reach of the Act.

America's Premier Bird Law

The Migratory Bird Treaty Act is one of America's first environmental laws and has, depending on your reading, a potentially broad reach. The MBTA implements a treaty between the U.S. and Great Britain (acting on behalf of colonial Canada) meant to protect birds as they migrated across North America. In 1918, when the law was passed, birds faced massive threats from over hunting (often for use in women's hats). Besides protecting birds, the law was also essential in establishing the power of federal treaty --making authority over the states, as decided in Missouri v. Holland.

Under the MBTA, it's illegal to hunt, capture, kill, pursue, or take a protected migratory bird without a proper permit. (These actions are generally referred to as "takings" in environmental law.) Many bird species are protected as well, from bald eagles to bar owls to common crows. Misdemeanor takings under the MBTA are a strict liability crime, but courts are divided on whether a taking must be intentional (as when one hunts a bird) to be covered, or whether unintentional takings (as when a bird flies into your power lines) are also prohibited.

Citgo Gets Off

A district court in Texas had found Citgo liable for three misdemeanor takings of MBTA protected birds. When inspectors made a surprise visit to a Citgo refinery in Corpus Christi, Texas, they found uncovered tanks full of 130,000 barrels of oil. According to inspectors, those tanks needed to be covered under the Clean Air Act. Since they weren't, Citgo was charged and convicted of violating the Clean Air Act and "aiding and abetting the taking" of migratory birds under the MBTA, under the theory that birds would have unintentionally died by landing in the tanks.

However, on appeal, the Fifth Circuit reversed both convictions. Regarding the MBTA, the court held that a take under the MBTA must be intentional. Despite the law's strict liability standard for misdemeanors, the court found a violation cannot be found because of accident or omission. Instead, the court looked to the common law definition of take, which means to reduce wildlife "by killing or capturing, to human control." Those takes require volition, the court held, or else one would wind up violating the MBTA every time a bird flew into a window or was eaten by a house cat.

The Fifth's ruling is in line with that of the Eighth and Ninth Circuits, but stands in contrast with the Second and Tenth Circuits, which find the Act to cover unintentional takings. Circuit splits around the MBTA are nothing new, however. The Ninth split with the Second on this issue in 1991, leaving the Fifth Circuit 24 years to pick a side. Circuits are also split over whether the MBTA limits government takings of birds. That split, between the D.C. and Eleventh Circuits, has been unresolved for 15 years now.

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