Oil companies not liable for dead birds

Crowell.com:

In a decision with broad implications, a federal judge in North Dakota recently dismissed three criminal cases brought under the Migratory Bird Treaty Act by the federal government as part of a targeted enforcement action on the "North Dakota oil patch."  See United States v. Brigham Oil & Gas L.P., -- F. Supp. 2d --, 2012 WL 120055 (D.N.D. Jan. 17, 2012).  The federal government argued that the Migratory Bird Treaty Act should be broadly interpreted to impose criminal liability for actions that indirectly result in a protected bird's death.  The U.S. District Court for the District of North Dakota rejected this sweeping interpretation of the Act and dismissed criminal Informations filed against three oil and gas companies on whose properties protected birds had allegedly been found dead.  The court's reasoning is applicable to numerous legal activities that may indirectly kill migratory birds, including oil and gas activities, wind energy operations, and mining activities.

The Migratory Bird Treaty Act, passed in 1918, criminalized a long list of actions relating to migratory birds such as "pursue," "hunt," "capture," "sell," "purchase," and "barter."  16 U.S.C. § 703.  The pivotal issue in the case was the proper interpretation of the words "kill" and "take" in that list.  The court interpreted them narrowly to mean actions taken with the intent to kill or take a bird, not actions that merely happen to kill or take a bird.  In support of this interpretation, the court relied on the plain language of the statute, precedent from the Eighth and Ninth Circuits narrowly construing the statute,see Newton County Wildlife Ass'n. v. U.S. Forest Serv., 113 F.3d 110, 115-16 (8th Cir. 1997); Seattle Audubon Soc'y v. Evans, 952 F.2d 297 (9th Cir. 1991), as well as other district court cases in which courts have declined to impose criminal liability for legal activities that incidentally resulted in bird deaths.  See United States v. Ray Westall Operating Inc., No. CR 05-1516-MV, 2009 U.S. Dist. LEXIS 130674, at *1 (D.N.M. Feb. 25, 2009); United States v. Chevron USA, Inc., No. 09-CR-0132, 2009 WL 3645170 (W.D. La. Oct. 30, 2009).

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The court reached the proper decision, but the case shows how far this administration's hostility to oil and gas production will go in trying to criminalize their existence.  It demonstrates the hostile environment they are creating for the production of oil and gas.  The case makes a mockery of Obama's pronouncements bragging about increased oil and gas production under his administration.