By Shippen Howe

The Migratory Bird Treaty Act (MBTA or Act), Pub. L. No. 40 Stat. 755 (1918) (codified as amended at 16 U.S.C. §§ 703—712 (2006)) was enacted in 1918 to implement a 1916 treaty signed between the United States and Great Britain (acting on behalf of Canada) to protect migratory birds. Convention Between the United States and Great Britain for the Protection of Migratory Birds, Aug. 16, 1916, 39 Stat. 1702, 1702 (Treaty). Although the statute appears largely to be directed at hunters, it has been used to impose strict, misdemeanor liability on energy companies and has had repercussions on energy companies that intend to build new infrastructure.

The Treaty between the United States and Great Britain committed both countries to establishing closed hunting seasons for certain categories of migratory birds, and both countries agreed to take the necessary measures to carry out the Treaty's provisions to protect migratory birds. The United States subsequently executed similar treaties with Mexico, Japan, and the Union of Soviet Socialist Republics, which have been encompassed within the Act.

The MBTA, as originally enacted in 1918, gave effect to the Treaty by making it a strict liability misdemeanor to pursue, "hunt, take, capture, kill, attempt to take, capture or kill…at anytime or in any manner, any migratory bird.” Section 2, 40 Stat. 755, 755. Although Congress subsequently added felony provisions to the statute and later required proof of intent for these latter provisions (see Pub. L. No. 99-645, section 501, 100 Stat. 3582, 3590 (1986)), Congress never has altered the strict liability standard for the Act's original misdemeanor provisions.

The word "take" is not defined in the Act. The term however, is defined in the regulations of the U.S. Fish and Wildlife Service (FWS), the administrator of the Act. Section 10.12 of the FWS's MBTA regulations defines "take" as follows:

Take means to pursue, hunt, shoot, wound kill, trap, capture, or collect, or attempt to pursue, hunt, shoot, wound, kill, trap, capture, or collect.

50 C.F.R. § 10.12. The term "take" is of particular relevance to energy companies because it also is a term used in the Endangered Species Act (ESA). Unlike in the MBTA, however, “take” is expressly defined in the ESA. 16 U.S.C. § 1531 et seq. (2006). The ESA defines "take" to include “to harass, harm, pursue, hunt ... shoot [and] kill” 16 U.S.C. § 1532(19) (emphasis added). The FWS, which administers both statutes, defines the word “harm” to include “significant habitat modification or degradation.” 50 C.F.R. § 17.3. See Babbit v.. Sweet Home Chapter of Communities, 515 U.S. 687, 709 (1995) (upholding FWS definition). Thus, for the ESA, the term “take” includes habitat modification; for the MBTA, it does not.

In 2001, Bill Clinton signed an Executive Order “in furtherance of the purposes of the migratory bird conventions, the Migratory Bird Treaty Act ... the Endangered Species Act ... [and] the National Environmental Policy Act of 1969.” Exec. Order No. 13186, 3 C.F.R. 719 (2002), reprinted in 16 U.S.C. § 701 (2006). The Executive Order expressly notes that the migratory bird conventions “impose substantive obligations on the United States for the conservation of migratory birds and their habitats.” Exec. Order No. 13186 § 1 (emphasis added). Accordingly, the Executive Order directs “each Federal agency taking actions that have, or are likely to have, a measurable negative effect on migratory bird populations ... to develop and implement ... a Memorandum of Understanding (MOU) with the Fish and Wildlife Service (Service) that shall promote the conservation of migratory bird populations." Exec. Order No. 13186 § 2. As discussed below, the inclusion of the words “migratory birds and their habitats” in the Executive Order has been interpreted by the FWS, in conjunction with its other administrative responsibilities, to expand its scope of regulation under the MBTA.

How the MBTA has affected energy companies with existing facilities

An energy company can be held strictly liable for a misdemeanor under the MBTA if a migratory bird is killed by its facilities. In United States v. Moon Lake Electric Ass'n Inc., 45 F. Supp. 2d 1070 (D. Colo. 1999), Moon Lake, a rural electrical distribution cooperative, was charged with, among other things, deaths of migratory birds on its electric lines. The court, holding that the statute was not intended to apply only to hunters and poachers, found that the Act imposed a strict liability standard. The court concluded, however, that, to avoid absurd results (e.g.. liability for hitting a bird while driving a car), direct legal causation had to be proven beyond a reasonable doubt. /d. at 1085. Pursuant to that standard, Moon Lake was found guilty of MBTA misdemeanors because it had “failed to install inexpensive equipment” on power poles ‘causing the death or injury of 38 birds of prey:” Id. at 1071.

Similarly, in United States v. Apollo Energies, Inc., No. 0810111-01-JTM, 2009 U.S. Dist. LEXIS 6160 (D. Kan. Jan. 28, 2009) (dead birds found in an oil company's “heater treater”), the court, citing Moon Lake and agreeing with the imposition of a “proximate causation” requirement, imposed strict liability on an energy company after the court found, among other things, that it was common knowledge in the oil and gas industry “that heater-treaters were killing birds.” Id. at *11 (emphasis added).

Recently, however, a district court in Louisiana came to a conclusion inconsistent with Moon Lake and Apollo. In United States v. Chevron USA, Inc., No. 09-CR-0132, 2009 U.S. Dist. LEXIS 102682 (W.D. La. Oct. 30, 2009), the court refused to accept a plea agreement holding Chevron guilty under the MBTA for the death of brown pelicans in a caisson structure used to protect its offshore facilities. Disagreeing with the application of a proximate cause requirement, the court, instead, determined that strict liability simply should not be applied “under all circumstances.” Id. at *12-13. The Chevron court refused to impose strict liability on the facts before it because it found that there was no prohibition cited by the government for leaving a caisson uncovered and that the birds had died “as an unintended consequence from the legal, and widely accepted, use of a caisson to protect the wellhead.” Ld, at *9.

While the FWS recognizes that it cannot absolve companies from liability under the MBTA, it also recognizes that overzealous prosecution would be counter-productive. Thus, in implementing the statute, the FWS has stated that it will focus its enforcement efforts on companies that have acted “with disregard for their actions and the law, especially when conservation measures have been developed but are not properly implemented.” See FWS, Pipeline Development Projects and Conservation of Migratory Birds: A New Tool (2009).

How the MBTA may affect energy companies that seek to build new infrastructure

Large energy projects, such as the construction of an electric transmission line or a natural gas pipeline, often require agency approval for clearing of migratory bird habitats on federal land. As an initial matter, the courts clearly have determined that habitat clearing associated with United States Forest Service timber sales does not constitute a “take” under the MBTA. In Seattle Audubon Society v. Evans, 952 F.2d 297 (9th Cir. 1991) (destruction of bird habitat through logging proposal by the U.S. Forest Service), the 9th Circuit rejected the argument that a “take” under section 703 of the MBTA could be read to include habitat destruction. The court concluded that “habitat destruction causes ‘harm’ to the owls under the ESA but does not 'take' them within the meaning of the MBTA.” ld. at 303. See also Earth Island Institute v. Carlton, No. S-09-2020 FCD/EFB, 2009 U.S. Dist. LEXIS 74066, *82-83 (E.D. Cal. 2009) (citing Seattle Audubon Society, the court held there was no MBTA violation even though unfledged migratory bird chicks potentially could be killed by logging project). Based on these decisions, habitat clearing for an energy project technically would not be a “take” under the MBTA.

The implementation of the MBTA by the FWS, however, still may significantly affect what habitat modification is permitted for large energy infrastructure projects. In the Rockies Express East natural gas pipeline project, a 630 mile natural gas pipeline across four states (FERC Docket No. CP07-208-000), the FWS was a consulting agency to the Federal Energy Regulatory Commission (FERC) for purposes of environmental review. To satisfy the consultation requirements of the FWS, the applicant and the FWS entered into a conservation guidelines agreement, which was intended to “set forth all reasonable measures that Rockies Express may take to comply with the MBTA.” Guidelines for Achieving Compliance with the Migratory Bird Treaty Act and Executive Order No. 13186 through Voluntary Conservation Measures at 4, FERC Docket No. CP07-208 (filed Mar. 27, 2008). The agreement expressly required: (1) a reduction of the right-of-way footprint through migratory bird habitat and (2) a contribution of funds by the project sponsor to the FWS to mitigate for migratory bird habitat impacts. Id. In the Environmental Impact Statement issued for the project, the Commission cited the president's Executive Order and the MBTA, among other environmental authorities, and concluded that the agreement was necessary to address “[t]he potential impacts from forest fragmentation that are important for migratory bird species that have limited habitat in the Project area.” FEIS at 4-74.

Thus, although habitat modification is not expressly a “take” under the MBTA, the FWS has utilized the more broad language contained in the president's Executive Order and its status as the MBTA implementing agency to seek to alter the footprint of a large energy infrastructure project in the environmental review process. When this occurs, the sponsor of a project has the choice to legally challenge the proposals of the FWS, a lengthy and costly process, or negotiate with the agency.

Wind development

A potential new crossroad between the MBTA and energy companies is wind energy projects. As of this writing, the author has found no published court cases brought against wind project developers for deaths of birds under the MBTA. Clearly, under the Moon Lake and Apollo precedent, a wind energy developer could be held culpable under the MBTA for killing migratory birds. The FWS, utilizing the broader language in the Executive Order, may seek to alter the footprint of a project based on its potential effect on migratory bird habitat.

The MBTA is a potential source of liability to energy companies and can affect the development of infrastructure. Early contact with the FWS is critical to avoiding potential liabilities, extra costs, and delays.

Reprinted with permission by Trends:  ABA Section of Environment, Energy, and Resources Newsletter.  This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.