Migratory Bird Treaty Act Held Not To Apply To Reserve Pits Used in Oil and Gas Operations

As North Dakota has become a leader in hydraulic fracturing, the state has also begun to generate some interesting caselaw. Though not specifically a fracking case, a recent decision discusses the liability of drillers under the Migratory Bird Treaty Act (MBTA) for birds who die because of exposure to reserve pits.

This MTBA makes it unlawful to “take” or “kill” any migratory birds. Reserve pits are excavated areas used to contain drill cuttings and drilling muds generated during drilling activities. Apparently, migratory birds may confuse reserve pits with lakes or ponds.

In United States v. Brigham Oil & Gas, L.P., 2012U.S. Dist. LEXIS 5774(D.N.D.  1/17/12), the federal government issued indictments under the MBTA to several companies after dead migratory birds were found near reserve pits associated with drilling activities. Some companies accepted plea bargains but others filed motions to dismiss, arguing that they have been engaged in lawful activities that were not directed at the migratory birds. The key issue before the court was the terms to “take” or “kill” a migratory bird applied and prohibited any activity that might proximately cause a bird death or whether it only covered conduct directed against wildlife.

Since the statute does not define the term “take”, government argued that the court should apply a broad interpretation of the words “take” and “kill” similar to the meaning used in the Endangered Species Act so that the words would encompass not only physical activity directed against a bird, but also habitat modification and other impacts that arise from lawful commercial activity.

The court said, though, that it must apply the ordinary meaning of the word. Moreover, since the MBTA was a criminal statute, the court said the law must be narrowly construed. Turning to the dictionary, the court said that when applied to wildlife, the word “take”  meant a purposeful attempt to possess wildlife through capture, not incidental or accidental taking through lawful commercial activity. In the context of the MBTA, the court ruled that “take” refers to conduct directed at birds, such as hunting and poaching, and not acts or omissions having merely the incidental or unintended effect of causing bird deaths.

The court acknowledged that some courts outside of the Eighth Circuit Court of Appeals have applied the MBTA to indirect, unintentional commercial activity. However, the court noted that the Eighth Circuit has held that such a broad interpretation “would stretch this 1918 statute far beyond the bounds of reason.”

The court said the reserve pits were not created to effect the habitat of migratory birds and had little effect on bird habitat, except to attract occasional birds which mistake the pits for a pond or lake. If the MBTA concepts of “take” or “kill” were read to prohibit any conduct that proximately resulted in the death of a migratory bird, the court reasoned, then many everyday activities would not only become unlawful but also be subject to criminal sanctions. For example, the court explained, ordinary land uses which may cause bird deaths include cutting brush and trees, and planting and harvesting crops. In addition, many ordinary activities such as driving a vehicle, owning a building with windows, or owning a cat, inevitably cause migratory bird deaths.

The court said it doubted that Congress ever intended to impose criminal liability on the acts or omissions of persons involved in lawful commercial activity that might indirectly cause the death of birds protected under the MBTA. To be consistent, the court said the government would have to criminalize driving, construction, airplane flights, farming, electricity and wind turbines and many other everyday lawful activities that kill migratory birds. Moreover, the court noted studies compiled by the U.S. Fish & Wildlife Service that suggested domestic cats were a major cause of bird mortality. It simply would not be feasible, the court said,  to prosecute all or even most of those persons or entities who technically violate the Migratory Bird Treaty Act.

As a result, the court held that the use of reserve pits in commercial oil development is legal, commercially-useful activity were outside the reach of the MBTA. Like timber harvesting, the court reasoned, oil development and production activities are not the sort of physical conduct engaged in by hunters and poachers, and such activities do not fall under the prohibitions of the MBTA

The court noted that the state rules provide that reserve pits must be reclaimed within a reasonable time but in no case later than one year after well completion. In addition, the rules governing reserve pit generally do not require the placing of screening or netting on the reserve pits if the pit is reclaimed within ninety days after completion of the operations. The court suggested that the appropriate remedy for the death of migratory birds found in or near reserve pits in the oil fields of North Dakota was for the North Dakota Industrial Commission to amend its regulations to address the perceived problem.