Chopping down the birds: logging and the Migratory Bird Treaty Act.

• Author: Kim, Helen M.

[A] national interest of very nearly the first magnitude is involved. It can be protected only by national action.... But for the Treaty and the statute, there soon might be no birds....(1) I. INTRODUCTION

The Migratory Bird Treaty Act (MBTA or Act)(2) is one of the oldest conservation statutes in the United States.(3) To execute the international treaty established between the United States and Great Britain (on behalf of Canada), Congress passed the MBTA in 1918 with the goal of protecting all migratory birds in the jurisdiction of the United States.(4) In very broad language section 703 prohibits the taking and killing of any migratory bird: "it shall be unlawful at any time, by any means or in any manner ... to kill ... any migratory bird...."(5)

Recently, environmental groups and activists have begun to utilize the broad language(6) of the MBTA in more expansive ways in order to broaden the application of the Act.(7) Similarly, the government expanded MBTA enforcement by employing new methods.(8) Courts in various circuits have heard cases concerning logging projects that threatened to directly destroy migratory bird habitat, as well as nests, eggs,(9) and juvenile migratory birds in violation of the MBTA. Generally, these lawsuits have failed,(10) but scholars and courts alike question whether the actions of loggers indeed violate the Act.(11)

Despite the relatively clear language of the statute,(12) these questions arise because courts often utilize different and contradictory methods to interpret the Act.(13) Disparate application from each court leads to non-uniform enforcement of the MBTA and also causes unfair and unpredictable results. For example, loggers with the apparent approval of the United States Forest Service (USFS or Forest Service) have killed thousands of migratory birds each year and have escaped prosecution.(14) By contrast, both a person who received a product with a single feather from a migratory bird(15) and an electric company that inadvertently electrocuted a dozen migratory birds(16) were prosecuted.

Courts use three different approaches to limit the expanding scope of the MBTA, and these contradictory methods have resulted in a split among the circuits. The first approach is based on whether specific intent (mens rea) is required to hold the violator guilty.(17) While most courts find mens rea is not required under the MBTA, some courts continue to hold it is conclusive of MBTA guilt.(18) A second group of courts distinguish between direct and indirect activities that have taken or killed migratory birds.(19) Most of the MBTA actions against logging operations adopt this analysis and require a "direct" taking of migratory birds to establish guilt.(20) Finally, the third approach limits the scope of the MBTA through a proximate cause analysis.(21) This proximate cause analysis is the only method that uniformly and fairly applies the law.

The proximate cause analysis is the most just method of analyzing MBTA actions because one case often contains conflicting arguments when each of the first two approaches are applied concurrently. For example, a violator may directly take a migratory bird, but she may do so without mens rea. Analyzing MBTA guilt under either of the first two methods could result in a not guilty verdict in a circuit that employs the mens rea analysis and a guilty verdict in a different circuit that applies the direct and indirect taking analysis.

This Comment will demonstrate that the courts are improperly interpreting the MBTA to continue to allow USFS and loggers contracting through USFS to expressly violate the MBTA. Currently, USFS and loggers enjoy a unique and unlawful exemption from prosecution(22) that should not be continued. Part II of this Comment will outline the three approaches that courts have developed in interpreting the MBTA and explain why the proximate cause analysis must be used. Part III focuses on procedural aspects of MBTA actions against USFS and on agencies in general. Part III also examines why agencies have failed and how they may succeed in the future. Finally, Part IV shows that USFS and loggers have not been subject to prosecution or even investigation under the MBTA and that loggers must be held responsible for the birds they kill in violation of the MBTA. If USFS can arbitrarily and flagrantly choose to violate the law without the authority to do so, then the significance and effectiveness of the entire Act is compromised.

2. COURTS SHOULD USE A PROXIMATE CAUSE ANALYSIS TO UNIFORMLY PROSECUTE THE MBTA

   Initially, prosecutors used the MBTA to prevent both illegal or untagged hunting and the selling of migratory birds and bird parts.(23) However, as early as 1920, the United States Supreme Court recognized that Congress intended and expected to protect other types of birds in addition to those that were hunted.(24) These other birds included songbirds and insectivorous birds, which, as Justice Holmes explained, "were of great value ... in destroying insects injurious to vegetation [and] were in danger of extermination through lack of adequate protection."(25)

   Sections 1(26) and 2(27) of the MBTA and the accompanying regulations allow some taking of migratory birds.(28) However, except for those explicit exemptions, the comprehensive language of the MBTA forbids killing or taking birds "at any time, by any means, or in any manner"(29) and appears to include any conceivable method in which migratory birds have been killed. Courts have developed three approaches to limit the exceedingly broad language of the Act and to create a manageable and practicable scope for the MBTA.

   1. Mens Rea Analyses Are Mainly Irrelevant for Determining MBTA Guilt

      The first approach courts formed to limit the language of the MBTA focuses on the mens rea(30) or intent of the violator. This requirement of mens rea has become one of the most intriguing questions that courts have wrestled with in cases brought under the expanding scope of the MBTA. As violators were prosecuted, defendants continuously argued that they did not intend to breach the law and that they could not be held guilty under the MBTA because they did not possess a culpable mental state.(31) Because the statute is silent on this point, courts were left to determine whether scienter, or guilty intent, is indeed required.(32)

      This concept arises in two major situations under the MBTA. The first occurs with the baiting regulations of the MBTA,(33) in which hunters take birds "by aid of bait."(34) This Part instead focuses on the second category, which first became relevant when the United States Fish and Wildlife Service (FWS)(35) began to prosecute newer areas: how courts have dealt with mens rea when the alleged violators did not necessarily intend to take migratory birds at all.(36) In these cases, violators killed birds in the process of doing something else, and they argue that because they did not intend to kill birds at all, they cannot be guilty under the MBTA.

      The United States began to prosecute violators who apparently lacked the intent to kill or take migratory birds in 1978. In those cases, FWS argued that "the MBTA does not require specific intent."(37) Although this type of violation had not previously been prosecuted,(38) two circuits heard cases with very similar fact situations in the same year.

      The first example arises in United States v. Corbin Farm Service (Corbin Farm),(39) in which FWS applied the MBTA against a commercial farm that spread a deadly pesticide over its alfalfa field. FWS argued that the language preventing killing and taking of birds "at any time, by any means or in any manner"(40) includes birds dying after ingesting pesticide. Defendants Corbin Farm Service (the dealer and distributor of the pesticides), an employee of Corbin Farm Service that provided advice to the farmers, the owner of the alfalfa field, and the aerial operator who sprayed the field were all prosecuted under the MBTA.(41) In their defense, they argued that there was a requirement of scienter, or guilty intent, to be found guilty.(42)

      After thoroughly examining the MBTA, the district court held that "[t]he legislative history of the Act reveals no intention to limit the Act so that it would not apply to poisoning."(43) Moreover, the court declared that "it is clear that Congress intended to make the unlawful killing of even one bird an offense."(44) Simply because American widgeons(45) were "taken" and "killed" as a result of eating the sprayed alfalfa, all the defendants were found guilty of violating the MBTA.(46) The California district court maintained that this crime was a "public welfare offense,"(47) and that "when dealing with pesticides, the public [was] put on notice that it should exercise care to prevent injury to the environment and to other persons."(48) In Corbin Farm, no specific requirement of mens rea or scienter was necessary for an MBTA violation. The Ninth Circuit later affirmed this holding.(49)

      Similar to Corbin Farm, the Second Circuit held, in United States v. FMC Corp.,(50) that a corporation that produced a toxic pesticide violated the MBTA when the pesticide leaked into a wastewater pond and poisoned at least forty birds of varying species.(51) FMC used the ten-acre wastewater pond for drainage, and because of its immense size and open location, the pond attracted many migratory birds.(52) Unfortunately, due to the large concentration of carbofuran in the pond,(53) great numbers of those birds died. Despite FMC's significant efforts to keep them away,(54) the birds continued to flock to the poison-filled pond and continued to die.

      FMC argued that even in public welfare offenses, there must be an intended affirmative act or "an intent to harm birds culminating in their death for there to be a conviction."(55) However, the court rejected this argument and held that FMC had in fact performed an affirmative act: "it engaged in the manufacture of a...