A Murder Most Fowl: United States v. Citgo Petroleum Corp., 801 F.3d 477 (5th Cir. 2015), and Incidental Killings Under the Migratory Bird Treaty Act

• Publication year: 2021
• Citation: Vol. 96

96 Nebraska L. Rev. 742. A Murder Most Fowl: United States v. CITGO Petroleum Corp., 801 F.3d 477 (5th Cir. 2015), and Incidental Killings Under the Migratory Bird Treaty Act

A Murder Most Fowl: United States v. CITGO Petroleum Corp., 801 F.3d 477 (5th Cir. 2015), and Incidental Killings Under the Migratory Bird Treaty Act(fn*)

Lora Anne Waeckerle

TABLE OF CONTENTS

I. Introduction .......................................... 743

II. Background ........................................... 746
A. God Save the Birds: The History of United States Environmental Protection Legislation and the U.S.-Great Britain Treaty ......................... 747
B. No Clear Skies Ahead: The Relevant Sections of the MBTA ............................................ 750
C. Walking on Eggshells: The Federal Circuits Disagree on Whether Incidential Killings May Be Sanctioned Under the MBTA ...................... 752
D. Ruffled Feathers: United States v. CITGO Petroleum Corp. and the Continued Confusion ..... 755

III. Analysis: Despite the Fifth Circuit's Ruling, the MBTA's Language Has an Expansive Wingspan ................ 758
A. The Sky is the Limit: The MBTA's Language and Legislative History Support Sanctioning Incidental Taking of Protected Birds ......................... 759

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1. Taking a Different Direction: The MBTA's Plain Language Supports Misdemeanor Penalites for Incidential Takings ............................ 759
2. Under Congress's Wing: The MBTA's Legislative History Supports MBTA Penalites for Misdemeanor Incidential Takings .............. 762
B. Migrating in the Right Direction: Persuasive Policy Considerations for Sanctioning Incidental Killings. . 768
1. Compliance at 5000 Feet: International Obligations and Department of the Interior's Regulations .................................... 768
2. Not Just Winging It: Extending Violations of the MBTA to Include Incidental Killing Does Not Risk Inappropriate Sanctions .................. 770

IV. Conclusion ............................................ 771

I. INTRODUCTION

For most of recorded history, human beings have looked up at the sky and studied its occupants.(fn1) In the words of Leonardo da Vinci, "Once you have tasted flight, you will forever walk the earth with your eyes turned skyward, for there you have been, and there you will always long to return."(fn2) The Migratory Bird Treaty Act of 1918 (MBTA),(fn3) a United States federal law passed to implement a treaty between Great Britain (on behalf of Canada)(fn4) and the United States,(fn5) is no exception to this desire to examine and protect the creatures of the sky.(fn6) Almost one hundred years after President Woodrow Wilson

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signed it, the Act still attempts to safeguard certain birds that migrate into American territories.(fn7) Due to its status as one of the oldest environmental conservation acts in America, the MBTA has been repeatedly amended and expanded in modern times to include subsequently enacted treaties protecting migratory birds with not only Canada but also Mexico, Japan, and Russia.(fn8)

Congress passed the MBTA to shield certain birds from human in-terference-the Act criminalizes the taking or killing of nearly one thousand species.(fn9) Put most simply, it attempts to facilitate international cooperation by protecting migratory birds that travel long distances across many different countries.(fn10) To encourage compliance with the statute, Congress granted the U.S. Fish and Wildlife Service statutory authority to investigate and sanction MBTA violators.(fn11)

Since its implementation, however, application of the MBTA has been polluted by conflicting judicial interpretations.(fn12) Specifically, a

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federal circuit split has developed regarding the proper interpretation of the word "take" under § 703(a) of the MBTA for purposes of misdemeanor violations.(fn13) Some circuit courts have held that under the Act, taking a bird only includes a direct, affirmative action by a human, like hunting.(fn14) In contrast, others have interpreted take to mean not only direct interaction but also incidental interference with the birds.(fn15) These inconsistent rulings result in widely different judicial outcomes depending on where the violator injured the MBTA-pro-tected bird.

Recently, the U.S. Court of Appeals for the Fifth Circuit further divided the federal circuits on this issue when, in early September 2015, it reversed the U.S. District Court for the Southern District of Texas's decision convicting CITGO Petroleum Corporation of three violations of the MBTA.(fn16) In its opinion, the Fifth Circuit held that those who unintentionally kill migratory birds were not taking(fn17) the

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animals as defined by the Act. Therefore, in the Fifth Circuit's view, CITGO Petroleum did not violate the MBTA when it failed to cover its oil tanks, causing migratory birds to fall in and drown.(fn18) This decision not only absolved the corporation of a fine and three misdemeanor convictions,(fn19) it also effectively condoned a hazardous industry practice by making it clear that unintentional omissions resulting in the death of the protected birds were not criminal under the MBTA.

This Note focuses on the weaknesses of the Fifth Circuit's decision to interpret the misdemeanor section of the MBTA to penalize only those who affirmatively cause protected birds to die. This Note further argues that the Fifth Circuit should adopt a broader rule regarding MBTA sanctions in order to penalize both direct and incidental killing of migratory birds. Part II of this Note provides background information about the history and language of the MBTA, the details of the current circuit split, and an explanation of the Fifth Circuit's decision. Part III argues that the expansive language of the MBTA supports a broader interpretation of the MBTA. It then examines congressional intent surrounding the Act, which reinforces adopting a rule that includes sanctions beyond direct killings of protected birds through hunting and other affirmative acts. Finally, Part III concludes by reflecting on the policy considerations that support expanding MBTA sanctions to include incidental killing. Part IV provides a conclusion.

II. BACKGROUND: IN THE FIFTH CIRCUIT, A BIRD IN THE HAND IS WORTH ZERO MBTA CITATIONS

For hundreds of years, birds remained virtually unprotected from human slaughter for food, trade, and sport.(fn20) As the twentieth century approached, however, the consequences of failing to prevent the extinction of entire species of animals became more apparent.(fn21) This realization resulted in government-imposed conservation initiatives to protect animals facing this threat.(fn22) On both national and interna-

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tional stages, the U.S.-Great Britain Treaty is a notable example of the United States' efforts to help ensure environmental sustainability. The MBTA, which is Congress's statutory implementation of the U.S.-Great Britain Treaty, commands that "it shall be unlawful at any time, by any means or in any manner, to . . . kill . . . any migratory bird."(fn23) On its face, this language appears straightforward; nevertheless, several circuit courts stand divided on whether the Act criminalizes incidental as well as direct killings of migratory birds.(fn24)

A. God Save the Birds: The History of United States Environmental Protection Legislation and the U.S.-Great Britain Treaty

Even though the MBTA became law nearly one hundred years ago, it was not America's first attempt to implement legislation geared toward conservation. Before Congress executed the U.S.-Great Britain Treaty by passing the MBTA, it adopted two other pieces of legislation: the Lacey Act and the Weeks-McLean Act.(fn25) As MBTA predecessors, these legislative initiatives help illustrate Congress's larger and long-standing agenda to regulate human interference with protected migratory birds.(fn26)

Using its Commerce Clause authority, Congress passed the Lacey Act in 1900, which imposed criminal sanctions on hunters who attempt to break certain states' conservation laws.(fn27) In particular, the Lacey Act existed to punish those who illegally hunted wildlife in one state and then traveled with the animal across state borders to a different jurisdiction to avoid penalties.(fn28) When Congress passed this Act, it intended to give the states enforcement power over their environmental-protection laws by extending to each state the power to sanction poachers beyond state lines.(fn29) However, even though courts have deemed the Lacey Act constitutional,(fn30) the law initially had little

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effect because it was rarely enforced.(fn31) Nevertheless, its focus on preventing violators who poach wildlife closely mirrors the MBTA's goal to protect migratory birds from excessive hunting.(fn32)

Despite the Lacey Act's practical failure, Congress persisted with its mission to protect migratory birds by implementing the Weeks-McLean Act, a broader national-conservation law that declared migratory animals to be "within the custody and protection of the Government of the United States."(fn33) The Act asserted that protected birds "shall not be destroyed or taken contrary to [the Act's] regulations."(fn34) Beyond preventing hunting, it also attempted to stop poachers from shipping migratory birds across state lines,(fn35) in part to dissuade violators from selling the protected birds' feathers to merchants for decoration on hats.(fn36) Like its predecessor the Lacey Act, the Weeks-McLean Act focused on regulating certain hunting activity involving protected birds.(fn37) However, its enforcement strategy differed from the Lacey Act because it redistributed "responsibility over migratory birds from individual state governments to the federal government and sought to remedy the tragedy of the commons that was created when an individual state's...