Paved with good intentions: the fate of strict liability under the Migratory Bird Treaty Act.

• Author: Robbins, Kalyani
• Position: The Migratory Bird Treaty Act: Reshaping a Powerful Conservation Tool Conference

1. INTRODUCTION II. STRICT LIABILITY Is FIRMLY ESTABLISHED FOR MBTA MISDEMEANORS III. HISTORY, PHILOSOPHY, AND MODERN DEVELOPMENT OF STRICT LIABILITY A. Mens Rea B. Strict Liability Fills Enforcement Gaps Left by Requirement of Mens Rea C. Strict Liability Is Not Another Name for Negligence D. Strict Liability Does Have Limits E. Foreseeability Has Limited Application to Strict Liability F. Strict Liability in the Environmental Context IV. THE LATEST APPELLATE CASE TO ADDRESS MBTA LIABILITY V. RECOMMENDATIONS FOR THE MBTA's ENFORCEMENT FUTURE VI. CONCLUSION I. INTRODUCTION

   Hemisphere solidarity is new among statesmen, but not among the feathered navies of the sky.--Aldo Leopold (1)

   I realized that if I had to choose, I would rather have birds than airplanes.--Charles A. Lindbergh (2)

   Birds should be saved because of utilitarian reasons; and, moreover, they should be saved because of reasons unconnected with any return in dollars and cents.... [T]o lose the chance to see frigate-birds soaring in circles above the storm, or a file of pelicans winging their way homeward across the crimson afterglow of the sunset, or a myriad terns flashing in the bright light of midday as they hover in a shifting maze above the beach--why, the loss is like the loss of a gallery of the masterpieces of the artists of old time. --Theodore Roosevelt (3)

   There is a constant tension in all areas of wildlife regulation. On the one hand is the somewhat understandable prioritization of a modern lifestyle and comforts over the protection of creatures we barely understand. On the other hand we have our highly disciplined legislative choices made long ago, at a time when the political climate and economic needs were somewhat different than they are today. Why should a little fish nobody previously knew existed halt completion of a major dam project on which millions of dollars have already been spent? (4) Who really cares about some irritating fly when there are so many people crammed into southern California and desperate for more living space? (5) Thankfully, with the development of the relatively new scientific field of conservation biology, we are beginning to understand the importance of keeping every cog in the wheel, but because not everyone is onboard, strict protective laws remain essential.

   The focus of this symposium is on migratory birds in particular, so the policy question is narrower. To what lengths must we go to avoid harming migratory birds, and how much must be sacrificed for each handful of bird deaths prevented? Further, and of particular relevance to this Article: How much research must we do, individually and proactively, on the potential risks we create for migratory birds? How much can we be expected to anticipate? Are some of us burdened with a greater responsibility than others to learn about migratory birds and their habits? My answer, which this Article endeavors to support, is that those who present a greater risk than that posed by the average member of the public should be held to a higher duty. When it comes to commercial activity, regulation is to be expected. The strict liability offenses found in the Migratory Bird Treaty Act (MBTA) (6) should be enforced with the purest form of strict liability when dealing with industrial harms.

   Part II of this Article will establish, as a preliminary matter, that there is no remaining question that the misdemeanor offenses in the MBTA are to be enforced with strict liability. Part III will review strict liability itself in an effort to determine how it is to be applied, both as a policy matter and in preserving due process. This Part will follow the progression of the standard from its roots into the modern realm of environmental offenses, an area in which it arguably fits best. Part IV focuses on a particularly disconcerting recent case out of the Tenth Circuit, United States v. Apollo Energies, Inc. (7) The criticism contained in the same Part is due both because the case creates bad law and because it has arguably taken over the position as the definitive authority on the application of the MBTA's strict liability standard. Finally, what we can glean from the state of case law in this area is that we absolutely must sort through the possible applications of the statute and derive a sensible and relatively uniform system to make it work as strongly as possible without offending due process. Part V proposes such a plan.

2. STRICT LIABILITY IS FIRMLY ESTABLISHED FOR MBTA MISDEMEANORS

   While the initial matter of establishing that the MBTA imposes strict liability for its misdemeanor offenses is an important one, it is also one that can be achieved quickly. There is little controversy on this issue. The MBTA began as a purely strict liability statute, but was later amended to add a mens rea requirement for its felony provisions. (8) It now distinguishes between misdemeanors and felonies in its penalty provisions as follows:

   (a) Except as otherwise provided in this section, any person, association, partnership, or corporation who shall violate any provisions of said conventions or of this subchapter, or who shall violate or fail to comply with any regulation made pursuant to this subchapter shall be deemed guilty of a misdemeanor and upon conviction thereof shall be fined not more than $15,000 or be imprisoned not more than six months, or both.

   (b) Whoever, in violation of this subchapter, shall knowingly--

   (1) take by any manner whatsoever any migratory bird with intent to sell, offer to sell, barter or offer to barter such bird, or

   (2) sell, offer for sale, barter or offer to barter, any migratory bird shall be guilty of a felony and shall be fined not more than $2,000 or imprisoned not more than two years, or both. (9)

   In the 1986 amendments requiring mens rea for felony violations, Congress added the above-cited "knowingly" to section 707(b) (10) after a case found the felony provisions in the MBTA unconstitutional, (11) even though strict liability felonies had been upheld in other contexts. (12) In response to remaining concerns about strict liability in certain special circumstances, Congress further amended the MBTA to make it unlawful to hunt over baited fields where "the person knows or reasonably should know that" he or she is hunting over baited fields. (13)

   Throughout the several occasions that Congress amended the mens rea requirements under the MBTA, and in spite of the clear trend of such amendments chipping away at strict liability, it repeatedly left general misdemeanor violations alone. When adding the term "knowingly" to section 707(b), Congress left section 707(a) without it. (14) This was no accident, as the legislative history of the amendment makes clear: "Nothing in this amendment is intended to alter the 'strict liability' standard for misdemeanor prosecutions under 16 U.S.C. 707(a), a standard which has been upheld in many Federal court decisions." (15) The vast majority of courts addressing the issue have upheld strict liability as the correct standard for MBTA misdemeanors. (16) What is less consistent, however, is how to apply this standard. That, of course, is the main concern of this Article.

3. HISTORY, PHILOSOPHY, AND MODERN DEVELOPMENT OF STRICT LIABILITY

   Before we can take a meaningful look at the methods courts are using in applying the strict liability standard under the MBTA, it is necessary to understand strict liability in general. It is my position that strict liability has recently been applied differently in the MBTA context--erroneously--so I must begin with a proper investigation into that from which it differs.

   1. Mens Rea

      Actus non facit reum nisi mens sit rea. (17)

      The association between criminal liability and a guilty mind goes back many centuries--at least to the thirteenth century and possibly several earlier than that. (18) Blackstone commented that "to constitute a crime against human laws, there must be, first, a vi[c]ious will." (19) Some would even say that the mental element has been relevant in criminal law from "time immemorial." (20) That said, many historians do not believe that there was always a mental element to criminal laws, but rather hold that it was the church that injected this form of morality into what had previously been merely about causing harm to society, arguing that the church's addition was in part based on a theory of vengeance. (21) But from a utilitarian standpoint, which arguably is the societally stronger basis for policy, vengeance is of only little value, and only to the few who have directly suffered at the criminal's hands.

      What we need most, in order to be capable of living among so many millions of others who are not necessarily concerned with our best interests, is deterrence. Of course, there is a place for mens rea in this deterrent ideal. It is easiest to deter that which is done intentionally. (22) When an individual has a criminal plan or purpose, and assuming he is among those who are capable of weighing the costs and benefits of proceeding with their evil plans, it is quite easy for him to combine the variables of punishment and likelihood of capture to weigh against the achievement of the wrongful goal. (23) This cost benefit analysis is at the heart of the deterrent goal of criminal law, and is most accessible to those who know that what they are about to do is wrong. (24)

      That said, and while we cannot have proper vengeance without mens rea, there will be times when certain, otherwise innocent, behaviors will need to be regulated, both to achieve uniformity where needed and to reduce the risks the behaviors may create. The question is: can deterrence be accomplished without mens tea? It is my position that it can, that some choices and involvements come with heightened duties of care, and that ignorance of the risks created is itself a behavior that can be deterred. Ignorance is the antithesis of mens rea, but where one is in a special position to prevent...