Prohibiting conduct, not consequences: the limited reach of the Migratory Bird Treaty Act.

• Author: Means, Benjamin

"Nobody is trying to do anything here except to keep pothunters from killing game out of season...."(1) INTRODUCTION

Dissatisfied with the protection afforded wildlife by more recent environmental laws, some environmentalists seek to reinterpret one of the oldest federal environmental laws, the Migratory Bird Treaty Act (MBTA).(2) Long understood simply to regulate hunting,(3) the MBTA makes it illegal to "take" or "kill" migratory birds without a permit.(4) The MBTA imposes strict liability for a violation.(5)

A heady combination of strict liability, criminal penalty provisions, and vague language, the MBTA appeals to those seeking to control land use activity.(6) Some environmentalists advocate an interpretation of the MBTA that, contrary to legislative intent and 80 years of enforcement practice, would make any activity resulting in the death of migratory birds a violation of the MBTA, regardless of whether the defendants directed their activity at wildlife.(7) This Note argues, however, that the MBTA covers only activity that is directed at wildlife, and that absent such purposive conduct, no violation exists.(8)

Extending the MBTA's reach beyond activity directed at wildlife would hamper normal land use activities that often result in bird death -- such as farming, timber harvesting, and brush clearing -- because causing the death of almost any bird would amount to a violation of the law. Migratory birds include "many of the most numerous and least endangered species one can imagine."(9) Almost all species of North American birds, including crows, grackles, and pigeons, are listed by the Interior Department as migratory birds.(10) No de minimis exception appears to apply, because the MBTA makes unlawful the taking of a single migratory bird.(11)

Courts disagree about the breadth of the MBTA. Some have read the MBTA broadly and held that it can reach accidental bird death.(12) The Second Circuit, for example, held that a defendant's inadvertent contamination of ground water (which poisoned migratory birds) violated the MBTA.(13) Recently, other courts have read the MBTA more narrowly, confining it to the regulation of hunting.(14) The Eighth Circuit, for instance, held that bird death resulting from timber harvesting did not violate the MBTA because "it would stretch this 1918 statute far beyond the bounds of reason to construe it as an absolute criminal prohibition on conduct, such as timber harvesting, that indirectly results in the death of migratory birds."(15)

This Note argues that the MBTA applies only to activities directed at wildlife. Part I contends that the language and legislative history of the statute show that Congress intended a narrow reading of the MBTA. Part II demonstrates that, if construed broadly, the MBTA would become a criminal law of disturbing breadth, and that the limiting principles that have been suggested -- prosecutorial discretion, extra-hazardous materials, and permit schemes -- all suffer from fatal flaws. Part III argues that sound environmental policy for migratory birds can be achieved without an expanded reading of the MBTA.

1. LANGUAGE AND LEGISLATIVE INTENT

   This Part contends that well-accepted principles of statutory interpretation(16) require a narrow construction of the MBTA. Section I.A argues that the language of the statute and of its accompanying regulations covers only activities directed at wildlife. Section I.B argues that the MBTA's legislative history further demonstrates that Congress did not intend the MBTA to reach accidental bird deaths.

   1. The Language and Regulations

      Statutory interpretation begins with the language of a statute,(17) and the plain language of the MBTA indicates that Congress meant only to regulate activity directed at wildlife. The MBTA specifies that, "[u]nless and except as permitted by regulations ... it shall be unlawful at any time, by any means or in any manner, to pursue, hunt, take, capture, kill, [or] attempt to take ... any migratory bird...."(18) Words like "hunt" and "pursue" clearly require conduct undertaken with the purpose of harming wildlife, and so the debate over the MBTA has largely focused on the meaning of the words "take" and "kill."(19)

      Section I.A.1 concentrates on the words "take" and "kill," the statutory language relied upon by the proponents of an expanded MBTA, and shows that the words actually support a narrow interpretation of the MBTA. Section I.A.2 demonstrates that the statutory context of "take" and "kill" resolves any lingering ambiguity in favor of a narrow interpretation. In particular, section I.A.2 contends that the surrounding statutory language -- "pursue," "hunt," "capture," "attempt to take" -- evinces congressional intent to prohibit only activity directed at wildlife.

      1. Take and Kill

         The ordinary meaning of the word "take," when applied to wildlife, denotes intentionally reducing the wildlife to possession. Webster's Third New International Dictionary defines "take" as "to get into one's hands or into one's possession, power, or control by force or stratagem: ... to get possession of (as fish or game) by killing or capturing...."(20) This definition makes the intent to possess central. When migratory birds die as a consequence of activity not directed at them, as in crop harvesting, no one reduces the birds to possession, nor does anyone attempt to possess them.

         The regulatory definition of "take" accompanying the MBTA does not contradict the ordinary meaning of the word found in Webster's. According to the accompanying regulations, which recapitulate much of the language of the MBTA itself, "[t]ake means to pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to pursue, hunt, shoot, wound, kill, trap, capture, or collect."(21) The additional action words in the regulation's definition of "take" -- "shoot," "wound," "trap," and "collect" -- help confirm that the meaning of "take" should be confined to activity directed at wildlife.(22) It does not make sense to say that one "traps" or "collects" wildlife accidentally. "Shoot" also seems strongly associated with hunting, and "wound," if not restricted to activity directed at wildlife, would make the MBTA absurdly broad.(23)

         The MBTA's narrow version of "take" becomes clearer when contrasted with the definition of "take" found in the Endangered Species Act (ESA).(24) AS defined in the ESA, "'take' means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect...."(25) The accompanying regulations define "harm" to "include significant habitat modification or degradation where it actually kills or injures wildlife."(26) If Congress had wanted to include similarly broad language in the MBTA, it could have done so. As one circuit court observed, that Congress did not add broadening words such as "harass" and "harm" to the MBTA shows that the difference between the two laws is "distinct and purposeful."(27)

         "Kill" is less a term of art in wildlife law than "take," and its scope depends upon statutory context. The dictionary definition does not advance the analysis. "Kill," according to Webster's Third New International Dictionary, means, "to deprive of life: put to death: cause the death of."(28) Whatever its potential scope, in the context of the MBTA the better reading of "kill" requires activity directed at wildlife.

         The regulations accompanying the MBTA focus exclusively on "take" and thereby avoid the potential for ambiguity in "kill." The regulations relegate "kill" to the chain of words used to define "take,"(29) rely solely on the word "take" to describe the permit process,(30) and never even bother to define "kill." Whatever independent meaning "kill" might retain in the statute -- despite its subordination to "take" in the regulations -- statutory context sharply limits both "kill" and "take."

      2. Context of Take and Kill

         The statutory context further demonstrates that "take" and "kill" refer to purposive conduct. Courts may not ignore the context of statutory language.(31) In the MBTA, the words "take" and "kill" are in part defined by the words that surround them. Because all of the words of prohibition in the statute except "take" and "kill" exclusively denote activity directed at migratory birds,(32) it would be logical to assume that "take" and "kill" have a similar meaning -- a logic embodied in the principle of noscitur a sociis.(33) If a party invitation said, "bring your own beer, whiskey, or other poison," it would be unmistakably clear that "poison" meant an alcoholic beverage of only normal toxicity. Such is the case here. Even though it is possible to read "take" and "kill" in a more expansive manner, courts may not ignore the language accompanying those words and defy the statute's obvious purpose.

         The MBTA's prohibition of attempts(34) also suggests that the law is aimed at purposive conduct; one cannot unintentionally attempt to take a bird. It would strain the statutory language and defy common sense to assert that one can be guilty of an attempt for any activity, that, if completed, would cause the death of migratory birds. One hunts birds with the hope and expectation of killing them. Hunters then are at least aware that they may violate the MBTA if they do not carefully follow hunting regulations.(35)

         The words "take" and "kill" follow the phrase "by any means or in any manner"(36) and must be read in conjunction with it. The very expansiveness of the phrase, however, cuts against a broad reading of "take" and "kill." If "take" and "kill" include any activity that results in bird death, despite lack of purpose, then "by any means or in any manner" operates to ban ordinary activities to the point of absurdity. Even if the plain meaning of the statute suggested such breadth, it would not control.(37)

         Moreover, the broad interpretation would criminalize certain everyday behavior, and the Supreme Court recognizes a strong presumption against criminalizing ordinary...