The Fifth Circuit’s Migratory Bird Treaty Act decision in Citgo has broad implications for the U.S. Fish & Wildlife Service’s enforcement and permitting programs

The Court of Appeals for the Fifth Circuit reversed Citgo Petroleum Corporation’s criminal conviction in the Southern District of Texas and held that the Migratory Bird Treaty Act’s (MBTA) ban on bird “takings” only prohibits intentional acts that directly kill migratory birds. In addition to the operation of oil and gas facilities, the Fifth Circuit specifically called out the operation of communication towers, wind turbines, and solar energy farms that may result in the death of MBTA-protected birds as acts that are not prohibited by the statute. As noted in an interview with a Hogan Lovells attorney reported in Law360, this decision will have far-reaching implications for the U.S. Fish & Wildlife Service’s enforcement and migratory bird permitting programs. Implications for the Service’s enforcement program The Service has long asserted that offenses under the MBTA are “strict liability” crimes for which no knowledge or intent is required. In the Land-based Wind Energy Guidelines, the Service put it like this: “actions resulting in a ‘taking’ of possession (permanent or temporary) of a protected species, in the absence of a Service permit or regulatory authorization, are a violation of the MBTA.” In the Wind Turbine Advisory Committee proceedings that resulted in the Guidelines, the Service’s Office of Law Enforcement recognized that the bird strikes that caused U.S. Airways Flight 1549 to crash in the Hudson River in 2009 was a crime subject to law enforcement. The Office stated publicly that only the Service’s enforcement discretion saved the airline—and perhaps the hero of the day, Captain Sullenberger—from misdemeanor criminal charges. The Fifth Circuit’s opinion described this kind of enforcement overreach as “capricious,” “harsh,” and “absurd.” The Service has, of course, had some success in advancing its interpretation of the statute, particularly in the Apollo Energies case in the Tenth Circuit. Nevertheless, the strength of the Fifth Circuit’s decision in Citgo and its rejection of the reasoning in Apollo Energies should cause the Service to reevaluate its MBTA enforcement initiative. Perhaps the United States will file a petition for certiorari based on the circuit split; perhaps the Service will try its luck as described below in a rulemaking instead. At the very least, targets of criminal investigations outside the Tenth Circuit should understand Citgo as substantially improving their chances of avoiding a conviction for unintentional deaths of birds at their facilities. Implications for the Service’s MBTA incidental take permit program The Service has published a notice of intent to prepare a programmatic environmental impact statement in support of a new incidental take permit program under the MBTA. The central premise of an MBTA ITP rule is that there are widespread, unlawful “takings” of MBTA-protected birds for which take permits are required. Not so in the Fifth Circuit (and almost certainly the Eighth and Ninth Circuits as well). With such a profound split in the Courts of Appeals over whether unintentional killings of birds is a covered offense, the Service will have a difficult time imposing a rule of nationwide applicability that is directly contrary to the rulings of several Courts of Appeals. The Service may decide to double down and promulgate an ITP rule that runs counter to these Courts of Appeals, and hope that another circuit will support its intent to—as the Fifth Circuit put it—“prosecute at will and even capriciously.” We will see.  

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