In a previous report, we discussed United States v. Brigham Oil & Gas, L.P.,[1] where the court dismissed several misdemeanor charges under the MBTA against three oil and gas companies that conducted drilling operations in North Dakota, because the underlying activities were lawful, commercial activities. In United States v. CITGO Petroleum Corp., however, a district court in Texas recently distinguished Brigham Oil and denied a motion to dismiss a conviction under the MBTA.[2] Noting that the defendant was “aware that [protected birds were dying in its oil tanks] for years and did nothing to stop it” and the defendant’s activities were otherwise violating the Clean Air Act, the CITGO court followed the Tenth Circuit’s broader “proximate cause” requirement for imposing MBTA strict liability — i.e., a violation of the MBTA exists when the death of a migratory bird is a “reasonably anticipated or foreseeable consequence of” the underlying activity or the defendant otherwise had notice of the impropriety of the conduct at issue[3] —  and affirmed the conviction. In doing so, the CITGO court broke from its sister court’s opinion in United States v. Chevron[4] and injected further uncertainty regarding the application of the MBTA, not only in the Fifth Circuit but also across the United States.