In September 2015, the US Court of Appeals for the Fifth Circuit reversed the convictions of two Citgo entities under the Migratory Bird Treaty Act (MBTA), holding that “incidental” migratory bird take does not trigger liability under the MBTA.  United States v. Citgo Petroleum Corp., No. 14-40128 (5th Cir. Sept. 4, 2015).  The decision has important implications for US Fish and Wildlife Service (FWS) policy nationwide, including the announcement this year that the agency is considering updating its permitting system to allow unintentional impacts to migratory birds.

The MBTA is a criminal statute that prohibits the take of more than 1,000 species of birds.  The MBTA declares it criminally unlawful “at any time, by any means or in any manner to pursue, hunt, take, capture, kill, attempt to take, capture, or kill, or possess . . . any migratory bird, any part, nest, or egg of any such bird.” 16 U.S.C. § 703(a).  Citgo’s MBTA convictions were based on the death of 35 protected birds in two uncovered tanks at Citgo’s refinery in Texas.  In overturning the convictions, the Fifth Circuit held that the MBTA only prohibits “intentional acts” that directly kill migratory birds.  The court held that even under a strict liability standard, the government must prove an affirmative act to “take” birds.  The court thus rejected prior decisions that the MBTA prohibits accidental bird deaths.

The Fifth Circuit’s decision could significantly impact FWS’s MBTA policies and program, which currently are based on the prohibition of incidental take under the Act.  For example, the ruling calls into question FWS’s proposed development of an incidental take permitting program under the MBTA.  As noted in our prior article, FWS announced in May 2015 that it intends to prepare an environmental impact statement (EIS) to evaluate a permitting program authorizing incidental take under the MBTA.  By holding that incidental take is not prohibited under the MBTA, the Fifth Circuit’s decision calls into question the basis for an MBTA permitting program.  We will continue to monitor developments under the MBTA, including whether FWS continues its plans to pursue an MBTA permitting program.