On Friday, 4 September, 2015, the Court of Appeals for the Fifth Circuit reversed Citgo Petroleum Corporation’s 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. The MBTA does not apply to omissions, or incidental, direct, or accidental takings. The decision puts the Fifth Circuit in line with the Eighth and Ninth Circuits, which have previously held that MBTA “takings” are limited to deliberate acts. The Second and Tenth Circuits are on the other side of the circuit split and have interpreted the MBTA to be a strict liability offense that applies to incidental, passive takings.
In 2007, Citgo and a subsidiary were charged with criminal violations of the MBTA and the Clean Air Act for operating uncovered oil tanks at a Corpus Christi, Texas refinery. The MBTA counts alleged that migratory birds had died in the open air tanks. The government argued, and the trial court found, that the MBTA was a strict liability offense and required only that the defendant proximately caused the “taking.” The trial court also found that a violation of state or federal regulations that required roofing on the tanks was sufficient to support MBTA convictions. Citgo was convicted at trial and appealed to the Court of Appeals.
The Fifth Circuit reversed the convictions and determined, based upon its analysis of the MBTA’s statutory text, its common law origin, and a comparison to other relevant statutes, that MBTA “takings” are limited to “deliberate acts done directly and intentionally to migratory birds.” The Court of Appeals found that the term “take” is “as old as law itself.” “As applied to birds and other wildlife,” the Fifth Circuit said, “to ‘take’ is to reduce those animals, by killing or capturing, to human control. One does not reduce an animal to human control accidentally or by omission; he does so affirmatively.”         
The Fifth Circuit also vigorously disagreed with the Second and Tenth Circuits, calling their decisions “broad, counter-textual” readings of the MBTA. “More fundamentally,” the Fifth Circuit said, “[t]hese and like decisions confuse the mens rea and theactus reus requirements. Strict liability crimes dispense with the first requirement; the government need not prove the defendant had any criminal intent. But a defendant must still commit the act to be liable. Further, criminal law requires that the defendant commit the act voluntarily… Here, that act is ‘to take’ which, even without a mens rea, is not something that is done unknowingly or involuntarily.”
The Court of Appeals noted the broad and overreaching consequences that could result if it adopted the government’s preferred interpretation of the MBTA. The court found that between 97 and 976 million birds are killed annually by running into windows, communication towers kill 4 – 5 million birds per year, and “domesticated cats are serial violators of the MBTA.” “[I]f the MBTA prohibits all acts or omissions that ‘directly’ kill birds, where bird deaths are ‘foreseeable,’” the Fifth Circuit said, “then all owners of big windows, communication towers, wind turbines, solar energy farms, cars, cats, and even church steeples may be found guilty of violating the MBTA. This scope of strict criminal liability would enable the government to prosecute at will and even capriciously… The absurd results that the government’s interpretation would cause further bolsters our confidence that Congress intended to incorporate the common-law definition of ‘take’ in the MBTA.”
The case is United States v. Citgo Petroleum Corp. et al., case number 14-40128, U.S. Court of Appeals for the Fifth Circuit.