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Wednesday, January 31 • 10:40am - 11:00am
CONSERVATION COLLABORATION & GENERAL WILDLIFE: A Bird in the Hand: Shotguns, Deadly Oil Pits, Cute Kittens, and the Migratory Bird Treaty Act

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AUTHORS. Samuel Panarella, University of Montana School of Law

ABSTRACT. The Migratory Bird Treaty Act (MBTA), one of the oldest federal wildlife protection laws, led a quiet existence for much of its life. But it recently has been the focus of an intense debate between industry and bird advocacy groups about whether its strict liability penalties for killing a protected bird extend to incidental bird takes by otherwise lawful commercial activities. This fundamental question about the MBTA remains unresolved and is the subject of a current circuit split among federal courts of appeal, with some holding the MBTA’s misdemeanor sanctions attach to incidental takes of protected birds and others limiting it to acts intended to kill a migratory bird, such as hunting and poaching. To date, neither Congress nor the Supreme Court have shown any inclination to step in to resolve this dispute, creating an unacceptable level of developmental and operational uncertainty for industries whose commercial activities unintentionally kill birds, such as oil and gas companies and renewable energy developers. The unsettled state of the law surrounding MBTA liability recently made headlines when the 5th Circuit reversed Citgo Petroleum’s MBTA conviction for migratory bird deaths caused by birds landing in its oil pits. This lack of clarity even extends to noncommercial activities such as driving a car or owning a cat, both of which could conceivably result in MBTA prosecution. This presentation will: trace the byzantine reasoning underlying this circuit split; offer a practical solution to resolve it using a category-based approach to MBTA liability by sorting human-caused bird killing activities into three categories; and proposing the appropriate MBTA liability treatment for each category, based on the Act’s original purpose and on our modern understanding of the desirability of balancing critical animal species preservation against necessary industrial activity.

Wednesday January 31, 2018 10:40am - 11:00am CST