Please enable JavaScript.

Coggle requires JavaScript to display documents.

Is the MBTA limited to intentional taking or does it also prohibit…

- - - - Narrowed by Environmental Law Filter
        
        6 cases
        Dead End Nothing Great
    - - Same Filters as above got 16 cases
        
        Friends of Boundary, Mountains v. U.S. Army Corps of Engineers, 24 F. Supp. 3d 105 (D. Me. 2014)
        I chose this case because it was Maine district court which is within the 1st district with New Hampshire. Although it is not binding, I feel that it would be highly persuasive.
        
        So It was somewhat helpful in addressing the permit situation similar to our case. ALSO had a really specific KeyCite dealing with permits I want to check out.
        KeyCite 149Ek535 & 149Ek536 Public Plans, Projects, and Approvals; Agency Action
        
        Whether Defendant's construction of wind-power generation activity ever will be conditioned on the issuance of a MBTA take permit is a matter for FWS to consider. The Corps was not required to make an independent assessment of the appropriateness of a MBTA take permit in connection with its review of a CWA.
        
        Federal agencies are not required to obtain a permit before acting in a regulatory capacity to authorize activity, such as development of a wind-energy facility, that may incidentally harm protected birds.
        
        Plaintiff's claim also fails because the Corps has satisfied its obligation under the CWA to consider wildlife values as part of its permit review process, including the wildlife values protected by the MBTA.
        
        Friends of Boundary case cited the case below for their decision. I thought I would take a look.
        
        Protect Our Communities Found. v. Jewell, 825 F.3d 571 (9th Cir. 2016)
        KeyCIte 149Ek689 Assessments and Impact Statements
        Not a Super helpful case, mostly mentioned that an Agency such as the BLM that regulates the land that the energy company wanted to place its turbines on cannot be held liable by the MBTA for ant takings by the Energy company.
        
        Checked out "Citing References "Led to a case that states the opposite holding of Friends of Boundary by stating that federal agencies must obtain a permit before any type of "taking" of MBTA protected birds.
        Humane Soc. of the U.S. v. Glickman, 217 F.3d 882 (D.C. Cir. 2000)
        
        Wanting to find out more about the court's views on whether federal agencies need to have a permit for taking I followed the case cited in the text of Glickman
        Sierra Club v. Martin, 110 F.3d 1551 (11th Cir. 1997)
        
        1 more item...
        
        This case similar to ours dealt with the impact of the endangered bird's habitat as well as the turbine. In this case the Corps did a similar impact analysis and found that their impact of 45 acres of protected land would not unduly impact the forest community of the Bicknell's Thrush. The Plaintiff maintained that the FWS has primary authority under the MBTA to address this particular concern for the migratory Bicknell's thrush and the corp assigned insufficient weight to the evidence that they could harm protected birds.
        
        The court determined that the issue isn't whether the Corps assigned enough weight the issue was whether the decision is supported by the substantial evidence on the record. Which the Corps supplied and showed that their permitting decision was not arbitrary or capricious.
- - - - Filter Search: Windmill! OR Turbin!
        
        103 Sources
        
        Martha G. Vázquez, Clipping the Wings of Industry: Uncertainty in Interpretation and Enforcement of the Migratory Bird Treaty Act, 74 Wash. & Lee L. Rev. Online 281, 282 (2018)
        I chose this one in particular because it was the most recently published, the law school it came from it highly ranked, on its surface of skimming I was getting a persuasive "feel" but not a straight biased feel, and she cited 26 authorities for the article.
        These cases I found within the text and the footnotes
        
        U.S. v. Apollo Energies, Inc., 611 F.3d 679 (10th Cir. 2010)
        
        U.S. v. Apollo Energies, Inc., 611 F.3d 679 (10th Cir. 2010) Holding:
        
        Misdemeanor violation of the MBTA for taking or killing of migratory birds was a strict liability crime.
        
        Defendant did not have notice that heater-treaters used in oil industry could kill birds prior to conviction;
        
        The MBTA was not Unconstitutionally Vague.
        
        This case although not binding could be used as persuasive by the opposing party. It would be good to note this in the brief as a potential weakness of our case. And find ways to distinguish it from our case to show the differences. However, it is foreseeable and has been noted on the foreseeability of the death of birds in our case.
        
        In the opinion, the Tenth Circuit relied on the notion of proximate cause to cabin the possible absurd results that could occur by applying strict liability to even incidental take, and the potential resulting due process concern. The court noted that
        Central to all of the Supreme Court's cases on the due process constraints on criminal statutes is foreseeability--whether it is framed as a constitutional constraint on causation and mental state, or whether it is framed as a presumption in statutory construction. When the MBTA is stretched to criminalize predicate acts that could not have been reasonably foreseen to result in a proscribed effect on birds, the statute reaches its constitutional breaking point.
        
        HIghlights of this case: (1) Even w/o intent industrial activity that kills the migratory birds violates the MBTA. (2) Knowing of the danger to the birds and Failure to mitigate the danger allowed Apollos conviction to stick. (3) Strict liability interpretation of the MBTA for incidental taking can be satisfied if the defendants proximately caused hard to protected birds.
        
        U.S. v. CITGO Petroleum Corp., 801 F.3d 477 (5th Cir. 2015)
        
        Holding of the 5th Circuit Court Of Appeals in Citago
        
        A “taking” of migratory birds, within meaning MBTA, is limited to deliberate acts done directly and intentionally to migratory birds; and
        
        Commercial activity that unintentionally and indirectly caused migratory bird deaths was not a “taking” of migratory birds under MBTA.
        The highlights of this case: (1)Define the word "take" under its intended meaning by the statute drafters, (2) Focus on the actus reus element in a strict liability crime.
        
        KeyCite 149Ek749 Plants and Wildlife; Endangered Species
        KeyCite 149Ek529 "Taking" or Harming Wildlife
        KeyCite 362k1384 Common or Civil Law
        
        The 5th Circuit declined to follow the district court's interpretation of the statute. Preferring a broad, counter textual reading of the MBTA. To reach this conclusion, the court looked at the historical context of the MBTA, its common law origin, its text, and a comparison with other relevant statutes. These canons of statutory construction convinced the court that the word “take” maintained its common law meaning in the MBTA: “As applied to wildlife, to ‘take’ is to ‘reduce those animals, by killing or capturing, to human control.”’
        
        More fundamentally, the 5th circuit disagreed that because misdemeanor MBTA violations are strict liability crimes, a “take” includes acts (or omissions) that indirectly or accidentally kill migratory birds.
        These and like decisions confuse the mens rea and the actus 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 committed the act voluntarily.
        WAYNE R. LAFAVE, CRIMINAL LAW § 5.2(e) (5th ed.2010). “To some extent, then, all crimes of affirmative action require something in the way of a mental element—at least an intention to make the bodily movement that constitutes that act which the crime requires.” Id.
        
        Here, that act is “to take” which, even without a mens rea, is not something that is done unknowingly or involuntarily. Accordingly, requiring defendants, as an element of an MBTA misdemeanor crime, to take an affirmative action to cause migratory bird deaths is consistent with the imposition of strict liability. See, e.g., United States v. Morgan, 311 F.3d 611, 616 (5th Cir.2002).
        
        U.S. v. Brigham Oil and Gas, L.P., 840 F. Supp. 2d 1202 (D.N.D. 2012)
        KeyCite 149Ek749 Plants and Wildlife; Endangered Species
        
        Holding: The District Court held that oil and gas companies' use of reserve pits did not violate Migratory Bird Treaty Act's prohibition against taking of protected birds, since death or injury was not intentional.
        
        To criminalize lawful commercial activity conducted in the oil fields of North Dakota, which may indirectly effect migratory birds, was never contemplated under the Migratory Bird Treaty Act enacted by Congress in 1918. The Court concludes, as a matter of law, that lawful commercial activity which may indirectly cause the death of migratory birds does not constitute a federal crime.
        
        Headnote 8 The ordinary meaning of the word “take,” when applied to wildlife, for purposes of Migratory Bird Treaty Act, refers to a purposeful attempt to possess wildlife through capture, not incidental or accidental taking through lawful commercial activity.
        Headnote 10 Oil and gas companies' use of reserve pits to contain drill cuttings and oil and gas fluids accumulated during commercial drilling operations did not violate Migratory Bird Treaty Act's (MBTA) prohibition against “killing” or “taking” of protected migratory birds, even though death of several birds had occurred in or near the pits, since the pits were not directed at birds or their habitat, and constituted commercial activity that only incidentally injured protected species.
        
        The Migratory Bird Treaty Act does not define the term “take.” In the absence of a statutory definition, courts construe a term according to its ordinary meaning. See United States v. Parker, 267 F.3d 839, 847 (8th Cir.2001), cert. denied, 535 U.S. 1011, 122 S.Ct. 1592, 152 L.Ed.2d 509 (2002). The ordinary meaning of the word “take,” when applied to wildlife, denotes intentionally reducing the wildlife to possession.
        
        This case opinion mentioned the Fish and Wildlife Service report on avian mortality. I followed the in-text citation which led me to the U.S. Fish & Wildlife Service Sheet on Bird Mortality (2002) Migratory Bird Mortality
        
        Most Common Causes of Death:
        
        Collisions
        
        Building Windows (97-976 Million deaths Annually)
        Cars: (60 Million)
        Communication Towers (est. 40-50 Million)
        Wind Turbines (est. 33,000 Annually)
        
        Poisoning (est. 72 Million)
        
        Oil & Wastewater Pits (2 million)
        
        Cats in WI alone (39 million)
        
        Newton County Wildlife Ass'n v. U.S. Forest Serv., 113 F.3d 110 (8th Cir. 1997)
        held that: (1) Service was not required to suspend implementation of timber sales due to failure to complete WSRA plans on time; (2) Administrative Procedure Act (APA) did not confer jurisdiction to grant injunctive relief, under MBTA, against timber sales which Service approved under National Forest Management Act (NFMA); and (3) timber sales did not violate MBTA, even if Service did not obtain permit under Fish and Wildlife Service regulations implementing MBTA.
- - - - TOC at bottom of page
        
        Section 705 (this section defined the taking and killing of migratory birds.)
        
        Context & Analysis Tab
        
        I felt like here I could find cases and secondary sources that would reference section 703 of the statute.
        
        Narrowed to ALRs
        
        3 A.L.R. Fed. 2d 465 (Originally published in 2005)
        Validity, Construction, and Application of Migratory Bird Treaty Act, 16 U.S.C.A. §§ 703 to 712, and its Implementing Regulations
        
        I went through the outline and found section 24 Restriction to direct or intentional taking or killing of birds- Act limited to direct taking or killing.
        (this section laid out a couple of cases that paralleled ours in trying to differentiate b/w intentional taking and indirect harm)
        
        1 more item...