United States v. FMC Corp.
Citation: 8 ELR 20326
No. No. 77-1372, 572 F.2d 902/11 ERC 1316/(2d Cir., 02/23/1978)
Imposing strict liability for a violation of the Migratory Bird Treaty Act, the court affirms the conviction of defendant corporation for killing unintentionally 92 migratory birds. Waste water from the corporation's pesticide plant was stored in a large open pond which attracted waterfowl during migration. Because of a faulty treatment system, large amounts of pesticides were unknowingly pumped into the pond, and a number of birds were killed before corrective measures were taken. The Migratory Bird Treaty Act does not require that the prohibited killing be intentional. Hunting cases have not required intent or knowledge for convictions for illegal baiting. The corporation was manufacturing a hazardous pesticide and failed to prevent it from reaching the pond where it was dangerous to birds. Thus, the corporation's activity is encompassed within the Rylands v. Fletcher strict liability rule and the conviction must stand.
Counsel for Plaintiff-Appellee
Kenneth A. Cohen, Ass't U.S. Attorney; Richard J. Arcara, U.S. Attorney
502 U.S. Courthouse, Buffalo NY 14202
Counsel for Defendant-Appellant
Paul H. Zuydhoek
Phillips, Lytle, Hitchcock, Blaine & Huber
3400 Marine Midland Center, Buffalo NY 14203
Moore, J. for himself, Gurfein and Bonsal,* JJ.