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United States v. Apollo Energies, Inc.

ELR Citation: 40 ELR 20176
Nos. Nos. 09-3037, -3038, (10th Cir., 06/30/2010)

The Tenth Circuit held that the Migratory Bird Treaty Act (MBTA) applies a strict liability standard to the taking or killing of migratory birds but that it requires a defendant to proximately cause the statute's violation for the statute to pass constitutional muster. The case arose when two oil drilling operators were convicted after dead migratory birds were discovered lodged in a piece of oil drilling equipment known as a "heater-treater." A federal district court affirmed the convictions, concluding that violations of §703 of the MBTA are strict liability offenses, which do not require that defendants knowingly or intentionally violate the law. As a matter of statutory construction, the "take" provision of the Act does not contain a scienter requirement. But 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. Here, the record shows one of the operators had notice of the heater-treater problem for nearly a year-and-a-half before the bird death resulting in its conviction. But the second operator did not learn of the problem until April 2007. Accordingly, the second operator cannot be convicted for violations prior to that date. The court, therefore, affirmed in part and reversed in part the convictions.