United States v. Brigham Oil and Gas, L. P., Newfield Production Company, and Continental Resources, Inc.

The Migratory Bird Treaty Act covers more than 800 types of birds, including pigeons, sparrows and crows. The MBTA is a criminal statute, enacted in 1918, and amended from time to time. Section 703 of the Act makes it a crime to ‘take’ protected birds, a very large group of species, which are identified at 50 CFR Section 10.13, without regard to the species' rarity or viability (in contrast to bird species protected under the federal Endangered Species Act and equivalent state statutes as endangered or threatened). While the Act does not define “take,” the rules implementing the Act define the term as conduct in which a person “pursues, hunts, shoots, wounds, kills, traps, captures or collects.” See 50 CFR Section 10.12. Violations of the law have been consistently construed to be strict liability crimes, meaning that no criminal intent or mens rea must be proven to obtain a misdemeanor conviction. Brigham, Newfield and Continental were accused of causing the deaths of six ducks and one say's phoebe, a tiny, rust-bellied songbird. The criminal information alleged that the migratory birds were illegally “taken” by these defendants when the bodies of the birds were discovered at or near the reserve pits, which are used to store, on a temporary basis, the drilling muds and other chemicals used in the drilling of these wells. The court noted that the information complaints were lacking the required specificity and were subject to dismissal for failure to properly state an offense. The issue for the North Dakota court was whether the concept of “take” could be extended to the normal operation of a regulated commercial activity, i.e., the use of oil reserve pits. The court held that lawful commercial activity that is not directed at hunting or poaching and has only incidental or unintended consequences to protected migratory birds, cannot be prosecuted under the MBTA. The deaths of the birds, which mistook the pits in North Dakota for water ponds and were covered in oil waste, were an "incidental or unintended effect" of oil production and could not be compared to hunting or poaching. Accordingly, the court dismissed the misdemeanor criminal information complaints, holding “as a matter of law, that lawful commercial activity which may indirectly cause the death of migratory birds does not constitute a federal crime.”