Oil and Gas Operations: Migratory Bird Treaty Act: Strict Liability Constitutional Law: Due Process

摘要

Apollo and Walker were separate oil and gas operators. Each conducted operations that used equipment, heater-treaters, to lawfully produce and market oil and gas. In 2005, the U.S. Fish and Wildlife Service learned that birds would become trapped in idle heater-treaters and die. Bird remains were found in about one-half of the heater-treaters inspected. Some of the impacted birds were classified as migratory birds under the Migratory Bird Treaty Act. This discovery prompted the Service to initiate an education program about the threat posed by heater-treaters to migratory birds. After the initial inspections and the education program, the Service commenced enforcing the Act against operators resulting in the prosecution of Apollo and Walker for dead migratory birds found in their heater-treater facilities. The District Court convicted Apollo and Walker of misdemeanor violations of the Act. Held: affirmed in part, reversed in part. On appeal the Tenth Circuit agreed with the District Court that a violation under the Act is a strict liability crime. No scienter, mens tea, or other intent to violate the law is required. Misdemeanor violations under the Act are strict liability crimes. The Act provides it "shall be unlawful" to "take . . . any migratory bird. . .." The term "take" is defined broadly to include "kill." Therefore, even a passive structure or item of equipment that causes the death of a migratory bird will constitute an unlawful "take" and liability. "The question here is whether unprotected oil field equipment can take or kill migratory birds. It is obvious the oil equipment can." 611 F.3d at 686.