On September 4, 2015, the U.S. Court of Appeals for the Fifth Circuit ruled that the Migratory Bird Treaty Act (“MBTA”) only criminalizes acts related to hunting or poaching, not omissions that unintentionally kill birds.  US. V. Citgo Petroleum Corporation, et al., case number No. 14-40128, in the U.S. Court of Appeals for the Fifth Circuit (Louisiana, Mississippi, and Texas).  Looking toward the Eighth and Ninth Circuits that a “taking” is limited to deliberate acts done directly and intentionally to migratory birds, the Fifth Circuit concluded that the MTBA convictions for the death of migratory birds that landed in uncovered tanks must be reversed.  Referring to the common law definition of take, the Court concludes, “one does not reduce an animal to human control accidentally or by omission; he does so affirmatively.” The opinion emphasizes the fact that the MTBA definition of “take” does not include qualifying terms like “harm” or “harass” which would had signaled Congress’ intent of expanding the term to include negligence or unintentional acts.  The Fifth Circuit decision rejects the MTBA decisions rendered by the Second and Tenth Circuits.  The Court distinguishes its opinion from those decisions by emphasizing a review of the definition of “take.”  The reasoning is that to be convicted of a criminal act, there must be an affirmative action not an unknowing or involuntary act.  

Finally, to refine its analysis the Court offers the following, “If the MTBA prohibits all acts or omissions that “directly” kill birds, where bird deaths are “forseeable,” then all owners of big windows, communication towers, wind turbines, solar energy farms, cars, cats, and even church steeples may be found guilty of violating the MTBA….The absurd results that the government’s interpretation would cause further bolters our confidence that Congress intended to incorporate the common-law definition of ‘take’ in the MBTA.”

This decision raises question about the USFWS proposed permitting program of earlier this year in which it issued a Notice of Intent to develop a Programmatic Environmental Impact Statement (PEIS) to evaluate the potential impacts of a proposal to authorize incidental take of migratory birds. 80 Fed. Reg. 30032 (May 26, 2015).  If there is no such thing as an unintentional take,  then the purpose of a permit is questionable.  The USFWS has a couple of options to include continuing with the development of its permitting program and await D.C. Circuit litigation.  At issue also is whether the Service will continue its enforcement efforts under MTBA in those jurisdictions that do not agree with this decisions, those in the Second (Connecticut, New York, and Vermont) and Tenth Circuits (Oklahoma, Kansas, New Mexico, Colorado, Wyoming, and Utah).