U.S. v. Apollo Energies, Inc.

Jun 30: In the U.S. Court of Appeals, Tenth Circuit, Case No. 09-3037. In this case the Appeals Court considers the scope of the Migratory Bird Treaty Act (MBTA or Act). The Act declares it a misdemeanor to "pursue, hunt, take, capture, or kill" birds protected by several international treaties. The MBTA also specifies a maximum penalty of $15,000 and six months in prison for a misdemeanor violation, but does not require any particular mental state or "mens rea" [i.e. guilty mind] to violate the statute. The Appeals Court said, "The question this case presents is whether the MBTA constitutionally can make it a crime to violate its provisions absent knowledge or the intent to do so."

 

    Appellants are two Kansas oil drilling operators who were charged with violating the Act after dead migratory birds were discovered lodged in a piece of their oil drilling equipment called a heater-treater [cylindrical equipment up to 20 feet high and more than three feet wide that separate oil from water when the mixture is pumped from the ground]. After a trial before a magistrate judge, both Apollo Energies and Dale Walker (doing business as Red Cedar Oil) were convicted of taking or possessing migratory birds, each misdemeanor violations. Apollo was fined $1,500 for one violation, and Walker was fined $250 for each of his two violations. The Federal district court affirmed the convictions, concluding that violations of the MBTA are" strict liability offenses, which do not require that defendants knowingly or intentionally violate the law."

 

    On appeal, Apollo and Walker renewed their challenges to the MBTA, claiming (1) it is not a strict liability crime to take or possess a protected bird, or, (2) if it is a strict liability crime, the Act is unconstitutional as applied to their conduct. The Appeals Court ruled, "We conclude the district court correctly held that violations of the MBTA are strict liability crimes. But we hold that a strict liability interpretation of the MBTA for the conduct charged here satisfies due process only if defendants proximately caused the harm to protected birds. After carefully examining the trial record, we agree Apollo proximately caused the taking of protected birds, but with respect to one of his two convictions, Walker did not. Due process requires criminal defendants have adequate notice that their conduct is a violation of the Act." The Appeals Court affirmed in part, reversed in part, and remanded the case for further proceedings consistent with this opinion.

 

    The Appeals Court explained further and said, ". . .we agree no reasonable person would conclude that the exhaust pipes of a heater-treater would lead to the deaths of migratory birds. In its findings of fact, the magistrate judge found generally that 'birds

trapped in heater/treaters [were] relatively common in the industry,' Aplt. App. at 23, and 'oil operators have been aware for some time that bird remains are frequently found in heater/treaters,' id. at 24 n.15. The magistrate judge did not provide citations in support of these factual conclusions, and our review of the trial record reveals no substantial evidence of pervasive industry knowledge about the heater-treater problem until the Service's educational outreach campaign. To the contrary, a Fish and Wildlife agent testified bird deaths in heater-treaters were 'brand new' to the Service before the December 2005 inspections, Aplt. App. at

160, and the fact that the Service did not recommend prosecutions during its educational campaign suggests the issue was not well known. Therefore, the magistrate judge's finding as to the April 2007 bird death is reversed."

 

    Access the complete opinion (click here).