Author: Maxel Moreland, Associate Member, University of Cincinnati Law Review
The Migratory Bird Treaty Act (MBTA) makes it unlawful to “take” protected migratory birds.[1] However, using two methods of statutory interpretation, a circuit split has developed over different definitions of “take” under the MBTA. The first, narrower interpretation from the Fifth Circuit must involve the intentional killings of migratory birds.[2] The Fifth Circuit’s analysis is the most recent interpretation of the MBTA and is the more persuasive analysis to define “take.”[3] The Fifth Circuit used “the statute’s text, its common law origin, [and] a comparison with other relevant statutes,” in its analysis.[4] In contrast, the Second Circuit’s interpretation created strict liability for bird deaths.[5] The Second Circuit’s interpretation failed to analyze the text of the statute and the liability implications for incidental bird deaths.[6] And neither court interprets “take” through established statutory interpretation doctrine, but instead interprets the MBTA to achieve its own desired results.
U.S. v. Citgo Petroleum Corp.: Narrow Interpretation of “Take” Under the MBTA
The Fifth Circuit’s analysis of the MBTA began with the common law definition of “take”; relying on the rationale that Congress intends a common law usage for a term of art unless otherwise explicitly stated.[7] According to the Fifth Circuit, under common law usage, animals are taken by humans only when an animal has been reduced to human control.[8] Under this treatment, the Fifth Circuit determined that one must act affirmatively to control an animal, and cannot do so incidentally.[9]
While the traditional common law definition of “take” is not the only proper interpretation of the word, the Fifth Circuit next used a comparable statute, the Endangered Species Act (ESA), to explain why the common law definition best fits.[10] The ESA also protects animals, but Congress included two terms in the ESA that the MBTA lacked, “harm” and “harass,” to include penalties for those that cause incidental animal death.[11] The court also looked to the Marine Mammal Protection Act (MMPA), which follows the same statutory construction as the ESA, to further explain that the MBTA’s usage of “take” differs from these two analogous statutes.[12]
The government proffered that Congress had implicitly expanded the MBTA to include incidental killings based on a 2002 amendment.[13] Prior to the amendment’s passage, a district court had held the military liable for birds that were accidently killed during military training exercises.[14] To relieve the military from liability under the MBTA, Congress swiftly amended the MBTA to exclude “military readiness activity.”[15] The Fifth Circuit explained that any assumption that Congress meant to expand MBTA liability is absurd, as Congress acted quickly and narrowly to fix an erroneous decision made by the district court rather than to greatly expand the definition of “take.”[16] The Fifth Circuit ended its analysis by holding that the common law usage of “take” applies to the MBTA, meaning that incidental takings of birds do not fall under the statute.[17]
U.S. v. FMC Corp.: Lack of Statutory Interpretation Results in Strict Liability
The Second Circuit relied on case law and public policy concerns to determine that the MBTA included the incidental takings of migratory birds.[18] In that case, FMC Corporation dumped wash water containing harmful chemicals into a pond and incidentally killed birds protected by the MBTA.[19] The Second Circuit compared the action taken by FMC—dumping chemicals into a pond—to previous cases, that penalized hunters for hunting birds protected by the MBTA.[20] The court reasoned that, under the MBTA, a business that dumps chemicals into a pond should be held as liable as a hunter that hunts birds.[21] The Second Circuit held that the dumping of chemicals is an affirmative action and that chemical dumpers are liable for the deaths of migratory birds caused by chemical dumping.[22]
The Second Circuit then explained that strict liability ought to apply to the MBTA for incidental bird killings and used a wide-ranging group of public policy rationales to back that assertion.[23] First, the court stated that a business needs to take responsibility for harm caused by its actions.[24] If a business is not held accountable for the harm it causes, then the business will be unlikely to change its practices, resulting in further harm. Generally, when risk of harm is involved, the entity taking that risk should pay for any resulting damages.[25] Next, the court used modern environmental concerns to further its interpretation of the MBTA. The court reasoned that advances in science have produced chemicals more dangerous to our environment, and that society needs to similarly advance its legal environmental protections.[26] The ever-evolving use of man-made chemicals in various industries, from farming to oil production, presumably requires ever evolving environmental protections. Finally, the court explained that since the statute’s penalties will only amount to fines, and because the statute lacks a mens rea requirement, that there is sufficient reason to impose strict liability under the MBTA.[27] The court concluded that the aforementioned policy concerns were persuasive enough to apply strict liability to the MBTA.[28]
Persuasiveness of the Fifth Circuit’s Statutory Interpretation
The Fifth Circuit’s interpretation ran contrary to many of the public policy concerns mentioned by the Second Circuit. However, the job of the judiciary is to interpret statutes rather than rewrite statutes in the interest of public policy. Statutory interpretation requires the court to provide evidence that its interpretation of the statute best fits. Broadening a statute to promote public policy infringes upon Congress’ law-making ability if done inappropriately. When a court interprets a statute, it can rely upon various tools of statutory interpretation to resolve ambiguity. While the Fifth Circuit is more persuasive, using statutory tools more appropriately, its interpretation still seems to achieve the court’s desired results rather than the intended meaning of Congress. Instead of interpreting the statute through governed reason, the court interprets the statute to achieve predetermined results.
The MBTA, originally passed in 1918, was intended to limit widespread hunting threats against migratory bird populations.[29] The relevant part of the current MBTA states that, “it shall be unlawful at any time, by any means or in any manner, to pursue, hunt, take, capture, kill, attempt to take, capture, or kill… any migratory bird.”[30] One tool of statutory interpretation, imaginative reconstruction, looks to what Congress was likely thinking when passing a statute.[31] The original enacting Congress likely meant to stop humans from purposefully taking these migratory birds, because Congress could not contemplate modern hazards such as airplanes, power lines, and industrial chemicals. The Fifth Circuit’s application of imaginative reconstruction, to explain that the 1918 Congress likely meant the traditional common law meaning of the word “take,” reinforces its holding that Congress did not extend the MBTA to include incidental bird deaths.[32]
While the 1918 Congress may not have contemplated these hazards, a modern Congress likely would. The Fifth Circuit appropriately looked to analogous statutes and the 2002 amendment to the MBTA to determine that when Congress means to include liability for incidental environmental harm, it inserts explicit language to a statute.[33] The other statutory terms, “harm” and “harass” (as seen in the ESA and MMPA), show that Congress will add additional language when a statute’s purpose is to include protections from incidental harm.[34]
However, the Fifth Circuit’s analysis of the 2002 amendment failed to explain why Congress would enact the narrow exception for the military rather than amend the statute to eliminate the ambiguity of the MBTA. While the Fifth Circuit reasoned that Congress likely did not intend to broadly change the MBTA with the adoption of a narrow amendment, the argument is not without merit.[35] The adoption of the 2002 amendment was meant to remedy a district court ruling against the United States military,[36] but it provided evidence that Congress thought that the MBTA applied to incidental takings of migratory birds. The Fifth Circuit’s conclusion would be more appropriate if, rather than creating a narrow exception for the military, Congress amended the MBTA to clarify that the MBTA did not include incidental takings of migratory birds. If, as the Fifth Circuit claims, the MBTA does not apply to incidental killings,[37] then the adoption of 2002 amendment creates additional ambiguity and confusion.
The Second Circuit’s public policy concerns, albeit important, should not have controlled the opinion. Since the statute is ambiguous, the court should have analyzed the statute’s meaning and Congress’ intended purpose. Instead, the court compared the instant case to other MBTA cases involving the hunting of birds. The hunting cases the court used involve a hunter taking affirmative actions with the intention of killing birds, while FMC Corp. unintentionally killed birds through chemical dumping.[38] The court reasoned that since both cases involve affirmative actions taken by defendants, that chemical dumping and hunting should be treated similarly under the statute. However, one key distinction between chemical dumping and hunting is the intent behind the actions. Presumably, chemical dumping has a purpose other than killing birds, while the purpose of hunting birds is to kill birds. The Second Circuit assumed that FMC Corp. did not know that the chemicals killed the birds, but determined that FMC Corp. was liable for any resulting damages from dumping the chemicals. The Second Circuit’s application of strict liability to incidental actions makes the distinction of intent moot.
The purpose of the judiciary is to interpret statutes and govern by reason. The Second Circuit’s opinion is not overly persuasive, and did not adequately explain why the MBTA should include incidental takings of birds. While the court explained why the MBTA should include incidental deaths to promote many important policy concerns, these concerns do not explain why the MBTA includes incidental deaths. Allowing judges to remedy public ills, without proffering additional evidence explaining that the statute should be interpreted to address these societal ills, would be akin to judicial lawmaking. Public policy concerns should be used to determine the purpose of a statute, but additional evidence reinforcing an interpretation would be more persuasive.
Institutional Restraints Require Congressional Action
Allowing the court to ignore what the MBTA means to get the outcome it desires is not a decision governed by accepted interpretation canons. Public policy concerns are important but should not control a court’s opinion when determining how to interpret a statute. The court should instead use statutory interpretive tools to determine the meaning of a statute. The Fifth Circuit currently has the most persuasive interpretation of the MBTA, using multiple tools of statutory interpretation to provide evidence that its interpretation is best. But when a statute is ambiguous, courts should utilize multiple tools of statutory interpretation rather than whichever tools will result in a predetermined, desired outcome.
If a statute involves public policy concerns, a court needs to establish whether an appropriate interpretation of the statute can remedy those concerns. Statutory interpretation allows the judiciary to determine the purpose and meaning of a statute. If the statute does not address the public policy concerns noted by the judiciary, then the court should not interpret the statute just to address those concerns. Congress, as the elective body, needs to remedy public policy issues through the deliberative legislative process, rather than the court.
[1] See 16 U.S.C. § 703 (2004).
[2] U.S. v. Citgo Petroleum Corp., 801 F.3d 477, 488 (5th Cir. Sept. 4, 2015).
[3] Id.
[4] Id at 489.
[5] U. S. v. FMC Corp., 572 F.2d 902, 908 (2d Cir. 1978).
[6] Id.
[7]Citgo Petroleum Corp., 801 F.3d at 489.
[8] Id.; see also Pierson v. Post, 1805 WL 781 (N.Y. Sup. Ct. 1805).
[9] Citgo Petroleum Corp., 801 F.3d at 489.
[10] Id at 490.
[11] Id.
[12] Id.
[13] Id. at 490-91.
[14] Id.
[15] Id.
[16] Id.
[17] Id. at 494.
[18] FMC Corp., 572 F.2d at 905.
[19] Id. at 904.
[20] Id. at 906.
[21] Id.at 907.
[22] Id. at 907-08.
[23] Id.
[24] Id.
[25] Id.at 907.
[26] Id. at 907-08.
[27] Id. at 908.
[28] Id.
[29] Krisztina Nadasdy, Killing Two Birds with One Stone: How an Incidental Take Permit Program Under the MBTA Can Help Companies and Migratory Birds, 41 B.C. Envtl. Aff. L. Rev. 167, 167 (2014).
[30] See 16 U.S.C. § 703 (2004).
[31] See Richard A. Posner, Statutory Interpretation—in the Classroom and in the Courtroom, 50 U. Chi. L. Rev. 800, 817 (1983).
[32] Citgo Petroleum Corp., 801 F.3d at 489.
[33] See Id. at 490-91; see also Bob Stump National Defense Authorization Act for Fiscal Year 2003, Pub.L. No. 107–314, § 315(d), 116 Stat. 2458, 2509–10 (2002) (The amendment carved out an exception for incidental bird takings, excluding the military from liability during military readiness activities).
[34] Citgo Petroleum Corp., 801 F.3d at 489.
[35] Id. at 490-91.
[36] Id.
[37] Id. at 494.
[38] FMC Corp., 572 F.2d 902, 906 (2nd Circuit 1978).
