Environmental Law

Migratory Bird Treaty Act - U .S. v. Apollo Energies and Dale Walker

By Walter James

Apollo/Walker (decided June 30, 2010) is a Tenth Circuit case under the Migratory Bird Treaty Act (?MBTA?) that provides a very good discussion of the mens rea requirement (or lack thereof).

The MBTA provides that it a misdemeanor to ?pursue, hunt, take, capture, [or] kill? birds protected by several international treaties. 16 U.S.C. § 703. The maximum penalty is $15,000.00 and six months in prison.  A misdemeanor violation does not require any particular mental state or mens rea.   16 U.S.C. § 707(a).  The question the Apollo/Walker case was whether the MBTA constitutionally can make it a crime to violate its provisions absent knowledge or the intent to do so.  Both Apollo Energies and Dale Walker were convicted of misdemeanor violations of taking or possessing migratory birds.  Apollo was fined $1,500.00 for one violation, and Walker was fined $250.00 for each of his two violations.

On appeal, one of the legal challenges brought by the defendants was that if the MBTA was a strict liability crime, the MTBA is unconstitutional as applied to the conduct.

Interestingly, the Court upheld the conviction but stated: ?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.?    

As to the constitutional due process claims, Apollo and Walker argued in part that due process required that they caused an MBTA violation in order to be guilty of a crime. 

The Court rejected most of their arguments but agreed with them on the proximate cause argument.  The Court discussed the facts as applied.    

Walker?s testimony?which the Fish and Wildlife agent does not dispute?is that prior to April 2007, he was not aware of problems with heater-treaters in the oil industry or in his specific operations. Fish and Wildlife did not send him a letter about the issue before the April 2007 inspection, and he was not a member of the trade association to which the Service advertised the oil field equipment problem. Nor was Walker aware of the one television report or newspaper article about heater-treaters. Given the state of this record, we agree no reasonable person would conclude that the exhaust pipes of a heater-treater would lead to the deaths of migratory birds.

The Court affirmed in part and reversed in part. 

The moral of the story is to bring all of the defenses you can muster.  Challenge the mens rea.  You just never know when you will be successful.

A special thanks to David Roth for sending me the opinion.

More later.

As always, feel free to contact me via e-mail at walter.james@jamespllc.com.

Full post as published by Environmental Crimes Blog on July 01, 2010 (boomark / email).