The Most Recent Take on 'Take': U.S. v. Apollo Energies & the Migratory Bird Treaty Act

Abstract

Feathers continue to fly as courts debate just how far the Migratory Bird Treaty Act’s talons extend, most recently when applied to the industry sector. This note examines the possible implications of requiring the government to prove proximate cause under the misdemeanor provision of the Migratory Bird Treaty Act (MBTA). The Tenth Circuit is the most recent federal appeals court to analyze the misdemeanor takings provision of the MBTA in United States v. Apollo Energies, Inc. Absent a proximate cause element, the court held the MBTA misdemeanor provision violated the Due Process clause of the Fourteenth Amendment of the United States Constitution. To understand the implications of Apollo, the first part of this note will provide the statute’s history and provisions, including the general interpretation of the MBTA’s misdemeanor provision as a strict liability offense. The second part will explore two energy cases decided prior to Apollo, in which the courts refused to convict oil companies under the MBTA. In the third section, I will discuss the recent Apollo decision whose proximate cause requirement purports to solve many of the concerns expressed by the prior courts. These concerns include: fear that the MBTA will be used to prosecute absurd bird deaths resulting from collisions with cars and windows; a lack of statutory notice as to what may lead to MBTA prosecution; and too much reliance on prosecutorial discretion when deciding whether to charge an MBTA violation. The fourth section explores whether Apollo really does solve such concerns and whether requiring the government to prove proximate cause actually dulls the MBTA’s talons and goes against legislative intent. Lastly, proposals are offered which could help Congress and the Fish and Wildlife Service (the agency tasked with enforcing the statute) to clarify their statutory intent. These include amending the MBTA itself, raising the misdemeanor penalty, imposing an industry wide bird fee, and adding a permit provision for bird takings within the energy industry.