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Migratory Bird Treaty Act Enforcement Change Would Halt Overcriminalization

By Joe Luppino-Esposito
Director | Rule of Law Initiatives | Due Process Institute

The Department of the Interior and its Fish and Wildlife Service (Fish & Wildlife) have proposed to change their interpretation of a century-old treaty to reflect one of the most basic principles of criminal law. While it may seem obscure to most readers, I have followed the enforcement of the Migratory Bird Treaty Act (MBTA) for a while. This change is a welcomed step towards restoring fairness in certain federal prosecutions.

Historically, two elements are necessary for a person to be guilty of a crime:  actus reus—the “guilty act” —the commission of the crime itself; and mens rea—“guilty mind”—the criminal intent to commit the crime. In other words, a person should not be convicted for just thinking about doing something illegal, and no conviction should result if a person does something illegal by accident. Unfortunately, too many laws today lack mens rea, and are prosecuted as “strict liability” offenses.

The MBTA was signed in 1918 by the U.S. and Great Britain (on behalf of Canada) as a conservation program to protect migratory birds from those who would “take” them—that is, hunt or capture them—without a license. Unfortunately, the MBTA has occasionally been enforced in a way that an “incidental take” is considered a strict liability criminal offense under federal law. This, ahem, flies in the face of due process.

Currently, federal courts disagree whether an incidental take should result in a criminal conviction. On the one hand, consider the case against Brigham Oil and Gas in North Dakota. The federal government charged the company under the MBTA for criminally “taking” two migratory birds that were found dead near one of the company’s legally compliant reserve pits. The court explained why applying the law in the way the prosecutors sought would lead to unfair, and even absurd, results:

If the Migratory Bird Treaty Act concepts of “take” or “kill” were read to prohibit any conduct that proximately results in the death of a migratory bird, then many everyday activities become unlawful– and subject to criminal sanctions – when they cause the death of pigeons, starlings and other common birds. For example, ordinary land uses which may cause bird deaths include cutting brush and trees, and planting and harvesting crops.

In addition, many ordinary activities such as driving a vehicle, owning a building with windows, or owning a cat, inevitably cause migratory bird deaths.

On the other hand, the Colorado federal district court in United States v. Moon Lake Electric Association, Inc. said that criminalization was appropriate for activities that proximately caused the harm—in this case, the birds’ contact with the defendant’s power lines.

A legal memorandum of the Department of the Interior explains that the government cites conduct unrelated to the intentional harming of migratory birds—such as raising a barn that has owls nesting in it—and uses that conduct to prosecute individuals in a way that conflates actus reus and mens rea. Citing a district court opinion, the memo states that  “there appears to be no explicit basis in the language or the development of the MBTA for concluding that [the treaty] was intended to be applied to any and all human activity that causes even unintentional deaths of migratory birds.”

Fish & Wildlife has opened a comment period for a proposed rule that firmly establishes the concept of mens rea in the enforcement of this treaty. The rule would clarify that the MBTA was only meant to “criminalize actions that are specifically directed at migratory birds, their nests, or their eggs.”

I joined the governor of Alaska, criminal law reform advocates, business owners and others in commending this rule change:

“The proposed rule reinvigorates a basic tenet of criminal law: an individual’s criminal intent, or mens rea. The way the Migratory Bird Treaty Act has been enforced has too often ignored this fundamental prerequisite of criminal law. Treating accidental harm to migratory birds as a violation of the treaty unfairly criminalizes unintentional conduct. Protecting the environment is an important function of the federal government, but its enforcement regime should only use criminal sanctions against individuals and institutions who are purposefully inflicting harm on migratory birds. The proposed change aligns with the rule of law and adds credibility to the Department’s enforcement actions.”

Mens rea is a foundation of the just enforcement of criminal law—a principle that the Due Process Institute overwhelmingly supports. Restoring its primacy in the federal criminal justice system, even in a 102-year-old treaty, can spare innocent people the hardship of mounting a criminal defense. Importantly, supporting this rule clarification will do nothing to undermine the ability of the government to continue to enforce laws that protect migratory birds from those who intend to harm them. It merely clarifies that accidental harm to birds caused by otherwise lawful conduct should not serve as the basis for a criminal enforcement action.

For those interested in submitting a comment to the proposed rule, see the dedicated page at the Fish & Wildlife website here (comments due by March 19, 2020).