Tuesday, August 21, 2018
The Migratory Bird Treaty Act (MBTA) protects migratory birds that are not necessarily endangered and, thereby, protected under the ESA. 16 U.S.C. § 703 et seq. The MBTA makes it unlawful at any time, by any means or in any manner, to pursue, hunt, take, capture or kill any migratory bird. The Act is not limited to covering only hunting, trapping and poaching activities, but extends to commercial activities that kill migratory birds.
But, can a farmer get caught in the web that the MBTA weaves? Potential application of the MBTA to farming activities – that’s the topic of today’s post.
The Act prohibits taking or killing of migratory birds at any time, by any means or in any manner. See, e.g., Unitied States v. Citgo Petroleum Corp., et al., No. C-06-563, 2012 U.S. Dist. LEXIS 125996 (S.D. Tex. Sept. 5, 2012). Violation of the Act is a misdemeanor punishable by fine up to $500 and imprisonment up to six months. Anyone who knowingly takes a migratory bird and intends to, offers to, or actually sells or barters a migratory bird is guilty of a felony, with fines up to $2,000, jail up to two years, or both.
The MBTA is a strict liability statute, and has been applied to impose liability on farmers who inadvertently poison migratory birds by use of pesticides. While the MBTA is a strict liability statute, constitutional due process requirements must still be satisfied before liability can be imposed. For instance, in United States v. Apollo Energies, Inc., et al., 611 F.3d 679 (10th Cir. 2010), the court held that oil drilling operators were not liable for deaths of migratory birds under the MBTA to the extent that the operators did not have adequate notice or a reasonable belief that their conduct violated the MBTA. Similarly, in United States v. Rollins, 706 F. Supp. 742 (D.C. Idaho 1989), a farmer was prosecuted for violating the MBTA when he used a mixture of granular pesticides on an alfalfa field. The chemicals poisoned a flock of geese and killed several of them. The trial court held that even though the farmer had not applied the pesticide in a negligent manner and could not control the fact that the geese would land and eat the granules, liability under the Act was based on whether the farmer knew that the land was a known feeding area for geese. The trial court concluded that “a reasonable person would have been placed on notice that alfalfa grown on Westlake Island in the Snake River would attract and be consumed by migratory birds.” The trial court was reversed on appeal on the grounds that the MBTA was too vague to give the farmer adequate notice that his conduct would likely lead to the killing of the protected birds since the farmer's past experience with the pesticide and the geese was that it did not kill them
Again, in United States v. Van Fossan 899 F.2d 636 (7th Cir. 1990), the court confirmed the notion that the MBTA is a strict liability statute and approved its application to a defendant who used pesticides to poison birds, even though the defendant did not know that his use of the pesticide would kill migratory birds protected under the Act.
The MBTA also prohibits the taking of migratory game birds by the aid of “baiting”. However, it is permissible to take migratory game birds, including waterfowl, on or over standing crops, flooded harvested croplands, grain crops that have been properly shocked on the field where grown, or grains found scattered solely as the result of normal agricultural planting or harvesting. See 50 C.F.R. §§ 20.11(g), 20.21(i). The U.S. Fish and Wildlife Service (FWS) has promulgated regulations defining “normal agricultural planting” and “harvesting.” In one case, the court held that FWS determinations that harvesting corn after December 1 and aerial seeding of winter wheat in standing corn were not “normal planting” and that the landowners were barred from hunting next to neighbors’ baited fields were reasonable interpretation of MBTA because the determinations were based on substantial evidence. Falk v. United States Fish and Wildlife Service, 452 F.3d 951 (8th Cir. 2006).
Some states also have statutes that prohibit the baiting of wildlife for hunting purposes unless the alleged baiting was the result of commonly accepted agricultural practices. For example, in State v. Hansen, 805 N.W.2d 915 (Minn. Ct. App. 2011), the defendant’s conviction for using bait to hunt deer was reversed. The state statute at issue was deemed to violate the defendant’s due process as it was vague as applied to defendant’s pumpkin patch operation because it did not distinguish between normally accepted agricultural practices and the unlawful baiting of deer.
Also, with respect to the baiting issue, the MBTA permits the taking of all migratory game birds, except waterfowl, on or over any lands where shelled, shucked, or unshucked corn, wheat or other grain, salt, or other feed has been distributed or scattered as the result of bona fide agricultural operations or procedures. In United States v. Adams 174 F.3d 571(5th Cir. 1999), a farmer was convicted of violating the MBTA for hunting doves on a field that he had recently planted to wheat. For purposes of the “baiting” provision of the Act, the trial court judge determined that intent was not an element of the offense for which the farmer was convicted and did not allow the farmer to introduce evidence concerning the procedures commonly used to plant winter wheat in northeast Louisiana. On appeal, the Fifth Circuit Court of Appeals reversed the trial court, holding instead that the government was required to prove that the farmer’s intentions were not in good faith and that the farmer’s acts were merely a sham to attract migratory birds to hunt. Accordingly, the court reversed the farmer’s conviction and rendered acquittal based on the court’s determination that the farmer was entitled to have the lower court consider the evidence of his good faith in growing the wheat, and because there was no evidence from which a jury could find that the farmer’s planting was not the result of a “bona fide agricultural operation or procedure.”
Another MBTA “baiting” case was recently decided. In United States v. Obendorf, No. 16-30188, 2018 U.S. App. LEXIS 18561 (9th Cir. Jul. 9, 2018), the defendant was charged with illegally baiting and conspiracy to bait ducks, under the MBTA. FWS agents patrolled the area near the defendant’s farm by plane, and aerially spotted large piles of corn near hunting blinds. They also noticed irregular harvesting in one field on the farm. Along with an Idaho Department of Fish and Game Agent, the FWS “snuck” on to the farm that night. The agents observed six piles of corn and a strip combined field (partly cut field, leaving strips of standing corn) as well as a lot of corn wasted on the ground around the strip. The agents left trail/game cameras hidden on the property. Two years after the initial investigation, the defendant was charged. At trial, the defendant argued that the “agricultural practice” exception of the MBTA applied. That exception states that taking birds over specified areas, including “standing crops or flooded crops,” is not baiting. The trial court jury was instructed that the government had the duty to prove that the exception did not apply in the case at hand as well as proving the defendant’s guilt. The plaintiff presented witnesses that testified that strip cropping and other farming activities by the defendant were not recommended farming practices. The jury was persuaded that the exception did not apply and, the defendant was convicted of baiting under the MBTA. On appeal the defendant claimed that the court misinterpreted the exception. The plaintiff, however, claimed that the exception only applied to “taking” and not baiting. The appellate court agreed and upheld the defendant’s conviction.
The MBTA is another federal law that can entangle farmers in its provisions. While some conduct is clearly beyond the pale and should be within the MBTA’s reach, other conduct that is otherwise innocent may also be caught. In any event, it is important for farmers to understand the potential reach of the law and how the courts have decided the key cases.