Bird-Killing Convictions Hinge on Notification


     (CN) – Two Kansas oil drilling operators are liable for killing migrating birds only if they were notified that their equipment trapped protected species, the 10th Circuit ruled in a decision clarifying the Migratory Bird Treaty Act.

     Five years ago, the U.S. Fish and Wildlife Service inspected more than a dozen of Apollo Energies’ “heater-treaters,” or devices used to separate oil from water as the mixture gets pumped from the ground.
     Heater-treaters have vertical exhaust pipes that can trap migrating or nesting birds. When the Fish and Wildlife Service found dead birds in about half of the heater-treaters inspected at Apollo, it expanded the investigation throughout southeast Kansas. More than 300 dead birds were found in heater-treaters, including 10 species protected under the Migratory Bird Treaty Act.
     The drilling operators were not charged for these deaths, because the agency launched a campaign to educate the oil industry about the problem in an effort to prevent more bird deaths.
     Wildlife officials notified oil companies, including Apollo, about the problem in February 2006.
     The next year, it made a repeat visit to Apollo and inspected the equipment of Dale Walker, owner of Red Cedar Oil.
     Both were convicted of the misdemeanor violations of taking or possessing migratory birds.
     Apollo was fined $1,500 for one violation, and Walker had to pay $250 for each of two violations.
     A federal judge upheld the convictions. The Denver-based appeals court largely agreed, but reversed one of Walker’s convictions on the basis that he had been unaware of the heater-treater problems.
     “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,” Judge Timothy Tymkovich wrote for the three-judge panel.
     “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 also affirmed that intent is not required to prove a violation of the law, which is neither vague nor arbitrarily enforced.

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