Migratory Bird Deaths Could Have Been Averted

     CORPUS CHRISTI, Texas (CN) – Citgo was properly convicted of deliberately letting migratory birds die in its uncovered oil tanks for years, a federal judge ruled.
     The U.S. government sued Citgo Petroleum Corp. and Citgo Refining and Chemicals Co. in 2006 for violations of the Migratory Bird Treaty Act (MBTA).
     The 1918 law makes it a crime to take and kill migratory birds, unless allowed for by regulations.
     After a bench trial in the Southern District of Texas, the oil refiner was found guilty of three Class B misdemeanor counts that included unlawful taking and aiding and abetting the taking of migratory birds.
     The government showed that 10 birds had flown into two tanks at the Citgo East Refinery Plant in 2003. Those tanks contained waste oil that the government said killed the birds. But Citgo management knew for years those tanks posed such a danger.
     Citgo was also found guilty of violating the Clean Air Act by not covering its tanks with some type of emission-control equipment.
     In trying to overturn the convictions, Citgo had argued that the migratory bird law intends to cover hunting, trapping and poaching, but does not extend to commercial activities that unintentionally kill birds.
     Senior U.S. District Judge John Rainey said precedent dictates otherwise.
     “An almost equal number of courts, however, have explicitly rejected the argument that the MBTA is limited to activities such as hunting, trapping, and poaching, but instead reaches other conduct that results in the taking and killing of migratory birds,” Rainey wrote.
     The debate hinged on language in the act that prohibits taking or killing such birds, “at any time, by any means or in any manner.”
     “Citgo complains that to hold it strictly liable under the MBTA and extend the statute ‘to reach other activities that indirectly result in the deaths of covered birds would yield absurd results,'” Rainey wrote. “According to Citgo, if the MBTA prohibited any conduct that caused the death of a migratory bird, then ‘many ordinary activities such as driving a vehicle, owning a building with windows, or owning a cat, [which] inevitably cause migratory bird deaths’ would be criminalized.” (Brackets in original.)
     But unlike someone who owns a cat or drives a car, Citgo specifically committed an unlawful act when it left its tanks uncovered, the 13-page order states.
     “Based on the evidence presented at trial, not only was it reasonably foreseeable that protected migratory birds might become trapped in the layers of oil on top of tanks 116 and 117, Citgo was aware that this was happening for years and did nothing to stop it,” Rainey wrote. “Citgo’s unlawful, open-air oil tanks proximately caused the deaths of migratory birds in violation of the MBTA.”

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