Unlawful Taking Under the MBTA Requires A Deliberate Act.

The plaintiff owns and operates an oil refinery in Texas.  After a 2002 inspection of the facility, the Environmental Protection Agency (EPA) filed a criminal indictment against the defendant for Clean Air Act violations for failure to cover tanks with emission-control equipment, and for "taking" migratory birds in violation of the Migratory Bird Treaty Act (MBTA).  The trial court found the defendant guilty of three violations of the MBTA on the basis that liability under the MBTA could result irrespective of the defendant's intent simply based on proximate cause.  On appeal, the court reversed.  The appellate court applied the well-understood common law meaning of "take" (when not combined with "harass" or "harm") so as to preclude events that cause mere accidental or indirect harm to protected birds.  The court determined that the evidence did not show that the equalization tanks were utilized with the deliberate intent to cause bird deaths.  In so holding, the court rejected contrary holdings of the Second and Tenth Circuits on the issue.  The court also noted that an MBTA violation would not arise from bird collisions with electrical transmission lines, thus power companies would not need to seek an incidental take permit  from  the USFWS in the Fifth Circuit.  United States v. Citgo Petroleum Corp, et al., No. 14-40128, 2015 U.S. App. LEXIS 15865 (5th Cir. Sept. 4, 2015), rev'g. and remanding, 893 F. Supp. 2d 841 (S.D. Tex. 2012).