North Dakota: Flipping the Bird at the Migratory Bird Treaty Act Since 2012

Abstract

Under the Migratory Bird Treaty Act (MBTA) it is a federal misdemeanor to kill a migratory bird “by any means, or in any manner.” In 2012, three oil and gas companies operating in the Bakken region of North Dakota were charged with violations of the MBTA after dead and oiled birds were found in and around their oil reserve pits. In United States v. Brigham Oil & Gas, L.P., the companies challenged the violations by claiming that the MBTA applied only to conduct directed at birds, and not to lawful commercial activities that might result in the incidental death of birds. The District Court for the District of North Dakota agreed and dismissed the charges. This Comment argues that the motion to dismiss should not have been granted because the court’s interpretation of the MBTA’s scope is too narrow and runs counter to binding and persuasive precedent acknowledging that incidental killing is within the scope of the MBTA.