Appeals court rules on scope of migratory bird act in Kansas case over oil field equipment

Appeals court rules on scope of migratory bird act

WICHITA, Kan. — A federal appeals court decision over dead birds found in Kansas oil field equipment has defined the scope of the Migratory Bird Treaty Act, affirming that violators do not need to intentionally kill them to be convicted.

Apollo Energies, Inc., and Dale Walker, doing business as Red Cedar Oil, were accused of violating the act after regulators discovered bird remains in the companies’ heater-treaters, devices that distill the oil pumped from wells.

The Migratory Bird Treaty Act makes it illegal to hunt, capture or kill protected birds. Violators are subject to a maximum penalty of $15,000 and six months in prison for a misdemeanor conviction.

Apollo Energies appealed a misdemeanor conviction for the 2007 deaths of two birds, including one Northern Flicker. Walker appealed two convictions for the 2007 deaths of two Northern Flickers and an Eastern bluebird as well as the 2008 death of a common grackle at another site. Apollo Energies was fined $1,500 and Walker $500.

The companies appealed, arguing the act was unconstitutional and violated their right to due process.

The 10th Circuit Court of Appeals in a mandate filed Friday in Kansas affirmed two convictions, one against Apollo and another against Walker. The appeals court ruled prosecutors can hold violators responsible even if they didn’t mean to kill any birds.

The court overturned the other conviction against Walker, however, after finding he couldn’t be held liable because he wasn’t aware of the threat his equipment posed at the time those birds were killed.

“It puts a lot of people at risk subject to the whims of the federal government,” said defense attorney Stephen Robison. “… Who is next? Are you going after airports? Are you going to go after grain silos? Combines? Plate glass windows?” Robison said. “What’s next? Wind turbines?”

Federal prosecutors did not immediately return an e-mail requesting comment.

Although the Kansas prosecutions are apparently the first in the nation concerning heater-treaters, the government has pursued other cases involving birds found trapped in oil pits and storage tanks.

Wildlife regulators in February 2006 inspected 150 heater treaters over two days across southeastern Kansas to determine the extent of bird deaths caused by them and found the remains of 300 birds, including 10 migratory birds, in 65 heater-treaters. Those findings prompted a program to advise oil producers of the problem and give them until Jan. 1, 2007, to modify their equipment.

In upholding the conviction against Apollo Energies, the appeals court noted that the company acknowledged at trial it failed to cover some exhaust pipes as wildlife regulators had suggested following a 2005 inspection.

But they noted that Walker was not aware of the bird problems at the time of the first violation.

Although Walker capped all his oil field equipment after that violation, he was charged again when a bird a year later got under the cap and became stuck in another opening, his attorney said.