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The Nature of Treaties |
This article provides a brief overview of the types of treaties, the treaty process (e.g., creation, ratification, etc.), as well as problems derived from a given sample treaty.
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Turtle Island Restoration Project v. U.S. Department of Commerce |
Environmental Groups sued the National Fisheries Service (NMFS) and the United States Department of Commerce for making regulations which allowed swordfish longline fishing along the Hawaii coast, alleging violations of the National Environmental Policy Act (NEPA), the Migratory Bird Treaty Act (MBTA), and the Endangered Species Act (ESA). The Court found that because the regulations were made under the Magnuson-Stevens Fishery Conservation and Management Act of 1976 (Magnuson Act), and because that Act had a 30-day time limit for when challenges to regulations could be made, the environmental groups has not brought their challenge to the regulations in time.
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U.S. v. Abbate |
Before the Court is the appeal of Frank J. Abbate, Jr.from a misdemeanor conviction for violating a provision of the Migratory Bird Treaty Act ("MBTA") after a Louisiana Department of Fisheries and Wildlife agent witnessed Abbate illegally taking or attempting to take wood ducks after legal shooting hours. At trial, appellant was found guilty of the offense charged and sentenced him to a two-year term of probation. As a special condition, the magistrate ordered that appellant pay a fine of $500 and refrain from hunting birds during the probationary period. Appellant petitions this Court to review his portrayal of the facts and reconsider the credibility of the witnesses and evidence in light of the arguments and allegations presented in his appellate brief. However, rules of procedure governing this appeal preclude appellant from receiving a trial de novo. Accordingly, this Court cannot consider new facts which appellant did not allege at trial and disregarded appellant's arguments which raise conflict over the weight and credibility of testimony. With regard to sentencing, the court found that the magistrate properly exercised his discretion where appellant had a prior conviction under the MBTA for illegal hunting and the revocation of his hunting license would properly prevent future MBTA violations.
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U.S. v. Apollo Energies, Inc. |
Appellants, Apollo Energies, Inc. and Dale Walker, were charged with violating the Migratory Bird Treaty Act after an agent with the USFWS discovered dead migratory birds lodged in each appellant's "heater-treater," a piece of equipment used in the course of appellants' Kansas oil drilling businesses, on several occasions. At trial, both Apollo and Walker were convicted of misdemeanor violations for "taking" or "possessing" migratory birds. On appeal, Apollo and Walker contested that (1) the MBTA is not a strict liability crime or, (2) if it is a strict liability crime, the MBTA is unconstitutional as applied to their conduct. Bound by a previous holding that found misdemeanor violations of the MBTA are strict liability crimes, the court concluded that the MBTA includes no mens rea requirement. As to Appellants' second contention challenging the constitutionality of the Act, the court concluded that while the Act is not unconstitutionally vague, "the MBTA requires a defendant to proximately cause the statute's violation for the statute to pass constitutional muster.
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U.S. v. Brigham Oil and Gas, L.P. |
The Government charged Brigham Oil & Gas, L.P.with “taking” (killing) two migratory birds found dead near one of its reserve pits. But, the Court found that the use of reserve pits in commercial oil development is legal, commercially-useful activity that stands outside the reach of the federal Migratory Bird Treaty Act. Therefore, the Court held that the oil and gas companies' use of reserve pits did not violate Migratory Bird Treaty Act's prohibition against taking of protected birds, since death or injury was not intentional, and grated the defendant's motion to dismiss. |
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U.S. v. Carpenter |
Defendant owned a goldfish farm and hired lethal "birdmen" to kill various birds that interfered with his operation, including herons and egrets, by means of shooting, trapping, and poisoning. In reversing defendant's conviction under the Lacey Act, the Court disagreed with the government's position that the act of taking of the birds in violation of the Migratory Bird Treat Act also implicated the Lacey Act. The court held that the Lacey Act requires something beyond the first taking; indeed a person must do something to wildlife that has already been "taken or possessed" in violation of law.
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U.S. v. Chevron USA, Inc. |
After 35 dead Brown Pelicans were discovered in the space between the inner wall of the caisson and the outer wall of a wellhead, Chevron was charged with a violation of the Migratory Bird Treaty Act. But, the Court held that the MBTA was clearly not intended to apply to commercial ventures where, occasionally, protected species might be incidentally killed as a result of totally legal and permissible activities. Therefore, at the plea hearing the Court refused to accept the plea of guilty from Chevron. |
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U.S. v. CITGO Petroleum Corp. |
In 2007, CITGO was convicted of unlawfully taking and aiding and abetting the taking of migratory birds under MBTA § 707(a) after ten dead birds were found in two large open-top oil tanks. CITGO moved the Court to vacate its convictions, arguing that the MTBA criminalizes the unlawful taking or killing of migratory birds by hunting, trapping, poaching, or similar means, but does not criminalize commercial activities in which migratory birds are unintentionally killed as a result of activity completely unrelated to hunting, trapping, or poaching. In response, the Government argued that the MTBA prohibits the taking or killing of a migratory bird at any time, by any means or in any manner. The evidence presented at trial established that a number of individuals saw oil-covered birds, both dead and alive. An employee told senior management and suggested to another member of CITGO's senior management team that CITGO install nets on the tanks to prevent birds from landing in the oil. Based on this evidence, the court held that not only was it reasonably foreseeable that protected migratory birds might become trapped in the layers of oil on top of the tanks, but that CITGO was aware that this was happening for years and did nothing to stop it. Because CITGO's unlawful, open-air oil tanks proximately caused the deaths of migratory birds in violation of the MBTA, CITGO's Motion to Vacate CITGO's Conviction for Violations of the Migratory Bird Treaty Act was denied. |
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U.S. v. CITGO Petroleum Corp. |
CITGO was convicted of multiple violations of the Clean Air Act and its regulations, and the Migratory Bird Treaty Act of 1918 (“MBTA”). CITGO urged the 5th Circuit to reverse the Clean Air Act convictions because the district court erroneously instructed the jury about the scope of a regulation concerning “oil-water separators.” CITGO also contended that the MBTA convictions were infirm because the district court misinterpreted the statute as covering unintentional bird kills. The 5th Circuit agreed with both contentions, holding that CITGO's equalization tanks and air floatation device were not oil-water separators under the Clean Air Act's regulations and that “taking” migratory birds involved only “conduct intentionally directed at birds, such as hunting and trapping, not commercial activity that unintentionally and indirectly caused migratory bird deaths. The district court’s decision was reversed and remanded with instructions. |
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U.S. v. Clucas |
Defendant and several individuals went on a duck hunt in and were charged with exceeding the limit for migratory birds under Virginia law. The game wardens testified that the defendant, Clucas, admitted in the presence of the other parties that they had killed more than the 'bag', meaning thereby that they had killed more than ten ducks allowed for each person. The government held the position that the other individuals were hired for the reason of taking or killing the ducks. The court held that in view of the fact that January 6, 1943, was not the first day of the season the possession of twenty-six ducks by the two defendants did not constitute a violation of the provisions of the Virginia regulation. The possession being legal, the burden of proof did not shift to the defendants.
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