United States v. Brigham Oil & Gas, L.P.

• Decision Date: 17 January 2012
• Docket Number: Case Nos. 4:11–po–005,4:11–po–009,4:11–po–004.
• Citation: 840 F.Supp.2d 1202
• Parties: UNITED STATES of America, Plaintiff, v. BRIGHAM OIL AND GAS, L.P., Defendant. United States of America, Plaintiff, v. Newfield Production Company, Defendant. United States of America, Plaintiff, v. Continental Resources, Inc., Defendant.
• Court: U.S. District Court — District of North Dakota

840 F.Supp.2d 1202

UNITED STATES of America, Plaintiff,

v.BRIGHAM OIL AND GAS, L.P., Defendant.

United States of America, Plaintiff,

v.Newfield Production Company, Defendant.

United States of America, Plaintiff,

v.Continental Resources, Inc., Defendant.

Case Nos. 4:11–po–005, 4:11–po–009, 4:11–po–004.

United States District Court,

D. North Dakota,

Northwestern Division.

Jan. 17, 2012.

Cameron W. Hayden, U.S. Attorney's Office, Bismarck, ND, for Plaintiff.

John C. Martin, Crowell & Moring, Washington, DC, John D. Russell, Fellers Snider Blankenship Bailey & Tippens PC, Tulsa, OK, Richard H. Kyle, Jr., Fredrikson & Byron, PA, Minneapolis, MN, Thomas A. Dickson, Dickson Law Office, Bismarck, ND, Lawrence Bender, Fredrikson & Byron, PA, Bismarck, ND, for Continental Resources Inc.

ORDER GRANTING DEFENDANTS' MOTIONS TO DISMISS

DANIEL L. HOVLAND, District Judge.

Before the Court are the Defendants' Motions to Dismiss filed on October 25, 2011. See Docket Nos. 16, 18, and 20. For the reasons set forth below, the Court GRANTS the motions.

The Government initially charged seven oil and gas companies operating in North Dakota's Williston Basin with violating the Migratory Bird Treaty Act (“Migratory Bird Act” or “the Act”), 16 U.S.C. §§ 703 and 707(a). The charges are Class B misdemeanors. Defendant Brigham Oil & Gas, L.P. (“Brigham Oil”) is charged with “taking” (killing) two migratory birds found dead near one of its reserve pits. Defendant Newfield Production Company (“Newfield Production”) is charged with “taking” four migratory birds found dead on property located adjacent to one of its reserve pits. Defendant Continental Resources, Inc. (“Continental Resources”), is charged with “taking” one migratory bird found dead near one of its reserve pits. Three other defendants are also accused of “taking” migratory birds found dead near their respective reserve pits. These defendants entered into binding plea agreements with the Government which remain pending before the Court. The case against one other defendant was dismissed by the Government.

I. BACKGROUND OF THE CASE.A. The Government's Case Against Brigham Oil & Gas, L.P.

Brigham Oil & Gas, L.P. was founded in 1992 and conducts oil and gas exploration activities in the region of the Bakken Shale formation in the Williston Basin, among other areas. Brigham Oil operates in the State of North Dakota and is licensed by the North Dakota Secretary of State under ID No. 21902400. See Statement of Probable Cause, Case No. 4:11–po–005, Docket No. 4, p. 5, ¶ 1. One of Brigham Oil's development sites is known as “Lippert 1–12H No. 1–H” and is located in Williams County, North Dakota. Id. at p. 7, ¶ 6.

The allegations against Brigham Oil contained in the Information state the following:

On or about May 6, 2011, in the District of North Dakota, Brigham Oil and Gas, L.P., without being permitted to do so by regulation as required by law, did take migratory birds, to wit, two Mallards, in violation of the Migratory Bird Treaty Act; In violation of Title 16, United States Code, Sections 703 and 707(a).

See Case No. 4:11–po–005, Docket No. 1. The Information does not contain an explanation of the phrase “without being permitted to do so by regulation as required by law.” The Information does not explain the manner in which Brigham Oil allegedly “took” the birds.

On the same day it filed the Information against Brigham Oil, the Government filed a request for summons and the issuance of an arrest warrant, which was supported by a written affidavit. See Case No. 4:11–po–005, Docket Nos. 2, 2–1. On August 10, 2010, Magistrate Judge Charles S. Miller, Jr. denied the Government's request based on insufficient showings of probable cause with respect to the circumstances and cause of the birds' death. See Docket No. 3, pp. 3–5. In that Order, Judge Miller raised another issue: whether “migratory bird kills resulting from lawful commercial activity that is unrelated to hunting or poaching constitutes a crime under the Migratory Bird Act.” Id.

On August 19, 2011, the Government filed a second Affidavit for Issuance of Arrest Warrant or Summons which consisted of a Statement of Probable Cause by Richard A. Grosz, Special Agent for the United States Fish & Wildlife Service. See Docket No. 4. This signed declaration provides a more detailed summary of the allegations against Brigham Oil. According to Special Agent Grosz, Brigham Oil kept an oil reserve pit on a site referred to as “Lippert 1–12H No. 1–H.” See Docket No. 4, p. 7, ¶ 6. The contents of any reserve pit, as alleged in the declaration, can vary depending on “the type of drilling mud used, the formation drilled, and other chemicals added to the well bore during the drilling process.” See Docket No. 4, p. 2. Special Agent Grosz's Statement contains a list of approximately 18 chemicals, minerals or other substances that might be found in reserve pits. See Docket No. 4, pp. 2–3. It also lists seven ways in which birds could be exposed to these harmful chemicals. See Docket No. 4, pp. 3–4. The declaration does not specify what particular chemicals or substances, if any, were found in Brigham Oil's reserve pit.

North Dakota state law defines a reserve pit and sets forth the requirements for how and when a reserve pit is to be cleaned up or “reclaimed.” According to North Dakota state law, a “reserve pit” is “an excavated area used to contain drill cuttings accumulated during oil and gas drilling operations and mud-laden oil and gas drilling fluids used to confine oil, gas, or water to its native strata during the drilling of an oil and gas well.” N.D.C.C. § 38–08–02. Reserve pits must be reclaimed within a reasonable time, not to exceed one year, after completion of a well. N.D.A.C. § 43–02–03–19. A reserve pit is not required to be fenced, screened, or netted “unless such pit is not reclaimed in excess of ninety days after completion of the operation.” N.D.A.C. § 43–02–03–19.1.

On May 6, 2011, Special Agent Grosz and Service Contaminants Specialist Micah Reuber inspected the Lippert site. See Docket No. 4, p. 7, ¶ 6. Special Agent Grosz inspected the pit and noted it was not netted or flagged at the time of inspection. Id. ¶ 8. He noticed an oil sheen “on the fluid of the reserve pit.” Id. During the inspection, Special Agent Grosz observed and collected “two dead and oiled mallards.” Id. Drilling began at the Lippert site on June 20, 2010, and was completed on November 14, 2010. See Docket No. 4, p. 7, ¶ 7. With regard to the cause of death, Special Agent Grosz states: “It reasonably appeared the two mallards died as a result of exposure to the contents of the oil pit.” Id. ¶ 8. The statement contains no allegations regarding when the birds may have died and whether the pit was netted or flagged at the time.

B. The Government's Case Against Newfield Production Company.

Newfield Production Company also develops oil and gas properties in the region of the Bakken Shale formation in the Williston Basin. Newfield Production operates in the State of North Dakota and is licensed by the North Dakota Secretary of State under ID No. 21902400. See Case No. 4:11–po–009, Docket No. 2–1, p. 6. One of Newfield Production's development sites is known as “Manolo 21–16–1H” and is located in Williams County, North Dakota. Id. at. p. 8, ¶ 9.

The Newfield Production Information is virtually identical to the Brigham Oil Information, except the date of the charged offense is May 18–19, 2011, and the list of birds includes two mallards, one northern pintail and one ring-necked duck. The Information states the following:

Between on or about May 18, 2011 and May 19, 2011, in the District of North Dakota, Newfield Production Company, without being permitted to do so by regulation as required by law, did take migratory birds, to wit: two Mallards, one Northern Pintail, and one Red–Necked Duck, in violation of the Migratory Bird Treaty Act; In violation of Title 16, United States Code, Sections 703 and 707(a).

See Docket No. 1. The Information does not contain an explanation of the phrase “without being permitted to do so by regulation as required by law.” The Information does not explain the manner in which Newfield Production allegedly “took” the birds.

On August 19, 2011, the Government also filed an Affidavit for Issuance of Arrest Warrant or Summons in the Newfield Production case, which consisted of a Statement of Probable Cause (“Statement”) by Special Agent Grosz. See Docket No. 2–1. This signed declaration provides a more detailed summary of the allegations against Newfield Production. On May 18, 2011, the U.S. Fish & Wildlife Service received notice that fluid from the Manolo reserve pit overflowed the pit boundary, flowed into a coulee and then into some wetland on a private property. See Docket No. 2–1, p. 8, ¶ 6. According to Special Agent Grosz's declaration, an inspector from the North Dakota Department of Health found two dead ducks along the edge of the impacted wetland. See Docket No. 2–1, p. 8, ¶ 7. Fisheries Biologist Fred Ryckman found a third “dead and oiled” duck along the same wetland edge. Docket No. 2–1, p. 8, ¶ 8. Special Agent Grosz found another “dead and oiled” bird approximately 100 yards from the wetland edge. Docket No. 2–1, p. 8, ¶ 9. Based upon his experience and education, Special Agent Grosz states that “it reasonably appeared the two dead mallards, one dead pintail, and one dead ring-tailed duck died as a result of exposure to the oil [sic] which spilled from the oil reserve pit.” Docket No. 2–1, pp. 8–9, ¶ 12.

Drilling began at the Manolo site on September 18, 2010 and was completed on February 14, 2011. See Docket No. 2–1, p. 8, ¶ 11. The Statement of Probable Cause does not indicate whether the Manolo reserve pit was netted, screened or fenced at the time the dead birds were found. The statement also does not reveal whether netting would have prevented birds from being exposed to oily substances that overflowed...