United States v. Citgo Petroleum Corp.

• Decision Date: 05 September 2012
• Docket Number: Criminal Action No. C–06–563.
• Citation: 893 F.Supp.2d 841
• Parties: UNITED STATES of America, Plaintiff, v. CITGO PETROLEUM CORPORATION, Citgo Refining and Chemicals Company, L.P., Defendants.
• Court: U.S. District Court — Southern District of Texas

893 F.Supp.2d 841

UNITED STATES of America, Plaintiff,

v.CITGO PETROLEUM CORPORATION, Citgo Refining and Chemicals Company, L.P., Defendants.

Criminal Action No. C–06–563.

United States District Court,

S.D. Texas,

Corpus Christi Division.

Sept. 5, 2012.

Howard P. Stewart, James B. Nelson, Lary Cook Larson, United States Department of Justice, Washington, DC, James L. Turner, Financial Litigation, US Attorneys Office, Houston, TX, US Marshal, US Pretrial Services, US Probation, Kenneth A. Cusick, Office of US Attorney, Corpus Christi, TX, for Plaintiff.

Dick DeGuerin, DeGuerin and Dickson, Catherine Louise Baen, Attorney at Law, James B. Blackburn, Jr., Blackburn Carter PC, Matt Hennessy, Houston, TX, Daniel D. Birk, Nathan P. Eimer, Eimer Stahl LLP, Chicago, IL, Ralph F. Meyer, Royston, Rayzor, Vickery & Williams, L.L.P., Corpus Christi, TX, Robert Brager, Beveridge and Diamond PC, Baltimore, MD, for Defendants.

MEMORANDUM OPINION & ORDER

JOHN D. RAINEY, Senior District Judge.

Pending before the Court is Defendants CITGO Petroleum Corporation and CITGO Refining and Chemicals Company, L.P.'s (collectively “CITGO”) Motion to Vacate CITGO's Conviction for Violations of the Migratory Bird Treaty Act (Dkt. No. 766), to which the United States of America (“the Government”) has responded(Dkt. No. 770) and CITGO has replied (Dkt. No. 771). Having considered the motion, response, reply, record, and relevant law, the Court is of the opinion that CITGO's motion should be DENIED.

I. Background

The Migratory Bird Treaty Act (MTBA) makes it unlawful for any person, “at any time, by any means or in any manner,” to take or kill any migratory bird without a permit or as otherwise provided by regulations. 16 U.S.C. § 703(a). The MBTA creates three classes of crimes: (1) a strict liability Class B misdemeanor, Id. § 707(a); (2) a felony for a knowing sale, Id. § 707(b); and (3) a Class A misdemeanor for the placement of bait for the purpose of aiding in taking, Id. § 707(c).

On July 17, 2007, CITGO was convicted of Counts Eight, Nine, and Ten of the Superseding Indictment for unlawfully taking and aiding and abetting the taking of migratory birds. All three convictions were Class B misdemeanors under § 707(a). The Indictment alleged that between April and May of 2003, ten birds were found in two large open-top tanks identified as Tanks 116 and 117 at the CITGO East Refinery Plant, a petroleum refinery owned and operated by CITGO. According to the Indictment, because the birds were found in tanks owned by CITGO, CITGO had taken, or aided and abetted in the taking of, migratory birds in violation of the MTBA.

During the bench trial, the Government introduced testimony and other evidence that migratory birds and the remains of migratory birds were found in Tanks 116 and 117. ( See, e.g., 7/17/2007 Trial Tr. at 161:1–13.) According to the evidence presented at trial, these birds flew into the tanks and died as a result of landing in oil. ( See, e.g., Id. at 182:10–20.) The Court returned a verdict of guilty and entered conviction against CITGO on three counts of violating the MBTA. In a separate jury trial, CITGO was also convicted of failing to install emission control equipment (roofs) on the two tanks where the migratory birds were found, in violation of the Clean Air Act. 42 U.S.C. §§ 7413(c)(1) & 7411(e); 40 C.F.R. § 60.692–4.

CITGO now moves the Court to vacate its convictions under the MTBA on the grounds that the Government's Indictment fails to state an offense.

II. Legal Standard

Federal Rule of Criminal Procedure 12 provides that, “at any time while the case is pending, the court may hear a claim that the indictment or information fails to invoke the court's jurisdiction or to state an offense.” Fed. R. Crim P. 12(b)(3)(B). See also United States v. Oberski, 734 F.2d 1034, 1035 (5th Cir.1984) (“[A]n objection that an indictment fails to state an offense can be raised any time during the pendency of the proceedings.”).

III. Analysis

CITGO argues that the MTBA criminalizes the unlawful taking or killing of migratory birds by hunting, trapping, poaching, or similar means, but it does not criminalize commercial activities in which migratory birds are unintentionally killed as a result of activity completely unrelated to hunting, trapping, or poaching. Because its conduct of operating Tanks 116 and 117 was not directed at the capture of wildlife, CITGO claims that the Indictment failed to state an offense, and the convictions must be vacated. In response, the Government argues that because the MTBA prohibits the taking or killing of a migratory bird “at any time, by any means or in any manner,” 16 U.S.C. § 703(a), the MBTA extends beyond hunting, trapping, or poaching and reaches conduct by corporations that results in the taking and killing of migratory birds. As such, the Government contends that the Indictment in this case was sufficient, and CITGO's convictions should stand.

A number of courts have determined that the MTBA is limited in its intended scope to the types of activities engaged in by hunters and poachers and does not extend to other acts that indirectly or unintentionally cause the death of protected birds. See Newton County Wildlife Ass'n v. U.S. Forest Serv., 113 F.3d 110, 115 (8th Cir.1997) (“[T]he ambiguous terms ‘take’ and ‘kill’ in 16 U.S.C. § 703 mean ‘physical conduct of the sort engaged in by hunters and poachers, conduct which was undoubtedly a concern at the time of the statute's enactment in 1918.’ ”) (quoting Seattle Audubon Soc'y v. Evans, 952 F.2d 297, 303 (9th Cir.1991)); United States v. Brigham Oil & Gas L.P., 840 F.Supp.2d 1202, 1211 (D.N.D.2012) (“Like timber harvesting, oil development and production activities are not the sort of physical conduct engaged in by hunters and poachers, and such activities do not fall under the prohibitions of the [MBTA].”); United States v. Chevron, 2009 WL 3645170, *3 (W.D.La. Oct. 30, 2009) (“It is clear and that the provisions of the MTBA were designed to deal with persons who hunt or trap migratory game birds.”); Mahler v. U.S. Forest Serv., 927 F.Supp. 1559, 1579 (S.D.Ind.1996) (“Properly interpreted, the MBTA applies to activities that are intended to harm birds or to exploit harm to birds, such as hunting or trapping, and trafficking in birds and bird parts. The MBTA does not apply to other activities that result in unintended deaths of migratory birds.”); Citizens Interested in Bull Run, Inc. v. Edrington, 781 F.Supp. 1502, 1510 (D.Or.1991) (“I further find that the Act was intended to apply to individual hunters and poachers ....”).

An almost equal number of courts, however, have explicitly rejected the argument that the MTBA is limited to activities such as hunting, trapping, and poaching, but instead reaches other conduct that results in the taking and killing of migratory birds. For example, in Corbin Farm Service, the court held that the MTBA applied to defendants that accidentally poisoned migratory ducks by applying pesticide to an alfalfa field, noting that § 703 made it illegal to kill migratory birds “by any means or in any manner.” United States v. Corbin Farm Serv., 444 F.Supp. 510, 532 (E.D.Cal.1978), aff'd on other grounds,578 F.2d 259 (9th Cir.1978). The court examined the MBTA's legislative history and concluded:

The fact that Congress was primarily concerned with hunting does not, however, indicate that hunting was its sole concern. Paring the language of section 703 down to its essentials, the section makes it illegal ‘at any time, by any means or in any manner, to ... kill ... any migratory bird ....’ The use of the broad language ‘by any means or in any manner’ belies the contention that Congress intended to limit the imposition of criminal penalties to those who hunted or captured migratory birds. Moreover, a number of songbirds and other birds not commonly hunted are protected by the conventions and so by the Act; Congress imposed criminal penalties on those who killed these birds as well as on persons who hunted game birds. The legislative history of the Act reveals no intention to limit the Act so that it would not apply to poisoning.

Id.

Similarly, the court in Moon Lake held that the MTBA applied to the actions of a rural electrical distribution cooperative in failing to take protective measures to prevent migratory birds from being electrocuted by its power lines, also recognizing that § 703 made it illegal to kill migratory birds “at any time, by any means or in any manner.” United States v. Moon Lake Electric Ass'n, Inc., 45 F.Supp.2d 1070, 1074 (D.Colo.1999). The Court explained that “[i]In proscribing the acts of taking, capturing, killing, possessing, selling, purchasing, importing, exporting and transporting, Congress expressed a clear intent to proscribe conduct beyond that associated only with hunting, trapping or poaching.” Id. See also United States v. Van Fossan, 899 F.2d 636, 637 (7th Cir.1990) (upholding defendant's conviction for accidentally poisoning migratory birds while intending to poison non-migratory birds, stating that “[a]lthough neither [the common grackle nor the mourning dove] seems to need protection, each is ‘migratory’ and the regulations under the Migratory Bird Treaty Act do not allow people to poison them ....”); United States v. FMC Corp., 572 F.2d 902, 908 (2d Cir.1978) (upholding pesticide manufacturer's conviction under the MBTA for killing migratory birds as a result of dumping waste water into a retaining pond frequented by migratory birds and rejecting the argument that there must be an intent to harm birds in order to sustain a conviction); United States v. Apollo Energies, Inc., 611 F.3d 679 (10th Cir.2010) (affirming oil producers' misdemeanor convictions under the MTBA after dead migratory birds were discovered lodged in pieces of their oil drilling equipment); United States v. Rollins, 706 F.Supp. 742, 745 (D.Idaho 1989) (noting that criminal liability could be...