Case 2:06-cr Document 770 Filed in TXSD on 04/18/12 Page 1 of 10 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS CORPUS CHRISTI DIVISION

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1 Case 2:06-cr Document 770 Filed in TXSD on 04/18/12 Page 1 of 10 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS CORPUS CHRISTI DIVISION UNITED STATES OF AMERICA v. CRIMINAL NO. C CITGO PETROLEUM CORPORATION, CITGO REFINING AND CHEMICALS COMPANY, L.P., Defendants RESPONSE OF THE UNITED STATES TO CITGO S MOTION TO VACATE CONVICTIONS FOR VIOLATIONS OF THE MIGRATORY BIRD TREATY ACT COMES NOW, the United States of America and files this Response to CITGO s Motion to Vacate Convictions for Violations of the Migratory Bird Treaty Act and in support thereof avers the following. I. BACKGROUND The Government agrees with and accepts the Background section of the defendants motion except for the last paragraph. The Migratory Bird Treaty Act (MBTA) 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). As shown below contrary to CITGO s contention the MBTA extends beyond hunting, trapping or poaching and reaches conduct by corporations like CITGO that result in the taking and killing of migratory birds. As such, the indictment in this case was sufficient and CITGO s conviction should stand.

2 Case 2:06-cr Document 770 Filed in TXSD on 04/18/12 Page 2 of 10 II. ANALYSIS The defendants argument for vacating their convictions is that the district court erroneously construed the MBTA, and that as a result, the indictment failed to state an offense. In so doing, they disregard the plain language of the statute. Basic statutory construction confirms that the MBTA was properly charged in this case. Therefore, the proper analysis is one of statutory construction. In all statutory construction cases, the district court should begin with the language of the statute. The first step is to determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case. Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997) (citing United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 240 (1989)). The inquiry ceases if the statutory language is unambiguous and the statutory scheme is coherent and consistent. 519 U.S. at 340. See also Barnhart v. Sigmon Coal Co., Inc. 534 U.S. 438, 450,(U.S.,2002 ); Carrieri v. Jobs.com Inc., 393 F.3d 508, 518 (5 th Cir. 2004). If the district court properly construed the statute, the indictment is facially sufficient as it states the charges in the plain, concise language of the statute. See Hamling v. United States, 418 U.S. 87, 117 (1974); Fed. R. Crim. P., Rule 7 (c) (1). A. The Plain Language of the Statute Makes the MBTA Apply to All Takings of Migratory Birds The MBTA states that: Unless and except as permitted by regulations made as hereinafter provided, it shall be unlawful at any time, by any means or in any manner, to pursue, hunt, take, capture, kill attempt to take, capture, or kill, possess, offer for sale, sell offer to barter, barter, offer to purchase, purchase, deliver for shipment, ship, export, import cause to be shipped, exported, or imported, deliver for transportation, transport or cause to be transported, carry, cause to be carried, or receive for shipment, transportation, carriage, or export, any migratory bird, any part, nest or egg of any such bird or any product, whether or not manufactured, which consists or is composed in 2

3 Case 2:06-cr Document 770 Filed in TXSD on 04/18/12 Page 3 of 10 whole or part of any such bird, or any part, nest, or egg thereof, included in the terms of the conventions between the United States [and great Britain, Mexico, Japan, and the Soviet Union]. 16 U.S.C Contrary to the defendants position, the plain language of the statute far exceeds just hunting, trapping or poaching. On its face, the MBTA makes it unlawful at any time, by any means or in any manner to...take...or kill...any migratory bird. Id. Under the regulations promulgated pursuant to the MBTA the term take means hunt, shoot, wound, kill, trap, capture, or collect or attempt to pursue, hunt, shoot kill, trap collect, capture or collect. (Emphasis ours). 50 C.F.R Since the term kill is not further defined in the regulations, it should be given its common and ordinary meaning. 1 Under the act, Person is defined as any individual, firm, corporation, association, partnership, association, club or private body, anyone or all, as the context requires. 50 C.F.R The statute s plain language prohibits the taking and killing of migratory birds by any means or in any manner...by, among others, a corporation. Id. (Emphasis ours). The Tenth Circuit has noted that the actions criminalized by the MBTA may be legion, but they are not vague. United States v. Apollo Energies, Inc, 611 F.3d 679, 689 (10 th Cir. 2010) 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. See United States v. Moon lake Electric Ass n, Inc., 45 F. Supp. 2d 1070, 1074 (D. Colo. 1999). It is certainly possible to import 1 Kill is defined as 1.a. to put to death. b. to deprive of life. 2. to put an end to: EXTINGUISH. Webster s II New Riverside University Dictionary, 1988, p

4 Case 2:06-cr Document 770 Filed in TXSD on 04/18/12 Page 4 of 10 or export a migratory bird without hunting or poaching it. Indeed, only the prohibition making it unlawful to hunt proscribes conduct that is within the exclusive province of hunters, trappers or poachers. The MBTA s prohibitions have further clear indications that it reaches beyond sport hunting. The Act protects Bald and Golden Eagles, it protects Brown Pelicans and various migratory birds which cannot be hunted. See 16 U.S.C. 688 et seq.; 50 C.F.R The Act prohibits the sale of a migratory birds carcass found in a field. Congress expressly included the words take and kill in addition to hunting, shooting and trapping. 16 U.S.C. 703 (a). The Act also prohibits capturing. Id. The MBTA expressly prohibits taking or killing of migratory birds by any means or in any manner. 16 U.S.C All of these terms extend beyond the activities of hunting. If Congress had intended to limit the MBTA to hunting related violations it would have clearly said so. Moreover, not only does the MBTA prohibit acts beyond those normally associated with hunting, trapping or poaching, the statute prohibits them at any time, by any means or in any manner. 16 U.S.C. 703 (a) (emphasis added). When Congress repeatedly uses a term like any in a statute like the MBTA, it plainly intends to proscribe any conduct that violates its provisions. See Mass. v. EPA, 549 U.S. 497, (2007) (citing Dep t. of Housing and Urban Development v. Rucker, 535 U.S. 125,131 (2002) ( the word any has an expansive meaning, that is, one or some indiscriminately of whatever kind ). Finally, when a statute enumerates several terms using the disjunctive (an or ), each term is to be given independent effect. See e.g. Reiter v. Sonotone Corp., 442 U.S. 330, 339 (1979) (observing with regard to statutory construction that courts are obliged to give effect, if possible, to statutory wording and noting that terms connected by the disjunctive be given separate meanings). 4

5 Case 2:06-cr Document 770 Filed in TXSD on 04/18/12 Page 5 of 10 B. Defendants Overlook Congress Clear Intent on the Breath of the MBTA. To give effect to their argument, the defendants urge the Court to ignore or read out the words at any time, by any means or in any manner and read into the statute an intent requirement where none exists and where none was intended by Congress. To enforce its prohibition, the MBTA creates three classes of crimes (there is no civil enforcement mechanism): (1) a strict liability Class B misdemeanor, 16 U.S.C. 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). CITGO stands convicted of the Class B misdemeanor. CITGO was also convicted of failing to install emission control equipment (roofs) on the two tanks (116 and 117) where the migratory birds were found. And, there was un-challenged evidence that a CITGO employee had warned the company through the environmental manager that migratory birds were being killed in a smaller uncovered oil tank on the facility. 2 The defendants position is that the MBTA must be read to require specific intent, i.e. hunting or trapping a migratory bird. That position is contrary to the long standing interpretation of the statute and the stated congressional intent. The defendants rely primarily on two district court cases to support their position, United States v. Brigham Oil & Gas, L.P., 2012 WL (D.N.D) January 17, 2012, and United States v. Ray Westall Operating, Inc., 2009 U.S. Dist. LEXIS (D.N.M.). The government believes these cases were wrongly decided. In both matters, the district court judges simply chose to ignore the plain language of the statute, the Congressional record, and existing case law and to inexplicably read a scienter requirement into 2 Tanks 116 and 17 were thirty feet high, and 240 feet in diameter with oil 10 and 7 feet deep respectively. The tanks were huge with a massive pond like surface area covered in waste oil. 5

6 Case 2:06-cr Document 770 Filed in TXSD on 04/18/12 Page 6 of 10 the strict liability misdemeanor provision of the MBTA. Westall, moreover, was subsequently overruled by the Tenth Circuit in Apollo Energies, 611 F.3d at 689, a fact CITGO never mentions. Congress, moreover, in 1986 added the word knowingly to create the felony offense of selling migratory birds, while leaving intact the language of the misdemeanor provision without an explicit mens rea requirement. This further evidences the legislative scheme invokes a lesser mental state for misdemeanor violations. United States v. Apollo Energies, Inc., 611 F.3d 679, 686 (10 th Cir. 2010) (up holding corporate conviction under strict liability standard for killing migratory birds in company s equipment used to separate oil from water during pumping operations). Congress has also consistently referred to misdemeanor violations under the MBTA as strict liability offenses. When amending the MBTA to add scienter requirements for felony offenses in 1986, Congress was careful to note that [n]othing in this amendment is intended to alter the strict liability standard for misdemeanor prosecutions under 16 U.S.C. 707 (a), a standard which has been upheld in many federal court decisions. S.Rep. No at 16 (1986). United States v. Morgan, 311 F.3d 611, 615 (5 th Cir. 2002). The Eighth Circuit Court of Appeals explicitly has rejected the notion that the MBTA s Class B misdemeanor offense includes a scienter element. See United States v. Manning, 787 F.2d 431, 435 ( 8 th Cir. 1986) ( it is not necessary to prove that a defendant violated the [MBTA] with specific intent or guilty knowledge ). At least eight other federal courts of appeal, including the Fifth Circuit, agree with the Eight Circuit that the Class B 6

7 Case 2:06-cr Document 770 Filed in TXSD on 04/18/12 Page 7 of 10 misdemeanor provision is a strict liability offense. 3 Make no mistake, CITGO s illegal conduct not covering tanks 116 and 117 was the direct cause of the deaths of migratory birds. 4 Courts have held that the Migratory Bird Treaty Act reaches as far as direct, though unintended, bird poisoning from toxic substances. See, e.g., United States v. FMC Corp., 572 F.2d 902 (2d Cir.1978) (killing of migratory birds by dumping waste water); United States v. Corbin Farm Serv., 444 F.Supp. 510 (E.D.Cal.), affirmed on other grounds, 578 F.2d 259 (9th Cir.1978) (deaths of birds resulting from misapplication of pesticides). In FMC Corp., the Second Circuit imposed strict criminal liability for poisoning birds by analogizing to principles of strict tort liability arising from dangerous conditions or substances. 572 F.2d at That case involved the manufacture of a highly toxic pesticide. Id. at 906. In Corbin Farm Serv., the district court simply held that the MBTA can constitutionally be applied to impose criminal penalties on those who did not intend to kill migratory birds. 444 F.Supp. at 536. The defendants reliance on Newton Cty. Wildlife Ass n v. U.S. Forest Serv., 113 F.3d 110 (8 th Cir. 1997) is also misplaced. There, the Wildlife Association sued the Forest Service to enjoin the sale of timber in the Ozark National Forest, on the grounds that the Forest Service did 3 Accord Apollo Energies, 611 F.3d at 685 (citing United States v. Morgan 311 F.3d 611, (5 th Cir. 2002); United States v. Pitrone, 115 F.3d 1, 5 (1 st Cir. 1997); United States v. Hogan, 89 F.3d 403, 404 (7 th Cir. 1996); United States v. Boynton, 63 F.3d 337, 343 (4 th Cir. 1995); United States v. Engler, 806 F.2d 425, 431 (3 rd Cor. 1986); United States v. Catlett, 747 F.2d 1102, 1105 (6 th Cir.1984) (per curium); United States v. FMC Corp., 572 F.2d 902, (2 nd Cir. 1978). 4 Contrary to the assertion of the defendants, migratory birds killed on the CITGO facility were not taken indirectly as result of the refining process. The evidence established that the migratory birds on the CITGO refinery were killed as a direct result of being exposed to waste oil in uncovered tanks tanks that under federal law were required to be covered. CITGO s failure to install roofs on tanks 116 and 117, not only violated the Clean Air Act, it directly resulted in the taking of migratory birds in violation of the MBTA. 7

8 Case 2:06-cr Document 770 Filed in TXSD on 04/18/12 Page 8 of 10 not obtain a MBTA permit from the Fish and Wildlife Service. The Wildlife Association alleged, and the Forest Service conceded, that logging under the timber sales would disrupt nesting migratory birds, killing some. Id. at 115. The Court of Appeals noted that the MBTA does not create a private right of action. Id. at 114. The Court of Appeals also found that the MBTA does not apply to the actions of federal government agencies. Id. at 115, citing United States v. Cooper Corp., 312 U.S. 600, 604 (1941) ( Since in common usage the term person does not include the sovereign, statutes employing the phrase are ordinarily construed to exclude it. ). The Court of Appeals acknowledged that timber harvesting indirectly results in the death of migratory birds. However, that was not the basis of the decision. The Court of Appeals ruled that the [MBTA] permitting regulation, though potentially broad, does not on its face apply to the Forest Service or other federal agencies. See 50 C.F.R Newton Cty. Wildlife Ass n., 113 F.3d at The carefully selected excerpts from the Newton Cty. Wildlife Ass n., opinion relied upon by the defendants, are merely dicta and not the basis of the appeals court ruling in that case. One further piece of legislative history is compelling, and completely ignored by CITGO: the Incidental Taking of Migratory Birds During Military Readiness Activities Amendment (hereinafter Incidental Take Amendment ) Public Law , 16 Stat (Dec. 2, 2002). The Incidental Take Amendment was passed in response to a D.C. District Court opinion finding that the Navy s live-fire training exercises in the Northern Marianas Islands resulting in the take of migratory birds without a permit violated the MBTA and the Administrative Procedure Act. See Center for Biological Diversity v. Pirie, 191 F. Supp. 2d 161 (D.D.C. 2002), vacated sub. 8

9 Case 2:06-cr Document 770 Filed in TXSD on 04/18/12 Page 9 of 10 nom. Center for Biological Diversity v. England, 2003 WL (D.C. Dir. Jan. 23, 2003). The Incidental Take Amendment provided interim authority for incidental takings by a member of the Armed Forces during a military-readiness activity. Pub. L at (a). It further directs the Secretary to exercise his authority under 16 U.S.C. 704(a) to prescribe regulations to exempt the Armed Forces from the prohibitions of the MBTA for the incidental taking of migratory birds during military-readiness activities. Id. More importantly, the Incidental Take Amendment expressly does not provide any authority or exemption for the operation of industrial activities, nor for other activities analogous to those in this case such as routine operation of water treatment facilities. Id. at (f)(2)(b). The Incidental Take Amendment affirms the plain language of the prohibition against killing migratory birds by any means or by any manner, including expressly the type of activity at issue in this case. Such legislation would be unnecessary if the MBTA did not apply outside the context of hunting, trapping or poaching. 5 IV. CONCLUSION WHEREFORE, and for the reasons stated above, the United States requests that the Court deny CITGO s Motion to Vacate its Convictions for Violations of the Migratory Bird Treaty Act. Respectfully submitted, /s/ Howard P. Stewart HOWARD P. STEWART Senior Litigation Counsel Environmental Crimes Section 5 For similar reasons, there would be on need for the Fish and Wildlife Service s proposed permitting regime for regulating seabird take by vessels in the Hawaiian swordfish fishery, if the MBTA applied only to hunting, trapping or poaching. See 77 Fed. Reg (proposed rule). 9

10 Case 2:06-cr Document 770 Filed in TXSD on 04/18/12 Page 10 of 10 CERTIFICATE OF SERVICE JAMES B. NELSON Trial Attorney Environmental Crimes Section U.S. Department of Justice I hereby certify that a true and correct copy of the foregoing Response of the United States to CITGO s Motion to Vacate Convictions for Violations of the Migratory Bird Treaty Act was served on counsel for the defendants as identified below via the ECF System. Dick DeGuerin, Esquire Matt Hennessy, Esquire 1018 Preston Ave., 7th Floor 1018 Preston Ave., 7th Floor Houston, Texas Houston, Texas PH: (713) PH: (713) FX: (713) FX: (713) James B. Blackburn, Jr., Esquire Nathan P. Eimer, Esquire Blackburn Carter, P.C. Eimer Stahl Klevorn & Solberg LLP 4709 Austin 224 South Michigan Ave., Suite 1100 Houston, Texas Chicago, Illinois PH: (713) PH: (312) FX: (713) FX: (312) Catherine Baen, Esquire 1018 Preston, 8th Floor Houston, Texas PH: (713) FX: (713) DATED: April 18, 2012 /s/ Howard P. Stewart HOWARD P. STEWART Senior Litigation Counsel Environmental Crimes Section U.S. Department of Justice 10