Chopping down the birds: logging and the Migratory Bird Treaty Act.

   [A] national interest of very nearly the first magnitude is involved. It
   can be protected only by national action.... But for the Treaty and the
   statute, there soon might be no birds....(1)

I. INTRODUCTION

The Migratory Bird Treaty Act (MBTA or Act)(2) is one of the oldest conservation statutes in the United States.(3) To execute the international treaty established between the United States and Great Britain (on behalf of Canada), Congress passed the MBTA in 1918 with the goal of protecting all migratory birds in the jurisdiction of the United States.(4) In very broad language section 703 prohibits the taking and killing of any migratory bird: "it shall be unlawful at any time, by any means or in any manner ... to kill ... any migratory bird...."(5)

Recently, environmental groups and activists have begun to utilize the broad language(6) of the MBTA in more expansive ways in order to broaden the application of the Act.(7) Similarly, the government expanded MBTA enforcement by employing new methods.(8) Courts in various circuits have heard cases concerning logging projects that threatened to directly destroy migratory bird habitat, as well as nests, eggs,(9) and juvenile migratory birds in violation of the MBTA. Generally, these lawsuits have failed,(10) but scholars and courts alike question whether the actions of loggers indeed violate the Act.(11)

Despite the relatively clear language of the statute,(12) these questions arise because courts often utilize different and contradictory methods to interpret the Act.(13) Disparate application from each court leads to non-uniform enforcement of the MBTA and also causes unfair and unpredictable results. For example, loggers with the apparent approval of the United States Forest Service (USFS or Forest Service) have killed thousands of migratory birds each year and have escaped prosecution.(14) By contrast, both a person who received a product with a single feather from a migratory bird(15) and an electric company that inadvertently electrocuted a dozen migratory birds(16) were prosecuted.

Courts use three different approaches to limit the expanding scope of the MBTA, and these contradictory methods have resulted in a split among the circuits. The first approach is based on whether specific intent (mens rea) is required to hold the violator guilty.(17) While most courts find mens rea is not required under the MBTA, some courts continue to hold it is conclusive of MBTA guilt.(18) A second group of courts distinguish between direct and indirect activities that have taken or killed migratory birds.(19) Most of the MBTA actions against logging operations adopt this analysis and require a "direct" taking of migratory birds to establish guilt.(20) Finally, the third approach limits the scope of the MBTA through a proximate cause analysis.(21) This proximate cause analysis is the only method that uniformly and fairly applies the law.

The proximate cause analysis is the most just method of analyzing MBTA actions because one case often contains conflicting arguments when each of the first two approaches are applied concurrently. For example, a violator may directly take a migratory bird, but she may do so without mens rea. Analyzing MBTA guilt under either of the first two methods could result in a not guilty verdict in a circuit that employs the mens rea analysis and a guilty verdict in a different circuit that applies the direct and indirect taking analysis.

This Comment will demonstrate that the courts are improperly interpreting the MBTA to continue to allow USFS and loggers contracting through USFS to expressly violate the MBTA. Currently, USFS and loggers enjoy a unique and unlawful exemption from prosecution(22) that should not be continued. Part II of this Comment will outline the three approaches that courts have developed in interpreting the MBTA and explain why the proximate cause analysis must be used. Part III focuses on procedural aspects of MBTA actions against USFS and on agencies in general. Part III also examines why agencies have failed and how they may succeed in the future. Finally, Part IV shows that USFS and loggers have not been subject to prosecution or even investigation under the MBTA and that loggers must be held responsible for the birds they kill in violation of the MBTA. If USFS can arbitrarily and flagrantly choose to violate the law without the authority to do so, then the significance and effectiveness of the entire Act is compromised.

II. COURTS SHOULD USE A PROXIMATE CAUSE ANALYSIS TO UNIFORMLY PROSECUTE THE MBTA

Initially, prosecutors used the MBTA to prevent both illegal or untagged hunting and the selling of migratory birds and bird parts.(23) However, as early as 1920, the United States Supreme Court recognized that Congress intended and expected to protect other types of birds in addition to those that were hunted.(24) These other birds included songbirds and insectivorous birds, which, as Justice Holmes explained, "were of great value ... in destroying insects injurious to vegetation [and] were in danger of extermination through lack of adequate protection."(25)

Sections 1(26) and 2(27) of the MBTA and the accompanying regulations allow some taking of migratory birds.(28) However, except for those explicit exemptions, the comprehensive language of the MBTA forbids killing or taking birds "at any time, by any means, or in any manner"(29) and appears to include any conceivable method in which migratory birds have been killed. Courts have developed three approaches to limit the exceedingly broad language of the Act and to create a manageable and practicable scope for the MBTA.

A. Mens Rea Analyses Are Mainly Irrelevant for Determining MBTA Guilt

The first approach courts formed to limit the language of the MBTA focuses on the mens rea(30) or intent of the violator. This requirement of mens rea has become one of the most intriguing questions that courts have wrestled with in cases brought under the expanding scope of the MBTA. As violators were prosecuted, defendants continuously argued that they did not intend to breach the law and that they could not be held guilty under the MBTA because they did not possess a culpable mental state.(31) Because the statute is silent on this point, courts were left to determine whether scienter, or guilty intent, is indeed required.(32)

This concept arises in two major situations under the MBTA. The first occurs with the baiting regulations of the MBTA,(33) in which hunters take birds "by aid of bait."(34) This Part instead focuses on the second category, which first became relevant when the United States Fish and Wildlife Service (FWS)(35) began to prosecute newer areas: how courts have dealt with mens rea when the alleged violators did not necessarily intend to take migratory birds at all.(36) In these cases, violators killed birds in the process of doing something else, and they argue that because they did not intend to kill birds at all, they cannot be guilty under the MBTA.

The United States began to prosecute violators who apparently lacked the intent to kill or take migratory birds in 1978. In those cases, FWS argued that "the MBTA does not require specific intent."(37) Although this type of violation had not previously been prosecuted,(38) two circuits heard cases with very similar fact situations in the same year.

The first example arises in United States v. Corbin Farm Service (Corbin Farm),(39) in which FWS applied the MBTA against a commercial farm that spread a deadly pesticide over its alfalfa field. FWS argued that the language preventing killing and taking of birds "at any time, by any means or in any manner"(40) includes birds dying after ingesting pesticide. Defendants Corbin Farm Service (the dealer and distributor of the pesticides), an employee of Corbin Farm Service that provided advice to the farmers, the owner of the alfalfa field, and the aerial operator who sprayed the field were all prosecuted under the MBTA.(41) In their defense, they argued that there was a requirement of scienter, or guilty intent, to be found guilty.(42)

After thoroughly examining the MBTA, the district court held that "[t]he legislative history of the Act reveals no intention to limit the Act so that it would not apply to poisoning."(43) Moreover, the court declared that "it is clear that Congress intended to make the unlawful killing of even one bird an offense."(44) Simply because American widgeons(45) were "taken" and "killed" as a result of eating the sprayed alfalfa, all the defendants were found guilty of violating the MBTA.(46) The California district court maintained that this crime was a "public welfare offense,"(47) and that "when dealing with pesticides, the public [was] put on notice that it should exercise care to prevent injury to the environment and to other persons."(48) In Corbin Farm, no specific requirement of mens rea or scienter was necessary for an MBTA violation. The Ninth Circuit later affirmed this holding.(49)

Similar to Corbin Farm, the Second Circuit held, in United States v. FMC Corp.,(50) that a corporation that produced a toxic pesticide violated the MBTA when the pesticide leaked into a wastewater pond and poisoned at least forty birds of varying species.(51) FMC used the ten-acre wastewater pond for drainage, and because of its immense size and open location, the pond attracted many migratory birds.(52) Unfortunately, due to the large concentration of carbofuran in the pond,(53) great numbers of those birds died. Despite FMC's significant efforts to keep them away,(54) the birds continued to flock to the poison-filled pond and continued to die.

FMC argued that even in public welfare offenses, there must be an intended affirmative act or "an intent to harm birds culminating in their death for there to be a conviction."(55) However, the court rejected this argument and held that FMC had in fact performed an affirmative act: "it engaged in the manufacture of a pesticide known to be highly toxic. Then it failed to act to prevent this dangerous chemical from reaching the pond where it was dangerous to birds and other living organisms that ingested, or came into close contact with, the chemical."(56) The court proclaimed,

   [a]s civilization advances so have other protections for individuals
   against convictions without scienter or even knowledge that a crime is
   being committed.([57]) But as science, with its technological achievements,
   produces an ever widening array of poisonous pesticides for the destruction
   of food-and-grain destroying insects, so the manufacturers of such products
   will have to be ever on guard lest the waste created in the manufacturing
   process causes damage [to wildlife].(58)

FMC's intent was irrelevant; therefore, even though the company was actively trying to prevent the deaths of the birds, the court concluded that the pesticide company must be held guilty under the MBTA.(59)

Following the lead of the Second and Ninth Circuits, most of the other circuits applied the MBTA as a strict liability statute and began to regard intent as an immaterial factor for its violation. However, in 1985, the strict liability standard of the felony provision(60) of the MBTA was challenged,(61) and in response, Congress added the word "knowingly" to the statute.(62)

In United States v. Wulff, the Sixth Circuit held that a felony conviction without the requirement of scienter (guilty intent) violated due process.(63) The Sixth Circuit reasoned that this provision violated due process because the crime was "not one known to the common law, and because the felony penalty provision [was] severe and would result in irreparable damage to one's reputation."(64) Therefore, Congress revisited the MBTA for the fourth time since it was passed in 1918 and inserted "knowingly" as a modifier solely for the felony provision.(65)

Congress intended a specific interpretation for the word "knowingly" in felonies under the MBTA.(66) The legislative history indicates that knowledge of actions violating the statute or knowledge that the specific bird killed was listed in the international treaties that the MBTA implemented does not necessarily constitute guilt.(67) Instead, Congress sought only "to require proof that the defendant knew (1) that his actions constituted a taking, sale, [or] barter ..., and (2) that the item so taken, sold, or bartered was a bird or a portion thereof."(68) Congress did not leave room for ignorance of the law as a defense.(69)

However, Congress did not intend to impose a scienter requirement for the whole MBTA. Congress's failure to add the word "knowingly" to the misdemeanor provision when it added that word to the felony provision buttresses the interpretation of the misdemeanor provision as a strict liability statute.(70) Perhaps more importantly, Congress left the misdemeanor provision unmodified, even following the expanded judicial interpretations applying the provision as a strict liability statute in FMC Corp. and Corbin Farm.(71)

Currently, most circuits apply the MBTA as a strict liability statute and thus do not require mens rea for a misdemeanor violation.(72) For example, in United States v. Corrow, the Tenth Circuit recently found a defendant guilty for trafficking in and possessing protected bird feathers.(73) Defendant Corrow attempted to purchase and later sell a group of Native American religious ceremonial masks known as Yei B'Chei, which consisted of golden eagle and great-horned owl feathers.(74) Unbeknownst to him, Corrow had agreed to sell the Yei B'Chei to an undercover National Park service ranger. Following the sale, he was prosecuted under the MBTA.(75) Without much discussion, the Tenth Circuit declared that "the plain language of section 703 renders simple possession of protected feathers unlawful."(76) It acknowledged that it joined the majority of circuits in holding that there is no scienter requirement in this strict liability scheme, and it found there was enough evidence to permit a rational jury to find Mr. Corrow possessed protected bird feathers "whether he did so knowingly or not."(77)

However, despite the growing consensus, in 1996, a district court in Indiana held that the MBTA required mens rea in the context of logging.(78) Not only does this directly violate the law of almost all the circuits, but it also contradicts the express precedent of the Seventh Circuit.(79) This blatant mistake resulted from both the enormous confusion concerning which method of MBTA analysis to apply to loggers and the strong policy to not enforce the MBTA against loggers and the Forest Service. Even though the Forest Service clearly violated the Act, the court relied on mens rea to hold that the Forest Service was not guilty under the MBTA.(80)

B. Direct-Indirect Analyses Are Incomplete and Have No Statutory Support

A second approach that courts have utilized to limit the scope of the MBTA focuses on whether the offender acted directly or indirectly. Although this analysis is applied to fact scenarios similar to the previous approach, its analysis is quite different. In a direct-indirect analysis, courts hold that there is a distinction between a direct take, which is prohibited by the MBTA, and an indirect take, which would only lead to eventual death of the migratory birds. For the most part, logging cases have fallen into the latter category because courts find that logging takes the habitat, which only indirectly takes the birds.(81) When loggers destroy the trees and nests that migratory birds inhabit, they decrease the available habitat for the birds as they migrate, and this can lead to their deaths. Also, as more birds are killed during their nesting season, the destruction of habitat could lead to an eventual elimination of the entire species of birds.

Seattle Audubon Society v. Evans (Seattle II) is the seminal case using the direct-indirect analysis.(82) In Seattle II, the Seattle Audubon Society and the Portland Audubon Society asserted that timber sales in Oregon and Washington that destroyed spotted owl habitat were "tantamount to a proscribed `taking' under the [MBTA]."(83) The Ninth Circuit compared the take provision of the MBTA with the take provision of the Endangered Species Act (ESA)(84) and concluded that Congress intended to provide greater protection under the ESA.(85) This is because the ESA's take provision includes the words "harass" and "harm,"(86) and neither of those words are included in the MBTA.

The Ninth Circuit recognized that "the differences in the proscribed conduct under the ESA and the MBTA are `distinct and purposeful.'"(87) The word "harm"--as defined in FWS regulations defining "take"--encompasses habitat modification for the ESA.(88) But because "harm" was not in the MBTA's definition of "take," the Ninth Circuit concluded that Congress did not intend to include cover habitat modification in the MBTA.(89) Therefore, taking the forest habitat by logging did not directly violate the MBTA.(90) Logging only indirectly took the owls because it took their habitat.(91) Asserting that a direct taking was necessary to violate the MBTA, the court in Seattle II found no violation of the MBTA.(92)

Most courts confronted with disputes between logging or timber sales and would-be MBTA enforcers cite Seattle II and adopt its reasoning.(93) However, there is nothing in the plain language or the legislative history of the MBTA that requires the killing or taking of migratory birds to be direct. In fact, the broad language states that "it shall be unlawful at any time, by any means or in any manner ... to kill ... any migratory bird,"(94) and this language indicates that a violation could encompass an indirect taking or killing. While courts do have the authority to interpret the Act to limit the broad language in this way, courts have only applied this direct-indirect distinction in the area of logging. Courts have failed to adequately utilize this distinction in other indirect fact situations that have arisen under the MBTA.

For example, migratory birds are indirectly killed when they land in oil sludge pits, collect oil on their wings, and are unable to fly.(95) Yet the government prosecutes owners of these oil pits, and courts do not use the indirect-direct distinction to allow the oil pit owners to escape liability.(96) Instead, the owners of the oil pits are found guilty of violating the MBTA and are required to pay numerous fines to the government.(97) Also, FWS chose to prosecute "indirect" takings when migratory birds were electrocuted by rural power lines and, therefore, taken by a power company.(98) Again, in this indirect taking situation, the Court found the electric company guilty of violating the MBTA.(99) Since courts find oil producers and electric companies that indirectly kill and take migratory birds guilty of violating the Act, their rationale for pardoning loggers that indirectly kill through habitat destruction is unfair and once again causes unpredictable results.

Additionally, all the cases that follow Seattle II(100) do not answer the contention that loggers directly take migratory bird nests and juvenile birds. Although the nests and juvenile birds--as well as countless feathers--are directly taken, the courts ignore these arguments and only state that an indirect taking of migratory birds by habitat modification does not violate the Act.(101)

Only one logging case does not follow Seattle II's analysis concerning the MBTA. In Mahler v. United States Forest Service,(102) plaintiff Mahler argued that logging in Hoosier National Forest directly "takes" juvenile migratory birds and their nests during nesting season, as well as indirectly taking the habitat needed for reproduction.(103) Instead of resolving this issue under the direct-indirect analysis or holding that habitat modification does not violate the MBTA,(104) the Mahler court employed the mens rea method of analysis.(105)

The Mahler court evaded the difficult question of directly taking nests and juvenile birds and determined that the proper inquiry lay in whether the loggers intended to take and kill the birds.(106) However, as previously demonstrated,(107) within the Seventh Circuit,(108) intent is not a relevant factor for the MBTA. Mahler argued that the birds were directly killed and that the loggers directly took the nests; therefore, under the direct-indirect analysis, USFS should have been found guilty under the MBTA. Because the court did not want to reach that result, it conspicuously shifted the emphasis onto intent and under that analysis, held USFS not guilty.

Logging directly violates the MBTA, and without the authority, the Forest Service excuses this direct violation by approving and contracting for these logging practices.(109) Therefore, the Forest Service and the loggers should be held guilty of violating the Act. However, even if logging only indirectly violated the Act by taking the habitat of the birds and if courts were justified in limiting the application of the MBTA to direct takings, the direct-indirect analysis is incomplete and has been unfairly applied.

The direct-indirect distinction also does not account for causation in "indirect" killings.(110) Instead, courts have drawn ambiguous lines forming direct and indirect categories and have proceeded to unjustly fit cases into these categories. However, they seem only to utilize the direct-indirect distinction in the area of habitat modification, and apply this exclusively in the context of logging.

C. Proximate Cause Analyses Provide the Only Comprehensive Analytical Structure for Analyzing MBTA Guilt

A more appropriate method for determining guilt under the MBTA would be through the third method, which evaluates proximate cause. This category supersedes the issues of intent and directness. Usually, in this type of examination, the court considers both the tort concepts of proximate cause and cause in fact and then determines whether the violator in fact caused the killing or taking of the migratory birds.(111) This determination provides the best analysis for determining guilt, because it applies a uniform standard to every situation under which an MBTA claim could be brought.

United States v. Moon Lake Electric Ass'n(112) provides an example of the proximate cause analysis. In 1999, a United States District Court in Colorado held an electric company responsible for taking seventeen migratory birds when they came into contact with rural electric power lines.(113) Defendant Moon Lake presented an argument, derived from the first method of analysis that asserted the electric company lacked the intent to take birds; Moon Lake maintained that "Congress intended to target only poaching, hunting, trapping, and other `intentionally harmful' acts directed toward protected birds."(114) However, the court quickly dismissed this argument(115) and focused on whether the conduct of the electric company was the direct or proximate cause of the birds' deaths.(116)

Under this third method of analysis, even though the MBTA is a strict liability scheme, guilt must be determined by finding that the party constituted the cause in fact as well as the proximate cause of the birds' deaths.(117) The Moon Lake court analyzes five cases in which MBTA actions were brought against the Forest Service and loggers to prove that proximate cause is the best method of establishing guilt.(118) In this thorough examination, the court evaluates and rejects both of the previous methods, which rely on the issues of intent and directness or indirectness of the violation.(119)

Proximate cause was preferred over Seattle II's direct-indirect analysis(120) because "the type of physical conduct has a propensity to injure or kill a protected bird ... is subsumed within the causation element and has no bearing on the particular types of physical conduct prohibited by the MBTA."(121) In other words, it is irrelevant whether the conduct was direct or indirect; when the conduct constituted the cause in fact and the proximate cause of the birds' deaths, the court found conduct sufficient to establish guilt under the MBTA. Also, although the electric company did not necessarily intend to take the birds, it remained responsible under the MBTA because the power line was the proximate cause of the birds' deaths.(122) Similarly, when loggers' and the Forest Service's actions are the proximate cause of bird deaths, absent an acceptable exemption, they must be held responsible.

The Court in Moon Lake concluded its extensive analysis of the MBTA by stating that "proper application of the law to an MBTA prosecution ... should not lead to absurd results."(123) Denying the enforcement of the MBTA over loggers, which in fact kill thousands of migratory birds every year, and strictly enforcing the law against an individual that simply sells or donates one feather,(124) creates absurd results through inconsistent prosecution.

Because courts have developed the three different methods described above and each circuit and court relies on different reasoning for their holdings, MBTA prosecutions are circular. Courts do not specify which interpretation of the law will hold in that circuit. Defendants argue irrelevant issues such as intent, because it is unclear how each circuit will apply the MBTA, even when the issue has already been decided within the circuit.(125) Also, as explained above, the first two methods do not appropriately apply to the entire spectrum of situations that the MBTA was intended to cover. Both methods impose arbitrary restrictions without support from the plain language or the legislative history of the Act. As prosecution under the MBTA expands, the most effective method to uniformly and fairly limit the scope of the Act is through the application of proximate cause analysis.

III. FEDERAL AGENCIES HAVE AN OBLIGATION TO COMPLY WITH THE MBTA

In addition to the substantive confusion concerning which method of analysis courts should use, a major procedural issue has protected loggers and USFS from guilt under the MBTA. The issue is whether the Forest Service, as a federal agency,(126) is within the jurisdiction of the MBTA and whether the MBTA is, therefore, a law that binds agencies. The MBTA is a criminal statute,(127) and it does not contain a citizen suit provision to allow its enforcement. Consequently, only the Department of the Interior, through FWS, can enforce this law.(128) Therefore if FWS refuses to prosecute under the MBTA,(129) then the only manner for environmentalists or bird lovers to seek redress, theoretically, would be through section 702 of the Administrative Procedure Act (APA).(130) Section 702 allows citizens to sue an agency (in this case FWS or the Forest Service) for agency actions that are found to be arbitrary, capricious, or an abuse of discretion.(131)

A. The Eighth and Eleventh Circuits Preclude MBTA Actions Against Federal Agencies

In 1997, the Eighth and Eleventh Circuits held that the MBTA did not apply to federal agencies, and therefore, agencies had no obligations to uphold the MBTA.(132) Both of these decisions arose pursuant to environmental organizations suing the Forest Service under the APA in order to suspend timber sales as violations of the MBTA.(133) These decisions summarily blocked any MBTA actions for lack of jurisdiction against both the United States Forest Service and loggers contracting under the authority of the Forest Service.(134) If the Forest Service as a federal agency had no obligation to uphold the law (the MBTA), then, even if it violated the MBTA, it would be exempt from any APA action. Also, the Forest Service could not be held guilty for any direct MBTA infringement.

The Eighth Circuit reached this conclusion in Newton County Wildlife Association v. USFS.(135) Newton County Wildlife Association attempted to stop timber sales in the Ozark National Forest through a preliminary injunction claiming the Forest Service violated the MBTA.(136) The Eighth Circuit held the timber sales were "final agency actions subject to judicial review under [the] NFMA."(137) Therefore, the court examined the sales under the APA and had to determine whether the MBTA applied to agencies. The Eighth Circuit stated that its views were "necessarily tentative because [the court] lack[ed] the views of the Fish and Wildlife Service."(138) However, the court held that the permitting regulation, "though potentially broad, does not on its face apply to the Forest Service or other federal agencies."(139)

The Sierra Club brought a similar action under the APA in the Eleventh Circuit in Sierra Club v. Martin.(140) Similar to the Eighth Circuit, the Martin court examined the plain language of the MBTA and held the MBTA did not apply to the federal government.(141) Therefore, the court held that "[a]s no violation of the MBTA could occur by any formal action of the Forest Service, the Forest Service may not be enjoined under the APA."(142) For instance, because the MBTA was found inapplicable to federal agencies such as the Forest Service, the timber sales in the Chattahoochee and Oconee National Forests were not prevented.(143)

The plain language of the MBTA(144) states that it applies to "any person, association, partnership, or corporation who shall violate any provisions of said conventions or of this subchapter."(145) The Eighth and Eleventh Circuits found that the clear omission of the words "agency" or "agent" within the language of the Act and the accompanying regulations indicated Congress did not intend to include federal agencies and agents under the auspices of the Act.(146) Due to this interpretation, the APA actions against the Forest Service were dismissed in both of these cases.(147) Therefore, because the Forest Service was not a "person" under the statute, the plain language of the MBTA excluded federal agencies from the scope of the Act.(148)

The Eighth Circuit explained that because the common usage of the term "person" does not include the sovereign, statutes using "person" are construed to exclude the sovereign.(149) Also, the Supreme Court has a long established statutory canon that holds "the general words of a statute do not include the government or affect its rights unless the construction be clear and indisputable upon the text of the Act."(150) Because of these interpretations, environmental groups seemed to lack any power to bring legal enforcement actions under the APA. Thus, the United States Forest Service and any loggers working as part of the agency were protected from any liability under the MBTA.

B. The D.C. Circuit Holds That the MBTA Now Does Apply to Federal Agencies

In 1999, a District Court of the D.C. Circuit reached a conclusion substantially different than those of the Eight and Eleventh Circuits in an unpublished decision in Humane Society v. Glickman.(151) There, wildlife managers of the United States Department of Agriculture, in the Animal and Plant Health Inspection Service, Wildlife Services (APHIS-WS) developed a program to exterminate up to 3,245 Canada geese during the annual summer molt in Virginia.(152) These Canada geese caused numerous problems for the residents of Virginia "ranging from aesthetic concerns for geese `droppings' to safety concerns about the danger of Canada geese-aircraft strikes."(153) The agency developed a plan that included "harassment, biological control, exclusion, habitat alteration, husbandry, repellents, hunting, relocation, harassment and supplemental shooting, nest and egg destruction, and--of particular interest in this case--capture and euthanasia."(154) The Humane Society filed an action to prevent APHIS-WS from instigating this slaughter. Because APHIS-WS's actions were found to violate the MBTA and because the MBTA was held applicable to agencies, the slaughter was proscribed.(155)

In Glickman, the District Court also examined the plain language of the MBTA. It looked to the canon of statutory construction that excludes the government from the word "person" in a statute, and it noted that this canon only applies to two classes:(156) 1) "where an act, if not so limited, would deprive the sovereign of a recognized or established prerogative title or interest;"(157) and 2) "where a reading which would include [government] officers would work obvious absurdity as, for example, the application of a speed law to policeman pursuing a criminal or the driver of a fire engine responding to an alarm."(158)

The application of the MBTA to federal officials does not deprive the sovereign of a recognized or established prerogative or interest, and it does not work an obvious absurdity. Accordingly, the D.C. District Court found that the MBTA did not fit into either of the two applicable classes of this established canon of statutory interpretation and that the canon excluding government from the word "person" therefore should not be applied in this situation.(159)

In 2000, the D.C. Circuit Court of Appeals affirmed the decision of the District Court in Glickman.(160) In the affirming opinion, the court examined FWS's historical position on the issue of whether the Act applies to federal agencies.(161) The Court discussed an Environmental Assessment, issued on January 28, 1997, that "reflected the Interior Department's longstanding position that the [MBTA] restricted not only private parties and states, but also federal agencies."(162) Therefore, all members of federal agencies were required to receive permits under the Act before they took or killed any migratory birds.

However, also in 1997, the Director of FWS issued a memorandum to all regional directors stating that "federal agencies no longer needed to obtain a permit before taking or killing migratory birds."(163) Although this is the position of FWS as of 1997, the Interior Department conceded that the letter was not "a policy call on the part of the Service," nor "a `filling in' of the `gaps' in the statute."(164) Therefore, the D.C. Circuit Court did not defer to agency interpretation. The D.C. Circuit explicitly disagreed with the Eighth and Eleventh Circuits, and it held that the MBTA did in fact apply to federal agencies.(165)

C. The Supreme Court Recently Addressed the MBTA and Implies Agency Obligations Under the MBTA

Although this split between the D.C. Circuit and the Eighth and Eleventh Circuits has not been decisively resolved, in 1992 the Supreme Court performed a thorough analysis of the MBTA in Robertson v. Seattle Audubon Society (Robertson).(166) Robertson consolidated a group of extremely controversial and emotional Oregon and Washington lawsuits between loggers and proclaimed protectors of the spotted owl from the late 1980s and early 1990s.(167) These facts are analogous to the recent failed cases:(168) environmentalists were seeking to protect the spotted owl, and they sued under the MBTA and other environmental protection statutes(169) to prevent a select number of timber sales in the Northwest.(170)

The enormous controversy in the Northwest was supposed to be resolved when Congress stepped in and passed the Department of the Interior and Related Agencies Appropriations Act of 1990(171) (commonly known as the Northwest Timber Compromise). However, Robertson centered on problems of interpretation concerning the Northwest Timber Compromise and on problems concerning whether that Compromise was intended to replace the previous laws or whether both the previous law and the current law were to be upheld.(172) In a discussion of section 318 b(6) (a) of the Compromise, Justice Thomas, writing for a unanimous court, explained the confusion by stating that "under subsection (b) (6) (A), the agencies could satisfy their MBTA obligations in either of two ways: by managing their lands so as neither to `kill' nor `take' any northern spotted owl within the meaning of [sections] 2, or by managing their lands so as not to violate the prohibitions of subsections (b) (3) and (b) (5)."(173)

Also, the Supreme Court implied that agencies possess certain duties under the MBTA when it stated that, "[b]efore the [Northwest Timber] compromise was enacted, the courts that adjudicated these MBTA claims were obliged to determine whether the challenged harvesting would `kill' or `take' any northern spotted owl, within the meaning of [sections] 2 [of the MBTA]."(174) Therefore, in two separate sections of its opinion in Robertson, the Supreme Court indicated that federal agencies did possess obligations under the MBTA.

D. Federal Agencies Must Be Included Within the MBTA Because of Written Exemptions and the Implementation of International Treaties

FWS promulgated regulations that exempt its personnel from the requirements of the MBTA.(175) The exemptions provided in the regulations allow a FWS employee--as an employee of the Department of the Interior--to "take or otherwise acquire, hold in custody, transport, and dispose of" migratory birds without a permit.(176) If all agencies were not subject to the provisions of the MBTA, then this special exemption for the employees of FWS would be unnecessary.

Also, as the D.C. Circuit explained in Glickman, Congress did not intend "to exempt federal agencies from [the Act]. Indeed it would be odd if they were exempt,"(177) because the Act implements international treaties.(178) The Court finds that the MBTA should be treated in the same way as the Migratory Bird Treaty itself, and because federal agencies would be required to follow the terms of the treaty, they also must follow the terms of the Act.(179)

Therefore, despite the strong positions of the Eighth and Eleventh Circuits proclaiming that the MBTA does not apply to agencies, the D.C. Circuit and the Supreme Court itself indicate that Congress did not intend to exclude agencies from the reach of the MBTA. There are express exemptions available for FWS agents, and such provisions would not have been necessary if federal agencies and agents all were exempt from the Act. The MBTA was meant to apply to "everyone in the United States, including federal agencies."(180)

IV. MBTA PROSECUTION OF LOGGERS IN PRACTICE AND IMPLICATIONS OF PROSECUTING THE FOREST SERVICE

While courts continue to create categories to shelter the United States Forest Service and loggers from the MBTA, such actions are unnecessary because FWS has created an unwritten, informal exemption for logging practices.(181) FWS has an unwritten policy to never enforce the MBTA against loggers and also to never even investigate possible MBTA violations. In a March 7, 1996 memorandum, the Director of FWS notes that FWS "has had a long standing, unwritten policy relative to the MBTA that no enforcement or investigative action should be taken in incidents involving logging operations that result in the taking of non-endangered, non-threatened, migratory birds and/or their nests."(182) Within the same memo, the Director asserts that FWS will "continue to enforce the MBTA in accordance with [that] long-standing policy."(183)

This is clearly inconsistent with the manner in which the MBTA has been applied in other areas, and this determination must result from political pressure or other policy reasons. Obviously, courts apply the MBTA differently to loggers in order to prevent prosecution. They have done this by creating arbitrary limitations(184) and by applying different methods of analysis to protect loggers even when they have clearly violated the Act.(185)

Courts are improperly interpreting the MBTA in this confusing manner in order to allow logging to continue in our national forests. Timber harvests have long been established as one of the major uses for our national forests.(186) The National Forest Management Act(187) balances the interests of logging in the national forests with preserving the beauty and wildlife.(188) However, by attempting to explain why USFS and loggers do not violate the MBTA, and by simultaneously prosecuting small infractions such as possession of a single bird feather,(189) courts are undermining the significance of the MBTA and creating absurd results.

Also, by deliberately confusing the issue with different methods of analysis and unfairly enforcing the Act, courts are generating excessive litigation and cost. Environmental groups will continue to attempt to find loopholes to stop logging under the MBTA, courts will continue to find ways to distinguish between logging cases and smaller violations, and more confusion will ensue.

Although FWS could simply amend the regulations and provide a special exemption(190) for USFS and loggers, the enormous magnitude of birds killed each year by logging goes against the very purpose of the Act.(191) Logically, if USFS and any contracting logger working for USFS(192) can kill an unlimited and unmonitored amount of migratory birds (i.e., by taking their nests, feathers, and parts), then prosecuting a violator that sells or possesses an individual feather is ludicrous. Such inconsistent and arbitrary application threatens to make the entire Act moot.

Therefore, loggers and the Forest Service must be monitored for violations of the MBTA. Although some bird deaths would inevitably result, the vast majority of the killings and takings that violate the MBTA could be avoided if the Forest Service did not allow logging during the nesting season.(193) At the very least, FWS and the Forest Service should work together to determine appropriate methods to minimize the effects of logging on all migratory birds.

V. CONCLUSION

The Migratory Bird Treaty Act serves a vital function as one of the most comprehensive environmental protections of wildlife. The broad language of this Act does in fact apply to federal agencies (the Forest Service) and loggers. However, because of the improper interpretation of the MBTA by the courts and an unacceptable disjointed application of the law, loggers continue to evade prosecution for their explicit violations of the Act. This is especially disturbing considering that the MBTA is stringently enforced in seemingly less offensive areas.

The most effective manner to apply the MBTA uniformly would be to examine each fact scenario through a proximate cause analysis, and treat the Act as a strict liability statute. Then FWS and the Forest Service must unite to develop strategies to minimize bird deaths. Through this process, the Forest Service and loggers contracting through the Service should gain permits as the MBTA requires to take birds. Protecting migratory birds is of the utmost importance, and loggers must no longer be allowed to flagrantly violate this valuable act by chopping down the birds.

(1) State of Missouri v. Holland, 252 U.S. 416, 435 (1920).

(2) 16 U.S.C. [subsections] 703-712 (1994 & Supp. IV 1998).

(3) See United States v. Moon Lake Elec. Ass'n, 45 F. Supp. 2d 1070, 1079 (D. Colo. 1999).

(4) See 1916 Convention Preamble, reprinted in H.R. REP. No. 65-243, at 3 (1918) (explaining that the purpose of the Migratory Bird Convention was one "of saving from indiscriminate slaughter and of insuring the preservation of such migratory birds"); Andrus v. Allard, 444 U.S. 51, 61 (1979) (noting that "the Migratory Bird Treaty Act was intended to embrace the traditional conservation technique"); State of Missouri v. Holland, 252 U.S. at 435; Bailey v. Holland, 126 F.2d 317, 319 (4th Cir. 1942) ("[T]he United States and Great Britain agreed to take the necessary measures to insure the preservation of migratory birds.").

(5) 16 U.S.C. [sections] 703 (1994). The full text is as follows:

   Unless and except as permitted by regulations made as hereinafter provided
   in this subchapter, 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 or 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 whole or in 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 for the protection
   of migratory birds concluded August 16, 1916 (39 Stat. 1702), the United
   States and the United Mexican States for the protection of migratory birds
   and game mammals concluded February 7, 1936, the United States and the
   Government of Japan for the protection of migratory birds and birds in
   danger of extinction, and their environment concluded March 4, 1972 and the
   convention between the United States and the Union of Soviet Socialist
   Republics for the conservation of migratory birds and their environments
   concluded November 19, 1976.

(6) The Supreme Court described the Migratory Bird Treaty Act (MBTA) as "comprehensive," "exhaustive," "carefully enumerated," "expansive," and "sweepingly framed." Andrus v. Allard, 444 U.S. at 56, 57, 59-60. The Court also noted that "the word `any' has an expansive meaning." United States v. Gonzales, 520 U.S. 1, 5 (1997) (defining "any" as "one or some indiscriminately of whatever kind."); see also Alexander v. Boyd, 113 F.3d 1373, 1383 (4th Cir. 1997) (construing "any" to mean "all").

(7) See Seattle Audubon Soc'y v. Evans (Seattle II), 952 F.2d 297, 302 (9th Cir. 1991) (attempting to prevent logging timber from lands within habitat for the northern spotted owl); Robertson v. Seattle Audubon Soc'y, 503 U.S. 429, 432 (1992) (Audubon Society arguing that timber harvesting within national forests violated MBTA); Mahler v. United States Forest Serv., 927 F. Supp. 1559, 1573 (S.D. Ind. 1996) (attempting to prove that red pine salvage sale violates MBTA); Sierra Club v. United States Dept. of Agric., 116 F.3d 1482, slip op., 1997 WL 295308, at *1, *18 (7th Cir. 1997) (alleging that Amended Land and Resource Management Plan in Shawnee National Forest violated MBTA); Sierra Club v. Martin, 933 F. Supp. 1559, 1563 (N.D. Ga. 1996), rev'd, 110 F.3d 1551 (11th Cir. 1997) (seeking injunctive relief under APA for timber projects that violated MBTA); Newton County Wildlife Ass'n v. United States Forest Serv., 113 F.3d 110, 114 (8th Cir. 1997), cert. denied, 522 U.S. 1108 (Feb. 23, 1998) (alleging Buffalo River timber sales violated MBTA).

(8) Traditionally, the MBTA was utilized to prevent unlawful hunting and selling of migratory birds. Mahler, 927 F. Supp. at 1574 ("The MBTA was designed to forestall hunting of migratory birds and the sale of their parts."); United States v. North Dakota, 650 F.2d 911, 913 (8th Cir. 1981) (MBTA proscribes the hunting, capture, possession, and sale of migratory birds). Also, legislative history suggests Congress originally intended to regulate recreational and commercial hunting. See, e.g., 55 CONG. REC. 4401 (June 28, 1917) (Statements of Sens. King and McLean debating the potential conflict between the MBTA and state game laws); 55 CONG. REC. 4402 (June 28, 1917) (Statement of Sen. Smith (D-Ariz.): "This law is aimed at the professional pothunter, [one who hunts game for food ignoring the rules of sport]."); 55 CONG. REC. 4813 (July 9, 1917) (Statement of Sen. Reed (D-Mo.): "[The MBTA] proposes to turn ... powers over to the Secretary of Agriculture for the creation of zones, to tell white men when and where they can hunt, to make it a crime for a man to shoot game on his own farm...."); 55 CONG. REC. 4816 (July 9, 1917) (Statement of Sen. Smith (D-Ariz.): "Nobody is trying to do anything here except to keep pothunters from killing game out of season, ruining the eggs of nesting birds, and ruining the country by it. Enough birds will keep every insect off of every tree in America, and if you will quit shooting them they will do it."); 56 CONG. REC. 7357 (June 4, 1918) (statement of Rep. Fess (D-Ohio): annual food losses caused by insects require protection of birds from "the market hunter"); 56 CONG. REC. 7360 (June 4, 1918) (statement of Rep. Anthony (D-Kan.): "[T]he people who are against this bill are the market shooters, who want to go out and kill a lot of birds in the spring, when they ought not to kill them, and some so-called city sportsmen, who want spring shooting just to gratify a lust for slaughter."). See also Moon Lake Elec. Ass'n, 45 F. Supp. 2d at 1080; Mahler, 927 F. Supp. at 1574. Recently, the government has expanded MBTA prosecution by bringing actions against chemical companies and electric companies. See infra Parts II.A. and II.C.

(9) 16 U.S.C. [sections] 703 (1994) protects "any migratory bird, any part, nest, or egg of any such bird."

(10) See infra Part II.B.

(11) See Alliance for the Wild Rockies et al., Submission to the Commission on Environmental Cooperation Pursuant to Article 14 of the North American Agreement on Environmental Cooperation. at 8, available at http://www.cec.org/files/english/01-sub1.pdf (last visited Nov. 17, 2000) (arguing that MBTA prohibits killings caused by logging). Some scholars argue for more strict limitations of the MBTA, which would not include logging as a violation of the Act. See, e.g., Benjamin Means, Note, Prohibiting Conduct, Not Consequences: The Limited Reach of the Migratory Bird Treaty Act, 97 MICH. L. REV. 823, 824 (1998) (arguing that the MBTA must only cover activity that is directed at wildlife). However, others maintain that the scope of the MBTA should be extended to protect all habitats of migratory birds. See, e.g., Scott Finet, Habitat Protection and the Migratory Bird Treaty Act, 10 TUL. ENVTL. L.J. 1, 30 (1996) ("There has been limited progress towards affirmative judicial recognition of the MBTA's habitat protection potential. This is due in large part to the failure of courts to effectively implement the intent of the 1918 legislation and the treaties."); Erin C. Perkins, Migratory Birds and Multiple-Use Management: Using the Migratory Bird Treaty Act to Rejuvenate America's National Environmental Policy. 92 NW. U. L. REV. 817, 858 (1998) ("The history of the MBTA and of the four bilateral treaties it implements demonstrates the expansive scope of protection that the statute may afford to not only threatened wildlife but also to the ecosystems they inhabit."). Courts have questioned whether the United States Forest Service (USFS) has substantively violated the MBTA. See Sierra Club v. USDA, No. 94-CV-4061-JPG, 1995 U.S. Dist. Lexis 21507, at *58 (S.D. Ill. Sept. 25, 1995) ("The Forest Service has failed to respond to this [MBTA] argument in any meaningful way.... [T]he Court finds that the Forest Service has not adequately addressed the issue of whether the [Amended Land Resource Management Plan] will violate the MBTA....").

(12) See Moon Lake Elec. Ass'n, 45 F. Supp. 2d at 1079 (Judge Babcock proclaiming, "I do not regard the ... language as vague or ambiguous").

(13) See infra Part II.

(14) See Alliance for the Wild Rockies et al., supra note 11, at 7 (citing interalia Declaration of J. Christopher Haney, Ph.D., In Support of Application for Temporary Restraining Order and Motion for Preliminary Injunction, paras. 9-13, Newton County Wildlife Ass'n v. Rogers, 948 F. Supp. 50 (E.D. Ark. 1996) (Nos. LR-C-95-673, LR-C-95-676) (finding that up to 666 nests containing juvenile birds or eggs of seven migratory bird species would be destroyed as a result of four timber sales)); see also Sierra Club v. Martin, 110 F.3d 1551, 1553 (11th Cir. 1997) (estimating that up to 9,000 young migratory songbirds would be killed as a direct result of logging seven timber sales in the Chattahoochee National Forest).

(15) A woman was prosecuted after sending Hillary Clinton an illegal eagle feather in a "dream catcher" as a gift. See Alan McConagha, Hillary's Feathered Gift Gets Plucked: `Dream Catcher' Is a Nightmare, WASH. TIMES, Aug. 9, 1995, at A3, available at 1995 WL 2574833; They Swooped ECONOMIST, Aug. 19, 1995, at 27 ("If you are the sort of American who believes the federal government is bird-brained, here is apparent proof. Peg Bargon a middle-aged wife and mother in rural Monticello, Illinois, faces the possibility of a year in jail and a fine of $156,000 because of an eagle feather.").

(16) See Moon Lake Elec. Ass'n, 45 F. Supp. 2d at 1070 (holding that the MBTA does not regulate only intentionally harmful conduct).

(17) Courts have taken each side of this issue. Most hold that the MBTA is a strict liability statute and therefore, specific intent to violate the MBTA is not required. See United States v. Corbin Farm Serv., 444 F. Supp. 510, 536 (E.D. Cal. 1978), aff'd, 578 F.2d 259 (9th Cir. 1978) (holding no intent is required to violate the MBTA); United States v. FMC Corp., 572 F.2d 902 (2d Cir. 1978) (imposing strict liability on a pesticide manufacturer for polluting a drainage pond resulting in migratory bird deaths); United States v. Chandler, 753 F.2d 360 (4th Cir. 1985) (punishing hunters for shooting over baited areas without requiring proof that the hunters baited the ponds); United States v. Engler, 806 F.2d 425 (3d Cir. 1986) (requiring no scienter requirement for defendant found guilty of violating MBTA for selling migratory bird parts); United States v. Smith, 29 F.3d 270 (7th Cir. 1994) (finding defendant guilty of possessing eagle feathers in violation of MBTA after they were mailed to her from Canada); United States v. Corrow, 119 F.3d 796 (10th Cir. 1997) (holding defendant in violation of the MBTA for selling Native American religious headdresses with protected bird feathers). But see Mahler v. USFS, 927 F. Supp. 1559, 1579 (S.D. Ind. 1996) ("[P]roperly interpreted, the MBTA applies to activities that are intended to harm birds or to exploit harm to birds.... The MBTA does not apply to other activities that result in unintended deaths of migratory birds.").

(18) See discussion infra Part II.A.

(19) See Mahler, 927 F. Supp. at 1573 (rejecting plaintiff's argument that a red pine salvage project would indirectly "take" migratory birds by destroying their habitat); Seattle Audubon Soc'y v. Evans (Seattle II), 952 F.2d 297, 302 (9th Cir. 1991) (suggesting that habitat destruction which indirectly leads to bird deaths does not constitute a "taking" under the MBTA); Curry v. USFS, 988 F. Supp. 541 (W.D. Pa. 1997); Newton County Wildlife Ass'n v. USFS, 113 F.3d 110, 115 (8th Cir. 1997), cert. denied, 522 U.S. 1108 (Feb. 23, 1998) (holding that strict liability is inappropriate for activities, such as timber harvesting, that indirectly result in migratory bird deaths).

(20) See discussion infra Part II.B.

(21) Moon Lake Elec. Ass'n, 45 F. Supp. 2d at 1085 (asserting that "to obtain a guilty verdict under [the MBTA], the government must prove proximate causation, also known as `legal causation,' beyond a reasonable doubt").

(22) See Alliance for the Wild Rockies et al., supra note 11, at 6; Memorandum from FWS Director to Service Law Enforcement Offers, MBTA Enforcement Policy (Mar. 9, 1996) (on file with author).

(23) See sources cited supra note 8.

(24) See Missouri v. Holland, 252 U.S. 416, 431, 435 (1920) (recognizing that the MBTA protected many species of valuable birds as "protectors of our forests and our crops"). Id. at 435.

(25) Id. at 431.

(26) 16 U.S.C. [sections] 703 (1994).

(27) Id. [sections] 704.

(28) Section 1 states: "Unless and except as permitted by regulations made as hereinafter provided in this subchapter, it shall be unlawful to `take' a migratory bird." Section 2 states:

   [T]he Secretary of the Interior is authorized and directed, from time to
   time, having due regard to the zones of temperature and to the
   distribution, abundance, economic value, breeding habits, and times and
   lines of migratory flight of such birds, to determine when, to what extent,
   if at all, and by what means, it is compatible with the terms of the
   conventions to allow hunting, taking, capture, killing, possession, sale,
   purchase, shipment, transportation, carriage, or export of any such bird,
   or any part, nest, or egg thereof, and to adopt suitable regulations
   permitting and governing the same....

Id. [subsections] 703-704. "Each person intending to engage in an activity for which a permit is required [i.e., anything in violation of [sections] 703] ... shall, before commencing such activity, obtain a valid permit authorizing such activity." 50 C.F.R. [sections] 13.1 (1999).

(29) 16 U.S.C. [sections] 703 (1994).

(30) Literally, mens rea means "guilty mind." BLACK'S LAW DICTIONARY 999 (7th ed. 1999).

(31) See United States v. Pitrone, 115 F.3d 1, 4 (1st Cir. 1997) (defendant arguing that government "should have been required to prove beyond a reasonable doubt that he knew his conduct was unlawful"); United States v. Smith, 29 F.3d 270, 272 (7th Cir. 1994) (claiming that "she did not have the requisite criminal intent to be convicted of a crime"); United States v. Corrow, 119 F.3d 796, 805 (10th Cir. 1997) (defendant inviting the court to "read a scienter requirement into the MBTA").

(32) For a detailed analysis and history of mens rea in environmental regulatory laws, see Susan F. Mandiberg, The Dilemma of Mental State in Federal Regulatory Crimes: The Environmental Example, 25 ENVTL. L. 1165 (1995) (examining the mental state required for the Resource Conservation and Recovery Act (RCRA), the Migratory Bird Treaty Act, and the Clean Water Act (CWA)). Professor Mandiberg also distinguishes between the terms mens rea and scienter Id. at 1177-78. For this Comment, I treat the terms as synonymous.

(33) Hunters are not allowed to take birds "[b]y the aid of baiting, or on or over any baited area." 50 C.F.R. [sections] 20.21(i) (1999). By violating the regulations that FWS promulgated under the MBTA, the hunters violate the MBTA. "[E]xcept as permitted by regulations made as hereinafter provided in this subchapter, it shall be unlawful at any time, by any means or in any manner, to pursue, hunt, ... [or] kill ... any migratory bird." 16 U.S.C. [sections] 703 (1994).

(34) Usually these questions about the intent of the violator have arisen when the prosecution presented a case for violating the MBTA through the baiting regulations and the hunter did not know that the field was baited or he did not know that he was not allowed to take birds by aid of bait. See United States v. Schultze, 28 F. Supp. 234 (W.D. Ky. 1939) (prosecuting two hunters under the MBTA in violation of baiting regulations); United States v. Catlett, 747 F.2d 1102 (6th Cir. 1984) (finding bird hunters violated MBTA by taking birds over a baited field without intent or knowledge of the bait); United States v. Chandler, 753 F.2d 360 (4th Cir. 1985) (holding hunters guilty for taking birds over a baited pond even though third parties baited the pond); United States v. Manning, 787 F.2d 431, 435 n.4 (8th Cir. 1986) (requiring no scienter for this baiting case and stating "it is not necessary to prove that a defendant violated the Migratory Bird Treaty Act with specific intent or guilty knowledge"). But cf United States v. Adams, 174 F.3d 571, 575 (5th Cir. 1999) (holding that intent is considered in determining guilt under the MBTA, but the proper inquiry should be a "subjective interpretation" directed at the intent of the person spreading the bait instead of the intent of the hunter). This Comment will not examine baiting cases because they involve hunters who "knowingly" take birds and therefore present a question different from the one of unknowingly taking, killing, selling, or possessing birds.

(35) The United States Department of the Interior has the delegated the responsibility of enforcing the MBTA to the Fish and Wildlife Service (FWS). Migratory Bird Treaty Act, 16 U.S.C. [sections] 706 (1994); 50 C.F.R. [sections] 10.1 (1999). These regulations state that "[t]he regulations of [the MBTA] are promulgated to implement the following statutes enforced by the U.S. Fish and Wildlife Service...." Because the MBTA is a criminal statute, FWS is the only enforcer of the Act. See also Alliance for the Wild Rockies et al., supra note 11, at 12-13.

(36) This question examines whether intent is relevant at all to the guilt of a violator, and, if it is indeed important, what exactly the violator must have known she was doing.

(37) United States v. Corbin Farm Serv. (Corbin Farm), 444 F. Supp. 510, 529 n.9 (E.D. Cal. 1978), aff'd 578 F.2d 259 (9th Cir. 1978) (noting that "[t]he United States seeks to distinguish the cases ... on the ground that they all involve violations involving a specific intent, in contrast to [this] case"); United States v. FMC Corp., 572 F.2d 902, 904 (2d Cir. 1978) (stating that "[t]he Government argues ... that there is no requirement of intent").

(38) Prior to Corbin Farm, very few cases had addressed the mental state required to violate the MBTA (with the exception of the baiting cases). Corbin Farm, 444 F. Supp. at 533.

(39) 444 F. Supp. 510 (1978).

(40) 16 U.S.C. [sections] 703 (1994).

(41) Corbin Farm, 444 F. Supp. at 515.

(42) Id. at 532.

(43) Id.

(44) Id. at 529.

(45) American widgeons are classified as migratory birds. 50 C.F.R. [sections] 10.13 (1999).

(46) Corbin Farm, 444 F. Supp. at 515.

(47) A public welfare offense typically involves a crime that is so inherently dangerous to the public that the violator should have known that she could be violating a law. For the good of society, it should be the responsibility of the violator to check the laws that concern her activity. See generally United States v. Weitzenhoff, 35 F.3d 1275, 1283-86 (9th Cir. 1993), cert. denied, 513 U.S. 1128 (1995) (holding violators of the Clean Water Act liable even though they did not know they were violating the law). Also, the Supreme Court visited this idea in Staples v. United States, 511 U.S. 600, 607-12 (1994) (requiring that a public welfare offense be both dangerous and uncommon). But see Mandiberg, supra note 32, at 1215 (arguing that the MBTA is not a public welfare offense and instead that the facts of Corbin Farm constitute public welfare offense facts independent of the MBTA).

(48) Corbin Farm, 444 F. Supp. at 536.

(49) United States v. Corbin Farm Serv., 578 F.2d 259 (9th Cir. 1978).

(50) 572 F.2d 902 (2d Cir. 1978).

(51) FMC was held guilty for eighteen of the thirty-six MBTA counts brought against it. Id. at 903, 905.

(52) Id. at 905.

(53) This concentration was approximately 75 ppm, which is about 200 times greater than the level that could cause a significant probability of death to birds. Id.

(54) FMC attempted to place floats in the water to frighten the birds, but the floats actually attracted more birds. FMC placed nets over the pond, and it shot cannons and other noisemakers into the air to frighten the birds. Neighbors objected to the noise making tactics, and birds continued to get into the pond. Id.

(55) Id. at 906.

(56) Id. at 907.

(57) See supra note 47 (discussing the dynamics of public welfare offenses).

(58) FMC Corp., 572 F.2d at 907-08.

(59) Id. at 906, 908.

(60) 16 U.S.C. [sections] 707(b) (1994). This section states:

   Whoever, in violation of this subchapter, shall knowingly (1) take by any
   manner whatsoever any migratory bird with intent to sell, offer to sell,
   barter or offer to barter such bird, or (2) sell, offer for sale, barter or
   offer to barter, any migratory bird shall be guilty of a felony and shall
   be fined not more than $2,000 or imprisoned not more than two years, or
   both.

Id.

(61) United States v. Wulff, 758 F.2d 1121, 1125 (6th Cir. 1985).

(62) Pub. L. No. 99-645, tit. V, [sections] 501 (1986).

(63) Wulff, 758 F.2d at 1125.

(64) Id. at 1122. Before the amendment to [sections] 707(b), the Third Circuit reached the opposite conclusion on this same issue. See United States v. Engler, 806 F.2d 425 (3d Cir. 1986) (holding that the felony provision of the MBTA did not require scienter without violating due process and that the strict liability standard was sufficient).

(65) See supra note 60.

(66) See United States v. Pitrone, 115 F.3d 1, 5 (1st Cir. 1997) (identifying that Congress clearly indicated its intent when inserting the word "knowingly" into the felony provision of the MBTA).

(67) See S. REP. 99-445, at 16 (1986), reprinted in 1986 U.S.C.C.A.N. 6113, 6128.

(68) Id. See also Pitrone, 115 F.3d at 5 (1st Cir. 1997) (finding taxidermist in violation of felony provision of the MBTA for knowingly taking and selling mounted migratory birds). The court gave a "natural reading [of the MBTA], under which the word `knowingly' applies to the putative offender's actions rather than to the legality of those actions." Id. at 7; accord United States v. Flores, 753 F.2d 1499, 1505 (9th Cir. 1985) (holding that the government need not prove a specific intent to violate the statute).

(69) Pitrone, 115 F.3d at 7.

(70) See id. at 5; United States v. Smith, 29 F.3d 270 (7th Cir. 1994).

(71) See United States v. Moon Lake Elec. Ass'n, 45 F. Supp. 2d 1070, 1077 (D. Colo. 1999) (countering argument that 1974 Amendment to the MBTA should have included a mens rea requirement because it was only one year after the enactment of the Endangered Species Act, which did include a requirement of mens rea). The Moon Lake court explains that "[t]he 1974 amendment to the MBTA is ministerial because it simply recognizes the execution of a treaty between the United States and Japan." Id. See also Pub. L. No. 93-300, 25 U.S.T. 3329, T.I.A.S. No. 7990.

(72) Almost all circuits impose strict liability. See Smith, 29 F.3d at 273 (stating a "number of courts have held that the MBTA provides for strict liability and that the provision does not offend the requirements of due process"); Moon Lake Elec. Ass'n, 45 F. Supp. 2d at 1074 (observing "the MBTA does not seem overly concerned with how captivity, injury, or death occurs"); United States v. Engler, 806 F.2d 425, 436 (3rd Cir. 1986). But it is not a unanimous view. The Fifth Circuit and certain other courts choose not to follow this concept. See, e.g., United States v. Delahoussaye, 573 F.2d 910, 913 (5th Cir. 1978) (finding it unjust to penalize a hunter that unknowingly killed a duck that was lured in by a neighbor's caller); accord United States v. Adams, 174 F.3d 571, 575 (5th Cir. 1999) (stating that "the inquiry should be a subjective interpretation `directed at determining the intent of the person'").

(73) United States v. Corrow, 119 F.3d 796 (10th Cir. 1997).

(74) Id. at 798. Both of these birds and their feathers are protected as migratory bird parts. 50 C.F.R. [sections] 10.13 (1999).

(75) See Corrow, 119 F.3d at 799.

(76) Id. at 805 (noting "the majority of courts considering misdemeanor violations under [sections] 703 of the MBTA have treated these offenses as strict liability crimes" and joining in this analysis).

(77) Id. at 806. Strict liability does not consider intent. As the Seventh Circuit explains, "[t]he late Justice Oliver Wendell Holmes once pointed out the distinction between criminal and noncriminal intent by stating: `Even a dog distinguishes between being stumbled over and being kicked.'" Smith, 29 F.3d at 273 n. 1, quoting Morisette v. United States, 342 U.S. 246, 252 n. 9 (1952). The court then explains that, "[i]n strict liability cases, like this one, both stumbling over and kicking a dog result in criminal liability." Smith, 29 F.3d at 273 n. 1.

(78) See Mahler v. United States Forest Serv., 927 F. Supp. 1559, 1579 (S.D. Ind. 1996) ("Properly interpreted, the MBTA applies to activities that are intended to harm birds."). See infra Part II.B.

(79) Smith, 29 F.3d at 273 ("[S]ection 703 [of the MBTA] is neither vague nor overbroad.... What could be more clear? ... [I]f you [violate the MBTA], you break the law."). The Seventh Circuit also clearly states that the MBTA is a strict liability statute in Smith. Id. at 273 n. 1. See also supra note 72 (discussing almost complete unanimity of strict liability in the circuits); infra note 108 (stating that an MBTA case in the Seventh Circuit was a strict liability case).

(80) Mahler, 927 F.Supp. at 1583.

(81) Seattle Audubon Soc'y v. Evans (Seattle II), 952 F.2d 297, 302 (9th Cir. 1991).

(82) Id.

(83) Id. at 302.

(84) Endangered Species Act of 1973, 16 U.S.C. [subsections] 1531-1544, 1532 (1994).

(85) Seattle II, 952 F.2d at 302-03.

(86) ESA regulations define "harm" as "an act which actually kills or injures wildlife. Such act may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patters, including breeding, feeding, or sheltering." 50 C.F.R. [sections] 17.3 (1999).

(87) Seattle II, 952 F.2d at 303.

(88) See 50 C.F.R. [sections] 17.3 (1999) (explaining that "harm" encompasses habitat modification under the ESA).

(89) Seattle II, 952 F.2d at 303.

(90) Id.

(91) Id. at 303. The Supreme Court upheld the definition of "harm" as found in the ESA regulations to include habitat modification and degradation as a reasonable interpretation. Babbitt v. Sweet Home Chapter of Communities for a Great Or. (Sweet Home), 515 U.S. 687, 692 (1992).

(92) Seattle II, 952 F.2d at 303.

(93) Sierra Club v. United States Dept. of Agric., No. 96-2244, slip op. (7th Cir. 1997); Newton County Wildlife Ass'n v. United States Forest Serv., 113 F.3d 110, 114 (8th Cir. 1997), cert. denied 522 U.S. 1108 (Feb. 23, 1998): Citizens Interested in Bull Run, Inc. v. Edington, 781 F. Supp. 1502, 1502 (D. Or. 1991).

(94) Migratory Bird Treaty Act. 16 U.S.C. [sections] 703 (1994).

(95) See Conrad A. Fjetland, Possibilities for Expansion of the Migratory Bird Treaty Act for the Protection of Migratory Birds, 40 NAT. RESOURCES J. 47, 54-55 (2000) (noting that thousands of oil pits were contributing to migratory bird mortality).

(96) Id. at 55. Mr. Fjetland notes that FWS worked cooperatively with the oil industries to eliminate these problems before issuing fines and citations under the MBTA. Id. These methods of cooperation included "numerous seminars and ... nearly a thousand letters to oil and gas producers alerting them to the problem." Id. However, oil producers were still fined $40,000, and prosecution of oil producers that maintain oil pits that kill migratory birds continues as necessary. Id.

(97) Id.

(98) See infra Part II.C.

(99) See infra Part II.C.

(100) See supra note 93.

(101) See cases cited supra note 19.

(102) 927 F. Supp. 1559 (S.D. Ind. 1996).

(103) Id. at 1573.

(104) Id. However, the court does agree with Seattle II that habitat modification did not qualify as a taking under the MBTA. Id. at 1574 ("I further find that the Act was intended to apply to individual hunters and poachers, ... a `taking' under the MBTA does not include habitat modification resulting from Forest Service sales activity.") (quoting Citizens Interested In Bull Run, Inc. v. Edrington, 781 F. Supp. 1502, 1510 (D. Or. 1991)).

(105) Mahler, 927 F. Supp. at 1579 ("Properly interpreted, the MBTA applies to activities that are intended to harm birds or to exploit harm to birds, such as hunting and trapping, and trafficking in birds and bird parts. The MBTA does not apply to other activities that result in unintended deaths of migratory birds.").

(106) Id.

(107) See supra Part II.A.

(108) The Mahler Court declares that the issue of intent was left open in the Seventh Circuit, citing United States v. Van Fossan, 899 F.2d 636 (7th Cir. 1990), and United States r. Smith, 29 F.3d 270 (7th Cir. 1994). Mahler, 927 F. Supp. at 1578. However, the Seventh Circuit has not left this issue open. Smith, 29 F.3d at 273 n. 1 (deciding that the MBTA was a strict liability statute in the Seventh Circuit by stating "in a strict liability case, like this one"); see also supra Part II.A.

(109) The MBTA provides no express exemption to loggers or USFS. See supra note 28.

(110) See United States v. Moon Lake Elec. Ass'n, 45 F. Supp. 2d 1070, 1077 (D. Colo. 1999) (stating that the Ninth Circuit's "distinction between an `indirect' and `direct' `taking' is illogical," and that "[b]y focusing on whether the taking is `direct' or `indirect,' the Court conflates the causation element with the actus reus element").

(111) Id.

(112) 45 F. Supp. 2d 1070 (D. Colo. 1999).

(113) Id. at 1071. The dead birds include golden eagles, ferruginous hawks, and the great horned owl. These birds are all listed as migratory birds. 50 C.F.R. [sections] 10.13 (1999).

(114) Moon Lake, 45 F. Supp. 2d at 1072.

(115) "[W]hether Moon Lake intended to cause the deaths of 17 protected birds is irrelevant to its prosecution under [sections] 707(a)." Id. at 1074.

(116) Id. at 1077.

(117) Id., citing United States v. Baycon Indus. Inc., 744 F.2d 1505, 1506-07 (11th Cir. 1984) (stating that "the government must prove causation in a criminal prosecution under the Rivers and Harbors Appropriation Act despite its imposition of strict liability"): United States v. Tex-Tow, Inc., 589 F.2d 1310, 1313-14 (7th Cir. 1978) (holding that "causation is a required element in a civil action premised on the strict liability provision of the Federal Water Pollution Control Act"): Wayne R. LaFave & Austin W. Scott, Jr., CRIMINAL LAW [sections] 35, at 267 (1972) (referring to Model Penal Code [sections] 2.03, which requires that the actual result be a "probable consequence" of the actor's conduct, and stating that this is the "appropriate way in which to handle legal cause in strict liability case").

(118) Moon Lake, 45 F. Supp. 2d at 1077-78. Defendants presented these cases in an attempt to show their similarity. The cases are Seattle Audubon Soc'y v. Evans (Seattle II), 952 F.2d 297 (9th Cir. 1991); Newton County Wildlife Ass'n v. United States Forest Serv., 113 F.3d 110 (8th Cir. 1997); Curry v. United States Forest Serv., 988 F. Supp. 541 (W.D. Pa. 1997); Mahler v. United States Forest Serv., 927 F. Supp. 1559 (S.D. Ind. 1996); and Citizens Interested in Bull Run, Inc. v. Edrington, 781 F. Supp. 1502 (D. Or. 1991).

(119) Moon Lake, 45 F. Supp. 2d at 1077-78.

(120) See supra Part II.B.

(121) Moon Lake, 45 F. Supp. 2d at 1077.

(122) Id.

(123) Id. at 1085.

(124) Compare supra note 14 with supra note 15.

(125) See supra notes 79 & 108 (explaining the mistake within the Seventh Circuit of the application of strict liability in the Act).

(126) Interestingly, the Forest Service concedes that agents or parties contracting through USFS, i.e., loggers, are still obligated to uphold the provisions of the MBTA. Memorandum from FWS Director to Regional Director, Regions 1-7 (Apr. 16, 1997) ("It is important to note that Federal contractors and permittees, or any other non-Federal entities bearing some relationship to a Federal action are still subject to the prohibitions of the [MBTA].") (on file with author).

(127) 16 U.S.C. [subsections] 703-711 (1994 & Supp. IV 1998).

(128) Id. [sections] 706.

(129) Selective prosecution does not result in constitutional problems under the Equal Protection Clause. U.S. CONST. amend. VI.

(130) 5 U.S.C. [sections] 551-559, 701-706, 1305, 3105, 3344, 4301, 5335, 5372, 7521 (1994 & Supp. IV 1998). Section 702 provides that "[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof." Id. at [sections] 702 (1994). However, Heckler v. Chaney forbids any suits against a federal agency for a failure to perform its duty because agencies are granted a great amount of discretion. 470 U.S. 821 (1985). The only method that would allow a suit against a federal agency lies in the possible scenario of footnote four which states:

   We do not have in this case [Heckler] a refusal by the agency to institute
   proceedings based solely on the belief that it lacks jurisdiction. Nor do
   we have a situation where it could justifiably be found that the agency has
   `conspicuously and expressly adopted a general policy' that is so extreme
   as to amount to an abdication of its statutory responsibilities ... [u]nder
   ... those situations the statute conferring authority on the agency might
   indicate that such decisions were not `committed to agency discretion.'

Id. at 833 n.4 (emphasis added). The failure to prosecute loggers and the Forest Service under the MBTA could be a situation in which FWS has adopted a policy "so extreme as to amount to an abdication of its statutory responsibilities." If USFS violates the law, then citizens could bring an action under Section 702 of the APA. 5 U.S.C. [sections] 702 (1994). See also Alliance for the Wild Rockies et al., supra note 11, at 8 (noting that "citizens cannot directly challenge the actions of persons who violate the Act").

(131) 5 U.S.C. [sections] 706(2) (1994).

(132) Sierra Club v. Martin, 110 F.3d 1551, 1555-56 (11th Cir. 1997); Newton County Wildlife Ass'n v. USFS, 113 F.3d 110, 115 (8th Cir. 1997), cert. denied, 522 U.S. 1108 (Feb. 23, 1998). In Newton County Wildlife Ass'n, the Forest Service "concedes that logging under the timber sales will disrupt nesting migratory birds, killing some." Id. at 115. However, due to the analysis, this MBTA violation was irrelevant.

(133) Martin, 110 F.3d at 1553.

(134) The National Forest Management Act (NFMA) delegates the authority to the Forest Service to control logging operations within federal forests and elsewhere. National Forest Management Act of 1976, 16 U.S.C. [sections] 1600(6) (1985). However, the court does not acknowledge the fact that the loggers and federal contractors carrying out the operations could be considered "persons" under section 707 of the MBTA. See Humane Society v. Glickman, 217 F.3d 882, 886 (D.C. Cir. 2000).

(135) 113 F.3d at 112. The environmental group also brought a claim under the Wild and Scenic Rivers Act. See id, 16 U.S.C. [subsections] 1271, 1274 (1994 & Supp. IV 1998).

(136) Newton County Wildlife Ass'n, 113 F.3d at 112.

(137) Id. at 114.

(138) Id. at 115.

(139) Id. Newton County Wildlife Association was arguing that USFS should seek permits for timber sales in order to kill or take any of the nesting birds. Id. at 114. Interestingly, in Newton County Wildlife Ass'n, the Forest Service "concedes that logging under the timber sales will disrupt nesting migratory birds, killing some." Id. However, the Eighth Circuit held that the MBTA should only apply to "physical conduct of the sort engaged in by hunters and poachers," and it should not be "an absolute criminal prohibition on conduct, such as timber harvesting, that indirectly results in the death of migratory birds." Id. at 115 (quoting Seattle Audubon Soc'y v. Evans, 922 F.2d 297, 302 (9th Cir. 1991)). Therefore, even if the Eighth Circuit held that the MBTA did apply to agencies, the court probably would not have imposed liability on the Forest Service under the direct-indirect analysis.

(140) 110 F.3d 1551 (11th Cir. 1997). George Martin was sued in his official capacity as the Forest Supervisor of the Chattahoochee and Oconee National Forests. Id. The Sierra Club also brought actions under the Clean Water Act and the NFMA in this same case. Id. at 1553.

(141) Martin, 110 F.3d at 1556.

(142) Id.

(143) Id.

(144) 16 U.S.C. [sections] 707(a) (1994 & Supp. IV 1998).

(145) Id.

(146) Martin, 110 F.3d at 1556 ("The MBTA does not apply to the federal government."); Newton County Wildlife Ass'n, 113 F.3d at 115 ("[T]he permitting regulation, though potentially broad, does not on its face apply to the Forest Service or other federal agencies.").

(147) Martin, 110 F.3d at 1556; Newton County Wildlife Ass'n, 113 F.3d at 116.

(148) The language of the Act includes "any person, association, partnership, or corporation who shall violate any provisions of said conventions or of this subchapter." 16 U.S.C. [sections] 707(a) (1994 & Supp. IV 1998). The Martin court holds that "there is no expression of congressional intent which would warrant holding that `person' includes the federal government." Martin, 110 F.3d at 1555. "Person" in the ESA includes "any officer, employee, agent, department, or instrumentality of the Federal Government." 16 U.S.C. [sections] 1532(13) (1994).

(149) Newton County Wildlife Ass'n, 113 F.3d at 115, citing United States v. Cooper Corp., 312 U.S. 600, 604 (1941).

(150) Nardone v. United States, 302 U.S. 379, 383 (1937); accord United States v. Herron, 87 U.S. (20 Wall.) 251, 255 (1874); Dollar Sav. Bank v. United States, 86 U.S. (19 Wall.) 227, 239 (1874). But see discussion infra Part III.B. (describing how the D.C. Circuit interprets the MBTA).

(151) No. 98-1510, slip op. (D.D.C. July 6, 1999), aff'd, 273 F.3d 882 (D.C. Cir. 2000).

(152) Id. at 1. Canada geese are listed as migratory birds. 50 C.F.R. [sections] 10.13 (1999).

(153) Glickman, No. 98-1510 at 1.

(154) Id. at 2.

(155) Id. at 5, 21. Interestingly, the district court tentatively distinguished its cases from the logging cases within the Eighth and Eleventh Circuits by utilizing the direct-indirect method of interpretation and relying on the fact that the logging cases were an indirect taking of migratory birds. Id. at 19-20. The court surmised that the Eighth and Eleventh Circuits' "decisions may have been motivated, in part, by considerations unique to the facts...." Id. at 19.

(156) Glickman, No. 98-1510 at 11, citing Nardone, 302 U.S. at 383. Although the Glickman court noted that Nardone did not necessarily limit this canon to these two categories, it did not provide any further reach nor did it "intimate that the canon's reach extended any further." Id. at 12 n.5, citing State v. Ramsey, 165 F.3d 980, 987 (D.C. Cir. 1999). However, the Seventh Circuit has strictly limited the canon solely to the two stated Nardone categories. Id. at 12 n.5, quoting United States v. Condon, 170 F.3d 687, 689 (7th Cir. 1999) ("[Nardone] holds that a generic reference to `whoever' or `any person' includes the agents of the United States unless application of a statute would `deprive the sovereign of a recognized or established prerogative title or interest' or `a reading which [includes the government] would work an obvious absurdity.'") (emphasis added).

(157) Nardone, 302 U.S. at 383.

(158) Id. at 384.

(159) In Glickman, the district court explicitly disagreed with the Eighth and Eleventh Circuits for two major reasons. First, both circuits failed to employ the Supreme Court Robertson analysis. See infra Part III.B. Second, the district court was disturbed that neither circuit fully explored certain canons of statutory construction. Glickman, slip op. No. 95-1510, at *20. The Glickman court pointed out that while "both Circuits invoked the canon of interpretation that `the term "person" does not include the sovereign,' neither court cited, much less, examined the limited classes of cases to which Nardone has confined the canon and the exceptions that Nardone and venerable precedent have established." Id. at *20-21 (citations omitted).

(160) 217 F.3d 882, 888 (D.C. Cir. 2000).

(161) Id. at 884-85.

(162) Id. at 884.

(163) Id. Notably, both of the cases holding that the MBTA did not apply to federal agencies were also decided in 1997. See Sierra Club v. Martin, 110 F.3d 1551 (11th Cir. 1997); Newton County Wildlife Ass'n v. USFS, 113 F.3d 110 (8th Cir. 1997), cert. denied, 522 U.S. 1108 (Feb. 23, 1998).

(164) Glickman, 217 F.3d at 885. The court noted that these types of opinion letters "like interpretations contained in policy statements, agency manuals, and enforcement guidelines, all of which lack the force of law--do not warrant Chevron-style deference." Id. at 887-88.

(165) However, the D.C. Circuit states that both the Eighth and Eleventh Circuits rest on a "mistaken idea that [the MBTA] could be enforced only through the criminal penalty provision." Id. The D.C. Circuit suggests that, because equitable injunctive relief is available to enforce [sections] 703, federal agencies could be held liable under the MBTA. Id. at 886.

(166) 503 U.S. 429 (1992).

(167) Id. at 432-33.

(168) See supra note 7.

(169) Robertson, 503 U.S. at 432; Migratory Bird Treaty Act, 16 U.S.C. [sections] 703 (1994 & Supp. IV 1998); National Forest Management Act of 1976, 16 U.S.C. [sections] 1600 (1994) (amending 88 Stat. 476); National Environmental Policy Act of 1969, 42 U.S.C. [sections] 432 (1994 & Supp. III 1997).

(170) Robertson, 503 U.S. at 432-33.

(171) 103 Stat. 745 [sections] 318

(172) Robertson, 503 U.S. at 429.

(173) Id. at 438 (emphasis added). Although both of these sections are "considered dictum," Supreme Court dicta are to be held to the highest regard. See Glickman, No. 98-1510, at 9, citing Gabbs Exploration Co. v. Udall, 315 F.2d 37, 39 (D.C. Cir. 1962) (stating "such dictum certainly deserves serious consideration"); Frontier Ref. Inc. v. Gorman-Rupp. Co., 136 F.3d 695, 703 (10th Cir. 1998), quoting Gaylor v. United States, 74 F.3d 214, 217 (10th Cir. 1996) ("[T]his court considers itself bound by Supreme Court dicta almost as firmly as by the Court's outright holdings, particularly when the dicta is recent and not enfeebled by later statements."); United States v. Santana, 6 F.3d 1, 9 (1st Cir. 1993) ("Carefully considered statements of the Supreme Court, even if technically dictum, must be accorded great weight and should be treated as authoritative when, as in this instance, badges of reliability abound.").

(174) Robertson, 503 U.S. at 437-38.

(175) See 50 C.F.R. [sections] 21.12(a) (1999).

(176) Id. The full text states:

   Employees of the Department of the Interior authorized to enforce the
   provisions of the Migratory Bird Treaty Act of July 3, 1918, as amended (40
   Stat. 755; 16 U.S.C. [subsections] 703-711), may, without a permit, take or
   otherwise acquire, hold in custody, transport, and dispose of migratory
   birds or their parts, nests, or eggs as necessary in performing their
   official duties.

(177) Humane Soc'y v. Glickman, 217 F.3d 882, 886-87 (D.C. Cir. 2000).

(178) Id. at 888.

(179) Id. at 887 (stating "the fact that the Act enforced a treaty between our country and Canada reinforces our conclusion that the broad language of [sections] 703 applies to actions of the federal government").

(180) Id. at 884.

(181) Memorandum from FWS Director, to Service Law Enforcement Officers (Mar. 7, 1996) (on file with author) [hereinafter FWS memo]; Alliance for the Wild Rockies et al., supra note 11, at 6.

(182) FWS memo, supra note 181.

(183) Id.

(184) See supra Part II.B.

(185) See Mahler, 927 F.Supp. 1559 (applying the intent analysis when a direct-indirect question was argued before the court).

(186) See The Organic Administration Act of 1897, 16 U.S.C. [subsections] 473-582, 551 (providing two purposes for the national forests: "to protect favorable ... water flows" and "to furnish a continuous supply of timber"). 30 Cong. Rec. 967 (1897); 16 U.S.C. [sections] 475. See also Multiple-Use Sustained-Yield Act of 1960, 16 U.S.C. [subsections] 528-531 (adding outdoor recreation and wildlife protection as "supplemental to, but not in derogation of, the purposes for which the national forests were established").

(187) 16 U.S.C. [subsections] 528-531 (1994).

(188) Id.

(189) See supra note 15; United States v. Smith, 29 F.3d at 272 (charging Defendant Smith for receiving eagle feathers in the mail for her macrame project).

(190) Arguably, FWS would not have to do anything to create an exemption. An informal exemption for Indians to violate the MBTA was recently upheld as constitutional. See United States v. Eagleboy, 200 F.3d 1137 (8th Cir. 1999) (holding tribal membership as the requirement for persons to possess migratory bird feathers in violation of the Act). See also Matthew Perkins, Ninth Circuit Environmental Review Chapter, The Federal Indian Trust Doctrine and the Bald and Golden Eagle Protection Act: Could Application of the Doctrine Alter the Outcome in U.S. v. Hugs?, 30 ENVTL. L. 701 (2000) (discussing the First Amendment right of Native Americans to take eagles for religious purposes without being held liable under the Bald and Golden Eagle Protection Act).

(191) See supra note 4.

(192) See supra note 126 (noting that the Forest Service concedes that loggers contracting under its authority are subject to the MBTA).

(193) See Alliance for the Wild Rockies et al., supra note 11. A NEPA-type analysis could be instituted to minimize the effects of logging on migratory birds. National Environmental Policy Act of 1969, 42 U.S.C. [subsections] 4321-4370(e) (1994 & Supp. III 1997).

HELEN M. KIM, Managing Editor, Environmental Law, 2000-2001; J.D. and Certificate in Environmental and Natural Resources Law expected May 2001, Northwestern School of Law of Lewis and Clark College; B.A., Vassar College, 1996. The author would like to thank Professors Bill Funk and Chris Wold for their guidance and direction in completing this Comment.