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UNITED STATES of America, Plaintiff-Appellee, v. APOLLO ENERGIES, INC., Defendant-Appellant.

Country/Territory
United States of America
Type of court
Others
Date
Jun 30, 2010
Source
UNEP, InforMEA
Court name
United States Court of Appeals
Judge
HENRY, ANDERSON, and TYMKOVICH.
Reference number
2010 WL 2600502 (C.A.10 (Kan.))
Language
English
Subject
Wild species & ecosystems
Keyword
Wild fauna Migratory species Protected plant species Protected animal species Protected fish species Protection of species
Abstract
Appellants, Apollo Energies, Inc. and Dale Walker (doing business as "Red Cedar Oil"), were charged with violating the Migratory Bird Treaty Act (MBTA or "the Act"), which declares it a misdemeanor to "pursue, hunt, take, capture, [or] kill" birds enumerated by several international treaties. On numerous instances, an agent with the U.S. Fish and Wildlife Service discovered dead migratory birds lodged in each appellant's "heater-treater," a piece of equipment used in the course of appellants' Kansas oil drilling businesses. At trial, both Apollo and Walker were convicted of "taking" or "possessing" migratory birds (each misdemeanor violations) and fined $1,500 and $500 total, respectively. The federal district court affirmed the convictions. On appeal, Apollo and Walker contested that (1) under the MBTA, it is not a strict liability crime to take or possess a protected bird or, (2) if it is a strict liability crime, the MBTA is unconstitutional as applied to their conduct. As to the first contention, the United States Court of Appeals, Tenth Circuit, held that Appellants' assertion is foreclosed by United States v. Corrow, 119 F.3d 796 (10th Cir. 1997), which squarely concluded that "misdemeanor violations under [the MBTA] are strict liability crimes." Bound by the Corrow holding, the court concluded that the MBTA includes no mens rea requirement. As to Appellants' second contention challenging the constitutionality of the Act as applied to their conduct, the court concluded that while the Act is not unconstitutionally vague, "the MBTA requires a defendant to proximately cause the statute's violation for the statute to pass constitutional muster". Thus, liability would attach only where the injury "might be reasonably anticipated or foreseen as a natural consequence of the wrongful act." Accordingly, the conviction against Apollo Energies was affirmed, since the record demonstrated that Apollo had notice of the detrimental effects of the heater-treater's exposed exhaust pipes for a nearly a year-and-a-half before the bird death resulting in its conviction. However, the first of two convictions against Walker was reversed, since the court found that Walker was unaware of the industry-wide problem and "no reasonable person would conclude that the exhaust pipes of a heater-treater would lead to the deaths of migratory birds." For the foregoing reasons, the court affirmed in part, reversed in part, and remanded for further proceedings consistent with its opinion.
Full text
COU-157269.pdf