The 2010 Oil Spill: Criminal Liability Under Wildlife Laws

The 2010 Oil Spill: Criminal Liability Under Wildlife Laws

The 2010 Oil Spill: Criminal Liability Under
Wildlife Laws
Kristina Alexander
Legislative Attorney
August 31, 2010
Congressional Research Service
7-5700
www.crs.gov
R41308
CRS Report for Congress
P
repared for Members and Committees of Congress

The 2010 Oil Spill: Criminal Liability Under Wildlife Laws

Summary
The United States has laws that make it illegal to harm protected wildlife. Those laws could be
used to prosecute those who caused the 2010 oil spill. Perhaps the most famous of these laws is
the Endangered Species Act (ESA), which provides for both criminal and civil penalties for acts
that harm species listed under the act. The Marine Mammal Protection Act (MMPA) also provides
for civil and criminal punishment when an action takes a marine mammal. The Migratory Bird
Treaty Act (MBTA) makes it a crime to kill migratory birds.
While there are endangered species and marine mammals in the area affected by the Gulf of
Mexico oil spill, it is more likely that any criminal prosecution would use the MBTA rather than
the ESA or the MMPA. This is because the MBTA is a strict liability statute in relevant part,
unlike the other laws. Accordingly, the prosecution does not have to show that the defendant(s)
intended to harm wildlife. The prosecution does not have to prove that the defendants knew their
action(s) would lead to an oil spill to find liability. The MBTA was used to prosecute Exxon
following the Exxon Valdez spill and has been used for decades to find corporations and even
their employees criminally liable for the deaths of protected birds.

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The 2010 Oil Spill: Criminal Liability Under Wildlife Laws

Contents
Introduction ................................................................................................................................ 1
Criminal Law Basics ................................................................................................................... 1
Jurisdiction of U.S. Laws on the Outer Continental Shelf ...................................................... 1
Jurisdiction over the People Who Committed the Acts........................................................... 2
Prosecution Under the Wildlife Statutes....................................................................................... 2
Endangered Species Act ........................................................................................................ 2
ESA and the Oil Spill ...................................................................................................... 3
Marine Mammal Protection Act ............................................................................................ 4
MMPA and the Oil Spill .................................................................................................. 4
Migratory Bird Treaty Act ..................................................................................................... 4
MBTA and the Oil Spill................................................................................................... 7
Alternative Fines Act ............................................................................................................ 8
Conclusion.................................................................................................................................. 9

Contacts
Author Contact Information ...................................................................................................... 10
Acknowledgments .................................................................................................................... 10

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The 2010 Oil Spill: Criminal Liability Under Wildlife Laws

Introduction
In April 2010 an explosion occurred on an oil rig in the Gulf of Mexico, reportedly killing 11
people, and, causing the worst oil spill in U.S. history.1 Millions of barrels of oil are believed to
have leaked into the Gulf of Mexico. As the oil spreads, the implications for harm to wildlife
grow.
The United States has many laws that protect wildlife from harm. This report will discuss three:
the Endangered Species Act, the Marine Mammal Protection Act, and the Migratory Bird Treaty
Act.2 The Endangered Species Act (ESA), for example, prohibits actions that harass, harm,
wound, or kill a listed species (meaning either a species listed as threatened or endangered).3 The
Marine Mammal Protection Act (MMPA) prohibits actions that harass or kill marine mammals,
further defining harassment as “any act of pursuit, torment, or annoyance which (i) has the
potential to injure a marine mammal ... or (ii) has the potential to disturb a marine mammal ... by
causing disruption of behavioral patterns.”4 The Migratory Bird Treaty Act (MBTA) makes it
unlawful “by any means or in any manner” to take, kill, or attempt to take or kill “any migratory
bird, any part, nest, or egg of any such bird.”5
Criminal Law Basics
Jurisdiction of U.S. Laws on the Outer Continental Shelf
Before analyzing what behavior may be a crime under those laws, some initial jurisdictional
issues need to be discussed. The wildlife statutes of this report have different rules regarding
where they apply. For instance, the ESA applies to “persons under the jurisdiction of the United
States” who take a listed species in the United States, on the territorial seas of the United States,
or on the high seas.6 The MMPA applies to the United States as well as “waters under the
jurisdiction of the United States,” which is defined as including territorial sea, and waters 200
miles seaward from its coast.7 The MBTA has no statement regarding its jurisdictional reach.
With or without a statement of jurisdiction, these acts apply to the oil spill from a well located
approximately 50 miles off the coast of Louisiana. The Outer Continental Shelf Lands Act
(OCSLA) attaches U.S. jurisdiction over the site:

1 An estimated total of 4.1 million bbl were released into the Gulf (4.9 million bbl leaked, but 800,000 bbl captured
before it leaked into the Gulf). See Official Site of the Deepwater Horizon Unified Command, at
www.deepwaterhorizonresponse.com/go/doc/2931/840475.
2 Potential criminal liability under other federal and state criminal laws is beyond the scope of this report. For
information on how oil may harm wildlife and their habitat, see CRS Report R41311, The Deepwater Horizon Oil
Spill: Coastal Wetland and Wildlife Impacts and Response, by M. Lynne Corn and Claudia Copeland.
3 16 U.S.C. § 1538—prohibiting taking listed species; 16 U.S.C. § 1532—defining take as “harass, harm, pursue, hunt,
shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.”
4 16 U.S.C. §§ 1362(13), 1362(18A).
5 16 U.S.C. § 703(a).
6 16 U.S.C. § 1538(a).
7 16 U.S.C. § 1362(15).
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The 2010 Oil Spill: Criminal Liability Under Wildlife Laws

The Constitution and laws and civil and political jurisdiction of the United States are
extended to the subsoil and seabed of the outer Continental Shelf and to all artificial islands,
and all installations and other devices permanently or temporarily attached to the seabed,
which may be erected thereon for the purpose of exploring for, developing, or producing
resources therefrom, or any such installation or other device (other than a ship or vessel) for
the purpose of transporting such resources, to the same extent as if the outer Continental
Shelf were an area of exclusive Federal jurisdiction located within a State.8
Jurisdiction over the People Who Committed the Acts
The next issue in enforcement is to find to whom these laws apply. Each describes a violation in
terms of its being committed by a person. Under the ESA, a person is defined as including an
individual, corporation, and private entity, and an officer, employee, agent of the federal, a state,
or foreign government.9 The MMPA defines person to include people, businesses, and parts of
governments, such as employees, departments, and agents.10 While the MBTA does not define
person, it states that “any person, association, partnership, or corporation” may be guilty of a
crime under the act.11 Accordingly, it appears that all of these laws apply not just to individual
actions but to those of corporations or other business entities, or people acting in an official
capacity for those organizations.
Prosecution Under the Wildlife Statutes
A violation of a law may be either civil or criminal. The ESA and the MMPA provide for both
criminal and civil violations, while the MBTA addresses only criminal prosecutions. Civil and
criminal violations differ in how they were committed and how they are punished. This report
will focus on criminal violations.
Endangered Species Act
Typically, there are differences between the type of behavior that leads to a civil violation versus
the type of behavior that leads to a criminal violation. However, the ESA makes no distinction,
requiring only that the violation be done knowingly. Under the ESA, someone has committed a
violation of the ESA if they “knowingly violate ... any provision of this chapter, or any provision
of any permit or certificate issued hereunder.”12 That language appears both in Section 1340(a)
for civil violations and Section 1340(b) for criminal violations. It is up to the prosecutor (or the
agency recommending prosecution) whether the action is charged civilly or criminally. In either
case, killing or harming a listed species violates the act (if it is not otherwise permitted under the
act).13 A criminal violation of the ESA is a misdemeanor.

8 43 U.S.C. § 1333(a)(1).
9 16 U.S.C. § 1532(13).
10 16 U.S.C. § 1362(10).
11 16 U.S.C. § 707(a).
12 16 U.S.C. § 1340.
13 The Minerals Management Service (MMS) (now known as the Bureau of Ocean Energy Management, Regulation,
and Enforcement [BOEMRE]) indicated that the following endangered species are likely to be in the area of the spill:
Northern Right whale, Blue whale, Fin whale, Sei whale, Humpback whale, Sperm whale, West Indian manatee,
(continued...)
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The 2010 Oil Spill: Criminal Liability Under Wildlife Laws

The term knowing applies to the act being committed, not to the violator’s understanding of the
law; that is, a hunter does not have to know that the animal she shot was endangered, only that
she knew she was shooting something.14 It refers to the defendant’s mindset, or mens rea. In
contrast, other statutes may require specific intent to commit an illegal act, meaning the defendant
intended to commit a crime. Instead, the knowing standard is described as requiring general
intent, meaning the defendant intended to commit an act and that act turned out to be a crime. The
ESA has been held to be a general intent statute.15
The ESA used to be a specific intent statute. Before being amended, the statute required a
prosecutor to show the defendant acted willfully to establish a criminal violation.16 One
environmental law expert has noted how the knowing standard of mens rea over other, stricter,
requirements can make prosecution easier:
Why is this more relaxed mens rea element important for the government’s deterrence
objectives? ... Relaxing mens rea ... can dramatically improve the prosecutor’s chance of
success. This is true for crime in general. Indeed, it is especially so for environmental crime,
at least where those violating environmental regulations are large corporations where
individuals making decisions may seek to remain willfully ignorant.17
ESA and the Oil Spill
The knowing requirement seemingly nullifies any prosecution for the oil spill for harm to listed
species. A crime, or in fact, a civil violation, could be prosecuted under the ESA only if someone
(e.g., BP, Deepwater Horizon, Halliburton, or any of their employees or agents) knew that their
actions would lead to an oil spill. Under a general intent statute, a defendant has to intend to
commit an act (meaning the spill or the blowout) and that act turned out to be a crime. That is a
difficult standard to prove in this context. It is not enough to show that someone was reckless or
irresponsible, or ignored important information. To convict, it must be shown that the defendant
or defendants knew their actions would cause a spill.

(...continued)
Leatherback turtle, Green turtle, Hawksbill turtle, Kemp’s Ridley turtle, Loggerhead turtle, Gulf sturgeon, Whooping
crane, Piping plover, Alabama beach mouse, Choctawhatchee beach mouse, St. Andrew beach mouse, and Perdido Key
beach mouse. MMS Outer Continental Shelf Oil & Gas Leasing Program: 2007-2012, Final Environmental Impact
Statement MMS 2007-003. Available at http://www.boemre.gov/5-year/2007-2012FEIS.htm.
14 See United States v. McKittrick, 142 F.3d 1170, 1176-77 (9th Cir. 1998) (gray wolf) (holding intent requirement of
ESA was satisfied when defendant knew he shot an animal, and that animal turned out to be a protected gray wolf, not
that the defendant knew that the animal was protected); United States v. St. Onge, 676 F. Supp. 1044, 1045 (D. Mont.
1988) (grizzly bear) (indicating that issue is whether defendant shot at an animal knowingly, not whether defendant
recognized the animal he was shooting); United States v. Billie, 667 F. Supp. 1485, 1492 (S.D. Fla. 1987) (Florida
panther) (rejecting defendant’s argument that government needs to prove defendant knew animal he was shooting was
protected as “without support in law or reason”).
15 See U.S. v. Kapp, 2003 WL 23162408, *8 (N.D. Ill. 2003) (“the ESA does not require proof that the defendant had a
criminal objective or was even aware of the unlawfulness of his conduct”).
16 P.L. 95-632, § 6(4) substituted knowingly for willingly in what is codified at Section 1540(b)(1), addressing criminal
violations. The knowing requirement in the civil provision (Section 1540(a)) appeared in the original public law and
remains.
17 Richard J. Lazarus, Mens Rea In Environmental Criminal Law: Reading Supreme Court Tea Leaves, 7 Fordham
Envtl. L.J. 861 (Symposium, 1996).
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Marine Mammal Protection Act
Because the MMPA also has a knowing standard for its criminal violations, it appears that
criminal prosecution under this act for harm to marine mammals such as dolphins, whales, and
manatees, is unlikely.
Under the MMPA, a “person who knowingly violates any provision of this subchapter or of any
permit or regulation issued thereunder [not including takings by commercial fishing operations]
shall, upon conviction, be fined not more than $20,000 for each such violation, or imprisoned for
not more than one year, or both.”18 The case law for the MMPA is not as extensive as that of the
ESA. However, the Ninth Circuit has discussed the mens rea under the MMPA, clarifying that the
standard is knowing, not merely negligence.19 Like the ESA, violations of the MMPA are
misdemeanors.
While the ESA requires establishing knowing conduct to prove a civil violation, the MMPA has
no such requirement. Civil violations occur if a person “violates any provision of this subchapter
or of any permit or regulation issued thereunder.”20 Accordingly, intent is not necessary. A civil
fine under the MMPA can reach $11,000.21
MMPA and the Oil Spill
Thus, while the ESA does not appear to provide a vehicle for either civil or criminal prosecution
for animals killed or injured by the oil, due to its knowing standard, and criminal prosecutions
under the MMPA are similarly restricted, civil charges remain available under that act. Civil
violations may be fined up to $11,000 for each violation.22 Because the MMPA penalizes
activities that not only kill or injure a marine mammal, but those that harass or interrupt breeding,
breathing, feeding, or sheltering, the fine could be substantial.
Migratory Bird Treaty Act
The mens rea for the MBTA is different from that in the ESA and the MMPA. It allows
prosecution of misdemeanors based on strict liability.23 This means instead of having to show that
defendants knew they were committing a particular act, the prosecution only has to show that an

18 16 U.S.C. § 1375(b).
19 United States v. Hayashi, 22 F.3d 859, 862 (9th Cir. 1994) (“Under the MMPA, no criminal penalty can attach for
negligent conduct”).
20 16 U.S.C. § 1375(a)(1).
21 According to the penalty chart posted by the General Counsel of the National Oceanic and Atmospheric
Administration, the recommended minimum fine for killing a marine mammal is $3,250 for a first violation, $4,500 for
a second violation, and $8,500 for a third violation. See NOAA Office of General Counsel Penalty Schedules at
http://www.gc.noaa.gov/enforce-office3.html.
22 The statute provides a civil penalty of $10,000. 16 U.S.C. § 1375(a). However, under the Debt Collection
Improvement Act, that amount has been adjusted for inflation and is now $11,000. 73 Fed. Reg. 75321 (Dec. 11, 2008);
15 C.F.R. § 6.4(e)(10).
23 A knowing standard applies to felony charges relating to taking migratory birds with the intent to sell or selling
migratory birds. 16 U.S.C. § 707(b). Additionally, charges relating to baiting birds require proof of knowledge. 16
U.S.C. § 704(b).
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act happened. Under strict liability, actors are liable for a violation regardless of what they knew
or what they meant to do. It is the easiest standard under which to prosecute.
The portion of the MBTA that addresses misdemeanor violations24 invokes strict liability: “any
person, association, partnership, or corporation who shall violate any provisions of said
conventions or of this subchapter, or [violate a regulation] shall be deemed guilty of a
misdemeanor and upon conviction thereof shall be fined not more than $15,000 or be imprisoned
not more than six months, or both.”25 The statute is expansive, prohibiting taking a migratory bird
“by any means or in any manner.”26 Taking is defined in the regulations as “pursue, hunt, shoot,
wound, kill, trap, capture, or collect.”27
The statutory history of the MBTA makes reference to its strict liability provisions. In discussion
regarding the 1986 amendment of the act, in which the felony provision regarding taking a bird to
sell or barter was modified, the Senate addressed the misdemeanor provisions that are at issue
here:
Nothing in this amendment is intended to alter the “strict liability” standard for misdemeanor
prosecutions under 16 U.S.C. 707(a), a standard which has been upheld in many Federal
court decisions.28
In 1998, the Senate again discussed preserving the strict liability provision for misdemeanors
even though the provision that addressed the mens rea for bird baiting29 violations was being
modified. It focused on the long history of strict liability under the act:
The elimination of strict liability, however, applies only to hunting with bait or over baited
areas, and is not intended in any way to reflect upon the general application of strict liability
under the MBTA. Since the MBTA was enacted in 1918, offenses under the statute have
been strict liability crimes. The only deviation from this standard was in 1986, when
Congress required scienter for felonies under the Act.30
Although the original purpose of the MBTA was to protect birds from hunting, it has long been
used to prosecute any sort of taking of birds, including when they die from contamination. The
Department of Justice, in a memorandum supporting its prosecution of an oil company and its
employee for killing migratory birds in open-top oil tanks,31 refers to three unpublished cases in

24 One section of the MBTA has a felony provision but pertains to selling birds. 16 U.S.C. § 707(b). Another portion of
the MBTA requires a knowing violation but pertains to baiting birds. 16 U.S.C. § 704(b). Those two sections are not
relevant to this discussion.
25 16 U.S.C. § 707(a).
26 16 U.S.C. § 703(a).
27 50 C.F.R. § 10.12.
28 S. Rep. 99-445 (1986), 1986 U.S.C.C.A.N. 6113, 6128.
29 Baiting birds is when hunters put food in an area to draw birds to them. Violations related to baiting are found in 16
U.S.C. § 704(b).
30 S. Rep. 105-366, at 3 (1998). One court rejected this history as being commentary of a later Congress rather than
evidence of what a current Congress has intended to legislate. U.S. v. Chevron USA, Inc., No. 09-CR-0132, 2009 WL
3645170 (W.D. La. 2009) (rejecting a plea agreement wherein Chevron had agreed to plead guilty under the MBTA to
killing 14 brown pelicans trapped in its rig caisson).
31 United States v. Citgo Petroleum Corp., No. 06-563-S, 2007 WL 2049382, Trial Memorandum of the United States
Regarding Violations of the Migratory Bird Treaty Act - Counts Six Through Ten (S.D. Texas June 26, 2007)
(hereinafter DOJ Memorandum).
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which oil companies were convicted under the MBTA for the deaths of birds in oil sump pits.32
That same DOJ Memorandum refers to three cases in which companies and/or individuals were
convicted of killing migratory birds as a result of contaminated mining tailings or collection
ponds.33 These cases illustrate that convictions under the MBTA are possible when migratory
birds are killed incidentally by being poisoned or otherwise harmed by contaminants, rather than
being specifically targeted.
In one case, the Second Circuit discussed the strict liability standard of the MBTA. The court
referenced the jury instructions of the trial court, in which jurors were advised that:
under the law good will and good intention and measures taken to prevent the killing of the
birds are not a defense.... The Government in this case does not have to prove that the
defendant intended to kill the birds. You may convict the corporation even if you find that
the killing of the birds was accidental or unintentional provided that you find that the FMC
Corporation did kill the birds as charged in the indictment.34
In that case, a pesticide manufacturer was charged with killing 92 migratory birds that died in a
wastewater pond at its plant. The Second Circuit found that no intent to kill the birds was
necessary to support a conviction under the MBTA.35 Its decision rested in part on the fact that the
defendant was manufacturing something known to be dangerous. It distinguished the criminal act
of the defendant from other actions, such as accidently hitting a bird while driving, stating that
any punishment for those technical violations is best left to “the sound discretion of prosecutors
and the courts.”36 Under a similar analysis, it appears likely that an oil spill, which is known to be
toxic, would be an act for which a defendant may be found strictly liable under the MBTA.
The Tenth Circuit revisited the constitutionality of the strict liability standard.37 It upheld the
statute but found that, under certain circumstances, the application of the act could be
unconstitutional. The court was reviewing the conviction of two operators of oil drilling
equipment known as heater-treaters. Dead birds had been found in heater-treaters in the area, and
the U.S. Fish and Wildlife Service (FWS) had conducted an educational campaign to inform
operators of the danger and liability. Following the educational campaign, two different operators
were prosecuted for migratory birds killed in their equipment. The Tenth Circuit reversed one of
the convictions, finding that the death had occurred before the operator had knowledge that the
behavior could be criminal. The court said that when actions are commonly not criminal or

32 DOJ Memorandum at 3 (United States v. Stuarco Oil Co., 73-CR-129 (D. Colo. 1973) (company charged and pled
nolo contendere to 17 counts under the MBTA for deaths of birds resulting from company’s failure to build oil sump
pits in a manner that could keep birds away); United States v. Union Tex. Petroleum, 73-CR-127 (D. Colo. 1973)
(prosecution of oil company for maintenance of oil sump pit); United States v. Equity Corp., Cr. 75-51 (D. Utah 1975)
(company charged with and pleaded guilty to 14 counts under the MBTA for deaths of 14 ducks caused by the
company’s oil sump pits)).
33 DOJ Memorandum at 3 (United States v. Kennecott Communications Corp., No. N-90-16M (D. Nev. Mar. 8, 1990);
United States v. Echo Bay Minerals Co., No. CR N-90-52-HDM (D. Nev. 1990); United States v. Nerco-Delamar Co.
(a.k.a. Delamar Silver Mine), No. CR 91-032-S-HLR (D. Idaho Apr. 21, 1992)).
34 United States v. FMC Corp., 572 F.2d 902, 904 (2d Cir. 1978) (the $500 fine under the MBTA was upheld).
35 For other circuit court decisions upholding strict liability for MBTA violations (although not necessarily related to
contamination), see United States v. Morgan, 311 F.3d 611 (5th Cir. 2002); United States v. Corrow, 119 F.3d 796 (10th
Cir. 1997); United States v. Boynton, 63 F.3d 337 (4th Cir. 1995); United States v. Engler, 806 F.2d 425 (3d Cir. 1986);
United States v. Wood, 437 F.2d 91 (9th Cir. 1971).
36 United States v. FMC Corp., 572 F.2d at 905.
37 United States v. Apollo Energies, Inc., 611 F.3d 679 (10th Cir. 2010).
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dangerous, there must be fair notice before strict liability can be imposed.38 This may be
distinguished from the facts of the Gulf oil spill in that oil is known to be toxic.
Another court also questioned the strict liability standard in the oil patch. Despite the acceptance
by the Fifth Circuit of the strict liability standard for MBTA crimes,39 a lower federal court in
Louisiana refused to impose strict liability on an oil company whose equipment caused the death
of 14 brown pelicans. In United States v. Chevron USA, Inc., the court for the Western District of
Louisiana rejected a plea agreement in which Chevron pleaded guilty to having killed the birds in
violation of the MBTA.40 The district court referenced Fifth Circuit precedent,41 noting the Fifth
Circuit had been in the minority in refusing to accept strict liability to that class of criminal cases
(baiting) before the law was amended.42 The district court then indicated it would not accept strict
liability for this type of crime. The district court stated that it “declines to extend the Fifth
Circuit’s application of strict liability under the MBTA” to the conduct of the defendant. The
court found the defendant did not have “fair warning” that its drilling rigs would kill brown
pelicans. In addition to rejecting Fifth Circuit precedent, which it found was unrelated, the court
rejected the persuasive value of the convictions in the Apollo case by the lower Kansas federal
court (before the Tenth Circuit had decided the appeal),43 saying it “simply declines to adopt the
reasoning and rationale of that decision.”44
MBTA and the Oil Spill
The most similar case to the 2010 oil spill is that of the Exxon Valdez, in which Exxon Corp. and
a subsidiary were convicted of violations of the MBTA.45 Exxon agreed to a $150 million
criminal fine, but as part of an agreement with the United States, paid $25 million instead.46
Exxon also paid $100 million in criminal restitution for injuries to fish, wildlife, and habitat.47
Based on other similar prosecutions under the MBTA, a court could possibly find liability for the
corporations involved in the 2010 spill, their subsidiaries, and their officers and employees,
which, under the MBTA, includes fines and up to six months imprisonment.48

38 United States v. Apollo Energies, Inc., 611 F.3d 679, *18-19 (10th Cir. 2010).
39 United States v. Stephans, 142 Fed. Appx. 821 (5th Cir. 2005); United States v. Morgan, 311 F.3d 611 (5th Cir. 2002).
40 No. 09-CR-0132, 2009 WL 3645170 (W.D. La. Oct. 30, 2009) (Chevron USA).
41 United States v. Sylvester, 848 F.2d 520 (5th Cir. 1988) (holding that prosecution could not show that hunters knew
the field was baited and that strict liability did not apply); United States v. Delahoussaye, 573 F.2d 910 (5th Cir. 1978)
(holding that penalizing hunters when they could not have known field was baited was contrary to law).
42 Chevron USA, at *3.
43 United States v. Apollo Energies, Inc., Nos. 08-10111-01-JTM, 08-10112-01-JTM, 2009 WL 211580 (D. Kan.
January 28, 2009), aff’d in part, rev’d in part, United States v. Apollo Energies, Inc., 611 F.3d 679 (10th Cir. 2010).
44 Chevron USA, at *5.
45 United States v. Exxon Corp., No. A90-015 CR (D. Alaska sentencing April 24, 1991). While the civil penalty
challenge was resolved by the U.S. Supreme Court (Exxon Shipping Corp. v. Baker, 128 S. Ct. 2605 (2008)), no
decision regarding the criminal penalties was published.
46 Exxon Valdez Oil Spill Trustee Council Settlement webpage at http://www.evostc.state.ak.us/facts/settlement.cfm.
See also Exxon Shipping Corp. v. Baker, 128 S. Ct. at 2613 (referring to the criminal prosecution).
47 Id. The misdemeanors under the MBTA were just one of five different types of criminal charges brought, which was
the only wildlife act used.
48 The defendants for the Exxon Valdez spill included Exxon and a subsidiary. The ongoing case against Citgo,
referenced above, also includes a subsidiary and the environmental manager of the site as defendants. United States v.
(continued...)
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There is no way at this point to estimate what, if any, criminal penalty might be assessed against a
defendant as a result of the oil spill. According to FWS, 5,362 bird carcasses have been collected
as of August 30, 2010, although that number cannot account for the number of birds that simply
sunk after being coated with oil.49 For example, following the Exxon Valdez spill, 35,000 dead
birds were found, but the Exxon Valdez Oil Spill Trustee Council estimated that over 250,000
birds were killed.50 Additionally, it does not always follow that an MBTA fine is calculated per
dead bird. At least one court has held that the crime is based on the number of acts that led to
birds being killed and not on the number of birds killed.51 The act also makes it a crime to take a
bird, which includes wounding it. It is not clear whether being coated in oil would be considered
a wound.
MBTA criminal penalties reported in case law are varied. In the United States v. FMC Corp.,
summarized above, 92 bird deaths resulted in a $500 penalty.52 At the time of that case, the
maximum fine was $500. In a 2009 case in which two migratory birds were found dead in
machines used to treat crude oil, a total of $2,000 in fines was assessed: $1,500 against a
corporation for one violation, and $250 against an owner/operator for one violation.53 A steel
company was assessed a $65,900 fine for the deaths of 28 migratory birds in its runoff water
system, although ultimately found not guilty.54
Alternative Fines Act
Prosecution under the MBTA may also consider a section of the criminal code, 18 U.S.C. § 3571,
which originated in the Comprehensive Crime Control Act of 1984 and was amended by the
Alternative Fines Act. The Alternative Fines Act addressed certain problems with criminal
penalties. Congress created the law to “make criminal fines more severe.”55 The statute relates
penalties to the incarceration time and sets uniform fines for those felonies and misdemeanors. It
does this in two steps: one to classify the crime (18 U.S.C. § 3559); and the other to set the fines
based on those classifications (18 U.S.C. § 3571). Thus, under 18 U.S.C. § 3559, a statute that
imposes no more than six months in jail (such as the MMPA and the MBTA) is classified as a
Class B misdemeanor. A statute that imposes no more than one year imprisonment (such as the
ESA) is classified as a Class A misdemeanor. The fine amounts for Class A and Class B
misdemeanors are set under 18 U.S.C. § 3571. A Class A misdemeanor imposes a maximum fine
of $100,000 on an individual defendant, and a Class B misdemeanor imposes a maximum fine of
$5,000 for an individual defendant. The fines in both cases are doubled for defendants that are
organizations.

(...continued)
Citgo Petroleum Corp, C-05-563 (S.D. Texas). See also United States v. Cota, No. CR 08-00160 (N.D. Cal. June 22,
2009) (accepting the plea of a ship’s captain under the Clean Water Act and the MBTA for harm resulting from oil spill
following allision with the San Francisco Bay Bridge; management company of the ship was also a defendant).
49 FWS, Consolidated Fish and Wildlife Collection Report (August 30, 2010), at
http://www.fws.gov/home/dhoilspill/collectionreports.html.
50 http://www.evostc.state.ak.us/facts/qanda.cfm.
51 United States v. Corbin Farm Service, 444 F. Supp. 510 (E.D. Cal. 1978).
52 United States v. FMC Corp., 572 F.2d 902 (2d Cir. 1978).
53 United States v. Apollo Energies, Inc., 611 F.3d 679 (10th Cir. 2010).
54 United States v. WCI Steel, Inc., No. 5:04 MJ 5053, 2006 WL 2334719 (N.D. Ohio August 10, 2006).
55 H.R. Rep. 98-906, at 1 (1984), 1984 U.S.C.C.A.N. 5333, 5433.
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However, if a statute’s penalty provision post-dates that 1984 act, the fines under Section 3571 do
not apply. Both the ESA and the MBTA were amended to change the criminal penalties after
1984.56
Congress changed the ESA’s criminal fines in 1988.57 The amendment set the maximum criminal
fine at $50,000. Even if prosecution were brought under the ESA, which, as discussed above,
appears unlikely, the $100,000 criminal penalty provided by Section 3571 for a Class A
misdemeanor would not apply.58
Similarly, the 1998 amendment of the MBTA set a fine of $15,000.59 However, this fine is larger
than the $5,000 provided by Section 3571 for a Class B misdemeanor.
The Alternative Fines Act also includes a doubling provision that allows a fine of twice any
financial loss: “if the offense results in pecuniary loss to a person other than the defendant, the
defendant may be fined not more than the greater of twice the gross gain or twice the gross
loss.”60 However, it is likely that a court would find that the MBTA amount prevails and the
doubling provision is not available. For one thing, the current MBTA criminal fine provision post-
dates the Alternative Fines Act. Additionally, when amending the MBTA fines, Congress
specifically applied the Alternative Fines Act to another type of violation (the bird baiting
provision in Section 707(c)), suggesting a purposeful omission regarding the misdemeanor
provision. If a court held that it did apply, defendants prosecuted for the oil spill could be
responsible not just for the $15,000 fine under the MBTA, but for twice the pecuniary losses
incurred by anyone as a result of the spill, such as cleanup expenses and lost revenue.61
Conclusion
While the three major wildlife statutes provide for criminal penalties, the mens rea requirement of
two of them (the ESA and the MMPA) appears to prohibit their application to the 2010 oil spill.
Both require proof that a defendant knew it was committing the act of causing an oil spill, which
does not appear at this point to match the known circumstances surrounding the oil spill.
However, the MBTA imposes strict liability on defendants and seems to be a useful tool for
prosecution, especially in light of what appear to be massive numbers of bird deaths as a result of
the oil spill. Strict liability means that the prosecution has to show only that the defendant was
responsible for the act, not that it knew or intended to spill oil.

56 The original criminal penalty of the MMPA appears to have been superseded by Section 3571. However, the
knowing standard is likely to bar criminal prosecution under this act, and so this act is not discussed further.
57 P.L. 100-478, § 1007, 102 Stat. 2309.
58 See United States v. Eisenberg, 496 F. Supp. 2d 578. 581-3 (E.D. Pa. 2007) (holding that the ESA amendments that
post-date the 1984 act evidence congressional intent to impose a criminal fine lower than that of the 1984 act).
59 P.L. 105-312, § 103, 112 Stat. 2956.
60 18 U.S.C. § 3571(d).
61 The Alternative Fines Act was used to assess the criminal fine against Exxon. However, that prosecution pre-dated
the 1998 change to the MBTA, meaning the MBTA amendment superseding the Alternative Fines Act was not in place.
Also, the grouping of the fines in the Exxon prosecution makes it impossible to determine whether any doubling was
related to the MBTA rather than to the other criminal charges brought against the company.
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Earlier prosecutions under the MBTA have charged corporations, their subsidiaries, and even
employees with crimes under the MBTA, making it likely that the same type of defendants could
be named should the United States prosecute under the act. Criminal fines of up to $15,000 per
act are available under the law; however, it is not known whether that fine would be assessed per
dead or wounded migratory bird or per criminal action.

Author Contact Information

Kristina Alexander

Legislative Attorney
kalexander@crs.loc.gov, 7-8597

Acknowledgments
The author would like to thank Charles Doyle of the American Law Division for sharing his expansive
criminal law expertise.

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