Can an Oil Pit Take a Bird?: Why the Migratory Bird Treaty Act Should Apply to Inadvertent Takings and Killings by Oil Pits
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Federal courts currently disagree about the scope of criminal liability under the Migratory Bird Treaty Act (hereinafter “MBTA” or “Act”). The controversy involves the meaning of the word “take” and whether it applies to legal, commercial activity not directed at harming birds. The issue has recently arisen in the oil and gas context, where the question is whether an oil pit can “take” a migratory bird in the course of its ordinary, regulated, use.