## Facts

- Federal wildlife agents investigated reports that oilfield heater-treaters (crude-oil processing equipment) were trapping and killing migratory birds in Kansas.
- The U.S. Fish and Wildlife Service (FWS) conducted outreach and, in 2006, sent warnings to regional operators describing the risk and basic preventive measures (including capping exhaust stacks); Apollo received the notice, but Walker did not.
- After a non-prosecution grace period, an April 2007 inspection found one protected bird (a Northern Flicker) dead in an Apollo heater-treater and four protected birds dead in Walker’s heater-treaters.
- Walker promptly capped his exhaust pipes after the April 2007 inspection; an April 2008 inspection later found another protected bird in one of his units.
- A magistrate judge convicted Apollo of one misdemeanor and Walker of two misdemeanors under the Migratory Bird Treaty Act (MBTA), 16 U.S.C. § 703, treating the offenses as strict liability.
- The district court affirmed; both defendants appealed.

## Issues

1. Whether MBTA misdemeanor “take/kill” prosecutions under 16 U.S.C. § 703 may be treated as strict-liability offenses when deaths result from otherwise lawful industrial activity.
2. Whether due process requires limiting strict-liability MBTA prosecutions to cases where the defendant had fair notice and the defendant’s conduct proximately caused the bird deaths.
3. Whether, under those limits, the convictions against Apollo and Walker were supported on the record.

## Decision

- The Tenth Circuit affirmed in part and reversed in part.
- The court held that MBTA misdemeanors are properly treated as strict-liability public-welfare offenses.
- The court imposed constitutional limits: due process is satisfied only if the defendant’s conduct proximately caused the harm (direct and foreseeable causation), with fair notice relevant to foreseeability in this industrial-activity setting.
- Apollo’s conviction was affirmed because it had adequate notice of the risk from its heater-treaters and failed to take effective preventive measures, making the death a direct and foreseeable result of continued operation.
- Walker’s convictions were reversed because he lacked sufficient pre-violation notice and foreseeability; the later record was insufficient to show that, after remedial steps, he still proximately caused additional bird deaths.

## Legal Principles

- The MBTA misdemeanor prohibition on “taking” or “killing” protected migratory birds may be enforced without proof of mens rea as a public-welfare offense.
- Even for strict-liability crimes, due process requires a causation limitation; liability cannot rest on highly attenuated or unforeseeable consequences of lawful conduct.
- In applying the MBTA to lawful industrial operations, the government must show the defendant’s conduct proximately caused the bird deaths—i.e., the deaths were a direct, natural, and foreseeable result of the charged conduct.
- Fair notice that particular equipment or practices pose a risk to protected birds supports foreseeability and makes strict-liability enforcement constitutionally permissible in this context.
- Where the operator lacks notice and the harm would not be reasonably anticipated, imposing criminal punishment for accidental bird deaths violates due process.

## Conclusion

The court treated MBTA misdemeanors as strict liability but held that due process limits prosecutions against industrial operators to situations involving direct, foreseeable (proximate) causation supported by fair notice; applying that standard, Apollo’s conviction was affirmed and Walker’s convictions were reversed.


United States v. Apollo Energies, Inc., 611 F.3d 679 (10th Cir. 2010)