## Facts

- The United States charged Moon Lake Electric Association, Inc., a rural electric distribution cooperative serving parts of Utah and Colorado, with misdemeanor violations of the Migratory Bird Treaty Act (MBTA) and the Bald and Golden Eagle Protection Act (BGEPA).
- The charges concerned Moon Lake’s distribution system supplying an oil field near Rangely, Colorado, consisting of power lines across thousands of poles in a mostly treeless area near habitat used by protected raptors.
- The government alleged protected birds frequently perched and hunted from the poles and were electrocuted on Moon Lake’s facilities.
- Over approximately 29 months, the government alleged Moon Lake’s equipment caused deaths or injuries to numerous birds of prey, including birds protected by the MBTA and BGEPA.
- The Information alleged Moon Lake “took” and “killed” specific protected birds, including golden eagles and ferruginous hawks, through operation and maintenance of its power system.
- The prosecution theory was that the deaths were reasonably foreseeable and preventable through known, affordable measures (e.g., insulation and perch-guard retrofits) that Moon Lake allegedly failed to implement on many poles.
- Moon Lake moved to dismiss under Federal Rule of Criminal Procedure 12, arguing the statutes do not reach unintentional, non-hunting conduct and that the MBTA’s misdemeanor provision is unconstitutional as applied.

## Issues

1. Whether the MBTA and BGEPA prohibit unintentional, non-hunting conduct that foreseeably results in the death of protected birds (e.g., electrocutions from power distribution equipment).
2. Whether applying MBTA § 707(a) to a utility for incidental bird deaths is unconstitutionally vague or violates due process for lack of fair notice.

## Decision

- The court denied Moon Lake’s motion to dismiss the Information.
- The court held the MBTA and BGEPA can apply to foreseeable, unintentional takings and killings caused by a power company’s facilities.
- The court rejected the as-applied constitutional challenge to MBTA § 707(a), finding sufficient notice and no vagueness defect on the alleged facts.

## Legal Principles

- Broad statutory language in the MBTA (“by any means or in any manner”) and BGEPA (“at any time or in any manner”) can reach indirect mechanisms of taking or killing, not only traditional hunting or poaching.
- A “take” or “kill” may be established where protected bird deaths are causally linked to an actor’s conduct or omissions and are alleged to be foreseeable and preventable.
- The MBTA’s misdemeanor provision has been treated as imposing strict liability for prohibited takings and killings, which supports application beyond intentional conduct in appropriate cases.
- An as-applied vagueness challenge fails where statutory text and context provide fair notice to a person of ordinary intelligence that conduct foreseeably killing protected birds can be criminal.
- Speculative extreme hypotheticals about ordinary activities do not render the statutes unconstitutional on their face where the prosecution alleges repeated harm and available mitigation measures.

## Conclusion

The court allowed the prosecution to proceed, holding that the MBTA and BGEPA may cover a utility’s alleged, foreseeable, and preventable bird electrocutions and that applying MBTA § 707(a) in those circumstances does not violate due process for vagueness or lack of fair notice.


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