In 2018, will the federal government be an ally in the fight against overcriminalization?

In this year’s pre-Christmas news dump, the Department of Interior announced it was reversing the agency’s prior interpretation of the Migratory Bird Treaty Act as criminalizing incidental take. It is unfortunate that Interior announced its decision in a way to minimize attention because it is an important step to reducing the overcriminalization problem in federal environmental law.

Reading the MBTA to capture incidental takings casts an astoundingly large net that potentially transforms the vast majority of average Americans into criminals. Rather than relying on clear standards that are known in advance, prosecutors are asserting authority to bring cases where individuals and companies are not taking the precautions that the government and the court deem “reasonable.” . . . Such an approach presents precisely the sort of recipe for arbitrary and discriminatory enforcement that the Supreme Court has cautioned against.

The Migratory Bird Treaty Act is an extremely broad criminal statute that, among other things, makes it a federal crime to pick up the wrong kind of feather. It also makes it a crime to “take” any migratory bird, with enhanced criminal penalties for knowing violations.

Take is a term of art that has long been understood as an intentional and purposeful act directed toward wildlife to reduce it to human ownership or control. In 1918, when the Migratory Bird Treaty Act was enacted, that’s how take would have been understood.

But in 1973, Congress adopted a different definition of take for purposes of the Endangered Species Act. Under that definition, take is much broader and includes essentially any action that inadvertently causes any sort of harm to a protected species, even common land use activities that modify habitat. The broad interpretation of the Migratory Bird Treaty Act to reach incidental take is based on incorporating the Endangered Species Act’s definition into a statute that predates it by half a century.

The Endangered Species Act’s expansive interpretation has spawned much mischief. Not only does it criminalize commonplace activities that few would ever suspect could land them in the clink. But several courts have even read out the minimum mens rea protections Congress included in the statute.

Although the statute says it is only a crime to “knowingly” take protected species, several courts have held that a criminal defendant need only know she is engaged in the act that caused take. If you accidentally strike a protected animal darting in front of your car on a dimly lit highway, you can be imprisoned so long as you weren’t asleep at the wheel. To avoid Supreme Court scrutiny, the federal government has disclaimed that interpretation and has followed the McKittrick Policy—requiring prosecutors to prove defendants knew their actions would harm a species and the identity of the species—for more than twenty years. But that policy is currently being challenged by an activist group that believes it is too protective of the rights of criminal defendants and not protective enough of listed species.

Interior’s interpretation of the Migratory Bird Treaty Act joins the McKittrick Policy as a laudable example of the government acknowledging that the criminal law is a beast best kept on a short leash.

Under [the alternative interpretation] approach, it is literally impossible for individuals and companies to know what is required of them under the law when otherwise lawful activities necessarily result in some accidental bird deaths. Even if they comply with everything requested of them by the Fish and Wildlife Service, they may still be prosecuted, and still found guilty of criminal conduct. The absence of clear, public, and binding standards effectively authorizes or encourages discriminatory enforcement, particularly against disfavored industries or persons. In sum, due process “requires legislatures to set reasonably clear guidelines for law enforcement officials and triers of fact in order to prevent ‘arbitrary and discriminatory enforcement. “‘ . . . As the Supreme Court has recognized, “[w]ell-intentioned prosecutors and judicial safeguards do not neutralize the vice of a vague law.”

A criminal law cannot encourage responsible conservation if its requirements are too vague to be understood and, in any event, impossible to comply with. The chief evil of overcriminalization is that, if everyone’s a criminal, enforcement will reflect nothing more than the arbitrary preferences of prosecutors. That appears to be what has happened under the Migratory Bird Treaty Act, where prosecutors have taken a hard-line with many companies but have been very forgiving of politically connected companies, like wind and solar energy businesses.

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