Case: 14-40128   Document: 00513182876     Page: 1   Date Filed: 09/04/2015




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                 No. 14-40128                  United States Court of Appeals
                                                                        Fifth Circuit

                                                                      FILED
                                                               September 4, 2015
UNITED STATES OF AMERICA,
                                                                 Lyle W. Cayce
                              Plaintiff - Appellee                    Clerk

v.

CITGO PETROLEUM CORPORATION; CITGO REFINING AND
CHEMICALS COMPANY, L.P.,

                              Defendants - Appellants



                Appeal from the United States District Court
                     for the Southern District of Texas


Before DAVIS, JONES, and CLEMENT, Circuit Judges.
EDITH H. JONES, Circuit Judge:
      CITGO Petroleum Corporation and CITGO Refining and Chemicals
Company, L.P. (collectively “CITGO”) were convicted of multiple violations of
the Clean Air Act, 42 U.S.C. § 7413 and 40 C.F.R. § 60.690 et seq. (“Subpart
QQQ”), and the Migratory Bird Treaty Act of 1918 (“MBTA”), 16 U.S.C. § 703.
CITGO urges this court to reverse the Clean Air Act convictions because the
district court erroneously instructed the jury about the scope of a regulation
concerning “oil-water separators.”    CITGO also contends that the MBTA
convictions are infirm because the district court misinterpreted the century-
old statute as covering unintentional bird kills. We essentially agree with both
contentions and REVERSE.
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                                     No. 14-40128
                                   BACKGROUND
      In the 1980s, the Environmental Protection Agency (“EPA”) exercised its
authority under Section 111 of the Clean Air Act, 42 U.S.C. § 7411, to regulate
oil refinery wastewater treatment systems. 1               These systems, the EPA
explained, emit dangerous levels of volatile organic compounds (“VOCs”), such
as xylene, toluene, and benzene. Standards of Performance for New Stationary
Sources; VOC Emissions From Petroleum Wastewater Systems [hereinafter
“Proposed Standards”], 52 Fed. Reg. 16,334-01, 16,337 (May 4, 1987) (to be
codified at 40 C.F.R. pt. 60). When VOCs enter the atmosphere they cause
photochemical reactions that produce ozone. 

principal ingredient
of urban smog, can trigger a variety of respiratory problems. To mitigate the
alleged health risks, the EPA sought to reduce the VOCs entering the
wastewater system, reduce the surface area of wastewater exposed to the
atmosphere, and control the venting of VOCs to the extent practicable. 

      Understanding the ensuing regulations, however, requires a brief
overview of the wastewater treatment process. Wastewater—containing a
mixture of solids, sludges, and oil—is an inevitable byproduct of the refining
process.    U.S. ENVTL. PROT. AGENCY, VOC EMISSIONS FROM PETROLEUM
REFINERY WASTEWATER SYSTEMS—BACKGROUND INFORMATION FOR PROPOSED
STANDARDS [hereinafter “Background for Proposed Standards”], EPA-450/3-
85-001a, at 3-3 (1985). A series of drains located in different parts of the
refinery collects the wastewater as it is generated. 

the water
travels through lateral sewers into the first piece of oil separation equipment,
aptly called an oil-water separator.            

enters the


      1  The EPA also regulates these systems under the Clean Water Act, U.S. ex rel. Adm’r
of EPA. v. CITGO Petroleum Corp., 

, 549 (5th Cir. 2013), but the government
did not charge CITGO with any CWA violations here.
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separator, oils and solids with specific gravities less than that of water float to
the top, while heavy sludges and solids sink to the bottom. 

remove the top layer of floating oil for recycling. 

separators
are the primary oil removal equipment, they are not designed to remove all the
oil from wastewater; according to the EPA, oil-water separators can remove
between fifty and ninety-nine percent of separable oil. 

When the
EPA promulgated the regulation at issue in 1987, there were three types of oil-
water separators: the American Petroleum Institute (“API”), Corrugated Plate
Interceptor (“CPI”), and Parallel Plate Interceptor (“PPI”). 

The
EPA considered CPIs, the type of separators used at CITGO’s facility,
“enhanced oil-water separators” because they are more efficient than the then-
prevalent API separators. 

passes through the oil-water separator it pools in large
vessels called equalization tanks. By providing a way point between the oil-
water separators and subsequent treatments, the tanks ensure that a constant
and manageable amount of wastewater flows to secondary treatment systems.
Background for Proposed 

.           In other words, the
equalization tanks increase the efficiency of downstream treatment processes
by preventing large unpredictable discharges (which are common in refineries)
from overwhelming those systems. 

accumulates in the tanks,
skimmers and vacuum trucks extract the excess oil for recycling.
      Next, wastewater undergoes air flotation. Gas and air are pumped into
the wastewater. Background for Proposed 

. The
gases then form bubbles that attach to suspended oil. 

oil-
gas bubbles, with densities less than water, float to the top. 

layer of oil can then be skimmed off and recycled.          

the
wastewater undergoes biological treatment in an aerobic basin, then passes
through a clarifier before finally being released. 

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       CITGO’s Corpus Christi refinery fits this general description. Drains
collect wastewater and transport it to two CPI oil-water separators. R. 7882.
On average, the CPIs removed about 70 percent of separable oil. R. 7884-85;
7887. The water flowed from the separators into two large equalization tanks,
referred to as Tanks 116 and 117, each measuring thirty-feet tall and 240 feet
in diameter.      When unpredictable discharges occurred, oil pooled in the
equalization tanks, and CITGO used vacuum trucks and skimmers to remove
the excess oil. R. 8463. Although the CPI oil-water separators had roofs, at
the time of the alleged violations, Tanks 116 and 117 did not.
       After a surprise inspection in March 2002 revealed 130,000 barrels of oil
floating atop the uncovered equalization tanks, Texas environmental
inspectors cited CITGO for violating the Clean Air Act. 2 Under Subpart QQQ,
which resulted from the EPA’s push to limit VOC emissions from oil refineries,
all oil-water separators must have roofs.            Because the equalization tanks
contained such a large amount of oil, Texas authorities concluded CITGO was
using Tanks 116 and 117 as oil-water separators. And because those tanks
were uncovered, authorities concluded that CITGO was violating Subpart
QQQ.
       In 2007, a grand jury returned a ten-count indictment. R. 1572-87. As
relevant here, the indictment accused CITGO in two counts of knowingly
operating Tanks 116 and 117 as oil-water separators without emission control




       2 When Congress passed the Clean Air Act, it recognized that “air pollution prevention
(that is, the reduction or elimination, through any measures, of the amount of pollutants
produced or created at the source) and air pollution control at its source is the primary
responsibility of States and local governments.” 42 U.S.C. § 7401(a)(3). Accordingly, the
Clean Air Act places primary enforcement responsibility on the states. See 

The
federal government, however, retains secondary enforcement authority. The federal
government, instead of Texas, exercising its secondary authority, prosecuted this case.

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                                     No. 14-40128
devices in violation of 42 U.S.C. § 7413(c)(1), and 40 C.F.R. § 60.692-4. 3 

government suspected birds had died in the uncovered tanks, the
indictment also accused CITGO of “taking” migratory birds in violation of the
MBTA, 16 U.S.C. § 703. 4 

occurred in two parts. In the first, a
jury exonerated the defendants on three CAA counts but found CITGO guilty
on the two above-noted counts. CITGO moved to set aside the verdict, arguing,
inter alia, that the district court’s jury instruction misinterpreted Subpart
QQQ. R. 2365-78. The district court denied the motion. See United States v.
CITGO Petroleum Corp. (Clean Air Act Opinion), No. C-06-563, 

, at *1 (S.D. Tex. March 28, 2011). In the nonjury phase of the trial,
the district court found CITGO guilty of three (out of five) counts for “taking”
migratory birds. R. 11168-71. The district court denied CITGO’s motion to
vacate these convictions. United States v. CITGO Petroleum Corp. (MBTA
Opinion), 

(S.D. Tex. 2012). The court sentenced CITGO
to a $2 million fine for the Clean Air Act counts and $15,000 for each MBTA
violation. CITGO now appeals.
                                    DISCUSSION
      CITGO presents three challenges to its convictions, only two of which
need discussion. First, CITGO challenges the jury instruction that an oil-water
separator is any equipment used to separate oil from water. Second, CITGO



      3   In addition to the Clean Air Act and MBTA counts, counts one and two charged
CITGO with emitting benzene in excess of the allowed amount under Section 112 of the Clean
Air Act. R. 1572-87. Count three alleged that CITGO and its Environmental Manager made
false statements to authorities. 

found CITGO not guilty on counts one and two.
The district court dismissed count three as time-barred.

      4 Among the bird remains were five White Pelicans, twenty (regular old) Ducks, two
Northern Shoveler Ducks, four Double Crested Cormorants, one Lesser Scaup Duck, one
Black-Bellied Whistling Tree Duck, one Blue-Winged Teal Duck, and one Fulvous Whistling
Tree Duck.

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                                    No. 14-40128
argues that the MBTA only criminalizes acts related to hunting or poaching,
not omissions that unintentionally kill birds. 5
                                           I.
      CITGO’s challenge to the jury instructions rests on one question: under
Subpart QQQ, can an equalization tank be an oil-water separator? The district
court thought it could. The jury instructions quoted Subpart QQQ’s definition
of an oil-water separator and then added: “[t]he definition of oil-water
separator does not require that [it] have any or all of the ancillary equipment
mentioned such as forebays, weirs, grit chambers, and sludge hoppers . . . . An
oil-water separator is defined by how it is used.” Clean Air Act Opinion,

, at *3. This purely functional explanation is not what
Subpart QQQ says, however: it defines an oil-water separator by how it is used
and by its constituent parts.        Nor does the district court’s interpretation
comport with other regulations governing wastewater treatment systems or
Subpart QQQ’s promulgation history. Although the jury was also provided the
exact text of Subpart QQQ, the court’s instruction told them what it means and
thus undoubtedly affected the verdict. For this harmful error, the Clean Air
Act convictions must be reversed.
      The district court has “substantial latitude . . . in describing the law to
the jury.” United States v. Williams, 

, 285 (5th Cir. 2010). This
court only evaluates “whether the charge, as a whole, was a correct statement
of the law and whether it clearly instructed the jurors as to the principles of
the law applicable to the factual issues confronting them.” United States v.
Orji-Nowsu, 

, 1008 (5th Cir. 2008). In other words, this court



      5  The third issue is whether this prosecution violated CITGO’s due process rights
because the EPA changed its interpretation of Subpart QQQ without notice. Because we hold
that Subpart QQQ does not govern Tanks 116 and 117, we need not address CITGO’s
constitutional argument.
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reviews jury instructions for abuse of discretion. United States v. Santos,

, 764 (5th Cir. 2009).       The legal conclusions underlying jury
instructions, however, are reviewed de novo. See 

.
                                        A.
      This court applies the same interpretive framework to regulations as to
statutes.   KCMC, Inc. v. F.C.C., 

, 549 (5th Cir. 1979).          The
discussion begins, as it always must, with Subpart QQQ’s text.           Further,
where, as here, a regulatory violation carries criminal penalties, the regulation
“must be strictly construed and cannot be enlarged by analogy or expanded
beyond the plain meaning of the words used.” United States v. Clark, 

, 890 (5th Cir. 1969); accord United States v. Anzalone, 

, 680
(5th Cir. 1985); Diamond Roofing Co., Inc. v. OSHRC, 

, 649 (5th
Cir. 1976) (“If a violation of a regulation subjects private parties to criminal or
civil sanctions, a regulation cannot be construed to mean what an agency
intended but did not adequately express”).
     An oil-water separator, the regulation explains, is wastewater treatment
equipment:
      used to separate oil from water consisting of a separation tank,
      which also includes the forebay and other separator basins,
      skimmers, weirs, grit chambers, and sludge hoppers. Slop oil
      facilities, including tanks, are included in this term along with
      storage vessels and auxiliary equipment located between
      individual drain systems and the oil-water separator. This term
      does not include storage vessels or auxiliary equipment which do
      not come in contact with or store oily wastewater.

40 C.F.R. § 60.691. The parties concentrate their arguments on the first
sentence of this paragraph. The government advances several arguments why
this sentence invokes a quintessentially functional approach to defining an oil-
water separator. As the district court put it, “an oil-water separator is defined
by how it is used.” The government contends that because the first sentence
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                                 No. 14-40128
of this definition does not require a regulated piece of equipment to include the
various devices listed in the latter half of the sentence, and because the
government proved that CITGO “used” Tanks 116 and 117 “primarily” to
separate oil from water, the violations and convictions must be sustained.
      To examine the government’s position, it is helpful to look at a diagram
of a CPI oil-water separator that EPA included in its Background discussion
before Subpart QQQ was promulgated and was admitted into evidence.




Notably, the definition in Subpart QQQ exactly describes this diagram. All of
the components listed in Subpart QQQ (separation tank, forebay, other
separation basin, skimmers, weirs, grit chamber, and sludge hopper) are
identifiable on the diagram, and they are components of the separators as
described by EPA. See Background for Proposed 

.
      On its face, then, the regulation clearly encompasses CPI oil-water
separators of the sort that were upstream from CITGO’s equalization tanks
and air flotation device at its Corpus Christi refinery. The question is whether
this language covers more than CPI and similar oil-water separators. The first
sentence sets out two requirements. Obviously, the equipment covered by

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                                       No. 14-40128
Subpart QQQ must be “used to separate oil from water.” Second and more
critically, the equipment “consist[s] of” certain parts—that is, an oil-water
separator is “composed or made up of” particular things. See WEBSTER’S THIRD
NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE 484 (1981). In
addition to the separator’s function, the second element of the sentence
explains that an oil-water separator is made up of (or composed of) “a
separation tank, . . . skimmers, weirs, grit chambers, and sludge hoppers.
When used in this way, “consists” introduces an exhaustive list; the listed
components are part of the definition of the oil-water separator. See ANTONIN
SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL
TEXTS 132-33 (2012); BRYAN A. GARNER, GARNER’S MODERN AMERICAN USAGE
440 (2003). Although Tanks 116 and 117 had skimmers, it is undisputed that
they did not have weirs, grit chambers, or sludge hoppers. Therefore, they are
not oil-water separators under Subpart QQQ, and CITGO cannot be guilty of
violating Subpart QQQ. 6
       The EPA, nevertheless, urges us to reject this straightforward reading.
In the EPA’s view, Subpart QQQ’s list of parts is governed, not by the phrase
“consisting of,” but by “includes.” “Includes,” in the words of the district court,
is “inclusive, but not mandatory” and distinct from “consisting of.” Clean Air
Act Opinion, 

, at *4. Accordingly, the phrase “which also
includes” and the list of parts that follows explain “whether or not ancillary
equipment is included in the term [oil-water separator] for purposes of the
regulation.”    

does not mean that the listed equipment is



       6Although it may be possible to conclude that equipment lacking some listed parts is
what an oil-water separator “consists” of, the canon of constitutional avoidance precludes this
interpretation. Under this rule, courts must “avoid an interpretation of a [regulation] that
engenders constitutional issues if a reasonable alternative interpretation poses no
constitutional question.” Gomez v. United States, 

, 864, 

, 2241
(1989).
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                                       No. 14-40128
necessary for the regulation to be invoked. 

court reasoned that
CITGO’s interpretation would render “includes” superfluous and would
redefine the regulation to state something like, “‘Oil-water separator’ means
wastewater treatment equipment used to separate oil from water consisting of
a separation tank, the forebay and other separator basins, skimmers, weirs,
grit chambers, and sludge hoppers.” 

agree that “includes” is inclusive, we disagree that
“includes” governs and renders merely descriptive, not prescriptive, Subpart
QQQ’s list. Instead, “includes” governs the relative clause beginning with
“which” and extending to “other separator basins.” To see why requires a close
parsing of the sentence. The relative pronoun “which” refers to the noun
immediately preceding it—“separation tank.” See THE CHICAGO MANUAL OF
STYLE § 5.57 (16th ed. 2010) (explaining that generally a relative pronoun’s
antecedent immediately precedes it). Read together, the phrase “which also
includes” expands the description of a separation tank to include the other
tanks, or basins, where the entirety of the CPI separation process occurs. As
the above diagram shows, a CPI oil-water separator has three such places—
the forebay, the separation tank, and the outlet basin. Because all of these
share the characteristic of being a tank or basin, it is grammatically accurate
for the relative clause to expand the definition of “separation tank.”
Accordingly, the most logical reading of the relative clause is that it expands
the definition of a separation tank to include all the spaces where separation
can occur. 7



       7 In fact, when the EPA promulgated the final version of Subpart QQQ, it placed the
relative clause in parentheses in the preamble. See Standards of Performance for New
Stationary Sources; VOC Emissions from Petroleum Refinery Wastewater Systems
[hereinafter “Final Standards”], 53 Fed. Reg. 47,616-01, 47,616 (Nov. 23, 1988) (to be codified
at 40 C.F.R. pt 60) (“Oil-water separators include the separation tank (which also includes
the forebay and other separation basins), skimmers, weirs, grit chambers, and sludge
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                                      No. 14-40128
                                            B.
       This reading harmonizes Subpart QQQ’s definition with its substantive
requirements. The regulation requires refineries to cover oil-water separators.
A CPI oil-water separator is configured such that it is possible to cover one
basin or tank without covering the other two. In fact, during the notice and
comment period, one commenter suggested that only the forebay, where most
oil recovery takes place, should have a roof. U.S. ENVTL. PROT. AGENCY, VOC
EMISSIONS       FROM      PETROLEUM         REFINERY       WASTEWATER         SYSTEMS—
BACKGROUND INFORMATION FOR PROMULGATED STANDARDS [hereinafter
“Background for Promulgated Standards”], EPA-450/3-85-001b, at 2-30 (1987).
Subpart QQQ, as we interpret it, requires refineries to cover the separation
tank, the forebay, and other separation basins that are present. None of the
language of Subpart QQQ is superfluous, and the limitations intended by EPA,
according to its published commentary during the rulemaking process, are
embodied in this language.
        At the same time, it would be nonsensical to assert, as the government
does, that Subpart QQQ explains that all listed parts, if present, must be
covered. The above diagram is again instructive. Many of the parts listed in
Subpart QQQ either cannot be covered individually (weirs, skimmers) or are
wholly contained within the separation chamber, forebay, or outlet basin. Only
three general areas of an oil-water separator can be covered, and the clause
“which also includes the forebay and other separator basins” identifies those
three areas. The rest of the parts listed are what an oil-water separator
“consists of” and, therefore, are required for equipment to fall within the
definition.



hoppers.”). Although not dispositive, this certainly supports reading the relative clause to
end after “other separation basins.”
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      EPA’s additional arguments for a purely functional interpretation of this
regulation can be briefly disposed of. We disagree with EPA’s contention that
the second and third sentences of the regulation enhance a purely functional
definition. The second sentence refers only to slop oil facilities and tanks
located between individual drain systems (which are upstream) and the oil-
water separator; Tanks 116 and 117 are not slop oil tanks under the regulatory
definition and they are downstream of the CPI separators. EPA’s “process”
argument, that this regulation covers the entire process of oil-water
separation, is contradicted by two facts.        First, EPA routinely described
equalization tanks, which sit downstream of the CPI separators, as a part of
the air flotation system, and it excluded both from the final regulation in this
subpart.   Background for Promulgated 

.            Second,
because nearly every piece of equipment in a refinery’s wastewater treatment
system is used to separate oil from water (e.g. flocculation tanks, filtration
tanks, clarifiers), the process argument proves too much: EPA could have
written a much simpler regulation if it planned to require covers over the
entire system rather than with definitional precision.
      The government’s functional, purportedly all-inclusive interpretation is
also flawed because it conflicts with Subpart Kb, which regulates storage
vessels excluded from Subpart QQQ. 40 C.F.R. § 60.692-3(d). Regulations,
like statutes, must be “construed so that effect is given to all [their] provisions,
so that no part will be inoperative or superfluous, void or insignificant.” Corley
v. United States, 

, 314, 

, 1566 (2009). Subpart Kb
specifically governs storage vessels used in the wastewater treatment system.
40. C.F.R. § 60.110b(a). And like Subpart QQQ, it requires equipment emitting
large amounts of VOCs to have roofs. 

But unlike Subpart
QQQ, Subpart Kb requires the storage vessels to be covered only if they have
a vapor pressure above certain threshold amounts. 

court’s
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                                 No. 14-40128
interpretation of Subpart QQQ, however, effectively eliminates Subpart Kb’s
vapor pressure trigger. In its view, essentially all vessels that are part of the
treatment system must be covered, no matter their vapor pressure. Yet all
such vessels are in some sense used to separate oil from water. If their “use,”
or even “primary use” in oil-water separation is enough to trigger Subpart
QQQ’s requirement, this interpretation renders Subpart Kb’s vapor pressure
triggers inoperative. Basic rules of interpretation require avoiding this result.
      The interpretation of Subpart QQQ adopted here gives effect to both
Subpart QQQ and Subpart Kb. For Subpart QQQ to govern a vessel it must
have the parts listed in the definition of an oil-water separator—a separation
chamber or chambers, skimmers, weirs, grit chambers, and sludge hoppers. In
practical terms, Subpart Kb governs equalization tanks, like Tanks 116 and
117, which (except for skimmers) do not have those parts, while Subpart QQQ
governs oil-water separators, like the Corpus Christi refineries’ two CPI oil-
water separators.
      The government has not responded to this holistic harmonization of its
own regulations. Indeed, until now, the government read Subpart QQQ and
Subpart Kb exactly the same way. In response to an inquiry from a refinery
operator, the EPA announced that “since [equalization] tanks are subject to . .
. Subpart Kb . . ., they are not regulated by Subpart QQQ.” U.S. Envtl. Prot.
Agency Applicability Determination Index, Control No. 0100058, Letter from
R. Douglas Neeley, Chief, Air & Radiation Tech. Branch, Air, Pesticides, &
Toxics Mgmt. Div., to Timothy S. Owen, Chief, Eng’g Servs. Branch, Air Div.,
Alabama Dep’t of Envtl. Mgmt., Aug. 17, 2001. Even more confounding to its
present contentions, the EPA explained that “the Subpart QQQ definition of
an ‘oil-water separator’ . . . [is] associated with API separators or enhanced




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                                    No. 14-40128
separators such as CPI separators.” 

words, Subpart QQQ governs
CPI and API (and presumably PPI) separators, not equalization tanks. 8
                                          C.
      Ordinarily, when a regulation is clear and unambiguous—as Subpart
QQQ is—there is no reason to discuss its promulgation history. See United
States v. Gonzales, 

, 6, 

, 1035 (1997). The parties,
however, spent considerable time analyzing the history, which to the extent
relevant, further supports our conclusion that equalization tanks are not oil-
water separators and that Subpart QQQ only covers the latter.
      Subpart QQQ, as originally proposed, was much broader than the
enacted version.     At that time, EPA explained that “refinery wastewater
systems are highly interrelated sources of VOC emissions.”                     Proposed
Standards, 52 Fed. Reg. at 16,335. As a result, EPA concluded, emission
controls on the entire wastewater system are “environmentally prudent” and
“within the range of range of reasonable costs.”            

proposed
Subpart QQQ regulated “all the emission points . . . that are functionally
related; that is, each individual drain system together with its ancillary
downstream      treatment     components       (including   sewer     lines,   oil-water
separators and air flotation systems).” 

proposed Subpart QQQ
governed what the EPA wishes it governed now—every part of the wastewater
treatment system “from which VOC vapors might be emitted.” 

operators, including CITGO, commented on the
proposed regulation. See Background for Promulgated 

-



      8  The EPA is not the only government agency to take this position. In 1999, three
years before the 2002 inspection, Texas environmental inspectors first cited CITGO for
operating Tanks 116 and 117 as oil-water separators. During the ensuing investigation,
Texas officials concluded that CITGO’s position—that Tanks 116 and 117 are not oil-water
separators under Subpart QQQ—was correct. R. 5152. Accordingly, Texas dropped all the
charges.
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                                  No. 14-40128
1, 1-2. As previously mentioned, one commenter suggested that the regulation
only require a roof over the oil-water separator’s forebay. Id at 2-30. Many
commenters objected to the requirement that air flotation systems have roofs
because they are not cost effective, they increase the risk of explosions and fire,
and impair the efficiency of the wastewater treatment system. Id at 2-7.
Another commenter complained about Subpart QQQ’s applicability to
equalization tanks, like Tanks 116 and 117. 

According to the
commenter, covering these tanks is difficult and presents the same safety
concerns as covering the air flotation system itself. 

the EPA undertook a thorough reevaluation of Subpart
QQQ and made substantial changes. The final version was drafted to exclude
air flotation systems.    The “safety concerns raised by commenters,” the
government explained, “cannot be overcome in a cost effective manner.”
Background for Promulgated 

-2. And, under the best
case scenario, covering the air flotation system would result only in a
“negligible” reduction in VOC emissions. 

same reasons” the final
regulation excluded “equalization basins and other auxiliary tanks, basins,
and equipment between the oil- water separator and air flotation system.” 

air flotation systems, “there are no cost-effective methods of VOC
emissions destruction or removal that have been demonstrated for these
facilities.   Further, suppression of VOC emissions at these points in the
treatment process merely suppresses temporarily the VOC’s downstream to be
emitted at other uncontrolled locations.” 

points to the same conclusions as Subpart QQQ’s text:
Subpart QQQ governs oil-water separators but not equalization tanks. In
numerous places, the government unequivocally stated exactly that. At no
point did the government warn that any equipment, if used to separate oil from
water, would be regulated. And if it had, such statement would conflict with
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                                 No. 14-40128
the regulation’s text. Further, under the government’s reading, Subpart QQQ
also governs systems the EPA explicitly exempted, like air flotation systems.
Those systems are “commonly used in refinery wastewater treatment systems
to remove free oil . . . [and] emulsified oil.”     Background for Proposed

, 3-41. Yet “the final standards [were] revised to exempt air
flotation systems.” Background for Promulgated 

, at 2-7.
      The government offers no rebuttal to this argument. Its brief merely
repeats that Tanks 116 and 117 “were the separation tanks,” the “primary
means of separating slop oil out of its wastewater system,” and were not “use[d]
. . . as equalization basins.” Noticeably absent is an acknowledgment of the
consequences of its preferred interpretation. Nowhere does the government
offer any limiting principle or admit to a changed view. Instead it presses an
interpretation that results in Subpart QQQ’s covering the entire wastewater
treatment system, never mind that in every public pronouncement it took the
contrary view.    We agree with what the government has said from the
beginning— Subpart QQQ does not regulate equalization tanks.
                                       D.
      The government’s warning that this court’s reading of Subpart QQQ
creates a “massive loophole,” allowing refineries to “avoid emissions controls
merely by eliminating an ancillary part from a separation tank’s design,” is
unpersuasive. For one thing, our interpretation does not leave equalization
tanks unregulated; Subpart Kb still applies. Significantly, the government has
never charged CITGO with violating Subpart Kb. For another, the EPA has
all the tools needed to fix any loopholes arising from this decision. Through
the Clean Air Act, Congress has given the EPA power to write regulations with
the binding force of law and backed by civil and criminal penalties. The EPA
retains the ability to rewrite the regulations, if necessary and appropriate.


                                      16
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                                 No. 14-40128
      Subpart QQQ’s text, the overall regulatory scheme, and its promulgation
history point to the inescapable conclusion that an equalization tank is not an
“oil-water separator.” To be an “oil-water separator” the equipment must be
used to separate oil from water and it “consist” of a separation tank, which may
have several basins, and skimmers, weirs, grit chambers, and sludge hoppers.
Because the district court misstated the scope of the regulation, its jury
instruction was erroneous. There is no doubt that this omission affected the
outcome. CITGO’s CAA convictions must accordingly be reversed.
                                      II.
      We now turn to the MBTA convictions. A century ago, out of a shared
desire to “sav[e] from indiscriminate slaughter and [to] insur[e] the
preservation of such migratory birds as are either useful to man or are
harmless” the United States and the United Kingdom (on behalf of Canada)
agreed to “adopt some uniform system of protection.”            Migratory Bird
Protection Agreement, U.S.-Can., Dec. 8, 1916, 39 Stat. 1702. To implement
the new accord, Congress passed the Migratory Bird Treaty Act of 1918. As
relevant here, the act makes it “unlawful at any time, by any means or in any
manner, to pursue, hunt, take, capture, kill, attempt to take, capture, or kill
. . . any migratory bird,”        in violation of regulations and permits.
See 16 U.S.C. § 703(a); § 704(a). The act imposes strict liability on violators,
punishable by a maximum $15,000 fine and six months imprisonment.
16 U.S.C. § 707(a).
      In order to hold CITGO liable for three misdemeanor counts of “taking”
migratory birds who died when they landed on Tanks 116 and 117, the district
court conscientiously canvassed conflicting case law under the MBTA and drew
three significant conclusions. First, the court held that an illegal “taking” is
an ambiguous term that involves more activities than those related to hunting,
poaching and intentional acts against migratory birds. See MBTA Opinion,
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                                     No. 

–45. Second, the court held that strict liability requires,
in this context, only that the actor proximately caused the illegal “taking.” 

Third, the court apparently held that CITGO’s violation of federal and
state regulations that required roofing these tanks could support the
company’s misdemeanor convictions. 

the government supports the first two conclusions, but
CITGO asserts that illegally “taking” migratory birds involves only “conduct
intentionally directed at birds, such as hunting and trapping, not [ ]
commercial activity that unintentionally and indirectly causes” migratory bird
deaths. Albeit with significant nuances in reasoning, cases can be found to
support either position. 9 Compare Newton Cnty. Wildlife Ass’n v. U.S. Forest
Serv., 

, 115 (8th Cir. 1997), and Seattle Audubon Soc’y v. Evans,

, 302 (9th Cir. 1991), with United States v. Apollo Energies, Inc.,

, 686 (10th Cir. 2010); and United States v. FMC Corp., 

, 905 (2d Cir. 1978). Reviewing this legal question de novo, see United
States v. Morgan, 

, 613 (5th Cir. 2002), we agree with the Eighth
and Ninth circuits that a “taking” is limited to deliberate acts done directly and
intentionally to migratory birds. Our conclusion is based on the statute’s text,
its common law origin, a comparison with other relevant statutes, and rejection
of the argument that strict liability can change the nature of the necessary
illegal act. Accordingly, CITGO’s MBTA convictions must be reversed.




      9  District courts are similarly divided. Compare Mahler v. U.S. Forest Serv., 927 F.
Supp. 1559, 1574 (S.D. Ind. 1996) (limiting MBTA to hunting like activities) with United
States v. Moon Lake Elec. Ass’n, 

, 1078-79 (D. Colo. 1999) (holding the
opposite).
                                            18
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                                        No. 14-40128
                                               A.
        CITGO was indicted for “taking” or “aiding and abetting the taking” of
migratory birds, not for “killing” them. 10 We confine analysis to the charging
term. The term “take” is “as old as law itself.” Babbitt v. Sweet Home Chapter
Cmtys for a Great Or., 

, 717, 

, 2422 (1995) (Scalia,
J., dissenting); see also 2 WILLIAM BLACKSTONE, COMMENTARIES *411 (tracing
the “right of pursuing, taking, and destroying” game back to Roman imperial
law). Justice Scalia’s discussion of “take” as used in the Endangered Species
Act is not challenged here by the government, nor was it criticized by the
majority in Sweet Home, because Congress gave “take” a broader meaning for
that statute. See Sweet 

n.10.
“[A]bsent contrary indications,” courts presume that “Congress intends to
adopt the common law definition of statutory terms.”                       United States v.
Shabani, 

, 13, 

, 2422 (1995). As applied to wildlife,
to “take” is to “reduce those animals, by killing or capturing, to human control.”
Sweet 

, 115 S. Ct. at 2422 (Scalia, J., dissenting); accord
Geer v. Connecticut, 

, 523, 

, 602 (1896), overruled on
other grounds by Hughes v. Oklahoma, 

, 

(1979);
Ward v. Race Horse, 

, 507, 

, 1077 (1896). One does
not reduce an animal to human control accidentally or by omission; he does so
affirmatively.
       The government disputes that the common law definition is so limited.
Its brief asserts that, at the time Congress passed the act, “take” was not



       10 Although this case does not present an opportunity to interpret “kill,” there is reason
to think it too is limited to intentional acts aimed at migratory birds. At least one court has
questioned whether “kill” has any independent meaning or is “only mentioned as the usual
result of pursuing, hunting, or capturing.” United States v. FMC Corp., 

, 903
n.1 (2d Cir. 1978). A contemporary statute, the Migratory Bird Conservation Act, 16 U.S.C.
§ 715, similarly intimates that “kill” may have little independent force, as it lists “kill” as
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                                       No. 14-40128
limited to hunting and trapping and that it had a wide variety of
contemporaneous meanings. For support, the government looks to United
States v. Moon Lake Elec. Ass’n, 

, 1078-79 (D. Colo. 1999),
which lists every possible meaning for that term contained in the 1920 edition
of Webster’s dictionary. That “take” can or might have had a wide range of
meanings is not determinative, because when the MBTA was passed in 1918,
“take” was a well-understood term of art under the common law when applied
to wildlife. See 

, 16 S. Ct. at 602. The government does
not explain why Congress implicitly intended to vary from the common law
meaning in the MBTA. See 

, 115 S. Ct. at 384. 11
       A simple comparison with related statutes, both enacted fifty or more
years later, shows that Congress well knew how to expand “take” beyond its
common law origins to include accidental or indirect harm to animals. The
Endangered Species Act (“ESA”) explicitly defines “take” to mean “harass,
harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt
to engage in any such conduct.” 16 U.S.C. § 1532(19) (emphasis added). The
inclusion of “harass” and “harm” modified the common law definition. The
term “harass,” as interpreted by the ESA’s regulations, includes not just
intentional acts, but a “negligent act or omission.” 50 C.F.R. § 17.3; see also
Sweet 

, 115 S. Ct. at 687 (approving this expansive


part of the definition of “take.” See 16 U.S.C. § 715n. Even if “kill” does have independent
meaning, the Supreme Court, interpreting a similar list in the ESA, concluded that the terms
pursue, hunt, shoot, wound, kill, trap, capture, and collect, generally refer to deliberate
actions. Sweet 

. Accordingly, there is reason
to think that the MBTA’s prohibition on “killing” is similarly limited to deliberate acts that
effect bird deaths.
        11 The government raises a straw man by arguing that “take” must mean more than

the common law definition because the MBTA also regulates commercial activities
concerning migratory birds. There is no linguistic connection between “taking” and the
commercial exploitation of the birds and their eggs under MBTA. Moreover, the
government’s argument is at odds with the common law definition of “take” in the MBTA
regulations. See 50 C.F.R. § 10.12.
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                                  No. 14-40128
reading of “take”). Similarly, “harm” encompasses not only acts that directly
result in the death of endangered species, but also any “act which actually kills
or injures wildlife.” 50 C.F.R. § 17.3. In the Marine Mammal Protection Act
(“MMPA”), 16 U.S.C. § 1372(a), Congress          also chose to     define “take,”
differently from the common law, to mean “harass, hunt, capture, or kill, or
attempt to harass, hunt, capture, or kill any marine mammal.” 16 U.S.C.
§ 1362(13).   The accompanying regulations again interpret “harass” (and
therefore “take”) to include negligent acts that indirectly disturb or molest a
marine mammal. 50 C.F.R. § 216.3. The absence from the MBTA of terms like
“harm” or “harass”, or any other language signaling Congress’s intent to modify
the common law definition supports reading “take” to assume its common law
meaning.
      The MBTA adds that the covered activities—pursuit, hunt, taking,
capturing, killing—are illegal if committed “at any time, by any means, in any
manner.” 16 U.S.C. § 703(a). The addition of adverbial phrases connoting
“means” and “manner,” however, does not serve to transform the nature of the
activities themselves. For instance, the manner and means of hunting may
differ from bowhunting to rifles, shotguns, and air rifles, but hunting is still a
deliberately conducted activity. Likewise, rendering all-inclusive the manner
and means of “taking” migratory birds does not change what “take” means, it
merely modifies the mode of the take.
      The government does not refute this exegesis, at least not directly.
Instead, it argues that Congress expanded the definition of “take” by negative
implication. The argument goes like this: In 2002, a district court held that
the United States military violated the MBTA when migratory birds were
accidentally killed during training exercises in the Pacific. Ctr. for Biological
Diversity v. Pirie, 

, 163-64 (D.D.C. 2002), vacated as moot
sub nom. Ctr. for Biological Diversity v. England, No. 02-5163, 

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                                      No. 14-40128
179848 (D.C. Cir. Jan. 23, 2003). In response, Congress quickly exempted
“military readiness activity” from MBTA liability for incidental takings. See
Bob Stump National Defense Authorization Act for Fiscal Year 2003, Pub. L.
No. 107-314, § 315(d), 116 Stat. 2458, 2509-10 (2002) (requiring the Secretary
of the Interior to exercise its authority under the MBTA to “prescribe
regulations to exempt the Armed Forces for the incidental taking of migratory
birds during military readiness activities”). The exemption did not extend to
the “operation of industrial facilities,” even though the government had
previously prosecuted activities that indirectly affect birds. 

(exempting from “military readiness activities,” the “operation of industrial
activities”).    Accordingly, the government asserts, Congress implicitly
expanded “take” beyond its common-law meaning.
       This argument makes no sense. A single carve-out from the law cannot
mean that the entire coverage of the MBTA was implicitly and hugely
expanded. More to the point, this was an exceptionally narrow exemption, as
it did not even protect all military activities. By proceeding in a carefully
targeted way, Congress had no reason to address the full scope of the MBTA. 12
The statute’s scope was at that time uncertain in the courts; both the Eighth
and Ninth Circuits had limited “takes” to hunting and poaching activities,
while the Second Circuit had not. See Newton Cnty. Wildlife 

; Seattle Audubon 

; FMC 

.
Whether Congress deliberately avoided more broadly changing the MBTA or
simply chose to address a discrete problem, the most that can be said is that
Congress did no more than the plain text of the amendment means.


       12 For what it’s worth, the year after Congress enacted the ESA with its intentionally
broader definition of “take,” Congress amended the MBTA but failed to broaden the meaning
of “take.” See An Act to Amend the Migratory Bird Act of July 3, 1918, Pub. L. No. 93-300,
88 Stat. 190 (1974) (amending the MBTA to include the new environmental treaty concluded
between the U.S. and Japan).
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                                      No. 14-40128
       Enacted against an indisputable common law background, the MBTA’s
use of “take,” as in “pursue, take or destroy” animals, is fortified by the absence
of temporizing modifiers like “harm” or “harass.”               The government omits
reference to regulations under the statute, which essentially parallel the
MBTA’s language and conspicuously fail to incorporate “harm” or “harass.” See
50 C.F.R. § 10.12 (“Take” means to “pursue, hunt, shoot, wound, kill, trap,
capture or collect.”) In stark contrast are the ESA and the MMPA in text and
accompanying regulations. Like the Ninth Circuit, we find these differences
“distinct and purposeful.” Seattle Audubon 

. Harm and
harass are the terms Congress uses when it wishes to include negligent and
unintentional acts within the definition of “take.” Without these words, “take”
assumes its common law definition.
                                             B.
       Courts that have read the MBTA broadly, mainly the Second and Tenth
Circuits, disagree with our ultimate conclusion, but not our analysis of the
MBTA’s text. Instead, these courts hold that because the MBTA imposes strict
liability, it must forbid acts that accidentally or indirectly kill birds. The
Second Circuit adopted this view in United States v. FMC Corp., 

(2d Cir. 1978). There, the government prosecuted a pesticide manufacturer
that had inadvertently polluted a wastewater pond with a poisonous compound
that killed migratory birds. On appeal, FMC argued that to violate the MBTA,
“there must be an intent to harm birds culminating in their death” and that “it
took no affirmative act” to kill birds.            

     The Second Circuit
disagreed. 13 It noted that “the term ‘act’ itself is ambiguous” because “a person



       13 The meaning of “take” was not before the court, as the jury was charged about a
“killing” of birds. See FMC 

. Nevertheless, the government argues
that FMC’s analysis is relevant here because the Second Circuit saw little difference between
“killing” and “taking” under the MBTA. See supra note 10.
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                                  No. 14-40128
failing to act when he has a duty to do so may be held to be criminally liable
just as one who has acted improperly.” 

acted by manufacturing
a dangerous chemical and failing to prevent that chemical from reaching the
pond. 

The court acknowledged that it must balance the objectives
of the MBTA with “a reluctance to charge anyone with a crime which he does
not know he is committing,” and it was aware of potentially unlimited liability
under the act for negligent “killing” of birds. 

Such consequences,
the court soothed, could be remedied by sound prosecutorial discretion. 

further amelioration of the reach it was imputing to the MBTA, the
court analogized FMC’s situation to tort notions of strict liability for conducting
ultra-hazardous activities. 

Because manufacturing pesticides is
such an activity, the court reasoned, FMC was liable regardless how indirect
or accidental the poisonings. 

States v. Apollo Energies, the Tenth Circuit upheld the
misdemeanor convictions of two Kansas oil rig operators for violating the
MBTA after dead birds were found trapped in heater treaters, tall, cylindrical
devices used at oil drilling 

. On appeal, the defendants
argued that violating the MBTA in this manner is not a strict liability crime
and, alternatively, that the MBTA is unconstitutionally vague. 

FMC,
no issue was raised about the meaning of “take.” In the course of rejecting both
contentions, the court addressed whether the MBTA applies to “activities
beyond purposeful hunting or possession of migratory birds.” 

The
court observed that all the cases limiting the MBTA to hunting activities
“involved logging or pesticide application that modified bird habitat in some
way.” 

the case before it involved “whether unprotected oil field
equipment can take or kill migratory birds.” The court found such a conclusion
“obvious.” 

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                                  No. 14-40128
      We decline to adopt the broad, counter-textual reading of the MBTA by
these circuits. No doubt because the defendants failed to make the argument
(and in FMC the issue was “kill” not “take” under the MBTA), neither of these
decisions explores the meaning of “take.” More fundamentally, we disagree
that because misdemeanor MBTA violations are strict liability crimes, a “take”
includes acts (or omissions) that indirectly or accidentally kill migratory birds.
These and like decisions confuse the mens rea and the actus reus requirements.
Strict liability crimes dispense with the first requirement; the government
need not prove the defendant had any criminal intent. But a defendant must
still commit the act to be liable. Further, criminal law requires that the
defendant commit the act voluntarily.       WAYNE R. LAFAVE, CRIMINAL LAW
§ 5.2(e) (5th ed. 2010). “To some extent, then, all crimes of affirmative action
require something in the way of a mental element—at least an intention to
make the bodily movement that constitutes that act which the crime requires.”

act is “to take” which, even without a mens rea, is not something
that is done unknowingly or involuntarily. Accordingly, requiring defendants,
as an element of an MBTA misdemeanor crime, to take an affirmative action
to cause migratory bird deaths is consistent with the imposition of strict
liability. See, e.g., United States v. Morgan, 

, 616 (5th Cir. 2002).
      There is no doubt that a hunter who shoots a migratory bird without a
permit in the mistaken belief that it is not a migratory bird may be strictly
liable for a “taking” under the MBTA because he engaged in an intentional and
deliberate act toward the bird. Cf. Sweet 

, 115 S. Ct. at
2425 (Scalia, J., dissenting) (hunter’s mistaken shooting of an elk is a
“knowing” act that renders him strictly liable under the ESA); United States v.
Kapp, 

, 673 (7th Cir. 2005) (holding Kapp liable under the ESA




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                                       No. 14-40128
over objection that the exotic cats he killed were unprotected hybrids). 14 A
person whose car accidentally collided with the bird, however, has committed
no act “taking” the bird for which he could be held strictly liable. Nor do the
owners of electrical lines “take” migratory birds who run into them. These
distinctions are inherent in the nature of the word “taking” and reveal the
strict liability argument as a non-sequitur.
       We decline to adopt those courts’ interpretation of the MBTA that
substitutes the statute’s misdemeanor criminal liability standard for what the
Act deems criminal. We agree with the Eighth and Ninth Circuits, which,
recognizing this distinction, have placed decisive weight on the meaning of
“take.”
                                             C.
       After surveying many circuit and district court cases, the district court
adopted the Tenth Circuit’s position and held it “obvious” that “unprotected oil
field equipment can take or kill migratory birds.” MBTA Opinion, 

at 847 (quoting Apollo 

). The district court also
adopted the Tenth Circuit’s proximate cause requirement for strict liability
and found that the birds’ deaths were directly, foreseeably caused by the lack
of roofing on Tanks 116 and 117. 

distinguished its result from
other district court cases that dismissed similar MBTA indictments arising
from oil field operations because CITGO left Tanks 116 and 117 uncovered in
violation of the Clean Air Act and Texas law. 15 See 

(citing United



       14 Poisoning a field to deter birds, and “taking” migratory birds in the process, would
also violate the MBTA under our reading. See United States v. Van Fossan, 

,
637 (7th Cir. 1990) (upholding conviction for spreading corn and wheat laced with poison
designed to disperse birds congregating on defendant’s property).

       15 Texas law requires oil operators to “take protective measures necessary to prevent
harm to birds.” 16 TEX. ADMIN. CODE § 3.22(a). In particular, operators must “screen, net,
cover, or otherwise render harmless to birds” large open-top storage tanks. 

                                             26
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                                  No. 14-40128
States v. Chevron USA, Inc., No. 09-CR-0132, 

(W.D. La. Oct.
30, 2009), Brigham Oil & 

, United States v.
ConocoPhillips Co., 

(D.N.D. Aug. 10, 2011)). Aside from our
critique of the Apollo Energies conclusion, there are at least two flaws in the
district court’s attempt to reconcile its approach with other oil field cases. Most
importantly, the MBTA’s text provides no basis, explicitly or implicitly, for
criminalizing migratory bird deaths because they result from violations of
other state or federal laws. Second, as already discussed, CITGO did not
violate the Clean Air Act, the only law which the government accused it of
violating. Moreover, although the district court accused CITGO of violating
state law, the company was never charged or convicted of state law violations.
Thus, even under the district court’s erroneous legal interpretation, the MBTA
convictions must be overturned.
                                        D.
      We note a final factor that supports our interpretation of the MBTA. The
scope of liability under the government’s preferred interpretation is hard to
overstate. The MBTA protects approximately 836 species of birds. Brigham
Oil & Gas, 

. According to the U.S. Fish and
Wildlife Service, between 97 and 976 million birds are killed annually by
running into windows.       U.S. FISH & WILDLIFE SERV., MIGRATORY BIRD
MORTALITY, MANY HUMAN-CAUSED THREATS AFFLICT OUR BIRD POPULATIONS
2 (2002). Communication towers kill an additional four to five million birds
each year, though the government estimates the number may be closer to forty
or fifty million. 

kill approximately 60 million birds each year.

cats are serial violators of the MBTA. In Wisconsin
alone, the government estimates that domesticated cats killed 39 million birds.

refused to speculate on the number of birds that cats kill
nationwide, though it would certainly be “much higher.” 

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                                      No. 14-40128
       If the MBTA prohibits all acts or omissions that “directly” kill birds,
where bird deaths are “foreseeable,” then all owners of big windows,
communication towers, wind turbines, solar energy farms, cars, cats, and even
church steeples 16 may be found guilty of violating the MBTA. This scope of
strict criminal liability would enable the government to prosecute at will and
even capriciously (but for the minimal protection of prosecutorial discretion)
for harsh penalties: up to a $15,000 fine or six months’ imprisonment (or both)
can be imposed for each count of bird “taking” or “killing.”                       Equally
consequential and even more far-reaching would be the societal impact if the
government began exercising its muscle to prevent “takings” and “killings” by
regulating every activity that proximately causes bird deaths. The absurd
results that the government’s interpretation would cause further bolsters our
confidence that Congress intended to incorporate the common-law definition of
‘take’ in the MBTA.
                                    CONCLUSION
            Differing with the district court’s conclusions, we hold that Subpart
QQQ only regulates equipment conventionally, not merely functionally,
known as oil-water separators, along with specifically described ancillary
equipment.       Equalization Tanks 116 and 117 at CITGO’s Corpus Christi
refinery are outside the regulatory definition and thus are not “oil-water
separators” under Subpart QQQ. Further, the MBTA’s ban on “takings” only
prohibits intentional acts (not omissions) that directly (not indirectly or
accidentally) kill migratory birds. Accordingly, we REVERSE the convictions
and REMAND with instructions to enter a judgment of acquittal on Counts
Four, Five, Eight, Nine and Ten.



        In the toddler book, “My Nest is Best,” the bird family escapes from a church steeple
       16

where the eggs in its nest were imperiled by the ringing of the bell.
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                            No. 14-40128
                 REVERSED and REMANDED with INSTRUCTIONS.




                                 29