Migratory bird treaty act: Strict criminal liability for non-hunting, human caused bird deaths

Denver University Law Review

Volumn 77, Issue 2, 1999, Pages 315-357

  Corcoran, Larry Martin ^a  

^a United States Department of Justice   (United States)

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EID: 4043155127     PISSN: 08839409     EISSN: None     Source Type: Journal    
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References (342)

1. 16 U.S.C. §§703-712 (1994 & Supp. IV 1998). See also Migratory Bird Conservation Act, 16 U.S.C. §715(j) (1994 & Supp. IV 1998) (defining "migratory birds" for the MBTA); 50 C.F.R. §10.13 (2000) (listing all species of migratory birds protected by the MBTA).
2. This situation arose in the case of the Moon Lake Electrical Association in Colorado. See United States v. Moon Lake Elec. Ass'n, 45 F. Supp.2d 1070, 1071 (D. Colo. 1999).
3. The described incident actually occurred on the night of January 22, 1998.
4. See THE TOPEKA CAPITAL JOURNAL (Jan. 30, 1998), (revisited on Feb. 13, 2001) .
5. For a discussion of the origins of the MBTA and a detailed description of its requirements, see Lany Martin Corcoran & Elinor Colboum, Shocked, Crushed and Poisoned: Criminal
6. Enforcement In Non-Hunting Cases Under the Migratory Bird Treaties, 77 DENY. U. L. REV., 361, 361-79 (Parts I and II) (2000).
7. 16 U.S.C. §703(a). Sections 704 and 712 of the MBTA authorize the Secretary of the Interior to promulgate regulations to implement the MBTA and its underlying conventions.
8. See id. §707. As one federal judge stated, "My experience at the bar was that one jail sentence was worth 100 consent decrees and that fines are meaningless because the defendant in the end is always reimbursed by the proceeds of his wrongdoing or by his company down the line." Steven Zipperman, Comment, The Park Doctrine -Application of Strict Criminal Liability to Corporate Individuals For Violation of Environmental Crimes, 10 UCLA J. ENVTL. L. & POL'Y 123, 153 (1991)
9. (citing Barry C. Groveman & John L. Segal, Pollution Police Pursue Chemical Criminals, 55 Bus. Soc'Y REV. 39,42 (1985)).
10. See 16 U.S.C. §707(a) & (c). Commercial violations and certain baiting violations are not strict liability offenses. See id. §§704(b) (baiting violations), 707(b) (commercial transactions). For cases holding the MBTA is a strict liability statute, see infra Part II (MBTA Misdemeanor's Held to Be Strict Liability Crimes).
11. Hunters killed an estimated 16.57 million ducks, 3.13 million geese, and 369,000 coots during the 1998 waterfowl season. ELWOOD M. MARTIN & PAUL I. PADDING, U. S. FISH AND WILDLIFE SERV., OFFICE OF MIGRATORY BIRD MANAGEMENT, ADMINISTRATIVE REPORT, Harvest Surveys Section (July, 1999). Ducks, geese, and coots are only some of the birds legally killed pursuant to permits. Those numbers reported by Martin and Padding are comparable to data reported by Banks for the late 1960s and early 1970s, at which time he estimated that hunting accounted for about 60 percent of total migratory bird mortality, while impacts with human constructions accounted for approximately 31.6 percent, and poison or pollution accounted for only 1.8 percent.
12. See RICHARD. C. BANKS, HUMAN RELATED MORTALITY OF BIRDS IN THE UNITED STATES, U.S. FISH AND WILDLIFE SERV. SPECIAL SCIENTIFIC REPORT-WILDLIFE 215, 14, tbl. 10 (1979) (120,539,500 birds taken by hunting out of a total of 196,887,810 human caused fatalities). In light of more recent estimates of non-hunting bird fatalities, it appears the number of non-hunting fatalities is much higher and, consequently, a larger percentage of the total number of migratory bird deaths are caused by humans. See infra Part VILA (Foreseeable bird deaths).
13. See Migratory Bird Hunting regulations, 50 C.F.R. Part 20 (2000).
14. See also Migratory Bird Permits, 50 C.F.R. Part 21 (2000).
15. See BANKS, supra note 8, at 5; infra Part VILA (Foreseeable bird deaths).
16. See, e.g., infra Part V (Judicial Uneasiness With Strict Criminal Liability). See also Corcoran & Colbourn, supra note 4, at 389-391 (Part III.B.l.).
17. See, e.g., infra Part V (Judicial Uneasiness With Strict Criminal Liability).
18. Birds are killed by other non-hunting trauma, including logging and farming. This article . focuses on traumatic bird deaths for which data exists that can be compared with courts' expressions of concern about MBTA application. However, there is no reason to believe that, were data available, the conclusions of this article would not be equally applicable to other common sources of traumatic bird deaths. For a discussion of issues relating to bird deaths caused by timber harvesting, see Corcoran & Colbourn, supra note 4 at 319-393 (Part III.B.2 and 3).
19. For policy arguments for and against strict liability under the MBTA, compare Steven Margolin, Liability Under the Migratory Bird Treaty Act, 7 ECOLOGY L. Q. 989, 996-999 (1979) (advocating strict liability),
20. with M. Lanier Woodrum, The Courts Take Flight: Scienter and the Migratory Bird Treaty Act, 36 WASH. & LEE L. REV. 241, 243-48 (1979) (opposing a strict liability interpretation). Woodrum's premise, that Congress did not intend the MBTA to be a strict liability crime, has since been disproved by Congress in its statements in connection with amendments to the felony and the baiting provisions of the MBTA. See S. REP. No. 99-445, at 16 (1986), reprinted in 1986 U.S.C.C.A.N. 6113, 6128 ("Nothing in this amendment [to the felony provision] is intended to alter the 'strict liability' standard for misdemeanor prosecutions under 16 U.S.C. §707(a), a standard which has been upheld in many Federal court decisions."); S. REP. No. 105-366, at 1-2 (1998) ("General Statement and Background") (when Congress added the scienter requirement for MBTA felony offenses it "expressly reinforced the strict liability standard for misdemeanors...."); S. REP. No. 105-366, at 2-3 (1998) ("Summary and Objectives of the Legislation") ("The elimination of strict liability, however, applies only to hunting with bait or over baited areas, and is not intended in any way to reflect upon the general application of strict liability under the MBTA."). Nevertheless, the force of the policy arguments against imposing strict liability remain.
21. 27 F. Supp. 833 (W.D. Tenn. 1939).
22. Reese. 27 F. Supp. at 835.
23. See, e.g.. United States v. Corrow, 119 F.3d 796, 805 (10th Cir. 1997); United States v. Engler, 806 F.2d 425,431 (3d Cir. 1986) ("Scienter is not an element of criminal liability under the Act's misdemeanor provisions."); United States v. Manning, 787 F.2d 431, 435 n.4 (8Cir. 1986) ("[I]t is not necessary to prove that a defendant violated the Migratory Bird Treaty Act with specific intent or guilty knowledge."); United States v. Chandler, 753 F.2d 360, 363 (4th Cir. 1985) ("[A] hunter is strictly liable for shooting on or over a baited area."); United States v. Catlett, 747 F.2d 1102, 1104-05 (6th Cir. 1984) (holding that scienter is not a required element for a conviction under the MBTA). Limited exceptions to the uniform affirmation of strict criminal liability under the MBTA were the Sixth Circuit's rejection of the original MBTA strict liability felony provision and the Fifth Circuit's rejection of strict liability for hunting over or with the aid of bait. See United States v. Wulff, 758 F.2d 1121, 1125 (6th Cir. 1985); United States v. Delahoussaye, 573 F.2d 910, 912-13 (5th Cir. 1978). Although no other Circuit joined the Sixth or Fifth Circuits, in each instance Congress amended the MBTA to require scienter. See 16 U.S.C.A. §704(b) (2000) (baiting provisions); 16 U.S.C.A. §707(b) (felony provision) (2000).
24. Laune L. Levenson, Good Faith Defenses: Reshaping Strict Liability Crimes, 78 CORNELL L. REV. 401, 402 (1993)
25. (citing Gerhard O.W. Mueller, On Common Law Mens Rea, 42 MINN. L. REV. 1043, 1052 (1958)).
26. See also Morissette v. United States, 342 U.S. 246, 251-52 (1952) ("Crime, as a compound concept, generally constituted only from concurrence of an evilmeaning mind with an evil-doing hand, was congenial to an intense individualism and took deep and early root in American soil."). But see Bryan v. United States, 524 U.S. 184, 193 (1998) ("[T]he background presumption that every citizen knows the law makes it unnecessary to adduce specific evidence to prove that 'an evil-meaning mind' directed the 'evil-doing hand.'"). "Primitive English law 'started from a basis bordering on absolute liability.'"
27. Dennis Jenkins, Criminal Prosecution and the Migratory Bird Treaty Act: An Analysis of the Constitution and Criminal Intent in an Environmental Context, 24 B.C. ENVTL. AFF. L. REV. 595, 596 n.5 (1997)
28. (quoting Francis B. Sayre, Mens Rea, 45 HARV. L. REV. 974, 977 (1932)). The need for an actus reas has a Constitutional foundation in the Cruel and Unusual Punishment Clause.
29. See Powell v. Texas, 392 U.S. 514,533 (1968) ("[C]riminal penalties may be inflicted only if the accused has committed some act,... has committed some actus reas") (interpreting Robinson v. California, 370 U.S. 660 (1962)).
30. Staples v. United States, 511 U.S. 600,605 (1994) (quoting United States v. United States Gypsum Co., 438 U.S. 422, 436 (1978) (quoting Dennis v. United States, 341 U.S. 494, 500 (1951))).
31. The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil. Morissette 342 U.S. at 250. See also Liparota v. United States, 471 U.S. 419, 426 (1985) ("[CJriminal offenses requiring no mens rea have a 'generally disfavored status.'") (quoting United States Gypsum, 438 U.S. at 438).
32. See Levenson, supra note 18, at 406, n.29. Much of Levenson's footnote is derived from a 1933 list of strict liability public welfare offenses by Francis B. Sayre. See id. supra note 18, at 406, n.29
33. (citing Francis B. Sayre, Public Welfare Offenses, 33 COLUM. L. REV. 55,73 (1933)).
34. See also Robert J. Jossen, Strict Liability in Criminal Cases-The Present Day Implications of Dotteni-eich and Park, in CRIMINAL LAW AND URBAN PROBLEMS 1985, at 33, 39-40 (PLI Litig. & Admin. Practice Course Handbook Series No. C4-4174, Dec. 16, 1985) (citing other examples of strict liability crimes including transportation of dangerous products, dumping of hazardous wastes, fishing in international waters, Occupational Health and Safety Act violations).
35. See Levenson, supra note 18, at 413 n.76 (citing the Tobacco Adjustment Act of 1984, 7 U.S.C. §509 (Supp. II 1990) (imposing imprisonment up to five years for failure to comply with tobacco manufacturer's reporting requirements)). It has been said that felony murder is a form of strict criminal liability in that criminal liability is imposed regardless of whether or not deaths were a foreseeable consequence of the illegal crimes being committed. Levenson, supra note 18, at 423 n.H3;W. at425n.!25.
36. See also Zipperman, supra note 5, at 127 (strict criminal liability can hold one "liable, although he is not only not charged with moral wrongdoing, but has not even departed in any way from a reasonable standard of intent or care.") (quoting W. PAGE KEETON, PROSSER AND KEETON ON THE LAW OF TORTS §75, at 536 (5th ed. 1984)). See, e.g.,United States v. Balint, 258 U.S. 250, 252-53 (1922); Jossen, supra note 20, at 35.
37. See, e.g.. United States v. Freed, 401 U.S. 601, 610 (1971) (quoting Balint, 342 U.S. at 254) (explaining that strict liability may expose those who are "innocent" actors to a criminal penalty).
38. See United States v. Ayo-Gonzalez, 536 F.2d 652, 660 (5th Cir. 1976); Levenson, supra note 18, at 417. "Absolute liability" means criminal liability without regard to the defendant's knowledge or intentions and may be a technically accurate description of a strict liability crime, but it probably is generally not an accurate description of what a prosecutor is willing to prosecute. See id. at 417 n.86 (suggesting "absolute liability" more precisely describes situations in commonwealth countries in which Parliament expressly states that no mens rea is required and that no defense based on mens rea will be permitted)
39. (citing C.B. Cato, Strict Liability and the Half-Way House, 1981 N.Z. L.J. 294, 294 n.6 (1981)).
40. But see Levenson, supra note 18, at 415 ("The prosecution proposed to hold Keating 'responsible for an offense which, no matter how careful, no matter how honest, no matter how decent and law abiding he may be, he could not by the most diligent effort know about.'") (quoting prosecution argument in Respondent's Brief at 18-20, People v. Keating, No. BA 025236 (Cal. Super. Ct. 1991)). Strict liability in tort is rarely absolute. See KEETON, supra note 22, § 79, at 559-60.
41. See Levenson, supra note 18, at 413 (listing convictions of persons without knowledge of their own wrongdoing, including a widow convicted of adultery after being erroneously informed that her husband was dead, Regina v. Toison, 23 Q.B.D. 168 (1889), and also a farmer convicted of trespass after relying on faulty government survey report, State v. Gould, 40 Iowa 372 (1875)). See generally KEETON, supra note 22, §75, at 535 (distinguishing the criminal law "fault" connotation of moral blame from tort law "fault" which means only a departure from a required standard of conduct even if innocent or beyond defendant's control).
42. Stanford H. Kadish, Excusing Crime, 75 CAL. L. REV. 257, 267 (1987).
43. See also Mark Kelman, Strict Liability: An Unorthodox View, in 4 ENCYCLOPEDIA OF CRIME & JUST. 1512, 1515 (Standford H. Kadish ed., 1983) ("[Tjhere is no reason to believe that he is anything worse than unlucky, and no reason to single him out for disapproval.").
44. See Levenson, supra note 18, at 418 n.90 (citing MODEL PENAL CODE §§2.02(4), 2.05 (1962)). In the course of rejecting a strict criminal liability interpretation of the National Firearms Act 26 U.S.C. §§5801-5872 (1994), the Supreme Court stated that "the term 'strict liability' is really a misnomer," and that, in interpreting public welfare offenses, it has generally "avoided construing criminal statutes to impose a rigorous form of strict liability." Staples v. United States, 511 U.S. 600, 607 n.3 (1994). In Staples, the Court stated expressly that "different elements of the same offense can require different mental states." Id. at 609. Courts have also interpreted a strict criminal liability provision of the Resource Conservation and Recovery Act, 42 U.S.C. §6928(d)(2) (1994), to include a knowledge component. See Zipperman, supra note 5, at 159 n.257. Strict liability in tort also requires some amount of knowledge. Prosser and Keeton observe that, absent a contrary statutory provision:
45. [SJtrict liability will never be found unless the defendant is aware of the abnormally dangerous condition or activity, and has voluntarily engaged in or permitted it. Mere negligent failure to discover or prevent it is not enough, although it may, of course, be an independent basis of liability .... What is meant is that he is liable although (1) he did not intend an invasion on the basis of which liability could be imposed and (2) he was not negligent in proximately causing the harm.
46. KEETON, supra note 22, §79, at 559 (footnote omitted).
47. See KEETON, supra note 22, §81, at 582 (stating that "[vicarious liability is now quite generally recognized as a form of strict liability" in torts.) (footnote omitted); Levenson, supra note 18, at 417 n.86 ("Vicarious liability refers to a respondeat superior notion that a supervising individual or corporation may be criminally liable for another's act without knowledge of the wrongful conduct of the responsible party.") (citations omitted).
48. See Ayo-Gonzalez, 536 F.2d at 661-62 (relying on responsible corporate officer analysis in United States v. Park, 421 U.S. 658,676 (1975)).
49. See infra notes 53-57 and 66-67, and accompanying text (discussing Unites States v. Park, 421 U.S. 658 (1975), and United States v. Dotterweich, 320 U.S. 277 (1943)).
50. See Levenson, supra note 18, at 420 n.98. The negligent defendant may be totally unaware of risks created by his or her activities, but the law holds him or her responsible for his or her disregard of the rights of and risks to others. See Levenson, supra note 18, at 420 n.97.
51. Again where one deals with others and his mere negligence may be dangerous to them, as in selling diseased food or poison, the policy of the law may, in order to stimulate proper care, require the punishment of the negligent person though he be ignorant of the noxious character of what he sells.
52. United States v. Balint, 258 U.S. 250, 252-53 (1922) (emphasis added) (citation omitted) (affirming strict criminal liability for narcotics sale). In terms of the defendant's lack of knowledge, the negligence described by the Balint court is indistinguishable from a strict liability crime, but the burden of proof and the defenses available differ for strict criminal liability and for negligent crimes. "Park established that the failure of a manager to act, when he or she had the authority and responsibility to act, will result in a violation. This description of duty and breach invites a standard negligence analysis." Zipperman, supra note 5, at 132 (citing Park, 421 U.S. at 671). Still, "[t]he Park doctrine contains an inherent ambiguity as to whether a corporate officer is strictly liable merely because he or she possesses the power to correct a violation, or whether the prosecution must show the violation of a negligence standard." Zipperman, supra note 5, at 133.
53. "Thus, any differences between the theories of negligence and strict liability are insignificant in practice." Id. at 134. "In practice, negligence statutes frequently become the functional equivalent of strict liability statutes. When the public welfare is at stake, courts often apply strict liability, but call it negligence." Zipperman, supra note 5, at 148.
54. One authority has stated that the difference between strict criminal liability and negligent crimes "is that, as long as the crime is a non-strict liability crime [i.e., negligence], the issue is decided by a tribunal which both hears the evidence and sets the standard [of conduct] in the defendant's case." Levenson, supra note 18, at 420 n.102
55. (quoting Alan Saltzman, Strict Criminal Liability and the United States Constitution: Substantive Criminal Law Due Process, 24 WAYNE L. REV. 1571, 1584 (1978)). Apparently, the Supreme Court agrees. See United States v. Morissette, 342 U.S. 246, 263 (1952) ("The purpose and obvious effect of doing away with the requirement of a guilty intent is to ease the prosecution's path to conviction . . . and to circumscribe the freedom heretofore allowed juries.").
56. See United States v. Engler, 806 F.2d 425, 432 n.2 (3d Cir. 1986) (describing a "continuum of strict liability crimes"). The United States Sentencing Guidelines describe a portion of the continuum in the policy statement on regulatory offenses which describes four categories of technical recordkeeping offenses: failure to fill out a form intentionally but without knowledge or intent that substantive harm result; the same failure may carry a substantial likelihood of harm or make the harm more likely; the failure may have actually led to substantive harm; and the failure may have been intended to conceal harm that had occurred. See U.S. SENTENCING GUIDELINES MANUAL§ lA4(f)(l999).
57. See generally United States v. Moskowitz, 883 F.2d 1142, 1149-50 (2d Cir. 1989) (finding that a willful violation of the Hazardous Materials Transportation Act, 49 U.S.C. §1472(h)(2), required both knowing acts (voluntary and intentional and not accidental), and knowledge that the regulations prohibited the acts).
58. "Much confusion exists over the precise meaning of mens rea today because 'not all lawyers and judges assign the term ... a normative meaning."Jenkins, supra note 18, at 596 n.8
59. (citing Susan F. Mandiberg, The Dilemma of Mental State in Federal Regulatory Crimes: The Environmental Example, 25 ENVTL. L. 1165, 1167 n.10 (1995))
60. . 36. STH CIR. CRIM. JURY INSTR. 7.02 cmt. (1996); 9ni CIR. CRIM. JURY INSTR. 5.5 cmt. (1997) ("willfulness" as a description of an "intentional mental state" connotes an act "done on purpose; it does not suggest the act was committed for a particular purpose, evil in nature") (quoting S. REP. No. 95-605, at 58-59 (1977)). See also 9TH ClR. CRIM. JURY INSTR. 5.5 cmt. (1997) ("In many cases,... the concept of willfulness will be adequately explained in other instructions defining 'knowingly,' 'intentionally,' or 'deliberately.'"). "The word 'willful,' even in criminal statutes, means no more than that the person charged with the duty knows what he is doing. It does not mean that, in addition, he must suppose that he is breaking the law." 9TH ClR. CRIM. JURY INSTR. 5.5 cmt. (1997) (quoting Judge Learned Hand in American Surety Co. v. Sullivan, 7 F.2d 605, 606 (2nd Cir. 1925)).
61. See, e.g., Bryan v. United States, 524 U.S. 184, 192-93 (1998) (proof of knowledge of the law is not required because of the "background presumption that every citizen knows the law").
62. See 8TH ClR. CRIM. JURY INSTR. 7.02 cmt. (1996); 9th Cir. Crim. Jury Instr. 5.5 cmt. (1997).
63. See 9TH CIR. CRIM. JURY INSTR. 5.5 cmt. (1997) (in context of 31 U.S.C. §5324 (1994)).
64. See 8TH ClR. CRIM. JURY INSTR. 7.03 cmt. (1996); 9th Cir. Crim. Jury Instr. 5.6 cmt. (1997).
65. See STH CIR. CRIM. JURY INSTR. 7.03 cmt. (1996) (citing United States v. X-Citement Video, Inc., 513 U.S. 64 (1994)).
66. See 8TH ClR. CRIM. JURY INSTR. 7.03 cmt. (1996) (citing Liparota v. United States, 471 U.S. 419,434 (1985)).
67. See 9m ClR. CRIM. JURY INSTR. 5.5 cmt. (1997) (quoting United States v. Sirhan, 504 F.2d 818,820 n.3 (9th Cir. 1974)).
68. See, e.g., United States v. Balint, 258 U.S. 250,252 (1922).
69. Courts uncomfortable with strict liability often adopt defenses and burdens of presenting evidence normally applicable to negligent crimes. See infra Part VI (Defenses, Limitations, and Ameliorations to Strict Liability).
70. 9TH ClR. CRIM. JURY INSTR. 5.4 cmt. (1997) ("recommends avoiding instructions that distinguish between 'specific intent' and 'general intent'"); id. at 5.5 (recommends no instruction defining willfully); id. at 5.6 (instruction may be appropriate but it is reversible error to give knowingly instruction in money laundering cases); 8TH ClR. CRIM. JURY INSTR. 7.01 cmt. (1996) (no specific intent instruction recommended), id. at 7.02 (no willfully instruction recommended except in tax cases and odometer fraud cases), id. at 7.03 (no knowingly instruction recommended).
71. See, e.g., 9TH ClR. CRIM. JURY INSTR. 5.4 cmt. (1997) ("Accordingly, the judge should determine the requisite mental state as to each element of the charged offense and instruct thereon."); Staples v. United States, 511 U.S. 600, 607 n.3 (1994) (public welfare offenses eliminate the requirement of mens rea with respect to an element of a crime).
72. See, e.g., United States v. Ayo-Gonzalez, 536 F.2d 652, 657-58 (5th Cir. 1976); United States v. Engler, 806 F.2d 425,435-36 (3d. Cir. 1986). See also supra Part II (MBTA Misdemeanors Held To Be Strict Liability Crimes).
73. United States v. United States Gypsum Co., 438 U.S. 422,437-38 (1978).
74. United States Gypsum Co., 438 U.S. at 437.
75. See, e.g., United States v. Balint, 258 U.S. 250, 252 (1922).
76. Except as otherwise noted, the maximum penalties described for the listed Supreme Court cases are taken from Engler, 806 F.2d at 435.
77. 421 U.S. 658 (1975). One commentator has argued that reliance on Park or Dottenveich, in the context of strict liability, as opposed to vicarious liability crimes, is misplaced since the question involved in those cases was extension of existing strict liability under the FDCA rather than the initial imposition of strict liability. See Woodrum, supra note 14, at 249 n.81 (describing Park and Doltenviech as cases of vicarious liability in which the liability happened to be strict liability). However, one can also argue that, instead of being held vicariously liable for the violations of their subordinates, the corporate officers were being held strictly liable for failing to perform a statutory duty of their own, such as to prevent the violations. See Zipperman, supra note 6, at 129.
78. The maximum possible imprisonment for a federal misdemeanor conviction is one year, and it may be less. See 18 U.S.C. §3559(a)(6)-(8) (1994) (classification of misdemeanor offenses); id. §3581(b)(6)-(8) (maximum terms of imprisonment for misdemeanors).
79. United States v. Park, 421 U.S. 658, 672-73 (1975) (citing United States v. Dottenveich, 320 U.S. 277 (1943)).
80. See, e.g.. Park, 421 U.S. at 673-74. Park specified two requirements for criminal responsibility of persons not directly responsible for the criminal act: (1) the superior must occupy a position of "responsibility and authority" with regard to the act, and (2) must have had the power to prevent it through the exercise of the "highest standard of foresight and vigilance." Developments in the Law-Corporate Crime: Regulating Corporate Behavior Tlirough Criminal Sanction, 92 HARV. L. REV. 1243,1262-63 (1979) (quoting Park, 421 U.S. at 672-674).
81. Pant, 421 U.S. at 672.
82. 402 U.S. 558 (1971).
83. International Minerals, 402 U.S. at 559.
84. Id. at 565. The Supreme Court also recited the maxim that "ignorance of the law is no excuse." Id. at 562. The Supreme Court does not explain why, if ignorance of the law is truly no excuse, there is any need for a presumption of knowledge of regulations based on the knowing possession of "dangerous or deleterious devices or products . . . ." Id. at 565. Cf. Lambert v. California, 355 U.S. 225, 228 (1957) (finding a due process notice requirement is a precondition "where a person, wholly passive and unaware of any wrongdoing, is brought to the bar of justice for condemnation in a criminal case."). International Minerals illustrates the converse of the paradox described by Jenkins: "Although the criminal law generally sought to punish only the morally blameworthy, the law, in a confusing and ill-defined paradox, also generally held that ignorance of the law was no excuse from criminal liability." Jenkins, supra note 18, at 597.
85. International Minerals, 402 U.S. at 563-64. Although the Court expressly distinguished International Minerals and Freed from strict liability offenses, both the International Minerals and Freed decisions presumed knowledge of regulations, based upon the defendant's knowledge of the nature of the items possessed, and dispensed with any requirement to prove the defendant acted with a bad or guilty intent.
86. 401 U.S. 601 (1971).
87. Only the manufacturer or importer could register. Freed, 401 U.S. at 603-604.
88. 376 U.S. 86, 91 (1964). The issue in Wiesenfeld Warehouse was whether the statute was vague and whether the District Court had correctly interpreted the statute. See id at 89-91. Consequently, the Supreme Court's discussion of the requisite intent was dicta.
89. 325 U.S. 226 (1945).
90. 320 U.S. 277 (1943); see also supra note 53 (discussing whether Park and Dotteni-eich are appropriate precedents for interpreting strict criminal liability).
91. United States v. Dotterweich, 320 U.S. 277,281 (1943).
92. 258 U.S. 250 (1922). See also United States v. Behrman, 258 U.S. 280, 288 (1922) (reinstating indictment for unlawful selling of narcotics by a physician writing prescriptions; "If the offense be a statutory one, and intent or knowledge is not made an element of it, the indictment need not charge such knowledge or intent.").
93. 220 U.S. 559 (1911).
94. See id. at 569.
95. 'The power of the legislature to declare an offense, and to exclude the elements of knowledge and due diligence from any inquiry as to its commission, cannot, we think, be questioned." Chicago, Burlington & Quincy Ry., 220 U.S. at 578 (citations omitted). See also id. at 579.
96. 218 U.S. 57 (1910).
97. Slielvin-Carpenter,2l8 U.S. at 64 (quoting State v. Shevlin-Carpenter Co., 102 Minn. 470, 479, 113 N.W. 634, 638 (1907)). In Shevlin-Carpenter, the Supreme Court articulated a conclusive argument that "innocence cannot be asserted of an action which violates existing law, and ignorance of the law will not excuse." Id. at 68. The problem in the Shevlin-Carpenter reasoning is that the defendant was reasonably mistaken as to the factual status of his permit, not the legal consequences of those facts. The Court did not rely on the reasoning of Shevlin-Carpenter in its Balint decision, in which it described potential "innocent" sellers of drugs, something impossible under the ShevlinCarpenter reasoning that there can be no "innocent" law-breakers. See Balint, 258 U.S. at 254 (describing potential "innocent" sellers of drugs).
98. Note however that, today, environmental and wildlife permits are treated as an extension of regulatory law and, as such, their interpretation are matters of law and not of fact. See, e.g., - United States v. Weitzenhoff, 35 F.3d 1275, 1287 (9th Cir. 1993).
99. Shelvin-Carpenter, 218 U.S. at 64.
100. See id. at62n.l.
101. See, e.g., United States v. Freed, 401 U.S. 601, 609 (1971) (public safety); Williams v. North Carolina, 325 U.S. 226, 238 (1945) ("public policy .. . bearing upon the integrity of family life ...."); United States v. Dotterweich, 320 U.S. 277, 280 (1943) ("phases of the lives and health of people which ... are largely beyond self-protection"); Balint, 258 U.S. at 252-53 ("maintenance of a public policy" by police power to control a "noxious" substance); Shevlin-Carpenter, 218 U.S. at 68 ("the public welfare has made it necessary to declare a crime"). See also Staples v. United States, 511 U.S. 600, 607 (1994) (describing "public welfare offenses"); United States v. AyoGonzalez, 536 F.2d 652,660 (5th Cir. 1976) ("the Act is based on strong policy considerations").
102. See, e.g., United States v. International Minerals & Chem. Corp., 402 U.S. 558, 565 (1971) ("[AJnyone who is aware that he is in possession of [dangerous materials] . . . must be presumed to be aware of the regulation."); Freed, 401 U.S. at 609 ("[O]ne would hardly be surprised to learn that possession of hand grenades is not an innocent act."). See also Balint, 258 U.S. at 254 ("Doubtless considerations as to the opportunity of the seller to find out the fact" were included by Congress in its calculus in electing strict criminal liability); United States v. Engler, 806 F.2d 425, 435-36 (3d Cir. 1986) ("The capture and sale of species protected by the MBTA is not 'conduct that is wholly passive," but more closely resembles conduct 'that one would hardly be surprised to leam . . . is not innocent.'") (quoting Missouri v. Holland, 252 U.S. 416, 435 (1920)); Ayo-Gonzatez, 536 F.2d at 660 ("[LJawmakers clearly thought it highly unlikely that purely innocent violations would occur."). See also Staples, 511 U.S. at 611 (possession of guns, even though arguably "dangerous," would not alert owners to likelihood of strict regulation). The Supreme Court has had a similar focus - on the likelihood that a defendant might know regulations exist - in its decisions that decline to interpret criminal statutes as imposing strict liability. See, e.g., Liparota v. United States, 471 U.S. 419,432-33 (1985) (distinguishing a strict liability public welfare offense as one in which "Congress has rendered criminal a type of conduct that a reasonable person should know is subject to stringent public regulation and may seriously threaten the community's health and safety"); Lambert v. California, 355 U.S. 225,227 (1957) (finding strict criminal liability violated due process "where no showing is made of the probability of such knowledge" that a felon must register if remaining in Los Angeles more than five days).
103. Recently, two Supreme Court justices have expressed a desire to limit the application of the public welfare doctrine to individual factual situations arising under the criminal statutes instead of to the statutes as a whole. See Hanousek v. United States, 528 U.S. 1102 (2000) (Justices Thomas and O'Connor dissenting from denial of certiorari). Justice Thomas authored the Staples opinion that declined to apply the public welfare doctrine to regulation of admittedly dangerous implements, such as guns, if the implements were in common use. See Staples, 511 U.S. at 611. Justice O'Connor authored a concurring opinion in Sweet Home that elaborated the use of proximate causation to limit strict criminal liability. See Babbit v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687,708-714 (1995) (Justice O'Connor, concurring).
104. "The requirements of foresight and vigilance imposed on responsible corporate agents are beyond question demanding, and perhaps onerous, but they are no more stringent than the public has a right to expect of those who voluntarily assume positions of authority in business enterprises whose services and products affect the health and well-being of the public that supports them." United States v. Park, 421 U.S. 658, 672 (1975); Balint, 258 U.S. at 252-54 (defendant to act (selling) and to ascertain facts "at his peril"); Shevlin-Carpenter Co., 218 U.S. at 69 ("When the permit was issued, plaintiffs in error knew the limitations of it, and they took it at the risk and consequences of transgression"). The requirement that the defendant subject to strict liability voluntarily assume a position of responsibility for a foreseeable risk is also a foundation for strict liability in tort. See KEETON, supra note 22, §79, at 559.
105. ("It is quite conceivable that Congress, contemplating the inevitable hardship of such injuries [caused by the prohibited conduct], and hoping to diminish the economic loss to the community resulting from them, should deem it wise to impose their burdens upon those who could measurably control their causes, instead of upon those who are in the main helpless in that regard.").
106. See Morissette v. United States, 342 U.S. 246, 256 (1952) ("The accused, if he does not will the violation, usually is in a position to prevent it with no more care than society might reasonably expect. .. from one who assumed his responsibilities."). But see Liparota, 471 U.S. at 432-33 (describes most "public welfare offenses" as having "rendered criminal a type of conduct that a reasonable person should know is subject to stringent public regulation and may seriously threaten the community's health or safety"). The Liparota characterization may be difficult to square with Williams, 325 U.S. at 227, 239, which upheld a felony conviction for bigamous cohabitation in North Carolina following valid Nevada divorces.
107. United States v. Wiesenfeld Warehouse Co., 376 U.S. 86, 91 (1964) (quoting Dottenveich, 320 U.S. at 281). See, e.g., Dottem-eich, 320 U.S. at 285 ("Balancing relative hardships, Congress has preferred to place it upon those who have at least the opportunity of informing themselves of the existence of conditions imposed for the protection of consumers before sharing in illicit commerce, rather than to throw the hazard on the innocent public who are wholly helpless.").
108. Balint, 258 U.S. at 254 ("Congress weighed the possible injustice of subjecting an innocent seller to a penalty against the evil of exposing innocent purchasers to danger from the drug, and concluded that the latter was the result preferably to be avoided. Doubtless considerations as to the opportunity of the seller to find out the fact and the difficulty of proof of knowledge contributed to this conclusion."). See also Chicago, Burlington, & Quincy Ry., 220 U.S. at 575 ("its harshness is no concern to the courts").
109. Perhaps the reader's most intimate experience with strict criminal liability is with driving faster than the speed limit, inadvertently of course, for which it is particularly apt to say that the risks of the illegal conduct "include the possibility of physical or moral harm, and the possibility that a culpable defendant would escape punishment by feigning ignorance or mistake." Levenson, supra note 18, at 424.
110. See Dottenveich, 320 U.S. at 282-83 & n.2 (in the context of drug regulation, Congress has observed that, for regulations enforced only by fines, "[c]orporations_carrying on an illicit trade would be subject only to ... a 'license fee' for the conduct of an illegitimate business.") (citing H.Rep. No. 2139,75th Cong., 3d Sess., p.4).
111. See, e.g., Balint, 258 U.S. at 254 ("Doubtless considerations as to the opportunity of the seller to find out the fact..." were weighed by Congress); Shevlin-Carpenter Co., 218 U.S. at 69 ("[WJhether wilful, accidental, or involuntary [is] equally difficult to establish ...."). See also AyoGonzalez, 536 F.2d at 660 ("Moreover, it is appropriate to note that prosecutions under section 1081 would be extremely difficult if the government had to prove willfulness or even negligence.").
112. But see infra Part VI. (Defenses, Limitations and Ameliorations to Strict Liability).
113. See, e.g., Balint, 258 U.S. at 252-53 (whether scienter is an element of a statutory criminal offense "is a question of legislative intent to be construed by the court"). See also Liparota, All U.S. at 424 ("The definition of the elements of a criminal offense is entrusted to the legislature, particularly in the case of federal crimes, which are solely creatures of statute.") (citing to United States v. Hudson, 11 U.S. 32 (1812)); United States v. Engler, 806 F.2d 425, 431 (3d Cir. 1986) ("We agree with the district court that to supply an element of specific intent here would be impermissible 'judicial legislation.'"); Stepniewski v. Gagnon, 732 F.2d 567, 571 (7th Cir. 1984) ("A state's decisions regarding which actions or activities will give rise to strict criminal liability rest within that state's sound legislative discretion."); Ayo-Gonzftlez, 536 F.2d at 658 ("The question, then, is primarily one of legislative intent, but the result must comport with fundamental constitutional standards.").
114. 342 U.S. 246 (1952).
115. See Morissette, 342 U.S. at 247,276.
116. See id. at 248-49.
117. See id. at 276.
118. Id. at 256.
119. The industrial revolution multiplied the number of workmen exposed to injury from increasingly powerful and complex mechanisms .... Traffic of velocities, volumes and variety unheard of came to subject the wayfarer to intolerable casualty risks .... Congestion of cities and crowding of quarters called for health and welfare regulations .... [WJide distribution of goods became an instrument of wide distribution of harm .... Such dangers have engendered increasingly numerous and detailed regulations which heighten the duties of those in control of particular industries, trades, properties or activities that affect public health, safety or welfare.
120. Id. at 253-254.
121. [Lawmakers, whether wisely or not, have sought to make such regulations more effective by invoking criminal sanctions . . . aptly called 'public welfare offenses' . . . Many of these offenses are not in the nature of positive aggressions or invasions, with which the common law so often dealt, but are in the nature of neglect where the law requires care, or inaction where it imposes a duty. Many violations of such regulations result in no direct or immediate injury to person or property but merely create the danger or probability of it which the law seeks to minimize .... In this respect, whatever the intent of the violator, the injury is the same, and the consequences are injurious or not according to fortuity. Hence, legislation applicable to such offenses, as a matter of policy, does not specify intent as a necessary element. The accused, if he does not will the violation, usually is in a position to prevent it with no more care than society might reasonably expect and no more exertion than it might reasonably exact from one who assumed his responsibilities. Also, penalties commonly are relatively small, and conviction does no grave damage to an offender's reputation.
122. Id. at 254-56. For examples of cases and authorities citing or quoting Morissette, see Levenson, supra note 18, at 419 n.93; United States v. Wulff, 758 F.2d 1121, 1123 (6th Cir. 1985); Ayo-
123. Gonzalez, 536 F.2d at 657-58.
124. Sometimes, the reliance on Morissette appears to be deliberately selective. For example, the Supreme Court in Staples cited and relied upon the Morisselte description of commonly small penalities, and with citations to numerous state court cases, but ignored the many Supreme Court affirmations of strict criminal liability, with the exception of a single "but see" citation to Balint. See Staples v. United States, 511 U.S. 600,616-619 (1994).
125. See supra Part IV (Judicial Acceptance of Strict Criminal Liability). See also Levenson, supra note 18, at 404 n.16 ("Furthermore, the Supreme Court has fostered a misperception that culpability is irrelevant because of the absence of severe penalties."); id. at n.17 (listing federal and state strict criminal liability felony cases in which maximum sentences could have been as much as five or ten years in prison for narcotics, pornography, securities fraud, bribery, bank loan, and criminal syndicalism offenses). Furthermore, as many have observed, even a misdemeanor conviction can have a significant effect upon one's reputation. See United States v. Engler, 806 F.2d 425, 434 (3rdCir. 1986) ("The differences between the objective penalties of the misdemeanor and felony provisions of the Act is, for due process purposes, de minimus.").
126. See Morisselte, 342 U.S. at 248. Morissette was sentenced to two months imprisonment or a fine of $200. Id. The maximum penalty provided by the statute was one year imprisonment or a fine of up to $1000. See id. n.2.
127. See id. at 263-73. See also, Jenkins, supra note 18, at 620 (stating that Morissette stands for the proposition that Congressional intent must be determined when criminal intent is omitted); Stepniewski v. Gagnon, 732 F.2d 567, 570 (7th Cir. 1984) (stating that the Morissette Court enunciated factors as general policy concerns which explain the historical development of strict liability crimes). Morisselte established an interpretative presumption that crimes having their origin in the common law will not be construed as eliminating the element of a mens rea absent a clear intent by Congress to eliminate the element. See United States v. United States Gypsum Co., 438 U.S. 422, 437 (1978). See also Morissetle, 342 U.S. at 265 ("[I]t is significant that we have not found, nor has our attention been directed to, any instance in which Congress has expressly eliminated the mental element from a crime taken over from the common law.").
128. See Morissette, 342 U.S. at 252-53 ("However, the Balint and Behrman offenses belong to a category of another character, with very different antecedents and origins. The crimes there involved depend on no mental element but consist only of forbidden acts or omissions.").
129. This rationale for strict criminal liability parallels the rational for strict tort liability. The foundation for strict liability in tort is that the defendant has possession and power to control. See KEETON, supra note 22, at 541 (discussing strict liability for damages caused by trespassing livestock). In the case of strict liability in tort, the public policy at play is that the person who brought into the community an unusual, abnormal, or unnatural activity should bear the costs of misadventure regardless of fault. See id. §75, at 536-537.
130. Strict liability in tort is essentially a cost-shifting provision that does not depend upon the degree of care but simply on the defendant's choice to undertake the activity. See id. §78, at 556 ('The point is that certain conditions and activities may be so hazardous to another or to the public generally and of such relative infrequent occurrence to justify allocating the risk of loss to the enterpriser engaging in such conduct as a cost of doing business.")- Thus, even in the absence of culpability on the part of the defendant, a rational societal purpose is served. In contrast, strict criminal liability does not shift the burden of misadventure from the victim to the initiator of the activity. If there is also no means by which even the most careful defendant could have avoided misadventure, then strict criminal liability serves no purpose other than to frighten citizens into avoiding activities that are useful or even necessary to a modem society.
131. Levenson, supra note 18, at 419 n.95 (quoting ROSCOE POUND, THE SPIRIT OF THE COMMON LAW 52 (1921)).
132. United States v. Park, 421 U.S. 658,671 (1975) (quoting Morissette, 342 U.S. at 256).
133. For examples of "innocent" defendants in strict criminal liability cases, see Levenson, supra note 18, at 403 n.6 (citing cases concerning reliance on state licensed personnel, and longstanding practices and directions by a supervisor in the defendant's government office). Although beyond the scope of this article, corporate officers and supervisors without knowledge of their subordinates' wrongdoing are not "innocent." One of the most succinct explanations for why they are not innocent was given in an early English criminal case against corporate directors who were ignorant of illegal disposal of waste. '"[I]f persons for their own advantage employ servants to conduct works, they must be answerable for what is done by those servants.'" Zipperman, supra note 6, at 125 (quoting Rex v. Medley, 172 Eng. Rep. 1246, 1250 (K.B. 1834)). See also United States v. Parfait Powder Puff Co., 163 F.2d 1008, 1010 (7th Cir. 1947) (a responsible party may not avoid criminal liability by delegating responsibility to a subordinate).
134. See Levenson, supra note 18, at 425 ("Opponents of the strict liability doctrine argue that its justifications are inconsistent with both utilitarian and retributivist theories of punishment."). The statement assumes that retribution remains an acceptable basis for punishment. In Morissette, discussing the historical requirement for scienter, the Supreme Court quoted its previous observation that: '"Retribution is no longer the dominate objective of the criminal law .... We also there referred to a prevalent modern philosophy of penology that the punishment should fit the offenders and not merely the crime." Morissette, 342 U.S. at 251 n.5 (quoting Williams v. New York, 337 U.S. 241,247(1949)).
135. Levenson observed: "If the defendant crosses those limits, intentionally or unintentionally, society will seek to punish the defendant's behavior. The strict liability doctrine thereby serves an important function of setting firm limits on conduct that society is loath to tolerate." Levenson, supra note 18, at 424. That may be true in the instance Levenson gives as an example, felony murder, but for felony murder, the defendant normally undertakes to commit some felony requiring a wrongful intent. In other cases, the quoted rationale misses the point that, in the course of seeking to brand conduct society is loath to tolerate, Congress may also punish activity that is useful and necessary to a modern society that may inevitably kill some birds regardless of the degree of care and attention exercised by those undertaking the activity.
136. Levenson, supra note 18, at 426,427 n.137 (quoting Herbert L. Packer, Mens Rea and the Supreme Court, 1962 SUP. Cr. REV. 107, 109). While it may be true that strict criminal liability may overdeter, the objection does not address the question of whether it is for Congress to make the policy judgment or for the courts.
137. Levenson, supra note 18, at 427 (quoting WILLIAM BLACKSTON, OXFORD DICTIONARY OF QUOTATIONS 73 (2d ed. 1972)); see Zipperman, supra note 6, at 140-41 (same).
138. See Morissette, 342 U.S. at 256 (Courts have construed public welfare statutes that are silent as to intent as dispensing with the intent requirement but "[t]his has not, however, been without expressions of misgiving.").
139. For example, the Seventh Circuit, in United States v. Van Fossan, affirmed a conviction for poisoning pigeons that the city authorities had ordered the defendant to remove. See United States v. Van Fossan, 899 F.2d 636 (7th Cir. 1990). The Court observed that:
140. People who assault federal officers commit a federal crime without knowing that the victim is a federal officer . . . perhaps those who assault birds need not know the victims are migratory. On the other hand, an attack on a person is presumptively criminal, and the offender has no compelling interest in which body of law supplies the penalty.
141. Van Fossan, 899 F.2d at 639 (citation omitted). The Sixth Circuit, in the course of affirming a conviction for hunting on a baited field, observed that strict liability is a harsh rule, which can ensnare the subjectively innocent, but that it is for Congress and the Secretary of the Interior to change it. See United States v. Catlett, 747 F.2d 1102, 1105 (6th Cir. 1984) ("We concede that [strict liability] is a harsh rule and trust that prosecution will take place in the exercise of sound discretion only."). See also United States v. Brandt, 717 F.2d 955,958 (6th Cir. 1983) ("The hunter is therefore placed in a precarious position. He must determine the intent of the individual who seeded the area before undertaking the hunt and, if he errs in that determination, he is criminally responsible. A subjectively 'innocent' person can unwittingly run afoul of the regulation.").
142. 572 F.2d 902 (2nd Cir. 1978). For discussions of United States v. FMC Corp., see George Cameron Coggins & Sebastian T. Patti, The Resurrection and Expansion of the Migratory Bird Treaty Act, 50 U. CoLO. L. REV. 165, 188-89, 191-92, 196 (1979),
143. Scott Finet, Habitat Protection and the Migratory Bird Treaty Act, 10 TUL. ENVTL. L. J. 1, 17 nn.72-73, 18 nn.75-76 (1996),
144. and Benjamin Means, Prohibiting Conduct, Not Consequences: Tlie Limited Reach of the Migratory Bird Treaty Act, 97 MICH. L. REV. 823, 825 nn.l 1-13 (1998).
145. See United States v. Rollins, 706 F. Supp. 742, 744 (D. Idaho 1989); United States v. Corbin Farm Serv., 444 F. Supp. 510, 536 (E.D. Cal.), ajfd, 578 F.2d 259 (9th Cir. 1978). For discussions of Corbin Farm, see Coggins & Patti, supra note 103, at 185-87, 191-92; Finet, supra note 103, at 16 n.69,18 n.75, and Means, supra note 103, at 825 nn.l 1-12.
146. See FMC Corp.. 572 F.2d at 905,908.
147. See id. at 905.
148. See id.
149. Id. at 906.
150. Id. at 907 (quoting United States v. Morissette, 342 U.S. 246,255 ( 1952)).
151. See FMC Corp., 572 F.2d at 907-08. The Supreme Court's opinion in Staples v. United States described '"deleterious devices or products or obnoxious waste materials' [as things that] put their owners on notice that they stand 'in responsible relation to a public danger.'" Staples v. United States, 511 U.S. 600, 610-11 (1994) (quoting United States v. International Minerals &
152. The real meaning of Staples is that guns will not be treated as drugs were treated in Balinl, no matter how destructive they may be. A defendant need not know the nature of drugs he or she possesses but he or she must know the nature of any firearm in order to be criminally liable for violating any regulations applicable to the type of firearm. Compare Staples, 511 U.S. at 611, with Balint, 258 U.S. at 254 ("[The Narcotic Act's] manifest purpose is to require every person dealing in drugs to ascertain at his peril whether that which he sells comes within the inhibition of the statute, and if he sells the inhibited drug in ignorance of its character, to penalize him."). The logic of the distinction may be lost on a generation that grew up with widespread use of both drugs and guns, and with frequent debates over whether to increase or loosen the regulation of each, as it would have been lost on those who grew up in an era (not long before the Court issued its decision in Balint) devoid of any regulation of drugs.
153. FMC Corp.. 572 F.2d at 908.
154. See id. at 905. Expressions of concern over the complexity of the law, prosecutorial discretion, and mens rea or scienter requirements are a frequent theme in environmental criminal law. The relationship of the myths to empirical reality has recently been examined by Kathleen F. Brickey, The Rhetoric of Environmental Crime: Culpability, Discretion, and Structural Reform, 84 IOWAL. REV. 115(1998).
155. FMC Corp., 572 F.2d at 905 (quoting United States v. Schultze, 28 F. Supp. 234, 236 (W. D. Ky. 1939)).
156. See, e.g., MICHAEL J. BEAN & MELANIE J. ROWLAND, THE EVOLUTION OF NATIONAL WILDLIFE LAW 76-78 (3d ed. 1997); Coggins & Patti, supra note 103, at 190-92; Margolin, supra note 14, at 992-6, 999-1001;
157. Betsy Vencil, The Migratory Bird Treaty Act-Protecting Wildlife on Our National Refuges-California 's Kesterson Reservoir, a Case in Point, 26 NAT. RESOURCES J. 609,616-25 (1986);
158. Woodrum, supra note 14, at 248-52.
159. Coggins & Patti, supra note 103, at 192. See also infra Part VII (Bird Deaths Caused By Instrumentalities of Modern Civilization Are Foreseeable and Avoidable). Lower courts are not alone in their solicitude to automobile drivers. In Staples, the Supreme Court suggested that it would not accept strict criminal liability for automobile emission control violations absent a clear expression of Congressional intent. See Staples, 511 U.S. at 614. The Court's suggestion in Staples is inconsistent with the prevalence of strict criminal liability for speeding violations and with the Court's decision in Chicago, B., & Q. Ry. v. United States, in which it held that the defendant's reasonable care and ignorance of deficiencies in train car repairs was no defense to an enforcement action. See Chicago, Burlington, & Quincy Ry. v. United States, 220 U.S. 559,568-70,579 (1911).
160. 706 F. Supp. 742 (D. Idaho 1989).
161. See Rollins, 706 F. Supp. at 743.
162. See id.
163. See id. at743-tt
164. See id. at 744-45.
165. 444 F. Supp. 510 (E.D. Cal. 1978), affd, 578 F.2d 259 (9th Cir. 1978).
166. See Corbin Farm Serv., 444 F. Supp. at 515.
167. U. at 536 (citing United States v. Wiesenfeld Warehouse Co., 376 U.S. 86,91-92 (1964)).
168. See BEAN, supra note 114, at 76-78; Coggins & Patti, supra note 103, at 186-87; Margolin, supra note 14, at 994-96,999-1001; Woodrum, supra note 14, at 252-53.
169. See Levenson, supra note 18, at 429 & n.148 (citing examples of cases reading an intent requirement in statutory crimes).
170. See infra Part VI.C (Proximate Causation).
171. See Levenson, supra note 18, at 432-33. Arguably, still other defenses could be raised. For example, the Cruel and Unusual Punishment Clause might be invoked to bar particularly severe punishment of a defendant the court views as innocent of wrongdoing. See, e.g., Stepniewski v. Gagnon, 732 F.2d 567, 571 n.3 (1984) (the Cruel and Unusual Clause "proscribes punishment grossly disproportionate to the severity of the crime . . ..") (quoting Ingraham v. Wright, 430 U.S. 651, 667 (1977)). The ambiguity of the terms "severe punishment" and "innocence" leave a great deal of room for creativity. See, e.g., Lambert v. California, 355 U.S. 225, 227, 229 (1957) (describing a $250 fine and three years probation as "heavy criminal penalties").
172. In at least two situations, the Supreme Court has observed that a number of related theories have been used independently and together to adjust the balance between protecting the innocent and convicting the corrupt.
173. The doctrines of actus reus, mens rea, insanity, mistake, justification, and duress have historically provided the tools for a constantly shifting adjustment of the tension between the evolving aims of the criminal law and changing religious, moral, philosophical, and medical views of the nature of man. This process of adjustment has always been thought to be the province of the States.
174. Montana v. Egelhoff, 518 U.S. 37, 56 (19%) (quoting Powell v. State of Texas, 392 U.S. 514,53536 (1968)). One might add good faith to the list
175. An additional defense to strict liability in tort is performance of a public duty. See KEETON, supra note 22, §79, at 567. An analogous issue under the MBTA remains undecided, that being whether government contractors share the federal government's immunity from prosecution. See Sierra Club v. Martin, 110 F.3d 1551, 1555 (11th Cir. 1997) ("It [the MBTA] does not apply to the federal government."); Newton County Wildlife Ass'n v. United States Forest Serv., 113 F.3d 110, 115 (8th Cir. 1997) ("MBTA does not appear to apply to the activities of federal government agencies."); Curry v. United States Forest Serv., 988 F. Supp. 541, 548 (W.D. Pa. 1997) ("The MBTA, by its plain language, does not subject the federal government to its prohibitions").
176. However, in a recent decision, the Court of Appeals for the District of Columbia held that the MBTA does apply to federal government officials, at least in some instances. See Humane Soc'y of the United States v. Glickman, 217 F.3d 882 (D.C. Cir. 2000) (MBTA prohibitions against harming birds apply to the federal government but the criminal sanctions do not).
177. Apparently even the most ardent supporters of the MBTA among environmentalists are not prepared to argue for strict criminal liability in all instances. For example, environmentalists have challenged the FWS for not restricting loggers but has not argued for an elimination of bird mortality, instead arguing for a significant reduction. See, e.g., Submission to the Commission on Environmental Cooperation Pursuant to Article 14 of the North American Agreement on Environmental Cooperation, submitted by Alliance for the Rockies, et al, November 17, 1999, Section 6, page 17 (ID: SEM-99-002) ("FWS has the flexibility to craft regulations that implement and enforce the MBTA in a way that significantly reduces the impacts of logging operations on migratory birds while allowing logging, an activity that the Submitting Parties recognize as an economically valuable use of forests."), .
178. United States v. Engler, 806 F.2d 425,431 (3d Cir. 1986) (quoting United States v. Engler, 627 F. Supp. 196, 199 (M. D. Pa. 1985).
179. See United States v. Delahoussaye, 572 F.2d 910, 912 (5th Cir. 1978). The Fifth Circuit's decision was based in part on a desire not to see judges as defendants in MBTA prosecutions. See Delahoussaye, 573 F.2d at 912-13 ("Any other interpretation would simply render criminal conviction an unavoidable occasional consequence of duck hunting and deny the sport to those such as, say, judges who might find such a consequence unacceptable."). At least one court has also read an intent requirement into the MBTA in instances of indirect action modifying habitat, such as, logging. See Mahler v. United States Forest Serv., 927 F. Supp. 1559, 1579 (S.D. Ind. 1996) ("The MBTA does not apply to other activities [other than those intended to harm birds] that result in unintended deaths of migratory birds."). However, other courts addressing logging have not relied upon the defendant's intention, but, instead, rely solely on the purported indirect nature of the harm to birds. See, e.g., Seattle Audubon Soc'y v. Evans, 952 F.2d 297, 303 (9th Cir.1991) ("[Precedent does] not suggest that habitat destruction, leading indirectly to bird deaths, amounts to the 'taking' of migratory birds within the meaning of the Migratory Bird Treaty Act.").
180. Compare Emergency Wetlands Resources Act of 1986, Section 501, Pub. L. No. 99-645, 100 Stat. 3582, 3590 (1986) (amending 16 U.S.C. §707(b) felony provision to include requirement for knowledge), with supra note 17 (cases affirming strict MBTA criminal liability).
181. Jenkins, supra note 18, at 600-01 (internal citations omitted); accord Stepniewski, 732 F.2d at 571. But see United States v. Wulff, 758 R2d 1121, 1125 (6th Cir. 1985) (MBTA felony provision was a strict liability crime but, as such, it violated due process because the penalty was not "relatively small" and a conviction might "gravely besmirch" the defendant's reputation). Taking exception to the Sixth Circuit's conclusions, the Third Circuit found no due process problem with strict criminal liability. See Engler, 806 F.2d at 433. Significantly, affirming the strict criminal liability, the Third Circuit rejected the prosecution's concession that the absence of a scienter requirement in the MBTA felony provision violated due process. See id.
182. 355 U.S. 225 (1957).
183. Lambert, 355 U.S. at 226.
184. See id.
185. See id.
186. See id. at 227.
187. Id. at 228.
188. See id. at 228-29. In a subsequent opinion, the Supreme Court described its Lambert decision as holding "that a person could not be punished for a 'crime' of omission, if that person did not know, and the State had taken no reasonable steps to inform him, of his duty to act and of the criminal penalty for failure to do so." Powell v. Texas, 392 U.S. 514, 535 n.27 (1968). Although not mentioned by the Court in the quoted passage, in Lambert, the Court's concern that the defendant, upon learning of the registration requirement, was unable to register without risking a criminal penalty suggests Fifth Amendment self-incrimination issues were coupled with the due process notice problem. See Lambert, 355 U.S. at 229 ("this appellant . . . was given no opportunity to comply with the law and avoid its penalty, even though her default was entirely innocent.").
189. See 42 U.S.C.A. §14072(i) (Supp. 2000) (knowing failure of certain sexual offenders to register with the FBI is punishable by up to one year in prison and, for second offenses, by up to 10 years). Justice Frankfurter, writing in dissent in Lambert, said "I feel confident that the present decision will turn out to be an isolated deviation from the strong current of precedents-a derelict on the waters of the law." Lambert, 355 U.S. at 232 (Frankfurter, J., dissenting).
190. 806 F.2d 425 (3d Cir. 1986).
191. See Engler, 806 F.2d at 433-36 (citing United States v. Freed, 401 U.S. 601 (1971) (possession of unregistered firearm); Williams v. North Carolina, 325 U.S. 226 (1945) (bigamous cohabitation); United States v. Dotterweich, 320 U.S. 277 (1943) (shipment of misbranded or adulterated drugs; felony for subsequent offenses); United States v. Balint, 258 U.S. 250 (1922) (unlawful drug sale); Shevlin-Carpenter Co. v. Minnesota, 218 U.S. 57 (1910) (cutting timber on state lands)).
192. Engler, 806 F.2d at 435 (quoting United States v. Freed, 401 U.S. 601, 608, 609 (1971)) (internal citations omitted).
193. Holmes v. Securities Investor Protection Corp., 503 U.S. 258, 266 n.10 (1992) (quoting KEETON, supra note 22, §41, at 264 (quoting North v. Johnson, 58 Minn. 242, 245, 59 N.W. 1012 (1894))).
194. Holmes, 503 U.S. at 268. Holmes listed three reasons for requiring proximate causation in civil cases, two of which also have application to criminal case: "First, the less direct the injury is, the more difficult it becomes to ascertain the amount of a plaintiffs damages attributable to the violation, as distinct from other, independent factors.... And, finally, the need to grapple with these problems [of remote causation] is unjustified by the general interest in deterring injurious conduct.. .." Holmes, 503 U.S. at 269.
195. 515 U.S. 687 (1995). For discussion of the Su-eet Home decision and its implications, see generally Tara L. Mueller, Babbitt v. Sweet Home Chapter of Communities: When Is Habitat Modification A Take?, 3 HASTINGS W.N.W. J. ENVTL. L. & POL'Y 333 (1996).
196. Endangered Species Act, 16 U.S.C. §§1531- 1544 (1994). The ESA includes a general intent crime requiring knowing conduct. See Sweet Home, 515 U.S. at 696 n.9 (citing 16 U.S.C. §§ 1540(a)(l), (b)(l)). The ESA also includes a strict liability civil penalty provision applicable to "any person who otherwise violates" the Act. See Sweet Home, 515 U.S. at 696 n.9 (citing 16 U.S.C. § 1540(a)(l)).
197. Su-eet Home, 515 U.S. at 691-92.
198. See id. at 696 n.9. The forcseeability (and avoidability) analysis introduced by proximate cause analysis relates to outcomes of actions and is distinct from the foreseeability of the existence of regulations by one possessing or using deleterious materials. See supra Part IV (Judicial Acceptance of Strict Criminal Liability) (discussing rationales used by courts affirming strict criminal liability).
199. Sweet Home, 515 U.S. at 696 n.9. See also id. at 700, n.13 (the regulation is subject to "ordinary requirements of proximate causation and foreseeability"). Justice O'Connor, in a concurring opinion, agreed that criminal liability is limited by proximate causation. See id. at 709 (O'Connor, J., concurring) ("the regulation's application is limited by ordinary principles of proximate causation, which introduce notions of foreseeability."). Writing in dissent. Justice Scalia, joined by two others, agreed that criminal liability is limited by proximate causation under the ESA but he differed as to the meaning of proximate cause. See id. at 732 (Scalia, J., dissenting) ("In fact 'proximate' causation simply means 'directcausation.") (citing BLACK'S LAW DICTIONARY 1103 (5th ed. 1979)).
200. Additional insight into the thinking of the Supreme Court on proximate cause can be gotten by examining its decision in Jerome B. Gmbart, Inc. v. Great Lakes Dredge & Dock Company, 513 U.S. 527 (1995), an admiralty tort case. Justice O'Connor authored the Gmbart opinion. She also wrote a concurring opinion in Sweet Home that discussed proximate causation at length. See Sweet Home, 515 U.S. at 708-14 (O'Connor, J., concurring). The Court did not explain the limits imposed by proximate causation but, in Gruban, it did describe those limits as being less stringent than those proposed by Grubart which were that the harm be close in time and space to the activity that caused it: that it must occur "reasonably contemporaneously" with the negligent conduct and within reach of the device causing the harm. Gntbart, 513 U.S. at 536.
201. 45 F. Supp. 2d 1070 (D. Colo. 1999).
202. See Moon Lake, 45 F. Supp. 2d at 1071.
203. Id. at 1077.
204. Id. at 1085 (quoting BLACK'S LAW DICTIONARY 1225 (6th Ed. 1990)). The court in Moon Lake relied upon the Supreme Court's decision in Sweet Home. See id. at 1077 (citing Sweet Home, 515 U.S. at 692).
205. Moon Lake, 45 F. Supp. 2d at 1085.
206. United States v. FMC, 572 F.2d 902, 905 (1978). Related to proximate cause is the absence of the actus reas, as when the defendant acted involuntarily. See Levenson, supra note 18, at 431 (giving as an example an epileptic's actions during a seizure). Levenson states that British courts have used the absence of an actus reas to avoid strict liability for serious crimes, for example when another slips narcotics into the defendant's bag without the defendant's knowledge). See Levenson, supra note 18, at 431 n.156 (citing Regina v. Warner, [1968] 2 W.L.R. 1303, 1345 (Eng.)). See also KEETON, supra note 22, §79, at 563-64 (defendant is not strictly liable in tort for forces of nature and independent actions of third persons or animals not reasonably foreseeable).
207. Notwithstanding that MBTA crimes have no requirement for_scienter, a proximate causation requirement introduces an element of knowledge. A person's knowledge or opportunities for knowledge become very relevant to the ability to foresee and avoid bird mortality. The following are some examples of evidence that might be available to prove a defendant's knowledge and opportunities for knowledge: government, educational, or industry training programs; announcements and articles in publications and trade journals; prior experience and reports, including accident and incident reports; discussions or inquiries with regulatory authorities; and permits and permit applications.
208. Moon Lake, 45 F. Supp. 2d at 1085. See Margolin, supra note 14, at 1007 (endorsing "the Model Penal Code proposal that the actual result be a 'probable consequence of the actor's conduct'"). See also infra note 201 (probability of bird death or injury was only 0.0064 per pole per year).
209. For a description of different proximate cause tests, see Stephen Scallan, Proximate Cause Under RICO, 20 S. ILL. U. L.J. 455,458-59 (1996) (analyzing "last human wrongdoer test," "cause and condition test," "justly attachable test," and /'oJ.sgra/foreseeability analysis).
210. Judge Andrews' dissent in Palsgraf argued that one owes a duty not to individual foreseeable victims, but to the public at large: Due care is a duty imposed on each one of us to protect society from unnecessary danger, not to protect A, B, or C alone .... Every one owes to the world at large the duty of refraining from those acts that may unreasonably threaten the safety of others. . . . Not only is he wronged to whom harm might reasonably be expected to result, but he also who is in fact injured, even if he be outside what would generally be thought the danger zone. Palsgraf v. Long Island R.R. Co., 162 N.E. 99, 102-03 (1928) (Andrews, J., dissenting).
211. Mueller, supra note 146, at 338-39 (observing that proximate causation is especially in the eye of the beholder when framed in terms of "foreseeabilily" rather than "duty" or "remote" cause, and that the close connection between the erosion and the death of fish in the Sweet Home case would have been obvious to anyone with a minimal understanding of basic ecology). For a mindbending essay on how dependent criminal liability is upon perception, or what the author calls "pathdependence," see Leo Katz, Proximate Cause in Michael Moore's Act and Crime, 142 U. PA. L. REV. 1513 (1994). Among other things, Mr. Katz describes the dramatically different treatment we accord deaths caused by "ducking" and deaths caused by "shielding."
212. See id. at 1516-17 (describing and quoting Christopher Boorse & Roy A. Sorensen, Ducking Harm, 85 J. PHIL. 115 (1988)). An example is the different treatment accorded death caused by a bear capturing a camper left by her faster companion and death caused by a camper throwing his companion to the bear in order to save himself. Id. (citing Boorse & Sorensen at 115-16).
213. See Holmes v. Securities Investor Protection Corp., 503 U.S. 258,268 (1992) ("At bottom, the notion of proximate cause reflects 'ideas of what justice demands, or of what is administratively possible and convenient.'") (quoting KEETON, supra note 22, §41, at 264)). Although Holmes was a civil case, its description of proximate cause is equally applicable to strict criminal liability. "[T]he proximate cause inquiry is based on an unpredictable ... policy analysis, performed on a case-bycase basis. Relying on such a policy-based analysis to limit liability for harm is inappropriate when Congress has already made the hard policy choice...." Mueller, supra note 146, at 341. As used in torts, proximate cause is also ordinarily a policy limitation. See KEETON, supra note 22, §79, at 560.
214. See Mueller, supra note 146, at 340-41 (in the context of the ESA and the Sweet Home decision, but equally applicable to the judicial limits on MBTA strict liability: "Congress has already made the hard policy choice ... it is improper for the courts to arrogate to themselves the authority to limit an individual's liability ....").
215. SeeLevenson, supranole 18, at433n.l68.
216. Cf. Robinson v. California, 370 U.S. 660,667 (1962) ("Even one day in prison would be a cruel and unusual punishment for the 'crime' of having a common cold.").
217. 572 F.2d 902 (2d Cir. 1978). For a discussion of FMC. see supra notes 103-115 and accompanying text.
218. 706 F. Supp. 742 (D. Idaho 1989).
219. Roll'ms. 706 F. Supp. at 745.
220. Lambert v. California, 355 U.S. 225, 229 (1957).
221. United States Sentencing Commission, Guidelines Manual (Nov. 1998).
222. See U.S.S.G. §1A3 (1998).
223. MBTA strict liability offenses are petty offenses to which the Guidelines do not apply. Compare Migratory Bird Treaty Act, 16 U.S.C. §707(a) (1994 & Supp. IV 1998) (maximum sentence for MBTA strict liability misdemeanors is 6 months), with 18 U.S.C. §3559(a)(7) (1994) (defining as Class B misdemeanors offenses for which the maximum sentence is 6 months) and U.S.S.G. §IB. 1.9 (Guidelines are not applicable to Class B misdemeanors).
224. The Sentencing Commission treated technical and administrative regulatory offenses as being of four types, beginning with failure to comply without knowledge or intent, and progressing to violations with knowledge or intent of consequences. See U.S.S.G. §lA4(f) (Regulatory Offenses). The Guidelines make no reference to inadvertent offenses or offenses that occurred notwithstanding the exercise of due care or even extreme care by the defendant.
225. For environmental offenses, the Sentencing Guidelines expressly assume knowing conduct and, for misdemeanors, allow an unlimited reduction of the sentence in cases involving negligent conduct. See id. §2Q1.3, comment (n.3). There is not a similar provision for wildlife offenses or environmental felonies. See id. §§2Q1 (Environment), 2Q2.1 (Offenses Involving Fish, Wildlife, and Plants).
226. See, e.g.. United States v. White Fuel Corp., 498 F.2d 619,622-23 (1st Cir. 1974) (looking at the Refuse Act, 33 U.S.C. §407, prosecution: "we reject the existence of any generalized 'due care' defense that would allow a polluter to avoid conviction on the ground that he took precautions conforming to industry-wide or commonly accepted standards"); Levenson, supra note 18, at 417 (stating that because liability is imposed irrespective of the defendant's knowledge or intentions, "the strict liability doctrine traditionally rejects even a reasonable mistake of a fact or circumstance material to a finding of guilt"). Arguably, one could distinguish White Fuel in a future case in which a defendant exceeded commonly accepted standards and took all reasonable steps to use extraordinary care.
227. For a case in which good faith was recognized as a defense to strict criminal liability, see United States v. United States Dist. Court, 858 F.2d 534 (9th Cir. 1988) (Kantor). Kantor was a child pornography case and was unique in that the absence of a good faith defense raised serious First Amendment issues. Id. at 540-42. The Ninth Circuit observed that the case involved an actress who "allegedly engaged in a deliberate and successful effort to deceive the entire industry ...." Id. at 543. For a thorough discussion of Kantor and of a proposal for application of a good faith defense to strict liability crimes, see generally Levenson, supra note 18.
228. See, e.g., United States v. Corbin Farm Serv., 444 F. Supp. 510, 519 (ED. Cal.), affd on other grounds, 578 F.2d 259 (9th Cir. 1978). See discussion of Corbin Farm, supra notes 121-124 and accompanying text.
229. See Levenson, supra note 18, at 405 n.22 ("The good faith defense essentially transforms a strict liability crime into a negligence offense, in which the defendant must prove reasonable conduct under the circumstances."). Strict criminal liability with a good faith defense would differ from a negligence offense in that the defendant would bear the burden of presenting evidence of his or her good faith even in the absence of any prosecution evidence of negligence while, for a negligence offense, the prosecution must present a prima facie case of negligence that necessarily denies the defendant's good faith. Id. at 405-06.
230. 376 U.S. 86,91 (1964).
231. Id.
232. See United States v. Park, 421 U.S. 658 (1975).
233. Park, 421 U.S. at 673 (quoting Wiesenfeld Warehouse Co., 376 U.S. at 91). Park described the impossibility defense as resting on the responsible corporate officer theory. The theory for criminal liability for responsible corporate officers is essentially the same as the rationale for strict criminal liability of individuals. See supra note 29 and accompanying text. Consequently, the impossibility defense should be available to individuals who are not corporate officers.
234. See, e.g.. United States v. Gel Spice Co., 601 F. Supp. 1205 (E.D.N.Y. 1984).
235. 601 F. Supp. at 1207 (involving the prosecution of company, its president, and its vicepresident for rodent contamination of warehoused food).
236. Gel Spice, 601 F. Supp. at 1213 n.7.
237. Id. at 1212-13.
238. Id. at 1213.
239. United States v. Y. Hâta & Co., 535 F.2d 508 (9th Cir. 1976) (affirming conviction related to bird infestation in food warehouse); United States v. Starr, 535 F.2d 512 (9th Cir. 1976) (affirming conviction for mice infestation and contamination in warehoused food caused when plowing of adjacent field drove out mice).
240. See Hata, 535 F.2d at 510 (requiring "sufficient appropriate facts" before allowing the defense of "objective impossibility"); Starr, 535 F.2d at 515 (placing an additional burden on government only if defendant offers to prove impossibility).
241. See Hata, 535 F.2d at 511 ; Starr, 535 F.2d at 515.
242. Hata, 535 F.2d at 511 (citation omitted) (finding a large wire mesh enclosure is a common device) (quoting United States v. Park, 421 U.S. 658, 672 (1975)).
243. Id. at511-512.
244. Jossen, supra note 20, at 41.
245. Starr, 535 F.2d at 515 (quoting Park, 421 U.S. at 673).
246. Id. at 515. For a case that recognized the possibility of a defense based on intervening acts of third parties, arguably a form of an impossibility defense, see United States v. White Fuel Corp., 498 F.2d 619,623-24 (1st Cir. 1974) (rejecting due care as a defense to Refuse Act, 33 U.S.C. §407, strict criminal liability but, in dicta, recognizing defenses based on intervening acts of third parties as a defense).
247. Sw/r,535F.2dat515-16.
248. See Developments in the Law-Corporate Crime: Regulating Corporate Behavior Through Criminal Sanction, 92 HARV. L. REV. 1243, 1264-65 (April 1979). Some commentators have argued that Park creates a standard of negligence which must be shown before the defendant can be prosecuted under strict liability theory. See Park, 421 U.S. at 678-79 (Stewart, J., dissenting); Jossen, supra note 20, at 41-42 (citing Robinson, Imputed Criminal Liability, 93 YALE L.J. 609, 67071 (1984)). However, the impossibility defense is an affirmative defense. Then again, if Park introduces a standard of negligence, the burden of coming forward with the evidence of due care or impossibility is on the defendant. See Park, 421 U.S. at 673.
249. United States v. Dotterweich, 320 U.S. 277, 285 (1943) (quoting Nash v. United States, 299 U.S. 373, 378 (1913)). See also United States v. FMC Corp., 572 F.2d 902, 905 (2d Cir. 1978) (stating that innocent technical violations can be handled through prosecutorial and court discretion). The propriety of eliminating scienter or mens rea in statutes designed to serve a regulatory purpose has again been recognized by the Supreme Court .... An expansive statute under which the prosecution encounters such reduced obstacles imposes a heavy responsibility upon the prosecutor. Many are his potential targets and few are the standards by which the exercise of his discretion can be measured. . . . Whatever his decision, it is likely to be one in keeping with the political realities within which he functions. This is a part of the price that this type of statute compels us to pay.
250. Zipperman, supra note 6, at 135 (quoting United States v. Chamay, 537 F.2d 341, 357 (9th Cir.) (Sneed, J., concurring), cert, denied, Davis v. United States, 429 U.S. 1000 (1976)).
251. See, e.g., United States v. Moon Lake Elec. Ass'n, 45 F. Supp.2d 1070, 1084 (D. Colo. 1999) ("While prosecutors necessarily enjoy much discretion, proper construction of a criminal statute cannot depend upon the good will of those who must enforce it."). For other factors limiting unreasonable prosecutions, see Margolin, supra note 14, at 1006-1009 (allocation of burden of proof, causation, judicial and prosecutorial discretion, jury nullification).
252. Levenson observes that "[m]uch of strict liability law, including the Kantor case, has evolved from unrestrained prosecutorial discretion." Levenson, supra note 18, at 432. Levenson attributes lapses in the quality of prosecutorial discretion to intense public scrutiny and to the desire of prosecutors for a favorable "conviction box score." Id. at 433. While such factors may influence prosecutors to make decisions they would not otherwise make, it is just as likely that those factors will deter difficult or unpopular prosecutions of serious wrongs. Any effort to limit discretion will harm those who are presently protected by exercise of that discretion. Consider, for example, the widespread dissatisfaction of federal judges with the limits imposed on their discretion by the United States Sentencing Guidelines. See, e.g., John M. Dick, Allowing Sentence Bargains to Fall Outside of the Guidelines Without Valid Departures: It Is Time For the Commission To Act, 48 HASTINGS L.J. 1017, 1034 (1997);
253. Doris Marie Provine, Too Many Black Men: The Sentencing Judge's Dilemma, 23 L. & SOC. INQUIRY 823, 827, 833, 841 (1998) (stating that "judicial dismay with current policy is widespread and sincere[;]" that judicial criticism is based on the limitation of judicial discretion, the inducement to circumvent, the privacy of key decisions, and disparate and harsh results; and that a 1996 Federal Judicial Center survey found over two-thirds of judges said the mandatory guidelines were unnecessary);
254. Jack B. Weinstein, A Trial Judge's Second Impression of the Federal Sentencing Guidelines, 66 S. CAL. L. REV. 357, 365, 366 (1992) (stating that "[o]ne would think that most Americans, judges and legislators as well as members of the Sentencing Commission, would be embarrassed by this implacable urge to incarcerate, by the overwhelming desire to ignore the good that people have done and probably will do" and that "use of the guidelines does tend to deaden the sense that a judge must treat each defendant as a unique human being").
255. The author's experience is that prosecutorial discretion is most often exercised to require more than the minimum required proof, e.g., proof of knowledge of the facts for a MBTA strict liability offense, and proof of knowledge of the legal requirements for "knowing" offenses such as ESA offenses or most environmental crimes. See U.S. DEP'T OF JUSTICE, U. S. ATTORNEY'S MANUAL, §9-27.220 cmt (2000) (Principles of Federal Prosecution-Grounds for Commencing or Declining Prosecution) (Federal prosecutors are not to initiate a prosecution unless they believe that "admissible evidence probably will be sufficient to obtain and sustain a conviction" but that "does not mean that he/she necessarily should initiate or recommend prosecution.").
256. In addition, bird fatalities caused by modern instrumentalities other than firearms are not only foreseeable, they are also a significant concern to regulatory authorities charged with protecting migratory bird species. "Regarding the big picture, we are most concerned about the cumulative impacts of all towers on birds, combined with all the other things that kill them: habitat degradation and loss, pesticides, glass windows, domestic cats, power lines, wind generators, cars, aircraft, oil spills, and such." Dr. Albert M. Manville II, quoted by Chris Tollefson, Sen-ice to Host Workshop on Fatal Bird Collisions with Communications Towers (revisited on Feb. 13, 2001) .
257. That something is a foreseeable consequence of action does not mean that it is a probable outcome. When courts speak of probable consequences and probable cause, they are applying a value judgment. In terms of scientific risk analysis, probability is a statistical measure of the number of times an outcome will occur for a given number of times a causative action takes place. See generally., ROBERT E. MEGILL, AN INTRODUCTION TO RISK ANALYSIS, Penn Well Books, Tulsa, Oklahoma (2d ed. 1984) (defining probability and distinguishing outcomes with discrete distributions from continuous or nondiscrete distributions such as occur in instances of bird collisions). For example, a jet engine failure may occur once in every 20,000 hours of operation or an auto accident may occur once in every 40,000 miles of operation. A given, objective, statistical probability of an outcome may be subjectively "probable" to one court but unlikely to another.
258. The bird kills from different causes listed in the subsequent text of this article represent totals and not probabilities. Nevertheless, they illustrate the relative magnitude of the threat presented by different causes of bird deaths. The objective of the MBTA was to preserve bird populations. For some probability calculations, see infra note 201 (probability of bird death or injury upon which criminal liability was established in Moon Lake was 0.0064 birds per pole per year) and note 230 (probability of fatal bird collision with a communication tower is 82 birds per tower per - year).
259. See United States v. FMC Corp., 572 F.2d 902 (2d Cir. 1978).
260. See United States v. Moon Lake, 45 F. Supp.2d 1070 (D. Colo. 1999). The Moon Lake case is unique in providing sufficient information to calculate the probability of bird death or injury. The prosecution was based on the death or injury of 38 birds by 2450 unprotected poles during 29 months. See id. at 1071. Consequently, the probability of a bird being killed or injured by any one pole in any year was only 0.0064, or about two-thirds of one percent. That is an understatement of the probability, inasmuch as the prosecution was limited to bird deaths or injuries that could be conclusively proven, but it is the probability relied upon by the court. See, e.g., Ted Williams, Zapped.', AUDUBON MAGAZINE, JanTFeb. 2000, at 32, 34 (reporting at least 170 raptor carcasses were recovered under Moon Lake lines over an unspecified period). Data to be developed as part of the plea agreement will allow a more accurate calculation of a presumably higher probability. See infra notes 262-63 and accompanying text (describing Moon Lake plea agreement and MOU).
261. Most of the data in the text of this section were located by Albert M. Manville II, Ph.D, and John Trapp, Wildlife Biologists, United States Fish and Wildlife Service, whose assistance the author gratefully acknowledges.
262. See John S. Coleman and Stanley A. Temple, On the Prowl, Wisconsin Natural Resources Magazine (Dec. 1996) (revisited Feb. 14, 2001) (intermediate estimate was that cats kill 38.7 million birds per year in rural Wisconsin).
263. Coleman and Temple estimated that there are between 1.4 and 2.0 million feral cats in rural Wisconsin alone. See id. See also John .S. Coleman et al., Cats and Wildlife: A Conservation Dilemma (revisited on Feb. 14, 2001) ("Worldwide, cats may have been involved in the extinction of more bird species than any other cause, except habitat destruction."). Coleman and Temple identified a number of advantages enjoyed by domestic cats and some feral cats, especially that supplemental feeding by humans means cat populations and prédation will not fall as bird prey are exterminated. See id. Cats also harm predatory animals by reducing the number of their prey, i.e., reducing their food supply. See id.
264. Daniel Klem, Jr., Collisions Between Birds and Windows: Mortality and Prevention, 61 J. FIELD ORNITHOL., Winter 1990, at 120, 123-25 (reporting that at least one-half of all bird strikes against windows are fatal to the birds, regardless of size) [hereinafter Collisions].
265. See also T. O. Connell, Glass Windows and Bird Deaths, Proceedings N. Am. Ornithological Conference, St. Louis, Missouri. (Apr. 8, 1998) (describes study consistent with Klem's results and gives reasons why his own results may have under-reported actual bird deaths) (on file with author);
266. Erica H. Dunn, Bird Mortality from Striking Residential Windows in Winter, 64 J. FIELD ORNITHOL., Summer 1993, at 302, 308 (estimates a range of window kills per home per year between 0.65 and 7.70, suggesting Klem's range of 1 to 10 birds per building per year is realistic);
267. Daniel Klem, Jr., BirdWindow Collisions, 101 THE WILSON BULLETIN, December 1989, at 606, 620 (describing factors contributing to birds' collisions with windows) [hereinafter Bird-Window Collisions].
268. See Klem, Collisions, supra note 204, at 124.
269. David Pimentel et al., Environmental and Economic Costs of Pesticide Use, 42 BioSciENCE 750,757 (Nov. 1992).
270. See BANKS, supra note 8, at 10 (between 2.7 and 96.25 birds are killed per mile of road per year, with an estimated median value of 15.1, on 3,786,713 miles of road in 1972); Federal Highway Administration, Office of Highway Policy Administration, 7996 Highway Statistics (revisited Feb. 14, 2001) (Tables HM-10, 12 and 20 state that there were 3,933,985 miles of road in 1996, and Table VM-1 states that there were 210,236,393 registered vehicles with an average of 11,807 miles per year driven by each vehicle). The calculation assumes that the incidence of bird strikes and kills by cars was the same in 1996 as Banks found in 1972. More recently, Al Manville has received anecdotal reports of thousands of Cedar Waxwings killed in the East and Northeast, purportedly because of an attraction to fruiting exotic plants (e.g., Autumn olive) planted on highway median strips. Interviews with Albert M. Manville II, Ph.D, Wildlife Biologist, at FWS, Migratory Bird Office (Dec. 21, 1999, Jan. 21, 2000).
271. W.R. Evans and A.M. Manville II (eds.), 2000, Avion Mortality at Communications Towers, Transcripts of Proceedings of the Workshop on Avian Mortality at Communication Towers, August 11, 1999, Cornell University, Ithaca, NY, (revisited Feb. 14, 2001) .
272. See also USA Towerkill Summary (revisited Feb. 14,2001) ("it is not hard to imagine that annual bird mortality at communications towers could be over five million birds a year," but the scarcity of long-term studies, the total absence of studies at shorter towers, and scavengers removing kills before discovery means "the annual mortality could be much larger").
273. Interview with Albert M. Manville II, Ph.D., Wildlife Biologist, at FWS, Migratory Bird Office (Dec. 21, 1999).
274. Albert M. Manville, II, Cleaning Up an Oil Spill: Some Biological Tools in the Chest of Cleanup Options, 1 J. CLEAN TECH. AND ENVTL. SCI. 123, 124 (1991) (in September 1989 alone, FWS retrieved 36,470 dead birds representing 90 species).
275. John F. Piatt et al., Immediate Impact of the "Exxon Valdez" Oil Spill on Marine Birds, 107 THE AUK 387,395 (Apr. 1990).
276. See id. (estimating total Exxon Valdez bird kill at 100,000 to 300,000, and that it would have been greater if it had occurred in summer or autumn); Manville, supra note 210, at 124-25 (subsequent government studies indicated that 350,000 to 390,000 birds died and Manville believed the cumulative total would exceed 500,000.).
277. BANKS, supra note 8, at 12.
278. Interview with Albert M. Manville II, Ph.D., Wildlife Biologist, at FWS, Migratory Bird Office, (Feb. 10, 2000) (referencing Constituent Briefing). A single commercial longliner may deploy as many as 35,000 hooks each day. NlGEL P. BROTHERS ETAL., THE INCIDENTAL CATCH OF SEABIRDS BY LONGLINE FISHERIES: WORLDWIDE REVIEW AND TECHNICAL GUIDELINES FOR MITIGATION, FOOD AND AGRICULTURE ORGANIZATION, FISHERIES CIRCULAR, No. 937,1,1 (1999). Note that the estimated bird loses due to fishing bycatch are global, unlike the losses from other causes listed in the text which are in the United States.
279. Manville, supra note 214.
280. Manville, supra note 214.
281. Manville, supra note 214; BROTHERS ETAL, supra note 214, at 26 ("Based on evidence to hand . . . populations of several species of albatrosses, giant petrels and Whitechinned Petrels, were not sustainable ....").
282. United Nations Food and Agriculture Organization (FOA), Fisheries Department, Tlie International Plan of Action for the Reduction of Incidental Catch ofSeabirds in Longline Fisheries, Introduction, paragraph 1, republished in. National Marine Fisheries Service, Draft National Plan of Action for the Reduction of Incidental Catch ofSeabirds in Longline Fisheries, Appendix I (revisited Feb. 14, 2001) . See also 64 Fed.Reg. 73017 (Dec. 29, 1999) (announcing availability of National Plan of Action and inviting comments).
283. Bird electrocutions occur on electric distribution lines that carry 34,500 volts or less, and not on larger transmission towers, because wires are close enough to each other or to conductors for the birds to short circuit the lines. See Williams, supra note 201, at 32, 34. There are presently 116,532, 289 distribution poles in the United States. See id. at 36. The introduction of steel poles in place of present wooden poles is expected to aggravate the problem. See id. at 38. Power distribution poles are not the only cause of bird electrocutions. For example, California installed high-voltage fences around its prisons to reduce staffing costs but, as a result, executed more than 3000 birds in the first five years.
284. See Jack Fischer, Prison Fence Nets Ensure No Birds Are Executed, San Jose Mercury News, April 8, 1998, at 1A, available through . California officials had not considered the impact of the fences on birds. Pursuant to an agreement with FWS, California agreed to protect the fences and the birds with netting. See id. The nets were described as 90 percent effective.
285. See id. Although the nets would cost $3.4 million, the fences were estimated to save California $40 million annually in staff salaries. See id.
286. Briefing Statement by A.M. Manville II, Jan. 10, 2000 (file name WPFILES:birddeat.bri.wpd) (on file with author).
287. See also John L. Trapp, Bird Kills at Towers And Other Human-Made Structures: An Annotated Partial Bibliography (1960-1998) (revisited Feb. 14, 2001) .
288. See R.R. Olendorff et al., SUGGESTED PRACTICES FOR RAPTOR PROTECTION ON POWER LINES: THE STATE OF THE ART IN 1996, AVIAN POWER LINE INTERACTION COMM. AND EDISON ELEC. INST., l (1996) (citing investigations of electrocution of eagles in 1970s and subsequently, "[o]ver the last 25 years, those efforts have led to a detailed understanding of the biological factors that attract raptors to power lines, and those harmful interactions that lead to electrocution."); W.M. Brown et al, MITIGATING BIRD COLLISIONS WITH POWER LINES: THE STATE OF THE ART IN 1994, AVIAN POWER LINE INTERACTION COMM. AND EDISON ELECTRIC INST., at l (1994) (describing studies of dead birds under telegraph wires as early as 1876, and birds killed by impacts with power lines as early as 1904).
289. Interview with Albert M. Manville, Ph.D., Wildlife Biologist, at FWS, Migratory Bird Office (Feb. 23, 2000) (extrapolation based, in part, on NATIONAL RENEWABLE ENERGY LABORATORY, A PILOT GOLDEN EAGLE POPULATION STUDY IN THE ALTAMONT PASS WIND RESOURCE AREA, CALIFORNIA, NREL/TP-441-7821, U.S. DEPT. ENERGY (1995)). See also Lisa Vonderbrueggen, Agencies Say Windmill Firms Should Pay for Bird Habitat Protection, CONTRA COSTA TIMES, Oct. 29, 1998, (from 1992 through January of 1998, 1,025 birds were killed at Altamont Pass by windmill blades or electrocution; proposal to replace existing wind generators with 85 percent fewer generators of a more efficient and bird friendly design).
290. Briefing Statement, supra note 220. See also Enron Agrees to Move LA Windmills Away From Condors' Flight Path, SEATTLE-DAILY J. COM., Nov. 5, 1999 (revisited Feb. 14, 2001) (in response to National Audubon Society objections that 200 foot high windmills threatened the 49 remaining wild condors, Enron dropped plans to build 53 windmills north of Los Angeles in exchange for a lease on land about 20 miles away).
291. NWRC-Ohio Field Station, FAA Wildlife Strikes to Civil Aircraft in the United States (revisited Feb 14, 2001) .
292. See also Edward C. Cleary et al.. Wildlife Strikes to Civil Aircraft in the United States 1991-1997. FAA Wildl. Aircraft Strike Database Ser. Rep. 4 (Sept. 1998), at 1-3 (2,421 strikes/year) (revisited Feb. 14, 2001) .
293. See, e.g., Transport Canada Transport, Near-Crashes (revisited Feb. 14, 2001) .
294. Transport Canada has documented over 100 fatal airplane crashes caused by impacts with aircraft and other crashes for which bird strikes are suspected. See Aircrafl Crashes and Loss of Life (revisited Feb. 14, 2001) . Obviously, there are many other bird strikes fatal only to the birds.
295. See Tamar A. Mehuron, Bird Strike!, 81 AIR FORCE MAO. 6 (June 1998) (revisited Feb. 14,2001) .
296. See Towerkill.com, Brief Historical Overview (revisited Feb. 14, 2001) .
297. See also Trapp, supra note 220.
298. Albert M. Manville II, Ph.D., The ABC's of Avoiding Bird Collisions At Communication Towers: The Next Steps, Introduction, presented at the Electric Research Institute's Avian Interactions Workshop, Dec. 2, 1999, Charleston, S.C. (currently in press) published on the internet at (revisited Feb. 14, 2001) ; Towerkill.com, Brief Historical Overview (revisited Feb. 14, 2001) .
299. Chris Tolleson, Sen-ice To Host Workshop On Fatal Bird Collisions With Communications Towers, FWS August 2, 1999 News Release announcing August 11, 1999 Workshop at Cornell University (revisited Feb. 14, 2001) .
300. See also BANKS, supra note 8, at 10, 11 (stating that three studies between 1967 and 1973 found estimated annual mortalities per tower between 2,121 and 2,843; the author rounded the number to 2,500 but assumed only one-half of the towers resulted in bird kills). One million, four hundred thousand bird deaths from 1,100 towers per year works out to a mortality rate of 1,273 bird deaths for each tower each year.
301. FWS August 2, 1999 News Release announcing August 11, 1999 Workshop at Cornell University (revisited Feb. 14, 2001) .
302. See also discussion supra notes 208-209 and accompanying text (estimating birds killed by impacts with communications towers); Towerkill.com, USA Towerkill Summary (revisited Feb. 14, 2001) (Federal Aviation Administration Digital Obstacle File lists 39,530 towers over 200 feet but some towers close together get counted as one). Four million bird deaths from 49,100 towers per year works out to a mortality rate of 82 bird deaths for each tower each year. Compare with supra note 201 (probability of bird death or injury in Moon Lake was only 0.0064 per pole per year). It is unknown whether linear extrapolation of mortality figures is appropriate. Dr. Charles Kemper speculates that a recently documented drop in bird mortality at towers may be due to the dispersal of a fixed population of birds among a greater number of towers. See Wendy K. Weisensei, Battered by the Ainmves?, WlS. NAT. RESOURCES MAG. (February 2000) (revisited Feb. 14, 2001)
303. FWS August 2, 1999 News Release, supra note 229.
304. Id. See also USA Towerkill Summary, supra note 230.
305. FWS August 2,1999 News Release, supra note 229.
306. Briefing Statement (by A.M. Manville), supra note 220.
307. See, e.g., Coleman, Cats and Wildlife, supra note 203 (section titled "What you can do").
308. See Coleman, Cats and Wildlife, supra note 203 (section titled "What you can do").
309. See Klem, Collisions, supra note 204, at 123. Although not discussed in the literature, one might expect tinted glass to protect birds by making the glass visible.
310. See Klem, Collisions, supra note 204, at 126; Alternatively, Klem suggests placing attractants within one foot of windows because birds are drawn first to the attractant and, when taking flight, have not built up sufficient momentum to sustain serious injury. See Klem, Collisions, supra note 204, Dunn, on the other hand, prefers moving attractants far from windows. See Dunn, supra note 204, at 309.
311. See Dunn, supra note 204, at 309 ("installation of plastic garden-protection netting about 25 cm from the window essentially solved ... severe window-strike problems.... The mesh did not block views substantially.").
312. See Klem Collisions, supra note 204, at 126.
313. See Klem Collisions, supra note 204, at 127.
314. FLAP, How To Make Your Home, Collage & School Safe For Birds (revisited Feb. 14, 2001) (offering the suggestions to hang ribbons, hang silhouettes so they move, etch images onto exterior glass, use spider web decals). See also Weisenel, sidebar titled "Prevent bird collisions at home, " supra note 230.
315. See Audubon, Cats Indoors! (revisited Feb. 14, 2001) .
316. Tolleson, supra note 229 (quoting Albert M. Manville, Ph.D.). See also Weisensel, supra note 230 (section titled "Changing lights, heights and designs to make towers less of an attraction"). Certainly, collisions of birds with tall, lighted buildings is of the greatest concern, with single buildings (e.g. skyscrapers) sometimes accounting for hundreds or thousands of bird mortalities/year.) Two different types of problems - birds in daylight disoriented by reflections of plate glass windows, nocturnal migrants disoriented by interior or exterior lighting of tall buildings, especially in foul weather; both result in collision with windows or building and death due to blunt trauma. Both types of mortality can be prevented or minimized. Email communication from John Trapp, FWS, (Dec. 28, 1999) (on file with author). See also Towerkill.com, Towerkill Mechanisms (revisited Feb. 14, 2001) ;
317. Paul Kerlinger, Ph.D., Avion Mortality At Communication Towers: A Review of Recent Literature, Research and Methodology, March 2000, published on the internet at (visited Feb. 14,2001) .
318. See, e.g., The Topeka Capital Journal, Tliousands of Birds Fly To Their Deaths Around Radio Towers (Jan. 30, 1998) (reporting death of between 5,000 and 10,000 Lapland longspurs from crashing into guy wires, obscured in fog and snow, after being drawn by bright lights around radio transmission tower near Syracuse, Kansas on January 22, 1998).
319. United Nations Food and Agriculture Organization (FOA), Fisheries Department, The International Plan of Action for the Reduction of Incidental Catch ofSeabirds in Longline Fisheries, Technical note on some optional technical and operational measures for reducing the incidential catch of seabirds. Section II (Technical measures), republished in. National Marine Fisheries Service, Draft National Plan of Action for the Reduction of Incidental Catch ofSeabirds in Longline Fisheries, Appendix VI (Future Conferences and Events Related to Seabird-Fishery Interactions) (visited Feb. 14, 2001) .
320. See also 64 Fed.Reg. 73017 (Dec. 29, 1999) (announcing availability of National Plan of Action and inviting comments). For a technical note on some optional technical and operational measures for reducing the incidental take of seabirds, see Brothers, supra note 214, at 44-84.
321. A series of international meetings were scheduled. United Nations Food and Agriculture Organization (FOA), Fisheries Department, The International Plan of Action for Reducing Incidental Catch of Seabirds in Longline Fisheries, Introduction, paragraph 1, republished in, National Marine Fisheries Service, Draft National Plan of Action for the Reduction of Incidental Catch of Seabirds in Longline Fisheries, Appendix I (listing Wilhelmshaven, Germany on March 17-19,2000; Darmouth, Nova Scotia, Canada in April 2000; Honolulu, Hawaii, USA, May 812,2000).
322. R.R. OLENDORFF, supra note 221, at 6 (emphasis added).
323. See R.R. OLENDORFF, supra note 221.
324. See W.M. BROWN ET AL., supra note 221.
325. Vonderbrueggen, supra note 222 (bird friendly wind turbines have larger but slower turning blades, are placed on taller towers above the birds' hunting patterns, and have perching spots eliminated).
326. BANKS, supra note 8, at 9 (citing English studies showing "black spots" of high mortality associated with open gates, breaks in hedges or walls, and proximity of feeding and resting sites; and a Texas study showing one-third of all road deaths occurred between daybreak and 8 a.m.).
327. Transport Canada, Aircraft Crashes And Loss Of Life (revisited Feb. 14, 2001) ; Near Crashes, id., at <...o7d3.htm>; Species Involved, id. at <...d/dl4.htm> (noting, among other facts, that birds of prey may attack aircraft while waterfowl generally avoid aircraft);
328. see also'Air Force News, Whitenian Reduces Bird Strike Hazard (Nov. 18, 1997) (revisited Feb. 14, 2001) (reporting successful efforts at Whiteman Air Force Base to avoid bird strikes between B-2 bombers and a flock of 125,000 Redwing Blackbirds); FAA Aeronautical Information Manual, Ch. 7, Sect. 4-2 (Reducing Bird Strike Risks) (Jan. 25, 2001) (revisited Feb. 14, 2001) ; Mehuron, supra note 226 (describing use of falcons to drive off large flocks and of remotecontrolled model aircraft broadcasting bird of prey sounds to drive off big birds).
329. One reason courts may discount bird deaths caused by impacts is that the deaths are usually infrequent and few at any single location. Brothers, et al., addressed this perceptual problem in the context of seabird bycatch by longline fishing. Prior to 1988 . . . [fjishers had no concept (and many still do not) of bird populations and the consequences of catching a few individuals. After all, each fishing vessel may catch only one or two birds a day, sometimes none for many days and each day the impression is of just as many birds flying around the ship. It is. understandable that fishers had no perception of a problem. Further, they have little understanding of the population biology of seabirds and why their practice threatens the survival of albatrosses. Concepts such as delayed maturity, year-long breeding cycles, biennial breeding and long life spans were not known. BROTHERS, ET AL., supra note 214, at 46.
330. Coggins & Patti, supra note 103, at 192, suggest criteria for strict criminal liability that build on and go beyond the decided cases: an act must (1) be purposeful (though not necessarily the consequences), (2) involve potentially lethal agents (poisons, chain saws, guns, power lines, fire, etc.), (3) involve some degree of "culpability," and (4) be a reasonably foreseeable cause of bird mortality in the event the operation goes astray, whether by negligence or by accident. The proposed criteria do not contribute to a solution. The element of "culpability" is undefined and makes the criteria rather circular. The other elements seem redundant.
331. 5 U.S.C. §§551-559 (1994 & Supp. IV 1998) (Administrative Procedure Act); 5 U.S.C. §§ 561-570 (1994 & Supp. IV 1998) (negotiated rulemaking procedure); 5 U.S.C. §§571-583 (1994 & Supp. IV 1998) (alternative means of dispute resolution in the administrative process).
332. See 16 U.S.C.A. §§704(c), 712 (Supp. 2000) (authorizing Secretary of the Interior to issue implementing regulations). The court in Moon Lake acknowledged the need for reasonable regulations. See United States v. Moon Lake Electric Ass'n, Inc., 45 F. Supp. 2d 1070, 1085 (D. Colo. 1999) ("Reasonable regulation by the Secretary, in conjunction with proper application of the law, which includes requiring the prosecution to prove proximate cause beyond a reasonable doubt under §702(a), can effectively avoid absurd and unintended results."). But see Alaska Fish & Wildlife Fed'n & Outdoor Council v. Dunkle, 829 F.2d 933, 940-41 (9th Cir. 1987) (stating that regulations must comport with the most restrictive provisions of the migratory bird conventions). Because the Canadian convention does not allow taking of game birds during closed seasons nor of insectivorous birds at any time, one might argue no permits can be issued for "incidental takings" caused by human constructions.
333. That the instrumentalities are necessary to modern society is implicit in the regulations of the FCC and FAA which necessitate tall towers with lights that attract birds. See supra notes 231233 and accompanying text. The primary issue is not whether the instrumentalities are necessary, nor whether bird fatalities are foreseeable. Rather, the issue is the extent to which bird fatalities are avoidable and how many can be saved.
334. See 50 C.F.R. §21.27 (2000) (Special Purpose Permits, usually for actions benefiting the species or research). Although permits can, arguably, be issued for situations not otherwise anticipated in migratory bird regulations, FWS does not issue permits for bird strike fatalities, relying instead on cooperation and discretionary enforcement. Interview with Susan Lawrence, FWS, (Jan. 24, 2000). See also Heckler v. Chaney, 470 U.S. 821, 831 (1985) ("This Court has recognized on several occasions over many years that an agency's decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency's absolute discretion.").
335. See 5 U.S.C. §§701-706 (1994) (judicial review of agency decisions). One hurdle that a regulatory solution must overcome is the Ninth Circuit decision in Dunkle. See sources and text cited supra note 257 (describing Dunkle).
336. See discussion supra Part VILA (Foreseeable bird deaths) and, especially, notes 219-221 and accompanying text.
337. August 16, 1999 Memorandum of Understanding (MOU), Sections III and IV. The MOU also contains provisions relating to nests (Section V) and record-keeping (Section VI). In addition to monitoring compliance, record-keeping could be used for scientific purposes. See Klem, supra note 204, at 127 (describing recovered window-kills as a "valuable but largely neglected ornithological resource" for anatomical and plumage studies, and for study of geographic distributions and migration routes).
338. MOU at Section IV.A.2.
339. See, e.g., Tolleson, supra note 229; Avion Mortality at Communications Towers, Brochure announcing August 11, 1999 Workshop at Cornell University as part of the 117th Meeting of the American Ornithological Union .
340. Interview with Jon Andrew, Chief, FWS Office of Migratory Bird Management (Dec. 17, 1999).
341. Interview with Steve Wendt, Canadian Wildlife Service (Nov. 9, 1999).
342. See discussion supra Part VII (Bird Deaths Caused by Instrumentalities of Modem Civilization Are Foreseeable and Avoidable).