Several federal laws have been enacted to protect migratory birds, a few dating back to very early in the last century (some of the earliest environmental laws). These laws are administered by the U.S. Fish & Wildlife Service (FWS), but there are also state laws administered by various state and local agencies. Oil lease operators can run afoul of the
Migratory Bird Treaty Act (MBTA), and potentially other laws, if open tanks or pits result in the accidental death (take or taking) of protected migratory birds. See A Guide to the Laws and Treaties of the United States for Protecting Migratory Birds, see the MBTA Synopsis, and see Birds Protected by the Migratory Bird Treaty Act for a list of protected birds. Much additional information is available at the U.S. Fish & Wildlife Service (FWS) Division of Migratory Bird Management website.|
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The FWS does not distinguish between intentional illegal take of migratory birds (as in illegal hunting), and the unintentional or accidental take, also called incidental take. A minority of courts have sided with defendants in incidental take prosecutions under the MBTA, but the majority apply strict liability. The judge in U.S. v. Moon Lake Electric produced a lengthy opinion denying the defendant's motion to dismiss, which opinion should convince any oil operator to take this issue seriously. It seems unlikely, given the debate at the time, that congress originally intended incidental or accidental take be a prosecutable violation, but that is how the FWS has subsequently twisted this well-meaning law. The current FWS position turns every motorist who ever hit a bird, and nearly every building owner with a plate glass window into a criminal under the MTBA (it is estimated that between 100 million and one billion birds die annually in collisions with glass windows). The bottom line is that the incidental take of a migratory bird in a pit or open tank is now viewed by the FWS as a criminal offense carrying possible jail time and up to a $15,000.00 fine for each bird taken. The FWS issues permits of course, but not for incidental take on oil and gas leases.
The FWS has been citing oil facility operators in other parts of the country for years (see this FWS Region 6 webpage), but only recently became active in Kentucky. Because Kentucky operators are not familiar with solutions to this problem, this webpage was created. Calls to area oilfield suppliers revealed none were even familiar with the concept of netting pits. Some regulators urge the closing of all pits, but there are situations where pits, lagoons, and impoundments serve a useful or necessary purpose (settling lagoons or impoundments used pursuant to a surface discharge permit, for instance). In thirty years of oilfield experience, we have never seen a demonstration of an effective method of removing every trace of oil from the surface of pits, and it is a futile exercise in settling lagoons or ponds anyway; even a skim of oil is said to pose a hazard to birds. Further, because of a lack of a reasonable pit closure methodology in Kentucky* (unlike other oil states), netting of existing pits or impoundments is the only reasonable alternative at this time in Kentucky.
Netting of pits, lagoons, and impoundments can be done fairly inexpensively. Our friend Gary Brown at American Netting, LLC was a pioneer in working out economical ways to do bird netting (he has been at it for 30 years). American Netting, LLC is the outfit to call! We believe the use of high tensile strength fence wire in place of the more traditional wire rope or soft steel wire is the key to an even more economical installation. Kencove is a major supplier of high tensile fence materials.
Of course one can ponder why FWS does little or nothing about the millions of birds killed by plate glass windows, but is quick to prosecute selected industries, forcing substantial expenditures that can at most save a handful of birds. Obviously, while the public would balk at homeowners being prosecuted when a bird accidentally collides with a widow, prosecutions involving the "evil" oil industry, and the equally despised electrical utility industry (accidental bird electrocutions) are common. Further, it has been our experience that many FWS agents are capricious and vindictive, and some outright lie. In a case that garnered considerable attention, the Department of the Interior's inspector general (IG) amazingly found that FWS biologists who planted and submitted false hair samples of Canada lynx fur for laboratory analysis broke no laws. They did, however, demonstrate "a pattern of bad judgment," according to IG Earl Devaney, who criticized the agency for not meting out "more meaningful punishment" to the biologists who were actually paid bonuses, displaying what he called "a cultural bias against holding employees accountable for their behavior." Closer to home, two FWS special agents were overheard discussing how they were not surprised at the "killers" owned by a local oil producer; the fellow has a few farm cats. One of these same two special agents actually attempted to provoke a physical altercation with an attorney representing that same oil producer. Not much chance of a fair shake from government employees with this kind of attitude.
*This has produced some bizarre outcomes, including the "illegal" closure of hundreds of pits, even a few closed by US EPA contractors that the state has declared improperly closed.