Scope of Migratory Bird Treaty Act Decided

states, 342 u.s. 246, 257 (1952). and we might add, "no one may be required undisputed testimony that up to the time of fish and wildlife's first search of his wildlife's inspection of its property in december 2005, and the company's or in his specific operations. fish and wildlife did not send him a letter about the liability crimes "generally are disfavored," and suggested some indicia of appellants also point to supreme court case law on the books at the time without an explicit mens rea requirement. this is further evidence the legislative -13- requirement of � 707(a), and concluded that "misdemeanor violations under � 703 aplt. app. 212. a year later, in april 2008, the service again conducted a search arising from the april 2008 inspection should be reversed because on that morissette v. united states, 342 u.s. 246 (1952)). "simply stated, then, `it is not the court after reviewing all the evidence, is left with a definite and firm united states of america, cedar oil) were convicted of taking or possessing migratory birds, each birds. fish and wildlife chose not to recommend prosecution for mbta lafave, substantive criminal law � 5.5 (2d ed. 2003) ("for several centuries conviction that the district court erred." united states v. jarvison, 409 f.3d 1221, consolidated. criminal--here, the taking of protected birds. what knowledge apollo and 2007 and april 2008 deaths. mbta violation to be guilty of a crime, and (3) the district court erred in trapped in heater/treaters [were] relatively common in the industry," aplt. app. at statutory argument is that the mbta does not create a strict liability crime to take migratory birds. -3- id. the court relied on these principles as recently as its decision in staples v. violations related to heater-treaters through the end of 2006, while the education tenth circuit walker's company, red cedar, received the notice. fish and wildlife also therefore, the magistrate judge's finding as to the april 2007 bird death is united states, 511 u.s. 600 (1994), considering whether possession of an stephen e. robison (daniel e. lawrence with him on each brief) fleeson, fall into three general categories: (1) the statute provides inadequate notice of manning, 787 f.2d 431, 435 n.4 (8th cir. 1986) (emphasis added). with the traditional mens rea requirement. id. at 606. statute reaches its constitutional breaking point. 1. vagueness: notice of statutorily-prohibited acts received no such notice. the fish and wildlife agent in charge of the gooing, coulson & kitch, l.l.c., wichita, kansas for appellants. strict liability crimes. two due process limitations are especially relevant here. violations--innocuous conduct such as driving a car or closing a window--do not states v. fmc corp., 572 f.2d 902, 907�08 (2d cir. 1978); rogers v. united process is the assurance that criminal laws must `give a person of ordinary retrieved a protected bird that he found lodged in a heater-treater's louvers. in contrast, walker was charged and convicted for dead birds found in both foreseeability of a legal rule. "we have long recognized the `common maxim, reputation," and due process requires such a substantial punishment to be given yet by the middle of the twentieth century, the supreme court was defined by statute as "to harass, harm, pursue, hunt, shoot, wound, kill, trap, specific intent or guilty knowledge.'" id. at 805 (quoting united states v. violate the law. exhaust pipes that are approximately nine inches in diameter, and walker's n.13 (majority opinion) (describing "proximate causation and foreseeability" as question here is whether unprotected oil field equipment can take or kill what conduct would violate the mbta, (2) due process requires they caused an case with sulfuric and other dangerous acids. pencils, dental floss, paper clips can test the far reaches in application, we do not have that case before us. the staples, 511 u.s. at 607 (noting strict liability crimes typically "involve statutes state of mind to violate the act, and the conduct here was passive--they merely community." id. at 227, 229. any reason to find that capturing or collecting birds implies a higher mens rea criminal violations are commonly and ordinarily not criminal, we must ask the great or., 515 u.s. 687 (1995), determined the reasonableness of federal united states v. catlett, 747 f.2d 1102, 1105 (6th cir. 1984) (per curiam); united know that he is dealing with some dangerous or deleterious substance" the which a vagueness challenge takes aim is the "standardless sweep [of a statute's apollo energies, inc., construing the mbta, united states v. moon lake elec. ass'n, inc., 45 f. supp. occasion the bird was found in his heater-treater's louvers, not the exhaust pipe, consequence of failing to cap the exhaust stack and cover access holes to the crawl into the heater-treaters' exhaust pipes, it was reasonably foreseeable "compound concept" consisting of both an "evil-meaning mind" and an "evil- not have been reasonably foreseen to result in a proscribed effect on birds, the u.s. at 602�03. in both cases, the court found a mens rea requirement as an natural and continuous sequence, unbroken by any efficient intervening cause, morissette v. united states, for example, the supreme court gave a stamp of first, due process requires citizens be given fair notice of what conduct is see also united states v. lovern, 590 f.3d 1095, 1103 (10th cir. 2009) (quoting under � 707(a), "any person, association, partnership, or standard which has been upheld in many federal court decisions."). finally, the argument comes in two varieties. first, the mbta is unconstitutionally vague "as generally stated, the void-for-vagueness doctrine requires that a penal migratory birds, while leaving intact the language of the misdemeanor provision on conduct, such as timber harvesting, that indirectly results in the death of agents found four protected birds in walker's heater-treaters, as well. when (...continued) meaningful sense, are analytically indistinct, and go to the heart of due process heater-treaters he inspected. in february 2006, fish and wildlife officers heater-treaters in december 2005. he found bird remains in about half of the criminal. a criminal statute cannot be so vague that "ordinary people" are section 703 makes it a crime to "take" protected birds: ii. discussion confronted with the dead birds, walker is reported to have said "that's not good." -11- in a variation of their vagueness argument, appellants also contend the limited to the mbta violations at issue there--possessing and selling protected "ordinary requirements"); id. at 712 (o'connor, j., concurring) ("strict liability scienter requirement. united states court of appeals uncertain of its meaning. see kolender v. lawson, 461 u.s. 352, 357 (1983). 311 f.3d 611, 614�16 (5th cir. 2002) (citing corrow and holding misdemeanor and arbitrary enforcement," the "more important aspect" is "that a legislature `strict liability' standard for misdemeanor prosecutions under 16 u.s.c. 707(a), a or "regulatory" offenses can "impose a form of strict criminal liability." staples, � 10.12. sweet home turned not on the statutory definition of "take," but on the oil drilling operations. heater-treaters are cylindrical equipment up to 20 feet inspections, including apollo. the record does not disclose, however, that 16 u.s.c. � 703. regulations implementing the statute explain that the term supply companies. service representatives made presentations to the kansas stated when items have characteristics such that a reasonable person would expect alleged here has the same mental state requirement as the sale and possession of means liability without regard to fault; it does not normally mean liability for [i]t shall be unlawful at any time, by any means or in any manner, i. background address appellants' broader arguments about the mbta's constitutionality. traditional element of criminal violations thus was that the perpetrator committed due process requires criminal defendants have adequate notice that their conduct conduct, and therefore a scienter requirement for the takings here. nor is there 23, and "oil operators have been aware for some time that bird remains are in its findings of fact, the magistrate judge found generally that "birds more pertinent to this case, "[b]y their oil drilling equipment called a heater-treater. after a trial before a the heater-treater problem until the service's educational outreach campaign. to for which he had no knowledge of a problem. fish and wildlife argues it warned red cedar oil, campaign was ongoing.2 -5- implicit element to the statutes because strict liability would "criminalize a broad possession of dangerous items such as drugs or explosives, the supreme court has as to apollo, the record shows it had notice of the heater-treater problem whether it is framed as a presumption in statutory construction (staples, -4- "take" means to "pursue, hunt, shoot, wound, kill, trap, capture, or collect." 50 migratory birds. it is obvious the oil equipment can. simply put, the take and f.2d at 433�34; united states v. wulff, 758 f.2d 1121, 1123, 1125 (6th cir. definition here. in sweet home, "take" in the endangered species act (esa) was e.g., united states v. pitrone, 115 f.3d 1, 5 (1st cir. 1997); united states v. frequently found in heater/treaters," id. at 24 n.15. the magistrate judge did not wildlife ass'n v. u.s. forest service, 113 f.3d 110 (8th cir. 1997), to suggest the april 2007 and april 2008 inspections. walker contends the conviction 2. causation: notice of predicate acts criminalization of predicate acts that do not foreseeably result in a danger that is tymkovich, circuit judge. constitutional scrutiny. but when the items lack those special characteristics-- plaintiff-appellee, the convictions, concluding that violations of � 703 of the mbta are strict conduct that will lead to the death or captivity of protected migratory birds, louvers to form nests. once inside the heater-treaters, escape can be difficult for id. at 255�56. but the court did not do so in unequivocal terms. the court 1224 (10th cir. 2005) (internal punctuation omitted). having concluded the mbta applies a strict liability standard to the taking provide citations in support of these factual conclusions, and our review of the all are entitled to be informed as to what the state commands or forbids." liability offenses, which do not require that defendants knowingly or intentionally indeed, apollo admitted at trial that it failed to cover some of the heater-treaters' standard applies to those federal criminal statutes that are essentially regulatory. heater-treaters was "brand new to the service," and to his knowledge, no fish and in april 2007, after fish and wildlife's grace period ended, agents searched the mbta is not unconstitutionally vague. it criminalizes a range of -7- defendant-appellant. regulations defining "take," which were similar but not identical to the regulatory to the mbta's specifically prohibited acts--can constitute a crime. would lead to a crime, and whether a defendant caused a crime in a legally violation, and we are bound by its holding. see in re smith, 10 f.3d 723, 724 * 2 applying these principles to appellants' claims, we reject the contention dale walker, doing business as that decision broadly held "misdemeanor violations under � 703 are strict liability relevant, by contrast, is what knowledge the defendants had or should have had of remand for further proceedings consistent with this opinion. (10th cir. 1993) (per curiam) ("we are bound by the precedent of prior panels necessary imputed mental state to commit an mbta violation. our precedent court in staples took pains to reaffirm the basic proposition that "public welfare" questions abound regarding what types of predicate acts--acts which lead at peril of life, liberty or property to speculate as to the meaning of penal statutes. conduct is criminal, (2) due process requires that they caused an mbta violation japan, and the u.s.s.r.]. (emphasis added). not clearly erroneous unless it is without factual support in the record, or unless -20- this case requires us to consider the scope of the migratory bird treaty ass'n, 113 f.3d 110, 115 (8th cir. 1997) ("strict liability may be appropriate cmtys. for a great or., 515 u.s. 687, 713 (1995) (o'connor, j., concurring) to . . . take [or] . . . attempt to take . . . any migratory bird, any part, in 1986 added the word "knowingly" to create the felony offense of selling elisabeth a. shumaker apollo had notice of the heater-treater problem from the time of fish and walker had of the mbta's provisions is irrelevant to our analysis. what is wildlife officer had ever inspected heater-treaters before the december 2005 states, 367 f.2d 998, 1001 (8th cir. 1966). see also united states v. morgan, april 2007, he was not aware of problems with heater-treaters in the oil industry for nearly a year-and-a-half before the bird death resulting in its conviction. of the mbta for the conduct charged here satisfies due process only if publish magistrate judge, both apollo energies and dale walker (doing business as red provide fair notice of what constitutes criminal behavior. because this second by logging). freedom of the human will and a consequent ability and duty of the normal heater/treater." aplt. app. at 24 n.16. -22- acting on an anonymous tip, an agent with the u.s. fish and wildlife b. statutory construction: the mbta creates a strict liability crime present here, and therefore sweet home does not have much relevance to the unconstitutional "where a person, wholly passive and unaware of any furthermore, the mbta's language does not encourage arbitrary proscribed omissions. cf. robinson v. california, 370 u.s. 660, 665, 678 (1962) 1989). but all of those cases involved logging or pesticide application that offender's reputation,'" the supreme court has long recognized a different may also be regulated. but they may be the type of products which might raise notion. it is as universal and persistent in mature systems of law as belief in applying the preceding principles to them. apollo and walker contend the statute allows them to be criminally range of apparently innocent conduct." liparota, 471 u.s. at 426; see also individual to choose between good and evil." morissette, 342 u.s. at 250. -19- "brand new" to the service before the december 2005 inspections, aplt. app. at as a result of the investigation, fish and wildlife embarked on a public legislative intent--supported a strict liability interpretation. congress, moreover, historical elements are worth remembering. at common law, crime was a establish minimal guidelines to govern law enforcement." kolender, 461 u.s. at mens rea requirement. id. at 607�10. the court in staples held that strict every consequence, however remote, of one's conduct.").5 logic does not apply to the facts here. in particular, they cite newton county -15- 2 in part and reverse in part the district court's decision. -18- department of interior's regulatory interpretation of the word "harm"--again, not -10- (continued...) manufactured, which consists, or is composed in whole or part, of any liparota). when the mbta is stretched to criminalize predicate acts that could forecloses appellants' statutory construction, and consequently we are obliged to despite this applicable precedent, appellants challenge the extension of conduct. we conclude the district court correctly held that violations of the the education campaign apparently reached apollo but not walker. constraints on criminal statutes. on appeal, apollo and walker renew their challenges to the mbta, below with appellants' other causation arguments. (...continued) within the state--"would not be blameworthy in the average member of the conceptually, the constitutional challenge to the criminalization of these require, for guilt, that the defendant's acts or omissions be accompanied by one or in prison for a misdemeanor violation, but does not require any particular mental case presents is whether the mbta constitutionally can make it a crime to violate recognizing these notice and causation concerns, the district court upheld the regulation's broader definition of "harm." although that word is not walker testified he did not receive a service letter until june 2007--after fish capture, or collect . . . ." id. at 691 (quoting 16 u.s.c. � 1532(19)). the this amendment [to create the mbta felony offense] is intended to alter the we agree with the district court's assessment of proximate cause. central encompasses acts that lead to the taking of protected species, sweet home we emphasize that "foreseeability" in the proximate cause sense is not corrow, 119 f.3d 796 (10th cir. 1997), which squarely addressed � 703's mens "might be reasonably anticipated or foreseen as a natural consequence of the current case, inasmuch as the court upheld a definition of "take" that our holding in corrow fell in line with those of other circuits at the time of that regulate potentially harmful or injurious items"). liparota v. united states, 471 u.s. 419 (1985), the court examined a statute that such bird or any part, nest, or egg thereof, included in the terms of and those that fail this test are treated as no laws at all: they are `void for is pumped from the ground. the heater-treaters at issue in this case have vertical regardless, we find that once walker was alerted to protected birds' proclivity to violating the act after dead migratory birds were discovered lodged in a piece of appellants first contend � 703 is not a strict liability offense, but contains a personal predilections." smith v. goguen, 415 u.s. 566, 575 (1974); see id. at reversed. wrongful act." see id. at 1085. service (fish and wildlife, or service) inspected more than a dozen of apollo's secure all heater-treater cavities in which a protected bird might become trapped. independent oil and gas association and at a kansas corporation commission relatively small," and did not cause "grave damage to an offender's reputation." -16- testimony--which the fish and wildlife agent does not dispute--is that prior to service sent letters to 36 of the oil companies involved in the february 2006 text--"it shall be unlawful" to possess protected birds--did not require any defendant's conduct--whether the conduct includes affirmative actions or to all of the supreme court's cases on the due process constraints on criminal 130 s. ct. 1605, 1611 (2010) (quoting barlow v. united states, 7 pet. 404, 411 congressional intent, "express or implied," is necessary before courts can dispense was walker aware of the one television report or newspaper article about heater- "this would have remained a profoundly insignificant case to all except its that the act violates due process, with one important exception. before henry, anderson, and tymkovich, circuit judges. although the mbta was silent as to mens rea, its "plain language"--an indicia of appellants argue the potential predicate acts that may lead to mbta -8- the prohibited act with intent or, at minimum, knowledge. see 1 wayne r. 3. proximate cause as applied to appellants 2d 1070 (d. colo. 1999). in moon lake, the court considered the liability of a alan g. metzger, assistant united states attorney (lanny d. welch, united process analysis is not complete. when, as here, predicate acts which result in rea requirement. in corrow, we considered and resolved the mens rea "in an appeal from a bench trial, we review the district court's factual -24- examining the trial record, we agree apollo proximately caused the taking of court struck down a state felon registration law because "circumstances which (continued...) the contrary, a fish and wildlife agent testified bird deaths in heater-treaters were regulatory definition of "take" here is the same as the esa's statutory definition investigation admitted he did not send walker the service's 2006 letter, and unconstitutional, as is criminalizing acts based on the defendant's status. see 300 dead birds in heater-treaters, 10 of which were identified as protected species criminalized the possession of unauthorized food stamps. then, in staples the while we did not cite to staples in corrow, our reasoning was that press news service each ran a story about heater-treaters' threat to protected rea' . . . ."). a line of subsequent cases suggest several important limiting principles to lanzatta v. new jersey, 306 u.s. 451, 453 (1939). question is, at bottom, a question of causation, we will leave it to be discussed only when "the defendant acted with some degree of scienter." id. migratory birds."); mahler v. u.s. forest serv., 927 f. supp. 1559, 1579 (s.d. was fined $250 for each of his two violations. the federal district court affirmed the scienter requirement as foundational: "the contention that an injury can intelligence fair notice that his contemplated conduct is forbidden by the statute,' when dealing with hunters and poachers. but it would stretch this 1918 statute [various treaties between the united states and great britain, mexico, reasoned that while the strict liability crimes at that time technically did not -2- knowledge of the registration requirement, and the violation--mere presence and* a word present in the definition at issue here. the regulatory definition of "harm" interpreting such public welfare offenses to require at least that the defendant mbta is unconstitutionally vague because it provides inadequate notice of what encourage arbitrary and discriminatory enforcement." kolender, 461 u.s. at 357; -23- expanded their investigation in the region (southeast kansas), finding more than removed from bird deaths or takings. no reasonable person, they contend, would in sum, corrow squarely addressed the mens rea requirement for an mbta 1 lines. the court concluded proximate cause is an "important and inherent filed attempted to cabin the mbta's reach by holding the defendants must [were] completely lacking." id. at 229. the defendant did not have any state or mens rea to violate the statute. see 16 u.s.c. � 707(a). the question this some birds. c. due process: notice and causation 343 (4th cir. 1995); united states v. engler, 806 f.2d 425, 431 (3d cir. 1986); problem. see aplt. app. 203�5, 282�84. civilly or criminally.'" jerman v. carlisle, mcnellie, rini, kramer & ulrich lpa, a position to prevent it with no more care than society might reasonably expect fines and jail time would warrant a state of mind requirement. see engler, 806 contemptuously the flag of the united states"). in contrast, the mbta's terms modification that lead to the harming of protected species. id. at 692. the court criminal has played a central role in the court's statutory interpretation. first, in are strict liability crimes or noted the mbta's lack of mens rea in passing. see, and no more exertion than it might reasonably exact from one who assumed his appellants' broader argument is that the mbta violates their due process rights be on notice that those predicate acts are potentially criminal. fundamental and far-reaching in federal criminal law . . . ." morissette v. united are strict liability crimes." id. at 805. in that case, the defendant was charged international dictionary 444 (2002) (defining "collect" as "to regain control "[e]ngrained in our concept of due process." 355 u.s. at 228. in that case, the (2) if it is a strict liability crime, the act is unconstitutional as applied to their -12- june 30, 2010 apollo and walker own many heater-treaters, a device commonly used in appellants also point to cases outside our circuit to argue that corrow's is a violation of the act. trial record reveals no substantial evidence of pervasive industry knowledge about exhaust pipes--where birds previously had been found--a fish and wildlife agent breadth of the act. they argue the act applies to innocuous conduct several steps produces the injury and without which the accident could not have happened, if far beyond the bounds of reason to construe it as an absolute criminal prohibition the conviction for the april 2007 bird death is a different matter. walker's 3 approval to regulatory crimes that lacked or had a minimal mens rea element. see 569�70 (overturning the conviction of a defendant who "did publicly treat protected birds we considered in corrow. v. no. 09-3038 scheme invokes a lesser mental state for misdemeanor violations. see s. rep. no. the supreme court made clear in lambert that reasonable notice is statutes is foreseeability--whether it is framed as a constitutional constraint on does not contain a scienter requirement. -21- ind. 1996) (questioning the mbta's application to bird deaths caused indirectly � 703. the mbta also specifies a maximum penalty of $15,000 and six months amount to a crime only when inflicted by intention is no provincial or transient consequence of the wrongful act"), in re antrobus, 519 f.3d 1123, 1127 (10th company for migratory bird deaths caused by its high-voltage overhead power -9- a. standard of review circuit invalidated the mbta's prior felony provision, which had no scienter we upheld the conviction, finding it persuasive that a plain reading of � 703's protected birds could become trapped in other of the heater-treaters' cavities. (holding "status" crimes unconstitutional).4 -14- (1833) (opinion for the court by story, j.)). due process constrains the dictionary 1225 (6th ed. 1990) (defining "proximate cause" as "that which, in a the items to be regulated, strict liability for violations of those regulations passes 1 modified bird habitat in some way. while the mbta's scope, like any statute, more of the various types of fault . . . ."). the supreme court has characterized to be guilty of a crime, and (3) the district court erred in applying the law to the violation for the statute to pass constitutional muster. see black's law walker of the louver problem when, in its 2007 letter, it admonished walker to by way of background, although � 703 is a strict liability crime, a few responsibilities." id. at 256. moreover, the "penalties commonly [we]re apollo and walker make several arguments based on these principles which education campaign to alert oil producers to the heater-treater problem. the under the mbta.1 wrongdoing, is brought to the bar of justice for condemnation in a criminal require mens rea, the "accused, if he d[id] not will the violation, usually [wa]s in "showing that trapped birds are a reasonably anticipated or foreseeable 99-445, at 15 (1986), reprinted in 1986 u.s.c.c.a.n. 6113, 6128 ("nothing in because of its scope and application to their conduct. educational campaign suggests the issue was not well known. treaters yielded the carcass of a northern flicker, an mbta-protected species. oil and gas meeting. finally, a kansas television station and the associated predicate acts can be placed under the rubric of notice or causation. the inquiries fair notice question once again. in the context of laws criminalizing the vagueness.'") "although the doctrine focuses both on actual notice to citizens "significant habitat modification or degradation." sweet home, 515 u.s. at 691. statute define the criminal offense with sufficient definiteness that ordinary or killing of migratory birds, we must address appellants' additional arguments confronted with a new category of crimes for which no mens rea was required. in iii. conclusion ("proximate causation is not a concept susceptible of precise definition. . . . we language, which] allows policemen, prosecutors, and juries to pursue their limiting feature" to the mbta, and that liability would attach where the injury immediate parties had it not been so tried . . . as to raise questions both unregistered firearm required a scienter element (which it did). the injury be one which might be reasonably anticipated or foreseen as a natural foreseeability and duty.") (internal citations omitted); see also id. at 696 n.9, 700 we decided corrow as fatally undermining its holding. they contend three years convicted without fair notice of what conduct constitutes a crime. their notice that is, when persons would not reasonably foresee the items' regulation--strict with illegal possession of protected golden eagle and great-horned owl feathers. treaters. given the state of this record, we agree no reasonable person would the court's proximate cause holding relied heavily on a district court case act. the statute does not supply a mens rea requirement. appeal from the united states district court property--in april 2007--he did not "know anything" about the heater-treater (d.c. no. 6:08-cr-10111-01-jtm and 160, and the fact that the service did not recommend prosecutions during its facts in this case. c.f.r. � 10.12.3 appellants' contention is foreclosed by our holding in united states v. particular state of mind or scienter. id. we relied on the fact that "[l]ike other heater-treaters belonging to apollo and walker. the search of apollo's heater- industries," argued that "harm" in the esa could not include acts such as habitat strict liability." staples, 511 u.s. at 607 n.3. created a poster describing the problem, which it distributed to oil equipment then proximate cause can be established."), babbitt v. sweet home chapter of here. aplt. app. at 24 n.16. in other words, the court found the government had appellants did not develop this argument below, but due process suggests some ("in balint the court was dealing with drugs, in freed with hand grenades, in this found "`proximate causation' or `legal causation' beyond a reasonable doubt" by lambert v. california, 355 u.s. 225, 228 (1957) (striking down as heater-treaters included movable louvers that can be opened to access heating doing hand." morissette v. united states, 342 u.s. 246, 251 (1952). a wichita, kansas for appellee. high and more than three feet wide that separate oil from water when the mixture for the district of kansas equipment at the base. birds can crawl into the exhaust pipes or through the misdemeanor violations. apollo was fined $1,500 for one violation, and walker as to their constitutional due process claims, appellants argue: (1) the constitutional limits on the penalties contained in strict liability crimes. severe clerk of court have noted its `functionally equivalent' alternative characterizations in terms of another important consideration is the severity of punishment. the respondents in sweet home, parties "dependent on the forest products inspection. aplt. app. at 116 including to "pursue, hunt, take, capture, [and] kill . . . ." 16 u.s.c. � 703. the 511 u.s. at 606. the supreme court in babbitt v. sweet home chapter of cmtys. for a colautti v. franklin, 439 u.s. 379, 390 (1979)) ("elemental to our concept of due according to a government witness at trial, the issue of bird deaths in defendant-appellant. f. supp. 1502 (d. or. 1991); united states v. rollins, 706 f. supp. 742 (d. idaho 5 substantial due process questions if congress did not require . . . `mens hogan, 89 f.3d 403, 404 (7th cir. 1996); united states v. boynton, 63 f.3d 337, necessary to prove that a defendant violated the migratory bird treaty act with actions criminalized by the mbta may be legion, but they are not vague. mbta violations are strict liability crimes). but see newton county wildlife have recently said that proximate causation `normally eliminates the bizarre,' and � 703 does not apply to activities beyond purposeful hunting or possession of president acknowledged he received the service's 2006 letter. walker, however, 1985); holdridge v. united states, 282 f.2d 302, 310 (8th cir. 1960). for united states court of appeals that the act is unconstitutional facially and as applied to the conduct in this case. are capable of definition without turning to the subjective judgment of d.c. no. 6:08-cr-10112-01-jtm) liability becomes constitutionally suspect. see int'l minerals, 402 u.s. at 564�65 comports with our holding. appellants are two kansas oil drilling operators who were charged with -17- tenth circuit cir. 2008) (tymkovich, j., concurring) ("if the intervening cause was foreseeable inc. v. city of olathe, 248 f.3d 1267, 1274 (10th cir. 2001). "a finding of fact is statute does not provide fair notice of prohibited conduct because of the sheer because of the multiplicity of actions the statute's language criminalizes. second, 357�58. v. no. 09-3037 that case. at least seven other circuits either had held that mbta misdemeanors exhaust pipes as fish and wildlife had suggested after the december 2005 -6- claiming (1) it is not a strict liability crime to take or possess a protected bird, or, apollo was convicted of one violation of the mbta based on the april defendants proximately caused the harm to protected birds. after carefully migratory birds. see also citizens interested in bull run, inc. v. edrington, 781 might move one [subject to the law] to inquire as to the necessity of registration familiar to all minds, that ignorance of the law will not excuse any person, either collect." 50 c.f.r. � 10.12. they say the linguistic differences imply an active appellants make one statutory and several due process arguments. their of walker's heater-treaters. although walker had placed metal caps on the and wildlife searched his heater-treater for the first time. it is walker's court."). as a matter of statutory construction, the "take" provision of the act absent en banc reconsideration or a superseding contrary decision by the supreme court examined one which criminalized the possession of certain firearms. 511 based on these cases, we agree with the district court's legal conclusion "proximately cause" the mbta violation to be found guilty, and that they did so we see no express or implied limitation to our holding in corrow. in fact, and hold that the mbta requires a defendant to proximately cause the statute's causation (lambert, robinson) and mental state (international minerals), or corporation" is "guilty of a misdemeanor" if they "violate any provisions" of the of"--similar to the regulations' definition of "possession"). in short, the conduct bird feathers. for support, they point to fish and wildlife's regulations that protected birds, but with respect to one of his two convictions, walker did not. enforcement--at least as far as vagueness is concerned. the arbitrariness at logic of the opinion lends itself to carving out an exception for different types of more recently, the role of notice for conduct not reasonably foreseen as encompassed "an act which actually kills or injures wildlife," including before corrow, the supreme court in staples v. united states, 511 u.s. 600 people can understand what conduct is prohibited and in a manner that does not nest, or egg of any such bird, or any product, whether or not states attorney, with him on each brief), office of the united states attorney, mbta are strict liability crimes. but we hold that a strict liability interpretation kill provisions of the act are not outside the holding of corrow. id. (citing united states v. engler, 806 f.2d 425, 432 (3d cir. 1986) (relying on consequently, exercising jurisdiction under 28 u.s.c. � 1291, we affirm capture, [or] kill" birds protected by several international treaties. 16 u.s.c. (at least since 1600) the different common law crimes have been so defined as to supreme court "avoided construing criminal statutes to impose a rigorous form of or possess migratory birds, and, under that statutory construction, they lacked the second, criminalizing acts which the defendant does not cause is felonies carry a "severe penalty and grave damage to [the defendant's] except that the regulatory definition omits to "harass" and "harm." see 50 c.f.r. however, even when a statute is specific about which acts are criminal, our due requirement. see wulff, 758 f.2d at 1125. in wulff, the court reasoned that regulatory acts where the penalties are small and there is `no grave harm to an by the court's order dated october 29, 2009, these two cases are inspection. in effect, apollo knew its equipment was a bird trap that could kill. its provisions absent knowledge or the intent to do so. failed to bird-proof the heater-treaters. than detaining or controlling them. see also webster's third new 2007 bird death. walker also was convicted of two violations based on the april case"). put differently, the concept of causation limits criminal sanctions to a issue before the april 2007 inspection, and he was not a member of the trade findings for clear error and its legal conclusions de novo." keys youth servs., crimes." corrow, 119 f.3d at 805 (emphasis added). nothing in the structure or association to which the service advertised the oil field equipment problem. nor act (mbta or act). the act declares it a misdemeanor to "pursue, hunt, take, united states of america, define "possession" as "detention and control," and "to take" as to "capture, or 4 government officers. we thus reject appellants' vagueness contention. example, based on morissette's description of strict liability crimes, the sixth conclude that the exhaust pipes of a heater-treater would lead to the deaths of (1994), cast doubt on the presumption of strict liability when a statute omits a for the foregoing reasons, we affirm in part, reverse in part, and corrow to the conduct alleged here. they reason our holding in corrow was regarding whether a defendant was on notice that an innocuous predicate act birds potentially dying in their heater-treaters. plaintiff-appellee,