Criminal Liability for a Strict-Liability Offense Requires Fair Notice and Proximate Cause

United States v. Apollo Energies, Inc., ___ F.3d ___ , 2010 WL 2600502 (10th Cir. 2010) (Kan)

Violation of the Migratory Bird Treaty Act (MBTA) is a strict liability crime, requiring no mens rea to commit an offense. However, due process is satisfied in this case only if defendants–in this case, oil and gas producers whose exhaust equipment sometimes traps and kills migratory birds sheltering or nesting there–proximately caused the harm to protected birds. Two key concepts in the COA’s analysis: (1) fair notice that an act is criminal is especially important in the case of strict liability crimes. “When, as here, predicate acts which result in criminal violations are commonly and ordinarily not criminal, we must ask the fair notice question once again;” (2) criminalizing acts which the defendant does not cause is unconstitutional.

The COA rules that the MBTA is not vague and gives fair notice. Although linked, notice and proximate cause are distinct. In the context of this case, there must be fair notice that a certain predicate act might cause a violation of the MBTA. In this case, defendant Apollo had notice that its equipment caused bird deaths because the government conducted an education program for over a year with producers, without prosecuting, informing them how to adjust equipment. Apollo did so for some but not all of its equipment. It was prosecuted for deaths occurring in the period after the education campaign. It had notice that not fixing its equipment was causing bird deaths. The COA affirmed its convictions. Walker had no notice for a count that preceded its receiving information about how to protect birds, so that count was reversed. The count for deaths after being educated was affirmed.