Judge tosses case over birds, oil pits

A federal judge ruled Tuesday that oil companies shouldn’t face criminal charges for the deaths of a half-dozen ducks in waste disposal pits, saying that prosecutors went too far in applying a law that protects migratory birds

BISMARCK — A federal judge ruled Tuesday that oil companies shouldn’t face criminal charges for the deaths of a half-dozen ducks in waste disposal pits, saying that prosecutors went too far in applying a law that protects migratory birds.

The deaths of the birds, which mistook the pits for water ponds and were covered in oil waste, were an “incidental or unintended effect” of oil production and could not be compared to hunting or poaching, U.S. District Judge Daniel Hovland ruled.

Hovland on Tuesday dismissed misdemeanor charges against Brigham Oil & Gas LP, Newfield Production Co. and Continental Resources Co., and rejected separate plea agreements federal prosecutors reached earlier with three other oil companies.

The Migratory Bird Treaty Act covers more than 800 types of birds, including pigeons, sparrows and crows. Brigham, Newfield and Continental were accused of causing the deaths of six ducks and one say’s phoebe, a tiny, rust-bellied songbird.

Federal prosecutors’ interpretation of the law would offer “unlimited potential for criminal prosecutions,” given the number of ways migratory birds can inadvertently be killed by humans, the judge said.

“To be consistent, the government would have to criminalize driving, construction, airplane flights, farming, electricity and wind turbines ... and many other everyday, lawful activities,” Hovland wrote.

Seven companies were initially charged last August after federal wildlife officials discovered 28 dead birds in uncovered waste pits during May and June.

Prosecutors later dismissed charges against ConocoPhillips Co., of Houston, and reached plea agreements with the remaining three — Petro-Hunt LLC, of Dallas; Slawson Exploration Co. Inc., of Wichita, Kan.; and Fidelity Exploration & Production Co., a Denver-based unit of MDU Resources Group Inc., which has its headquarters in Bismarck.

Under the agreements’ terms, the companies were to make separate contributions to a wildlife foundation. In separate orders filed Tuesday, Hovland rejected the three plea agreements.

Harold Hamm, Continental Resources’ chairman and chief executive officer, called the charges “patently wrong” and praised Hovland’s ruling as “a great victory for common sense.” Continental did not consider settling the case, he said.

“We didn’t rig up an $8 million drilling rig out there intending to take wildlife,” Hamm said. “We’re certainly not out there hunting birds.”

North Dakota’s U.S. attorney, Tim Purdon, said he would be considering whether to appeal Hovland’s decision.

“The judge points out in his order that there’s case law on both sides of this issue,” Purdon said. “We will review our options in light of that.”

Purdon said the charges against ConocoPhillips were dismissed in part because the company itself reported the potential violation and closed its waste pits. The other dead birds were discovered by U.S. Fish and Wildlife Service agents.

Hamm and other critics of the prosecution have pointed to the case as evidence of what they said was President Barack Obama’s animus toward oil and coal production. The president has promoted alternative fuel sources, such as wind and solar power.

“They say, we need to get off fossil fuels, and we’re against fossil fuel use,” Hamm said. “He certainly wasn’t promoting the development of oil and gas ... Basically, this thing started with a threat to the industry. They were going to come get us. They were going to come after us.”

Purdon said the case was filed on its own merits.

“This was a case that was handled ... in North Dakota, and the professional prosecutors and professional law enforcement agents that worked on this case handled this case like they handle any other case,” Purdon said.

North Dakota’s Industrial Commission, which regulates oil and gas production, is taking steps to cut down the number of waste pits. More than 2,000 were dug last year as the state’s oil output jumped to more than 500,000 barrels daily. They can be 15 feet deep and the size of a swimming pool.

State rules now allow oil drilling muds, which cool the oil drill bit, and other liquid waste to be dumped into the pits, along with rock chips and other wastes.

If a pit is left open for more than three months after drilling is finished, it must be fenced and have a net placed over its surface. Pits must be filled in and the land reclaimed within a year.

The Industrial Commission is considering new rules that would ban most liquid waste dumping into open pits, although they could still be used to dispose of rock chips and other solid substances.

“We’re trying to go to elimination of (waste pits) entirely, and we’ll get there,” Hamm said. “It’s been a process, and over time, we’ll get there. We’re good stewards of the land.”