“Dodo Of The Year” Federal Prosecutor Thinking Of Appealing Dead Birds Case

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Written By:
Rob Port

Feb 7, 2012
12:35pm

North Dakota US Attorney Tim Purdon – a partisan appointment directly from the Democrat National Committee to a non-partisan position – recently saw the criminal charges he filed against oil companies operating in the state over dead birds (with a couple of the companies being charged for the death of no more than one bird) dismissed in federal court.

It was a humiliating loss for the partisan hack, one that got him named “Dodo of the Year” by the Wall Street Journal, but he’s not taking it laying down. Apparently, he’s thinking about appealing:

The federal courts for North Dakota expressed their hostility to such far-reaching claims more than a decade ago. In 1997, the Eighth Circuit Court of Appeals held that logging activity does not violate the MBTA. As the federal appellate court explained, deeming “logging” a “taking” of migratory birds “would stretch this 1918 statute far beyond the bounds of reason” and would lead to construing the MBTA “as an absolute criminal prohibition on conduct, such as timber harvesting, that indirectly results in the death of migratory birds.”

In the Brigham Oil & Gas case, District Judge Daniel L. Hovland made it clear that the MBTA also did not apply to drilling fluid storage and dismissed the government’s charges. The use of reserve pits was declared to be “legal, commercially-useful activity” that cannot be considered criminal under the MBTA. Judge Hovland noted that if the government’s interpretation were correct, then “many everyday activities become unlawful – and subject to criminal sanctions.” The court noted that, if the government’s reading of the statute were correct, anything from driving a car to owning a cat could result in criminal prosecution. Indeed, under the government’s position it could easily be argued that baseball star Randy Johnson should have been thrown in jail for beaning a dove (if it was, a covered migratory dove) with a fastball while pitching in a spring training game. The Wall Street Journal has suggested that this reflects the Obama Administration’s bias against oil and gas companies, because the government’s own statistics show that thousands of birds are killed in wind turbines each year, but there appear to be no active prosecutions against those corporations.

Although it’s still early in 2012, the WSJ has already dubbed U.S. Attorney Purdon “Dodo of the Year.” But unlike the dodo, Purdon says he won’t go away just yet—he is considering an appeal of the case. Purdon was appointed by President Obama in 2010, a move that was immediately questioned as favoring politics over experience.

Keep in mind that if Purdon wins this case, and the federal courts adopt his ludicrous definition of what constitutes a violation of the Migratory Birds Treat Act, anyone who hits a duck with their car would be a criminal.

In a more just world, Purdon wouldn’t be appealing this case. He’d be resigning in shame after such a flagrant abuse of federal law.

But this isn’t a just world. This is a world in which anti-oil politicians use the courts to advance their political agenda.