AUSTIN, Texas -- If your cat killed a bird or one flew into a wall of your house and died, you'd be mighty surprised if a federal prosecutor showed up and said he was putting you in jail for that.
That's basically what an Austin-based businessman faced over two dead ducks who met their demise hundreds of miles from him in North Dakota.
Drill sites contain waste pools next to them, and sometimes, birds land in them and drown. Oilman Bud Brigham, head of Brigham Resources, found out a federal prosecutor was on the lookout for such incidents.
"A Justice Department appointee apparently chartered a helicopter to go search for this," Brigham told CBN News, "and flew around to all the different well sites in western North Dakota."
That's where oilmen like Brigham have kicked off an economic boom, going after the oil in the Bakken formation.
Those in the helicopter found 28 dead birds in the waste pools of seven oil and gas companies, and the prosecutor used the 1918 Migratory Bird Treaty Act to charge the companies with criminally killing the 28 birds.
When Congress passed the act, it was intended just to stop poachers or hunters deliberately killing migratory birds. But that didn't stop this federal prosecutor going after Brigham and the other oil executives.
In Brigham's case, he and his company were charged with killing two ducks.
"And for two mallards there were cash fines, but also, as CEO, I could potentially serve two consecutive six-month terms in prison," Brigham said.
Vikrant Reddy fights for criminal and prison reform as a policy analyst with the Center for Effective Justice in Austin.
"It just seems completely absurd to think that you would lock somebody up for something like that," he said.
"Here I am a father of five with children from 8 to 17 years old, and to think that I could possibly go to prison for this for up to a year, it was very surreal," Brigham said.
Judge Rules Case 'Absurd'
The judge in the case quickly realized if the government was allowed to imprison these oil execs, it could theoretically put away any American connected to a migrating bird's death.
So Judge Daniel Hovland tossed out the case, writing it "would yield absurd results" like criminalizing the following:
- Cutting brush and trees
- Owning a building with windows
- Owning a cat -- all of which end up killing birds.
The government wanted punishment for 28 bird deaths, but Judge Hovland pointed out power lines kill as many as 174 million.
"To be consistent, the government would have to criminalize driving, construction, airplane flights, farming..." the judge wrote.
Reddy said if the case had been successfully prosecuted, "Every company that has power lines, every person with a home that a duck accidentally flies into, they would be criminally culpable."
Some have questioned why the government would go after these oilmen and not their fellow energy producers in the wind industry, where turbines kill up to 250,000 birds a year.
Reddy speculated it could be because the oil industry isn't green enough for the Obama administration.
"There's been some criticism that perhaps the presidential administration isn't as enthusiastic about all the drilling as the drillers themselves and the people of North Dakota frankly," he said.
"It does seem there's hostility towards us," Brigham said. "There was an EPA administrator here in north Texas who talked about crucifying the oil and gas industry to set an example."
One Nation Under Arrest
Paul Rosenzweig, co-author of One Nation Under Arrest, described to CBN News how it could happen.
"Just as individuals can be subjected to arbitrary and capricious prosecution so, too, companies can be," Rosenzweig warned. "Often they are disfavored companies who make products that somebody among the authorities think should not be made even though they are perfectly legal."
And with so many federal laws on the books and more being added all the time, the government can conceivably prosecute almost any citizen or industry it wants.
"On average, every American probably commits about three felonies a day," Reddy said.
Rosenzweig pointed out, "Lavrentiy Beria, the infamous leader of the KGB, used to say, 'You show me the man and I'll find you the crime.'"
Brigham calls the way the feds have targeted him and tried to put him away un-American.
"We're being attacked by our own government," he charged. "And it is startling and it is frightening."
Meanwhile, a favored industry like wind gets away with literally littering the landscape with bird corpses.
Brigham said some in government are even proposing giving "wind turbines the freedom to kill the bald eagle, the national bird. And here they go after us for a couple of mallards."