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Federal judge: Bird law doesn't apply to oil pits

BISMARCK (AP)-- 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 CEO, 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."

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