An article on the Forbes website on Jan. 18 noted that Judge Daniel Hovland of the U.S. District Court in North Dakota dismissed criminal charges against three oil companies operating in the Bakken shale play for killing six birds in slush pits. Brigham Oil & Gas, Newfield Production and Continental Resources were the target of the charges brought by the U.S. Dept. of Justice on behalf of the U.S. Fish & Wildlife Service. It is a good example of the law of unintended consequences, which seems to be engaged frequently when government agencies go after one aspect of an issue without looking at the broader picture. It sometimes looks as though these agencies are trying to make new laws rather than enforce the ones on the books. Hovland’s ruling in this particular case provides an example of how far reaching some of these agencies’ decisions can go awry. The suit was based on the Migratory Bird Act of 1918. The case was based on four mallards, one northern pintail, one red-necked duck and a say’s phoebe that were found in the slush pits. As the judge pointed out, the Migratory Bird Act is too vague to be the basis for criminal charges. As Forbes noted, he doubted that Congress meant to criminalize the deaths of birds by drilling operations. The act was originally written to address poaching and out-of-season “taking” or “killing” migratory birds, not the accidental killing of those birds. If the accidental killing of birds in slush pits is criminal, then there are a lot of law-breakers in the United States. Cutting of trees and brush would be prohibited since that could kill birds. Anyone driving a car that killed a bird would be guilty. Cat owners, especially, would be liable for all those dead birds. And, those nasty wind energy farms would have to be shut down immediately. Forbes quoted the same U.S. Fish & Wildlife Service on just how many birds are killed by human activity every year. About 100 million birds are killed by crashing into windows. Up to 174 million are done in by power lines. Another 60 million fall victim to cars. Those wind turbines claim 33,000 birds per year. And cats? Those felines put an end to millions of birds each year. The article added that 72 million birds die each year due to pesticides while oil field slush pits kill about 2.0 million. Yet, that same government agency went after criminal charges against three oil companies for six birds. It makes you wonder what the priorities are for those folks. For the oil companies, it was very costly and time-consuming to have to defend the case. Did the Justice Department really consider all the implications of this suit? Was this a wise use of the department’s resources? How many millions of lawsuits would have been filed if the decision was upheld? And would the federal government put someone in jail for the accidental death of a few birds? It boggles the mind. Thankfully, the judge did look beyond the immediate implications of the lawsuit. There are examples of the law of unintended consequences from nearly every government agency -- the Environmental Protection Agency, Minerals Management Service (BOEMRE) and the Internal Revenue Service come to mind most quickly. Given the need for regulation and enforcement, how can our government agencies be held accountable for addressing the most pressing needs? When you hear about these situations, it is almost like watching Don Quixote jousting with windmills. There are those bird-killing windmills again. Contact the author, Scott Weeden, at sweeden@hartenergy.com.