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United States v. FMC Corp.

United States Court of Appeals for the Second Circuit

November 30, 1977, Argued ; February 23, 1978

Docket No. 77-1372, No. 408 - September Term, 1977

Opinion

 [*903]  MOORE, Circuit Judge:

This is an appeal from a judgment of conviction entered after a jury trial against FMC Corporation ("FMC"), for violation of the Migratory Bird Treaty Act, by killing [**2]  92 migratory birds in violation of 16 U.S.C. § 703. The jury convicted defendant FMC of 18 counts of the 36 counts in the indictment.

The indictment charged that FMC between April 23, 1975 and June 25, 1975 (exact dates unknown) "did unlawfully by means of toxic and noxious waters kill migratory birds included in the terms of the conventions between [specifically naming treaties between the United States of America and Great Britain (1916), the United Mexican States (1936), and the Government of Japan (1972)], all in violation of Title 16, United States Code, Section 703".

Each count of the indictment specifies the date of discovery of the alleged killing, the number of birds killed, ranging from 1 bird in each of 24 counts to 2 to 26 birds in the remaining 12 counts. The varieties of birds were described in the indictment by their ornithological and more common titles and included the Eremophila alpestris (Horned Lark), the Butorides virescens (Green Heron) and Brata canadensis (Canada Goose). They will be referred to herein as "birds".

Defendant was fined $100 on each of the 18 counts, but the fine was remitted on all but 5 counts.

 [**3]  The 18 counts selected by the jury for conviction covering alleged killings between April 25, 1975 and June 9, 1975 and the 18 counts for acquittal between April 23, 1975 and June 25, 1975, present no clue useful on appellate review unless there were jurors disposed favorably to the Ringbilled Gull and Shortbilled Dowicher (Counts 10 and 13) and less favorably to the Least Sandpiper and the Migratory Fringillid (Counts 8 and 36). Equally baffling is the trial court's remission of the fines except for 5 birds found dead between April 25 and May 7 (counts 3, 4, 5, 7 and 9), because fines were imposed on 18 counts between April 25 and May 29.

So far as pertinent, ] the Migratory Bird Treaty Act ("MBTA") provides:

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572 F.2d 902 *; 1978 U.S. App. LEXIS 12467 **; 11 ERC (BNA) 1316; 8 ELR 20326

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. FMC CORPORATION, Defendant-Appellant

Prior History:  [**1]   Appeal from a judgment of the District Court for the Western District of New York, Honorable John T. Curin, Judge, convicting FMC Corporation, after a jury trial, of unlawfully by means of toxic and noxious waters killing migratory birds, in violation of 16 U.S.C. § 703. FMC Corporation was fined $100 on each of eighteen counts, but the fine was remitted on all but five counts.

Disposition: We affirm.

CORE TERMS

killing, pond, carbofuran, counts, migratory, manufacturing, fine, indictment, cases, strict liability, pesticide, chemical, dead

Environmental Law, Natural Resources & Public Lands, Fish & Wildlife Protection, International Trade Law, Trade Agreements, Environmental Provisions, General Overview, Criminal Law & Procedure, Acts & Mental States, Mens Rea, Specific Intent, Knowledge, Business & Corporate Compliance, Governments, Agriculture & Food, Federal Food, Drug & Cosmetic Act, Governments, Recklessness, Torts, Strict Liability, Abnormally Dangerous Activities, Intentional Torts, Prima Facie Tort, Real Property Law, Torts, Inherently Dangerous Activities