Federal charges that their oil pits killed 28 ducks and other protected birds have been dropped against three oil companies. Plea agreements against three others were rejected.

In a ruling filed Tuesday, U.S. District Court Judge Daniel L. Hovland found that criminalizing commercial activity in oil fields of North Dakota "was never contemplated under the Migratory Bird Treaty Act enacted by Congress in 1918."

Initially, seven companies were charged.

Hovland dismissed the charges Tuesday against Newfield Production Co., Woodlands, Texas; Brigham Oil & Gas, L.P., Austin, Texas; and Continental Resources Inc., Enid, Okla.

The case against one other oil company, ConocoPhillips of Houston, was reduced to an administrative fine earlier because the company reported a bird death.

Three other companies, Petro-Hunt LLC of Dallas; Slawson Exploration Co., of Wichita, Kan.; and Fidelity Exploration and Production Co. of Denver, pleaded guilty and agreed to pay fines. Their plea agreements were rejected by Hovland.

The companies won't have to pay the fines.

U.S. Attorney Timothy Purdon said the three companies that pleaded guilty had cooperated with the investigation and voluntarily corrected the problems.

Purdon said Tuesday he is still reviewing the judge's order.

North Dakota regulations now allow oil companies to dump liquid waste, which can include diesel fuel, ash and other chemicals, into pits while oil wells are being drilled.

If those pits are left open more than three months after the well is drilled, it must be fenced off with a net covering its surface and filled in and reclaimed within a year.

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State regulators have proposed changes that would ban the dumping of liquid waste. A hearing on the changes is scheduled for 9 a.m. Monday at the state Capitol.

Harold Hamm, majority owner of Continental Resources, said Tuesday the process has been costly and time-consuming and he was pleased with the judge's decision.

Hamm said he feels his company was somewhat bushwhacked by the charges and threats from the U.S. attorney's office before the charges were filed.

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"We think it's a good decision," Hamm said of Hovland's ruling. "We have been good stewards of the land. We certainly follow the rules very closely to minimize every impact and will in the future."

In the past, all seven companies had been fined for violating the migratory bird law.

In his ruling, Hovland wrote that the law can be broadly interpreted and have unlimited potential for criminal prosecution.

The U.S. Fish and Wildlife Service has recognized "countless" ways in which legal acts could result in the deaths of migratory birds, Hovland wrote.

He said all parties involved acted in good faith and there is case law supporting legal arguments on both sides.

"It would not be feasible to prosecute all or even most of those persons or entities who technically violate the Migratory Bird Treaty Act," the judge wrote.

That would be best left to the North Dakota Industrial Commission, Hovland wrote.

(Reach reporter Brian Gehring at 250-8254 or brian.gehring@bismarcktribune.com.) 

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Reach reporter Brian Gehring 250-8254 or brian.gehring@bismarcktribune.com.