A federal magistrate judge has found a Kansas oil man and an oil firm guilty of violating the Migratory Bird Treaty Act for not properly screening equipment to protect birds.

In a decision made public Monday, U.S. Magistrate Judge Karen Humphreys found that Apollo Energies Inc. and Dale Walker, doing business as Red Cedar Oil, did not comply with a federal law that requires them to secure oil field equipment to keep birds from getting trapped in exhaust stacks and openings.

The case stems from two search warrants the agency executed at sites in Barber County.

Apollo Energies and Walker were found guilty of one misdemeanor count for the deaths of two Northern flickers and an Eastern bluebird.

In addition, Walker was found guilty of a second count for the death of a common grackle at another site.

“The spooky part of it is that this can happen everywhere,” defense attorney Stephen Robison said Monday.

“It really could happen as a bird flies into your front window, it could happen in your chimney, it could happen in the roof vent of any building in Wichita, Kan., it could happen in grain bins all over the state, and we are at the mercy of the Fish and Wildlife Service,” he said. “That is the upsetting part.”

Although these prosecutions are apparently the first in the nation concerning heater treaters, the judge wrote in her ruling, the government has pursued other cases for birds found trapped in oil pits and storage tanks.

A heater treater is a device which uses heat to separate oil, gas and salt water pumped from an oil well.

Humphreys said while the U.S. Fish and Wildlife Service didn’t start investigating bird deaths from oil production heater treaters until 2005, oil operators had known about such bird deaths for some time.

In court filings, the defense had argued that Apollo Energies had instructed employees to place mesh screens over exhaust stacks of heater treaters or remove the burners but that some heater treaters were overlooked. Defense attorneys also argued that Walker was unaware of the problem and could not be held criminally liable.

Wildlife regulators in February 2006 inspected 150 heater treaters over two days to determine the extent of bird deaths caused by them and found the remains of 300 birds, including 10 migratory birds, in 65 heater/treaters.

Those findings prompted the agency to begin a program in March 2006 to advise oil producers of the problem and give them until Jan. 1, 2007, to modify their equipment.

The agency also advised producers that inspections would be renewed and that charges would be pursued under the Migratory Bird Treaty Act for violations discovered after Jan. 1, 2007, according to court documents.

Sentencing is set for Oct. 15. Violations of the Migratory Bird Treaty Act carry a maximum penalty of up to six months in federal prison and a fine of $15,000.