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Groups Sue U.S. for Failure to Prosecute Under the Endangered Species Act

Poachers Kill Protected Wildlife, but Get Away Scott Free

Additional Contact:

Judy Calman | New Mexico Wilderness Alliance | 505-843-8696 x 102 | judy@nmwild.org

Tuscon, AZ.  The United States Department of Justice (DOJ) has failed to prosecute dozens of individuals who have killed endangered animals protected by the federal Endangered Species Act (ESA), prompting WildEarth Guardians and the New Mexico Wilderness Alliance to sue the federal prosecutorial agency.  In their lawsuit, the groups ask the federal court to invalidate the so-called “McKittrick Policy” which has led to this systemic failure to prosecute. 

Under its “McKittrick Policy,” the DOJ has taken the wrongful position that it can only prosecute cases for the illegal killing of ESA-protected species when it can prove that the killer specifically intended to kill an endangered species.  The DOJ very rarely – if ever – prosecutes an individual for illegally killing a protected animal if the killer claims that the killing resulted from a case of “mistaken identity.” 

For example, during the tenure of DOJ’s policy 48 Mexican wolves were illegally shot in the wild.  Only two of these incidents resulted in a federal prosecution for illegal “take”  (harm or killing) under ESA. The groups believe that the McKittrick Policy has emboldened individuals who are opposed to the conservation of endangered species to disregard the law, as they know that an illegal shooting will almost certainly not lead to federal prosecution. For the Mexican wolf, the effects of the Policy have been cataclysmic:  illegal shooting is by far the highest source of mortality for the free-roaming Mexican wolf population.

“Dozens of highly-endangered Mexican wolves have been illegally shot, and in almost every case I’ve reviewed, poachers claimed they thought they had shot a coyote,” said Judy Calman, staff attorney for New Mexico Wilderness Alliance. “Despite these killings, the DOJ has failed to prosecute to protect the lobos,” she added. 

The lawsuit claims that the Mexican Wolf Rule that issued pursuant to the ESA provides for “vigorous enforcement” of such illegal killings, and prosecutors neither need to prove that endangered-wildlife killers had actually biological knowledge of the species they killed, nor an intention to purposely kill endangered wildlife. The conservation groups seek the invalidation of the “McKittrick Policy” based on its inconsistency with Congress’ plain intent and twenty-five years of case law which protects endangered species from bad actors.

“The DOJ has lost its moral compass and abdicated its duties to protect America’s greatest national treasures: Mexican wolves, grizzly bears, and California condors,” said Wendy Keefover, Director, Carnivore Protection Program for WildEarth Guardians. “The policy means that people can commit the most well-planned assassinations of America’s most endangered animals and then literally get away with murder,” she added. 

The DOJ’s “McKittrick Policy” stems from a change in jury instructions by DOJ after the agency had won its prosecution of wolf killer, Chad McKittrick of Montana, who shot one of the first restored gray wolves to the Northern Rockies. While McKittrick claimed mistaken identity, the jury convicted McKittrick on three counts of poaching, and the federal appeals court upheld the conviction. When McKittrick sought to have the case heard by the United States  Supreme Court, however, the DOJ distanced itself from the criminal enforcement provisions of the ESA – as they have been written by Congress and interpreted by the Courts – by adopting a policy which sets the bar so high for prosecution that criminal enforcement of illegal killings has come to a grinding halt.   

“While the DOJ dawdles, Mexican wolf and other endangered species populations dwindle, and we plan to change that,” asserted Calman. 

# # #

View the Complaint

Read today’s Los Angeles Times’ Story

http://www.latimes.com/news/local/la-me-0530-endangered-species-lawsuit-20130530,0,4576062.story

Read the 2003 Los Angeles Times’ Story

http://articles.latimes.com/2003/jun/22/nation/na-species22

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Fast Facts about the “McKittrick Policy”

Why the Department of Justice Doesn’t Prosecute 

Individuals Who Kill Endangered Wildlife

Dozens of individuals who have killed endangered animals have gone unprosecuted by the Department of Justice (DOJ), prompting WildEarth Guardians and the New Mexico Wilderness Alliance to sue the federal prosecutorial agency for its 1998-policy which results in very few prosecutions of these criminals. Under its “McKittrick Policy,” the DOJ has taken the wrongful position that it can only prosecute cases where it can prove that the killer had intentionally killed an endangered species.  Under the policy cases involving “mistaken identity” – i.e., where the killer claims that he misidentified the animal before he killed it – individuals are very rarely – if ever – prosecuted for these illegal killings. 

Despite this policy, the Mexican Wolf Rule for instance specified that it was the intent of the U.S. Fish and Wildlife Service to provide for “vigorous enforcement” of such illegal killings under the Endangered Species Act (ESA), and Congress drafted the ESA to assure that the DOJ can prosecute illegal killings of protected wildlife even if the killer misidentified – or claims to have misidentified – the species that he killed.  Numerous federal appeals courts across the country have confirmed that an individual may be prosecuted – and convicted – for an illegal killing, even if the government cannot prove that the killer had a specific intent to kill an ESA-protected species.  The McKittrick Policy unravels the protective mechanisms of the ESA, and places endangered species squarely in the cross-hairs of unscrupulous individuals opposed to wildlife conservation.

With specific reference to shooting Mexican wolves, the U.S. Fish and Wildlife Service’s (FWS’s) Final Rule states that shooting a reintroduced wolf by mistake – upon the belief that the target animal was a coyote or some other non-protected species – would not constitute a defense to criminal liability under the ESA: “Notice of general wolf locations will be publicized. Hunters (and others) who might shoot a wolf are responsible to identify their targets before shooting.” 63 Fed. Reg. 1752 (1/12/98).

For years, the FWS has grumbled about this policy in documents the groups obtained. In an internal June 29, 2000 FWS memo, a law enforcement official sardonically stated: “As soon as word about this policy gets around the west the ability for the average person to distinguish a grizzly bear from a black bear or a wolf from a coyote will decline sharply. Under this policy a hen mallard is afforded more protection than any of the animals listed as endangered.”

The DOJ’s position is akin to district attorneys rescinding speeding tickets issued by traffic cops when the speeder claims he or she believed the legal speed limit was greater than what was posted, and that he or she had no intention to break the law.

By refusing to prosecute endangered-wildlife killers for illegal shootings and trappings, the DOJ has emboldened poachers which has resulted in dire consequences, particularly for some species: 

  • During the period of DOJ’s policy, 48 Mexican wolves have been shot, and it has become well known that prosecutions under the ESA will not take place; indeed, only two prosecutions for illegally killing a Mexican wolf has taken place. Yet, wolf shooting is the highest source of Mexican wolf mortality.
  • The FWS’s 2000 memo laments that four grizzly bears had been recently shot, but only one case was brought against the grizzly bear killers because of the “McKittrick Policy.”
  • In 2003, a California man shot another extremely endangered species, the California condor, but was not charged under the ESA because of the “McKittrick Policy.” Instead, he was charged under the Migratory Bird Treaty Act which has lesser penalties. http://articles.latimes.com/2003/jun/22/nation/na-species22

The effect of the 1998 “McKittrick Policy” has been that people who kill federally-protected species can almost certainly avoid prosecution if they simply claim they mistook the identity of the animal that they killed, even though Congress and federal courts have determined that ESA prosecutions only require a person to have acted in a way that has harmed a listed species. Under the ESA, the penalties for killing an ESA-protected species can be as high as $50,000 and one year in prison per violation.

Because of the “McKittrick Policy,” the DOJ has abdicated its duties to protect America’s greatest national treasures: Mexican wolves, grizzly bears, and California condors. The policy means that people can commit the most well-planned assassinations of America’s most endangered animals and then literally get away with murder.

The conservation groups seek the invalidation of the policy based on its inconsistency with Congress’ plain intent and twenty-five years of case law. While the DOJ dawdles, Mexican wolves and other endangered species suffer. 


 

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