Groups Fight Pass Given to Rare Species Killers

     TUCSON (CN) – An unpublished, illegal federal policy prevents prosecution of people who kill endangered species unless the government can prove the people knew what species they were killing, environmentalists claim in court.
     WildEarth Guardians and the New Mexico Wilderness Alliance sued the U.S. Department of Justice, in Federal Court.
     They claim the U.S. Fish and Wildlife Service’s ability to enforce the Endangered Species Act’s “prohibition on illegal killing of Mexican gray wolves – and other ESA-listed species – through criminal penalties has been hindered by a 1998 policy of the United States Department of Justice (‘DOJ’) which DOJ calls the ‘McKittrick Policy.'”
     The Justice Department “will not charge or prosecute individuals for the illegal killing of ESA-listed species unless the government can prove that the defendant knew the biological identity of the animal he was killing at the time he killed it,” the complaint states.
     This policy is “so extreme that it amounts to a conscious and express abdication of DOJ’s statutory responsibility to prosecute criminal violations of the ESA as general intent crimes,” the groups claim.
     The policy stems from the prosecution of Chad McKittrick, who was sentenced to 6 months for killing a gray wolf in Montana.
     McKittrick testified at trial that “he thought that the animal he killed was a rabid dog, and offered this ‘mistaken identity’ argument as a defense to the ESA illegal take count,” the complaint states.
     McKittrick appealed his conviction to the 9th Circuit, which rejected his “argument that establishing a criminal violation of the ESA arising from illegal take requires proof that the defendant knew the biological identity of the species he killed at the time he killed it,” according to the complaint.
     McKittrick appealed to the U.S. Supreme Court.
     The U.S. Solicitor General disagreed with the 9th Circuit and “submitted a responsive brief to the Supreme Court in which he stated that the 9th Circuit had misapplied the law regarding the degree of intent required to establish a criminal violation of ESA Section 9 arising from illegal take,” according to the complaint. “The Solicitor’s response to the certiorari petition also stated that DOJ would no longer utilize a jury instruction which instructed the jury that the government need not prove that the defendant knew the biological identity of an animal that he killed in order to establish criminal liability under the ESA.”
     The environmental groups claim that “since the Mexican gray wolf reintroduction program began in 1998, the FWS has catalogued 48 wolves that have been the victims of illegal killings,” accounting for more than half of the deaths of the reintroduced wolfs.
     The policy “has the practical effect of removing the threat of criminal prosecution for would-be wolf killers who are opposed to the reintroduction of the Mexican gray wolf,” the complaint states.
     Only two of the 48 shootings resulted in a prosecution under the Endangered Species Act.
     The environmentalists claim the federal government failed to publish the policy “in the Federal Register or taken any proactive effort to disclose the Policy to the public as required by the Freedom of Information Act.”
     The policy also violates the Administrative Procedures Act, by limiting “the government’s efforts to conserve and protect listed species from extinction,” the groups claim.
     WildEarth Guardians and New Mexico Wilderness Alliance seek an order stopping the Justice Department from applying the McKittrick Policy, and an order requiring the agency to inform the public of the policy.
     The groups are represented by Steven Sugarman of Cerrillos, N.M., and Judy Calman of Albuquerque.

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