Published: Friday, 23 June 2017 11:23
For immediate release June 22, 2017
Court Throws Out Feds’ Misguided Policy Limiting Prosecution of Killers of Endangered Wildlife
Flawed ‘McKittrick’ Policy Ruled Unlawful
Tucson, AZ — Late yesterday, a federal judge threw out the Department of Justice’s flawed ‘McKittrick Policy’ under which the government only prosecuted killers of animals on the Endangered Species Act’s (ESA) list of imperiled species when it could prove the killer knew the exact biological identity of the species s/he was harming. The decision came as a result of a challenge brought by WildEarth Guardians and the New Mexico Wilderness Alliance in 2013.
Because of the defective policy, the government declined to prosecute people who killed protected species, including critically endangered Mexican wolves, gray wolves like ‘Echo’ the Grand Canyon wolf — who was shot by a coyote hunter — whooping cranes, condors, and grizzly bears.
“The end of the McKittrick Policy is a crucial victory for critically imperiled animals including Mexican wolves and grizzly bears,” said Bethany Cotton, wildlife program director for WildEarth Guardians. “Wildlife killers who are either profoundly careless or worse, who intentionally target protected animals, no longer have a get-out-of-jail-free card by claiming they did not know the identity of the animals they kill.”
The Court held: “…the Court agrees with Plaintiffs that the McKittrick policy is outside the range of prosecutorial authority set out in [the] ESA’s comprehensive conservation scheme because it eviscerates the deterrent effect of the ESA criminal enforcement statutes. In other words, prosecutions prevented by the McKittrick policy result in little to no protection for the Mexican wolf and cause direct and real harm…to this protected species.” Opinion at 11.
“The Court’s ruling is a victory for endangered species across the country, but especially for those like the Mexican gray wolf, whose highest cause of mortality is illegal killing,” said Judy Calman, staff attorney for the New Mexico Wilderness Alliance. “This decision is an affirmation of Congress’s intent that endangered species recovery should be the highest priority for federal agencies, and that people who harm listed species should be held accountable under the law”
The Court reasoned: “In adopting ESA’s public welfare offenses, Congress recognized that killing wildlife is not an entirely innocent act because a killer is knowingly engaged in a lethal activity, using a deadly device, which places him or her in a position of responsibility in relation to the public. Congress placed the burden to know the identity of the wildlife species being killed on the killer.” Opinion at 40.
“This internal DOJ policy to arbitrarily limit its own prosecutorial discretion was abhorrent and directly conflicted with its enforcement responsibilities. This abdication resulted in dozens of wolves being illegally shot without penalty, which in turn undoubtedly led to additional killings,” said Mark Allison, executive director at New Mexico Wilderness Alliance. “We’re gratified by the ruling and eager to take other necessary steps to ensure that the Mexican gray wolf recovery effort is successful.”
The court’s ruling means the Department of Justice may no longer rely on the unlawful McKittrick policy when making decisions whether to prosecute those who illegally kill wildlife protected by the Endangered Species Act.
“This ruling is important because it ensures careless hunters can no longer hide behind the ‘shoot first, ask questions later’ mindset that led to the tragic deaths of many endangered Mexican wolves and other imperiled animals,” said John Horning, executive director of WildEarth Guardians. “The case powerfully affirms the longstanding ethical tenet that hunters are responsible for knowing their prey—before they shoot to kill.”
The organizations were represented by attorneys Steve Sugarman and Judy Calman.
Additional excepts from the ruling:
“Necessarily, the narrow construction of criminal liability under the McKittrick policy, which DOJ has consciously and expressly adopted, is a complete abdication of DOJ’s statutory responsibility under ESA.” Opinion at 17.
“The McKittrick policy, implemented as a prosecutorial policy, moots the power retained by the trial courts to say what the law is and ensures they will not be afforded opportunities to decide what law is warranted and appropriate on facts analogous to those that existed in McKittrick.”
Opinion at 18.
“The McKittrick policy violates the APA because it is based on the DOJ’s incorrect belief that it cannot prosecute mistaken and/or careless wolf takings. The ESA is a public welfare statute and this context defeats the general presumption that mens rea attaches to every fact constituting the offense. Under ESA, it is a misdemeanor offense to knowingly shoot wildlife, if the animal shot is a protected species. Because Congress created this vigorous enforcement scheme to conserve endangered and threatened species, including the Mexican gray wolf, the DOJ has abdicated its statutory responsibility by adopting the McKittrick policy which precludes, without discretion, prosecutions for mistakenly and/or carelessly taking, i.e., shooting, a wolf.” Opinion at 41.
WildEarth Guardians works to protect and restore the wildlife, wild places, wild rivers and health of the American West.
New Mexico Wilderness Alliance is dedicated to the protection, restoration, and continued enjoyment of New Mexico's wildlands and wilderness areas, and has been working to support recovery of the Mexican gray wolf since 1997.
Published: Tuesday, 25 April 2017 11:24
Court Lifts Injunction Blocking Mexican Gray Wolf Releases
DENVER (April 25, 2017) – The 10th U.S. Circuit Court of Appeals ruled today to lift a preliminary injunction blocking further releases of highly endangered Mexican gray wolves into the wild within New Mexico. The U.S. Fish and Wildlife Service (FWS) can now resume wolf releases within the state.
Bryan Bird, Southwest program director for Defenders of Wildlife, issued the following statement:
“Today’s ruling is a victory for the Endangered Species Act, the Mexican gray wolf and everyone who cares about endangered species recovery. Now that the U.S. Fish and Wildlife can again release Mexican gray wolves into the wild in New Mexico, we hope that their numbers will continue to climb and that their genetic diversity in the wild will improve. Defenders will continue to work with local communities by providing them proactive strategies and tools to peacefully share the landscape with Mexican gray wolves. We can coexist with these icons of the Southwest.”
Judy Calman, staff attorney for the New Mexico Wilderness Alliance, said:
"Direct releases of wolves into the wild is one of the most critical tools available to the Fish and Wildlife Service to facilitate species recovery. With this ability restored, the Court has increased the chances that the wolf will once again be able to fill its keystone role in the Gila ecosystem."
Mexican gray wolves, or lobos, are the most endangered gray wolf subspecies in the world. Lobos are facing low numbers and a genetic crisis in the wild. Limited genetic diversity in the wild can result in smaller litters and lower pup survival – a recipe for extinction. Releases of captive wolves are critical to increase lobo genetic diversity in the wild.
Scientists conclude that lobos require at least three linked populations in suitable habitat. Habitat capable of supporting two additional populations exists in the Grand Canyon ecoregion and in northern New Mexico and southern Colorado.
In May 2016, the state of New Mexico filed suit against FWS after the agency released two pups that they cross-fostered with a family in the wild. New Mexico also requested a preliminary injunction to halt all Mexican gray wolf releases into the wild within the state until the merits of its case were heard.
In June 2016, a federal court granted New Mexico the preliminary injunction, halting all Mexican gray wolf releases within the state. As interveners in the case between the state and FWS, Defenders and our partners appealed that ruling to the 10th U.S. Circuit Court of Appeals. Defenders represents Center of Biological Diversity, WildEarth Guardians and New Mexico Wilderness Alliance in this case.
Defenders of Wildlife is dedicated to the protection of all native animals and plants in their natural communities. With more than 1.2 million members and activists, Defenders of Wildlife is a leading advocate for innovative solutions to safeguard our wildlife heritage for generations to come. For more information, visit www.defenders.org and follow us on Twitter @DefendersNews.