DOJ's McKittrick Endangered Species Act Policy Thrown Out

[Mudman]

Good point Olyguy, I guess I tied the two together assuming shooting the wolf/dog thinking it was legal to do as it was a dog and wolf wasn't yet protected.  My bad.

[Humptulips]

IMO the ruling is a change in the law which the court system is not supposed to be able to do. "Knowingly" may be a pretty big loophole but Congress included it in the Legislation and they should be the only ones that can remove it.

It seems like the talk here is centering on knowing what you shoot but the knowingly part modifies a "take" and a take includes much more then  aiming down your sights and shooting an animal.
Being a trapper the first thing comes to mind is accidentally catch an endangered species like a lynx in a bobcat set. Did you knowingly try to catch the lynx? Doesn't matter now even though the wording of the law seems pretty plain to me.
Includes a lot of other stuff too if you axe off knowingly, like clearing a lot and then find out it had an endangered butterfly, plant on it or habitat for those. That is a take and you are just as guilty as the guy who blasted that wolf.
True the court ruling is kind of old news and the latest is about what the Administrative branch of government can do but it still does not make it right.
If you want "knowingly" out amend the act!

[buglebrush]

 

[olyguy79]

IMO the ruling is a change in the law which the court system is not supposed to be able to do. "Knowingly" may be a pretty big loophole but Congress included it in the Legislation and they should be the only ones that can remove it.

It seems like the talk here is centering on knowing what you shoot but the knowingly part modifies a "take" and a take includes much more then  aiming down your sights and shooting an animal.
Being a trapper the first thing comes to mind is accidentally catch an endangered species like a lynx in a bobcat set. Did you knowingly try to catch the lynx? Doesn't matter now even though the wording of the law seems pretty plain to me.
Includes a lot of other stuff too if you axe off knowingly, like clearing a lot and then find out it had an endangered butterfly, plant on it or habitat for those. That is a take and you are just as guilty as the guy who blasted that wolf.
True the court ruling is kind of old news and the latest is about what the Administrative branch of government can do but it still does not make it right.
If you want "knowingly" out amend the act!

Coming from a lawyers perspective I can tell you that "knowingly" has always been confusing. Like Bigtex said, that's the difference between many state and federal wildlife laws. You go out and shoot a wolf, under state law all the state has to prove is you did it, they don't have to prove your mental state (you intended to do it, or you knew what you were doing). Most federal wildlife laws have a "knowingly" aspect.

To most citizens when they hear "knowingly" they think that the individual must know what they are doing is illegal. So they think that the government must prove they knew that shooting a wolf is illegal. However, there have been many federal court cases over "knowingly" involving both wildlife and non wildlife laws and they've all said that "knowingly" simply means you were aware of what you were doing. So in the case of a wolf, the government needs to prove you were aware that you raised your rifle up and pulled the trigger while aimed at the animal.

So that's why we are where we are today. "Knowingly" simply means you were aware of what you were doing, and not that you knew what you were doing was illegal.

Congress could change the law to say something like "with the intent to take an ESA listed species" and all of this would go away

[Humptulips]

IMO the ruling is a change in the law which the court system is not supposed to be able to do. "Knowingly" may be a pretty big loophole but Congress included it in the Legislation and they should be the only ones that can remove it.

It seems like the talk here is centering on knowing what you shoot but the knowingly part modifies a "take" and a take includes much more then  aiming down your sights and shooting an animal.
Being a trapper the first thing comes to mind is accidentally catch an endangered species like a lynx in a bobcat set. Did you knowingly try to catch the lynx? Doesn't matter now even though the wording of the law seems pretty plain to me.
Includes a lot of other stuff too if you axe off knowingly, like clearing a lot and then find out it had an endangered butterfly, plant on it or habitat for those. That is a take and you are just as guilty as the guy who blasted that wolf.
True the court ruling is kind of old news and the latest is about what the Administrative branch of government can do but it still does not make it right.
If you want "knowingly" out amend the act!

Coming from a lawyers perspective I can tell you that "knowingly" has always been confusing. Like Bigtex said, that's the difference between many state and federal wildlife laws. You go out and shoot a wolf, under state law all the state has to prove is you did it, they don't have to prove your mental state (you intended to do it, or you knew what you were doing). Most federal wildlife laws have a "knowingly" aspect.

To most citizens when they hear "knowingly" they think that the individual must know what they are doing is illegal. So they think that the government must prove they knew that shooting a wolf is illegal. However, there have been many federal court cases over "knowingly" involving both wildlife and non wildlife laws and they've all said that "knowingly" simply means you were aware of what you were doing. So in the case of a wolf, the government needs to prove you were aware that you raised your rifle up and pulled the trigger while aimed at the animal.

So that's why we are where we are today. "Knowingly" simply means you were aware of what you were doing, and not that you knew what you were doing was illegal.

Congress could change the law to say something like "with the intent to take an ESA listed species" and all of this would go away

Still seems like legislation from the bench to me. The meaning of the word has ben eliminated so what was the point of including it in the legislation?
I guess when you shoot that wolf you can claim you were sleep walking or I guess that would be sleep hunting.

[olyguy79]

IMO the ruling is a change in the law which the court system is not supposed to be able to do. "Knowingly" may be a pretty big loophole but Congress included it in the Legislation and they should be the only ones that can remove it.

It seems like the talk here is centering on knowing what you shoot but the knowingly part modifies a "take" and a take includes much more then  aiming down your sights and shooting an animal.
Being a trapper the first thing comes to mind is accidentally catch an endangered species like a lynx in a bobcat set. Did you knowingly try to catch the lynx? Doesn't matter now even though the wording of the law seems pretty plain to me.
Includes a lot of other stuff too if you axe off knowingly, like clearing a lot and then find out it had an endangered butterfly, plant on it or habitat for those. That is a take and you are just as guilty as the guy who blasted that wolf.
True the court ruling is kind of old news and the latest is about what the Administrative branch of government can do but it still does not make it right.
If you want "knowingly" out amend the act!

Coming from a lawyers perspective I can tell you that "knowingly" has always been confusing. Like Bigtex said, that's the difference between many state and federal wildlife laws. You go out and shoot a wolf, under state law all the state has to prove is you did it, they don't have to prove your mental state (you intended to do it, or you knew what you were doing). Most federal wildlife laws have a "knowingly" aspect.

To most citizens when they hear "knowingly" they think that the individual must know what they are doing is illegal. So they think that the government must prove they knew that shooting a wolf is illegal. However, there have been many federal court cases over "knowingly" involving both wildlife and non wildlife laws and they've all said that "knowingly" simply means you were aware of what you were doing. So in the case of a wolf, the government needs to prove you were aware that you raised your rifle up and pulled the trigger while aimed at the animal.

So that's why we are where we are today. "Knowingly" simply means you were aware of what you were doing, and not that you knew what you were doing was illegal.

Congress could change the law to say something like "with the intent to take an ESA listed species" and all of this would go away

Still seems like legislation from the bench to me. The meaning of the word has ben eliminated so what was the point of including it in the legislation?

I actually don't think this is legislation from the bench at all. When I think of legislation from the bench I think of case law or case precedent. When a judge/judges come in and say well the law may say X but what it really means is Y.

Anyone who follows the Supreme Court knows that when they decline to hear a case that typically means they agree with the lower appellate courts decision. So the fact that SCOTUS declined to hear the McKittrick appeal from the 9th Circuit leads one to believe that the SCOTUS at that time agreed with the original prosecutor, and the 9th Circuit decision which simply went with that the government had to prove the individual knowingly took the animal and not that they knew the species of the animal. That's why when DOJ came out with the policy it was puzzling because DOJ had essentially won by SCOTUS declining to hear the case, yet they instituted a policy which essentially went against what they would've fought for had SCOTUS picked up the case.