DOJ's McKittrick Endangered Species Act Policy Thrown Out

[bigtex]

I will try to recap this as quickly as possible.

The federal Endangered Species Act requires a "knowingly" aspect to it in order for a conviction which is a federal misdemeanor offense. In comparison, most state wildlife laws do not have a knowledge/knowing aspect to them. Prior to 1999 the government's interpretation of "knowingly" was simply that the individual knew they shot/killed/etc. the animal. In the mid-1990s Chad McKittrick poached a wolf near Yellowstone, he claimed that he thought the animal was a dog and shouldn't be convicted, the jury disagreed and convicted him. He appealed to the 9th Circuit Court of Appeals and stated that the government needs to prove the individual knew the species of the animal when they took it, and not simply they took an "animal." The 9th Circuit disagreed. McKittrick then appealed to the Supreme Court which declined the case.

However, in 1999 the Dept. of Justice instituted a policy which has become known as the McKittrick Policy. Under the policy it states the DOJ will not prosecute someone for a take under the ESA if they can't prove the individual knew what the species was. So essentially, you would have to prove the person knew he was taking a grizzly bear. This really halted many ESA prosecutions across the country. It basically meant if you shot a wolf and said you thought it was a dog, coyote, etc. the feds couldn't prosecute you.

In 2013 WildEarth Justice and other groups sued the DOJ in federal court in Arizona stating DOJ did not have the authority to make such a policy, and only that Congress could do so.

On June 21, 2017 a federal judge in Arizona agreed with WildEarth Justice that the DOJ does not have the authority to institute such a policy.

So what does this mean? It means that the "oh I thought it was a coyote" statement no longer applies to wolf cases. It means the government now just has to prove you took an fish/animal and doesn't have to prove you knew the species of the animal.

http://www.wildearthguardians.org/site/DocServer/Guardians_etal_v_USJustice_Dept_McKittrickSJorder.pdf
http://www.scsun-news.com/story/news/2017/06/22/court-throws-out-policy-whether-not-prosecute-kills-endangered-species/421085001/

[Bob33]

Interesting. I can see some value to that, and also abuse.

[pianoman9701]

I'm unsure how I feel about this decision. Of course we should all know our target and... But someone who makes an honest mistake and comes forward about that mistake shouldn't be prosecuted with the same vigor as someone who willfully killed an endangered species and tried to cover it up. BT, under the ESA, are the penalties mandatory or does the judge have some authority to reduce a penalty?

[bigtex]

I'm unsure how I feel about this decision. Of course we should all know our target and... But someone who makes an honest mistake and comes forward about that mistake shouldn't be prosecuted with the same vigor as someone who willfully killed an endangered species and tried to cover it up. BT, under the ESA, are the penalties mandatory or does the judge have some authority to reduce a penalty?

There's no mandatory minimum.

Realistically, what the McKittrick policy did was create an excuse or a way out. If you lived in ESA wolf country and wanted to pop a few wolves, all you had to do if you were being investigated is say "oh dang I thought they were coyotes" and if the government couldn't prove otherwise the case was closed.

[Mudman]

This is complicated.  I feel that so many laws exist now and more evry day that no reasonable citizen can keep up and many, many people brake a law often not knowing it.  So I feel the Prosecution should now have to prove you knew the law existed and you were braking it.  Not just wildlife but life in general.  The argument that its our job to know the law doesn't fly anymore, too many laws now!  I know this view is a bit crazy but man how many laws do we really need.  Overlapping laws, laws from 50 years ago and no gov. removes them ever it seems until it goes to court and some poor sap spends his life savings fighting it.  To make an honest mistake shooting a yote or wild dog only to be locked up seems wrong.  What about the poor saps who shot griz/polar bears on a brown bear hunt-a good example? 

[bigtex]

What about the poor saps who shot griz/polar bears on a brown bear hunt-a good example?

I think that's a terrible example. If you cant discriminate between a polar bear and a brown/black bear you shouldn't be hunting.

[Bob33]

This has nothing to do with too many laws.

It's about positively identifying your target before pulling the trigger.

[Mudman]

What about the poor saps who shot griz/polar bears on a brown bear hunt-a good example?

I think that's a terrible example. If you cant discriminate between a polar bear and a brown/black bear you shouldn't be hunting.

Research the hybrid bears - cross breeds that were mistaken for a brown bear.  that is what I speak of.  Could you tell em apart??  I don't know I could.  How many wolf/dog hybrids out there?  Nobody shoots em even if its legal cause you cant tell em apart often.

[Bob33]

This doesn't mean a person will necessarily be convicted or even charged. It only removes the "I didn't know what it was that I shot" defense.

[Mudman]

This has nothing to do with too many laws.

It's about positively identifying your target before pulling the trigger.

Nonsense.  It was established due to a man's ignorance of the laws as well as ignorance to identity.  The point is, is it just to punish a person who not knowing violates a law that wasn't in place before.  Is it reasonable to require every person to know every one of thousands upon thousands of laws in effect ( hundreds more every year) and to punish that person harshly if violated due to their not knowing?  That's all I suggest.  To me its a legit question and concern.  Heck most cops don't know them all.

[olyguy79]

This has nothing to do with too many laws.

It's about positively identifying your target before pulling the trigger.

Even before the ESA you couldn't go shooting species that were protected by state law. It's not like the ESA added new hunting regs. All it did was add federal protection to those species. In the 1960s (before the ESA) in WA you couldn't go shooting a grizzly bear, and guess what the State of WA doesn't have to prove you knew it was a grizz, or that you intended to shoot it, all they have to prove is you did it.

[Mudman]

This doesn't mean a person will necessarily be convicted or even charged. It only removes the "I didn't know what it was that I shot" defense.

So its up to the Judge and the persons pocket book hiring an Attorney?  Not right in my book. If it was legal then wasn't is it reasonable to expect everyone to keep up with all the new laws imposed in recent times?

[olyguy79]

This has nothing to do with too many laws.

It's about positively identifying your target before pulling the trigger.

Nonsense.  It was established due to a man's ignorance of the laws as well as ignorance to identity.  The point is, is it just to punish a person who not knowing violates a law that wasn't in place before.  Is it reasonable to require every person to know every one of thousands upon thousands of laws in effect ( hundreds more every year) and to punish that person harshly if violated due to their not knowing?  That's all I suggest.  To me its a legit question and concern.  Heck most cops don't know them all.

So if I go out and shoot a protected species, as long as I say I'm ignorant of the law that's ok to you?

[Bob33]

This doesn't mean a person will necessarily be convicted or even charged. It only removes the "I didn't know what it was that I shot" defense.

So its up to the Judge and the persons pocket book hiring an Attorney?  Not right in my book.

It's no different than many current laws. Shoot a spike mule deer in a 3 point minimum area and tell the officer you thought it was a whitetail; see how far that gets.

Hen mallards? I thought they were teal, officer.

[olyguy79]

This doesn't mean a person will necessarily be convicted or even charged. It only removes the "I didn't know what it was that I shot" defense.

So its up to the Judge and the persons pocket book hiring an Attorney?  Not right in my book. If it was legal then wasn't is it reasonable to expect everyone to keep up with all the new laws imposed in recent times?

You keep saying its a new law. How is it, or was it a new law? All the ESA did in 1973 was federalize protection of endangered/threatened species. It didn't shutdown the local deer hunt. It meant the guy who shot the grizzly bear could now be tried in federal court, or state court as before. The spotted owl was protected before the ESA, the bald eagle was protected before the ESA.

[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.