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.