9th Circuit: Should feds prosecute ignorant endangered species killings?

By Laura Lundquist as published on The Missoula Current

Under the policy, anyone could shoot a grizzly bear and claim they thought it was a black bear

Endangered Species Act protections helped gray wolves return to the lower 48 states. (USFWS)

Are people more likely to kill wildlife if they know they can get away with it by pleading ignorance? On Tuesday, a Montana attorney tried to convince a Seattle appellate court the answer is yes.

Representing WildEarth Guardians and the New Mexico Wilderness Alliance, Matthew Bishop told three members of the 9th Circuit Court of Appeals that the federal government overstepped its bounds when it created a policy that set an unusually high bar for prosecution of crimes involving endangered species.

Under the policy, anyone could shoot a grizzly bear and claim they thought it was a black bear. Likewise, they could shoot a wolf and say they thought it was a coyote. In either case, the person wouldn’t be charged with a crime, and Bishop said that could embolden some to shoot first and ask questions later.

“We’re challenging a policy, not an individual judgment,” said Bishop, an attorney with the Helena-based Western Environmental Law Center. “It’s purely a question of law. We’re only asking you to declare the policy invalid because it violates Congressional intent.”

In the Endangered Species Act, Congress wrote that it’s a crime to kill a member of an endangered species or do anything that “knowingly” violates the Act.

That’s exactly what Montana hunter Chad McKittrick did when he shot a grey wolf in 1995. After he was caught, McKittrick claimed he thought it was a wild dog. But a friend who was with him testified that McKittrick knew it was a wolf as he pulled the trigger. McKittrick’s attorneys argued that federal attorneys should have to prove McKittrick “knew” he was shooting a wolf.

But in 1998, the 9th Circuit didn’t agree. McKittrick was found guilty.

But even so, a year later, the U.S. Department of Justice created the McKittrick Policy, which went in the opposite direction of the 9th Circuit and instructed federal prosecutors not to request or fight “the use of the knowledge instruction.” In other words, they would only prosecute crimes if they could prove the person charged had known they were shooting an endangered species.

Some special agents with the U.S. Fish and Wildlife Service have said that limited their investigations.

New Mexico federal district judge Bury agreed that the McKittrick policy

However, during Tuesday’s hearing, DOJ attorney Kevin McArdle said that wasn’t so, although he did say the decision of whether to bring charges was influenced by the department’s position.

McArdle argued the DOJ would prosecute if they had cases, but they don’t. Therefore, McArdle argued, WildEarth Guardians didn’t have any standing – that is, they were arguing a case that had no merit.

McArdle argued that most of the time, agents couldn’t find the shooters, so prosecutors had no case, therefore the McKittrick Policy was irrelevent. Out of 130 recent illegal wolf mortalities, only 14 were referred for criminal prosecution. Out of those, only four resulted in criminal charges, McArdle said.

“The reasons why people shoot Mexican wolves are unknown, because the shooters are not identified in most cases. So the motivation, it’s speculative, it’s conjecture,” McArdle said.

Justice Morgan Christen pressed both attorneys to explain the reasoning behind why the New Mexico district judge thought the case was valid and ruled against the McKittrick Policy.

“If nobody knew about the McKittrick memo, how is it that it has made any difference whether there is a deterrent?” Christen said.

Bishop said the policy changed the decision-making process – it was not just a jury instruction in any given trial. No case was making it to court because of the policy.

“My clients didn’t know about the policy. They knew there was a problem – there was a significant number of illegal killing sof Mexican wolves. It is and remains the No. 1 threat to the species. But no one knew why there weren’t more criminal prosecutions, and that’s what prompted the FOIA and discovery of this policy,’” Bishop said. “I think if you’re a member of the public, you’re not going to be aware of a specific policy. But you may know that you have a ready defense, that mistaken identification is a valid defense.”

Since the district court ruling went in favor of WildEarth Guardians last year, the U.S. Fish and Wildlife Service has recently investigated and charged Craig Thiessen for intentionally beating and killing a juvenile Mexican gray wolf in December 2017 in Arizona.

If the McKittrick policy is ruled invalid, the hunters’ ethic of knowing what they’re shooting before they shoot could gain more credence.

“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, in 2017. “The case powerfully affirms the longstanding ethical tenet that hunters are responsible for knowing their prey – before they shoot to kill.”

10 replies »

  1. KNOWING their prey before they shoot? That should be one of the lessons hunters learn before they receive a hunting license! In fact – I was under the impression it was.

    Liked by 1 person

  2. Some hunters shoot people saying they thought it was a deer, or a bear. Of course they should be held responsible. If they have to shoot something so bad as to not know what it is, they should be prosecuted. It is waiting to happen soon with hunting season beginning. WE will read the stories soon. People will be killed and many innocent animals will be left to rot because they are only out there to kill something not to eat it!!!!

    Liked by 1 person

    • Remembering a man in my high school graduating class being shot by a “woodchuck” hunter – years ago. Yeah, seems that knowing & being AWARE of what you are shooting at might possibly be a good thing!!

      Liked by 1 person

  3. Low life shameless ass hunters! I don’t believe they don’t know what they are shooting for one minute! If you own a fire arm then YOU better know what your doing. Trigger happy control freaks who want to kill everything in their path. And the damn Trump Administration supports this kind of barbsric thoughtless killing. And if your confused about what your shooting or don’t know you don’t have any business with that weapon!

    And the disgusting Control Freak beating to death that young Wolf.needs to go to jail! Its all about control! Real man eh! A poor defenseless baby animal! NO sympathy here! Throw the book at the guy and prosecute to the fulliest extent of the law! And how about humane law? Wouldn’t that qualify?

    Again, things will NOT.change until we change the.composition of the US House of Representatives and the US.Senate! My God hasn’t everyone seen enough! Get out and VOTE! And vote DEMOCRATIC!! Get those frickin Republicans gone who are.brain dead and inhumane! Their voting records and actions tell the story! And if your in Oregon vote Greg Walden out as he has held the American Safe Food, Safe Horse Export Act hostage since 2017! Another Low Life Dumpster supporter!, So vote them in, vote them out and let’s turn our country around!

    Liked by 1 person

  4. From AWHC

    In an effort to continue our education mission, AWHC sent candidates running for federal and statewide office in Nevada, California, Utah, Colorado, New Mexico, and Oregon a survey to determine their stance on protecting wild horses and burros, as well as population and land management. We’d like to thank those who responded to the survey for their time in answering the questions, and hope that you find this information useful.

    To see if any of your candidates responded to our survey, click here.
    AWHC is a non-partisan organization and support for wild horse and burro protection comes from both sides of the political aisle. We urge our supporters to vote next Tuesday and hope that all candidates elected will respect the will of the American people to protect our iconic wild horses and burros on our Western public lands.


  5. Of course they abuse it. But – the only thing is not all Democrats care about wildlife or the ESA. Two from the Great Lakes, Klobuchar and Baldwin, have co-sponsored legislation to delist wolves in the Great Lakes and bar judicial challenge, just like Jon Tester did! So be very careful and scrutinize your candidates’ records.

    I think there are about a handful of politicians who do care about wildlife, Raul Grijalva being one of them.

    Liked by 1 person

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