Court throws out policy on whether or not to prosecute on kills of endangered species

FOTWW is pleased to see a court ruling that properly interprets the law to protect endangered species.

Flawed ‘McKittrick’ Policy Ruled Unlawful

Endangered Species

Two adults and one juvenile Whooping Cranes. Photo by Chuck Hardin

TUCSON, Ariz. — Wednesday, 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 tenant that hunters are responsible for knowing their prey—before they shoot to kill.”

The organizations were represented by attorneys Steve Sugarman and Judy Calman.

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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.

You can read and/or download the court ruling here.

 

***** FOTWW’s mission is to help preserve and protect the Aransas/Wood Buffalo
population of wild whooping cranes and their habitat. *****

Friends of the Wild Whoopers is a nonprofit 501(c)3 organization.

 

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Grant to Initiate the GBRA/TAP Agreement

Goal to Address Long-Term Water Supply Needs in Guadalupe Basin and Safeguard Critical Whooping Crane Habitat

AUSTIN — The Guadalupe-Blanco River Authority (GBRA) and The Aransas Project (TAP) undertook the first step in the implementation of The Guadalupe-Blanco River Authority/The Aransas Project Agreement (GBRA/TAP Agreement), announcing the receipt of a grant from the Cynthia and George Mitchell Foundation (www.CGMF.org).

The Aransas Project

Whooping Cranes at Aransas NWR. Photo by Kevin Sims

The grant is to develop a strategy and action plan to advance implementation of the GBRA/TAP Agreement toward a shared vision for future habitat and water for Guadalupe River System and San Antonio Bay.

Developed in 2016, the GBRA/TAP agreement was reached after years of litigation over freshwater inflows for San Antonio Bay and the long-term success of the only remaining flock of wild whooping cranes in the world.

The agreement sets up a process by which GBRA and TAP will jointly investigate issues associated with the future of water usage and availability on the Guadalupe and San Antonio River systems and the freshwater needs of the whooping cranes. The work under this agreement will consider both habitat issues for the whooping cranes as well as long-term water supply and inflow issues.

Under this planning grant, GBRA and TAP are designing a process to engage key stakeholders throughout the Guadalupe River Watershed and neighboring San Antonio and Aransas Bays to inform the development of the strategy and plan to support implementation of the Agreement. This research will begin in June and will continue into the fall.

The intent of GBRA and TAP is to create a study and evaluation process that will ultimately propose distinct courses of action to ensure whooping crane habitat and long-term water availability for both humans and nature.

About The Guadalupe-Blanco River Authority

The Aransas ProjectThe Guadalupe-Blanco River Authority was established by the Texas Legislature in 1933 as a water conservation and reclamation district. GBRA provides stewardship for the water resources in its 10-county statutory district, which begins near the headwaters of the Guadalupe and Blanco rivers, ends at San Antonio Bay, and includes Kendall, Comal, Hays, Caldwell, Guadalupe, Gonzales, DeWitt, Victoria, Calhoun, and Refugio counties. GBRA provides services that include hydroelectric generation; water and wastewater treatment; municipal, industrial, and agricultural raw water supply; and recreational operations.

About The Aransas Project

The Aransas ProjectThe Aransas Project was founded by a diverse group of organizations who believe that the whooping cranes, the Texas coast and the freshwater of the Guadalupe River Basin are essential to our way of life. TAP is committed to ensuring Guadalupe River flows from the Hill Country to the coast and for the protection of San Antonio and Aransas Bays and the endangered whooping crane. TAP’s membership includes governmental entities such as Aransas County, City of Rockport and Town of Fulton and non-governmental organizations such as the International Crane Foundation, American Bird Conservancy, Audubon Texas, Matagorda Bay Foundation, Houston, Coastal Bend and Travis Audubon Societies, Aransas Bird and Nature Club, Aransas County Guides Association and several Rockport-area businesses.

For more information, contact:
Todd Votteler, tvotteler@gbra.org or (830) 379-5822 and
Jim Blackburn, jbb@blackburncarter.com or (713) 501-9840

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