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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Egg incubation underway by Wood Buffalo’s wild Whooping Cranes

by Chester McConnell, FOTWW

Important incubation period for wild whooping cranes

Whooping Cranes

Whooping crane adult tending to recently hatched chick – Wood Buffalo NP. Photo by Klaus Nigge

Wild Whooping Cranes on Wood Buffalo National Park, Canada are currently in the important period of incubating their eggs. In fact some chicks may have already hatched. So incubation of eggs and parenting chicks is the current focus of the wild Whooping Cranes associated with their record breaking 98 nests at Wood Buffalo. Attending their nest and incubating eggs is one of the most trying times for the cranes. One member of the crane pair must remain on the nest during most hours of the day. They normally lay two eggs which must be kept warm during the 29 to 31 days of incubation to successfully produce chicks. Importantly the eggs must also be protected from predators including raven, mink, black bear and fox.

Nesting survey a joint effort

whooping cranes

Raven stealing whooping crane egg – Wood Buffalo NP. Photo by Klaus Nigge

Mike Keiser of Parks Canada reported on May 31, that a nest survey was accomplished during May 18 – 21, 2017. Nest surveys are a joint effort by Environment and Climate Change Canada (ECCC), [Canada Wildlife Service], Parks Canada, the Government of the Northwest Territories and as a partner, the U.S. Fish and Wildlife Service. This is the 50th year that the nest survey has been done. A second nest survey in July will measure the level of success of the current nesting. The final set of surveys will be done in August to determine the number of young chicks that survived to fledge.

Current habitat conditions for nesting whooping cranes

whooping cranes

Whooping crane family – Wood Buffalo NP. Photo by Klaus Nigge

Mr. Keiser told Friends of the Wild Whoopers (FOTWW) that habitat conditions were excellent for the nesting Whoopers with most wetland basins being full of water.” Good water levels are needed for a good hatch. This was the 50th year of annual surveys of the Whooping Crane population. Keiser explained to FOTWW that, “The large increase in nests from previous years is a result of two things; the arrival at breeding age of the large number of young that were produced during the period 2010-2013 and the excellent habitat conditions that provided an abundance of suitable nesting sites for the cranes.” This year’s survey located 98 nests, an increase of 16 over the previous record of 82 set in 2014.

Data gathering

Protecting and promoting ecological integrity is a priority for Parks Canada. Keizer stated that, “The data gathered each year allows us to track the health and growth of the Whooping Crane population, and allows us to assess the current state of their habitat, which Parks is directly responsible for. The Whooping Crane nesting area is one of the reasons why Wood Buffalo was named a World Heritage Site by UNESCO.”

Keizer elaborated, “2017 also offers an opportunity to celebrate this amazing recovery successes story of the Whooping Crane and take strides to advance protected areas and biodiversity as part of the celebration of Canada’s 150th.

***** 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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