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Court Throws Out Feds’ Misguided Policy Limiting Prosecution of Killers of Endangered Wildlife

For immediate release                                                                                                June 22, 2017

Contacts:

Bethany Cotton, WildEarth Guardians, This email address is being protected from spambots. You need JavaScript enabled to view it., 406.414.7227

Judy Calman, New Mexico Wilderness Alliance, This email address is being protected from spambots. You need JavaScript enabled to view it., 505.615.5020

Court Throws Out Feds’ Misguided Policy Limiting Prosecution of Killers of Endangered Wildlife

Flawed ‘McKittrick’ Policy Ruled Unlawful

Tucson, AZ — Late yesterday, 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 tenet 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.

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WildEarth Guardians works to protect and restore the wildlife, wild places, wild rivers and health of the American West.

New Mexico Wilderness Alliance is dedicated to the protection, restoration, and continued enjoyment of New Mexico's wildlands and wilderness areas, and has been working to support recovery of the Mexican gray wolf since 1997.

Court Lifts Injunction Blocking Mexican Gray Wolf Releases

Court Lifts Injunction Blocking Mexican Gray Wolf Releases

 

DENVER (April 25, 2017) – The 10th U.S. Circuit Court of Appeals ruled today to lift a preliminary injunction blocking further releases of highly endangered Mexican gray wolves into the wild within New Mexico. The U.S. Fish and Wildlife Service (FWS) can now resume wolf releases within the state.

Bryan Bird, Southwest program director for Defenders of Wildlife, issued the following statement:

“Today’s ruling is a victory for the Endangered Species Act, the Mexican gray wolf and everyone who cares about endangered species recovery. Now that the U.S. Fish and Wildlife can again release Mexican gray wolves into the wild in New Mexico, we hope that their numbers will continue to climb and that their genetic diversity in the wild will improve. Defenders will continue to work with local communities by providing them proactive strategies and tools to peacefully share the landscape with Mexican gray wolves. We can coexist with these icons of the Southwest.”

Judy Calman, staff attorney for the New Mexico Wilderness Alliance, said:

"Direct releases of wolves into the wild is one of the most critical tools available to the Fish and Wildlife Service to facilitate species recovery. With this ability restored, the Court has increased the chances that the wolf will once again be able to fill its keystone role in the Gila ecosystem."

Background

 

Mexican gray wolves, or lobos, are the most endangered gray wolf subspecies in the world. Lobos are facing low numbers and a genetic crisis in the wild. Limited genetic diversity in the wild can result in smaller litters and lower pup survival – a recipe for extinction. Releases of captive wolves are critical to increase lobo genetic diversity in the wild.

Scientists conclude that lobos require at least three linked populations in suitable habitat. Habitat capable of supporting two additional populations exists in the Grand Canyon ecoregion and in northern New Mexico and southern Colorado.

In May 2016, the state of New Mexico filed suit against FWS after the agency released two pups that they cross-fostered with a family in the wild. New Mexico also requested a preliminary injunction to halt all Mexican gray wolf releases into the wild within the state until the merits of its case were heard.

In June 2016, a federal court granted New Mexico the preliminary injunction, halting all Mexican gray wolf releases within the state. As interveners in the case between the state and FWS, Defenders and our partners appealed that ruling to the 10th U.S. Circuit Court of Appeals. Defenders represents Center of Biological Diversity, WildEarth Guardians and New Mexico Wilderness Alliance in this case.

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Defenders of Wildlife is dedicated to the protection of all native animals and plants in their natural communities. With more than 1.2 million members and activists, Defenders of Wildlife is a leading advocate for innovative solutions to safeguard our wildlife heritage for generations to come. For more information, visit www.defenders.org and follow us on Twitter @DefendersNews.

Public Comment Period Open to review National Monuments

President Trump signed an Executive Order April 26, 2017 that could threaten the Organ Mountains-Desert Peaks and Rio Grande del Norte National Monuments. The order “directs the Department of the Interior to review prior monument designations and suggest legislative changes or modifications to the monument proclamations.”     Save your monuments>>

Starting on May 12, 2017, the Department of the Interior launched a public comment period ending on Tuesday July 11, 2017. After the 60-Day Review, Secretary Zinke will recommend either legislative or administrative action on national monuments under review, including both Organ Mountains-Desert Peaks and Rio Grande del Norte. Submit your comment today.

Efforts to protect these federal public lands began in the early 1970s, with community support growing steadily over decades. Legislation to protect these areas has been introduced into Congress by both Republican and Democratic Senators, with subsequent bills introduced until President Obama designated the areas as national monuments after Congress was unable to move legislation. Dozens of local government support resolutions passed during this time.

The Río Grande del Norte National Monument was designated in 2013 in response to support from local business owners, local chambers of commerce, sportsmen and ranchers, local elected officials, Hispanic organizations, Native American tribes, and countless others. The Organ Mountains Desert-Peaks National Monument was designated in 2014 with the support of a broad coalition of stakeholder including sportsmen, Native Americans, business leaders, veterans, civic groups, current and former local elected officials, archaeologists, historians, and conservation organizations.

In February 2017, legislation was re-introduction into the Senate to protect wilderness areas within both monuments. Clearly, the communities in New Mexico are rallying together to preserve their clean water, wildlife habitat, and public lands.

Don’t Reverse National Monument Designations

April 12, 2017

Western Democratic Senators Tell Trump: Don’t Reverse National Monument Designations

Senators urge president to uphold protections for Bears Ears National Monument, all 157 national monuments

WASHINGTON — Today, U.S. Senator Tom Udall led a group of Western Democratic senators in calling on President Donald Trump to live up to his repeated promises on the campaign trail to protect public lands for all Americans and uphold the existing protections for the 157 national monuments, which have been designated throughout the decades by nearly every U.S. president of the last century.

In particular, the senators warned President Trump against reversing the recent designation of the Bears Ears National Monument in Southern Utah, an unprecedented step that some congressional Republicans have urged the president to take. In their letter, the senators noted that Bears Ears enjoys strong support from the $646 billion outdoor recreation industry, as well as from Tribes, archaeologists, and local conservation organizations. The senators wrote that Tribes with ancestral ties to the Bears Ears region joined forces to protect sacred areas, and that is part of the reason that Bears Ears was designated as the first-ever national monument to be co-managed by Tribes. Rescinding protections for Bears Ears would betray the core commitments that Interior Secretary Ryan Zinke has made to Tribes and that President Trump made to voters, the senators added.

"Weakening the protections for this deserving landscape [Bears Ears National Monument], or any of the 157 Monuments previously protected, would be a direct affront to the local communities and stakeholders who worked collaboratively to identify and advocated to protect these areas for future generations. This is especially true, in the case of Bears Ears National Monument, for the Native American tribes who call this living cultural landscape their ancestral home. It also would cut against your commitment to be a good steward of our nation’s public lands," the senators wrote. "We urge you to maintain the current protections so that our children and grandchildren can experience them with the same wonder we do today.”

They continued, "We urge you to honor your promise to be a great steward of our public lands by upholding the existing protections for the 157 National Monuments that have been designated through the years by nearly every President since the Antiquities Act was enacted into law in 1906. They have protected iconic landscapes across the United States, such as the Grand Canyon, Zion National Park, Chaco Canyon in New Mexico, and Olympic National Park in Washington, as well as cultural icons, including the Statue of Liberty and the Belmont-Paul Women’s Equality Monument. Removing protections for any of these areas would threaten the cultural, historical and biological wealth of our country.”

In addition to Udall, the letter was signed by U.S. Senators Martin Heinrich (D-N.M.), Maria Cantwell (D-Wash.), Dianne Feinstein (D-Calif.), Ron Wyden (D-Ore.), Patty Murray (D-Wash.), Michael Bennet (D-Colo.), Jeff Merkley (D-Ore.), and Catherine Cortez Masto (D-Nev.).

The full text of the letter can be found below and here.

Dear Mr. President,

During your campaign, you stated that America’s protected federal public lands make America great, once stating that, “We have to be great stewards of this land. This is magnificent land. And we have to be great stewards of this land.” You promised that, if elected, you’d emulate President Teddy Roosevelt’s efforts to protect public lands for all Americans. During his confirmation hearing, Interior Secretary Zinke reaffirmed your Administration’s commitment to President Roosevelt’s conservation vision. Unfortunately, some members of Congress do not share that commitment to conservation and are calling for the repeal of National Monument designations using a never-tested and questionable legal theory.

We urge you to honor your promise to be a great steward of our public lands by upholding the existing protections for the 157 National Monuments that have been designated through the years by nearly every President since the Antiquities Act was enacted into law in 1906. They have protected iconic landscapes across the United States, such as the Grand Canyon, Zion National Park, Chaco Canyon in New Mexico, and Olympic National Park in Washington, as well as cultural icons, including the Statue of Liberty and the Belmont-Paul Women’s Equality Monument. Removing protections for any of these areas would threaten the cultural, historical and biological wealth of our country.

In particular, we urge you to reject calls to rescind protections for the Bears Ears National Monument in Southern Utah. This area contains thousands of archeological and Native American sacred sites currently threatened by looting and vandalism. Notably, this designation represents the first time in which two federal agencies will jointly manage a National Monument along with a commission of elected tribal leaders. For the first time, the designation allows tribal co-management of the Monument—a strong move toward tribal self-determination. Despite the claims of some, there is wide tribal, regional and national support for maintaining protection for Bears Ears. Outdoor recreationists, who drive a $646 billion industry, tribes, archeologists, and local conservation organizations all support the Bears Ears designation.

Most notably, after working individually for decades, the tribes with ancestral ties in this region—the Hopi, Navajo, Ute Mountain Ute, Uintah and Ouray Ute, and Zuni—joined forces to protect Bears Ears and ensure these sacred areas are maintained for future generations. In addition, six of the seven Navajo Chapter Houses in Utah supported the designation, as did the Tri-Ute Council, the Utah Tribal Leaders Association, the Utah Navajo Commission, the National Congress of American Indians, and 25 additional tribes, including many in our home states. This designation culminated more than 80 years of efforts to protect the Bears Ears region. Changes to the designation would strike at the core of the commitments Secretary Zinke has promised tribes.

Weakening the protections for this deserving landscape, or any of the 157 Monuments previously protected, would be a direct affront to the local communities and stakeholders who worked collaboratively to identify and advocated to protect these areas for future generations. This is especially true, in the case of Bears Ears National Monument, for the Native American tribes who call this living cultural landscape their ancestral home. It also would cut against your commitment to be a good steward of our nation’s public lands. We urge you to maintain the current protections so that our children and grandchildren can experience them with the same wonder we do today.

 

https://www.tomudall.senate.gov/news/press-releases/04/12/2017/western-democratic-senators-tell-trump-dont-reverse-national-monument-designations

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