January 6, 2015
Guest Commentary by Judy Calman, Staff Attorney for New Mexico Wilderness Alliance
Originally appeared at nywolf.org
A wolf was shot and killed in Utah on December 28th. It was likely an endangered, federally protected wolf named Echo. She was the first wolf documented in the Grand Canyon in over seventy years, but even though the law is on the wolf’s side, this man will never be prosecuted for a crime. Bad policies and weak enforcement of the Endangered Species Act (“ESA”) ensure that at least for now, Echo’s death will be ignored by the very agencies charged with her protection.
I’ve always loved ESA. The law is short, passionate, and eloquently considers the big picture of sustainability in a way that, unfortunately, only rarely comes out of Congress.
In the words of Congress itself, the purpose of the ESA is to, “provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved [and] to provide a program for the conservation of such endangered species…” (ESA, Section 2 (b)).
Philosophically, I’ve always found this to be far more meaningful than levels of allowable toxins, directions for cleaning up hazardous waste, or the requirements of permits and filters. The ESA recognized that a natural ecosystem as a whole was valuable, and that even individual people could have an impact on a species’ survival. The statute surely does protect the plants and animals themselves, but it also sees the interconnections of those animals and plants with the larger biosphere.
Because of this, in addition to establishing recovery plans and protected habitat, the ESA made “taking” (killing or harming) endangered species a federal crime which can include serious penalties like jail time and steep fines. US Courts have said repeatedly that the ESA is the highest priority for federal agencies (1). The emphasis placed on the importance of this statute by judges, members of Congress, federal agencies and advocates, has always made me feel it was one of the best tools for conservation.
Wolves have been found to be a “keystone” species in their ecosystems, playing a critical role in the biological community’s health. The reintroduction of wolves has always been controversial. Misunderstandings and confusion about the wolves have led to unjustified fear and anger (2). Sometimes, they’ve led to murder. Wolf murder, which according to the ESA, still counts.
For many years illegal wolf killing has been a problem, and it has been unclear how much law enforcement the Fish and Wildlife Service (“FWS”) actually does when wolves are killed, and whether people are actually prosecuted for their actions.
FWS has documented over fifty wolves as having been illegally shot in the past fifteen years just among Mexican wolves in New Mexico and Arizona. Another nine dead Mexican wolves have “unknown” listed as their cause of death. There are currently only around eighty three wild Mexican wolves in the United States. A little research shows quickly that despite the high number of wolf kills, and despite often knowing the perpetrator, people are almost never prosecuted for “takes” under the ESA.
The wolves’ deaths were often gruesome, and among the files I’ve read it’s not unusual for the responsible individual to bury the wolf on their property to try to hide it from law enforcement, to attempt destruction of the $2,000 radio transmitters the wolves wear, and to lie to law enforcement about the incident. Out of all the documented Mexican wolf deaths, only one person has ever served time in jail. After that, the steepest punishment was one year of probation and a fine of ten dollars. No one else was even charged with criminal violations. These statistics are similar to those of other wolf populations.
How could this happen? How could a law that aspired to so lofty a goal, that I and others have put so much faith in, have failed so greatly in terms of enforcement?
It turns out, this happened chiefly through a quiet policy change put in place by the US Department of Justice, known as the McKittrick Policy.
Every time a suspect was confronted by FWS law enforcement they consistently stated that they thought the animal they were shooting was a coyote. Theoretically this shouldn’t matter in terms of prosecution, since the ESA doesn’t require knowledge of the species in order to be convicted. It turns out this assumption no longer holds water, although by looking at the statute or at most court cases no one would be able to tell.
Criminal laws contain “elements” that must be met in order for a defendant to be convicted. Often, these include a required mental state. For example, to be convicted of first degree murder, it must be proven that the killing was premeditated; that the defendant thought about it and planned it. If you can’t prove that, a conviction of first degree murder is not possible.
For the first twenty years of the ESA’s history, to convict someone of “taking” an endangered species, the US Attorney was only required to prove that the person acted willfully and that an endangered species had in fact been taken. It was not necessary to prove that the person knew exactly what species it was, or that it was listed on the ESA. This means a “take” is a general, rather than a specific intent crime. That this was the intention of Congress when passing the statute was corroborated by Congressional records.
In the mid-1990’s, the Justice Department prosecuted a man named Chad McKittrick for killing a gray wolf. McKittrick argued that the ESA should be a considered a specific intent crime, and that the government should be required to prove knowledge of the biological identity of the species which was harmed in order to bring charges. In other words, he argued that if the government couldn’t prove he knew the animal was a wolf before he shot it (in his case he claimed he thought the animal was a dog (who goes around shooting dogs?)) it should not be allowed to prosecute him. The courts disagreed, and both the District Court and the 9th Circuit Court of Appeals upheld his conviction.
Upon preparation for taking the case to the US Supreme Court, however, the Department suddenly stated that they would no longer pursue ESA cases where they could not prove the defendant knew what species they were harming. Essentially, the Department adopted McKittrick’s viewpoint without being ordered to by a court, without going through a rulemaking process, and without a change in position by the Executive Branch. The Justice Department has adhered to this position ever since.
Unfortunately, this policy is not only applied to wolves, but to all endangered species. There have been countless incidents of animals being killed without any repercussions, simply because the person claimed they thought the animal was actually something else. People have claimed they thought grizzly bears were black bears, that they thought condors were vultures, that they thought red wolves were coyotes, that whooping cranes were sandhills. The list goes on.
In 2013, the New Mexico Wilderness Alliance and WildEarth Guardians filed a lawsuit against the Department of Justice to try to reverse the policy. Echo’s death unfortunately underscores this need once again. We have to decide whether it’s worth it to us to heed the ESA’s call of preserving functioning ecosystems. If it is, we need to back up our policies with education, progress, and when necessary, serious commitment to law enforcement.
(1) Tennessee Valley Authority v. Hill 437 U.S. 153 (1978)
(2) One of many examples: in 2007, during a House Committee Hearing, US Congressman Steve Pearce stated on the record that nothing is more attractive to a wolf than the sound of a crying baby or a laughing baby, and warned that wolves would snatch babies from their cradles. He then told a fellow Congressman during the hearing that the blood of those children would “be on his hands” for supporting the wolf reintroduction project. See Congressional Record, June 26, 2007, page H7170