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 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.

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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.

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

  1. avatar Birdpond says:

    Fantastic news! Thank you – SHARING!

  2. avatar Immer Treue says:

    Double edged sword. The McKittrick policy should never have been initiated. Positively ID your target, or don’t shoot.
    I don’t think it will do much in regard to wolves getting shot, because as some have said in the past, when the mistake is made, folks will not be inclined to turn themselves in, and those who chose to shoot wolves with the blanket of McKittrick will probably continue to do so.

    This will only effect the discerning hunter.

    • avatar Ida Lupine says:

      But there won’t be a government blanket anymore. That’s the beauty of it. They will do what they will do anyway, and have. At least the government is no longer going to be able to CTA.

      I fully expect to hear about some helpless animal killed in protest though.

      5….4…..3….2…..

  3. avatar Ida Lupine says:

    Woah!!!!! Great news.

  4. It will also save red wolves in North Carolina, which are being shot as coyotes, and even Florida panthers. In 2008 a deer hunter in a tree stand in Georgia shot a cougar which turned out to be a young male panther born in SW Florida.

  5. avatar Carter Niemeyer says:

    I think this is great news and only logical. I have always contended that duck hunters are required to follow the laws that restrict the killing of species of ducks from year to year based upon how that species is doing population-wise. Example being, a seven duck limit, but only one canvasback. If a duck hunter is required to recognize a species of duck on wing flying 40 feet above them on a cloudy, rainy day, then, a coyote hunter has NO excuse for confusing a wolf and a coyote. As far as the ruling affecting wolf poaching, it won’t, because poachers are poachers. The McKittrick Policy never,ever made sense to me.

    • avatar Patrick says:

      Great comparison of standards of ID between hunters and their quarry. I guess the difference is killing the wrong duck takes it from the population that could be eventually hunted by someone else.

  6. avatar WM says:

    I have always thought this to be a stupid policy. And contrary to my mostly consistently critical views of some advocacy groups, believe this was a good challenge and excellent outcome. The real issue -where the rubber meets the road ultimately- is the latitude given to law enforcement on prosecutorial discretion. Lots to digest in the 45 page opinion, but haven’t had a chance to look at it.

    And, when applied to wolves, one has to ask the question whether taxpayer dollars really do take higher priority here or on other federal prosecutions. Most here won’t like my view, but I’d rather see more emphasis on real criminal prosecution of things like drug or human trafficking and anti-trust.

    And, I suppose there always is the possibility the ESA gets changed to give greater latitude to the “I thought it was a coyote” defense. Something to think about.

  7. avatar Larry Keeney says:

    McKittrick was an impossible hurdle to overcome for agents who then tried to prosecute based on a secondary offense such as transportation. This is great news but have fear this political climate may change statute liability to essentially codify McKittrick. Wonder why it has taken so long. Think it’s been about twenty years.

  8. avatar Sherry Merritt says:

    Thank you WildEatth Gardians and New Mexico Wilderness Alliance for fighting for our wildlife. They need our voice. And Thank you to the Federal judge that ruled in the wildlifes favor.

  9. Friends of the Wild Whoopers, FOTWW is pleased to see a court ruling that properly interprets the law to protect the endangered Whooping Crane and other endangered species.

  10. avatar Yvette says:

    Glad to see this legal decision.

    Next up, let’s get better protection for coyotes. I prefer that they aren’t hunted but that won’t happen, so let’s do away with the vermin designation.

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