The Endangered Species Act (“ESA”) makes it a crime to “knowingly” violate the statute. “Any person who knowingly violates any provision of this Act, of any permit or certificate issued hereunder, or of any [certain] regulation issued . . ., upon conviction, be fined not more than $50,000 or imprisoned for not more than one year, or both. Any person who knowingly violates any provision of any other [certain] regulation issued under this Act shall, upon conviction, be fined not more than $25,000 or imprisoned for not more than six months, or both.” 16 U.S.C. § 1540(b). The original wording was changed by Congress in 1978 to change the mens rea from “willingly” to “knowingly” in order to make violations of the ESA into a “general intent” crime in line with the interpretation of other environmental statutes.
In 1998, United States v. McKittrick held that the intent obligation was narrow, that the government was only required to prove that the defendant intended to shoot an animal (intended to act), and that the animal shot was endangered, not that the defendant intended to shoot an endangered species (i.e. knew that the animal was endangered), or that the defendant knew the species of the animal shot. Certiorari was then sought and the DOJ, voicing on this interpretation of “knowingly,” informed SCOTUS that it would proceed with cases only where the violator knew the biological species of the animal taken. This became known as the “McKittrick policy”.
Environmental groups file FOIA requests on the McKittrick policy in 2012 and then filed suit in 2013. The suit challenged the policy, not the application of the policy. On June 21, 2017, the US District Court in Arizona ruled that the DOJ’s narrow interpretation of the requirements for a misdemeanor under the ESA was arbitrary and capricious and in violation of the Administrative Procedure Act. WildEarth Guardians v. U.S. Department of Justice No. CV-13-00392-TUC-DCB (D. Az. 06/21/17). The issue was whether the McKittrick policy was unreviewable prosecutorial discretion or an ultra viries agency
policy (the DOJ has adopted an agency policy exceeding its statutory authority). Essentially, the court held that in applying the McKittrick policy, the government had effectively limiting the 1978 amendment to the ESA. The court held: “Congress placed the burden to know the identity of the wildlife species being killed on the killer.”
Mistaken shootings will still be prosecuted, except for in the Ninth Circuit as McKittrick is still the law. In other words, the “oops” defense will not be available in the Ninth Circuit.
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