Ruling: hunters responsible for identifying targets before shooting

Endangered Mexican wolves roam wilderness areas near the Arizona-New Mexico border.

Photo/Creative Commons

Endangered Mexican wolves roam wilderness areas near the Arizona-New Mexico border.

GRAND CANYON, Ariz. — In a June 17 ruling, a federal judge struck down the Department of Justice’s “McKittrick Policy,” allowing prosecutors to more aggressively pursue charges against those who kill protected wildlife species, including Mexican wolves.

Judge David Bury of the Arizona District Court, found in favor of plaintiffs WildEarth Guardians and New Mexico Wildlife Alliance, who filed suit in 2015 against the U.S. Department of Justice (DOJ) for failing to prosecute those who killed species protected under the Endangered Species Act (ESA).

At the heart of the lawsuit is the McKittrick Policy, which advises the DOJ to prosecute only when it can prove that an offender knowingly killed a protected species. The plaintiffs argued that the DOJ almost never brought charges against those who killed an endangered animal if that individual claimed it was a case of mistaken identity — believing a protected wolf to be a coyote, for example.

The lawsuit claims the McKittrick Policy, which it says has never been published in the Federal Register, prevents the U.S. Fish and Wildlife Service (USFWS) from enforcing penalties set forth in the ESA for poaching or killing protected wildlife. The McKittrick Policy came about as a result of ‘United States v. McKittrick, a 1998 lawsuit decided in the Ninth Circuit Court of Appeals in San Fransisco, California. That court overturned an earlier ruling stating a person must knowingly shoot an animal, in this case a Mexican wolf, with the specific intent of killing it in spite of its ESA designation. As a result of the ruling, the DOJ informed its attorneys that they must be able to prove beyond a reasonable doubt a defendant knew the biological identity of the animal he or she killed — the McKittrick Policy.

Bury found the DOJ’s McKittrick Policy violated the Administrative Procedure Act, stating it was “based solely on the agency’s belief that it lacked jurisdiction” to prosecute shooters of protected wildlife without direct evidence of intent.

The court’s published opinion found that the McKittrick Policy was “outside the range of prosecutorial authority” given to DOJ under the ESA. Writing for the court, Bury stated the government “does not need to prove the defendant knew that killing an endangered or threatened species was illegal or that the animal he or she shot was protected under the law.”

The opinion echoes a provision of the USFWS wolf introduction program, which is part of the ESA and subject to a formal rule-making procedure in Congress. The Final Rule of that procedure places the responsibility of species identification on the hunter, stating “hunters (and others) who might shoot a wolf are responsible for identifying their targets before shooting.”

Prosecutions prevented by the McKittrick policy result in little to no protection for the Mexican wolf and cause direct and real harm, Bury wrote.

Arizona Game and Fish Department investigates a handful of Mexican wolf shootings per year, and maintains a website on how hunters (and others) can determine if an animal is a coyote or a wolf. Allegedly mistaking wolves for wild dogs or coyotes has resulted in a number of deaths, including the 2014 death of Echo, a Northern gray wolf thought to have been the first to wander as far as Arizona in more than 70 years. A female wolf, Echo was captured and collared near Cody, Wyoming in 2014 and tracked hundreds of miles to the North Rim of the Grand Canyon. Echo was shot near Beaver, Utah, the same year by a hunter who allegedly mistook the wolf for a coyote.

In a statement, WildEarth Guardians program director Bethany Colton called the ruling a crucial victory.

“The end of the McKittrick Policy is a crucial victory for critically imperiled animals including Mexican wolves and grizzly bears,” she said. “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.”

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