A U.S. District Court in Arizona has ruled that DOJ’s narrow interpretation of the requirements for a criminal misdemeanor under the Endangered Species Act went beyond unreviewable prosecutorial discretion, and its policy was arbitrary and capricious and in violation of the Administrative Procedure Act. WildEarth Guardians v. U.S. Department of Justice

The Endangered Species Act (ESA) provides that it is a criminal misdemeanor to “knowingly” violate the statute. In 1998, the Ninth Circuit Court of Appeals in United States v. McKittrick held that in 1978 Congress had changed the wording of the statute from “willingly” to “knowingly” to make violations of the ESA into “general” intent, rather than “specific” intent crimes.  The Court of Appeals applied the intent obligation narrowly, holding that the government was only required to prove that the defendant intended to shoot an animal, and that the animal shot was endangered, not that the defendant intended to shoot an endangered species, or that the defendant knew the species of the animal shot. When certiorari was sought, the Department of Justice, concerned over how the Supreme Court would rule on this interpretation of “knowingly,” had informed the Supreme Court that it would require that its prosecutors proceed with cases only where the violator knew the biological species of the animal taken.  After the Supreme Court denied cert, DOJ then notified all of its prosecuting attorneys to stop using and to object to the instructions approved by the Ninth Circuit in McKittrick (the “McKittrick policy”).

Environmental groups filed suit in 2013 after they had received information on the McKitrrick policy in response to FOIA requests in 2012. The suit did not challenge any particular application of the policy, but the policy itself.  In ruling on summary judgment on the difficult issue of whether the policy represented unreviewable prosecutorial discretion, or whether DOJ had consciously and expressly adopted a narrow construction of the ESA based on the belief that it lacked authority under the law as espoused in McKittrick, the district court held that in applying the term “knowingly” to every term of the offense, the government in effect had eliminated what Congress intended with its 1978 amendment:  “Putting this in perspective, willfulness would require proof the defendants shot an animal intending to shoot a wolf.  The Court has a hard time distinguishing this from the ‘McKittrick policy – knowingly’ instruction which requires proof the defendant knowingly shot an animal, knowing it was a wolf.”  The court concluded that “Congress placed the burden to know the identity of the wildlife species being killed on the killer.”

The practical impact of this decision, if any, is difficult to predict. Prosecutorial discretion in individual cases, as the District Court recognizes, is non-reviewable by the courts.  Indeed, “[i]t is the case by case discretion to prosecute ‘mistaken’ shootings which is foreclosed by the McKittrick policy.”  However, at least in the Ninth Circuit, United States v. McKittrick appears to be the law, and if the DOJ decides to apply it, those shooting Mexican wolves may find that “oops, thought it was a dog” may not suffice to avoid prosecution.