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Animal Law Review

Animal Law Article Emboldens Organizations in Fight to Challenge McKittrick Policy

July 04, 2017

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WildEarth Guardians and the New Mexico Wilderness Alliance’s challenge to the “McKittrick Policy” was spurred on by the publication of an article by Ed Newcomer, Marie Palladini, and Leah Jones in Animal Law 17.2. The article, “The Endangered Species Act v. The United States Department Of Justice: How The Department Of Justice Derailed Criminal Prosecutions Under The Endangered Species,” calls attention to how the federal government in McKittrick v. U.S. voluntarily crafted a policy that would hold hunters less accountable for the killing of protected species under the Endangered Species Act (ESA).

As Newcomer, Palladini, and Jones explain, before McKittrick, prosecutors did not need to prove that hunters charged under the ESA intentionally killed animals that they knew were threatened or endangered. Rather, the government only had to establish that the animals were a protected species. To say the least, the government’s position in McKittrick v. U.S. made prosecuting such crimes under the ESA much more difficult. In its brief filed with the Supreme Court in that case, the federal government of its own volition moved to revise jury instructions by tailoring the definition of “knowingly” to mean that hunters could be found guilty only if they knew that the animals were endangered at the time they were “taken,” or killed. Appropriately understood, the McKittrick Policy represented a self-imposed handicap by the government that undermined the express purpose of the ESA.

As Newcomer explained, “WildEarth Guardians and the New Mexico Wilderness Alliance learned about our article after they filed a FOIA request with the Department of Justice concerning the McKittrick Policy.” Indeed, WildEarth Guardians and the New Mexico Wilderness Alliance challenged the Department of Justice’s position in 2013 on behalf of Mexican wolves. Now, after years of litigation, the U.S. District Court of Arizona has just overturned the government’s flawed McKittrick Policy, calling it “arbitrary and capricious.” In rendering its ruling, the reasonably observed how “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.” Further, the court made clear how the McKittrick Policy “eviscerates the deterrent effect of the ESA criminal enforcement statutes [given that] prosecutions prevented by the McKittrick [P]olicy result in little to no protection for the Mexican wolf and cause direct and real harm, which is neither speculative nor conjectural, to this protected species.”

In sharing this news, Newcomer stated, “It’s been my career goal to see the McKittrick Policy properly explained and then rescinded and I am so incredibly proud that the article played a role in encouraging grass roots legal action by these NGO’s.” He added that the “success of this ‘citizen lawsuit’ and the interest generated by the Animal Law Review article about the McKittrick Policy reinforces my belief in the power of the pen. The little guy can win.”

Read the Animal Law article that inspired the challenge here, and the court’s ruling here.

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