Ninth Circuit Dismisses Challenge to Policy Regarding ESA Criminal Prosecutions
Posted in Court Decisions

In WildEarth Guardians et al. v. U.S. Department of Justice, Case Nos. 17-16677, 17-16678, 17-16679 (Oct. 23, 2018), the U.S. Court of Appeals for the Ninth Circuit dismissed plaintiff-appellees case challenging the U.S. Department of Justice’s McKittrick policy.  In reversing the lower court, the Ninth Circuit concluded that plaintiff-appellees lack standing to pursue the case. 

The McKittrick policy directs Department of Justice attorneys who prosecute Endangered Species Act (ESA) cases to request jury instructions that prove beyond a reasonable doubt that a defendant knew the biological identity of the animal taken. In other words, the policy requires a demonstration both that taking of an ESA-protected animal occurred and that the person who exacted the taking knew he or she was taking a protected animal. Importantly, the heightened standard of proof applies only in the context of criminal prosecution under the ESA; civil enforcement of the ESA’s take prohibition is based on strict liability.

Plaintiff-appellees based their standing on the claims that (1) the McKittrick policy decreases the deterrent effect of the ESA’s take prohibition, (2) absent the policy there would be additional prosecutions for take of Mexican wolves (Canis lupus baileyi), and (3) those prosecutions would deter persons from engaging in activity that leads to take, which would decrease the take of Mexican wolves. In rejecting this logic chain, the Ninth Circuit held WildEarth’s conclusion necessarily rests upon several layers of speculation.  This includes speculation about the enforcement priorities of both the U.S. Fish and Wildlife Service and the Department of Justice, as well as the behavior of members of the public.  It is unlikely plaintiff-appellees will seek further review of the case.​


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  • Paul S. Weiland

    Paul Weiland is Assistant Managing Partner and a member of the Environment & Land Use Group. He has represented clients – including public agencies, publicly regulated utilities, corporations, trade associations and ...

Nossaman’s Endangered Species Law & Policy blog focuses on news, events, and policies affecting endangered species issues in California and throughout the United States. Topics include listing and critical habitat decisions, conservation and recovery planning, inter-agency consultation, and related developments in law, policy, and science. We also inform readers about regulatory and legislative developments, as well as key court decisions.

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