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Press Release: Groups Sue U.S. for Failure to Prosecute Under the Endangered Species Act

Poachers Kill Protected Wildlife, but Get Away Scott Free – July 23, 2015 (McKittrick Policy)

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Poachers Kill Protected Wildlife, but Get Away Scott Free
Press Contact:
Bethany Cotton
WildEarth Guardians
(503) 327-4923

Additional Contact:
Judy Calman
New Mexico Wilderness Alliance
505-843-8696 x 102
judy@nmwild.org

Tuscon, AZ.  The United States Department of Justice (DOJ) has failed to prosecute dozens of individuals who have killed endangered animals protected by the federal Endangered Species Act (ESA), prompting WildEarth Guardians and the New Mexico Wilderness Alliance to sue the federal prosecutorial agency.  In their lawsuit, the groups ask the federal court to invalidate the so-called “McKittrick Policy” which has led to this systemic failure to prosecute.

Under its “McKittrick Policy,” the DOJ has taken the wrongful position that it can only prosecute cases for the illegal killing of ESA-protected species when it can prove that the killer specifically intended to kill an endangered species.  The DOJ very rarely – if ever – prosecutes an individual for illegally killing a protected animal if the killer claims that the killing resulted from a case of “mistaken identity.”

For example, during the tenure of DOJ’s policy 48 Mexican wolves were illegally shot in the wild.  Only two of these incidents resulted in a federal prosecution for illegal “take”  (harm or killing) under ESA. The groups believe that the McKittrick Policy has emboldened individuals who are opposed to the conservation of endangered species to disregard the law, as they know that an illegal shooting will almost certainly not lead to federal prosecution. For the Mexican wolf, the effects of the Policy have been cataclysmic:  illegal shooting is by far the highest source of mortality for the free-roaming Mexican wolf population.

“Dozens of highly-endangered Mexican wolves have been illegally shot, and in almost every case I’ve reviewed, poachers claimed they thought they had shot a coyote,” said Judy Calman, staff attorney for New Mexico Wilderness Alliance. “Despite these killings, the DOJ has failed to prosecute to protect the lobos,” she added.

The lawsuit claims that the Mexican Wolf Rule that issued pursuant to the ESA provides for “vigorous enforcement” of such illegal killings, and prosecutors neither need to prove that endangered-wildlife killers had actually biological knowledge of the species they killed, nor an intention to purposely kill endangered wildlife. The conservation groups seek the invalidation of the “McKittrick Policy” based on its inconsistency with Congress’ plain intent and twenty-five years of case law which protects endangered species from bad actors.

“The DOJ has lost its moral compass and abdicated its duties to protect America’s greatest national treasures: Mexican wolves, grizzly bears, and California condors,” said Wendy Keefover, Director, Carnivore Protection Program for WildEarth Guardians. “The policy means that people can commit the most well-planned assassinations of America’s most endangered animals and then literally get away with murder,” she added.

The DOJ’s “McKittrick Policy” stems from a change in jury instructions by DOJ after the agency had won its prosecution of wolf killer, Chad McKittrick of Montana, who shot one of the first restored gray wolves to the Northern Rockies. While McKittrick claimed mistaken identity, the jury convicted McKittrick on three counts of poaching, and the federal appeals court upheld the conviction. When McKittrick sought to have the case heard by the United States  Supreme Court, however, the DOJ distanced itself from the criminal enforcement provisions of the ESA – as they have been written by Congress and interpreted by the Courts – by adopting a policy which sets the bar so high for prosecution that criminal enforcement of illegal killings has come to a grinding halt.

“While the DOJ dawdles, Mexican wolf and other endangered species populations dwindle, and we plan to change that,” asserted Calman.

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For more information about the McKittrick Policy, visit WildEarth Guardians.

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