Overcriminalization and the Endangered Species Act: Mens Rea and Criminal Convictions for Take

• Date: 01 June 2016

46 ELR 10496 ENVIRONMENTAL LAW REPORTER 6-2016

Overcriminalization

and the Endangered

Species Act:

Mens Rea and

Criminal Convictions

for Take

by Jonathan Wood

Jonathan Wood is a sta attorney at

the Pacic Legal Foundation.

Summary

e Endangered Species Act (ESA) makes it a crime

to “knowingly” take any member of an endangered

species. e government has generally interpreted this

to require the defendant’s k nowledge of each of the

elements of the oense; however, it has not been con-

sistent in this interpretation. In several cases, it has

argued that the defendant need only have knowingly

engaged in an act that resulted in take, and that knowl-

edge that a particular species will be taken is unnec-

essary. is Article argues that the statute requires

knowledge of all the facts, including the identity of

the species. In other contexts, the U.S. Supreme Court

has required knowledge of the facts constituting an

oense, for fear of criminalizing apparently innocent,

ordinary conduct. e breadth of the ESA’s take pro-

vision and the number a nd obscurity of the species

subject to it counsel in favor of interpreting the statute

consistent with this general rule.

A

shepherd is startled from his sleep by the sound of

a commotion amongst his ock. Uncertain as to

the c ause but fearing the worst, he grabs his rie

and heads to his sheep. ere is just enough light from the

moon to see a predator viciously attacking them. Believ-

ing it is a coyote and that the massacre will not be end-

ing any time soon, the shepherd res and hears a loud cry.

He proceeds to check on his ock and the predator, only

to discover t hat it was not a coyote, but a simila r-looking

Mexican gray wolf.1 Unfortunately for him, the wolf is

protected by the Endangered Species Act (ESA),2 k now-

ing violations of which are punishable by up to a $50,000

criminal ne, one-year imprisonment, and t he loss of any

federal grazing rights.3 Has the shepherd “k nowingly”

killed the wolf ?

Surprisingly, the answer to this que stion remains

unsett led more than 40 years after the ES A was adopted.

e U.S. Courts of Appe als for the Fift h and Ninth

Circuits have ru led (on analogous facts) that the defen-

dant did k nowingly kill the end angered specimen, and

accepted the government’s argument that the statute

allows a conv iction when a defendant knowing ly engages

in an ac t that takes a protected species, even if he d id

not know that his actions would ae ct a particular spe-

cies.4 However, when the defendant in  

v. McKittrick (the Ninth Circuit case) petitioned the

U.S. Supreme Court to hear the case, the government

abruptly ip-opped, proclaiming that this was not a

proper inter pretation of “know ingly.”5 Subsequently, the

U.S. Department of Justice (DOJ) adopted the so-cal led

McKittrick Policy, interpret ing the ESA to require proof

that t he defendant k new al l of t he facts constituting the

1. See U.S. Fish & Wildlife Serv., 

Wolves and Coyotes, http://www.fws.gov/southwest/es/mexicanwolf/IMWC.

cfm (May 16, 2014);     , http://

en.wikipedia.org/wiki/Red_wolf#mediaviewer/File:Canis_rufus_%26_Ca-

nis_latrans.jpg (Apr. 9, 2014).

2. 16 U.S.C. §§1531-1544, ELR S. ESA §§2-18.

3. 16 U.S.C. §§1538(a)(1), 1540(b).

4. See United States v. McKittrick, 142 F.3d 1170, 28 ELR 21197 (9th Cir.

1998); United States v. Nguyen, 916 F.2d 1016 (5th Cir. 1990). Several

district courts have also addressed this question, similarly ruling that knowl-

edge that an action will take a particular species is not required. See United

States v. St. Onge, 676 F. Supp. 1044, 1045 (D. Mont. 1988); United States

v. Billie, 667 F. Supp. 1485 (S.D. Fla. 1987).

5. See Brief for United States in Opposition, McKittrick v. United States (No.

98-5406, 525 U.S. 1072 (1999)).

    



Editors’ Note: e author represents agricultural organizations on

a motion to intervene in WildEarth Guardians. See Motion to

Intervene, WildEarth Guardians v. U.S. Dep’t of Justice, No. 13-

cv-392 (led Sept. 30, 2015) (D. Ariz.), available at http://blog.



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