46 ELR 10496 ENVIRONMENTAL LAW REPORTER 6-2016
and the Endangered
Mens Rea and
by Jonathan Wood
Jonathan Wood is a sta attorney at
the Pacic Legal Foundation.
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 oense; 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
oense, 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.
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 rie
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 ae 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://
nis_latrans.jpg (Apr. 9, 2014).
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
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.
Copyright © 2016 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.