Letter from Utah — From the January 2017 issue

Bounty Hunters

A clandestine war on wolves

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Currently, the greatest threat to the survival of wolves may be the McKittrick Policy, the loophole in the E.S.A. The policy was named for Chad McKittrick, a Montana hunter who was convicted of killing a Canadian gray wolf in 1995. He told wildlife officials that he thought he was shooting a “wild dog” — even though a friend who was with him at the time testified that McKittrick identified the animal as a wolf before he pulled the trigger. (He was later found to be in possession of the wolf’s pelt and head.) McKittrick was handed a six-month sentence, but his lawyers appealed, arguing that a conviction for an “illegal take” under the E.S.A. required that the defendant know the animal is an endangered or threatened species before killing it. Their defense homed in on a single phrase of the law: “knowingly violates any provisions of the Act.”

Most scholars had seen this as a strength of the law, because it reduced the burden of proof that federal prosecutors needed to convict. A hunter could be prosecuted whether or not he thought he was shooting at an unprotected species, Daniel Rohlf, a wildlife-law professor at Lewis and Clark Law School, told me. “In other words, you’d better be darn sure before you pull the trigger.”

McKittrick’s lawyers argued otherwise. The word “knowingly,” they asserted, meant that the government was required to prove McKittrick was aware he was shooting an endangered wolf rather than simply “an animal.” The Ninth Circuit Court rejected that argument, and as a last-ditch effort, McKittrick’s attorneys filed a petition to the Supreme Court. Their petition was denied. Case closed — or so it seemed.

In February 1999, Seth Waxman, the U.S. solicitor general, gave an order that seemed to contradict the rulings of the courts. A DOJ policy memo put his decree into action: “All Department prosecutors are instructed not to request, and to object to, the use of the knowledge instruction at issue in McKittrick.”

Thus the McKittrick Policy was born. For nearly two decades, it has hamstrung efforts to protect threatened and endangered wildlife. “There are people poaching and we can’t prove it,” said Marie Palladini, a criminal-justice professor at California State University, Dominguez Hills, who worked as an F.W.S. agent in southern California when the policy was issued. In addition to wolves, Palladini told me, grizzly bears have been “mistaken” for black bears, whooping cranes for sandhill cranes, California condors for turkey vultures.

While it’s not clear why the DOJ chose an interpretation of the law that departed from previous court decisions (an agency spokesperson offered only a rehash of the policy itself, and Waxman sent me an email saying he had “no recollection of the circumstances”), the McKittrick Policy’s legal and ideological origins can be traced to the late Antonin Scalia, the conservative Supreme Court justice and avid hunter. In Babbitt v. Sweet Home Chapter of Communities for a Greater Oregon, a 1995 case that debated whether the E.S.A.’s protections included harm to animals from habitat destruction, Scalia wrote a dissent that lays out, almost word for word, a framework for the McKittrick Policy. “It is quite possible to take protected wildlife purposefully without doing so knowingly,” he wrote.

The hunter who shoots an elk in the mistaken belief that it is a mule deer has not knowingly violated [the law] — not because he does not know that elk are legally protected but because he does not know what sort of animal he is shooting.

Ed Newcomer, an F.W.S. special agent, says that many federal wildlife agents do not even understand the origins of the policy that has severely hindered their ability to enforce the E.S.A.: “They have been led to believe that a court made this decision, when in fact the highest court made a ruling that is exactly the opposite of how the policy is being applied by the Department of Justice.” It wouldn’t take much to negate McKittrick, he said — just a stroke of the pen by the attorney general. “It’s not a law. It could be rescinded overnight.”

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