WildEarth Guardians

A Force for Nature

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Jim Clark, FWS

Major loss for lobos and other endangered species

WildEarth Guardians et al. v. USDOJ
Lost, Case was dismissed by the 9th Circuit Court of Appeals
Case No.
Date Filed
May 30, 2013
State, Venue
Arizona, Arizona Federal District Court
Steve Sugarman, Judy Calman (NM Wilderness Alliance)
In June 2017, the Arizona Federal District Court ruled in favor of Guardians’ claim that the longstanding McKittrick Policy, which protected killers of protected species from prosecution, was in violation of the Endangered Species Act (ESA). However, the Lower Court’s decision was overturned in October 2018. The suit was first filed by Guardians and New Mexico Wilderness Alliance in 2013. The McKittrick Policy held that the killer of an endangered species could avoid prosecution for violating the ESA by claiming that they were ignorant of the exact biological identity of the animal that they killed. The policy stems from a 1998 case, United States v. McKittrick, in which the Ninth Circuit Court of Appeals ruled that the appellant, Chad McKittrick, was not in violation of the ESA for killing a protected gray wolf–an act that McKittrick claimed was done unwittingly.

While the killing of many threatened species, including gray wolves, grizzly bears, whooping cranes, and condors, among others, has occurred without prosecution, the most affected endangered species is the Mexican gray wolf. The Mexican gray wolf was once abundant across the American Southwest; beginning in the early twentieth century, however, a campaign of hunting and trapping brought the species to near extinction. The last wild Mexican gray wolf in the United States was supposedly killed in 1970, and the species was listed as endangered under the ESA in 1976. A recovery program was implemented by the U.S. Fish and Wildlife Service (FWS) in the 1980s in an attempt to save the species. Animals bred in captivity were released into the Apache-Sitgreaves National Forest in Arizona. FWS claimed that strict enforcements of hunting laws, along with public announcements of the reintroductions, would ensure the protection of the wolves. Yet, of the initial release of 11 wolves in 1998, five were killed illegally in the first few months after their release. In subsequent years, 43 more wolves have been killed illegally. And although the ESA’s “penalties and enforcement” section contains a provision making knowing violations of the ESA, including killing protected animals, a criminal offense, killing of Mexican gray wolves continued with impunity thanks to the Department of Justice (DOJ)’s adherence to the McKittrick Policy.

In the 2013 suit filed in Arizona Federal District Court, Guardians argued that DOJ’s McKittrick Policy was in violation of the ESA because it resulted in an abdication of DOJ’s statutory responsibilities to enforce the criminal penalties provision of the ESA. This loophole specifically threatened the success of the Mexican gray wolf and impeded FWS’s conservation efforts for other ESA-listed species. The court ruled in favor of Guardians and found the McKittrick Policy in violation of the ESA. The DOJ and other organizations have appealed the ruling, and the 9th Circuit Court of Appeals dismissed the case in October 2018 (see: WildEarth Guardians et al. v. USDOJ, 17-16677, 17-166789, 17-16679).