283 F. Supp. 3d 783
D. Ariz.
2017
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Background

  • Plaintiffs (WildEarth Guardians) challenge a Department of Justice (DOJ) prosecutorial "McKittrick policy" that directs prosecutors to require proof that a defendant knew the biological identity of the animal (e.g., knew it was a wolf) to prove the mens rea "knowingly" for misdemeanor ESA take prosecutions.
  • The McKittrick policy was issued after the Ninth Circuit's opinion in United States v. McKittrick, 142 F.3d 1170 (9th Cir. 1998), which held "knowingly" required only knowledge of the act (shooting an animal) and that the animal was a protected species, not knowledge of the species' legal status.
  • Plaintiffs asserted the policy is ultra vires and arbitrary and capricious in violation of the Administrative Procedure Act (APA), and that DOJ failed to consult the Fish and Wildlife Service (FWS) under ESA § 7 regarding the policy's impacts.
  • The DOJ defended the policy as permissible prosecutorial discretion and argued "knowingly" should apply to all elements (including species identity) based on public-welfare/statutory-interpretation principles and Supreme Court precedents such as Boyce and Staples.
  • The court found (1) the McKittrick policy is unlawful under the APA because it abdicates DOJ's statutory enforcement responsibilities under the ESA by foreclosing prosecutions for mistaken/careless takings, and (2) the Section 7 failure-to-consult claim was dismissed as to the Mexican gray wolf because nonessential experimental populations are treated "solely for purposes of section 7" as proposed-to-be-listed species and thus § 7 consultation was not required for that population.

Issues

Issue Plaintiff's Argument Defendant's Argument Held
Whether DOJ's McKittrick policy is reviewable under the APA or an unreviewable exercise of prosecutorial discretion McKittrick policy is a formal, nationwide enforcement policy that amounts to an abdication of statutory duty and is therefore reviewable Prosecutorial nonenforcement is presumptively unreviewable; DOJ has absolute discretion to decline prosecutions Reviewable; policy is a final agency action and not protected by absolute prosecutorial-discretion immunity where it effects a general, binding abdication of statutory enforcement duties
Whether the McKittrick policy correctly construes the mens rea "knowingly" in ESA § 11 to require proof the defendant knew the biological identity of the animal Plaintiffs: ESA is a public-welfare regulatory statute; Congress intended broad enforcement; ‘‘knowingly’’ need not be read to require knowledge of legal status but does permit prosecution for mistaken/careless takings—DOJ policy unlawfully narrows liability DOJ: "Knowingly" should apply to every element, including species identity; prudent prosecutorial policy given Supreme Court precedent; avoids wrongful convictions DOJ's policy is unlawful under the APA; court holds ESA § 11 context supports treating it as a public-welfare regulatory offense and DOJ cannot categorically foreclose prosecutions for mistaken/careless takings
Whether DOJ's adoption of the McKittrick policy violated ESA § 7's consultation requirement with FWS Plaintiffs: DOJ's policy is an agency action that may affect listed species and required consultation DOJ & Intervenors: either policy does not trigger § 7 consultation for Mexican gray wolf or consultation not required Denied for Mexican gray wolf: because Mexican gray wolf is a nonessential experimental population, for purposes of § 7 it is treated as a species proposed to be listed—§ 7 consultation not required here; thus § 7 claim dismissed as to Mexican gray wolf
Remedy under APA for unlawful policy Plaintiffs seek vacatur or injunction of policy and declaratory relief DOJ argues prosecutorial discretion and reliance justify denial of relief Court grants summary judgment to Plaintiffs on APA claim (policy arbitrary, capricious, abuse of discretion) and denies Plaintiffs' § 7 claim regarding Mexican gray wolf

Key Cases Cited

  • United States v. McKittrick, 142 F.3d 1170 (9th Cir. 1998) (held "knowingly" required knowledge of the act of taking and that the animal was a protected species, not knowledge of species' legal status)
  • Heckler v. Chaney, 470 U.S. 821 (1985) (presumption against judicial review of agency decisions not to enforce, with narrow exceptions)
  • Boyce Motor Lines, Inc. v. United States, 342 U.S. 337 (1952) (interpretation of "knowing" in public-welfare/regulatory contexts requiring knowledge of essential facts or willful neglect to inquire)
  • Staples v. United States, 511 U.S. 600 (1994) (mens rea presumption where criminalizing otherwise lawful conduct may require proof of defendant's knowledge of salient facts)
  • Morissette v. United States, 342 U.S. 246 (1952) (distinction between traditional crimes and public-welfare regulatory offenses)
  • Babbitt v. Sweet Home Chapt. of Cmtys. for a Great Oregon, 515 U.S. 687 (1995) (broad statutory purpose of ESA and scope of "take" informing mens rea and regulatory interpretation)
  • United States v. International Minerals & Chemical Corp., 402 U.S. 558 (1971) (public-welfare regulation and presumption of awareness in highly regulated contexts)
  • United States v. Lynch, 233 F.3d 1139 (9th Cir. 2000) (interpreting "knowingly" in ARPA context and requiring knowledge of facts that make conduct illegal for felony statutes)
  • Elonis v. United States, 135 S. Ct. 2001 (2015) (presumption that mens rea applies to each element of criminal offense; negligence insufficient for certain mental-state elements)
  • United States v. Hanousek, 176 F.3d 1116 (9th Cir. 1999) (CWA criminal provisions treated as public-welfare offenses in Ninth Circuit)
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