In June, a federal judge in Arizona struck down the Department of Justice’s longstanding “McKittrick Policy.” This policy advised the DOJ’s attorneys to prosecute individuals who killed threatened and endangered species in violation of the Endangered Species Act (ESA) only when they could prove that the offender had killed an animal the offender knew was a member of a protected species.
In other words, if you shot a protected wolf and said you thought it was a coyote, you were absolved, which not only violated the intent of the ESA, but ensured that offenders were rarely if ever prosecuted for killing protected species. The DOJ adopted this policy in 1999—essentially taking the position of the defendant in United States v. McKittrick, despite the fact that the Ninth Circuit Court of Appeals had rejected this narrow intent standard and ruled in the government’s favor in the case.
The court’s published opinion found that the policy was outside the range of prosecutorial authority given to the department under the ESA. This decision will now allow prosecutors to more aggressively pursue charges against those who willfully kill protected species instead of giving them a get-out-of-jail-free card. Although prosecutors within the department will always maintain a certain level of discretion in deciding when to press charges, and there is some concern that the department may attempt to treat this decision as limited in jurisdiction, this is a significant win, making it more difficult for hunters to get away with shooting protected species.