Unintentional, accidental “take” of species should not be a crime

PLF successfully intervened on behalf of the New Mexico Cattle Growers’ Association, New Mexico Federal Lands Council, and the New Mexico Farm and Livestock Bureau in this lawsuit that threatens to radically expand criminal liability under the Endangered Species Act. WildEarth Guardians challenges a federal policy that limits prosecutions under the statute’s broad “take” prohibition to cases where a person knows that his or her actions will cause “take” and the identity of the creature that will be taken. WildEarth Guardians claims that this policy results in under-enforcement of the statute, to the detriment of the Mexican gray wolf’s recovery.

PLF defends the policy on the ground that its compelled by the statute, which only allows people to be thrown in jail if they “knowingly” take a protected species. This means you can’t be imprisoned for doing something that accidentally and unbeknownst to you affected one of the 1500 listed species. This limitation is essential to the reasonable interpretation of the act because “take” is so broad and the list of species is so long. Trimming or cutting down a tree can be “take” if the tree is habitat used by a protected species. Fishing can be “take,” if you catch the wrong fish. Farming can, too, if a plow disturbs a protected insect, rodent, or any other protected animal. Even jogging can result in “take,” if you have the misfortune to step on a protected insect crossing your path.

The government agrees with PLF that it cannot criminally punish people for innocent mistakes but the Arizona district court nonetheless adopted WildEarth Guardian’s overcriminalization plan, holding that you can be criminally prosecuted for “knowingly” violating the ESA’s take prohibition for knowingly engaging in an action that causes take, regardless of whether you knew what species would be taken. On October 23, the Ninth Circuit ruled in our favor in WildEarth Guardians.