PLF defends against overcriminalization under the Endangered Species Act

March 23, 2017 | By JONATHAN WOOD

William Blackstone famously said “it is better that ten guilty persons escape than one innocent suffer.” Today, the criminal law honors that venerable principle by forbidding anyone from being criminally punished unless they commit an illegal act with a blameworthy state of mind. That’s why mens rea (or guilty mind) is an element of essentially all crimes.

PLF defends this principle in an Arizona case in which environmental groups seek to throw out this essential criminal justice protection in their blind pursuit of protecting endangered species. They argue that the government should be able to imprison anyone who causes “take.” In other words, you should go to jail if you do anything that accidentally harms a species listed under the Endangered Species Act, even if you didn’t know that your actions would harm a species or which species. The argument would effectively criminalize your inability to recognize every listed species.

Representing several southwestern agricultural groups, PLF has asked the District Court of Arizona to reject this insane argument. As our brief explains, the environmental groups’ extreme theory would criminalize a host of innocent activities that people engage in every day.

A person causes take, for instance, if she builds a home on her private property unaware that an obscure insect lives below the surface. She
also causes take if, while driving down a rural highway late at night, she accidentally hits a protected animal that darts in front of her car. So too does a mom who moves an animal that has been run over in the street in front of her house before her kids see it.

The list of ordinary, seemingly innocent activities that can cause take does not end there. Trimming or cutting down a tree can be take if the tree is used by a protected species for some biological function. Fishing can be take, if you catch the wrong fish. Farming can, too, if a plow disturbs a protected insect, rodent, or any other animal. Jogging can result in take, if you have the misfortune to step on a protected insect crossing your path.

If it seems absurd to you that any of these situations would be a crime, you’re not alone. Congress had the same concern and limited criminal punishment to situations where a person “knowingly” takes a protected species.

The Supreme Court has also repeatedly expressed concern about the injustice that would result if the criminal law were allowed to expand as the environmental groups wish it would. The Court has recently reaffirmed a “general rule” that a guilty mind is “a necessary element in the indictment and proof of every crime.” When the guilty mind requirement is “knowingly,” prosecutors must prove “knowledge of the facts that constitute the offense.” At a minimum, knowingly must be interpreted broadly to “shield people against punishment for apparently innocent activity.”

The irony of this case is that the federal government has conceded that Supreme Court precedent bars it from criminally punishing people for innocent mistakes, as the environmental groups want. As we conclude our brief:

Admirably, the Department of Justice has acquiesced to Supreme Court precedent limiting its power to stretch the criminal law. But no good deed goes unpunished. WildEarth Guardians challenges that legally compelled interpretation on policy grounds and as inconsistent with a two-decade old Ninth Circuit decision. That decision is clearly irreconcilable with Supreme Court precedent. Thus, the Court must follow the controlling Supreme Court precedent, not the eclipsed Ninth Circuit decision. As the United States has interpreted the statute for more than two decades, a person “knowingly” takes an endangered species only if he engages in an act knowing that it will cause take and the species that will be taken.

If you’d like to know more, I’ve written an FAQ busting the myths about this case and a law review article defending the government’s interpretation of the criminal law.