Ranchers fight radical ESA lawsuit that would criminalize innocent mistakes

SACRAMENTO, CA;  October 1, 2015: Associations of farmers and ranchers in the Southwest have just moved to intervene to oppose an activist group’s lawsuit that seeks to radically expand prosecutions under the federal Endangered Species Act (ESA) list. The activist lawsuit aims to impose criminal liability for “takes” (i.e., harms) that happen by innocent mistake, such as by not recognizing the species, or not knowing it was listed, or causing harm in an entirely inadvertent and unintended way.

The activist lawsuit is WildEarth Guardians v. U.S. Department of Justice, pending in the U.S. District Court for the District of Arizona. The organizations that filed a motion to intervene late yesterday are: the New Mexico Cattle Growers’ Association, New Mexico Farm & Livestock Bureau, and New Mexico Federal Lands Council. They are all represented by Pacific Legal Foundation (PLF), the leading watchdog organization for limited government, property rights and a balanced approach to environmental regulations. Donor-supported PLF represents these organizations free of charge, as with all PLF clients.

The clear language of the ESA spares innocent people from prosecution by limiting criminal liability to offenders who “knowingly” harmed a listed species. Under what is officially known as the McKittrick Policy, the U.S. Department of Justice interprets the “knowingly” requirement in the term’s literal sense, so that criminal liability does not apply unless the defendant knew that her actions would cause “take” and the identity of the species affected.

WildEarth Guardians is suing to invalidate that DOJ interpretation and policy, and twist the ESA’s intent, by imposing criminal liability even when there is no knowing commission of a wrong. The lawsuit is directed at harms to Mexican wolves in the Southwest, but its effects would extend nationwide, to “takes” of any of the more than 1,500 species on the ESA list.

Law-abiding Americans are at risk of being branded environmental offenders

“This lawsuit is yet another disturbing example of overcriminalization,” said PLF Staff Attorney Jonathan Wood. “It threatens law-abiding Americans with imprisonment for innocent, ordinary acts, and it threatens the rule of law by seeking to have a statute rewritten by judicial edict. The plaintiffs are asking the courts to ignore that Congress only permits those who ‘knowingly’ take a species protected by the Endangered Species Act to be subject to severe criminal penalties.

“For western farmers and ranchers, the immediate concern is that they could face criminal penalties for mistaking a protected wolf for a coyote, or for inadvertently and unintentionally harming any of the dozens of other ESA-listed species that call the Southwest home,” Wood noted. “But WildEarth Guardians’ lawsuit will affect more than farmers and cattlemen. Literally every American could face some level of potential risk, because activities that we take for granted—including driving, biking, or walking—could lead to criminal punishment if you somehow harm one of the more than 1500 species on the ESA list.”

“If this lawsuit is successful, there could be grave consequences for ranchers in New Mexico,” said Caren Cowan, Executive Director of the New Mexico Cattle Growers’ Association. “If a rancher attempts to protect her animals from what she honestly and reasonably believes to be a predator that isn’t covered by the ESA, that rancher will be in danger of fines and imprisonment if she turns out to be mistaken in that belief. This would be an unjust and oppressive punishment for innocent actions by ranchers who are simply trying to be responsible stewards and protect their livelihoods, in a good-faith and law-abiding way.”

“Without the protection afforded by the McKittrick Policy, New Mexico’s farmers and ranchers could lose everything they have,” said Chad Smith, CEO for New Mexico Farm & Livestock Bureau. “There are many situations that can lead to the accidental killing of an endangered species and this policy is the only thing that prevents a mistake from becoming jail time.”

About Pacific Legal Foundation
Pacific Legal Foundation (PLF) is the leading watchdog organization that litigates for limited government, property rights, and a balanced approach to environmental regulation, in courts nationwide. PLF represents all clients free of charge.