Reminders that the ESA's prohibitions are broad

April 07, 2014 | By JONATHAN WOOD

Earlier this year, a photographer was criminally prosecuted for violating the Endangered Species Act. His crime? He got within 500 feet of a snail kite — an endangered bird — while taking pictures. And last month, surfers were warned that they could be prosecuted if there were any right whales nearby while they were catching waves. The whale buffer is even wider than that for the snail kite. If a surfer finds herself within 5 football fields of a right whale, she could go to jail. When you add to this that the courts have held that you don’t have to know that what you’re doing is illegal or harms a protected species, the possibilities for a person to unwittingly violate the law are nearly endless. With 1500 species already protected under federal law and conservation groups petitioning for more by the hundreds, this problem is only going to get worse until the scope of the act is limited or the courts require the prosecutor to show that the defendant knew her actions threatened a protected species.