Can you identify each of the 1,476 U.S. species listed under the ESA? If not, you might want to start making flash cards. Environmental groups have sued the federal government, arguing that its policy against prosecuting people who innocently violate the ESA’s broad take prohibition is illegal. And if they’re successful, we’re all going to have to become amateur botanists and entomologists.
We can all sympathize with the gravamen of the complaint. Wildearth Guardians alleges that the federal government has allowed people who intentionally kill Mexican wolves, knowing that they are protected, to get away with this crime by falsely claiming ignorance of the wolf’s status. If this is true, the federal government has been exercising its prosecutorial discretion to under-enforce the statute. Prosecutorial discretion is the prosecuting attorney’s power to choose how or whether to pursue charges. It’s what allows a prosecutor to decide not to bring what she thinks is a weak case or to plea bargain [to agree to drop more serious charges in exchange for a guilty plea on a less serious offense].
Although prosecutorial discretion can be abused, the suit doesn’t actually target this abuse. Rather, it seeks to greatly increase the risk that any of us could be sentenced to prison, by converting the “take” of an endangered species into a strict liability offense. A strict liability offense is a crime which you can commit without knowledge or intent; e.g., a person can commit statutory rape even if he doesn’t know the age of the victim. Strict liability offenses are strongly disfavored in the law because of their breadth and the seriousness of imposing harsh punishments on someone for an act that they had every reason to believe was innocent. Because of these concerns, courts require the legislature to be very explicit when creating a strict liability offense.
Congress didn’t explicitly create a strict liability offense under the ESA. The statute makes it a crime for “any person [to] knowingly violate[ the take prohibition].” In Flores-Figueroa v. United States, the Supreme Court interpreted knowingly in a very similar context. A statute prohibited anyone from “knowingly [using], without lawful authority, a means of identification of another person.” The Court held that the knowingly requirement applies to all of the subsequent conditions of the crime: using; without lawful authority; and a means of identification of another person. Applying this logic to the ESA, a person who harms a protected species without knowledge that the species is protected has not committed the crime because she has not knowingly taken a listed species.
There are very good reasons why Congress would limit the criminal provision in this way. First, the take prohibition is alarmingly broad. Although the Wildearth Guardians’ complaint focuses on a person intentionally shooting a wolf, the take provision can be violated by almost any act. If you are walking through a forest and step on a protected plant, you may have committed a take. If while building your dream home you cause some indirect harm to a small subterranean spider, you unknowingly caused a take.
Not only does the provision apply to a large number of innocent acts, but there are a befuddlingly large number of obscure species protected. Of the nearly 1500 listed species in the United States, more than 800 are plants and over 100 are insects. Before you swat a creepy-crawly scurrying through your house, do you ask yourself: am I sure this isn’t a valley elderberry longhorn beetle, a pomace fly, or a spruce-fir moss spider? I know I don’t.
If this suit is successful, we will have to constantly ask ourselves these questions. Wildearth Guardians envisions a world where you can go to prison for as long as a year even if you had no idea that your actions would harm a protected species. According to its press release, Prosecutors should “neither need to prove that endangered-wildlife killers had actually [sic] biological knowledge of the species they killed, nor an intention to purposely kill endangered wildlife.” Under its theory, it would be enough that you knowingly engaged in the act that harmed the species. Did a bug smash into your windshield during your commute this morning? If it was listed—and you weren’t driving while unconscious—you could be prosecuted under this interpretation. Congress could not have intended this result.