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United States v. McKittrick



In this case, the Ninth Circuit upheld Chad McKittrick’s conviction for violating both the Endangered Species Act (ESA or Act)[1] and the Lacey Act[2] when he killed a gray wolf and transported its head and hide to his home. Specifically, the government charged McKittrick with the following three counts: 1) taking the wolf in violation of ESA sections 9(a)(1)(G)[3] and 11(b)(1)[4] and 50 C.F.R. section 17.84(i)(3), 2) possessing the wolf in violation of ESA sections 9(1)(1)(G) and 11(b)(1), and 50 C.F.R. section 17.84(i)(5), and 3) transporting the wolf in violation of Lacey Act sections 3372(a)(1) and 3373(d)(2).[5] A jury convicted McKittrick in a trial before a magistrate judge, and the district court affirmed this conviction. While the court upheld McKittrick’s conviction on each of these counts, it remanded the case to the magistrate judge to reconsider his sentence.

McKittrick raised five arguments on appeal. First, he asserted that the ESA did not protect the wolf that he killed. Second, he contended that the separate counts charging him with both taking and possessing the wolf were duplicative. He argued that he had not knowingly killed the wolf because he had not been aware of what he was shooting. In addition, McKittrick felt that the trial court had erred in its jury instruction regarding the incidental take exception to the ESA. Finally, he asserted that the trial court had erroneously failed to reduce his sentence under the sentencing guidelines by two levels when he accepted responsibility for his actions.

McKittrick argued that the United States Fish and Wildlife Service (FWS) had failed to follow appropriate procedures when it created an experimental population of gray wolves in Yellowstone. Specifically, he contended that 1) FWS erred when it used animals from an unlisted population to create the experimental population, 2) the experimental population was not valid because it was not “wholly separate geographically” from naturally occurring wolves in the area, 3) the Secretary of the Interior (Secretary) did not make findings required by ESA section 4(d),[6] and 4) FWS’s efforts to reintroduce wolves into Yellowstone represented a poor allocation of resources in violation of ESA section 4(f).[7] Because these determinations involved FWS’s interpretations of both the ESA and its own regulations, the Ninth Circuit accorded Chevron[8] deference to the agency’s decisions.

McKittrick asserted that the ESA required FWS to use only endangered wolves when it created an experimental population in an attempt to restore viable numbers of gray wolves to Yellowstone. He argued that because the wolves in the experimental population in Yellowstone had come from Canada, where they were not considered endangered, the experimental population did not meet the ESA’s requirements and therefore did not merit protection under that Act. The Ninth Circuit rejected this interpretation of the ESA, stating that “gray wolves are protected by the ESA based on where they are found, not where they originate.”[9] Thus, when the wolves had crossed the border into Yellowstone, they had become endangered for purposes of the ESA.

In addition, the court noted that the appellant’s interpretation of the ESA violated its spirit. Under his interpretation, the Secretary would be forced to create an experimental population by further depleting populations of animals already at dangerously low levels, thereby circumventing the ESA’s essential purpose of conserving species at all costs. The court adopted FWS’s interpretation of ESA section 10(j)[10] and determined that the experimental population was valid.

The court then rejected McKittrick’s interpretation of ESA section 10(j)(1), which provides that a population qualifies as experimental under the ESA “only when, and at such times as, the population is wholly separate geographically from nonexperimental populations of the same species.”[11] The appellant argued that sporadic sightings of isolated wolves in the area deprived the introduced population of experimental status, because the population was not geographically isolated from indigenous wolves. The court, however, read the statute to apply only to populations of indigenous gray wolves, noting that the Federal Register defines a population as consisting of “at least two breeding pairs of gray wolves.”[12] Thus, the mere presence of individual indigenous wolves was not enough to deprive the introduced population of experimental status under the ESA. Judge O’Scannlain suggested in a concurring opinion that the court need only look to the text of the ESA in order to resolve this issue. He read the text to support his conclusion that “[a] single straggler does not a population make.”[13]

The court characterized McKittrick’s arguments regarding potential violations of sections 4(d) and 4(f) of the ESA as “meritless.”[14] McKittrick claimed that the Secretary had failed to comply with section 4(d) because he had failed to recite the words “necessary and advisable” in the special rules that he had promulgated that applied to the establishment of experimental gray wolf populations. He also claimed that because gray wolves are plentiful in both Alaska and Canada, restoration efforts in Yellowstone represented a poor allocation of resources and thus violated section 4(f) of the ESA. The court noted that the “necessary and proper” language required by section 4(d) could be found in the Code of Federal Regulations,[15] and that the Secretary was entitled to discretion in determining how to allocate species conservation resources. Moreover, the court added that the “presence of healthy wolf populations in Canada and Alaska does not, in any event, make the recovery of U.S. populations any less crucial.”[16]

The Ninth Circuit next determined that the government had not violated McKittrick’s constitutional rights when it charged him with both killing and possessing the endangered wolf in separate counts. McKittrick argued that the indictment was duplicative and thus violated his right to be free from double jeopardy under the United States Constitution.[17] The court, however, concluded that the indictment was not duplicative because each separately charged violation “‘requires proof of an additional fact which the other does not.'”[18] The first count required proof that McKittrick took a wolf, and the second did not. The second count, on the other hand, required proof that McKittrick possessed the wolf, which the first count did not. Thus, the indictment did not violate McKittrick’s rights under the double jeopardy clause.

McKittrick next unsuccessfully asserted that the district court had erred when it had instructed the jury. First, he challenged the court’s instructions regarding the requisite mens rea to find him guilty of killing the wolf in violation of the ESA. He argued that the ESA required the government to prove that he knew he was shooting a wolf in order to establish his guilt. The Ninth Circuit, however, upheld the district court’s instructions and held that the ESA violation did not require this level of culpability, because the Act is a general intent offense. Thus, the jury needed only to find that McKittrick knowingly killed an animal–and that animal turned out to be a protected gray wolf.

The appellant also argued that the court had erred in explaining the “incidental take” exception to the jury, and that this error had shifted the burden of proof from the government to him to prove whether or not the exception applied. The Ninth Circuit dismissed the initial assertion by stating that the district court’s instruction regarding the exception precisely followed the language of the regulation defining it. And while the issue of who had the burden of proof to establish the applicability of the incidental take exception under the ESA was not necessarily clear to the Ninth Circuit, the court nevertheless determined that the magistrate judge’s instructions clearly placed the burden on the government.

The Ninth Circuit did, however, find merit in at least one of the appellant’s arguments. McKittrick argued that he should have received a two-level sentencing departure for accepting responsibility for his conduct. The Ninth Circuit stated that McKittrick was entitled to challenge the mens rea requirement of the ESA without sacrificing his eligibility for this reduction. Because the language in the presentence report was ambiguous as to whether or not the magistrate judge denied the reduction based on an impermissible ground, the Ninth Circuit remanded the case for the magistrate to reconsider his sentencing determination.

[1] Endangered Species Act of 1973, 16 U.S.C. §§ 1531-1544 (1994).

[2] 16 U.S.C. §§ 701, 3371-3378 (1994 & Supp. III 1997).

[3] 16 U.S.C. § 1538(a)(1)(G) (1994).

[4] Id. § 1540(b)(1).

[5] 16 U.S.C. §§ 3372(a)(1), (3372(d)(2) (1994).

[6] 16 U.S.C. § 1533(d) (1994).

[7] Id. § 1533(f).

[8] Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843-44 (1984).

[9] United States v. McKittrick, 142 F.3d 1170, 1173 (9th Cir. 1998).

[10] Id. § 1539(j).

[11] 16 U.S.C. § 1539(j)(1) (1994).

[12] Endangered and Threatened Wildlife and Plants; Establishment of a Nonessential Experimental Population of Gray Wolves in Yellowstone National Park in Wyoming, Idaho, and Montana, 59 Fed. Reg. 60,255, 60,256 (1994).

[13] 142 F.3d at 1179 (O’Scannlain, J., concurring).

[14] Id. at 1176.

[15] 50 C.F.R. § 17.84(i)(1)-(2) (1998).

[16] 142 F.3d at 1176.

[17] U.S. Const. amend. V.

[18] 142 F.3d at 1176 (quoting Blockburger v. United States, 284 U.S. 299, 304 (1932)).

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