Resolution 2024-03
WHEREAS, the recovery of multiple species designated as “endangered” or “threatened” under the Endangered Species Act (ESA) 16 USC § 1531 et seq., including whooping cranes, Mexican gray wolves, California condors, Florida panthers, red wolves, wolverines, grizzly bears (Yellowstone), is threatened by an arbitrary internal U.S. Department of Justice (DOJ) policy known as the McKittrick Policy; and
WHEREAS, by 1950, Louisiana’s historical population of whooping cranes, the tallest bird in North America, was previously wiped out by shooting and habitat destruction; and
WHEREAS, Congress passed the Endangered Species Preservation Act of 1966, the first piece of comprehensive endangered species legislation, to protect and restore endangered species; and
WHEREAS, the Endangered Species Conservation Act of 1969 improved upon the 1966 Act, providing better protection to species habitats and considered species in danger of worldwide extinction; and
WHEREAS, Congress passed the Endangered Species Act of 1973 (ESA) to provide even greater protections for endangered and threatened species; and
WHEREAS, The United States Supreme Court has held that, “(T)he plain intent of Congress in enacting this statute…was to halt and reverse the trend toward species extinction, whatever the cost. …. Agencies in particular are directed by §§ 2 (c) and 3 (2) of the Act to “use . . . all methods and procedures which are necessary” to preserve endangered species.” [Tennessee Valley Auth. v. Hill, 437 U.S. 153, 184, 98 S. Ct. 2279, 57 L. Ed. 2d 117 (1978)]; and
WHEREAS, in 2011, Louisiana Department of Wildlife and Fisheries (LDWF) commenced a project to reintroduce whooping cranes, an endangered species long protected by the ESA, into southwest Louisiana where they once thrived at a current cost of approximately $85,000 per whooping crane; and
WHEREAS, the entire North American population of this bird, wild and captive, is approximately just 834 with only 81 in the current Louisiana non-migratory flock; and
WHEREAS, Louisiana’s efforts to discourage the indiscriminate and illegal shooting of whooping cranes through education, billboards, and press releases has been largely ineffectual, as shootings continue and Louisiana’s death toll of whooping cranes is the highest in the United States; and
WHEREAS, the Mexican gray wolf is also being reintroduced into its historical habitat, the American Southwest, with the primary cause of mortality at present being illegal shootings; and
WHEREAS, of 40 confirmed gunshot deaths of Mexican gray wolves between 2008 and 2023, only 17 resulted in the identification of suspects, only 13 were referred for prosecution, and U.S. assistant attorneys declined prosecution in 11 of those cases; and
WHEREAS, other programs introducing gray wolves and red wolves elsewhere in the United States are encountering similar problems; and
WHEREAS, the prospect of increased fines and jail time have been shown to be significant deterrents to future rule breaking [Furlong, W.J. 1991, The deterrent effect of regulatory enforcement in the fishery. Land Economics 67(1):116–129], and the fear associated with these potential negative consequences creates an important deterrent by itself [May, P.J. 2005. Regulation and compliance motivations: Examining different approaches. Public Administration Review 65(1):31–44]; and
WHEREAS, the McKittrick Policy directly contravenes the plain wording of the ESA as well as the rules promulgated under the authority of same [United States v. McKittrick, 142 F.3d 1170, 1177 (9th Cir. 1998)]; and
WHEREAS, under the DOJ’s McKittrick Policy, federal prosecutors are directed to request jury instructions with a heightened mens rea or specific intent requirement in all prosecutions under the ESA; and
WHEREAS, because of the McKittrick Policy, someone only need claim that they thought they were shooting a different species, such as a sandhill crane instead of a whooping crane or a coyote instead of a Mexican wolf or a black bear instead of a grizzly bear, to escape the more severe Endangered Species Act penalties; and
WHEREAS, the requirement of specific intent in jury instructions under the DOJ’s McKittrick Policy creates a nearly impossible burden of proof in ESA prosecutions, which deters federal prosecutors from pursuing maximum penalties under the ESA and encourages them to pursue lesser penalties under other laws, if applicable, with their lesser burden of proof; and
WHEREAS, all court challenges to the McKittrick Policy to date have failed; and
WHEREAS, the McKittrick Policy was not formulated pursuant to statute, rule-making or judicial decision and is not law; and
WHEREAS, instead, the DOJ created and implemented the McKittrick Policy simply by issuing an internal DOJ Memorandum, and therefore the McKittrick Policy can be revoked with another internal DOJ Memorandum, or, an Executive Order.
NOW, THEREFORE, BE IT RESOLVED that the National Wildlife Federation, at its Annual Meeting assembled June 26-29, 2024, advocates for the development of the U.S. Department of Justice enforcement criteria allowing for prosecutorial discretion to be exercised in ways that minimize enforcement on take that could have resulted from reasonable confusion of species listed under the Endangered Species Act with legal game species, and
BE IT FURTHER RESOLVED, that the National Wildlife Federation calls upon the Attorney General at the U.S. Department of Justice to revoke the policy known as the McKittrick Policy; and
BE IT FINALLY RESOLVED that the National Wildlife Federation seeks the support of President Biden to issue an Executive Order to eliminate the DOJ’s McKittrick Policy in its entirety if the DOJ is unable to revoke the policy through internal memorandum.