Court rejects activists’ effort to over-criminalize Endangered Species Act

By Bonner Cohen, Ph. D. November 8th, 2018 1 Comment @ CFACT

“Should a motorist who accidentally ends up with an endangered insect on his windshield while driving down the highway face criminal charges?”

The Pacific Legal Foundation (PLF) posed this question in explaining a recent little-noticed but important ruling by the U.S. Ninth Circuit of Appeals. With an emphatic “no,” the court blocked an effort by WildEarth Guardians to expand prosecution under the Endangered Species Act (ESA) to include accidental harm to a threatened or endangered species.

In WildEarth Guardians v. Department of Justice, the court upheld the feds’ longstanding position that limits prosecution under the ESA to those who knowingly harm or disturb a protected species. In the parlance of the ESA, it is a crime to “knowingly” “take” a protected species. The WildEarth Guardians’ suit, by contrast, sought to require defendants to know their actions, even if purely accidental, would cause a take of a protected species.

“The case was an unprecedented attempt to force federal prosecutors to bring criminal cases they have no desire to bring,” said Jonathan Woods, a PLF attorney. PLF represented the New Mexico Cattle Growers’ Association, the New Mexico Farm and Livestock Bureau, and the New Mexico Federal Lands Council as intervenor-defendants in the case, which dates to 2013.

Not Facing Imprisonment for Accidentally Harming or Disturbing a Protected Species

By restoring the traditional interpretation of the ESA, the Ninth Circuit delivered a significant victory for PLF’s clients “and everyone else, for that matter,” Woods explained, “because they need no longer fear that they might accidentally get to close to a protected insect, spider, or rodent and face imprisonment for it.”

Readers may be surprised to learn that it was the San Francisco-based Ninth Circuit Court that handed down such a far-reaching decision, one that went against an environmental group and upheld limitations to the ESA’s prosecutorial powers. The court has long been viewed as a friendly venue for plaintiffs pursuing left-wing causes.

But in this case, the Ninth Circuit, rather than rule on the substance of the suit, decided that WildEarth Guardians lacked standing to bring their challenge because they failed to show that overturning the traditional interpretation of the law would benefit any of the environmental interests the group cited in their suit. By deciding the case on standing, however, the court, according to PLF’s Woods, “has left open the possibility that the United States could change its interpretation or future lawsuits may force it to do so.”

The Extreme Theory Underlying the Lawsuit

Woods emphasizes just how extreme the theory behind the lawsuit was. He explains:

“If the lawsuit had succeeded, you could be locked up in a penitentiary for a year and fined $100,000 if you accidentally hit a rare rodent scurrying in front of your car on a dimly lit highway. You could suffer the same fate if you accidentally disturbed the wrong insect while building a tree house for your kids. You would even commit a serious crime if, someone else having run over a rare animal in front of your house, you moved it before your kids went out to play and were disturbed by it. Simply put, the lawsuit aimed to criminalize a wide range of ordinary and innocent acts simply because the person who committed them was unlucky enough to be near a threatened or endangered species.”

While welcoming the court’s decision, Woods believes “we’d all be a little safer if it has done so in recognition that the law does not permit criminal statutes to be stretched to reach innocent activities."