Subject: ESA Prosecutions (was gophers -- was 48 defeated)
Date: Nov 9 16:59:33 1995
From: Dale Goble - gobled at uidaho.edu



In response to the ESA questions that have been floating about this
afternoon -- sorry that I actually had to do some work and thus could not
provide instant commentary.

I made up for the delay with length. If you are only interested in the
numbers of prosecutions -- skip to the end. The rest deal with the Act's
sanctions and the degree of intent required.


STATUTORY PROVISIONS:

Section 9 of the ESA contains an all-encompassing prohibition of
conduct that harms an *endangered* species of *fish or wildlife*: it is
illegal for "any person subject to the jurisdiction of the United States" to
"take" an endangered species "within the United States, [its] territorial
seas [or] upon the high seas." Clearly, the Act prohibits conduct that
results in the death of an identifiable member of the species. But it also
prohibits a much wider range of conduct since the term "take" is defined
very broadly as meaning "to harass, harm, pursue, hunt, shoot, wound,
kill, trap, capture, or collect, or to attempt to engage in any such
conduct."

Similarly, commercial activity in endangered species of fish and wildlife
is prohibited. The definitions of the relevant terms give the prohibitions
an expansive reach, extending the outlawry to "the buying or selling ...
and activities conducted for the purpose of facilitating such buying and
selling" of "any part, product, egg, or offspring thereof, or the dead
body or parts thereof." Thus, the importation, exportation, possession
"by any means whatsoever" of any species taken in violation of the Act,
transportation or sale in interstate or foreign commerce "in the course of
a commercial activity" are all prohibited.

While endangered species are protected directly by the Act, threatened
species are protected through regulations adopted by the Secretary.
That is, the ESA prohibits commercial activity and taking of endangered
species, but specifies only that it is illegal to "violate any regulation
pertaining ... to any threatened species of fish or wildlife ... and
promulgated by the Secretary pursuant" to the Act. The Secretary has
exercised the authority granted by these provisions to extend the
prohibitions applicable to endangered species to threatened species
generally.

The prohibitions contained in section 9 are enforceable through civil and
criminal sanctions contained in section 11. Sanctions vary in relation to
three factors: whether the violation involves an endangered or a
threatened species; the state of the violator's knowledge; and, for some
purposes, the violator's occupation.

The most stringent sanctions are reserved for knowing violations
involving endangered species. An individual who knowingly violates the
prohibitions against taking, importing, exporting, transporting or selling
and endangered species is subject to criminal sanctions of not more than
$50,000 and a year in jail; civil penalties of not more than $25,000 may
also be assessed. Knowing violators of a regulation applicable to a
threatened species face criminal penalties of not more than $25,000 and
imprisonment of not more than 6 months and civil penalties of not more
than $12,000. In addition, all individuals convicted of criminal violations
face the loss of federal licenses, leases, and hunting permits, and
forfeiture of all equipment and means of transportation involved in the
violation.


INTENT REQUIREMENT:

A *knowing* violation does not require knowledge that the species is a
listed species: there is no requirement that the individual specifically
intend to violate the Act; all that is required is that the individual engage
in intentional conduct that leads to a violation.

For example, in United States v. Billie, 667 F. Supp. 1485 (S.D. Fla.
1987), defendant was charged with shooting a Florida Panther, an
endangered species. The defendant argued that "the Government ...
must prove beyond a reasonable doubt that he knew that the panther
was a *felis concolor coryi,* the specific subspecies of panther which is
listed." The court rejected this argument:
The court finds the defendant's argument to be without
support in law or reason. In general, the word
"knowingly" means "that the act was done voluntarily and
intentionally and not because of mistake or accident."
This ... definition ... comports with the general rule that
criminal penalties attached to regulatory statutes intended
to protect public health, safety, or welfare should be
construed to effectuate their purpose.... In the court's
view, the construction advanced by defendant would
eviscerate the Act's purpose because it would be nearly
impossible to prove that the average hunter recognized the
particular subspecies protected under the Act.
Accordingly, the Government need prove only that the
defendant acted with general intent when he shot the
animal in question.
As the court in United States v. St. Onge, 676 F. Supp. 1044 (D. Mont.
1988), (in which the defendant was accused of shooting a Grizzly Bear,
a threatened species) stated:
The critical issue is whether the defendant recognized that
he was shooting. The scienter element applies to the act
of taking; thus defendant could only claim accident or
mistake if he did not intend to discharge his firearm, or
that the weapon malfunctioned, or similar circumstances
occurred.... [T]he government cannot be required to prove
that he had the specific intent to take a grizzly bear.

Determining the number of prosecutions under the Act is difficult since
most federal criminal prosecutions are not reported in published sources.
There are, however, a number of reported criminal and civil prosecutions
and civil forfeiture actions (which are used against importation of listed
species). I have a list of more than 40 such cases -- and I presume that
they are only a fraction of the total.