142 F.3d 1170 (9th Cir. 1998), 97-30090, United States v. McKittrick

Docket Nº:97-30090.
Citation:142 F.3d 1170
Party Name:98 Cal. Daily Op. Serv. 3148, 98 Daily Journal D.A.R. 4351 UNITED STATES of America, Plaintiff-Appellee, v. Chad Kirch McKITTRICK, Defendant-Appellant.
Case Date:April 28, 1998
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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142 F.3d 1170 (9th Cir. 1998)

98 Cal. Daily Op. Serv. 3148,

98 Daily Journal D.A.R. 4351

UNITED STATES of America, Plaintiff-Appellee,


Chad Kirch McKITTRICK, Defendant-Appellant.

No. 97-30090.

United States Court of Appeals, Ninth Circuit

April 28, 1998

Argued and Submitted Feb. 2, 1998.

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[Copyrighted Material Omitted]

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Gilbert U. Burdett, Billings, Montana, for defendant-appellant.

James C. Kilbourne, Dept. of Justice, Washington, DC, for plaintiff-appellee.

Appeal from the United States District Court for the District of Montana; Jack D. Shanstrom, District Judge, Presiding. D.C. No. CR-95-00052-JDS.

Before: BROWNING, SKOPIL, and O'SCANNLAIN, Circuit Judges.

Opinion by Judge SKOPIL; Concurrence by Judge O'SCANNLAIN.

SKOPIL, Senior Circuit Judge:


The gray wolf, or Canis Lupus, is listed as endangered under the Endangered Species Act (ESA) throughout the coterminous United States, except in Minnesota, where it is listed as threatened. 50 C.F.R. § 17.11(h). Gray wolf populations in Canada, however, are plentiful. Pursuant to ESA section 10(j), the Fish and Wildlife Service (FWS) captured Canadian gray wolves and released them in Yellowstone National Park as an "experimental population" designed to replenish wolves in Wyoming and parts of Montana and Idaho, where they had been all but eradicated by about 1930. See 59 Fed.Reg. 60,251, 60,252 (Nov. 22, 1994). One of these wolves migrated from Yellowstone to the Red Lodge, Montana area, where it had a fatal encounter with Chad McKittrick. After shooting and killing the wolf, McKittrick skinned and decapitated it, taking the hide and head to his home.

The government charged McKittrick with three counts: one, taking the wolf in violation of 16 U.S.C. §§ 1538(a)(1)(G), 1540(b)(1), and 50 C.F.R. § 17.84(i)(3); two, possessing the wolf in violation of 16 U.S.C. §§ 1538(a)(1)(G), 1540(b)(1), and 50 C.F.R. § 17.84(i)(5); and three, transporting the wolf in violation of the Lacey Act, 16 U.S.C.

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§ § 3372(a)(1), 3373(d)(2). 1 Magistrate Judge Anderson conducted a trial and then sentenced McKittrick to six months' imprisonment after a jury convicted him on all counts. District Judge Shanstrom affirmed the conviction and sentence.

On appeal, McKittrick argues that the wolf he killed was not protected by the ESA, that his separate counts for taking and for possessing the wolf were multiplicitous, that his taking of the wolf was not "knowing" because he did not realize what he was shooting, and that the court erred in instructing the jury about the "incidental take exception." We reject each of these challenges and affirm the conviction. McKittrick also contends, however, that the sentencing magistrate judge should have reduced his offense level by two points for acceptance of responsibility. Because the magistrate judge may have disallowed the reduction on impermissible grounds, we remand for a redetermination of whether McKittrick accepted responsibility under U.S.S.G. § 3E1.1.


  1. Validity of the Regulations

    McKittrick challenges his conviction by alleging four defects in FWS's designation of the gray wolf experimental population in Yellowstone. Specifically, he maintains that (1) FWS may not draw members of an experimental population from an unlisted population, such as Canadian gray wolves; (2) the experimental population is invalid because it is not "wholly separate geographically" from naturally occurring wolves in the release area; (3) the experimental population regulations are invalid because the Secretary did not make a finding required by ESA section 4(d); and (4) the regulations are invalid because the Secretary did not comply with ESA section 4(f).

    McKittrick's challenges raise questions of law that we review de novo. See Torres-Lopez v. May, 111 F.3d 633, 638 (9th Cir.1997). Because these questions involve FWS's interpretation of the ESA and the agency's own regulations, however, our review is subject to deference. See Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843-44, 104 S.Ct. 2778, 2782, 81 L.Ed.2d 694 (1984) (agency's reasonable interpretation of ambiguous statutory provision entitled to deference); Rainsong Co. v. FERC, 106 F.3d 269, 272 (9th Cir.1997) (agency's interpretation of a statute it administers entitled to considerable deference); Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 510-12, 114 S.Ct. 2381, 2385-87, 129 L.Ed.2d 405 (1994) (agency's interpretation of its own regulations entitled to "broad deference").

    1. The Experimental Population Designation

    McKittrick contends that FWS acted improperly in creating an experimental population from members of an unlisted population--that is, Canadian gray wolves. Authority to create experimental populations arises under section 10(j) of the ESA, which provides that "[t]he Secretary may authorize the release ... of any population ... of an endangered species or a threatened species outside the current range of such species if the Secretary determines that such release will further the conservation of such species." 16 U.S.C. § 1539(j)(2)(A). According to McKittrick, the language of this provision restricts the Secretary to drawing members of experimental populations from populations already listed under the ESA. We disagree.

    First, gray wolves are protected by the ESA based on where they are found, not where they originate. Canadian gray wolves that migrate into the northern United States, for example, assume protected status when they cross the border. See 59 Fed.Reg. at 60,253 (discussing the probable "southern expansion of the Canadian wolf population" into

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    Glacier National Park, where they are classified as endangered); see also H.R.Rep. No. 97-567, at 33 (1982), reprinted in 1982 U.S.C.C.A.N. 2807, 2833 (shifting treatment of protected status depending on seasonal movement patterns); Ramsey v. Kantor, 96 F.3d 434, 438 (9th Cir.1996) (shifting "legal regimes" for protected salmon through the course of their migration). Therefore, the wolves transported from Canada were members of "any population ... of an endangered species or a threatened species" as soon as they entered the United States.

    Second, McKittrick's interpretation offends the statute's essential purpose, which is the conservation of species. See Tennessee Valley Authority v. Hill, 437 U.S. 153, 184, 98 S.Ct. 2279, 2296-97, 57 L.Ed.2d 117 (1978) (noting that ESA's purpose is to conserve endangered species at any cost). If McKittrick's analysis of section 10(j) were correct, FWS would be forced to create an experimental wolf population only by depleting threatened or endangered populations in the United States. Instead, the agency has interpreted section 10(j) to allow gray wolves to be taken from the healthy Canadian population and reintroduced to an area where wolves had been extirpated. See 59 Fed.Reg. at 60,252 (Because gray wolves are common in Canada, "[n]o adverse biological impact is expected from the[ir] removal."). Neither the ESA nor its implementing regulations expressly permits FWS to obtain experimental populations from unlisted populations, but the agency's interpretation of the ESA, which it is charged with administering, is entitled to great deference. See Rainsong, 106 F.3d at 272. In addition, FWS's interpretation comports with the ESA's purpose, as revealed by legislative history and case law. When section 10(j) was added to the ESA, for example, Congress spoke of the statute's broad purpose:

    In enacting the Endangered Species Act, Congress recognized that individual species should not be viewed in isolation, but must be viewed in terms of their relationship to the ecosystem of which they form a constitutent [sic] element. Although the regulatory mechanisms of the Act focus on species that are formally listed as endangered or threatened, the purposes and policies of the Act are far broader than simply providing for the conservation of individual species or individual members of listed species.

    H.R. Conf. Rep. No. 97-835, at 30 (1982), reprinted in 1982 U.S.C.C.A.N. 2860, 2871 (specifying that conservation plans may include unlisted as well as listed species). Congress' specific purpose in enacting section 10(j) was to "give greater flexibility to the Secretary." H.R.Rep. No. 97-567, at 33 (1982), reprinted in 1982 U.S.C.C.A.N. 2807, 2833. Thus, each experimental population has its own set of special rules so that the Secretary has more managerial discretion. Id. at 2834; see 50 C.F.R. § 17.80. This flexibility allows the Secretary to better conserve and recover endangered species.

    The Supreme Court acknowledged the Secretary's broad authority when it upheld the regulatory definition of "harm" to include habitat modification, reiterating that "the broad purpose of the ESA supports the Secretary's decision to extend protection against activities that cause the precise harms Congress enacted the statute to avoid." Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687, 698, 115 S.Ct. 2407, 2413, 132 L.Ed.2d 597 (1995). Like the regulation at issue in Sweet Home, the agency's implementation of section 10(j) in creating the experimental wolf population effectuates the ESA's purpose and is within the Secretary's authority. FWS's designation of the experimental population was proper, and the wolf McKittrick shot fell within the ESA's protection. 2

    2. The "Wholly Separate Geographically" Requirement

    McKittrick claims that the reintroduced wolves were not "wholly separate geographically" from wolves already present in Yellowstone, and that the experimental population designation is therefore invalid. In

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    order "[t]o protect natural populations and to avoid potentially complicated problems of law enforcement," H.R.Rep. No. 97-567, at 33 (1982), reprinted in 1982 U.S.C.C.A.N. 2807, 2833, the statute requires that a...

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