WildEarth Guardians v. U.S. Dep't of Justice, No. CV–13–00392–TUC–DCB

• Court: United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Arizona
• Writing for the Court: Honorable David C. Bury, United States District Judge
• Citation: 283 F.Supp.3d 783
• Decision Date: 19 June 2017
• Docket Number: No. CV–13–00392–TUC–DCB
• Parties: WILDEARTH GUARDIANS, et al., Plaintiffs, v. UNITED STATES DEPARTMENT OF JUSTICE, Defendant.

283 F.Supp.3d 783

WILDEARTH GUARDIANS, et al., Plaintiffs,
v.
UNITED STATES DEPARTMENT OF JUSTICE, Defendant.

No. CV–13–00392–TUC–DCB

United States District Court, D. Arizona.

Signed June 19, 2017
Filed June 21, 2017

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Judith Bella Calman, Attorney at Law, Albuquerque, NM, Steven Charles Sugarman, Steven Sugarman, Cerrillos, NM, for Plaintiffs.

Kevin William McArdle, U.S. Dept. of Justice, Environment & Natural Resources, Washington, DC, for Defendant.

ORDER

Honorable David C. Bury, United States District Judge

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The Court grants in part and denies in part the Plaintiffs' Motion for Summary Judgment. The Court finds the McKittrick policy is arbitrary and capricious, an abuse of discretion and otherwise not in accordance with law in violation of the APA. Therefore, the Court grants summary judgment for Plaintiffs under the APA. The Court finds that solely for the purpose of Section 7 of the ESA the Mexican gray wolf is treated as a species proposed to be listed, not as a threatened species. Therefore, the Court denies summary judgment for Plaintiffs and finds as a matter of law that Plaintiffs may not proceed under Section 7, with the failure to consult claim.

A.

Overview: Procedural posture of the case

"In United States v. McKittrick , 142 F.3d 1170, 1177 (9th Cir. 1998), the Ninth Circuit Court of Appeals determined that the knowledge element for the criminal misdemeanor offense of ‘taking’ an endangered species was: the defendant knew he was shooting an animal, and the animal shot was a Mexican wolf; ‘McKittrick need not have known he was shooting a wolf to ‘knowingly violate[ ]’ the regulation protecting the experimental population.’ Id. According to the court, Congress changed the wording of 16 U.S.C. § 1540(b)(1) in 1978 from ‘willfully’ to ‘knowingly,’ making the offense a general rather than a specific intent crime." (Order (Doc. 30) at 1.)

McKittrick's conviction on this instruction was affirmed by the Ninth Circuit Court of Appeals, and he petitioned for a writ of certiorari. The government responded in relevant part that it would no longer use the knowledge instruction approved by the Ninth Circuit Court of Appeals in McKittrick. It agreed that the intent of Congress in 1978 was to make it clear that the statute only required proof of general, not specific, intent. Nevertheless, the government believed the jury instruction approved in McKittrick wrongly defined the mens rea required for a misdemeanor conviction under section 1540(b)(1). It reasoned the more analogous mens rea requirement was found in a public welfare offense for knowing violations of an Interstate Commerce regulation, which required drivers of motor vehicles transporting any explosive liquids or poisonous gasses to avoid, so far as practicable, driving into or through congested thoroughfares or places were crowds are assembled. Boyce Motor Lines, Inc. v. United States, 342 U.S. 337, 342, 72 S.Ct. 329, 96 L.Ed. 367 (1952). The Supreme Court in Boyce found that the statute's element of intent defeated any argument that it was void for vagueness because to sustain a conviction, the government must prove that the driver could have taken another route which was both practicable and safer and that the driver knew of such a route and deliberately took the more dangerous route, or the driver willfully neglected to inquire into the relevant facts. In other words, "knowingly" means knowing the essential facts or willfully neglecting to inquire into them. (Administrative Record (AR) (Doc. 75), Ex. 3: DOJ Supreme Court Brief at 15–16; CM/ECF 75.3 at 19–20.)

The Supreme Court denied certiorari , and thereafter the Defendant, the Department of Justice (DOJ), notified all of its prosecuting attorneys to stop using and object to the jury instruction approved in McKittrick. In 1999, the DOJ distributed a memorandum instructing its prosecuting attorneys to request an instruction which requires the government to prove beyond

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a reasonable doubt that a defendant knew the biological identity of the animal taken was a wolf. (AR (Docs. 75.4–75.7.)

The Plaintiffs ask the Court to find that the DOJ has adopted an ultra viries agency policy, meaning that the DOJ has adopted an agency policy exceeding its statutory authority. The Endangered Species Act (ESA) Section 11, 16 U.S.C. § 1540, provides penalties for "any person who knowingly violates any provision, and any provision of any regulation, issued under the [ESA]," including ESA's prohibitions against "taking" an ESA-listed species, 16 U.S.C. § 1538, defined as "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." 16 U.S.C. § 1532(19). The Mexican gray wolf is one of many animal species protected under the ESA.¹ Plaintiffs challenge the DOJ's McKittrick policy regarding the mens rea "knowingly" element of the offense, which includes both its proposed jury instructions and corresponding directives prosecuting cases only if there is evidence that the alleged shooter knew the biological identity of the animal at the time of the shooting.

Plaintiffs argue that the DOJ's adoption of the McKittrick policy violates the Administrative Procedures Act (APA) because it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § § 702, 706(2)(A). To prove its APA claim, the Plaintiffs charge that the DOJ's adoption of the McKittrick policy is a complete abdication of its prosecutorial discretion as established under the law set out in the ESA and United States v. McKittrick, 142 F.3d 1170, 1177 (9th Cir. 1998). Additionally, the Plaintiffs claim that the McKittrick policy violates DOJ's responsibility under § 7 of the ESA to take no action which may adversely affect a threatened species without first consulting with the Fish and Wildlife Service (FWS).

In opposition to Plaintiffs' Motion for Summary Judgment, the Defendant reurges arguments made in its Motion to Dismiss, which may be properly reurged to the extent afforded by the differing standard of review on summary judgment. At summary judgment, the Court looks beyond allegations, and Plaintiffs must set forth by affidavit or other evidence specific facts establishing standing and other jurisdictional prerequisites. Plaintiffs bear the burden of establishing jurisdiction by a preponderance of admissible evidence. The Court will not, however, relook at conclusions of law made when it denied the Motion to Dismiss which did not turn on questions of fact.

B.

APA Reviewability: the McKittrick policy is an abdication of DOJ's criminal enforcement duties and responsibilities under Section 11 of the ESA

The Defendant again challenges this Court's jurisdiction under the APA to review the McKittrick policy because the DOJ has absolute discretion in deciding when to prosecute a crime, including the illegal taking of a Mexican gray wolf, and because the McKittrick policy is NOT a complete abdication of its duty and responsibility to enforce the criminal penalties

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provision of the ESA for illegal takings of Mexican wolves.

Both parties agree that anything less than a complete abdication by DOJ of express duties required under the law, and the Defendant prevails on the APA claim. If Defendant prevails on this argument, the DOJ may nevertheless lose on the ESA claim that adoption and ongoing implementation of the McKittrick policy is a violation of DOJ's duty under Section 7(a)(2) of the ESA to enter into consultation with FWS regarding the significant adverse impact the policy has on the DOJ's efforts to conserve and protect the Mexican wolf.

According to the Plaintiffs, "Importantly, this is not a case in which Guardians challenges—or seeks judicial review of—any particular enforcement decision. Guardians acknowledge that, as a general rule, specific prosecutorial decisions that are made in individual cases—that is, whether the facts and circumstances of a particular case warrants enforcement action—are within the discretion of the Executive Branch, and are largely immune from judicial review." (Ps' MSJ (Doc. 87) at 1–2.) " "Rather, the complaint seeks a conventionally judicial determination of whether [a] certain fixed polic[y] ... followed by the Justice Department and the United States Attorney's office lies outside the constitutional and statutory limits of ‘prosecutorial discretion.’ " Id. (quoting Nader v. Saxbe , 497 F.2d 676, 679 (D.C.Cir. 1974) ). This was the narrow door left open by the Supreme Court in Heckler v. Chaney , 470 U.S. 821, 832, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985), recognized by this Court when it found Plaintiffs had stated a claim under the APA and denied Defendant's Motion to Dismiss. (Order (Doc. 30) at 10–12.)

The Court's legal analysis in the Order denying the Motion to Dismiss bears repeating. First, there is a presumption for judicial review of agency actions, pursuant to the APA, 5 U.S.C. § § 702 and 704, which provide: "A person ‘adversely affected or aggrieved’ by agency action, including a ‘failure to act,’ is entitled to ‘judicial review thereof,’ as long as the...