FAQ on the McKittrick Policy

Like most people, the internet occasionally drives me crazy. Lately, that’s been due to coverage of the so-called McKittrick Policy—a Department of Justice interpretation of the Endangered Species Act’s criminal provisions. A case challenging the policy is about to begin briefing and, in anticipation of it, several stories have been published sharply criticizing the policy, leading to social media chatter.

The stories and the chatter get basic facts about the policy wrong and never acknowledge, much less answer, the reason for the policy. It seems no journalist covering the McKittrick Policy can find anyone to defend it, despite the half-dozen attorneys defending it in the federal case (of which I’m one), or several law review articles on it (one by me), and the many op-eds, blog posts, etc. defending it. My aim with this FAQ, if the SEO gods are willing, is to help journalists, commentators, and anyone else writing about the policy in the future avoid the same mistakes.

1. What is the McKittrick Policy?

The McKittrick Policy is the federal government’s official interpretation of the Endangered Species Act’s  criminal provisions. The memo announcing the policy is available here.

Section 11 of the Endangered Species Act makes it a crime to “knowingly” violate any of the statute’s provisions, including the provision prohibiting the “take” of endangered species. The McKittrick Policy interprets “knowingly” in this context. It directs federal prosecutors to insist on jury instructions that require the government to show the defendant knew his actions would result in take and the identity of the species taken.

It expressly repudiates the jury instruction used in United States v. McKittrick, which had been upheld by the Ninth Circuit, because it didn’t require proof that the defendant knew the identity of the species.

All Department prosecutors are instructed not to request, and to object to, the use of the knowledge instruction at issue in McKittrick.

2. Is it a “loophole” in the Endangered Species Act?

The McKittrick Policy has been sharply criticized by both environmentalists and bureaucrats at the U.S. Fish and Wildlife Service as creating a loophole in the Endangered Species Act. But that characterization is nothing more than question begging. Either the McKittrick Policy correctly interprets “knowingly” or it doesn’t. Invectives like “loophole” attempt to discredit the policy without having to make an argument on that point.

3. Does the McKittrick Policy let people avoid prosecution simply by claiming they thought an animal was another species?

No. The policy doesn’t prevent federal prosecutors from bringing charges, even in close cases. Rather, it requires them to support jury instructions that put the burden on the government to prove that the defendant knew his actions would cause take and the identity of the species. That may make it harder for the government to secure a conviction in close cases, but it does not prevent the government from trying. Defendants’ knowledge is an element of a ton of criminal offenses, and prosecutors have many ways to prove it when a defendant falsely claims ignorance.

4. Why was it adopted?

A DOJ memo explains that the McKittrick Policy was adopted because of the Solicitor General’s representations to the Supreme Court to avoid review of the McKittrick case. When the defendant sought Supreme Court review, the government opposed it by disclaiming the Ninth Circuit’s decision. The Solicitor General’s brief explained that the Ninth Circuit’s decision conflicts with Supreme Court precedent and the government could not defend it.

In several cases, the Supreme Court has held that mens rea requirements, like “knowingly,” must be interpreted broadly to avoid criminalizing apparently innocent conduct. As recently as last year, the Supreme Court reaffirmed a “background rule” of criminal law that prosecutors must prove that a defendant knows “each fact making his conduct illegal.” Under the Endangered Species Act, those facts include that the action would result in take and the identity of the species affected.

5. Is the McKittrick Policy correct?

I think so. In light of the background rule, the burden is on the McKittrick Policy’s opponents to explain either why the rule doesn’t apply or why the rule itself should be rejected. I’m not aware of any compelling argument for either.

The Ninth Circuit’s decision in McKittrick says that the rule doesn’t apply because Congress wanted take to be a general intent, rather than specific intent, crime. Although the legislative history supports this assertion, it’s not remotely helpful in interpreting the statute’s “knowingly” requirement. A specific intent crime is one that requires the government to prove that the defendant specifically intended to cause some forbidden result. If take was a specific intent crime, the government would have to show that the defendant’s purpose was to harm a protected species. A general intent crime, however, does not require the prosecutor to prove that the defendant specifically intended the forbidden result. Interpreting take as a general intent crime means that you don’t need to consciously intend to cause take, incidental take is also a crime. But general intent crimes often require the government to prove that the defendant knew certain facts. The McKittrick Policy is wholly consistent with take being a general intent crime because it only requires proof that a defendant knew he’d cause take of a particular species, not that it was his conscious purpose. Therefore, labeling take as a general intent crime doesn’t get us anywhere in understanding the statute’s “knowingly” requirement.

6. Why should I care?

Robust protections against the abuse of the criminal law should be important to all of us. Protections for the accused have been a cherished part of our criminal justice system for centuries. William Blackstone famously summed up the sentiment behind these protections when he said:

It is better that ten guilty persons escape than that one innocent suffer.

Mens rea, the requirement that prosecutors prove defendants had some level of criminal intent, is one of the most important protections against the abuse of the criminal law. Perhaps more than anything else, mens rea is what separates the guilty from the innocent. Without this protection, the government could freely lock up people for innocent accidents.

Liberals and libertarians have long been committed to defending these protections, even if they may sometimes allow the guilty to escape punishment. Conservatives, too, have shown a commitment to defending and reinforcing these protections. Unfortunately, some liberals’ commitment has waned. This is particularly true in the case of environmental law, where these protections protect those they dislike, including corporations involved in controversial industries. The environmentalists and others who would throw over centuries’ old criminal justice protections are reminiscent of William Roper in A Man for All Seasons.

Like Roper, they’d cut down the law to get at the devil (or at least their version of it). But most people agree with Sir Thomas More; they’d give the devil benefit of the law for their own sake. After all, if we abandon the commitment to mens rea protections in environmental law, why would we expect it to stop there.

7. You can be fined for hunting out of season, why should take be any different?

That misunderstands how the Endangered Species Act’s punishment provisions and the McKittrick Policy works. The statute contains several penalty provisions, with escalating penalties attached to each. One provision establishes a $500 fine for take, with no requirement that the violation be committed knowingly. The McKittrick Policy does not apply to this provision and is no obstacle to its use.

Instead, the McKittrick Policy applies only to the most severe punishments available under the statute. Knowing violations are punished far more harshly, including tens of thousands of dollars in fines and imprisonment. Preventing the abuse of those harsh punishments is why the McKittrick Policy is so important.

It’s unfortunate that so much discussion of the McKittrick Policy focuses on hunting. The policy applies to all take—a capaciously defined term that includes a wide variety of ordinary, innocent activities. It can result from, for instance, building a home, plowing a farm, driving a car, or surfing within five football fields of a whale. I suspect that the arguments of the policy’s opponents would be universally rejected as absurd if everyone considered what they would mean in these more common and innocent contexts. Solely focusing the analysis on hunting, which is relatively unpopular, obscures the real consequences of eliminating the McKittrick Policy.

For instance, if you struck a protected animal because it darted out in front of your car, you caused take. However, since you didn’t know beforehand that you’d cause take or the species you’d hit, the McKittrick Policy would protect you from being criminally convicted and thrown in jail for the accident. If the McKittrick Policy’s opponents are correct, however, you could go to jail for accidents like this, even though no one would say that you “knowingly” caused the take of the species.

8. But what about the wolves?

It’s also unfortunate that so much of the discussion of the McKittrick Policy focuses on wolves. Although not quite cuddly, wolves remind of us domesticated dogs. However, the Endangered Species Act’s take prohibition is not limited to charismatic species like wolves. There are roughly 2,500 listed species, including hundreds of obscure birds, fish, and insects. While you might not have too much sympathy for a rancher who mistakes a wolf attacking his livestock for a coyote, the McKittrick Policy protects people for innocent activities that affect a wide variety of species you’ve never heard of and couldn’t identify. Without the McKittrick Policy, you could be thrown in jail for accidentally catching the wrong kind of fish, not being able to tell the difference between one beetle and another while jogging, or building a home in an area where, unbeknownst to you, subterranean caves house rare spiders.

9. Ok, so the take prohibition is broad. Can’t we trust prosecutors to only go after bad people?

No! The law is planted think with protections for criminal defendants precisely because we can’t trust the government to only prosecute the guilty. There are plenty of examples of overzealous prosecutors bringing shaky prosecutions. In the last several years, the Supreme Court has rebuffed federal prosecutors repeatedly. There was the woman who was prosecuted for criminal weapons violations for attempting to poison her husband’s mistress. Or the fishermen who was prosecuted under the “anti-shredding” law enacted in the wake of Enron for throwing undersized fish overboard. Prosecutors are people, prone to error and being misled by ambition just like everyone else.

Without mens rea protections, prosecutors will essentially be able to choose defendants at whim, without any oversight or scrutiny for their reasons. As Judge Alex Kozinski has explained:

Under the best circumstances, most targets will be unlucky schmoes who happen to catch the authorities attention or people the prosecutors or the public think are particularly “bad.” At worst, a ubiquitous criminal law becomes a loaded gun in the hands of any malevolent prosecutor or aspiring tyrant

10. Is there nothing that can be done to protect wolves?

Fortunately, there are lots of ways to address environmental concerns without eroding key protections for criminal defendants. Environmentalists and the government could educate people about rare species, to reduce the risk of takes resulting from ignorance of rare species. $500 fines could be imposed in cases of innocent mistakes. If protecting a species is made more difficult because it closely resembles a common species, the Endangered Species Act permits the government to also list the look-alike species and extend protections to it. If difficulties distinguishing wolves and coyotes were a threat to wolves, this power would focus on that problem, rather than eliminating criminal justice protections across the board. Finally, if there’s an activity that is particularly likely to result in inadvertent takes, the statute allows the government or any private party to sue those engaging in it to get injunctions to protect species going forward.

If you’ve made it this far through this long post, you might be interested in knowing more about the policy and alternative ways to protect species. I addressed both in detail in an article published in the Environmental Law Reporter last year.


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