In my last Words from Walt, I lamented what I characterized as the continuing problem of the “I thought it was a coyote” defense in the potential prosecution of wolf killers under the federal Endangered Species Act (“ESA”). This issue arose because of the so called McKittrick policy, whereby the US Department of Justice (“DOJ”) would not prosecute a wolf killer without evidence that said killer knew the biological identity of the animal before killing it. I have followed this issue since its misguided inception in 1999. Let me briefly explain.

Wolf #10 was one of the original wolves reintroduced into Yellowstone National Park in 1995-1996, and was a magnificent specimen, even appearing as the cover photo on Mike Phillips and Doug Smith’s landmark publication “The Wolves Of Yellowstone”. When he and his pregnant mate strayed briefly out of the Park, he was shot, killed and decapitated by one Chad McKittrick. McKittrick was tracked down by federal agents, arrested, prosecuted in federal court, and convicted under the ESA for killing an endangered species, under a correct interpretation of the law that was, in essence, if you knowingly kill an animal and it turns out to be protected under the ESA, you are guilty of a violation of that Act. This interpretation of the law was affirmed on appeal to the Ninth Circuit Court of Appeals, and the US Supreme Court declined to hear McKittrick’s further appeal.

However, in connection with these appeal proceedings and thereafter, the DOJ arbitrarily decided it would not follow these and other like judicial determinations and from then on would only proceed with prosecutions where there was proof that the shooter knew the biological identity of the animal he shot before he shot it. This was then termed the McKittrick policy.

As a result, over the years, countless wolf killers and killers of other endangered species escaped any federal prosecution under the ESA because of this policy, which was created in defiance of the statutory scheme and established judicial precedent. But, I am now literally overjoyed to report that, thanks to the superb work of the New Mexico Wilderness Alliance and Wild Earth Guardians in the United States District Court for the District of Arizona, the McKittrick policy has finally been overturned in their suit involving the Mexican wolf. There, Judge David C. Bury, in a thorough and well reasoned opinion dated June 17, 2017, held as follows: “The Court finds the McKittrick policy is arbitrary and capricious, an abuse of discretion and otherwise not in accordance with  law….”. I submit that no sweeter words could be recited to wolf advocates and admirers than these. And, also, justice has at last been done and the federal ESA has been applied with firm correctness.

Although this decision has been appealed to the Ninth Circuit Court of Appeals, it is fervently hoped that Judge Bury’s 45 page opinion will be upheld and affirmed. We can be a bit hopeful in that regard because the Ninth Circuit is the same Court where the conviction of McKittrick was affirmed and the law set out correctly before the DOJ corrupted it.

Let me close these Words with another quote from the opinion that embodies the very heart of what ESA supporters have been saying all along about the “I thought it was a coyote” defense: “In adopting ESA’s public welfare offenses, Congress recognized that killing wildlife is not an entirely innocent act because a killer is knowingly engaged in a lethal activity using a deadly device, which places him or her in a position of responsibility in relation to the public. Congress placed the burden to know the identity of the wildlife species being killed on the killer.” Amen!

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