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United States v. McKittrick

ELR Citation: 28 ELR 21197
Nos. 97-30090, 142 F.3d 1170/46 ERC 1790/(9th Cir., 04/28/1998)

The court upholds a hunter's conviction for taking and possessing a gray wolf in violation of the Endangered Species Act (ESA), and transporting the gray wolf in violation of the Lacey Act. The hunter shot and killed a gray wolf that was part of an experimental population from Canada designed to replenish wolves in parts of the United States. Gray wolves are listed as either threatened or endangered throughout the United States. The court first holds that the U.S. Fish and Wildlife Service's (FWS') designation of the experimental population was proper. Gray wolves are protected by the ESA based on where they are found, not where they originate. Thus, the wolves transported from Canada, where the gray wolf is not listed, were members of any population of an endangered species or a threatened species as soon as they entered the United States. The court then holds that the FWS' regulations for the gray wolf experimental population meet the "wholly separate geographically" requirement of ESA §10(j). The FWS specifically determined that the experimental population area did not support any reproducing pairs of wolves. And the FWS' determination that individual wolves do not constitute a population to invalidate the wholly separate geographically requirement is entitled to deference. The court also holds that the FWS' regulations did not violate ESA §§4(d) and (f).

The court next holds that the taking and possessing counts of the hunter's indictment are not multiplicitous. The taking count required proof of a taking, which the possession count did not require. Likewise, the possession count required proof of the hunter's possession of the wolf, which was not required by the taking count. The court then holds that the district court's jury instructions regarding intent was correct. ESA §11 only requires that the hunter knew he was shooting an animal, and that the animal turned out to be a protected gray wolf. The court further holds that the incidental take exception instructions were correct. The instructions were accurate, and they properly placed the burden of proof on the government. Moreover, any error would be harmless because the hunter cannot qualify for the incidental take exception. Last, the court holds that the hunter was eligible for a sentence reduction for his acceptance of responsibility; however, it is unclear whether the magistrate judge based his denial of the sentence adjustment on an impermissible ground. Therefore, the court remands the case for a determination of whether the hunter satisfied his burden to show acceptance of responsibility.

Counsel for Plaintiff
James C. Kilbourne
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendant
Gilbert U. Burdett
Burdett Law Firm
Western Federal Savings Bank Bldg.
2929 Third Ave. N., Ste. 325, Billings MT 59103
(406) 259-7841

Before Browning, J.