The
two groups filing the lawsuit have worked to reintroduce Mexican gray
wolves to their native habitat in the Southwestern U.S.
At question is what’s called mens rea in legal
circles – the level of intent or awareness that a person has about the
crime they are committing. Some laws require proof that a person knew
they were breaking the law when they broke it, while others require only
that the law was, in fact, broken, whether the person meant to break it
or not.
The ESA requires the latter, but the DOJ, oddly, has
decided on its own that the former should apply when it comes to
prosecuting ESA offenders, making it difficult at best for law
enforcement to catch those who harm, harass, kill, buy, sell, import,
export, eat or otherwise molest endangered species.
The ESA itself requires prosecution of those who
“knowingly” violate the law, meaning that they acted purposefully and
not, say, by accident, when they killed an endangered wolf, for example,
or traded in a tiger pelt. The DOJ, however, has been applying a
different standard for over 13 years now.
The DOJ has decided that it will only prosecute offenders
when it can prove that they “willfully” violated the law, meaning, for
example, the person not only meant to kill the wolf, but meant to kill
the endangered wolf and break the law, and knew as much the whole time.
Not easy to do, especially since criminals, being criminals, don’t always want to admit that they are criminals.
The two groups filing the lawsuit have worked to
reintroduce Mexican gray wolves to their native habitat in the
Southwestern U.S. To date, 48 of those wolves, over half the
reintroduced population, have been illegally killed, with few
prosecutions. The species remains on the brink of extinction, though recent captive births have helped keep hope alive.
But the DOJ policy has implications for other species
besides wolves, grizzly bears, or others who are the favorite foes of
American ranchers and hunters out west. An ivory trafficker could easily
argue that they didn’t know the ivory-colored, tusk shaped carvings
they brought home from Africa were made of ivory, or that ivory came
from elephant tusks, or that elephants were endangered, in order to get
off.
Nobody really knows why, in 1999, the DOJ decided to
ignore Congress and forge its own path when it comes to prosecuting
wildlife offenses (or, in this case, not prosecuting offenses).
Whatever the reason, the DOJ needs to reverse course and
do what Congress intended for it to do when it comes to prosecuting
wildlife criminals, and maybe save itself and the taxpayers some time
and money in the process.
--PT
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