WEBVTT 00:00:00.140 --> 00:00:02.540 If you want to learn more about the topics of 00:00:02.540 --> 00:00:06.219 today's episode, visit the podcast website at 00:00:06.219 --> 00:00:09.300 naturessecretservice .com. Thanks for listening. 00:00:42.439 --> 00:00:45.740 Okay, people, listen up. Here we go. This is 00:00:45.740 --> 00:00:47.679 Nature's Secret Service, the podcast that puts 00:00:47.679 --> 00:00:49.899 you in the room with the men and women of wildlife 00:00:49.899 --> 00:00:52.420 law enforcement. I'm Ed Newcomer, your host, 00:00:52.740 --> 00:00:57.189 and this is episode three of season three. where 00:00:57.189 --> 00:01:00.030 we're doing our deep dives on wolf reintroduction 00:01:00.030 --> 00:01:03.390 and the cases related to wolves. Last week, we 00:01:03.390 --> 00:01:05.430 heard from special agent Tim Eicher, who told 00:01:05.430 --> 00:01:09.069 us the fascinating case about the first wolf 00:01:09.069 --> 00:01:10.989 that was poached outside Yellowstone National 00:01:10.989 --> 00:01:15.349 Park after wolf reintroduction, with the poacher 00:01:15.349 --> 00:01:18.030 being a guy named Chad McKittrick. And today, 00:01:18.109 --> 00:01:21.250 I'm really happy to welcome one of my long time... 00:01:21.359 --> 00:01:24.500 collaborators and colleagues and friends from 00:01:24.500 --> 00:01:26.879 while I was a special agent. We are super lucky 00:01:26.879 --> 00:01:30.640 to have Eleanor Colborne with us. She is a former 00:01:30.640 --> 00:01:32.900 prosecutor for the U .S. Department of Justice. 00:01:33.340 --> 00:01:36.480 She was assigned for many years to the Environment 00:01:36.480 --> 00:01:40.099 and Natural Resources Division, ENRD, which handles 00:01:40.099 --> 00:01:42.319 a lot of fish and wildlife cases nationally. 00:01:43.299 --> 00:01:45.659 She is retired now, but she currently is an assistant 00:01:45.659 --> 00:01:47.959 attorney general for the state of Vermont. So 00:01:47.959 --> 00:01:50.819 now she's doing what I used to do. We even have 00:01:50.819 --> 00:01:53.700 more in common than we used to. Just as a little 00:01:53.700 --> 00:01:55.799 bit of background before I let Eleanor introduce 00:01:55.799 --> 00:01:59.319 herself and say hello, she was a huge help to 00:01:59.319 --> 00:02:03.359 me on a really annoying case I did that involved 00:02:03.359 --> 00:02:06.400 about 10 years of my work trying to chase this 00:02:06.400 --> 00:02:10.240 massive fish trafficker down. He ended up becoming 00:02:10.240 --> 00:02:12.800 a fugitive and honestly, I could not have caught 00:02:12.800 --> 00:02:17.219 him without Eleanor's help in pushing DOJ to 00:02:17.219 --> 00:02:19.979 move forward on the getting the warrants done 00:02:19.979 --> 00:02:23.099 and working on the extradition. I still owe her 00:02:23.099 --> 00:02:25.580 a Coke. I'm pretty sure I owe her a Coke. Anyway, 00:02:26.139 --> 00:02:28.300 Eleanor, welcome to the podcast. Thank you so 00:02:28.300 --> 00:02:30.539 much for being on. I really appreciate it. Thanks 00:02:30.539 --> 00:02:33.219 for having me. Yeah, it's good to see you again. 00:02:33.900 --> 00:02:35.520 We're going to have a good discussion today. 00:02:37.800 --> 00:02:39.960 I think you said your dogs might come in the 00:02:39.960 --> 00:02:42.180 room. That's fine. We love dogs on this podcast. 00:02:43.060 --> 00:02:47.539 I think they're out on the ground. Out in the 00:02:47.539 --> 00:02:51.530 woods. Okay, very good. The cat, however, is 00:02:51.530 --> 00:02:54.069 behind me. No, no, he left. He wasn't there. 00:02:54.069 --> 00:02:57.330 Okay, well, we love cats here too, so the cats 00:02:57.330 --> 00:03:00.849 are welcome. Hey, to refresh my memory, how long 00:03:00.849 --> 00:03:03.169 were you with the U .S. Department of Justice? 00:03:03.689 --> 00:03:08.030 About 34 years. 34 years. That is a huge milestone 00:03:08.030 --> 00:03:10.650 for public service. You know, that's a lot. That's 00:03:10.650 --> 00:03:12.229 your professional life, really. A long time. 00:03:12.610 --> 00:03:17.900 That's a long time. Were you with ENRD the whole 00:03:17.900 --> 00:03:22.500 time? I was. I started in the wildlife section 00:03:22.500 --> 00:03:25.599 on the civil side doing defensive work mostly. 00:03:26.000 --> 00:03:29.099 Okay. And then I did a detail in the appellate 00:03:29.099 --> 00:03:34.280 section for a while, which was fascinating. But 00:03:34.280 --> 00:03:37.599 I was not prepared to like spend the rest of 00:03:37.599 --> 00:03:40.060 my career mostly in the stacks of a library. 00:03:40.939 --> 00:03:44.900 No. Yeah, I like to interact with people and 00:03:44.900 --> 00:03:49.479 I like to argue in court. And I got to do some 00:03:49.479 --> 00:03:51.840 appellate arguments, but I was given a choice 00:03:51.840 --> 00:03:55.680 then of some different options. And I elected 00:03:55.680 --> 00:04:00.180 to ruin my career by accepting the position on 00:04:00.180 --> 00:04:03.379 the criminal side, then of the wildlife section. 00:04:03.419 --> 00:04:06.580 And then they moved three prosecutors and a supervisor 00:04:06.580 --> 00:04:08.819 from the wildlife section to the environmental 00:04:08.819 --> 00:04:11.460 crime section so that all the criminal prosecutors 00:04:11.460 --> 00:04:15.409 would be. together. But yeah, a friend and I 00:04:15.409 --> 00:04:17.990 were both sort of contemplating our next steps 00:04:17.990 --> 00:04:20.329 and we were both offered the opportunity to do 00:04:20.329 --> 00:04:23.410 the criminal work. And we had a discussion and 00:04:23.410 --> 00:04:25.629 we both assessed it the same way that moving 00:04:25.629 --> 00:04:29.509 to the criminal side was kind of a career planning 00:04:29.509 --> 00:04:31.949 ender because there isn't really, it doesn't 00:04:31.949 --> 00:04:35.430 translate. You can't really take that anywhere. 00:04:35.490 --> 00:04:37.449 It doesn't really build you up very well for 00:04:37.449 --> 00:04:39.410 the private sector except doing defense work, 00:04:39.430 --> 00:04:43.959 which you weren't really interested in. So he, 00:04:43.959 --> 00:04:45.720 for those reasons, he elected to stay on the 00:04:45.720 --> 00:04:49.660 civil side. And I decided I was tired of checking 00:04:49.660 --> 00:04:51.660 boxes and keeping my options open. It just sounded 00:04:51.660 --> 00:04:54.959 like so much fun. So I jumped and did not regret 00:04:54.959 --> 00:04:57.839 it. So it didn't ruin your career. You're just 00:04:57.839 --> 00:05:03.610 being sarcastic. It was my entire career. Yeah, 00:05:04.149 --> 00:05:06.730 I'd say just so my listeners who aren't lawyers 00:05:06.730 --> 00:05:08.629 know, when we talk about appellate work, we're 00:05:08.629 --> 00:05:11.470 talking about lawyers who primarily handle appeals 00:05:11.470 --> 00:05:14.910 to either state or federal courts of appeal, 00:05:15.149 --> 00:05:17.230 maybe the Supreme Court in the state or the US 00:05:17.230 --> 00:05:20.290 Supreme Court. And it is brutal because it's 00:05:20.290 --> 00:05:22.370 really all about a lot of legal research, a lot 00:05:22.370 --> 00:05:25.269 of legal writing and then maybe you get to do 00:05:25.269 --> 00:05:27.949 some oral arguments in front of a court. But 00:05:27.949 --> 00:05:29.870 that is not fun either, because it's not like 00:05:29.870 --> 00:05:31.589 you're doing a trial where you're presenting 00:05:31.589 --> 00:05:34.029 evidence and things can, you know, things are 00:05:34.029 --> 00:05:36.990 kind of on the move. It's you speaking in front 00:05:36.990 --> 00:05:39.910 of a bunch of very well -educated judges who 00:05:39.910 --> 00:05:42.930 think they're very smart, too, and they grill 00:05:42.930 --> 00:05:46.670 you. It's not fun. I never, I hated appellate 00:05:46.670 --> 00:05:51.269 work. It can be fun. Sort of like a Rubik's Cube, 00:05:51.449 --> 00:05:54.610 like you turn the arguments over and I remember 00:05:54.610 --> 00:05:58.649 one appeal that a friend of both of ours, John 00:05:58.649 --> 00:06:02.370 Webb, had handled the trial and gotten a conviction. 00:06:02.730 --> 00:06:05.329 And I started working on the appeal that she 00:06:05.329 --> 00:06:08.110 took from this conviction. And I went and was 00:06:08.110 --> 00:06:14.550 like, OK, so the evidence, John. And it was difficult. 00:06:14.569 --> 00:06:18.990 But I realized that the issue that she was talking 00:06:18.990 --> 00:06:25.009 about kind of wasn't wasn't the right one. And 00:06:25.009 --> 00:06:27.910 then if we looked at it a different way, we absolutely 00:06:27.910 --> 00:06:32.350 would win hands down, which we did. But it was 00:06:32.350 --> 00:06:34.790 it was one of those sort of aha moments where 00:06:34.790 --> 00:06:38.189 the theory had gone on down below. As an appellate 00:06:38.189 --> 00:06:41.990 attorney, you have more time to really figure 00:06:41.990 --> 00:06:44.370 it out, to really play with the arguments and 00:06:44.370 --> 00:06:46.350 twist that Rubik's Cube until everything clicks 00:06:46.350 --> 00:06:49.019 into place. And you turn it around and you see 00:06:49.019 --> 00:06:51.319 that there is no angle a judge can come at you, 00:06:51.339 --> 00:06:54.180 no question they can ask that you can't answer, 00:06:54.279 --> 00:06:57.079 that your argument isn't rock solid. It's the 00:06:57.079 --> 00:06:59.620 only possible outcome. And that's kind of a nice 00:06:59.620 --> 00:07:02.660 feeling when you get there. But there's so much 00:07:02.660 --> 00:07:06.339 grunt work that goes into that endpoint. Yeah. 00:07:06.939 --> 00:07:09.680 And okay, so this is actually the key point as 00:07:09.680 --> 00:07:12.339 to how we know that you are a much smarter lawyer 00:07:12.339 --> 00:07:15.379 than I was, Eleanor, because I can't do Rubik's 00:07:15.379 --> 00:07:18.759 Cubes. Neither can I. It's just a great example. 00:07:18.939 --> 00:07:21.800 It's what I imagine and feel like. Yeah. I'm 00:07:21.800 --> 00:07:24.120 telling you, man. It's not work I enjoyed. I 00:07:24.120 --> 00:07:26.620 didn't super enjoy being a prosecutor either, 00:07:26.620 --> 00:07:31.680 but I liked action and doing things and having 00:07:31.680 --> 00:07:34.620 to wing it sometimes. And appellate court is 00:07:34.620 --> 00:07:36.959 not like that. So I don't think you ruined your 00:07:36.959 --> 00:07:38.579 career at all by coming over to the criminal 00:07:38.579 --> 00:07:40.680 side, criminal prosecution side. So you enjoyed 00:07:40.680 --> 00:07:44.339 being an agent part the most. 100%. Once I made 00:07:44.339 --> 00:07:46.360 the transition from being a prosecutor to an 00:07:46.360 --> 00:07:48.759 agent where I'm the one who has to solve the 00:07:48.759 --> 00:07:52.519 crime and bring you something good, that's where 00:07:52.519 --> 00:07:56.319 I thrived. But like you, I moved to something 00:07:56.319 --> 00:07:59.560 I loved and I stopped worrying about my career. 00:08:01.639 --> 00:08:03.480 I stopped worrying about that. I just started 00:08:03.480 --> 00:08:05.000 worrying about what's going to be fun and what 00:08:05.000 --> 00:08:08.379 am I going to enjoy and what am I good at? Do 00:08:08.379 --> 00:08:10.139 something you enjoy and that you're good at. 00:08:11.019 --> 00:08:13.300 Yeah, yeah where you feel like you did anyway, 00:08:13.300 --> 00:08:15.480 right or you tried tried your best. I always 00:08:15.480 --> 00:08:18.500 tell people, you know You know, even if you think 00:08:18.500 --> 00:08:21.040 we're losing the fight to protect our planet 00:08:21.040 --> 00:08:24.319 I'd rather fight a worthy cause even if it's 00:08:24.319 --> 00:08:27.420 a lost cause right? So don't don't worry about 00:08:27.420 --> 00:08:30.079 just be positive we can win But if we can't win 00:08:30.079 --> 00:08:32.080 they still fought the good fight, right? Yeah, 00:08:32.080 --> 00:08:34.340 and you'd get those those moments like a lot 00:08:34.340 --> 00:08:36.620 of times it felt like playing whack -a -mole 00:08:36.620 --> 00:08:39.419 Yes, I know exactly I've described it that exact 00:08:39.419 --> 00:08:42.539 way But every once in a while, changes in the 00:08:42.539 --> 00:08:44.720 law came about because of a particular case, 00:08:45.080 --> 00:08:47.080 changes in the way things, something was regulated. 00:08:47.759 --> 00:08:50.980 And you could see kind of a whole industry shift. 00:08:52.299 --> 00:08:55.059 It was rare, like maybe two or three times in 00:08:55.059 --> 00:08:59.120 my whole career. And the rest of it was largely 00:08:59.120 --> 00:09:02.039 whack -a -mole. But those little things you cling 00:09:02.039 --> 00:09:04.500 to and you're like, it's possible to make a little 00:09:04.500 --> 00:09:06.059 difference. It's not a huge difference. You haven't 00:09:06.059 --> 00:09:07.860 changed the world, but you've changed one small 00:09:07.860 --> 00:09:11.529 piece of it. It is and with you know when it 00:09:11.529 --> 00:09:15.210 comes to wildlife and even you know One of the 00:09:15.210 --> 00:09:16.730 we haven't talked about this yet, but one of 00:09:16.730 --> 00:09:21.029 the things ENRD does is not just prosecute wildlife 00:09:21.029 --> 00:09:23.090 traffickers, but you deal with polluters and 00:09:23.090 --> 00:09:26.850 you know people that Degrade our waterways and 00:09:26.850 --> 00:09:30.669 oil oil spills all that kind of stuff But you 00:09:30.669 --> 00:09:33.090 know the whack -a -mole thing Eleanor think of 00:09:33.090 --> 00:09:35.070 it this way. This is how I thought of it when 00:09:35.070 --> 00:09:37.769 I was an agent. Yeah A lot of times it is whack 00:09:37.769 --> 00:09:41.149 -a -mole. Let's just say you go after parrot 00:09:41.149 --> 00:09:43.990 traffickers and you take out some of the major 00:09:43.990 --> 00:09:46.850 players and parrot traffic goes away for a while, 00:09:47.110 --> 00:09:49.049 but it comes back. Eventually somebody else will 00:09:49.049 --> 00:09:52.990 get into that niche. But the key is what you 00:09:52.990 --> 00:09:55.429 and I do in that interim, once we've whacked 00:09:55.429 --> 00:09:58.750 those key moles down and they're hidden, We give 00:09:58.750 --> 00:10:01.169 the animals, we give parrots that breathing space 00:10:01.169 --> 00:10:03.250 to breed in the wild and kind of recover their 00:10:03.250 --> 00:10:05.330 numbers. They're not under the pressure. And 00:10:05.330 --> 00:10:07.230 that's our job is, you know, we're not we're 00:10:07.230 --> 00:10:09.210 never going to eliminate poaching and trafficking 00:10:09.210 --> 00:10:12.029 and polluters and all of that. We just need to 00:10:12.029 --> 00:10:16.769 whack those, you know, violators down long enough 00:10:16.769 --> 00:10:18.590 and hard enough that we give wildlife a chance 00:10:18.590 --> 00:10:23.309 to recover and and, you know, thrive. And that's 00:10:23.309 --> 00:10:26.159 if we're doing that, we're doing our job. Think 00:10:26.159 --> 00:10:28.620 of it that way, right? I like that. I like that. 00:10:28.720 --> 00:10:33.740 Yeah, exactly. So briefly, last season we had 00:10:33.740 --> 00:10:35.980 three Assistant U .S. Attorneys on on the same 00:10:35.980 --> 00:10:39.019 episode. You know them all. We had Mark Williams, 00:10:39.799 --> 00:10:41.860 Dennis Mitchell, and Matt O 'Brien from the L 00:10:41.860 --> 00:10:45.960 .A. office. They described it a little bit. I 00:10:45.960 --> 00:10:48.480 think sometimes people might get confused about, 00:10:48.559 --> 00:10:51.120 they hear about DOJ prosecutors in Washington 00:10:51.120 --> 00:10:53.200 D .C. and then they hear about Assistant United 00:10:53.200 --> 00:10:55.840 States Attorneys. Can you describe like what's 00:10:55.840 --> 00:10:57.759 the difference and how do you guys work together? 00:10:58.600 --> 00:11:01.580 It's basically sort of jurisdiction so that Assistant 00:11:01.580 --> 00:11:05.720 U .S. Attorneys are based geographically. There's 00:11:05.720 --> 00:11:10.440 I think 93, 92, 93 U .S. Attorney's offices nationwide 00:11:10.440 --> 00:11:13.679 and they have jurisdiction basically over every 00:11:13.679 --> 00:11:17.379 crime that happens. in their geographic region. 00:11:18.600 --> 00:11:21.340 They are generalists, kind of geographic specialists, 00:11:22.179 --> 00:11:25.659 legal generalists for their work. They will split 00:11:25.659 --> 00:11:28.539 into criminal, civil, people who specialize in 00:11:28.539 --> 00:11:31.580 forfeiture, that kind of thing. But they handle 00:11:31.580 --> 00:11:36.059 it all within that geographic space. For DOJ, 00:11:36.980 --> 00:11:40.240 we are subject matter specialists. So I could 00:11:40.240 --> 00:11:43.379 go anywhere in the country to prosecute a wildlife 00:11:43.379 --> 00:11:46.190 crime. I wasn't restricted geographically the 00:11:46.190 --> 00:11:49.529 way an assistant U .S. attorney is, but I had 00:11:49.529 --> 00:11:52.470 to be prosecuting, well, for the environmental 00:11:52.470 --> 00:11:54.549 crime section, something that came within our 00:11:54.549 --> 00:11:56.610 portfolio, some type of environmental crime. 00:11:57.070 --> 00:11:59.190 For me, I did only fish, wildlife, and plants 00:11:59.190 --> 00:12:03.570 my entire career. But I could do it anywhere. 00:12:03.649 --> 00:12:06.509 And the perfect relationship between the two 00:12:06.509 --> 00:12:11.629 offices is a partnership. And most of the U .S. 00:12:11.830 --> 00:12:15.450 attorneys would welcome us. and partner with 00:12:15.450 --> 00:12:17.950 us. In some cases, they just didn't. They were 00:12:17.950 --> 00:12:20.990 so stretched thin with other priorities. And 00:12:20.990 --> 00:12:24.509 this was all we did. So when an agent couldn't 00:12:24.509 --> 00:12:26.409 get the attention of a US attorney because they 00:12:26.409 --> 00:12:28.250 were so busy with other things and they just 00:12:28.250 --> 00:12:30.830 didn't have the staff, they could come to us. 00:12:31.309 --> 00:12:33.590 Or if it was a particularly difficult case that 00:12:33.590 --> 00:12:35.690 a US attorney might think, I don't know those 00:12:35.690 --> 00:12:39.169 statutes. That sounds really tricky to me. Either 00:12:39.169 --> 00:12:41.149 they wanted a partner or they wanted somebody 00:12:41.149 --> 00:12:42.889 else to just take it off their hands and run 00:12:42.889 --> 00:12:45.629 with it who actually knew the statutes and could 00:12:45.629 --> 00:12:48.730 therefore do it much more efficiently. That would 00:12:48.730 --> 00:12:52.250 be where we came in. Also, if it was multi -jurisdictional. 00:12:52.470 --> 00:12:55.049 So if the crime happened in more than one district, 00:12:56.269 --> 00:12:59.529 those cases would typically come to us. A lot 00:12:59.529 --> 00:13:01.769 of the long -term undercover investigations, 00:13:02.309 --> 00:13:04.429 because often when those started, you didn't 00:13:04.429 --> 00:13:07.600 know where the venue was going to be. or how 00:13:07.600 --> 00:13:10.559 many different venues you would have. So we tended 00:13:10.559 --> 00:13:15.379 to get either sort of the orphaned homeless cases 00:13:15.379 --> 00:13:20.120 or the really complicated cases. Right. Those 00:13:20.120 --> 00:13:24.840 were our bread and butter. Yeah, I think so, 00:13:24.840 --> 00:13:27.179 you know, it's an interesting relationship because 00:13:27.179 --> 00:13:31.480 it's DOJ prosecutors work closely often with, 00:13:31.480 --> 00:13:34.950 you know, the local or the, you know, the the 00:13:34.950 --> 00:13:39.970 district US attorneys. And then like you said, 00:13:40.090 --> 00:13:41.970 and like Mark said, when he was on the show, 00:13:42.049 --> 00:13:44.149 you know, LA is lucky it has an environmental 00:13:44.149 --> 00:13:46.950 crimes unit, but a lot of US attorney's offices 00:13:46.950 --> 00:13:49.570 do not have a dedicated unit. So they don't necessarily 00:13:49.570 --> 00:13:51.850 have the expertise or they don't have the time. 00:13:52.629 --> 00:13:55.470 So ENRD can come in and work on those cases. 00:13:55.470 --> 00:13:57.409 I'm not sure there's more than two districts 00:13:57.409 --> 00:14:01.190 now that have one. I was trying to think of that. 00:14:01.509 --> 00:14:06.179 LA, Miami still? I don't know. I'm actually not 00:14:06.179 --> 00:14:10.440 sure. The person who headed that group has retired. 00:14:11.659 --> 00:14:13.980 I'm not sure that LA's, have they kept theirs? 00:14:14.539 --> 00:14:17.379 Yeah, they did keep theirs. They always end up 00:14:17.379 --> 00:14:20.200 like changing the name a little bit. So they 00:14:20.200 --> 00:14:23.100 do other things. Like I think right now it's 00:14:23.100 --> 00:14:24.899 environmental crimes and consumer protection 00:14:24.899 --> 00:14:26.940 or something odd like that. But yeah, they still 00:14:26.940 --> 00:14:29.620 have dedicated people to do that work, which 00:14:29.620 --> 00:14:32.779 is great. Um, did you ever, when you were working 00:14:32.779 --> 00:14:36.700 for ENRD, did you ever work on a Wolf case? Well, 00:14:36.700 --> 00:14:39.259 here's the thing. We've talked about that. I 00:14:39.259 --> 00:14:42.080 think so. I think so. I think so. Here's the 00:14:42.080 --> 00:14:45.480 answer. Um, yeah, I have a distinct recollection 00:14:45.480 --> 00:14:49.779 of being out West. I don't, not at the, not at 00:14:49.779 --> 00:14:52.759 the initial court level for the McKittrick case, 00:14:52.960 --> 00:14:56.700 but maybe on appeal. Okay. I know I touched it, 00:14:56.820 --> 00:14:58.159 but honest to God, I can't remember. It's been 00:14:58.159 --> 00:15:02.159 so long now. I can't remember. Yeah, that's okay 00:15:02.159 --> 00:15:05.259 in the episode before years We talked to special 00:15:05.259 --> 00:15:07.860 agent Tim Iker and he told us about his investigation 00:15:07.860 --> 00:15:10.620 of Chad McKittrick that first wolf that was poached 00:15:10.620 --> 00:15:13.440 but what we really didn't get into with Tim was 00:15:13.440 --> 00:15:16.379 detail about what happened after Chad McKittrick 00:15:16.379 --> 00:15:19.460 was convicted and he appealed his conviction 00:15:19.460 --> 00:15:25.340 on a number of Causes or number of reasons he 00:15:25.340 --> 00:15:28.500 appealed But one of those was he claimed that 00:15:28.500 --> 00:15:31.299 the jury instruction that was given in the case 00:15:31.299 --> 00:15:34.259 Which basically told the jury and between you 00:15:34.259 --> 00:15:36.000 and me we're gonna give a little bit of a legal 00:15:36.000 --> 00:15:38.919 background on the on the appeal Whatever between 00:15:38.919 --> 00:15:41.960 the two of us we can remember but basically he 00:15:41.960 --> 00:15:44.860 appealed claiming among other things But one 00:15:44.860 --> 00:15:47.179 of the things was that the jury instruction? 00:15:47.740 --> 00:15:50.500 Given by the judge to the jury which said that 00:15:50.500 --> 00:15:54.600 the jury did not need to conclude that he knew 00:15:54.600 --> 00:15:57.399 he was shooting a wolf when he shot an animal. 00:15:57.899 --> 00:16:01.019 That's basically just that he intentionally took 00:16:01.019 --> 00:16:03.659 a shot at an animal and the animal turned out 00:16:03.659 --> 00:16:05.419 to be a wolf. That's all the jury would need 00:16:05.419 --> 00:16:09.980 to conclude. Interestingly, in the trial, there 00:16:09.980 --> 00:16:12.059 was evidence presented that he did know it was 00:16:12.059 --> 00:16:14.720 a wolf. He talked to the guy next to him and 00:16:14.720 --> 00:16:17.620 said, hey, there's a wolf and he shot it. There 00:16:17.620 --> 00:16:19.399 was a lot of evidence that he did know he was 00:16:19.399 --> 00:16:22.210 shooting a wolf when he pulled the trigger. That 00:16:22.210 --> 00:16:25.649 issue made its way up through appeals, went to 00:16:25.649 --> 00:16:28.070 the, I believe, Ninth Circuit Court of Appeals. 00:16:28.190 --> 00:16:31.950 He lost. The Ninth Circuit said that, no, that's 00:16:31.950 --> 00:16:33.309 a correct jury instruction. You don't have to 00:16:33.309 --> 00:16:35.669 prove that. And then he appealed to the US Supreme 00:16:35.669 --> 00:16:38.250 Court, and that's where things got a little weird. 00:16:39.870 --> 00:16:42.009 Do you want to take it from there, what happened 00:16:42.009 --> 00:16:46.570 at the Supreme Court level? Well, so he was convicted 00:16:46.570 --> 00:16:49.669 on three different misdemeanor counts. Right. 00:16:50.269 --> 00:16:54.330 Only one of those three raised the issue that 00:16:54.330 --> 00:16:57.690 we're talking about, which is what kind of knowledge 00:16:57.690 --> 00:17:00.610 did he need to have about what it was that he 00:17:00.610 --> 00:17:04.970 was shooting? The Ninth Circuit followed other 00:17:04.970 --> 00:17:08.470 circuits and said, yeah, it was just good enough 00:17:08.470 --> 00:17:10.390 that you shot something and it turned out to 00:17:10.390 --> 00:17:13.430 be a wolf. When it got to the Supreme Court, 00:17:13.670 --> 00:17:16.269 the social general's office full of very, very 00:17:16.269 --> 00:17:20.140 smart people. They looked at that jury instruction 00:17:20.140 --> 00:17:24.299 and they looked at relatively recent Supreme 00:17:24.299 --> 00:17:27.940 Court cases at that time and thought, we're not 00:17:27.940 --> 00:17:30.380 going to win on that one because the way where 00:17:30.380 --> 00:17:34.619 the Supreme Court was headed was really following 00:17:34.619 --> 00:17:39.759 a theory that a defendant in a criminal case, 00:17:41.180 --> 00:17:43.839 all of the presumptions of what the elements 00:17:43.839 --> 00:17:49.420 need to be, have to come out to a culpable state 00:17:49.420 --> 00:17:54.259 of mind. So the Supreme Court was moving in the 00:17:54.259 --> 00:17:59.079 direction of the defendant has to know every 00:17:59.079 --> 00:18:07.259 fact that makes it criminal conduct. And so they 00:18:07.259 --> 00:18:12.069 were trying to avoid situations where Conduct 00:18:12.069 --> 00:18:15.289 that would otherwise be regarded by society as 00:18:15.289 --> 00:18:18.829 innocent, unless this one little factoid was 00:18:18.829 --> 00:18:22.789 tweaked, you needed to know as a defendant to 00:18:22.789 --> 00:18:27.710 be a criminal, you needed to know that fact that 00:18:27.710 --> 00:18:30.769 tweaks it into the criminal realm and out of 00:18:30.769 --> 00:18:33.569 innocent conduct realm. So the Solicitor General's 00:18:33.569 --> 00:18:36.329 office looked at that, looked at that jury instruction 00:18:36.329 --> 00:18:40.170 and dropped a footnote in their brief. opposing 00:18:40.170 --> 00:18:44.309 the Supreme Court taking cert saying, you don't 00:18:44.309 --> 00:18:47.069 need to look at all this because we're not going 00:18:47.069 --> 00:18:49.769 to ever do that jury instruction again, court. 00:18:50.309 --> 00:18:54.009 We don't think it matches this court's jurisprudence 00:18:54.009 --> 00:18:58.269 at this point. And so we're not no longer going 00:18:58.269 --> 00:19:02.069 to be arguing that it is good enough to know 00:19:02.069 --> 00:19:04.210 that you shot an animal and the animal turned 00:19:04.210 --> 00:19:07.450 out to be a wolf. Now it doesn't go all the way 00:19:07.450 --> 00:19:10.769 to specific intent. So what they what they're 00:19:10.769 --> 00:19:13.950 saying is When you pull the trigger, you need 00:19:13.950 --> 00:19:17.589 to know it's a wolf because that's a fact That 00:19:17.589 --> 00:19:20.730 makes it criminal conduct if it was in fact a 00:19:20.730 --> 00:19:24.789 feral dog that would be considered maybe innocent 00:19:24.789 --> 00:19:29.490 conduct Or otherwise legal conduct they're not 00:19:29.490 --> 00:19:31.950 requiring that the person pull the trigger knowing 00:19:31.950 --> 00:19:35.029 that it was a wolf and knowing that it was listed 00:19:35.029 --> 00:19:37.589 as an endangered species. They don't have to 00:19:37.589 --> 00:19:40.109 know the state of the law regarding that animal. 00:19:40.390 --> 00:19:42.630 They just have to know the biology. They just 00:19:42.630 --> 00:19:45.890 have to know the identity. Yeah, that's a very 00:19:45.890 --> 00:19:50.049 good distinction. And according to the Solicitor 00:19:50.049 --> 00:19:52.130 General, then this is what's interesting. This 00:19:52.130 --> 00:19:53.690 is where we're going to back up just a little 00:19:53.690 --> 00:19:56.940 bit to talk about this because According to the 00:19:56.940 --> 00:19:59.680 Solicitor General, their interpretation of where 00:19:59.680 --> 00:20:01.099 kind of the Supreme Court was headed and what 00:20:01.099 --> 00:20:05.240 the law is in their mind is that a person who 00:20:05.240 --> 00:20:08.220 shoots at an animal in order to be guilty of 00:20:08.220 --> 00:20:10.480 taking an endangered or threatened species would 00:20:10.480 --> 00:20:13.700 have to know or believe they were shooting at 00:20:13.700 --> 00:20:18.289 a threatened or endangered species. Yes, they 00:20:18.289 --> 00:20:19.809 have to, they have to, well, they have to know 00:20:19.809 --> 00:20:21.809 the identity of the animal. That's it. They have 00:20:21.809 --> 00:20:23.329 to know what the species is. They don't have 00:20:23.329 --> 00:20:25.509 to know these are threatened species. Exactly. 00:20:25.730 --> 00:20:28.430 Okay. Right. Right. And that, yeah, that is the 00:20:28.430 --> 00:20:30.450 key distinction, right? Okay. So you have to 00:20:30.450 --> 00:20:32.670 know you're shooting at a wolf or you think you 00:20:32.670 --> 00:20:35.329 believe you're shooting at a wolf, but it doesn't 00:20:35.329 --> 00:20:37.369 matter whether or not you know that wolves are 00:20:37.369 --> 00:20:41.809 endangered or threatened. Yes. Okay. Right. And, 00:20:41.869 --> 00:20:47.220 um, before I get into a full disclosure, Me and 00:20:47.220 --> 00:20:49.059 a whole lot of other special agents and a lot 00:20:49.059 --> 00:20:53.460 of prosecutors don't agree with that. But before 00:20:53.460 --> 00:20:57.539 we get into that, let's explain what the Solicitor 00:20:57.539 --> 00:20:59.619 General's office is, because we just talked about 00:20:59.619 --> 00:21:03.619 DOJ and ENRD and US Attorney's office. Who the 00:21:03.619 --> 00:21:05.660 heck is the Solicitor General and why are they 00:21:05.660 --> 00:21:10.220 involved in this? They are sort of the highest 00:21:10.220 --> 00:21:17.559 attorney within the department. They do the litigating 00:21:17.559 --> 00:21:19.759 in front of the Supreme Court. So the appellate 00:21:19.759 --> 00:21:22.220 division would handle the appellate cases. The 00:21:22.220 --> 00:21:24.539 Solicitor General handles the Supreme Court cases. 00:21:26.539 --> 00:21:28.460 Right. And like you mentioned, these are very 00:21:28.460 --> 00:21:30.880 smart people who argue in front of the Supreme 00:21:30.880 --> 00:21:35.240 Court a lot. These are like the cream of the 00:21:35.240 --> 00:21:39.039 crop of the appellate attorneys, right? Right. 00:21:39.259 --> 00:21:42.299 Very smart people who spend their lives in front 00:21:42.299 --> 00:21:44.680 of the Supreme Court and they know the justices 00:21:44.680 --> 00:21:48.380 inside and out. and they know how they're likely 00:21:48.380 --> 00:22:00.980 to roll. They have a long history of maintaining 00:22:00.980 --> 00:22:04.640 their credibility in front of that court, which 00:22:04.640 --> 00:22:07.900 I think really helped them have a very strong 00:22:07.900 --> 00:22:12.119 record of wins. They knew where the court was 00:22:12.119 --> 00:22:13.680 headed. They knew what the court was thinking. 00:22:13.799 --> 00:22:16.079 They knew what arguments would appeal to which 00:22:16.079 --> 00:22:19.880 judge. And if they thought a case wasn't going 00:22:19.880 --> 00:22:21.559 to get anywhere, they weren't going to pursue 00:22:21.559 --> 00:22:23.319 it because they didn't want their credibility 00:22:23.319 --> 00:22:25.460 to be damaged with the court, which is understandable. 00:22:25.579 --> 00:22:28.099 They don't want to waste the court's time. Right. 00:22:28.299 --> 00:22:32.039 Yeah. Yeah. OK. So I think this is where kind 00:22:32.039 --> 00:22:36.400 of it creates a problem from people who are opposed 00:22:36.400 --> 00:22:40.029 to what happened next. That creates a problem 00:22:40.029 --> 00:22:45.329 for us because basically what the U .S. Solicitor 00:22:45.329 --> 00:22:49.970 decided to do in this case was, granted, using 00:22:49.970 --> 00:22:52.410 their knowledge of where the Supreme Court was 00:22:52.410 --> 00:22:55.509 going, what kind of rulings had been coming out 00:22:55.509 --> 00:23:00.430 of the Supreme Court up to that time, what the 00:23:00.430 --> 00:23:03.089 personalities of the justices were, they believed 00:23:03.089 --> 00:23:07.000 that they wouldn't win on this. Anyway, so they 00:23:07.000 --> 00:23:08.819 just decided we're not we're not going to use 00:23:08.819 --> 00:23:10.799 that jury instruction anymore. So don't even 00:23:10.799 --> 00:23:16.440 address the question. That I get it, but it creates 00:23:16.440 --> 00:23:19.460 an issue because what happened next was the U 00:23:19.460 --> 00:23:23.400 .S. Department of Justice issued a memo to prosecutors 00:23:23.400 --> 00:23:26.519 basically telling them not to use that jury instruction 00:23:26.519 --> 00:23:29.119 that was used in McKittrick. Right. And that's 00:23:29.119 --> 00:23:33.279 what's. Yeah, exactly. And that's what we call 00:23:33.279 --> 00:23:36.920 the McKittrick memo. Sometimes agents have mistakenly 00:23:36.920 --> 00:23:39.680 referred to it as the McKittrick decision. But 00:23:39.680 --> 00:23:43.940 I think it's McKittrick policy, McKittrick memo. 00:23:44.839 --> 00:23:46.920 But where it comes down to for me, these are 00:23:46.920 --> 00:23:51.140 the problems for me. And I wrote, you know, co 00:23:51.140 --> 00:23:53.140 -wrote a law review article about this issue 00:23:53.140 --> 00:23:54.779 if anybody wants to read it. It's a little dated 00:23:54.779 --> 00:23:57.400 now, 2011, but I think nothing's really changed 00:23:57.400 --> 00:24:05.279 since then much. But my problem is that if Any 00:24:05.279 --> 00:24:08.420 lawyer in this country or any citizen who did 00:24:08.420 --> 00:24:11.920 a little bit of legal research? And they looked 00:24:11.920 --> 00:24:15.799 at the highest ruling in the country. It's going 00:24:15.799 --> 00:24:18.519 to be the courts of appeal because the Supreme 00:24:18.519 --> 00:24:21.880 Court never looked at the issue. And those all 00:24:21.880 --> 00:24:25.859 of those courts agree that this this jury instruction 00:24:25.859 --> 00:24:28.140 was correct under the Endangered Species Act 00:24:28.140 --> 00:24:31.119 pursuant to congressional intent. This is what 00:24:31.119 --> 00:24:35.130 Congress intended. And so anybody who does diligent 00:24:35.130 --> 00:24:37.730 legal research will conclude that the law is 00:24:37.730 --> 00:24:40.950 very different than how it's being applied. And 00:24:40.950 --> 00:24:45.329 the way it's being applied is is the result of 00:24:45.329 --> 00:24:49.569 a decision. Somebody who is not elected, who 00:24:49.569 --> 00:24:51.970 just made this decision based on their legal 00:24:51.970 --> 00:24:55.690 experience and locked it down with a memo. It 00:24:55.690 --> 00:24:58.750 is never going to come up for appeal again. The 00:24:58.750 --> 00:25:03.380 only way this could be. changed, presumably would 00:25:03.380 --> 00:25:06.619 be Congress has to change the Endangered Species 00:25:06.619 --> 00:25:11.400 Act to be much more specific on take, or a political 00:25:11.400 --> 00:25:13.359 decision has to be made to rescind the memo. 00:25:13.880 --> 00:25:16.299 There's no opportunity for appeal. Nobody, this 00:25:16.299 --> 00:25:18.839 is never going to come up on appeal again. And 00:25:18.839 --> 00:25:20.960 any lawyer doing research on it is going to conclude 00:25:20.960 --> 00:25:22.900 that the law is very different than how it's 00:25:22.900 --> 00:25:25.099 being applied. That's what bugs me about it. 00:25:25.299 --> 00:25:28.319 But, but it's, the position being applied is 00:25:28.319 --> 00:25:32.460 a criminal statute. That is the job of DOJ to 00:25:32.460 --> 00:25:34.519 make sure all the criminal prosecutors who would 00:25:34.519 --> 00:25:37.579 use the statute are aware of the Supreme Court 00:25:37.579 --> 00:25:40.819 case law, of the footnote in the McCutcher brief, 00:25:41.039 --> 00:25:45.559 of the U .S. position on a matter of law. Like, 00:25:45.559 --> 00:25:48.680 this is not a policy. I think that's an important 00:25:48.680 --> 00:25:55.140 distinction that I don't disagree that there 00:25:55.140 --> 00:25:58.400 are probably some cases. I may disagree on that. 00:25:58.720 --> 00:26:01.779 degree to which this has really impacted prosecutions, 00:26:02.619 --> 00:26:07.279 and we should talk about that in a second. But 00:26:07.279 --> 00:26:11.480 I think that it is the Solicitor General's job 00:26:11.480 --> 00:26:15.960 to interpret the law as best they can. And yes, 00:26:16.259 --> 00:26:18.000 somebody could come, a different Solicitor General 00:26:18.000 --> 00:26:20.880 could come in place and say, yeah, I think the 00:26:20.880 --> 00:26:23.599 law is moved. I don't think that's the right 00:26:23.599 --> 00:26:25.819 decision and we're going to rescind the memo 00:26:25.819 --> 00:26:30.759 or make it more nuanced or whatever. But it is 00:26:30.759 --> 00:26:33.960 their job to interpret the law. They aren't setting 00:26:33.960 --> 00:26:38.279 policy. They're not saying it's good or bad to 00:26:38.279 --> 00:26:40.460 require certain things. They're saying that this 00:26:40.460 --> 00:26:44.400 statute, as it's written, in good faith, looking 00:26:44.400 --> 00:26:47.000 at Supreme Court case law, we believe this is 00:26:47.000 --> 00:26:49.259 how the Supreme Court would rule on it. It's 00:26:49.259 --> 00:26:52.500 not how the Ninth Circuit ruled on it. But looking 00:26:52.500 --> 00:26:54.900 at the direction of the jurisprudence at the 00:26:54.900 --> 00:26:57.160 Supreme Court, That's how we believe the Supreme 00:26:57.160 --> 00:27:00.519 Court would rule on it. We are bound by Supreme 00:27:00.519 --> 00:27:03.799 Court precedent. We're not going to set ourselves 00:27:03.799 --> 00:27:07.559 up for failure. We think this is the right interpretation 00:27:07.559 --> 00:27:10.880 of the law based on everything we have to refer 00:27:10.880 --> 00:27:15.240 to in order to interpret a law. So I think it 00:27:15.240 --> 00:27:18.380 is a legislative question at this point. Well, 00:27:18.559 --> 00:27:21.619 see, I'm not sure because I agree with you that 00:27:21.619 --> 00:27:25.150 it is their job to evaluate cases. whether or 00:27:25.150 --> 00:27:26.589 not to argue them in front of the Supreme Court. 00:27:26.730 --> 00:27:29.509 There's lots of times when we decide we're not 00:27:29.509 --> 00:27:32.190 going to go forward with that. This isn't that. 00:27:32.289 --> 00:27:35.529 This isn't evaluating the facts of a case and 00:27:35.529 --> 00:27:37.910 the law. Is it a strong enough case? Can we prove 00:27:37.910 --> 00:27:41.630 the case? This is a question of does the law 00:27:41.630 --> 00:27:44.990 prohibit this conduct? And they're saying that 00:27:44.990 --> 00:27:50.210 the law does not prohibit that particular conduct. 00:27:50.730 --> 00:27:54.869 So there's a difference between situations which 00:27:54.869 --> 00:27:58.609 do exist where parts of government will illegally 00:27:58.609 --> 00:28:02.049 say, we don't like that part of the law right 00:28:02.049 --> 00:28:03.710 now. We're just we're not going to prioritize 00:28:03.710 --> 00:28:06.450 it. We're not going to enforce it. And if and 00:28:06.450 --> 00:28:09.009 if they make a statement saying essentially categorically, 00:28:09.009 --> 00:28:13.930 we're not going to enforce a law, not that not 00:28:13.930 --> 00:28:15.690 that there's a difference on what the law means. 00:28:16.170 --> 00:28:17.769 But here's what the law means. We're not going 00:28:17.769 --> 00:28:21.289 to enforce it. That's illegal. That's a policy 00:28:21.289 --> 00:28:23.589 call and that's not allowed. Congress has said 00:28:23.589 --> 00:28:26.349 what the conduct is and you're supposed to enforce 00:28:26.349 --> 00:28:28.289 it. There are instances where you just don't 00:28:28.289 --> 00:28:30.309 have the resources, right? You have to make priority 00:28:30.309 --> 00:28:33.390 choices. But for the most part, you can't simply 00:28:33.390 --> 00:28:35.069 categorically say we're not going to enforce 00:28:35.069 --> 00:28:38.069 the law as Congress has laid it out. That's different 00:28:38.069 --> 00:28:41.069 from saying, here's the law that Congress laid 00:28:41.069 --> 00:28:44.029 out. We don't think it prohibits this type of 00:28:44.029 --> 00:28:47.759 conduct. We think this is what it applies to 00:28:47.759 --> 00:28:49.619 and we will enforce what we think it applies 00:28:49.619 --> 00:28:54.180 to but we just don't think the law does What 00:28:54.180 --> 00:28:58.299 you would like it to do? Yeah, I mean I understand 00:28:58.299 --> 00:29:01.900 how the solicitor You know got to where they 00:29:01.900 --> 00:29:05.900 were And and I don't agree with their evaluation 00:29:05.900 --> 00:29:08.579 or analysis of it but I didn't either at the 00:29:08.579 --> 00:29:11.259 time but I'm a little yeah you've changed okay 00:29:11.259 --> 00:29:13.440 well we talk about that a little bit too but 00:29:13.440 --> 00:29:15.559 you know I do think when they put out the memo 00:29:15.559 --> 00:29:18.019 they did turn it into policy it became policy 00:29:18.019 --> 00:29:20.680 of the Department of Justice not to use that 00:29:20.680 --> 00:29:24.000 that um that jury instruction Department's interpretation 00:29:24.000 --> 00:29:29.279 of law that's different than policy um yes but 00:29:29.279 --> 00:29:31.740 their interpretation of law is their opinion 00:29:31.740 --> 00:29:34.359 right so that's like officer discretion that's 00:29:34.359 --> 00:29:41.460 like That's just their opinion But but It is 00:29:41.460 --> 00:29:43.319 but once you turn out a memo that says don't 00:29:43.319 --> 00:29:45.819 do it that's policy. They're turning on them 00:29:45.819 --> 00:29:49.740 and said this is what the law is I don't know. 00:29:49.799 --> 00:29:52.579 I'll put the memo up on the website Therefore 00:29:52.579 --> 00:29:55.000 you can't give a jury instruction that says X 00:29:55.000 --> 00:29:57.339 because it would be wrong because the law does 00:29:57.339 --> 00:30:04.150 not say X Well Yes, it is an opinion of the Solicitor's 00:30:04.150 --> 00:30:07.430 Office, but a lot of legal minds have disagreed 00:30:07.430 --> 00:30:10.069 with the Solicitor's Office on that issue. I 00:30:10.069 --> 00:30:12.109 think one of the things that we pointed out in 00:30:12.109 --> 00:30:15.049 the Law Review article is that in the congressional 00:30:15.049 --> 00:30:17.269 record, when the amendments were made to the 00:30:17.269 --> 00:30:20.869 ESA on the criminal provisions, there was some 00:30:20.869 --> 00:30:24.170 discussion in Congress that they did not want 00:30:24.170 --> 00:30:26.950 it to be required that somebody have that level 00:30:26.950 --> 00:30:32.109 of mens rea. So, aside from some of the other 00:30:32.109 --> 00:30:35.549 Supreme Court cases that have been cited justifying 00:30:35.549 --> 00:30:38.690 the solicitor's interpretation, those things 00:30:38.690 --> 00:30:41.789 are not there in those Supreme Court cases. Those 00:30:41.789 --> 00:30:44.950 Supreme Court cases talk specifically about how 00:30:44.950 --> 00:30:47.250 there was nothing from Congress indicating what 00:30:47.250 --> 00:30:49.930 their intent was. Well, in the ESA, there is 00:30:49.930 --> 00:30:52.589 some record of what Congress intended, and it's 00:30:52.589 --> 00:30:56.529 just kind of ignored. Well, Supreme Court's gone 00:30:56.529 --> 00:31:00.140 beyond that now. In more recent cases, yeah, 00:31:00.200 --> 00:31:04.200 the earlier cases were all about, it can't be 00:31:04.200 --> 00:31:07.480 sort of otherwise innocent looking conduct. And 00:31:07.480 --> 00:31:10.579 they were cases that were dealing often with 00:31:10.579 --> 00:31:12.980 strict liability types of situations, which the 00:31:12.980 --> 00:31:18.160 court has always hated. But some more recent 00:31:18.160 --> 00:31:23.200 cases deal with knowledge and willfulness. And 00:31:23.200 --> 00:31:26.519 they are still coming down on saying, Knowledge 00:31:26.519 --> 00:31:31.400 can't be because there's sort of a specific knowledge 00:31:31.400 --> 00:31:36.779 or almost a negligence knowledge like And more 00:31:36.779 --> 00:31:39.460 recent cases have gone kind of the one step further 00:31:39.460 --> 00:31:43.339 and said It can't be kind of negligent knowledge. 00:31:43.539 --> 00:31:46.779 It has to be absolute knowledge. I knew and I 00:31:46.779 --> 00:31:50.599 did X anyway But what does this do to there's 00:31:50.599 --> 00:31:54.400 a specific federal statute criminal statute title 00:31:54.400 --> 00:32:00.359 18 I think it's a manslaughter statute, and it 00:32:00.359 --> 00:32:04.460 talks specifically about lack of due regard for 00:32:04.460 --> 00:32:07.859 what you're doing. Not that you intended to kill 00:32:07.859 --> 00:32:10.819 somebody, but that lack of due regard caused 00:32:10.819 --> 00:32:13.460 you to kill someone. And if the ESA was written 00:32:13.460 --> 00:32:15.660 to include that kind of a negligent standard 00:32:15.660 --> 00:32:18.259 explicitly, absolutely it would be applied, but 00:32:18.259 --> 00:32:20.380 it's not written that way. It's written for knowledge. 00:32:21.250 --> 00:32:23.410 Interesting. Even though the rec congressional 00:32:23.410 --> 00:32:27.089 record would show that that was the intent of 00:32:27.089 --> 00:32:28.349 Congress when they passed that. That would be 00:32:28.349 --> 00:32:31.450 your strongest statutory construction argument. 00:32:33.609 --> 00:32:35.869 That's why I'm saying I think it would need to 00:32:35.869 --> 00:32:38.829 be a statutory fix at this point because of these 00:32:38.829 --> 00:32:40.849 more recent cases where the Supreme Court is 00:32:40.849 --> 00:32:43.710 kind of really ratcheting down on it has to be 00:32:43.710 --> 00:32:46.750 culpable conduct. They have to know every fact. 00:32:47.029 --> 00:32:50.589 It can't just be that another person sort of 00:32:50.589 --> 00:32:52.690 similarly situate a reasonable person would have 00:32:52.690 --> 00:32:56.049 concluded that fact, you have to prove that they 00:32:56.049 --> 00:32:58.950 actually knew that fact. Right. So the standard 00:32:58.950 --> 00:33:03.130 has gotten more and more difficult. And I don't 00:33:03.130 --> 00:33:05.970 disagree. I don't disagree that should be the 00:33:05.970 --> 00:33:08.569 standard under the ESA, right? Because you're 00:33:08.569 --> 00:33:11.529 firing a gun. There should be a requirement. 00:33:11.809 --> 00:33:14.970 The owner should be on you to know what you're 00:33:14.970 --> 00:33:19.700 killing before you kill it. And I think Any reputable 00:33:19.700 --> 00:33:22.880 hunter Would feel the same way they don't pull 00:33:22.880 --> 00:33:25.480 the trigger unless they know no mistakes can 00:33:25.480 --> 00:33:28.819 happen right for anybody experts can make a bad 00:33:28.819 --> 00:33:32.900 ID But for the most part, they're really sure 00:33:32.900 --> 00:33:36.220 of what they're pulling the trigger on Yeah, 00:33:36.220 --> 00:33:39.940 and there could be language that would Acknowledge 00:33:39.940 --> 00:33:42.500 that that would implement what Congress perhaps 00:33:42.500 --> 00:33:47.799 intended to do which is sort of a stricter Almost 00:33:47.799 --> 00:33:50.859 like in the public welfare cases where the courts 00:33:50.859 --> 00:33:53.380 have accepted strict liability in certain public 00:33:53.380 --> 00:33:56.519 welfare cases because it's so important that 00:33:56.519 --> 00:34:00.180 these things not happen, and the penalty is usually 00:34:00.180 --> 00:34:03.359 so low. Well, the ESA is a misdemeanor. Right. 00:34:03.779 --> 00:34:05.680 Class A misdemeanor. Class B for threatened. 00:34:05.980 --> 00:34:07.759 Right. So they've accepted those situations, 00:34:07.779 --> 00:34:12.559 and this seems to be analogous to that to a certain 00:34:12.559 --> 00:34:15.900 degree. If it could be explicit in the statute 00:34:15.900 --> 00:34:20.800 that they're talking about, um, there's a burden 00:34:20.800 --> 00:34:23.840 that rests with the defendant to show that there 00:34:23.840 --> 00:34:27.420 was some, you know, they, they had a legitimate 00:34:27.420 --> 00:34:30.500 belief that it was something that it wasn't, 00:34:30.760 --> 00:34:33.699 or the, you know, the burden is on them for knowing 00:34:33.699 --> 00:34:37.480 it. Some switch up, some recognition of sort 00:34:37.480 --> 00:34:41.659 of this negligent standard, um, for the knowledge 00:34:41.659 --> 00:34:44.480 for the shooter. That would be the ideal solution, 00:34:44.519 --> 00:34:47.260 but we all know how hard it is to get things 00:34:47.260 --> 00:34:50.300 legislated. Yeah. Nobody wants to reopen the 00:34:50.300 --> 00:34:52.219 Endangered Species Act for amendments because 00:34:52.219 --> 00:34:54.699 they're so afraid of what one party or the other 00:34:54.699 --> 00:34:57.659 will try to sneak in, right, as a rider. From 00:34:57.659 --> 00:35:01.940 what I've seen in cases since all of this happened, 00:35:02.739 --> 00:35:04.900 and there was an attempt to roll it back, but 00:35:04.900 --> 00:35:08.539 it got thrown out for lack of standing. Yeah, 00:35:08.539 --> 00:35:11.320 the Arizona case. But before we talk about anything 00:35:11.320 --> 00:35:14.769 close to that. I want to just recognize that 00:35:14.769 --> 00:35:18.369 almost certainly anybody who's a listener of 00:35:18.369 --> 00:35:22.170 my program or a watcher who is a hunter or who's 00:35:22.170 --> 00:35:24.670 familiar with firearms, like anybody who's been 00:35:24.670 --> 00:35:28.150 trained in firearms safety, firearms use, or 00:35:28.150 --> 00:35:30.070 anybody who's been through a hunter education 00:35:30.070 --> 00:35:33.789 class, they are very familiar with the mantra 00:35:33.789 --> 00:35:36.510 of know your target and know what's beyond your 00:35:36.510 --> 00:35:40.280 target. And there are countless, countless Examples 00:35:40.280 --> 00:35:42.320 of people who have been charged with negligent 00:35:42.320 --> 00:35:45.599 homicide or manslaughter when they shot at a 00:35:45.599 --> 00:35:47.400 brown object in the woods and it turned out to 00:35:47.400 --> 00:35:49.739 be a guy in a coat and they killed a person when 00:35:49.739 --> 00:35:52.079 they thought they were shooting at an elk. And 00:35:52.079 --> 00:35:54.099 so, you know, I know that that's what's going 00:35:54.099 --> 00:35:56.679 to be in the mind of every, everybody who listens 00:35:56.679 --> 00:36:00.400 to this, who's a, who's a hunter or. You know, 00:36:00.480 --> 00:36:02.480 used to carrying firearms or using firearms. 00:36:02.599 --> 00:36:04.619 They're going to be like, wait a minute, I I'm 00:36:04.619 --> 00:36:06.539 going to be held responsible if I accidentally 00:36:06.539 --> 00:36:09.320 shoot somebody. So why isn't. Why isn't some, 00:36:09.320 --> 00:36:11.920 you know, asshole who shoots an endangered species? 00:36:12.440 --> 00:36:14.139 Well, you have to remember that there's a lot 00:36:14.139 --> 00:36:17.900 of ways to take an endangered species is shooting 00:36:17.900 --> 00:36:22.059 a gun. So this knowledge level has to apply equally 00:36:22.059 --> 00:36:26.260 to all the different methods of take. Well, yeah, 00:36:26.260 --> 00:36:29.860 but I say let that be case by case basis, right? 00:36:31.980 --> 00:36:36.179 So if well, if if you're so here's a classic 00:36:36.179 --> 00:36:39.750 example, if you're fishing, Using a net or even 00:36:39.750 --> 00:36:43.929 a hook and you accidentally catch a sea turtle, 00:36:44.070 --> 00:36:48.750 right? You were not even You know you were not 00:36:48.750 --> 00:36:53.610 attempting to Catch anything like a turtle. Okay? 00:36:53.969 --> 00:36:56.230 But you're if you're shooting at an animal that 00:36:56.230 --> 00:37:00.929 looks like a dog And you say it's a coyote. That's 00:37:00.929 --> 00:37:02.769 different. That's different than throwing your 00:37:02.769 --> 00:37:06.369 line into an empty ocean that you can't see You 00:37:06.369 --> 00:37:10.320 know and then bait or a net is not you don't 00:37:10.320 --> 00:37:13.380 use a specific net to catch turtles versus you 00:37:13.380 --> 00:37:16.460 know shrimp or fish you don't use a specific 00:37:16.460 --> 00:37:18.739 hook to catch turtles you know what i mean it's 00:37:18.739 --> 00:37:24.019 just but in both cases yeah if you catch it if 00:37:24.019 --> 00:37:27.199 you shoot it if you trap it you're not around 00:37:27.199 --> 00:37:29.760 to see what actually gets into the trap right 00:37:29.760 --> 00:37:31.480 right you could be trapping a lot of different 00:37:31.480 --> 00:37:34.719 things and you end up with a wolf um right however 00:37:34.719 --> 00:37:38.630 you take it Once you have it and you see it, 00:37:38.650 --> 00:37:40.829 like you don't know it's a sea turtle until you 00:37:40.829 --> 00:37:44.530 see it coming out of the water, that's when you 00:37:44.530 --> 00:37:46.389 have to let it go. That's when you gotta let 00:37:46.389 --> 00:37:51.170 it go. And so for McKittrick, his other two counts 00:37:51.170 --> 00:37:55.070 were possessing it and transporting it after 00:37:55.070 --> 00:37:58.389 it was illegally killed. Right. So we're not 00:37:58.389 --> 00:38:00.630 charging him with the illegal killing. It just 00:38:00.630 --> 00:38:03.389 it was illegally killed. He might not be criminally 00:38:03.389 --> 00:38:07.230 liable for that, but it was illegal. And then 00:38:07.230 --> 00:38:09.849 he, by the time he was reduced to his possession 00:38:09.849 --> 00:38:12.449 and transport, he absolutely knew what it was. 00:38:12.869 --> 00:38:15.309 It was now up close and personal and there was 00:38:15.309 --> 00:38:17.090 all kinds of other evidence about taking it into 00:38:17.090 --> 00:38:21.590 a bar. Same thing with a sea turtle. You don't 00:38:21.590 --> 00:38:25.590 know what it is until you do and then you can't 00:38:25.590 --> 00:38:28.550 possess it and you can't transport it. Right. 00:38:28.929 --> 00:38:32.769 That's right. Yeah. And interestingly on McKittrick, 00:38:35.329 --> 00:38:37.929 His Supreme Court case, the Supreme Court refused 00:38:37.929 --> 00:38:39.690 cert on this, right? So they didn't even hear 00:38:39.690 --> 00:38:42.349 it. They denied cert. So that means they're not 00:38:42.349 --> 00:38:45.210 even going to hear it. So he didn't win. He ended 00:38:45.210 --> 00:38:47.170 up convicted of all the things he was convicted 00:38:47.170 --> 00:38:49.309 of in district court because he lost at the Court 00:38:49.309 --> 00:38:51.630 of Appeals. Supreme Court refused to rule on 00:38:51.630 --> 00:38:54.050 it one way or the other. So it's kind of weird. 00:38:54.110 --> 00:38:57.510 His case resulted in this change in how the Department 00:38:57.510 --> 00:39:01.170 of Justice applied the law. whether you say it's 00:39:01.170 --> 00:39:03.909 a policy or just a memo implementing their legal 00:39:03.909 --> 00:39:09.949 reasoning. But it didn't help him at all. He 00:39:09.949 --> 00:39:14.530 still ended up convicted of killing a wolf. And 00:39:14.530 --> 00:39:16.630 he wouldn't have any other accounts anyway, even 00:39:16.630 --> 00:39:19.150 if he'd gone up and won in that round, he still 00:39:19.150 --> 00:39:21.570 would have been convicted on the other two. Exactly. 00:39:21.829 --> 00:39:24.510 And to be real clear, you explained it, but just 00:39:24.510 --> 00:39:27.449 to say it one more time. where he got into trouble 00:39:27.449 --> 00:39:30.230 on those is once he walked up and he saw oh yeah 00:39:30.230 --> 00:39:33.869 that's a wolf and then he now he knows he's if 00:39:33.869 --> 00:39:36.030 he takes it he's going to be an illegal possession 00:39:36.030 --> 00:39:38.449 of a wolf and if he transports it it's going 00:39:38.449 --> 00:39:41.369 to trigger Lacey all kinds of ESA. He transported 00:39:41.369 --> 00:39:44.369 it in a parade where he was celebrated as having 00:39:44.369 --> 00:39:47.210 killed the wolf as i recall yeah yeah and he 00:39:47.210 --> 00:39:49.030 took the collar off tried to hide the collar 00:39:49.030 --> 00:39:53.309 yeah so um yeah he committed other crimes that's 00:39:53.309 --> 00:39:56.480 why i think that there wasn't At the end of the 00:39:56.480 --> 00:40:00.900 day, while I think this is wrong, I think the 00:40:00.900 --> 00:40:06.260 fix should be a legal fix, a statutory fix. Legislative, 00:40:06.300 --> 00:40:08.460 yeah. But as far as the impact on cases, I'm 00:40:08.460 --> 00:40:11.059 really interested in your view and what you've 00:40:11.059 --> 00:40:13.639 heard from agents, because for the most part, 00:40:14.300 --> 00:40:16.300 in the cases that were brought to us during this 00:40:16.300 --> 00:40:20.440 time period, there was only one case. I know 00:40:20.440 --> 00:40:23.659 of where we couldn't charge the ESA because they 00:40:23.659 --> 00:40:25.619 reduced it to possession and they transported 00:40:25.619 --> 00:40:30.619 it. And that was the Condor case. And there we 00:40:30.619 --> 00:40:33.420 had another alternative, an MBTA charge, a Migratory 00:40:33.420 --> 00:40:38.099 Bird Treaty Act charge that is basically strict 00:40:38.099 --> 00:40:42.460 liability, maybe, but it was chargeable. But 00:40:42.460 --> 00:40:44.860 in that case, you know, they shoot this huge 00:40:44.860 --> 00:40:47.400 bird and it gets hung up in the tree. So they 00:40:47.400 --> 00:40:49.480 couldn't reduce it to possession or transport 00:40:49.480 --> 00:40:52.559 it. They just drove off and claimed that they 00:40:52.559 --> 00:40:54.699 thought they were shooting at a turkey vulture. 00:40:55.579 --> 00:40:57.179 The case you're referring to is an interesting 00:40:57.179 --> 00:41:01.159 one. It occurred in early, I think, 2001 in California, 00:41:01.380 --> 00:41:04.000 soon after California condors were being released 00:41:04.000 --> 00:41:07.280 to the wild again after a massive and very expensive 00:41:07.280 --> 00:41:10.599 captive breeding recovery program. And somebody 00:41:10.599 --> 00:41:14.300 shot and killed a California condor. fish and 00:41:14.300 --> 00:41:16.300 wildlife service agents actually from my office, 00:41:16.300 --> 00:41:20.239 but before I was hired, tracked him down and 00:41:20.239 --> 00:41:21.900 he claimed he thought it was a turkey vulture, 00:41:22.000 --> 00:41:24.000 which they're very similar in appearance. So 00:41:24.000 --> 00:41:27.940 he was kind of getting out on the classic McKittrick, 00:41:28.000 --> 00:41:31.159 you know, get out of jail free card. But like 00:41:31.159 --> 00:41:36.320 you said, California condors and turkey vultures 00:41:36.320 --> 00:41:38.300 are both protected by the migratory bird treaty 00:41:38.300 --> 00:41:41.440 act as well. So he committed a migratory bird 00:41:41.440 --> 00:41:43.989 treaty act violation, which is strict liability. 00:41:45.050 --> 00:41:46.550 The difference, of course, and the reason it 00:41:46.550 --> 00:41:49.369 was important to fish and wildlife agents was 00:41:49.369 --> 00:41:52.510 in our view, it undermined our ability to enforce 00:41:52.510 --> 00:41:55.929 the ESA. And even though both of those violations 00:41:55.929 --> 00:41:59.130 would have been misdemeanors, the ESA violation 00:41:59.130 --> 00:42:01.130 would be a Class A, which would be a maximum 00:42:01.130 --> 00:42:05.510 of a year in jail and $100 ,000 fine versus an 00:42:05.510 --> 00:42:08.530 MBTA violation, which is Class B misdemeanor. 00:42:08.789 --> 00:42:11.829 Much less money, fine, much less potential jail 00:42:11.829 --> 00:42:19.199 time. Now, you mentioned that when it first came 00:42:19.199 --> 00:42:21.940 out, you were totally opposed to the McKittrick 00:42:21.940 --> 00:42:25.300 policy slash memo, but that you've changed your 00:42:25.300 --> 00:42:27.559 mind a little bit about that. Where are you now 00:42:27.559 --> 00:42:31.059 on it? You don't like it, you think it needs 00:42:31.059 --> 00:42:35.500 a legislative fix, but you understand the reasoning? 00:42:35.639 --> 00:42:37.119 Is that kind of where you are? I think the SG 00:42:37.119 --> 00:42:40.159 made the correct call on the law. Okay. You think 00:42:40.159 --> 00:42:42.039 the Solicitor General made the correct decision? 00:42:43.000 --> 00:42:46.679 Yes, because the Southern Queen cases have really 00:42:46.679 --> 00:42:55.920 reinforced this. I also respect why. You have 00:42:55.920 --> 00:42:58.920 to know everything that makes it illegal because 00:42:58.920 --> 00:43:02.800 they want to make sure that people understand 00:43:02.800 --> 00:43:06.059 that this is truly criminal conduct in kind of 00:43:06.059 --> 00:43:08.239 a layperson's understanding of what is criminal. 00:43:09.139 --> 00:43:11.019 Because somebody has to have a culpable state 00:43:11.019 --> 00:43:14.840 of mind. in order to be called a criminal. There 00:43:14.840 --> 00:43:17.420 are rare exceptions to that, again, where it's 00:43:17.420 --> 00:43:19.679 a particularly, and this would be an interesting 00:43:19.679 --> 00:43:23.400 parallel, particularly high risk activity with 00:43:23.400 --> 00:43:27.619 a public welfare consequence. So there are different 00:43:27.619 --> 00:43:32.340 standards for people who run fireworks factories, 00:43:33.119 --> 00:43:36.480 things that are inherently dangerous. And one 00:43:36.480 --> 00:43:38.619 can argue that shooting a gun is, the problem 00:43:38.619 --> 00:43:41.250 is that You aren't just dealing with people that 00:43:41.250 --> 00:43:43.869 shoot guns. You're dealing with people who take 00:43:43.869 --> 00:43:46.949 these animals a lot of different ways. We had 00:43:46.949 --> 00:43:52.429 a case one time where a taking was based on harassment. 00:43:53.610 --> 00:43:56.050 This was a photographer who was getting too close 00:43:56.050 --> 00:43:58.570 to the nest. Now that's a taking, but it's not 00:43:58.570 --> 00:44:01.550 an inherently dangerous enterprise the way shooting 00:44:01.550 --> 00:44:03.710 a gun is. And if you've got a one size fits all 00:44:03.710 --> 00:44:07.710 statute, you're applying knowledge to both the 00:44:07.710 --> 00:44:09.929 photographer and the hunter. You have to have 00:44:09.929 --> 00:44:14.309 the same definition fit both. Well, that's interesting, 00:44:14.469 --> 00:44:16.449 Eleanor, because that would happen sometimes 00:44:16.449 --> 00:44:18.670 in Northern California, too, where people would 00:44:18.670 --> 00:44:20.969 kayak into the middle of a bunch of sea otters. 00:44:21.289 --> 00:44:23.889 And they would change, basically change the feeding 00:44:23.889 --> 00:44:26.409 or sheltering behavior of the sea otters. And 00:44:26.409 --> 00:44:28.670 under the Endangered Species Act rules, under 00:44:28.670 --> 00:44:32.130 the Code of Federal Regulations, take includes 00:44:32.130 --> 00:44:35.030 harassment. And harassment is defined as changing 00:44:35.030 --> 00:44:37.590 behavior in feeding, breeding or sheltering. 00:44:37.590 --> 00:44:40.590 Exactly. Now, interestingly, I think the Trump 00:44:40.590 --> 00:44:42.869 administration is trying to change those definitions. 00:44:48.090 --> 00:44:50.210 Drastically trying to change harassment, but 00:44:50.210 --> 00:44:52.269 yeah, that's true. That would happen to the sea 00:44:52.269 --> 00:44:54.550 kayakers a lot. They just think they were going 00:44:54.550 --> 00:44:56.070 out in the middle of the look at sea otters, 00:44:56.070 --> 00:44:57.869 but they'd change the behavior of the sea otter 00:44:57.869 --> 00:44:59.769 and that technically is take of an endangered 00:44:59.769 --> 00:45:02.829 species. Right. And actually much easier to charge 00:45:02.829 --> 00:45:05.369 because they're going to sea otters because they're 00:45:05.369 --> 00:45:07.829 sea otters, right? That's true. So you're going 00:45:07.829 --> 00:45:11.369 to be able to prove that case. That's true. But 00:45:11.369 --> 00:45:13.070 now I don't want to forget about your question. 00:45:13.510 --> 00:45:18.219 You mentioned that this turkey vulture slash 00:45:18.219 --> 00:45:21.039 California condor was one of the only cases you 00:45:21.039 --> 00:45:23.780 knew of. And you were kind of curious what I 00:45:23.780 --> 00:45:28.699 knew. So and we are in a future episode. We are 00:45:28.699 --> 00:45:31.219 going to talk about some of the other legal attacks 00:45:31.219 --> 00:45:33.780 on the McKittrick policy slash memo that have 00:45:33.780 --> 00:45:37.760 been attempted. So we're going to get into the 00:45:37.760 --> 00:45:40.199 Arizona case in a future episode. So we're not 00:45:40.199 --> 00:45:41.960 going to talk about it too much here because 00:45:41.960 --> 00:45:46.960 it happened years and years later. But The main 00:45:46.960 --> 00:45:49.260 place that this seems to be having an impact 00:45:49.260 --> 00:45:53.159 is on the recovery of the Mexican gray wolves 00:45:53.159 --> 00:45:56.900 in New Mexico and Arizona in part because they 00:45:56.900 --> 00:45:59.000 they have such a similarity of appearance to 00:45:59.000 --> 00:46:01.320 coyotes Much much different than the northern 00:46:01.320 --> 00:46:04.019 gray wolves are smaller their coats are almost 00:46:04.019 --> 00:46:07.199 always kind of the same You know tawny brown 00:46:07.199 --> 00:46:10.480 that a coyote might have so people who intentionally 00:46:10.480 --> 00:46:13.019 set out to kill Mexican gray wolves are very 00:46:13.019 --> 00:46:16.139 savvy to the fact that It's claiming it's a coyote 00:46:16.139 --> 00:46:21.800 is a way to avoid prosecution. These are very 00:46:21.800 --> 00:46:25.699 rough anecdotal. I admit these are very anecdotal 00:46:25.699 --> 00:46:28.579 numbers that I've kind of received from talking 00:46:28.579 --> 00:46:31.900 to people who know, who have worked in the area 00:46:31.900 --> 00:46:34.820 either in the past or whenever. I don't want 00:46:34.820 --> 00:46:38.280 to give anybody away. But basically, the numbers 00:46:38.280 --> 00:46:42.199 that I have written down here are interesting. 00:46:44.650 --> 00:46:50.250 Between 2017 and 2020, there were about 61 cases 00:46:50.250 --> 00:46:55.269 that it was very clear that the wolves were killed 00:46:55.269 --> 00:46:58.550 intentionally, suspicious deaths, mortality, 00:46:59.969 --> 00:47:05.429 suspect identified, no prosecution, declined 00:47:05.429 --> 00:47:09.429 basically. Of those 61, two were prosecuted in 00:47:09.429 --> 00:47:14.239 five years. That's not good. They've tried to 00:47:14.239 --> 00:47:16.820 take some of these cases to civil penalty through 00:47:16.820 --> 00:47:20.619 the U .S. Solicitor's Office. There were two 00:47:20.619 --> 00:47:24.639 prosecuted criminally and three went civil. Civil 00:47:24.639 --> 00:47:26.820 is fine, you get a fine, but you don't have a 00:47:26.820 --> 00:47:29.780 criminal record and there's no risk of jail time. 00:47:31.980 --> 00:47:35.119 Another anecdotal story I got was in over five 00:47:35.119 --> 00:47:38.760 years, there was one or two successful prosecutions 00:47:38.760 --> 00:47:44.789 of Mexican gray wolf killing. The human take, 00:47:45.170 --> 00:47:48.670 human killing, outright killing of Mexican gray 00:47:48.670 --> 00:47:50.110 wolves, I'm not talking about running over them 00:47:50.110 --> 00:47:52.250 with your car because they run out in front of 00:47:52.250 --> 00:47:55.469 you. Intentionally killing gray wolves in Arizona 00:47:55.469 --> 00:47:58.550 and Mexico is the number one cause of death among 00:47:58.550 --> 00:48:06.369 those animals. I can't point to specifics, but 00:48:06.369 --> 00:48:08.489 I will say there are some NGOs out there trying 00:48:08.489 --> 00:48:11.699 to work. through Freedom of Information Act requests 00:48:11.699 --> 00:48:15.559 to actually get the data on how many declinations 00:48:15.559 --> 00:48:17.500 there have been from the U .S. Attorney's offices 00:48:17.500 --> 00:48:20.179 in Arizona and New Mexico based on McKittrick. 00:48:20.539 --> 00:48:22.739 So I think that data is being collected, but 00:48:22.739 --> 00:48:25.860 all I have is very anecdotal stuff. I'd be interested 00:48:25.860 --> 00:48:29.119 to know how many of those cases were then taken 00:48:29.119 --> 00:48:31.599 to the environmental crime section. Were they 00:48:31.599 --> 00:48:34.840 also turned down by them or was this a this is 00:48:34.840 --> 00:48:37.840 a really complicated, difficult proof case, it's 00:48:37.840 --> 00:48:41.599 a local, very busy office. There's that. There's 00:48:41.599 --> 00:48:45.820 also, you know, if it is somebody, people who 00:48:45.820 --> 00:48:48.440 know the lookalike, they know that loophole. 00:48:49.659 --> 00:48:52.219 If you've got circumstantial evidence that that's 00:48:52.219 --> 00:48:54.380 kind of what was going on, there's a deliberate 00:48:54.380 --> 00:48:56.400 ignorance instruction under knowledge, right, 00:48:56.579 --> 00:49:00.099 that could be used. And the last thing I would 00:49:00.099 --> 00:49:02.219 put in there, well, there's also the recourse 00:49:02.219 --> 00:49:05.380 potentially to where there's the similarity of 00:49:05.380 --> 00:49:08.360 appearance, you can do a lookalike listing, right? 00:49:08.699 --> 00:49:12.480 True. You can list another species that looks 00:49:12.480 --> 00:49:15.340 like they did originally for bald and golden 00:49:15.340 --> 00:49:17.539 eagles. Golden eagles were listed to protect 00:49:17.539 --> 00:49:20.559 bald eagles. Right. Now they're more endangered 00:49:20.559 --> 00:49:24.599 than the bald eagles are, but go figure. So there's 00:49:24.599 --> 00:49:28.219 that option. And then the last, to me, the last 00:49:28.219 --> 00:49:30.760 piece of that puzzle, and I really don't know 00:49:30.760 --> 00:49:33.550 enough about this except to sort of if it were 00:49:33.550 --> 00:49:36.329 me, I'd issue spot it and I'd be looking at it, 00:49:36.610 --> 00:49:40.409 is questions with DNA identification of what 00:49:40.409 --> 00:49:43.630 was actually killed. I think wolves are particularly 00:49:43.630 --> 00:49:48.550 difficult. Yeah, that's very thorough. Yeah, 00:49:48.690 --> 00:49:52.309 the DNA identification is very thorough on the 00:49:52.309 --> 00:49:56.059 Mexican gray wolves. Yeah. Okay. Yeah, they there 00:49:56.059 --> 00:49:58.579 I was actually quite surprised at how detailed 00:49:58.579 --> 00:50:01.840 they are They know the DNA sequence of every 00:50:01.840 --> 00:50:03.639 single Mexican gray wolf that's currently in 00:50:03.639 --> 00:50:06.579 the wild every single one Wow, like to an individual. 00:50:06.699 --> 00:50:09.719 Yeah, and there's yeah, it's pretty impressive 00:50:09.719 --> 00:50:14.739 actually So I think you're right about it be 00:50:14.739 --> 00:50:17.559 that is interesting to it would be good to look 00:50:17.559 --> 00:50:20.340 at where these declinations come from local US 00:50:20.340 --> 00:50:24.289 attorneys or ENRD because It goes directly to 00:50:24.289 --> 00:50:27.469 something an investigator told me, and that is 00:50:27.469 --> 00:50:29.610 that one of the first questions that was always 00:50:29.610 --> 00:50:33.030 asked whenever a case was taken to the local 00:50:33.030 --> 00:50:35.849 AUSA's office was, is there a McKittrick issue 00:50:35.849 --> 00:50:39.969 in this one? And so they're already thinking. 00:50:40.889 --> 00:50:43.710 The investigators are already feeling like, damn, 00:50:43.969 --> 00:50:46.389 if it is, it's going to die. It's not going to 00:50:46.389 --> 00:50:49.309 go anywhere. You just have to find the other 00:50:49.309 --> 00:50:50.789 charges. You've got to find the workarounds. 00:50:51.460 --> 00:50:54.760 Yeah, that was my next question. Well, that was 00:50:54.760 --> 00:50:57.059 my next question to you. As a very seasoned, 00:50:57.300 --> 00:51:00.599 experienced prosecutor, given the McKittrick 00:51:00.599 --> 00:51:03.579 memo slash policy, it's in place, it's not going 00:51:03.579 --> 00:51:06.940 anywhere, as far as we can tell for now. What 00:51:06.940 --> 00:51:09.500 recommendation would you make to investigators 00:51:09.500 --> 00:51:13.599 out there about how to build the best possible 00:51:13.599 --> 00:51:18.840 case to bring to ENRD or local AUSA that deals 00:51:18.840 --> 00:51:24.059 with McKittrick? What are you looking for? I 00:51:24.059 --> 00:51:25.800 certainly would be looking at the post -taking 00:51:25.800 --> 00:51:30.980 conduct for sure. Did they reduce it to possession? 00:51:31.079 --> 00:51:32.719 Did they take it somewhere? Did they mount it? 00:51:32.739 --> 00:51:34.780 Did they sell it? Did they take it to a taxidermist? 00:51:35.320 --> 00:51:40.420 Is there anywhere else along the chain? Or if 00:51:40.420 --> 00:51:44.280 you're there and you see the taking, don't go 00:51:44.280 --> 00:51:50.119 in and watch what he does next. Watch what happens 00:51:50.119 --> 00:51:53.380 to it. Or leave the carcass there and put a tracker 00:51:53.380 --> 00:51:55.239 on it and see if somebody goes back to collect 00:51:55.239 --> 00:51:59.679 it later. And are you thinking about that in 00:51:59.679 --> 00:52:01.860 line of proving that they knew the identity when 00:52:01.860 --> 00:52:04.039 it was killed or just that they then learned 00:52:04.039 --> 00:52:06.219 the identity and then continued to do illegal 00:52:06.219 --> 00:52:08.760 things with it? The latter. The latter, okay. 00:52:08.780 --> 00:52:10.480 Because it's good a charge. It's a strong... 00:52:10.480 --> 00:52:12.699 Yeah. It's a necessary misdemeanor charge, Class 00:52:12.699 --> 00:52:17.119 A, just like the taking would be. I like that. 00:52:17.119 --> 00:52:19.789 That's very good advice, Eleanor. So, yeah, I'd 00:52:19.789 --> 00:52:22.889 look at those and then I would look at, you know, 00:52:23.170 --> 00:52:26.570 the usual gumshoe stuff that you guys do with 00:52:26.570 --> 00:52:28.789 records and communications and stuff to see if 00:52:28.789 --> 00:52:31.130 maybe there's a conspiracy there somewhere. Maybe 00:52:31.130 --> 00:52:33.250 there's a fraud charge. Maybe there's a false 00:52:33.250 --> 00:52:36.530 labeling charge under LACI. You know, there may 00:52:36.530 --> 00:52:40.630 be other things with different elements that 00:52:40.630 --> 00:52:43.710 would apply to some piece of the overall conduct. 00:52:45.110 --> 00:52:47.230 Yeah, and you know, there are definitely other 00:52:47.230 --> 00:52:51.530 wolf cases where agents have shown that People 00:52:51.530 --> 00:52:54.570 set out to go kill wolves like there's they develop 00:52:54.570 --> 00:52:56.650 evidence during that what you described is the 00:52:56.650 --> 00:52:59.389 gum shoe investigation, right? where they get 00:52:59.389 --> 00:53:01.389 out and they actually find evidence that this 00:53:01.389 --> 00:53:03.690 person was intentionally going out to kill wolves 00:53:03.690 --> 00:53:06.190 and You know that goes a long way to proven they 00:53:06.190 --> 00:53:07.969 knew the identity of the animal they killed, 00:53:08.010 --> 00:53:11.369 right? Yeah, you know look at what magazines 00:53:11.369 --> 00:53:14.719 they're subscribing to You know, what hunter 00:53:14.719 --> 00:53:18.699 training courses they took. Yeah, yeah. Maybe 00:53:18.699 --> 00:53:20.599 you need a little junior special agent badge, 00:53:20.760 --> 00:53:23.079 Eleanor. There you go. You guys have trained 00:53:23.079 --> 00:53:26.199 me well over the years. This is one of the most 00:53:26.199 --> 00:53:28.260 fun cases where I got to work closely with you 00:53:28.260 --> 00:53:30.579 guys right up through the investigation. Oh, 00:53:30.579 --> 00:53:33.260 I'm telling you. Yeah. And you know what? It's 00:53:33.260 --> 00:53:35.920 mutual. I learned so much from you, particularly 00:53:35.920 --> 00:53:37.800 working on that Isaac Zimmerman case, trying 00:53:37.800 --> 00:53:41.800 to get him back. Yeah, it's always mutual. We 00:53:41.800 --> 00:53:44.039 can bring you the realities of what it's like 00:53:44.039 --> 00:53:46.159 to be out there on the ground and you can remind 00:53:46.159 --> 00:53:47.980 us of what the realities are like in front of 00:53:47.980 --> 00:53:50.579 a jury, which is pretty important. One particular 00:53:50.579 --> 00:53:52.539 argument, not with the Fish and Wildlife Service 00:53:52.539 --> 00:53:55.219 agent. It was a different agency and he's in 00:53:55.219 --> 00:53:56.599 the middle of a search warrant. It was NOAA, 00:53:56.760 --> 00:53:58.940 wasn't it? It was NOAA. I'm sure it was. It was 00:53:58.940 --> 00:54:03.039 not. If this agent was like executing a search 00:54:03.039 --> 00:54:04.719 warrant and there was stuff outside the scope 00:54:04.719 --> 00:54:07.500 of the warrant, it was really, really important. 00:54:07.789 --> 00:54:10.489 And he's yelling at me, I'm dealing with the 00:54:10.489 --> 00:54:13.110 real world here. And I'm yelling back at him. 00:54:13.349 --> 00:54:15.809 Your real world is inside that courtroom. Do 00:54:15.809 --> 00:54:19.289 not dare take that stuff. It's not covered. You 00:54:19.289 --> 00:54:21.670 know, take. So he took. I told him to take pictures 00:54:21.670 --> 00:54:25.030 of it, which he did. And when they got the warrant 00:54:25.030 --> 00:54:27.030 and he went back for it and they had called a 00:54:27.030 --> 00:54:29.389 bunch of stuff out that he'd taken pictures of, 00:54:29.409 --> 00:54:33.289 we added a charge for obstruction. Nice. Yeah. 00:54:33.329 --> 00:54:37.860 Oh, that was smart. Again, the real world. varies 00:54:37.860 --> 00:54:40.420 from your perspective, and there's more than 00:54:40.420 --> 00:54:44.619 one way to get at the end. No, for sure. And 00:54:44.619 --> 00:54:46.699 I always tried to tell agents, when you're out 00:54:46.699 --> 00:54:49.019 in the field investigating, you have to be thinking 00:54:49.019 --> 00:54:51.460 already about how is this going to present to 00:54:51.460 --> 00:54:53.300 a jury? Right. All the way through sentencing. 00:54:53.840 --> 00:54:55.659 Yeah, all the way through sentencing. And sometimes 00:54:55.659 --> 00:54:57.599 you even have to be thinking ahead to appeal, 00:54:57.900 --> 00:55:00.260 right? Yeah. Oh, yeah. Oh, there were so many 00:55:00.260 --> 00:55:02.300 times during my investigations when I thought 00:55:02.300 --> 00:55:05.380 about, ooh, this is going to be really valuable 00:55:05.380 --> 00:55:08.250 for sentencing. it might not this might not even 00:55:08.250 --> 00:55:11.030 be something we can admit at trial but this is 00:55:11.030 --> 00:55:13.809 going to be part of the sentencing for sure yeah 00:55:13.809 --> 00:55:17.130 and yeah you really have to be to make a really 00:55:17.130 --> 00:55:19.630 clean good case you have to be from the moment 00:55:19.630 --> 00:55:23.469 you arrive in the field you have to be thinking 00:55:23.469 --> 00:55:25.510 ahead to what's going to happen at a jury what's 00:55:25.510 --> 00:55:28.250 going to happen on appeal and and what can i 00:55:28.250 --> 00:55:29.869 use in sentencing that i might not be able to 00:55:29.869 --> 00:55:33.349 use at trial yeah i would always look at it as 00:55:33.349 --> 00:55:37.789 until the case is completely investigated like 00:55:37.789 --> 00:55:40.650 before charging, but the agents are the lead 00:55:40.650 --> 00:55:44.329 and I'm the advisor. Exactly. And then once I've 00:55:44.329 --> 00:55:47.110 got that indictment or when I'm making those 00:55:47.110 --> 00:55:50.090 decisions for what I'm indicting, I'm the lead 00:55:50.090 --> 00:55:52.150 and they're the advisor all the way through the 00:55:52.150 --> 00:55:54.170 sentencing, but it's a team all the way through. 00:55:54.409 --> 00:55:57.880 100%. Yeah, 100%. And I think an agent who doesn't 00:55:57.880 --> 00:56:00.019 understand that, that it's their case until they 00:56:00.019 --> 00:56:01.519 turn it over to the U .S. Attorney's Office. 00:56:01.559 --> 00:56:03.920 And then it's the U .S. Attorney's case. If they 00:56:03.920 --> 00:56:06.079 don't understand that, they're going to set themselves 00:56:06.079 --> 00:56:08.860 up for a lot of unnecessary conflict and failure. 00:56:08.860 --> 00:56:12.519 But their job is not done. No, no. It's always 00:56:12.519 --> 00:56:15.320 our case. It's just a question of who's on first. 00:56:16.259 --> 00:56:19.000 Yes, it's more of, you know, so I look at it 00:56:19.000 --> 00:56:21.360 this way. When I'm investigating, I'm counting 00:56:21.360 --> 00:56:23.440 on support from the U .S. Attorney's Office to 00:56:23.440 --> 00:56:25.699 help me issue subpoenas, do grand juries, whatever 00:56:25.699 --> 00:56:28.119 I need to do. But once I bring it to you and 00:56:28.119 --> 00:56:30.239 you charge it, now I'm there to support you. 00:56:30.239 --> 00:56:32.360 Exactly. If you need me to go do another witness 00:56:32.360 --> 00:56:33.980 interview, I'll go do it because that's what 00:56:33.980 --> 00:56:37.059 you need. Right. Yeah, it's just a mindset of 00:56:37.059 --> 00:56:39.280 our case, but I'm the lead. Like you said, I 00:56:39.280 --> 00:56:40.800 think that's a better way to put it. I'm the 00:56:40.800 --> 00:56:42.559 lead here, you're the lead there. Yeah, it's 00:56:42.559 --> 00:56:44.619 a team. The team lead just changes every time. 00:56:44.809 --> 00:56:47.289 Yeah, that's a good way to put it. And then I 00:56:47.289 --> 00:56:49.989 think your other point is good in always reminding 00:56:49.989 --> 00:56:53.889 investigators that good old fashioned detective 00:56:53.889 --> 00:56:56.969 work always pays off, right? Get out there, do 00:56:56.969 --> 00:56:58.949 the surveillance, go do interviews. Don't be 00:56:58.949 --> 00:57:02.150 afraid to go flash the badge, roll the gold and 00:57:02.150 --> 00:57:06.349 interview people. Yeah, go interview everybody's 00:57:06.349 --> 00:57:08.570 neighbors, friends, ex -girlfriends, ex -boyfriends. 00:57:09.710 --> 00:57:12.210 Not everything has to be covert. Get out there 00:57:12.210 --> 00:57:14.110 and do old -fashioned detective work. Read the 00:57:14.110 --> 00:57:17.969 documents. Read the documents. Connect the dots. 00:57:19.349 --> 00:57:22.130 We used to call the agents that were particularly 00:57:22.130 --> 00:57:26.369 good at that diggers. You can put together a 00:57:26.369 --> 00:57:29.610 whole case on nothing but records. Yeah, that's 00:57:29.610 --> 00:57:32.269 true. That's true and there are definitely some 00:57:32.269 --> 00:57:35.230 agents who are very good at the Records crawl 00:57:35.230 --> 00:57:37.690 and other agents who are very good at interviewing 00:57:37.690 --> 00:57:40.130 or sitting on a house and watching behavior. 00:57:40.210 --> 00:57:44.010 Yeah, yeah Eleanor Colborne, thank you so much 00:57:44.010 --> 00:57:46.050 for being on the podcast. I really appreciate 00:57:46.050 --> 00:57:48.250 it Can't tell you how much it means to me. It's 00:57:48.250 --> 00:57:51.070 great to see you great discussion and I think 00:57:51.070 --> 00:57:53.289 this is going to be a very important episode 00:57:53.289 --> 00:57:55.389 for our season about wolves Thank you so much 00:57:55.389 --> 00:57:58.440 for being on the show. Thank you Alright everybody, 00:57:58.679 --> 00:58:00.820 thanks so much for tuning in. We'll see you next 00:58:00.820 --> 00:58:04.079 time. Nature's Secret Service is written and 00:58:04.079 --> 00:58:06.760 produced by me, Ed Newcomer, and is co -produced 00:58:06.760 --> 00:58:10.280 by the DHTV team here at California State University, 00:58:10.480 --> 00:58:12.840 Dominguez Hills. Follow us on social media and 00:58:12.840 --> 00:58:15.139 connect with us online at naturessecretservice 00:58:15.139 --> 00:58:15.699 .com.