If you want to learn more about the topics of
today's episode, visit the podcast website at
naturessecretservice .com. Thanks for listening.
Okay, people, listen up. Here we go. This is
Nature's Secret Service, the podcast that puts
you in the room with the men and women of wildlife
law enforcement. I'm Ed Newcomer, your host,
and this is episode three of season three. where
we're doing our deep dives on wolf reintroduction
and the cases related to wolves. Last week, we
heard from special agent Tim Eicher, who told
us the fascinating case about the first wolf
that was poached outside Yellowstone National
Park after wolf reintroduction, with the poacher
being a guy named Chad McKittrick. And today,
I'm really happy to welcome one of my long time...
collaborators and colleagues and friends from
while I was a special agent. We are super lucky
to have Eleanor Colborne with us. She is a former
prosecutor for the U .S. Department of Justice.
She was assigned for many years to the Environment
and Natural Resources Division, ENRD, which handles
a lot of fish and wildlife cases nationally.
She is retired now, but she currently is an assistant
attorney general for the state of Vermont. So
now she's doing what I used to do. We even have
more in common than we used to. Just as a little
bit of background before I let Eleanor introduce
herself and say hello, she was a huge help to
me on a really annoying case I did that involved
about 10 years of my work trying to chase this
massive fish trafficker down. He ended up becoming
a fugitive and honestly, I could not have caught
him without Eleanor's help in pushing DOJ to
move forward on the getting the warrants done
and working on the extradition. I still owe her
a Coke. I'm pretty sure I owe her a Coke. Anyway,
Eleanor, welcome to the podcast. Thank you so
much for being on. I really appreciate it. Thanks
for having me. Yeah, it's good to see you again.
We're going to have a good discussion today.
I think you said your dogs might come in the
room. That's fine. We love dogs on this podcast.
I think they're out on the ground. Out in the
woods. Okay, very good. The cat, however, is
behind me. No, no, he left. He wasn't there.
Okay, well, we love cats here too, so the cats
are welcome. Hey, to refresh my memory, how long
were you with the U .S. Department of Justice?
About 34 years. 34 years. That is a huge milestone
for public service. You know, that's a lot. That's
your professional life, really. A long time.
That's a long time. Were you with ENRD the whole
time? I was. I started in the wildlife section
on the civil side doing defensive work mostly.
Okay. And then I did a detail in the appellate
section for a while, which was fascinating. But
I was not prepared to like spend the rest of
my career mostly in the stacks of a library.
No. Yeah, I like to interact with people and
I like to argue in court. And I got to do some
appellate arguments, but I was given a choice
then of some different options. And I elected
to ruin my career by accepting the position on
the criminal side, then of the wildlife section.
And then they moved three prosecutors and a supervisor
from the wildlife section to the environmental
crime section so that all the criminal prosecutors
would be. together. But yeah, a friend and I
were both sort of contemplating our next steps
and we were both offered the opportunity to do
the criminal work. And we had a discussion and
we both assessed it the same way that moving
to the criminal side was kind of a career planning
ender because there isn't really, it doesn't
translate. You can't really take that anywhere.
It doesn't really build you up very well for
the private sector except doing defense work,
which you weren't really interested in. So he,
for those reasons, he elected to stay on the
civil side. And I decided I was tired of checking
boxes and keeping my options open. It just sounded
like so much fun. So I jumped and did not regret
it. So it didn't ruin your career. You're just
being sarcastic. It was my entire career. Yeah,
I'd say just so my listeners who aren't lawyers
know, when we talk about appellate work, we're
talking about lawyers who primarily handle appeals
to either state or federal courts of appeal,
maybe the Supreme Court in the state or the US
Supreme Court. And it is brutal because it's
really all about a lot of legal research, a lot
of legal writing and then maybe you get to do
some oral arguments in front of a court. But
that is not fun either, because it's not like
you're doing a trial where you're presenting
evidence and things can, you know, things are
kind of on the move. It's you speaking in front
of a bunch of very well -educated judges who
think they're very smart, too, and they grill
you. It's not fun. I never, I hated appellate
work. It can be fun. Sort of like a Rubik's Cube,
like you turn the arguments over and I remember
one appeal that a friend of both of ours, John
Webb, had handled the trial and gotten a conviction.
And I started working on the appeal that she
took from this conviction. And I went and was
like, OK, so the evidence, John. And it was difficult.
But I realized that the issue that she was talking
about kind of wasn't wasn't the right one. And
then if we looked at it a different way, we absolutely
would win hands down, which we did. But it was
it was one of those sort of aha moments where
the theory had gone on down below. As an appellate
attorney, you have more time to really figure
it out, to really play with the arguments and
twist that Rubik's Cube until everything clicks
into place. And you turn it around and you see
that there is no angle a judge can come at you,
no question they can ask that you can't answer,
that your argument isn't rock solid. It's the
only possible outcome. And that's kind of a nice
feeling when you get there. But there's so much
grunt work that goes into that endpoint. Yeah.
And okay, so this is actually the key point as
to how we know that you are a much smarter lawyer
than I was, Eleanor, because I can't do Rubik's
Cubes. Neither can I. It's just a great example.
It's what I imagine and feel like. Yeah. I'm
telling you, man. It's not work I enjoyed. I
didn't super enjoy being a prosecutor either,
but I liked action and doing things and having
to wing it sometimes. And appellate court is
not like that. So I don't think you ruined your
career at all by coming over to the criminal
side, criminal prosecution side. So you enjoyed
being an agent part the most. 100%. Once I made
the transition from being a prosecutor to an
agent where I'm the one who has to solve the
crime and bring you something good, that's where
I thrived. But like you, I moved to something
I loved and I stopped worrying about my career.
I stopped worrying about that. I just started
worrying about what's going to be fun and what
am I going to enjoy and what am I good at? Do
something you enjoy and that you're good at.
Yeah, yeah where you feel like you did anyway,
right or you tried tried your best. I always
tell people, you know You know, even if you think
we're losing the fight to protect our planet
I'd rather fight a worthy cause even if it's
a lost cause right? So don't don't worry about
just be positive we can win But if we can't win
they still fought the good fight, right? Yeah,
and you'd get those those moments like a lot
of times it felt like playing whack -a -mole
Yes, I know exactly I've described it that exact
way But every once in a while, changes in the
law came about because of a particular case,
changes in the way things, something was regulated.
And you could see kind of a whole industry shift.
It was rare, like maybe two or three times in
my whole career. And the rest of it was largely
whack -a -mole. But those little things you cling
to and you're like, it's possible to make a little
difference. It's not a huge difference. You haven't
changed the world, but you've changed one small
piece of it. It is and with you know when it
comes to wildlife and even you know One of the
we haven't talked about this yet, but one of
the things ENRD does is not just prosecute wildlife
traffickers, but you deal with polluters and
you know people that Degrade our waterways and
oil oil spills all that kind of stuff But you
know the whack -a -mole thing Eleanor think of
it this way. This is how I thought of it when
I was an agent. Yeah A lot of times it is whack
-a -mole. Let's just say you go after parrot
traffickers and you take out some of the major
players and parrot traffic goes away for a while,
but it comes back. Eventually somebody else will
get into that niche. But the key is what you
and I do in that interim, once we've whacked
those key moles down and they're hidden, We give
the animals, we give parrots that breathing space
to breed in the wild and kind of recover their
numbers. They're not under the pressure. And
that's our job is, you know, we're not we're
never going to eliminate poaching and trafficking
and polluters and all of that. We just need to
whack those, you know, violators down long enough
and hard enough that we give wildlife a chance
to recover and and, you know, thrive. And that's
if we're doing that, we're doing our job. Think
of it that way, right? I like that. I like that.
Yeah, exactly. So briefly, last season we had
three Assistant U .S. Attorneys on on the same
episode. You know them all. We had Mark Williams,
Dennis Mitchell, and Matt O 'Brien from the L
.A. office. They described it a little bit. I
think sometimes people might get confused about,
they hear about DOJ prosecutors in Washington
D .C. and then they hear about Assistant United
States Attorneys. Can you describe like what's
the difference and how do you guys work together?
It's basically sort of jurisdiction so that Assistant
U .S. Attorneys are based geographically. There's
I think 93, 92, 93 U .S. Attorney's offices nationwide
and they have jurisdiction basically over every
crime that happens. in their geographic region.
They are generalists, kind of geographic specialists,
legal generalists for their work. They will split
into criminal, civil, people who specialize in
forfeiture, that kind of thing. But they handle
it all within that geographic space. For DOJ,
we are subject matter specialists. So I could
go anywhere in the country to prosecute a wildlife
crime. I wasn't restricted geographically the
way an assistant U .S. attorney is, but I had
to be prosecuting, well, for the environmental
crime section, something that came within our
portfolio, some type of environmental crime.
For me, I did only fish, wildlife, and plants
my entire career. But I could do it anywhere.
And the perfect relationship between the two
offices is a partnership. And most of the U .S.
attorneys would welcome us. and partner with
us. In some cases, they just didn't. They were
so stretched thin with other priorities. And
this was all we did. So when an agent couldn't
get the attention of a US attorney because they
were so busy with other things and they just
didn't have the staff, they could come to us.
Or if it was a particularly difficult case that
a US attorney might think, I don't know those
statutes. That sounds really tricky to me. Either
they wanted a partner or they wanted somebody
else to just take it off their hands and run
with it who actually knew the statutes and could
therefore do it much more efficiently. That would
be where we came in. Also, if it was multi -jurisdictional.
So if the crime happened in more than one district,
those cases would typically come to us. A lot
of the long -term undercover investigations,
because often when those started, you didn't
know where the venue was going to be. or how
many different venues you would have. So we tended
to get either sort of the orphaned homeless cases
or the really complicated cases. Right. Those
were our bread and butter. Yeah, I think so,
you know, it's an interesting relationship because
it's DOJ prosecutors work closely often with,
you know, the local or the, you know, the the
district US attorneys. And then like you said,
and like Mark said, when he was on the show,
you know, LA is lucky it has an environmental
crimes unit, but a lot of US attorney's offices
do not have a dedicated unit. So they don't necessarily
have the expertise or they don't have the time.
So ENRD can come in and work on those cases.
I'm not sure there's more than two districts
now that have one. I was trying to think of that.
LA, Miami still? I don't know. I'm actually not
sure. The person who headed that group has retired.
I'm not sure that LA's, have they kept theirs?
Yeah, they did keep theirs. They always end up
like changing the name a little bit. So they
do other things. Like I think right now it's
environmental crimes and consumer protection
or something odd like that. But yeah, they still
have dedicated people to do that work, which
is great. Um, did you ever, when you were working
for ENRD, did you ever work on a Wolf case? Well,
here's the thing. We've talked about that. I
think so. I think so. I think so. Here's the
answer. Um, yeah, I have a distinct recollection
of being out West. I don't, not at the, not at
the initial court level for the McKittrick case,
but maybe on appeal. Okay. I know I touched it,
but honest to God, I can't remember. It's been
so long now. I can't remember. Yeah, that's okay
in the episode before years We talked to special
agent Tim Iker and he told us about his investigation
of Chad McKittrick that first wolf that was poached
but what we really didn't get into with Tim was
detail about what happened after Chad McKittrick
was convicted and he appealed his conviction
on a number of Causes or number of reasons he
appealed But one of those was he claimed that
the jury instruction that was given in the case
Which basically told the jury and between you
and me we're gonna give a little bit of a legal
background on the on the appeal Whatever between
the two of us we can remember but basically he
appealed claiming among other things But one
of the things was that the jury instruction?
Given by the judge to the jury which said that
the jury did not need to conclude that he knew
he was shooting a wolf when he shot an animal.
That's basically just that he intentionally took
a shot at an animal and the animal turned out
to be a wolf. That's all the jury would need
to conclude. Interestingly, in the trial, there
was evidence presented that he did know it was
a wolf. He talked to the guy next to him and
said, hey, there's a wolf and he shot it. There
was a lot of evidence that he did know he was
shooting a wolf when he pulled the trigger. That
issue made its way up through appeals, went to
the, I believe, Ninth Circuit Court of Appeals.
He lost. The Ninth Circuit said that, no, that's
a correct jury instruction. You don't have to
prove that. And then he appealed to the US Supreme
Court, and that's where things got a little weird.
Do you want to take it from there, what happened
at the Supreme Court level? Well, so he was convicted
on three different misdemeanor counts. Right.
Only one of those three raised the issue that
we're talking about, which is what kind of knowledge
did he need to have about what it was that he
was shooting? The Ninth Circuit followed other
circuits and said, yeah, it was just good enough
that you shot something and it turned out to
be a wolf. When it got to the Supreme Court,
the social general's office full of very, very
smart people. They looked at that jury instruction
and they looked at relatively recent Supreme
Court cases at that time and thought, we're not
going to win on that one because the way where
the Supreme Court was headed was really following
a theory that a defendant in a criminal case,
all of the presumptions of what the elements
need to be, have to come out to a culpable state
of mind. So the Supreme Court was moving in the
direction of the defendant has to know every
fact that makes it criminal conduct. And so they
were trying to avoid situations where Conduct
that would otherwise be regarded by society as
innocent, unless this one little factoid was
tweaked, you needed to know as a defendant to
be a criminal, you needed to know that fact that
tweaks it into the criminal realm and out of
innocent conduct realm. So the Solicitor General's
office looked at that, looked at that jury instruction
and dropped a footnote in their brief. opposing
the Supreme Court taking cert saying, you don't
need to look at all this because we're not going
to ever do that jury instruction again, court.
We don't think it matches this court's jurisprudence
at this point. And so we're not no longer going
to be arguing that it is good enough to know
that you shot an animal and the animal turned
out to be a wolf. Now it doesn't go all the way
to specific intent. So what they what they're
saying is When you pull the trigger, you need
to know it's a wolf because that's a fact That
makes it criminal conduct if it was in fact a
feral dog that would be considered maybe innocent
conduct Or otherwise legal conduct they're not
requiring that the person pull the trigger knowing
that it was a wolf and knowing that it was listed
as an endangered species. They don't have to
know the state of the law regarding that animal.
They just have to know the biology. They just
have to know the identity. Yeah, that's a very
good distinction. And according to the Solicitor
General, then this is what's interesting. This
is where we're going to back up just a little
bit to talk about this because According to the
Solicitor General, their interpretation of where
kind of the Supreme Court was headed and what
the law is in their mind is that a person who
shoots at an animal in order to be guilty of
taking an endangered or threatened species would
have to know or believe they were shooting at
a threatened or endangered species. Yes, they
have to, they have to, well, they have to know
the identity of the animal. That's it. They have
to know what the species is. They don't have
to know these are threatened species. Exactly.
Okay. Right. Right. And that, yeah, that is the
key distinction, right? Okay. So you have to
know you're shooting at a wolf or you think you
believe you're shooting at a wolf, but it doesn't
matter whether or not you know that wolves are
endangered or threatened. Yes. Okay. Right. And,
um, before I get into a full disclosure, Me and
a whole lot of other special agents and a lot
of prosecutors don't agree with that. But before
we get into that, let's explain what the Solicitor
General's office is, because we just talked about
DOJ and ENRD and US Attorney's office. Who the
heck is the Solicitor General and why are they
involved in this? They are sort of the highest
attorney within the department. They do the litigating
in front of the Supreme Court. So the appellate
division would handle the appellate cases. The
Solicitor General handles the Supreme Court cases.
Right. And like you mentioned, these are very
smart people who argue in front of the Supreme
Court a lot. These are like the cream of the
crop of the appellate attorneys, right? Right.
Very smart people who spend their lives in front
of the Supreme Court and they know the justices
inside and out. and they know how they're likely
to roll. They have a long history of maintaining
their credibility in front of that court, which
I think really helped them have a very strong
record of wins. They knew where the court was
headed. They knew what the court was thinking.
They knew what arguments would appeal to which
judge. And if they thought a case wasn't going
to get anywhere, they weren't going to pursue
it because they didn't want their credibility
to be damaged with the court, which is understandable.
They don't want to waste the court's time. Right.
Yeah. Yeah. OK. So I think this is where kind
of it creates a problem from people who are opposed
to what happened next. That creates a problem
for us because basically what the U .S. Solicitor
decided to do in this case was, granted, using
their knowledge of where the Supreme Court was
going, what kind of rulings had been coming out
of the Supreme Court up to that time, what the
personalities of the justices were, they believed
that they wouldn't win on this. Anyway, so they
just decided we're not we're not going to use
that jury instruction anymore. So don't even
address the question. That I get it, but it creates
an issue because what happened next was the U
.S. Department of Justice issued a memo to prosecutors
basically telling them not to use that jury instruction
that was used in McKittrick. Right. And that's
what's. Yeah, exactly. And that's what we call
the McKittrick memo. Sometimes agents have mistakenly
referred to it as the McKittrick decision. But
I think it's McKittrick policy, McKittrick memo.
But where it comes down to for me, these are
the problems for me. And I wrote, you know, co
-wrote a law review article about this issue
if anybody wants to read it. It's a little dated
now, 2011, but I think nothing's really changed
since then much. But my problem is that if Any
lawyer in this country or any citizen who did
a little bit of legal research? And they looked
at the highest ruling in the country. It's going
to be the courts of appeal because the Supreme
Court never looked at the issue. And those all
of those courts agree that this this jury instruction
was correct under the Endangered Species Act
pursuant to congressional intent. This is what
Congress intended. And so anybody who does diligent
legal research will conclude that the law is
very different than how it's being applied. And
the way it's being applied is is the result of
a decision. Somebody who is not elected, who
just made this decision based on their legal
experience and locked it down with a memo. It
is never going to come up for appeal again. The
only way this could be. changed, presumably would
be Congress has to change the Endangered Species
Act to be much more specific on take, or a political
decision has to be made to rescind the memo.
There's no opportunity for appeal. Nobody, this
is never going to come up on appeal again. And
any lawyer doing research on it is going to conclude
that the law is very different than how it's
being applied. That's what bugs me about it.
But, but it's, the position being applied is
a criminal statute. That is the job of DOJ to
make sure all the criminal prosecutors who would
use the statute are aware of the Supreme Court
case law, of the footnote in the McCutcher brief,
of the U .S. position on a matter of law. Like,
this is not a policy. I think that's an important
distinction that I don't disagree that there
are probably some cases. I may disagree on that.
degree to which this has really impacted prosecutions,
and we should talk about that in a second. But
I think that it is the Solicitor General's job
to interpret the law as best they can. And yes,
somebody could come, a different Solicitor General
could come in place and say, yeah, I think the
law is moved. I don't think that's the right
decision and we're going to rescind the memo
or make it more nuanced or whatever. But it is
their job to interpret the law. They aren't setting
policy. They're not saying it's good or bad to
require certain things. They're saying that this
statute, as it's written, in good faith, looking
at Supreme Court case law, we believe this is
how the Supreme Court would rule on it. It's
not how the Ninth Circuit ruled on it. But looking
at the direction of the jurisprudence at the
Supreme Court, That's how we believe the Supreme
Court would rule on it. We are bound by Supreme
Court precedent. We're not going to set ourselves
up for failure. We think this is the right interpretation
of the law based on everything we have to refer
to in order to interpret a law. So I think it
is a legislative question at this point. Well,
see, I'm not sure because I agree with you that
it is their job to evaluate cases. whether or
not to argue them in front of the Supreme Court.
There's lots of times when we decide we're not
going to go forward with that. This isn't that.
This isn't evaluating the facts of a case and
the law. Is it a strong enough case? Can we prove
the case? This is a question of does the law
prohibit this conduct? And they're saying that
the law does not prohibit that particular conduct.
So there's a difference between situations which
do exist where parts of government will illegally
say, we don't like that part of the law right
now. We're just we're not going to prioritize
it. We're not going to enforce it. And if and
if they make a statement saying essentially categorically,
we're not going to enforce a law, not that not
that there's a difference on what the law means.
But here's what the law means. We're not going
to enforce it. That's illegal. That's a policy
call and that's not allowed. Congress has said
what the conduct is and you're supposed to enforce
it. There are instances where you just don't
have the resources, right? You have to make priority
choices. But for the most part, you can't simply
categorically say we're not going to enforce
the law as Congress has laid it out. That's different
from saying, here's the law that Congress laid
out. We don't think it prohibits this type of
conduct. We think this is what it applies to
and we will enforce what we think it applies
to but we just don't think the law does What
you would like it to do? Yeah, I mean I understand
how the solicitor You know got to where they
were And and I don't agree with their evaluation
or analysis of it but I didn't either at the
time but I'm a little yeah you've changed okay
well we talk about that a little bit too but
you know I do think when they put out the memo
they did turn it into policy it became policy
of the Department of Justice not to use that
that um that jury instruction Department's interpretation
of law that's different than policy um yes but
their interpretation of law is their opinion
right so that's like officer discretion that's
like That's just their opinion But but It is
but once you turn out a memo that says don't
do it that's policy. They're turning on them
and said this is what the law is I don't know.
I'll put the memo up on the website Therefore
you can't give a jury instruction that says X
because it would be wrong because the law does
not say X Well Yes, it is an opinion of the Solicitor's
Office, but a lot of legal minds have disagreed
with the Solicitor's Office on that issue. I
think one of the things that we pointed out in
the Law Review article is that in the congressional
record, when the amendments were made to the
ESA on the criminal provisions, there was some
discussion in Congress that they did not want
it to be required that somebody have that level
of mens rea. So, aside from some of the other
Supreme Court cases that have been cited justifying
the solicitor's interpretation, those things
are not there in those Supreme Court cases. Those
Supreme Court cases talk specifically about how
there was nothing from Congress indicating what
their intent was. Well, in the ESA, there is
some record of what Congress intended, and it's
just kind of ignored. Well, Supreme Court's gone
beyond that now. In more recent cases, yeah,
the earlier cases were all about, it can't be
sort of otherwise innocent looking conduct. And
they were cases that were dealing often with
strict liability types of situations, which the
court has always hated. But some more recent
cases deal with knowledge and willfulness. And
they are still coming down on saying, Knowledge
can't be because there's sort of a specific knowledge
or almost a negligence knowledge like And more
recent cases have gone kind of the one step further
and said It can't be kind of negligent knowledge.
It has to be absolute knowledge. I knew and I
did X anyway But what does this do to there's
a specific federal statute criminal statute title
18 I think it's a manslaughter statute, and it
talks specifically about lack of due regard for
what you're doing. Not that you intended to kill
somebody, but that lack of due regard caused
you to kill someone. And if the ESA was written
to include that kind of a negligent standard
explicitly, absolutely it would be applied, but
it's not written that way. It's written for knowledge.
Interesting. Even though the rec congressional
record would show that that was the intent of
Congress when they passed that. That would be
your strongest statutory construction argument.
That's why I'm saying I think it would need to
be a statutory fix at this point because of these
more recent cases where the Supreme Court is
kind of really ratcheting down on it has to be
culpable conduct. They have to know every fact.
It can't just be that another person sort of
similarly situate a reasonable person would have
concluded that fact, you have to prove that they
actually knew that fact. Right. So the standard
has gotten more and more difficult. And I don't
disagree. I don't disagree that should be the
standard under the ESA, right? Because you're
firing a gun. There should be a requirement.
The owner should be on you to know what you're
killing before you kill it. And I think Any reputable
hunter Would feel the same way they don't pull
the trigger unless they know no mistakes can
happen right for anybody experts can make a bad
ID But for the most part, they're really sure
of what they're pulling the trigger on Yeah,
and there could be language that would Acknowledge
that that would implement what Congress perhaps
intended to do which is sort of a stricter Almost
like in the public welfare cases where the courts
have accepted strict liability in certain public
welfare cases because it's so important that
these things not happen, and the penalty is usually
so low. Well, the ESA is a misdemeanor. Right.
Class A misdemeanor. Class B for threatened.
Right. So they've accepted those situations,
and this seems to be analogous to that to a certain
degree. If it could be explicit in the statute
that they're talking about, um, there's a burden
that rests with the defendant to show that there
was some, you know, they, they had a legitimate
belief that it was something that it wasn't,
or the, you know, the burden is on them for knowing
it. Some switch up, some recognition of sort
of this negligent standard, um, for the knowledge
for the shooter. That would be the ideal solution,
but we all know how hard it is to get things
legislated. Yeah. Nobody wants to reopen the
Endangered Species Act for amendments because
they're so afraid of what one party or the other
will try to sneak in, right, as a rider. From
what I've seen in cases since all of this happened,
and there was an attempt to roll it back, but
it got thrown out for lack of standing. Yeah,
the Arizona case. But before we talk about anything
close to that. I want to just recognize that
almost certainly anybody who's a listener of
my program or a watcher who is a hunter or who's
familiar with firearms, like anybody who's been
trained in firearms safety, firearms use, or
anybody who's been through a hunter education
class, they are very familiar with the mantra
of know your target and know what's beyond your
target. And there are countless, countless Examples
of people who have been charged with negligent
homicide or manslaughter when they shot at a
brown object in the woods and it turned out to
be a guy in a coat and they killed a person when
they thought they were shooting at an elk. And
so, you know, I know that that's what's going
to be in the mind of every, everybody who listens
to this, who's a, who's a hunter or. You know,
used to carrying firearms or using firearms.
They're going to be like, wait a minute, I I'm
going to be held responsible if I accidentally
shoot somebody. So why isn't. Why isn't some,
you know, asshole who shoots an endangered species?
Well, you have to remember that there's a lot
of ways to take an endangered species is shooting
a gun. So this knowledge level has to apply equally
to all the different methods of take. Well, yeah,
but I say let that be case by case basis, right?
So if well, if if you're so here's a classic
example, if you're fishing, Using a net or even
a hook and you accidentally catch a sea turtle,
right? You were not even You know you were not
attempting to Catch anything like a turtle. Okay?
But you're if you're shooting at an animal that
looks like a dog And you say it's a coyote. That's
different. That's different than throwing your
line into an empty ocean that you can't see You
know and then bait or a net is not you don't
use a specific net to catch turtles versus you
know shrimp or fish you don't use a specific
hook to catch turtles you know what i mean it's
just but in both cases yeah if you catch it if
you shoot it if you trap it you're not around
to see what actually gets into the trap right
right you could be trapping a lot of different
things and you end up with a wolf um right however
you take it Once you have it and you see it,
like you don't know it's a sea turtle until you
see it coming out of the water, that's when you
have to let it go. That's when you gotta let
it go. And so for McKittrick, his other two counts
were possessing it and transporting it after
it was illegally killed. Right. So we're not
charging him with the illegal killing. It just
it was illegally killed. He might not be criminally
liable for that, but it was illegal. And then
he, by the time he was reduced to his possession
and transport, he absolutely knew what it was.
It was now up close and personal and there was
all kinds of other evidence about taking it into
a bar. Same thing with a sea turtle. You don't
know what it is until you do and then you can't
possess it and you can't transport it. Right.
That's right. Yeah. And interestingly on McKittrick,
His Supreme Court case, the Supreme Court refused
cert on this, right? So they didn't even hear
it. They denied cert. So that means they're not
even going to hear it. So he didn't win. He ended
up convicted of all the things he was convicted
of in district court because he lost at the Court
of Appeals. Supreme Court refused to rule on
it one way or the other. So it's kind of weird.
His case resulted in this change in how the Department
of Justice applied the law. whether you say it's
a policy or just a memo implementing their legal
reasoning. But it didn't help him at all. He
still ended up convicted of killing a wolf. And
he wouldn't have any other accounts anyway, even
if he'd gone up and won in that round, he still
would have been convicted on the other two. Exactly.
And to be real clear, you explained it, but just
to say it one more time. where he got into trouble
on those is once he walked up and he saw oh yeah
that's a wolf and then he now he knows he's if
he takes it he's going to be an illegal possession
of a wolf and if he transports it it's going
to trigger Lacey all kinds of ESA. He transported
it in a parade where he was celebrated as having
killed the wolf as i recall yeah yeah and he
took the collar off tried to hide the collar
yeah so um yeah he committed other crimes that's
why i think that there wasn't At the end of the
day, while I think this is wrong, I think the
fix should be a legal fix, a statutory fix. Legislative,
yeah. But as far as the impact on cases, I'm
really interested in your view and what you've
heard from agents, because for the most part,
in the cases that were brought to us during this
time period, there was only one case. I know
of where we couldn't charge the ESA because they
reduced it to possession and they transported
it. And that was the Condor case. And there we
had another alternative, an MBTA charge, a Migratory
Bird Treaty Act charge that is basically strict
liability, maybe, but it was chargeable. But
in that case, you know, they shoot this huge
bird and it gets hung up in the tree. So they
couldn't reduce it to possession or transport
it. They just drove off and claimed that they
thought they were shooting at a turkey vulture.
The case you're referring to is an interesting
one. It occurred in early, I think, 2001 in California,
soon after California condors were being released
to the wild again after a massive and very expensive
captive breeding recovery program. And somebody
shot and killed a California condor. fish and
wildlife service agents actually from my office,
but before I was hired, tracked him down and
he claimed he thought it was a turkey vulture,
which they're very similar in appearance. So
he was kind of getting out on the classic McKittrick,
you know, get out of jail free card. But like
you said, California condors and turkey vultures
are both protected by the migratory bird treaty
act as well. So he committed a migratory bird
treaty act violation, which is strict liability.
The difference, of course, and the reason it
was important to fish and wildlife agents was
in our view, it undermined our ability to enforce
the ESA. And even though both of those violations
would have been misdemeanors, the ESA violation
would be a Class A, which would be a maximum
of a year in jail and $100 ,000 fine versus an
MBTA violation, which is Class B misdemeanor.
Much less money, fine, much less potential jail
time. Now, you mentioned that when it first came
out, you were totally opposed to the McKittrick
policy slash memo, but that you've changed your
mind a little bit about that. Where are you now
on it? You don't like it, you think it needs
a legislative fix, but you understand the reasoning?
Is that kind of where you are? I think the SG
made the correct call on the law. Okay. You think
the Solicitor General made the correct decision?
Yes, because the Southern Queen cases have really
reinforced this. I also respect why. You have
to know everything that makes it illegal because
they want to make sure that people understand
that this is truly criminal conduct in kind of
a layperson's understanding of what is criminal.
Because somebody has to have a culpable state
of mind. in order to be called a criminal. There
are rare exceptions to that, again, where it's
a particularly, and this would be an interesting
parallel, particularly high risk activity with
a public welfare consequence. So there are different
standards for people who run fireworks factories,
things that are inherently dangerous. And one
can argue that shooting a gun is, the problem
is that You aren't just dealing with people that
shoot guns. You're dealing with people who take
these animals a lot of different ways. We had
a case one time where a taking was based on harassment.
This was a photographer who was getting too close
to the nest. Now that's a taking, but it's not
an inherently dangerous enterprise the way shooting
a gun is. And if you've got a one size fits all
statute, you're applying knowledge to both the
photographer and the hunter. You have to have
the same definition fit both. Well, that's interesting,
Eleanor, because that would happen sometimes
in Northern California, too, where people would
kayak into the middle of a bunch of sea otters.
And they would change, basically change the feeding
or sheltering behavior of the sea otters. And
under the Endangered Species Act rules, under
the Code of Federal Regulations, take includes
harassment. And harassment is defined as changing
behavior in feeding, breeding or sheltering.
Exactly. Now, interestingly, I think the Trump
administration is trying to change those definitions.
Drastically trying to change harassment, but
yeah, that's true. That would happen to the sea
kayakers a lot. They just think they were going
out in the middle of the look at sea otters,
but they'd change the behavior of the sea otter
and that technically is take of an endangered
species. Right. And actually much easier to charge
because they're going to sea otters because they're
sea otters, right? That's true. So you're going
to be able to prove that case. That's true. But
now I don't want to forget about your question.
You mentioned that this turkey vulture slash
California condor was one of the only cases you
knew of. And you were kind of curious what I
knew. So and we are in a future episode. We are
going to talk about some of the other legal attacks
on the McKittrick policy slash memo that have
been attempted. So we're going to get into the
Arizona case in a future episode. So we're not
going to talk about it too much here because
it happened years and years later. But The main
place that this seems to be having an impact
is on the recovery of the Mexican gray wolves
in New Mexico and Arizona in part because they
they have such a similarity of appearance to
coyotes Much much different than the northern
gray wolves are smaller their coats are almost
always kind of the same You know tawny brown
that a coyote might have so people who intentionally
set out to kill Mexican gray wolves are very
savvy to the fact that It's claiming it's a coyote
is a way to avoid prosecution. These are very
rough anecdotal. I admit these are very anecdotal
numbers that I've kind of received from talking
to people who know, who have worked in the area
either in the past or whenever. I don't want
to give anybody away. But basically, the numbers
that I have written down here are interesting.
Between 2017 and 2020, there were about 61 cases
that it was very clear that the wolves were killed
intentionally, suspicious deaths, mortality,
suspect identified, no prosecution, declined
basically. Of those 61, two were prosecuted in
five years. That's not good. They've tried to
take some of these cases to civil penalty through
the U .S. Solicitor's Office. There were two
prosecuted criminally and three went civil. Civil
is fine, you get a fine, but you don't have a
criminal record and there's no risk of jail time.
Another anecdotal story I got was in over five
years, there was one or two successful prosecutions
of Mexican gray wolf killing. The human take,
human killing, outright killing of Mexican gray
wolves, I'm not talking about running over them
with your car because they run out in front of
you. Intentionally killing gray wolves in Arizona
and Mexico is the number one cause of death among
those animals. I can't point to specifics, but
I will say there are some NGOs out there trying
to work. through Freedom of Information Act requests
to actually get the data on how many declinations
there have been from the U .S. Attorney's offices
in Arizona and New Mexico based on McKittrick.
So I think that data is being collected, but
all I have is very anecdotal stuff. I'd be interested
to know how many of those cases were then taken
to the environmental crime section. Were they
also turned down by them or was this a this is
a really complicated, difficult proof case, it's
a local, very busy office. There's that. There's
also, you know, if it is somebody, people who
know the lookalike, they know that loophole.
If you've got circumstantial evidence that that's
kind of what was going on, there's a deliberate
ignorance instruction under knowledge, right,
that could be used. And the last thing I would
put in there, well, there's also the recourse
potentially to where there's the similarity of
appearance, you can do a lookalike listing, right?
True. You can list another species that looks
like they did originally for bald and golden
eagles. Golden eagles were listed to protect
bald eagles. Right. Now they're more endangered
than the bald eagles are, but go figure. So there's
that option. And then the last, to me, the last
piece of that puzzle, and I really don't know
enough about this except to sort of if it were
me, I'd issue spot it and I'd be looking at it,
is questions with DNA identification of what
was actually killed. I think wolves are particularly
difficult. Yeah, that's very thorough. Yeah,
the DNA identification is very thorough on the
Mexican gray wolves. Yeah. Okay. Yeah, they there
I was actually quite surprised at how detailed
they are They know the DNA sequence of every
single Mexican gray wolf that's currently in
the wild every single one Wow, like to an individual.
Yeah, and there's yeah, it's pretty impressive
actually So I think you're right about it be
that is interesting to it would be good to look
at where these declinations come from local US
attorneys or ENRD because It goes directly to
something an investigator told me, and that is
that one of the first questions that was always
asked whenever a case was taken to the local
AUSA's office was, is there a McKittrick issue
in this one? And so they're already thinking.
The investigators are already feeling like, damn,
if it is, it's going to die. It's not going to
go anywhere. You just have to find the other
charges. You've got to find the workarounds.
Yeah, that was my next question. Well, that was
my next question to you. As a very seasoned,
experienced prosecutor, given the McKittrick
memo slash policy, it's in place, it's not going
anywhere, as far as we can tell for now. What
recommendation would you make to investigators
out there about how to build the best possible
case to bring to ENRD or local AUSA that deals
with McKittrick? What are you looking for? I
certainly would be looking at the post -taking
conduct for sure. Did they reduce it to possession?
Did they take it somewhere? Did they mount it?
Did they sell it? Did they take it to a taxidermist?
Is there anywhere else along the chain? Or if
you're there and you see the taking, don't go
in and watch what he does next. Watch what happens
to it. Or leave the carcass there and put a tracker
on it and see if somebody goes back to collect
it later. And are you thinking about that in
line of proving that they knew the identity when
it was killed or just that they then learned
the identity and then continued to do illegal
things with it? The latter. The latter, okay.
Because it's good a charge. It's a strong...
Yeah. It's a necessary misdemeanor charge, Class
A, just like the taking would be. I like that.
That's very good advice, Eleanor. So, yeah, I'd
look at those and then I would look at, you know,
the usual gumshoe stuff that you guys do with
records and communications and stuff to see if
maybe there's a conspiracy there somewhere. Maybe
there's a fraud charge. Maybe there's a false
labeling charge under LACI. You know, there may
be other things with different elements that
would apply to some piece of the overall conduct.
Yeah, and you know, there are definitely other
wolf cases where agents have shown that People
set out to go kill wolves like there's they develop
evidence during that what you described is the
gum shoe investigation, right? where they get
out and they actually find evidence that this
person was intentionally going out to kill wolves
and You know that goes a long way to proven they
knew the identity of the animal they killed,
right? Yeah, you know look at what magazines
they're subscribing to You know, what hunter
training courses they took. Yeah, yeah. Maybe
you need a little junior special agent badge,
Eleanor. There you go. You guys have trained
me well over the years. This is one of the most
fun cases where I got to work closely with you
guys right up through the investigation. Oh,
I'm telling you. Yeah. And you know what? It's
mutual. I learned so much from you, particularly
working on that Isaac Zimmerman case, trying
to get him back. Yeah, it's always mutual. We
can bring you the realities of what it's like
to be out there on the ground and you can remind
us of what the realities are like in front of
a jury, which is pretty important. One particular
argument, not with the Fish and Wildlife Service
agent. It was a different agency and he's in
the middle of a search warrant. It was NOAA,
wasn't it? It was NOAA. I'm sure it was. It was
not. If this agent was like executing a search
warrant and there was stuff outside the scope
of the warrant, it was really, really important.
And he's yelling at me, I'm dealing with the
real world here. And I'm yelling back at him.
Your real world is inside that courtroom. Do
not dare take that stuff. It's not covered. You
know, take. So he took. I told him to take pictures
of it, which he did. And when they got the warrant
and he went back for it and they had called a
bunch of stuff out that he'd taken pictures of,
we added a charge for obstruction. Nice. Yeah.
Oh, that was smart. Again, the real world. varies
from your perspective, and there's more than
one way to get at the end. No, for sure. And
I always tried to tell agents, when you're out
in the field investigating, you have to be thinking
already about how is this going to present to
a jury? Right. All the way through sentencing.
Yeah, all the way through sentencing. And sometimes
you even have to be thinking ahead to appeal,
right? Yeah. Oh, yeah. Oh, there were so many
times during my investigations when I thought
about, ooh, this is going to be really valuable
for sentencing. it might not this might not even
be something we can admit at trial but this is
going to be part of the sentencing for sure yeah
and yeah you really have to be to make a really
clean good case you have to be from the moment
you arrive in the field you have to be thinking
ahead to what's going to happen at a jury what's
going to happen on appeal and and what can i
use in sentencing that i might not be able to
use at trial yeah i would always look at it as
until the case is completely investigated like
before charging, but the agents are the lead
and I'm the advisor. Exactly. And then once I've
got that indictment or when I'm making those
decisions for what I'm indicting, I'm the lead
and they're the advisor all the way through the
sentencing, but it's a team all the way through.
100%. Yeah, 100%. And I think an agent who doesn't
understand that, that it's their case until they
turn it over to the U .S. Attorney's Office.
And then it's the U .S. Attorney's case. If they
don't understand that, they're going to set themselves
up for a lot of unnecessary conflict and failure.
But their job is not done. No, no. It's always
our case. It's just a question of who's on first.
Yes, it's more of, you know, so I look at it
this way. When I'm investigating, I'm counting
on support from the U .S. Attorney's Office to
help me issue subpoenas, do grand juries, whatever
I need to do. But once I bring it to you and
you charge it, now I'm there to support you.
Exactly. If you need me to go do another witness
interview, I'll go do it because that's what
you need. Right. Yeah, it's just a mindset of
our case, but I'm the lead. Like you said, I
think that's a better way to put it. I'm the
lead here, you're the lead there. Yeah, it's
a team. The team lead just changes every time.
Yeah, that's a good way to put it. And then I
think your other point is good in always reminding
investigators that good old fashioned detective
work always pays off, right? Get out there, do
the surveillance, go do interviews. Don't be
afraid to go flash the badge, roll the gold and
interview people. Yeah, go interview everybody's
neighbors, friends, ex -girlfriends, ex -boyfriends.
Not everything has to be covert. Get out there
and do old -fashioned detective work. Read the
documents. Read the documents. Connect the dots.
We used to call the agents that were particularly
good at that diggers. You can put together a
whole case on nothing but records. Yeah, that's
true. That's true and there are definitely some
agents who are very good at the Records crawl
and other agents who are very good at interviewing
or sitting on a house and watching behavior.
Yeah, yeah Eleanor Colborne, thank you so much
for being on the podcast. I really appreciate
it Can't tell you how much it means to me. It's
great to see you great discussion and I think
this is going to be a very important episode
for our season about wolves Thank you so much
for being on the show. Thank you Alright everybody,
thanks so much for tuning in. We'll see you next
time. Nature's Secret Service is written and
produced by me, Ed Newcomer, and is co -produced
by the DHTV team here at California State University,
Dominguez Hills. Follow us on social media and
connect with us online at naturessecretservice
.com.