Full Title Name:  THE ENDANGERED SPECIES ACT V. THE UNITED STATES DEPARTMENT OF JUSTICE: HOW THE DEPARTMENT OF JUSTICE DERAILED CRIMINAL PROSECUTIONS UNDER THE ENDANGERED SPECIES

Historically, in prosecutions under the Endangered Species Act (ESA), to prove the element “knowingly” the government only had to prove that a defendant intentionally killed an animal that turned out to be endangered or threatened, not that the defendant knew the identity of the species or the endangered or threatened status of the animal when it was killed. Jury instructions to this effect were repeatedly upheld. Then, in a brief filed with the U.S. Supreme Court for McKittrick v. U.S., the federal government, unprompted, unnecessarily, and without explanation, said that it would not use this jury instruction in the future because the instruction did not properly explain “knowingly.” The U.S. Department of Justice subsequently issued a directive to its attorneys to that same effect. Now, there is a self-imposed rule in ESA prosecutions requiring prosecutors to prove that a defendant knew the animal was endangered or threatened at the time it was “taken” or killed. This Article discusses ways in which this change conflicts with the established law and its impact on ESA prosecutions.