TO: Supervisory Attorney BennardoFROM: Law Clerk Nymphodora TonksDATE: October 20, 2015RE: Alomar matter, 15-216, Knowing taking of endangered gray wolf

Discussion

Andy Alomar likely committed a “knowing taking” of the grey wolf. Addi-

tionally, he does not have a meritorious defense, under 16 U.S.C. § 1540(b)(3)

(2012) based on a claim that he acted to defend himself or his dog, Sally. “It is un-

lawful for any person subject to the jurisdiction of the United States” to take any

endangered species of “fish or wildlife within the United States or territorial seas of

the United States.” 16 U.S.C. § 1538(a)(1)(B) (2012). However, “it shall be a de-

fense to prosecution under this subsection if the defendant committed the offense

based on a good faith belief that he was acting to protect himself or herself, a mem-

ber of his or her family, or any other individual, from bodily harm from any endan-

gered or threatened species.” 16 U.S.C. § 1540(b)(3) (2012).

The grey wolf shot by Andy Alomar was an endangered species and even

though Andy Alomar was not aware of this fact, his act of shooting the animal was

likely intentional in itself. Hence, he probably committed this act of taking an ani-

mal knowingly which is a clear violation of the Endangered Species Act. Thus,

Andy Alomar likely committed a “knowing taking” of the grey wolf. Furthermore,

since Andy Alomar did not shoot the grey wolf as an act of self defense, he does

not have a meritorious defense claim for himself. Also, as can be seen by the above

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stated rule, his dog Sally does not meet the criteria of a family member, or any

other individual, therefore, he does not have a meritorious defense claim for shoot-

ing the grey wolf in order to protect her either.

Taking

Andy Alomar committed the act of “taking” the grey wolf. “The term ‘take’

means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or

to at- tempt to engage in any such conduct.” 16 U.S.C. § 1532(19) (2012). Andy

Alomar shot the grey wolf, wounding it in the process that ultimately resulted in its

demise. Hence, he committed the act of “taking” the grey wolf.

Knowingly

Andy Alomar likely committed the act of “knowingly” taking the grey wolf.

It can be said that if an act of taking an animal of endangered species is done “vol-

untarily and intentionally, and not because of mistake or accident,” the act is done

“knowingly.” United States v. Billie, 667 F. Supp. 1485, 1492 (S.D. Fla. 1987).

The “defendant could only claim accident or mistake if he did not intend to dis-

charge his firearm, or the weapon malfunctioned, or similar circumstances oc-

curred.” United States v. St. Onge, 676 F. Supp. 1044, 1045 (D. Mont. 1988). Billie

further states that when it comes to the violation of Endangered Species Act, the

only proof required is that the defendant acted with “general intent” while shooting

an animal of the endangered species.” Billie, 667 F. Supp. at 1493. The knowledge,

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that the animal being harmed belonged to endangered species is not required to

“knowingly violate” the rules and regulations protecting such animals, as long as

the intention of causing harm is present. United States v. McKittrick, 142 F.3d

1170, 1177 (9th Cir. 1998). McKittrick further states that, in 1978, the Congress

intentionally changed the term “willfully” to “knowingly” in order to make “the

criminal violations of an act a general rather than a specific intent crime.” Id.

As seen from the above mentioned case laws that, when it comes to “know-

ingly” taking an animal of the endangered species, the intent to shoot the animal is

of paramount importance and not the knowledge of the type of animal being shot.

Andy Alomar's, situation differs from the above cited case laws in the fact that he

did not intend to shoot the grey wolf but the tree next to the wolf, in order to draw

the grey wolf away from his dog, Sally. However, it can also be seen that, at the

time of discharging his weapon, Andy Alomar was 80 feet away from the wolf, his

dog was at 75 feet, and the tree was somewhere in between the dog and the wolf,

i.e. approximately at a distance of 76-79 feet. Thus, it can be said that the probabil-

ity of Andy hitting the grey wolf, or even his dog instead of the tree from such a far

distance was extremely high. It was a chance that Andy Alomar took when he

aimed to shoot at the tree. Apart from missing his intended aim because of the dis-

tance, Andy’s weapon did not misfire or malfunctioned in any other way. There-

fore, even though not intending to, Andy Alomar’s act of shooting the grey wolf

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cannot be said to be completely unintentional. Hence, Andy Alomar likely com-

mitted the act of “knowingly” taking the grey wolf.

Defense

Andy Alomar does not have a meritorious defense claim for shooting the

grey wolf for his defense, or that of his dog Sally. “It shall be a defense to prosecu-

tion under this subsection if the defendant committed the offense based on a good

faith belief that he was acting to protect himself or herself, a member of his or her

family, or any other individual, from bodily harm from any endangered or threat-

ened species.” 16 U.S.C. § 1540(b)(3) (2012). However, Andy Alomar did not

shoot the grey wolf as an act of self defense, furthermore, his dog Sally is not a

family member or an individual, hence, he cannot claim defense in her case either.

Therefore, Andy Alomar does not have a meritorious self defense claim for himself

or for the defense of his dog, Sally under 16 U.S.C. § 1540(b)(3) (2012), for know-

ingly taking the grey wolf.

Defense of Self

Andy Alomar did not shoot the grey wolf in order to defend himself, and

therefore, he does not have a meritorious self-defense claim. If the offense of tak-

ing an endangered species was committed by the defendant “based on a good faith

belief that he was acting to protect himself from bodily harm”, only then could he

claim self defense. 16 U.S.C. § 1540(b)(3) (2012). “A person must be in imminent

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or immediate danger of bodily harm in order to avail himself of a claim of self-de-

fense” if he knowingly takes an endangered species. Shuler v. Babbitt, 49 F. Supp.

2d 1165, 1169 (D. Mont. 1998). Shular also states that, in order to have a self de-

fense claim, the defendant should neither be the aggressor, nor should have pro-

voked the conflict. Id. Lastly, where a defendant presents evidence that he acted in

self defense in killing an animal of the endangered species, government has to dis-

prove self-defense beyond reasonable doubt in order to charge the defendant with

knowingly taking a species. United States v. Clavette, 135 F.3d 1308, 1311 (9th

Cir. 1998).

The above stated case laws make it clear that, unless a person is in imminent

danger, and has not provoked a conflict with the threatened species, it is illegal to

knowingly take an animal of the endangered species. Applying the same case laws

to the situation of Andy Alomar, it can be seen that at the time of shooting, Andy

was standing at the door of his car, approximately 80 feet away from the grey

wolf. When he first spotted the grey wolf, it was at a distance of 125 from Andy

Alomar’s car, and even when he went to the car to retrieve his pistol, even at that

time, the grey wolf was at a distance of more than 100 feet from his car. From

these instances it can be seen that, at both times Andy Alomar had ample opportu-

nity to get into his car and drive away safely. There was no imminent danger to

him of any kind, or any other threat of bodily harm. Hence, there was no reason for

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Andy Alomar to shoot the grey wolf in order to protect himself. Therefore, Andy

Alomar does not have a meritorious claim that he shot the wolf in self defense un-

der 16 U.S.C. § 1540(b)(3) (2012).

Defense of Dog

Andy Alomar cannot claim defense of his dog, Sally as a reason of know-

ingly taking the grey wolf. A defendant cannot take an animal of the endangered

species unless he was acting on a good faith belief to “protect a member of his or

her family, or any other individual, from bodily harm from any endangered or

threatened species.” 16 U.S.C. § 1540(b)(3) (2012). “The ESA makes no mention,

however, of a right to kill a member of a threatened species in defense of property.”

Christy v. Hodel, 857 F.2d 1324, 1329 (9th Cir. 1988). However, Hodel does men-

tion that even though “the U.S. Constitution does not explicitly recognize a right to

kill federally protected wildlife in defense of property,” id. at 1329, such “regula-

tions do not forbid plaintiffs from personally defending their property by means

other than killing” animals of the endangered species. Id. at 1331.

It can be inferred from the above stated rule and the case law that, Andy

Alomar could have only taken the grey wolf to protect himself or another person

from bodily harm, but not his property. His dog Sally falls under the later category,

and the Endangered Species Act in no way justifies killing an animal protected by

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it, in order to protect the defendant’s property. Since the ESA does not prohibit

protecting one’s property by other means apart from killing an animal of the endan-

gered species, hence, in order to save his dog Sally, if Andy Alomar would have

been able to draw the grey wolf away in a manner that did not kill him, or had the

bullet discharged by him, actually hit the tree, that act probably would have been

permitted. However, since that did not happen, therefore, Andy Alomar does not

have a meritorious defense claim for shooting the grey wolf in order to protect his

dog, Sally.

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