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Court Scraps Endangered Species Killing Loophole

The Gibbon wolf pack pauses in the snowy Yellowstone landscape. | Photo: Doug Smith/NPS
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Wolf #10 just before release into Yellowstone National Park, 1995 | Photo: Jim Peaco/NPS
The wolf whose death started it all. Wolf #10 just before release into Yellowstone National Park, 1995 | Photo: Jim Peaco/NPS

The damage Chad McKittrick has done to America’s endangered species might finally be coming to an end.

In March, 1995, 14 gray wolves from Canada were released in Yellowstone National Park, part of an attempt to reintroduce the species to the area. Biologists working the project were especially fond of one wolf in particular. He was a big, medium-gray male, “Wolf #10,” added to the reintroduction group as a mate for a single black female, “Wolf #9.” The largest of the wolves in what biologists hoped would become the Rose Creek Pack, #10 seemed destined to make history.

Wolves #9 and #10 hit it off in a big way. Within two weeks of their release into the wild, #9 and #10 had wandered far enough from the Park that they were out of range of the biologists’ ground-based tracking equipment. A survey from the air found the pair eleven days later: they’d headed north, and were exploring the forests near Red Lodge, Montana, likely seeking out a place for #9 to deliver the litter of pups she was already carrying.

That’s where they ran into McKittrick, an unemployed carpenter in his forties. The encounter did not end well.

Against the advice of his friend Dusty Steinmasel, who had just helped him free a stuck pickup, McKittrick shot #10. (Steinmasel would later testify that he'd suggested #10 might be "somebody's dog," and that McKittrick had said "That's a wolf, Dusty. I'm going to shoot it.")

When the pair reached #10’s stiffening body, they saw the wolf’s prominent radio tracking collar emblazoned with the words “National Park Service,” and the red U.S. Fish and Wildlife Service ear tags he wore. They dragged his 122-pound carcass down a hill, loaded it into the bed of a pickup truck, drove to a grove of cottonwoods and hung #10 from a tree limb. McKittrick beheaded and skinned the wolf, wanting trophies. The two men then threw the rest of the carcass down an embankment.

Steinmasel, who had repeatedly urged McKittrick that they should turn themselves in, eventually confessed his role in the wolf killing to federal wildlife investigators. McKittrick was arrested and charged with violating the federal Endangered Species Act and the Lacey Act, which forbids the transport of wildlife obtained illegally. (Even if the wild animal is dead at the time and only portions of it are transported.)

In court, McKittrick made several arguments about the legality of Endangered Species Act protection of the experimental Yellowstone wolf population. Those arguments did not sway the jury. Nor did McKittrick’s argument, which he made despite Steinmasel's testimony to the contrary, that he thought he was shooting a dog. McKittrick appealed his conviction to the Ninth Circuit, whose judges weren’t any more sympathetic than the jury had been. That court upheld McKittrick’s conviction in 1998. McKittrick then attempted to appeal to the Supreme Court, which refused to hear his case.

Despite McKittrick’s defeat, though, the Justice Department issued an memorandum in 1999 that turned the wolf-killing defendant’s weakest argument into de facto policy of the federal government. Under what came to be called the McKittrick Rule, the DOJ ordered its staff not to allow cases to proceed against people accused of shooting endangered animals unless the government agency involved — whether the Park Service, USFWS, or someone else — could prove beyond a reasonable doubt that the defendant knew he or she was killing a member of a listed species. If a shooter claims he or she thought a wolf was a coyote when s/he shot it, the Justice Department would not allow prosecution. 

In the 18 years since, the McKittrick Rule has also come to be known as the “I thought it was a coyote” rule. It’s routinely invoked by shooters who kill wolves, a recent notable example being the untimely end of “Echo,” the first gray wolf to visit the North Rim of the Grand Canyon in more than 70 years. A Utah hunter shot Echo in 2014, then invoked the McKittrick Rule and thereby escaped prosecution.

Mexican wolf in captivity. More than half of all deaths of reintroduced Mexican wolves are illegal shootings.  | Photo: Chris Clarke

And so while Chad McKittrick did have to serve his lenient three-month sentence for killing Wolf #10, he inadvertently helped a generation of shooters escape prosecution under the Endangered Species Act. By 2013, shootings of at least 48 Endangered Mexican wolves had gone un-prosecuted under the McKittrick Rule; illegal killings account for more than half the Mexican wolf deaths in the United States. The rule has also shielded killers of California condors, whooping cranes, and grizzly bears from Endangered Species Act penalties.

But that may have come to an end this week.

In 2013, the groups WildEarth Guardians and the New Mexico Wilderness Alliance sued the Justice Department over the McKittrick Rule, saying that by following the rule, the Department was being derelict in its duties to enforce federal law. The groups, whose suit was driven in large part by the plight of the Mexican wolf, also claimed that the rule was an improper overreach by the Justice Department. They claimed that Justice was claiming broad authority in interpreting the language in the Endangered Species Act, a power traditionally reserved for the courts.In its finding on June 21, the U.S District Court for the District of Arizona ruled that the Justice Department’s adherence to the McKittrick Rule was an illegal end-run around the will of Congress in writing the Endangered Species Act:

…the Court agrees with Plaintiffs that the McKittrick policy is outside the range of prosecutorial authority set out in [the] ESA’s comprehensive conservation scheme because it eviscerates the deterrent effect of the ESA criminal enforcement statutes. In other words, prosecutions prevented by the McKittrick policy result in little to no protection for the Mexican wolf and cause direct and real harm…to this protected species.

“The end of the McKittrick Policy is a crucial victory for critically imperiled animals including Mexican wolves and grizzly bears,” said Bethany Cotton, wildlife program director for WildEarth Guardians. “Wildlife killers who are either profoundly careless or worse, who intentionally target protected animals, no longer have a get-out-of-jail-free card by claiming they did not know the identity of the animals they kill.”

If the Justice Department appeals the Arizona District’s decision, the appeal will be heard by the Ninth Circuit, the same court that declined to McKittrick’s arguments seriously in the 1990s. If the Justice Department decides to obey the directive of the court, a probable outcome even in the era of Trump, this decision may well mean an end to Chad McKittrick’s inadvertent influence on national wildlife policy.

Wolf #9 before her first release into Yellowstone National Park, 1995 | Photo: Barry O'Neill/NPS
Wolf #9 before her first release into Yellowstone National Park, 1995 | Photo: Barry O'Neill/NPS

Incidentally, Wolf # 10’s story didn’t end the day he died. Wolf #9 survived him, heavily pregnant with a litter about to drop. Without her mate, she would have had to leave her litter unattended to find food in a landscape filled with wolf-shooting Montanans. By an extreme stroke of luck, wildlife managers were able to find her and her eight pups and bring them back to the relocation center in the Park. The pups grew up.

Most of them met with unfortunate ends ranging from illegal shootings to vehicle accidents, to injuries having nothing to do with humans.

One of those injuries —impalement on a tree branch while hunting — befell #9 and #10’s daughter Wolf #17, who died in 1997. But she’d borne a litter before she died, which her mate raised successfully. One of the males in that litter — M#113 — went on to found the Agate Creek Pack, a profound presence in the Yellowstone landscape for almost a decade. Injured in 2007, M#113 was succeeded as pack alpha by his son. The Agate Creek Pack disbanded by 2012, but a few of its members, likely descendants of Wolf #10, went on to found the Junction Creek Pack, which persists to this day.

The end of the policy named after his killer won’t benefit #10. But it may give some of his great-great-grandchildren a better chance at surviving to have grandchildren of their own.

Banner: The Gibbon wolf pack pauses in the snowy Yellowstone landscape. | Photo: Doug Smith/NPS

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