Just about any U.S. citizen could be charged with a crime if an environmental activist group succeeds in a lawsuit demanding the federal government radically expand prosecutions under the federal Endangered Species Act, and that’s why a coalition of farmers and ranchers is pushing back.

“Literally every American could face some level of potential risk, because activities that we take for granted – including driving, biking or walking – could lead to criminal punishment if you somehow harm one of the more than 1,500 species on the ESA list,” said Jonathan Wood.

He’s a staff attorney for the Pacific Legal Foundation, which is representing groups that filed a motion Wednesday to intervened in the lawsuit by WildEarth Guardians against the U.S. Department of Justice.

PLF is representing the New Mexico Cattle Growers’ Association, New Mexico Farm & Livestock Bureau and the New Mexico Federal Lands Council.

The case is in federal court in Arizona.

WildEarth Guardians wants to the DOJ to interpret the Endangered Species Act broadly, expanding criminal liability even to someone who doesn’t know he is harming an endangered species. Currently, under what is known as the McKittrick Policy, innocent mistakes, such as not recognizing the species, not knowing it was listed or causing harm in an unintended way can’t be prosecuted.

“For western farmers and ranchers, the immediate concern is that they could face criminal penalties for mistaking a protected wolf for a coyote, or for inadvertently and unintentionally harming any of the dozens of other ESA-listed species that call the Southwest home,” Wood explained.

“But WildEarth Guardians’ lawsuit will affect more than farmers and cattlemen,” he said.

He described the action as “yet another disturbing example of overcriminalization.”

“It threatens law-abiding Americans with imprisonment for innocent, ordinary acts, and it threatens the rule of law by seeking to have a statute rewritten by judicial edict. The plaintiffs are asking the courts to ignore that Congress only permits those who ‘knowingly’ take a species protected by the Endangered Species Act to be subject to severe criminal penalties,” he said.

The WildEarth Guardians lawsuit “seeks to radically expand prosecutions” under the ESA, according to PLF.

The livestock organizations’ members have a significant interest, the lawyers wrote.

“If they attempt to protect their property from what they honestly believe to be a predator that isn’t subject to federal protection, like coyotes, only to find that they were mistaken about the predator’s identity, that mere mistake could land them in jail. As a practical consequence of this risk of criminal liability, they will have to forego protecting their property, suffering substantial property and economic loss,” the filing said.


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