In Ongoing Lawsuit Barrage, Professional Green Activists Disregard Due-Process Concerns

DOIAfter the Executive Branch changed hands a little over two years ago, professional environmental activists promised a steady stream of lawsuits against both private enterprises and the federal government. Such a bold pronouncement was great for the green activists’ fundraising, as environmental non-profits bragged of 100 to 700 percent increases in donations.

Those groups have certainly followed through on their pledge, filling federal district and appellate courts’ dockets with lawsuits. One group’s homepage, for instance, boasts the group has sued the administration 95 times, “and we’re nowhere near finished.” In their zeal to vastly expand the applicability of federal laws and regulations and to block reasonable federal policy changes, green activists have shown little interest in the due-process rights of businesses and individuals. Lawsuits to overturn two federal policies illustrate this disregard.

The Endangered Species Act and the “McKittrick policy”

Under the Endangered Species Act (ESA), anyone who “knowingly” violates the law can be charged with a crime. The law prohibits a “take” of any protected species, a legal term that includes killing. McKittrick, a Montana resident, was prosecuted for killing a Mexican gray wolf. At trial, he argued that because he had mistaken the wolf for a wild dog, he did not “knowingly” kill an endangered species. The judge instructed the jury that McKittrick’s mistaken identity was irrelevant under the ESA, so McKittrick was convicted. In 1998, the U.S. Court of Appeals for the Ninth Circuit upheld his conviction.

In response to the decision, the Department of Justice (DOJ) directed its criminal prosecutors to refrain from seeking a jury instruction similar to that issued in McKittrick because prosecutors must “prove beyond a reasonable doubt that a defendant knew the biological identity of the animal taken.” Due-process concerns compel such a policy, given the devastating impact a criminal conviction, and even an indictment, can have on an individual or business that accidentally or mistakenly violates the ESA.

But activists who support the strict-liability approach authorized by the Ninth Circuit in McKittrick sued DOJ under the Administrative Procedure Act (APA), claiming the new policy was arbitrary and inconsistent with the ESA. The plaintiffs asserted that the policy would lead to fewer prosecutions of ESA violators, which in turn would encourage more “takes” of species like the Mexican gray wolf. DOJ argued that, under its broad prosecutorial discretion, the policy was judicially unreviewable.

A District of Arizona judge disagreed, holding that the policy was “an abdication of DOJ’s criminal enforcement duties and responsibilities under Section 11 of the ESA.” DOJ appealed to the Ninth Circuit, focusing on an issue that went unmentioned in the trial judge’s opinion: whether the activist groups even had standing to sue.

In an October 23, 2018 unpublished opinion, a three-judge panel of the Ninth Circuit reversed the district court, holding that the plaintiffs lacked standing. The organizations’ members suffer a concrete injury when species are killed and conservation efforts suffer, the court explained. But the plaintiffs could neither establish a connection between those injuries and the McKittrick policy, nor could they show that the policy’s elimination would redress the alleged harms. The court emphasized the plaintiffs’ failure to present even a single instance of DOJ’s failure to prosecute a wolf killing because of the McKittrick policy. The plaintiffs’ claim that the remedy would reduce wolf killings, the court stated, “rests upon several layers of speculation” and assumptions about how “a series of independent entities would respond to the change.”

The Migratory Bird Treaty Act and “incidental take”

The Migratory Bird Treaty Act (MBTA) imposes criminal sanctions for taking one of over 1,000 species of birds. The previous administration supported criminal prosecution for accidental or unintentional killing of MBTA-protected birds. Indictments brought for an incidental take led to a split in the federal circuits over whether the law authorized such prosecutions.

In 2015, the Fish and Wildlife Service (FWS) sought public input on its plan to regulate incidental take, identifying oil and gas wastewater pits, communication towers, and power lines as their main targets. In its comment, Washington Legal Foundation argued that the main statutory term at issue, “take,” connotes an intentional, affirmative action, and FWS’s interpretation that indirect, incidental harm of birds violates the law contravenes that plain meaning. WLF also noted that the proposal made no mention of wind power—one of green activists’ favored forms of energy production—as a cause of incidental take. This struck us as odd, given that as of 2015, wind turbines reportedly killed around 600,000 birds a year, including bald eagles, mourning doves, and hawks.

Rather than reach a decision on FWS’s 2015 proposal, the Department of Interior’s (DOI) Solicitor issued a legal opinion on January 10, 2017—10 days before President Trump’s inauguration—declaring that incidental take of migratory birds violated the MBTA. Under the opinion, as Heritage Foundation’s John-Michael Seibler has noted, people whose cats killed a migratory bird (cats are America’s leading migratory-bird killers) or whose nice clean windows tricked a bird to slam fatally into the glass, could be criminally prosecuted.

On December 22, 2017, the Interior Department’s new Solicitor withdrew the January 10 opinion and replaced it with one that recognizes the due-process problems posed by incidental-take prosecutions. The letter explained that Congress did not intend for the MBTA to apply to incidental take of migratory birds. Environmental organizations responded as though the Solicitor had signed millions of birds’ death warrants. On May 24, 2018, some activists channeled that rage into two separate lawsuits (complaints here and here) filed in the Southern District of New York, alleging the opinion letter violated the APA. Not to be outdone, eight states later joined the suits.

The two MTBA opinion-letter suits should go the way of the McKittrick-policy challenge and be dismissed for lack of standing. The activist groups cannot claim “organizational standing” because the groups’ mere general interest in bird preservation and concerns over the DOI opinion letter don’t equal injuries in fact. Also, as DOI’s motion to dismiss explains, the letter did not divert the groups’ attention from their missions; if anything, their lawsuits demonstrate the groups’ continued commitment to bird preservation. Nor can the groups claim “associational standing,” under which the groups’ individual members must be able to show they suffered a cognizable harm. Members can only speculate whether regulated businesses will be less likely to avoid killing birds thanks to DOI’s opinion letter, actions over which the members have no control. The states’ allegations of injury are similarly speculative and also rely upon the actions of others.

DOI’s motion also convincingly argues that neither the activists nor the states can establish a direct causal connection between an increase in bird deaths and the DOI opinion letter given the intervening and uncertain actions and responses of multiple third parties. Nor can the plaintiffs show that the reversal of the DOI policy will redress their injury. As the DOI motion explains, even without the opinion, the agency retains considerable discretion on how to enforce the MBTA, and it could decide to decline incidental-take prosecutions in any event.

Self Interest over Public Interest

Lawsuits like those described above certainly help green activists’ fundraising efforts. But if the self-styled public-interest groups were in fact acting in the public’s interest, instead of their own, they would applaud the DOJ and DOI policies, not seek their removal. A high standard for proving mens rea—i.e. criminal intent—prevents government from prosecuting people for innocent accidents. A demanding mens rea is especially needed for complex environmental laws and regulations, and even more so for laws like the ESA and the MTBA, where individuals and businesses can go to great lengths to prevent takings of protected species but still fall short. Jailing such “offenders” alongside those who knowingly hunt or capture protected species reduces the deterrent and punitive values of environmental laws—outcomes no dedicated environmentalist should support.

Rather than waste their time and resources, and taxpayers’ money, filing suits they have no legal standing to bring, green activists should sit down with businesses and other stakeholders and discuss how to best avoid incidental takes of threatened species and migratory birds. Perhaps they could start with their allies in the wind-power industry. Voluntary mitigation efforts will have a much greater chance of species preservation than relying on prosecutions of the random landowner who shoots a wolf out of self-preservation or a small business whose government-permitted oil pits attracted a few stray birds.

Also published by Forbes.com on WLF’s contributor page.

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