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WSP03664
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Last modified
1/26/2010 12:51:31 PM
Creation date
10/11/2006 11:53:58 PM
Metadata
Fields
Template:
Water Supply Protection
File Number
8065
Description
Section D General Statewide Issues - Endangered Species Act - Fisheries
State
CO
Basin
Statewide
Date
8/1/1993
Author
American Bar Associa
Title
Natural Resources and Environment - Number 8-Volume 1 - Summer 1993 - Endangered Species Protection
Water Supply Pro - Doc Type
Publication
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<br />002444 <br /> <br />ESA, the government must prove that the statute <br />was "knowingly" violated. The courts have in- <br />terpreted this provision to require only proof <br />of general intent. For instance, a federal district <br />coun in Florida held that the prosecutors need <br />only prove that Chief Billie, a Seminole Indian <br />charged with unlawfully taking an endangered <br />Florida panther. intended to shoot his gun, not <br />that he knew he was shooting at a Florida pan. <br />ther protected by the ESA. (Chief Billie con- <br />tended that it was dark and that he thought he <br />was shooting at a deer.) United States v. Billie, <br />667 F. Supp. 1485 (S.D. Fla. 1987). Similarly, <br />the Fifth Circuit has held that the government <br />is not required to prove that a defendant knew <br />a species was listed as threatened or that he was <br />violating the ESA by illegally possessing or i1. <br />legally importing an animal. In the case of a <br />fisherman, it was sufficient that he knew he was <br />in possession of a turtle. United States v. <br />Nquyen, 916 F.2d 1016 (5th Cir. 1990). <br />Responsibility for criminal prosecutions <br />under the ESA rests with the Department of <br />Justice, operating primarily through its United <br />States Attorneys offices and the Wildlife and Ma. <br />rine Resources Section of the Environment and <br />. Natural Resources Division. Case investigation <br />and referral for prosecution are generally made <br />by the two federal agencies charged with im- <br />plememation and administration of the Act: FWS <br />(a subagency in the Department of the Interior) <br />and the National Marine Fisheries Service <br />(NMFS) (a subagency within the Department of <br />Commerce). <br />A wide range of unlawful conduct is pro- <br />hibited under ESA ~ 9, 16 u.s.e. ~ 1538. Crim. <br />inal charges are filed under the ESA based on <br />unlawful conduct ranging from the illegal hunt. <br />ing of protected species in the United States to <br />importing listed species from abroad (either <br />alive for sale to the pet trade or dead as hunting <br />trophies) or using such species as jewelry or for <br />various other purposes. Attempts to take or im. <br />pan a listed species also constitute violations <br />of the Act. (See 16 U.S.e. ~ 1538 for a complete <br />list of prohibited acts.) Often government pros- <br />ecutors combine charges under the ESA with <br />other offenses that may have been committed, <br />including violations of the Lacey Act, 16 U.S.e. <br />~~ 3371-78 (1988) (making a federal offense <br />violations of state, federal or foreign fish or <br />wildlife law ortreaty involving fish or wildlife), <br />and violation of conspiracy, customs, federal <br />money laundering, smuggling or weapons stat- <br />utes. Criminal sentences imposed under the ESA <br />and other federal wildlife statutes, including the <br />Lacey Act, are governed by the Federal Sentenc- <br />ing Guidelines, which became effective No- <br />vember 1,1987. Applying the guidelines is nOl <br />a simple task, and revolves around the matbe- <br /> <br />matical computation of an adjusted offense level <br />and criminal history category according to a <br />fairly rigid set of factors, and the plotting of <br />these items on a sentencing grid from which a <br />sentencing range is adduced. The guideline <br />governing calculation of penalties for wildlife <br />offenses (guideline 2Q2.1) under the ESA and <br />other statutes has been amended several times, <br />resulting in a generally escalating sentencing <br />range. <br />The most imponant factors that influence <br />the final offense level for a wildlife violation <br />are the market value of the fish or wildlife in- <br />volved and the criminal history of the defen. <br />dant. Other factors include whether the crime <br />involved a commercial purpose, a pattern of <br />similar offenses, a quarantine violation or risk <br />of disease transmission, and whether the defen- <br />dant played a leadership role in the crime or <br />has accepted responsibility for his acts. Signif- <br />icant sentences have already been dispensed by <br />the courts in ESA cases. For example, a defen- <br />dant in Florida was recently sentenced to thirty <br />months in prison for violations involving the <br />illegal collection of loggerhead sea turtle eggs. <br />United States v. Alvin George Keel, Case No. <br />n (S.D. Fla., Nov. 25, 1992). The defendant, <br />who pled guilty to all charges, was convicted <br />in 1991 of a similar offense and had been sen. <br />tenced to twenty-two months of imprisonment. <br /> <br />Civil Penalties and Forfeiture <br /> <br />The government does not, however, rely <br />solely on criminal prosecutions to ensure ESA <br />compliance. Section II of the Act also provides <br />a number of frequently employed civil reme. <br />dies. Section II (a) provides for the assessment <br />of administrative civil penahies of up to <br />$25,000 per violation. 16 U.S.e. ~ 1540(a). <br />The National Oceanic and Atmospheric Admin- <br />istration (NOM) in particular successfully as. <br />sesses civil penalries on a regular basis. In some <br />instances the penalties obtained are substantial <br />and compare favorably with criminal fines. Re- <br />cently, a California irrigation district, which had <br />failed to screen its pumping diversion facilities <br />resulting in the taking of juvenile Sacramento <br />winter run chinook salmon, agreed to pay civil <br />penalties of $750,000. This amount was upheld <br />by an administrative law judge. See In re An- <br />derson-Cottonwood Irrigation Dist., No. 233. <br />028 (Sept. 22, 1992). <br />Alleged violators are entitled to a formal <br />evidentiary hearing before an adminisuative <br />law judge prior to assessment of a civil penalty. <br />See 16 U.S.e. ~ 1540(a)(2) and 15 e.F.R. <br />~ 916.904 (1992). Violators may also appeal <br />agency assessment of a penalty to a United States <br />district court. Unlike the standard of proof in a <br /> <br />NR&E/SUMMER ]90J <br /> <br />Often government <br />prosecu. tors <br />combine cbarges <br />under the ESA with <br />other offe>lses that <br />may halle bee1l <br />committed. <br /> <br />31 <br />
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