TO: Supervisory Attorney Bennardo

FROM: Law Clerk Nymphodora Tonks

DATE: October 20, 2015
RE: Alomar matter, 15-216, Knowing taking of endangered gray wolf
Discussion
Andy Alomar likely committed a knowing taking of the grey wolf.
Additionally, 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
unlawful 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
defense 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
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 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
animal knowingly which is a clear violation of the Endangered Species Act. Thus,
Andy Alomar likely committed a knowing taking of the grey wolf. Furthermore,
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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
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
shooting 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
voluntarily 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
discharge his firearm, or the weapon malfunctioned, or similar circumstances

occurred. 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, 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
knowingly 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
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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 probability 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 distance, Andys weapon did not misfire or malfunctioned in any
other way. Therefore, even though not intending to, Andy Alomars act of shooting
the grey wolf cannot be said to be completely unintentional. Hence, Andy Alomar
likely committed the act of knowingly taking the grey wolf.
Defense
AndyAlomardoesnothaveameritoriousdefenseclaimforshootingthe
greywolfforhisdefense,orthatofhisdogSally.Itshallbeadefenseto
prosecutionunderthissubsectionifthedefendantcommittedtheoffensebasedon
agoodfaithbeliefthathewasactingtoprotecthimselforherself,amemberofhis
orherfamily,oranyotherindividual,frombodilyharmfromanyendangeredor
threatenedspecies. 16U.S.C. 1540(b)(3)(2012).However,AndyAlomardid
notshootthegreywolfasanactofselfdefense,furthermore,hisdogSallyisnota
familymemberoranindividual,hence,hecannotclaimdefenseinhercaseeither.
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Therefore,AndyAlomardoesnothaveameritoriousselfdefenseclaimforhimself
orforthedefenseofhisdog,Sallyunder16U.S.C. 1540(b)(3)(2012),for
knowinglytakingthegreywolf.
DefenseofSelf
AndyAlomardidnotshootthegreywolfinordertodefendhimself,and
therefore,hedoesnothaveameritoriousselfdefenseclaim.Iftheoffenseof
takinganendangeredspecieswascommittedbythedefendantbasedonagood
faithbeliefthathewasactingtoprotecthimselffrombodilyharm,onlythen
couldheclaimselfdefense.16U.S.C. 1540(b)(3)(2012).Apersonmustbein
imminentorimmediatedangerofbodilyharminordertoavailhimselfofaclaim
ofselfdefense ifheknowinglytakesanendangeredspecies.Shuler v. Babbitt, 49
F. Supp. 2d 1165, 1169 (D. Mont. 1998). Shular also states that, in order to have a
self defense claim, the defendant should neither be the aggressor, nor should have
provoked the conflict. Id. Lastly,whereadefendantpresentsevidencethatheacted
inselfdefenseinkillingananimaloftheendangeredspecies,governmenthasto
disproveselfdefensebeyondreasonabledoubtinordertochargethedefendant
withknowinglytakingaspecies.United States v. Clavette, 135 F.3d 1308, 1311
(9th Cir. 1998).

Theabovestatedcaselawsmakeitclearthat,unlessapersonisinimminent
danger,andhasnotprovokedaconflictwiththethreatenedspecies,itisillegalto
knowinglytakeananimaloftheendangeredspecies.Applyingthesamecaselaws
tothesituationofAndyAlomar,itcanbeseenthatatthetimeofshooting,Andy
wasstandingatthedoorofhiscar,approximately80feetawayfromthegrey
wolf.Whenhefirstspottedthegreywolf,itwasatadistanceof125fromAndy
Alomarscar,andevenwhenhewenttothecartoretrievehispistol,evenatthat
time,thegreywolfwasatadistanceofmorethan100feetfromhiscar.From
theseinstancesitcanbeseenthat,atbothtimesAndyAlomarhadample
opportunitytogetintohiscaranddriveawaysafely.Therewasnoimminent
dangertohimofanykind,oranyotherthreatofbodilyharm.Hence,therewasno
reasonforAndyAlomartoshootthegreywolfinordertoprotecthimself.
Therefore,AndyAlomardoesnothaveameritoriousclaimthatheshotthewolfin
selfdefenseunder16U.S.C. 1540(b)(3)(2012).
DefenseofDog
AndyAlomarcannotclaimdefenseofhisdog,Sallyasareasonof
knowinglytakingthegreywolf.Adefendantcannottakeananimalofthe
endangeredspeciesunlesshewasactingonagoodfaithbelieftoprotecta
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memberofhisorherfamily,oranyotherindividual,frombodilyharmfromany
endangeredorthreatenedspecies. 16U.S.C. 1540(b)(3)(2012).TheESA
makesnomention,however,ofarighttokillamemberofathreatenedspeciesin
defenseofproperty. Christy v. Hodel, 857 F.2d 1324, 1329 (9th Cir. 1988).
However, HodeldoesmentionthateventhoughtheU.S.Constitutiondoesnot
explicitlyrecognizearighttokillfederallyprotectedwildlifeindefenseof
property,id.at1329,suchregulationsdonotforbidplaintiffsfrompersonally
defendingtheirpropertybymeansotherthankilling animalsoftheendangered
species.Id. at 1331.
Itcanbeinferredfromtheabovestatedruleandthecaselawthat,Andy
Alomarcouldhaveonlytakenthegreywolftoprotecthimselforanotherperson
frombodilyharm,butnothisproperty.HisdogSallyfallsunderthelatercategory,
andtheEndangeredSpeciesActinnowayjustifieskillingananimalprotectedby
it,inordertoprotectthedefendantsproperty.SincetheESAdoesnotprohibit
protectingonespropertybyothermeansapartfromkillingananimalofthe
endangeredspecies,hence,inordertosavehisdogSally,ifAndyAlomarwould
havebeenabletodrawthegreywolfawayinamannerthatdidnotkillhim,orhad

thebulletdischargedbyhim,actuallyhitthetree,thatactprobablywouldhave
beenpermitted.However,sincethatdidnothappen,therefore,AndyAlomardoes
nothaveameritoriousdefenseclaimforshootingthegreywolfinordertoprotect
hisdog,Sally.