Macho B endangered species lawsuit dismissed

Above: Contributed photo of Macho B following capture.  Below: photo by Robin Silver

PHOENIX, July 26 — The Arizona Game and Fish Department and the Center for Biological Diversity (CBD) on Friday agreed to dismiss a federal court suit filed by CBD in 2009 regarding Game and Fish’s endangered species permit.

U.S. District Court Magistrate Judge Jacqueline Marshall reviewed a stipulation for dismissal and issued an order dismissing the lawsuit without prejudice with each party to bear its own costs.

“The Arizona Game and Fish Department has played a prominent role in the conservation of threatened and endangered species in Arizona and has allocated significant resources over the years to the conservation and recovery of federally-listed species,” says Gary Hovatter, deputy director for Game and Fish. “The dismissal of this case will allow us to again focus on those efforts rather than on litigation designed to hinder them.”

The suit filed by the CBD alleged that the Game and Fish Department did not have a permit to carry out activities that might lead to “take” of a jaguar under the Endangered Species Act.

It has been Game and Fish’s position all along, however, that it operated at all times under a permit issued by the U.S. Fish and Wildlife Service that authorized the “take” of threatened and endangered species, including jaguars, for purposes consistent with wildlife conservation objectives.

The Fish and Wildlife Service affirmed Game and Fish’s position when it reissued its endangered species permit on June 14, and took steps to further clarify the department’s authority to manage threatened and endangered species as authorized by the Endangered Species Act.

Arizona Game and Fish remains under a self-imposed moratorium of any activities that might result in the capture of a jaguar until a more than 15-month-long ongoing federal investigation into the death of the jaguar Macho B is concluded.

A central figure in the Macho B incident, Emil McCain of Patagonia, pleaded guilty in U.S. District Court on May 14 for unlawfully taking a jaguar in violation of the Endangered Species Act. McCain’s plea agreement detailed how he placed jaguar scat or directed another person to place jaguar scat at snare sites to intentionally capture a jaguar. Macho B was caught in one of those snare sites on Feb. 18, 2009.

Some previous media reports and other accounts about McCain’s guilty plea have incorrectly identified McCain as an Arizona Game and Fish Department employee or state official. As the Department has previously stated, McCain has never been an employee of the Arizona Game and Fish Department, and by the time Macho B was initially captured, McCain had no contractual or volunteer relationship with the Department. McCain acknowledged during the change of plea proceeding that he was under no authorization from the Department for the intentional capture of a jaguar.