Grizzly Bear “Taking” Conviction Reversed by 9th Circuit

By John M. Simpson

On June 26, 2018, the U.S. Court of Appeals for the Ninth Circuit reversed the conviction of a Montana man who had been convicted of a criminal violation of the Endangered Species Act (ESA) for shooting and killing a grizzly bear that was harassing the horses in a pasture behind the defendant’s rural home.  United States v. Charette, ___ F.3d ___, No. 17-30059 (9th Cir. June 26, 2018).  The government had charged the defendant with one count of “taking” a threatened species in violation of the ESA.  The defendant was convicted in a bench trial before a magistrate judge, and the conviction was affirmed by the district court.In the subsequent appeal, the Ninth Circuit rejected the defendant’s argument that the government bore the burden of proving that defendant did not have a valid permit authorizing the “take.”  Instead, based on the language of the ESA (16 U.S.C. § 1539(g)), the court determined that the defendant bore the burden of proving that his conduct was covered by a valid permit.  Slip op. at 11.  Because the defendant presented no evidence as to the existence of such a permit, this ground for appeal was rejected.  Id.

The court of appeals also rejected defendant’s argument that he was entitled to a jury trial based upon the nature of the offense with which he had been charged.  Id. at 12.

However, the court of appeals ruled that the lower court had erred in how it handled the affirmative defense of self-defense.   The ESA provides, at 16 U.S.C. § 1540(b)(3), that it shall be a defense to a prosecution “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.”  The lower court ruled that good faith must be determined using an “objectively reasonable standard.”  Id. at 12.  The Ninth Circuit disagreed, holding that  the standard only required a subjective belief in the need to protect oneself or others:

The subjective standard “is satisfied when a defendant actually, even if unreasonably, believes his actions are necessary to protect himself or others from perceived danger from a grizzly bear.”

Id. at 13 (quoting United States v. Wallen, 874 F.3d 620, 623 (9th Cir. 2017)).  Since, in light of the trial court’s determination to apply the subjective standard, the defendant had elected not to testify in support of his claim of self defense, the court of appeals remanded for further proceedings.  Id. at 14.  The court reached this result even though, as the court noted, the applicable ESA regulation (50 C.F.R. § 17.40(b)(1)(I)(B)) requires that a grizzly bear “taking” done in self-defense be reported within five days, which the defendant did not do.  Slip op. at  4-5.