{"id":51,"date":"2018-06-27T08:51:19","date_gmt":"2018-06-27T12:51:19","guid":{"rendered":"http:\/\/blogs.duanemorris.com\/animallawdevelopments\/?p=51"},"modified":"2018-06-27T08:51:19","modified_gmt":"2018-06-27T12:51:19","slug":"grizzly-bear-taking-conviction-reversed-by-9th-circuit","status":"publish","type":"post","link":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/2018\/06\/27\/grizzly-bear-taking-conviction-reversed-by-9th-circuit\/","title":{"rendered":"Grizzly Bear “Taking” Conviction Reversed by 9th Circuit"},"content":{"rendered":"

By John M. Simpson<\/a><\/p>\n

On June 26, 2018, the U.S. Court of Appeals for the Ninth Circuit reversed\u00a0the conviction of a Montana man who had been convicted of\u00a0a 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.\u00a0 United States v. Charette<\/em>, ___ F.3d ___, No. 17-30059 (9th Cir. June 26, 2018)<\/a>.\u00a0 The government had\u00a0charged the defendant with one count of “taking” a threatened species in violation of the ESA.\u00a0 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.”\u00a0 Instead, based on the language of the ESA (16 U.S.C.\u00a0\u00a7 1539(g)), the court determined that the defendant bore the burden of proving that his conduct was covered by a valid permit.\u00a0 Slip op. at 11.\u00a0 Because the defendant presented no evidence as to the existence of such a permit, this ground for appeal was rejected.\u00a0 Id<\/em>.<\/p>\n

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.\u00a0 Id<\/em>. at 12.<\/p>\n

However, the court of appeals ruled that the lower court had erred in how it handled the\u00a0affirmative defense of self-defense.\u00a0\u00a0 The\u00a0ESA provides, at 16 U.S.C. \u00a7 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.”\u00a0 The lower court ruled\u00a0that good faith must be determined using an “objectively reasonable standard.”\u00a0 Id<\/em>. at 12.\u00a0 The Ninth Circuit disagreed, holding that\u00a0 the standard only required a subjective belief in the need to protect oneself or others:<\/p>\n

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.”<\/p><\/blockquote>\n

Id<\/em>. at 13 (quoting United States v. Wallen<\/em>, 874 F.3d 620, 623 (9th Cir. 2017)).\u00a0 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.\u00a0 Id<\/em>. at 14.\u00a0 The court reached this result even though,\u00a0as the court noted,\u00a0the applicable ESA regulation (50 C.F.R. \u00a7 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.\u00a0 Slip op. <\/em>at\u00a0 4-5.<\/p>\n","protected":false},"excerpt":{"rendered":"

By John M. Simpson On June 26, 2018, the U.S. Court of Appeals for the Ninth Circuit reversed\u00a0the conviction of a Montana man who had been convicted of\u00a0a 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 … <\/p>\n

Continue reading “Grizzly Bear “Taking” Conviction Reversed by 9th Circuit”<\/span><\/a><\/p>\n","protected":false},"author":317,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[2],"tags":[26,29,6,24,28,31,5,27,7,25,30],"ppma_author":[697],"class_list":["post-51","post","type-post","status-publish","format-standard","hentry","category-general","tag-criminal-offense","tag-endangered-species","tag-endangered-species-act","tag-esa","tag-good-faith","tag-grizzly-bear","tag-john-simpson","tag-self-defense","tag-take","tag-taking","tag-threatend-species"],"authors":[{"term_id":697,"user_id":317,"is_guest":0,"slug":"jmsimpson","display_name":"John M. Simpson","avatar_url":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-content\/uploads\/sites\/38\/2018\/06\/simpsonjohn-125x150.jpg","author_category":"","last_name":"Simpson","first_name":"John M.","job_title":"","user_url":"https:\/\/www.duanemorris.com\/attorneys\/johnmsimpson.html","description":"Read John's bio.<\/a>"}],"_links":{"self":[{"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/posts\/51","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/users\/317"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/comments?post=51"}],"version-history":[{"count":0,"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/posts\/51\/revisions"}],"wp:attachment":[{"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/media?parent=51"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/categories?post=51"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/tags?post=51"},{"taxonomy":"author","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/animallawdevelopments\/wp-json\/wp\/v2\/ppma_author?post=51"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}