Overcriminalization and the Endangered Species Act: Mens Rea and Criminal Convictions for Take

Abstract

The Endangered Species Act makes it a crime to “knowingly” take any member of an endangered species. The government has generally interpreted this to require a defendant to have knowledge of each of the elements of the offense, i.e. that his actions will result in take and what species will be taken. However, it has not been consistent in this interpretation. In several cases, it has argued that the defendant need only have knowingly engaged in an act; knowledge of its consequences for a particular species is unnecessary. When challenged, this interpretation has been upheld by the Fifth and Ninth Circuits.

This article argues that the statute requires knowledge of all of the facts constituting the offense, including the identity of the species. The Supreme Court generally presumes that knowledge of the facts constituting an offense is required, out of a fear of criminalizing ordinary, apparently innocent conduct. The breadth of the Endangered Species Act’s take provision and the number and obscurity of the species subject to it counsel strongly in favor of interpreting the statute consistent with this general rule. Policy objections to this interpretation are better addressed through other provisions of the act.

Keywords: Endangered Species Act, Endangered Species, overcriminalization, crime, criminal, criminal law, mens rea, guilty mind, scienter, environment, wildlife, animals, Supreme Court, Ninth Circuit, McKittrick, McKittrick policy, knowing, knowingly, conservation

JEL Classification: K32, K14, K23