Sunday's Star carried a story by this reporter about testimony from a Game and Fish Department researcher to the effect that Emil McCain, the jaguar researcher who pleaded guilty in the criminal case of Macho B's capture, was working for the Game and Fish Department at the time of capture. Game and Fish officials, however, have maintained and will continue to maintain that McCain was out of their service by Feb. 18, 2009 although he had worked as a state subcontractor in late 2008.
McCain and his non-profit group, the Borderlands Jaguar Detection Project, almost became separate contractors to Game and Fish about that time, however. To an attorney actively involved in the case, those facts lend credence to his view that McCain was working for the state at that time. Game and Fish strongly disagrees, saying the attorney is grasping at legal straws.
Why this all matters is that Michael Piccarretta, the attorney for Janay Brun, the jaguar whistleblower, is going to argue in court that her client, facing conspiracy charges in the Macho B case, was following orders back in early 2009 from Emil McCain--who Piccarretta says was an agent for the state -- when she placed jaguar scat at the eventual trap site. The capture occurred Feb. 18, 2009, in the Atascosa Mountains near the Mexican border.
McCain had been trapping mountain lions for the state down by the Mexican border -- and near Macho B's ultimate capture site -- as recently as November 2008. He was last paid in December 2008, working through another private contractor. His work was part of a study of black bear and mountain lion movements at and near the Mexican border--the study in which Macho B was captured in a snare trap.
The BJDP had also had a contract with the state as recently as early 2008 to photograph jaguars and other wildlife across Southern Arizona with remote cameras.
In early 2009, the state had solicited and accepted a bid from McCain to be one of several bidders for a new lion-catching contract. On March 4, 2009, the state sent McCain a notice that he could expect to be awarded a contract. On Feb. 12, McCain wrote Thorry Smith, the Game and Fish biologist who was at the scene of the Feb. 18 jaguar capture, saying, "I just got my contract from AZGFD."
Kirby Bristow, a Game and Fish biologist who was running the bear-lion study, testified in August 2009 during Game and Fish's internal investigation of the capture that McCain never got paid for his time during the capture, "but in my mind he was working for us." In July 2009, Bristow testified that had McCain caught a lion, he would have been paid for it. Department spokesman Tom Cadden, however, fired back that McCain never got a contract so he never worked for the state in 2009.
"Bristow is not the contracting officer for the department," AZGFS spokesman Jim Paxon said. "Kirby is a game manager and researcher."
On March 13, 2009, the state also notified the jaguar detection project in a letter that it had been awarded a $30,000 grant for more camera work. A copy of that letter has handwritten notes from Game and Fish Deputy Director Gary Hovatter scribbled on it, one of them saying that Game and Fish Endangered Species Coordinator Gary Johnson had added contract language requiring "coord. (presumably coordination) and separate authorization for any/all actions related to deliberate capture of jaguars."
Later, Game and Fish decided to halt lion trapping by the border for at least awhile, and it never gave McCain a contract for that work. Nor did it ever send BJDP a final contract for the camera work.
Game and Fish's current position amounts to "a distinction without a difference," Piccarreta said in an interview, since McCain was clearly the point man for opening snares at the eventual Macho B trap site on Feb. 4, 2009. "Game and Fish can't say he was not there on their behalf."
Spokesman Paxon replied that while Game and Fish knew McCain was opening snares, he was acting only as an employee of a private contracting firm or of the jaguar detection project.
"I think Mr. Piccarreta is getting down to very fine legal points," Paxon said.