A federal magistrate says one of two criminal charges filed against jaguar-capture whistle-blower Janay Brun should be dropped, although the charge could be filed again.

Magistrate Thomas Ferraro also said this week that a valid permit existed to capture jaguar Macho B nearly two years ago. But he said that it will take a jury trial to determine if Brun's activities were legally covered by the permit.

Recommended for dismissal was a conspiracy charge alleging that Brun "knowingly and intentionally conspired to harass, harm, pursue, trap, capture and collect without lawful permit a jaguar" in violation of the Endangered Species Act.

Brun also is charged with attempting to "take" a jaguar - a legal term meaning harass, harm, pursue, trap, capture and collect - in violation of that federal law. She's scheduled to go on trial in federal court on April 12.

Ferraro wrote Monday that prosecutors failed to properly allege a conspiracy by Brun, whose attorney had moved to dismiss both charges. A conspiracy charge is an accusation of conspiring to commit an overt act. Brun isn't accused of committing such an act - only of attempting to commit one. But the magistrate urged that the charge be dismissed without prejudice, giving the U.S. Attorney's Office a crack at refiling the charge.

Brun, a private research technician, brought to light the deliberate capture of the last jaguar known to live in the wild in the United States. She told the Arizona Daily Star in 2009 that she had placed female jaguar scat at the snare trap site two weeks before Macho B was captured there on Feb. 18, 2009, north of the U.S.-Mexican border.

Emil McCain, a private biologist and jaguar researcher, pleaded guilty last May to illegal take of an endangered species. He admitted ordering a female - he didn't say whom - to put scat at the trap site.

McCain acknowledged not having a valid permit, but Brun's attorney, Michael Piccarreta, has argued that his client was covered by such a permit.

The Arizona Game and Fish Department had a permit agreement with the U.S. Fish and Wildlife Service, Magistrate Ferraro determined. Piccarreta will argue that Brun was operating under orders from McCain and that McCain, as a subcontractor to Game and Fish, was an agent of the state during the capture. The state denies McCain worked for it at the time.

In his recommendation, Ferraro urged the judge who will handle this case, U.S. District Judge Cindy Jorgenson, to find there was a "relevant permit in effect" during the capture. The permit terms require that a capture of an endangered species have a conservation purpose and that the capture is not reasonably anticipated to result in death or permanent disabling of the animal.

The prosecutors have argued that Brun's activities didn't meet those terms because Macho B died 12 days after its initial capture.

"I can't think of anyone who would say it wasn't for conservation purposes," Piccarreta countered. "If it's not for conservation, you would have to have an alternate theory, such as the jaguar was captured for his pelt."

Both sides have two weeks to object to Ferraro's recommendations. Jorgenson can accept or reject the magistrate's findings.

Piccarreta said it's likely he will not object to the recommendations, although he argues that the entire case should be thrown out.

U.S. Attorney's Office spokesman Manny Tarango said: "The case is progressing like we expected. No way is this case dismissed. We are looking forward to the April 12th trial."

Contact reporter Tony Davis at tdavis@azstarnet.com or 806-7746.