Arizona's Game and Fish Department may have lacked the proper permit to capture a jaguar when Macho B stepped into a snare trap in Southern Arizona's oak woodlands last February.
The big cat was euthanized 12 days later after veterinarians determined he had irreversible kidney failure.
Since the capture, federal and state officials have said unequivocally that the U.S. Fish and Wildlife Service had granted the state a permit to capture a jaguar, one of the rarest animals living in this country.
But a review of state and federal documents and e-mails about the permit issue raises questions as to whether the state actually had that permission.
The records show that there was uncertainty about that question among biologists for the two agencies. Two days after Macho B's capture on Feb. 18, a service biologist wrote that the permit question was "a big oops," in an e-mail obtained by the Star under the federal Freedom of Information Act.
Other documents obtained through the FOIA show that as recently as 2006, Game and Fish had a permit containing clear, explicit approval to capture a jaguar for scientific research. But for reasons not publicly disclosed, the agency had that provision deleted from its general endangered species capture permit, which took effect in 2007.
Nowadays, when Fish and Wildlife Service officials explain how the state has permission to capture a jaguar, they cite three documents: the general endangered species capture permit and two documents outlining programs and plans for managing jaguars (one also mentions other imperiled species).
None of the documents says anything about capturing a jaguar. By contrast, they lay out plans and conditions to capture more than 30 other species. "Absolute authorization"
Fish and Wildlife Service biologist Mike Martinez said the three documents work together to authorize a capture. He declined to elaborate because the service's law enforcement branch is conducting a criminal investigation into Macho B's capture and death. One issue under investigation is whether the state had the proper capture permit.
In April, Arizona Game and Fish spokesman Bob Miles said the same three documents gave permission to "take" a jaguar.
"We had absolute authorization, documentation in place with the Fish and Wildlife Service to do the work that we continue to do on jaguars," he said.
Miles declined last week to say why Game and Fish deleted specific authorization to capture a jaguar, and said the department would comment after the investigation is over.
In his April interview, he said jaguar capture isn't spelled out in the permit "because we had no intention of killing a jaguar." Under the Endangered Species Act, a "take" — an otherwise illegal act requiring a federal permit — can mean killing, harming or harassing an imperiled species.
Nicholas Chavez, the service's special agent in charge of the criminal investigation, also declined to comment. E-mail exchange
The permit came up in an e-mail exchange among Fish and Wildlife Service biologists in Tucson and Albuquerque on Feb. 20, two days after Macho B's capture.
"Uh oh, the AGFD permit with the jaguar language expired in 2006. . . . The new one (good until 2011 . . . ) doesn't include any jaguar language," wrote Erin Fernandez, a biologist in Fish and Wildlife's Tucson office. "Since the capture was incidental to their other authorized activities, are they covered under the permit for future capture?"
In reply, Sarah Rinkevich, service biologist and a University of Arizona graduate student, said she thought the capture may have been covered, based on a state-federal endangered species agreement that is related to the endangered species permit.
"This is a big oops, however," Rinkevich added.
In a follow-up e-mail, Vanessa Martinez, in the service's Albuquerque office, said the federal regulations for endangered species allow any state agency to take an endangered species if there is a state-federal agreement in place, which she believed there was.
But while she thought the regulations left the agencies "covered" legally for an accidental jaguar capture, she still wondered if officials needed to amend the state endangered species permit "to include the jaguar part."
To the director of the environmentalist Center for Biological Diversity, the exchange suggests a breakdown of federal oversight of the jaguar capture and verges on collusion to cover up an illegal capture of endangered species.
Game and Fish officials, instead of saying "Let's investigate whether the taking was illegal," downplayed uncertainties over the permit as "a big oops," said center Director Kieran Suckling. Suggestion of uncertainty
An internal Game and Fish Department e-mail exchange also suggests that agency's officials weren't certain about whether an accidental jaguar capture had been authorized. It, too, was obtained from the service under the Freedom of Information Act.
To legally but accidentally capture an endangered species, a person, company or agency needs what's called an "incidental take permit," allowing that party to harass, harm or kill the species in the course of another action, such as clearing trees for timber production or bulldozing land for a subdivision. Permits authorizing deliberate capture are issued for scientific purposes or to improve a species' chances for propagation or survival.
On March 4, two days after Macho B was euthanized, Game and Fish official Eric Gardner wrote to a colleague that "we also need to talk about amending the permit for future incidental take (and any related follow up actions). Not sure we need to go there soon, but since we can't plan on incidental, we may want to be prepared in case it happens." Gardner is the department's non-game branch chief.
In his e-mail to Terry Johnson, the department's endangered-species coordinator, Gardner wrote that he didn't know if Johnson had electronic or paper documentation for the recapture. If he didn't, Johnson should document a conversation he had had about the recapture with Benjamin Tuggle, the director of the service's Southwest regional office, Gardner wrote.
"I suspect you have this covered, but just don't want something to fall through the cracks," Gardner said.
In a reply that day, Johnson wrote, "I look forward to discussing the incidental take issue and will be happy to assist in requesting authorization for future incidental or intentional capture and collaring." Notice of intent to sue
The Center for Biological Diversity has filed a notice of intent to sue over the permit issue. It noted Game and Fish's claim that the capture was accidental. The department's Johnson wrote in a report in late February that "incidental capture and collaring of the jaguar has been authorized by the U.S. Fish and Wildlife Service since 1998."
The center's requests for a copy of an incidental-take permit have not produced the document, the notice said.
"Unless and until such documents are produced, the center must conclude that AZGFD was not permitted to incidentally take jaguars in connection with the black bear/mountain lion study," the notice said. Game and Fish's response
On its Web site, Game and Fish posted a statement responding to the lawsuit notice, pointing out that on April 1, the center asked the U.S. Fish and Wildlife Service to investigate Macho B's capture and death.
"That investigation is now being conducted," the statement says. "Only the Center for Biological Diversity can now explain why they have issued a notice of intent to sue the Game and Fish Department prior to the conclusion of the investigation they called for and supported in April. While the department is still reviewing the notice, our initial read does not indicate any substantive difference in the allegations in the notice and those issues that are part of the ongoing investigation."
In reply, center Executive Director Suckling said the service's investigation is criminal, while the center's lawsuit will be civil, aimed not at prosecution but at preventing future jaguar captures without proper permits.