Saying it doesn't want a rerun of jaguar Macho B's ordeal, a Tucson environmental group filed suit Thursday charging that the state Game and Fish Department captured the jaguar without a proper permit.
The Center for Biological Diversity's suit seeks a federal court ruling that the state didn't have the legal authority to capture the jaguar accidentally — which has been the department's position about the capture — or deliberately. That has been alleged by a research technician for a nonprofit group who said she deliberately placed female jaguar scat at a trap site to lure a male.
The question of legal authority to capture Macho B is already part of a broader federal criminal probe of the jaguar's Feb. 18 capture and subsequent recapture and death by euthanasia on March 2. The U.S. Attorney's Office is expected to decide by the end of the year whether the case merits prosecution of anyone.
Center officials, however, said their prime interest is not to seek retribution for Macho B's capture, but to "prevent another jaguar from suffering what Macho B suffered through," said Michael Robinson, an activist for the center in Silver City, N.M.
"With the department's current position in force, they can engage in any number of other activities that may take jaguars," Robinson said. "They've written up documents about what to do if a jaguar is sighted, about who to call to get people out there with the dog team or tranquilizer darts. At any time, someone calls them up and says, 'I just saw a jaguar,' these people can go into action to go take a jaguar because they claim they have legal authority even though they haven't had it."
Officials of Game and Fish and the U.S. Fish and Wildlife Service have said publicly since Macho B's capture that they believed that the state had a valid federal permit to capture the animal. They have not explained that position in detail, and internal memos have raised questions about that authority. On Thursday, officials continued to decline to elaborate on that view, due to the continuing criminal investigation and the new litigation.
"I can't discuss the permit situation given that the investigation is going on. God only knows how long it will be before we hear the results," said Steve Spangle, the chief field supervisor for the service's Arizona offices, based in Phoenix. "All that will come out in the investigation."
In a prepared statement, Game and Fish said it would not comment on pending litigation but wanted to emphasize three points.
First, it "has at all times" operated under a permit issued by the service authorizing take of imperiled species for purposes consistent with conservation objectives.
Second, the department has stopped work since April on its research on large carnivores such as bears and mountain lions that could lead to an inadvertent jaguar capture, Game and Fish said.
Finally, the department has played a prominent role in the conservation of threatened and endangered species in Arizona and has allocated significant resources over the years to the conservation and recovery of listed species, the statement said.
The question of the state's authority under its permit is muddied by the fact that the permit's language is vague.
The permit authorizes Game and Fish to "take any federally listed threatened fish or wildlife for conservation purposes that are consistent with the purposes of the (Endangered Species) Act." Those purposes must be consistent with the act and with a separate conservation agreement between the state and federal agencies.
The state's work plan under that agreement that deals with "endangered cats of the Southwest" does not specifically mention capturing a jaguar. Neither does the permit. The work plan's only mention of the jaguar is that the state should put into effect a bi-state Jaguar Conservation Framework "and its associated conservation strategies for Arizona and New Mexico."
The framework, written in 2007, also says nothing about capturing a jaguar.
It said that when jaguars are found alive in either state, authorities "will make a concerted effort to monitor their movements through the least intrusive but most effective means."
In the center's lawsuit, it said that despite the state's halt of the bear-lion research, "activities that may result in jaguar capture and/or collaring may be resumed at any time without notice to the center or public, and without a valid take permit."
In the immediate days after Macho B's capture and death, Game and Fish and Fish and Wildlife Service officials expressed questions in internal memos and e-mails about whether the state's permit allowed for accidental capture of a jaguar or whether another permit was needed for future captures.
But on March 11, Deputy Game and Fish Director Gary Hovatter wrote that service officials had said in a telephone call that the state permit covers both deliberate and accidental jaguar captures.
"That has been our interpretation for years," wrote Hovatter.