The legality of jaguar Macho B's capture in 2009 is at the heart of a legal dispute over whether charges should be dismissed against a research technician accused of playing a part in snaring the animal.
This week, a federal magistrate will hear defendant Janay Brun's attorney argue that a valid permit existed for the capture and provides "an absolute defense" against the criminal charges she is facing. Defense attorney Michael Piccarreta has filed a motion to dismiss the charges against Brun.
Federal prosecutors, however, are saying there was no legal authority for anyone to capture Macho B - not even state or federal biologists, let alone Brun, who worked independently. Their statement, contained in a Jan. 7 response to Piccarreta's motion, is the first time prosecutors have said explicitly that no valid permit existed for the capture of Macho B, the last jaguar known to live in the wild in the United States.
Prosecutors have accused Brun of illegal "take" of an endangered species and conspiracy to "take" an endangered species. Under federal law, take means to kill, shoot, harm or harass an endangered animal or plant, among other actions. Brun has admitted placing jaguar scat at the Southern Arizona site of the snare trap where Macho B was captured Feb. 18, 2009.
The motion to dismiss the charges against Brun will be argued Wednesday before Federal Magistrate Thomas Ferraro. Brun's trial, repeatedly delayed, is scheduled to start on April 4 in front of U.S. District Judge Cindy Jorgenson.
The question of a permit for the Macho B capture - in essence, the question of whether the capture was legal - has bounced back and forth among state and federal officials and environmental groups since the animal was euthanized March 2, 2009.
That happened 12 days after Arizona Game and Fish Department biologists found the 15-year-old animal caught in a snare trap in an oak woodland canyon near the Mexican border south of Arivaca. The animal was then radio-collared, released into the wild and 12 days later recaptured, hours before it was put to sleep, after its movements in the wild slowed dramatically.
In an interview with the Star in late March 2009, Brun admitted putting the scat at the site where Macho B was captured, saying she did so on orders from her supervisor, biologist and jaguar expert Emil McCain. McCain denied the charges for more than a year until admitting them and pleading guilty in May 2010 to violating the U.S. Endangered Species Act in connection with the jaguar capture.
Last month, Piccarreta wrote in his request for dismissal of Brun's charges that a series of state-federal agreements plus an actual written permit authorized intentional or accidental capture of a jaguar. Among them:
• A 1985 cooperative agreement between the U.S. Fish and Wildlife Service and Game and Fish to develop species conservation programs and projects.
• A 2008-09 work plan saying that a designated Game and Fish employee or agent may take federally protected wildlife for conservation purposes. Piccarreta wrote that McCain was working for Game and Fish during the jaguar capture, which Game and Fish has denied.
• A 2007 federal permit says that a designated Game and Fish employee or agent may take endangered species for conservation purposes consistent with the species act.
• The federal government's Macho B criminal investigative report contains numerous statements from Game and Fish and Wildlife Service officials saying that Game and Fish had a valid permit, Piccarreta wrote. He cited statements from eight state and federal officials interviewed in that investigation.
"None of these … officials ever indicated at anytime that any additional authority of permits … would be required for the lawful capture and collaring of Macho B," Piccarreta wrote.
But in their response, prosecutors argued that Brun's placement of the scat was not authorized by the state or federal government or covered by a permit or agreement. That's because a take of Macho B would not be consistent with the permit's and the state-federal endangered species agreement's purposes to conserve and protect wildlife, the prosecutors said.
"Macho B's deteriorating health and euthanization after the take and subsequent release evidences that his take would not have served these ends," prosecutors wrote.
Shortly after Macho B's death, Arizona Game and Fish and U.S. Fish and Wildlife Service officials said they believed such a permit existed. But the Center for Biological Diversity sued Game and Fish to make sure that no future jaguar captures occurred without a more detailed permit.
In its report on the Macho B case about a year ago, the U.S. Interior Department Inspector General's Office said there was no valid permit. When biologist McCain pleaded guilty to illegal capture of an endangered species in May 2010, he admitted he had no valid jaguar capture permit.
In June 2010, a Fish and Wildlife Service official said the criminal investigation of the Macho B capture revealed unanswered questions about whether it was covered by a valid permit. The service granted Game and Fish a new permit that month, spelling out that future jaguar captures are allowed under certain conditions.
Then, the Center for Biological Diversity dropped its lawsuit against Game and Fish in July 2010 on the grounds that the new permit made irrelevant the question of whether the state had previously had such a permit.
That dismissal "speaks volumes" about whether Game and Fish had the proper permit for Macho B, Jim Paxon, a Game and Fish spokesman, said last week.
"We have maintained all along that we have the appropriate permits," Paxon said Thursday.
But an activist with the Center for Biological Diversity said its agreement to dismiss the suit doesn't make Game and Fish's view about the permit valid.
"It speaks for itself that Game and Fish went ahead and applied for a permit at a time when they were sued for not having had one," the center's Michael Robinson said Friday.
Contact reporter Tony Davis at firstname.lastname@example.org or 806-7746.