Who’s on first?
As I researched permits and the permitting process while preparing for my defense in the Macho B case I had a constant headache. Very few people in AZGFD and USFWS grasped what permits were needed to incidentally or intentionally capture a jaguar and the process and requirements needed in order to fulfill and honor the actual permits. As one USFWS official stated, “Nobody really has a clear understanding of how this permitting works, quite frankly.” He went on to say, “I don’t know that there’s anybody else in the nation that does permitting the way Game and Fish’s (AZ) permitting process has morphed into.”
There are two permits repeatedly referred to in regard to Macho B’s capture. The first is the Section 10 permit [10 (a) 1 (A) ]. According to a USFWS official, “Section 10 permits are “our” authorization for incidental takes of species to private entities. The state is included because they are a non-federal entity.” Even though “jaguar” had previously been listed on AZGFD’s Section 10 permit it wasn’t on the version that was applicable in 2009. So AZGFD repeatedly referred to the next permit that was often mentioned, the Section 6 Agreement, as their authority to “incidentally” capture a jaguar. Again, according to a USFWS official: “The USFWS had a Section 6 agreement, under the Endangered Species Act, with the State of Arizona Fish and Game Department which covers the incidental take of species for actions done under that agreement. The states use that agreement to get their Federal Aid money from the USFWS.” Another USFWS official categorized the Section 6 this way: “The Section 6 agreement provides no authority for the take of an endangered species. That agreement talks about cooperative agreements, MOUs, MOAs and basically, funding. It is how to move money from the “feds” to the states. It’s how the states and the USFWS are going to cooperate on recovery plans. This is how we’re going to play nice.”
AZGFD violated their Section 6 agreement by not consulting with the USFWS prior to placing snares in Macho B’s habitat. Assuming Federal Aid is now aware of AZGFD’s violation they have the option to pull all funding for this project.
According to a USFWS official that issued Section 10 permits for research and recovery in the Southwest Region: “If AZGFD was doing mountain lion research and did not know that a jaguar was in the area, they would be covered by their permit. If AZGFD knew that a jaguar was in the area of their mountain lion research [which they did], then AZGFD was not covered by any federally issued permits.” One of the USFWS SAs questioning this official gave the following scenario: “Say the same guy that was downloading the pictures of the jaguars is the same guy setting the snares for another study [referring to McCain]. He’s actually working both studies. Would this fit under the current permit(s)?” The official answered, “No.” This official also said that Smith and Crabb whom actually tranquilized, handled, and collared Macho B were also not covered under any permits. This is because neither AZGFD nor the Borderlands Jaguar Detection Project (BJDP) amended their Section 10 permits with the USFWS to include activities and personnel from both projects. AZGFD and BJDP were cooperators on the AZGFD lion and bear snaring project not just because McCain was pulling double duty by working on both projects but because they were utilizing the same study area (an AZGFD snare within feet of a BJDP camera) and AZGFD was utilizing BJDP photo data to determine where the AZGFD snares would be set to meet their project’s goals of capturing and radio collaring lions and bears [and, apparently Macho B]. In addition, not a one of them was listed on BJDP’s or AZGFD’s permits.
Another official with USFWS whom was knowledgeable about permits stated: “If the jaguar capture was purposeful then AZGF should have assembled a risk assessment team [as determined in the jaguar conservation framework that discusses jaguar capture protocols] which would have included a representative from USFWS… if you do not follow the conditions of the permit then the permit is invalid. Now, if the capture of the jaguar was incidental then because of an ongoing AZGF mountain lion/bear study, was it funded or approved by any Federal involvement. If funded by USFWS, Federal Aid then under Section 7 a biological opinion should have been completed by AZGF with consultation with USFWS.”
There was no biological opinion, aka, environmental assessment done by AZGFD nor did they engage in a Section 7 consultation with the USFWS. Under the AZGFD-USFWS Comprehensive Management Systems agreement it states: “The responsibility for reviewing proposed jobs for possible impacts to federal listed endangered and threatened species is assigned to the Department’s (AZGFD) Nongame and Endangered Wildlife Branch. This step is part of our EA (Environmental Assessment) checklist. If any listed species may be affected by any activity the Department undertakes the Department will ensure compliance with Section 7 of the Endangered Species Act.”
The EA and Section 7 should have occurred BEFORE the lion/bear project set and activated their first snare.
AZGFD never initiated an EA or Section 7 consultation for the lion/bear snaring project despite receiving federal funds through Federal Aid. These checklists are not optional but mandated by policy and law. AZGFD cannot claim ignorance of these checklists and consultations as the procedures to address any impact to a threatened or endangered species during the course of any AZGFD activity are outlined and defined in their own documents.
AZGFD did not have a permit to intentionally or inadvertently capture a jaguar because they violated the federal law known as the Endangered Species Act (ESA) by not initiating any consultation/review/checklist for the lion/bear project that was occurring in known jaguar habitat and when it was known Macho B was present. AZGFD violated every permit they had, nullifying all of them, and thus, the AZGFD lion/bear project was an illegal study and Macho B’s capture was in violation of the ESA.