Whistling for the Jaguar

The un-redacted story of the jaguar, Macho B's snaring and death.

Archive for the category “The Investigation”

Permits

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.”

The Permits

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.

Determinations

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.

Bottom line 

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.

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The effectiveness of jaguar scat

Contrary to what McCain told me, the jaguar scat he obtained from the Phoenix Zoo and had directed me to place at BJDP cameras and near the AZGFD snare that trapped Macho B was not from a female jaguar in estrus. According to Stuart Wells of the Phoenix Zoo, whom supplied the scat to McCain, the scat was from both the female and male jaguars housed at the zoo and the female was not in heat during the scat collection. It wasn’t until days after McCain received the scat that Wells thought the female had just come into heat because the male jaguar had begun “mewling” at her.

During the criminal investigation, the USFWS Special Agents tasked the USFWS “Jaguar Lead,” Erin Fernandez to investigate the effectiveness of jaguar scat as a scent lure and how that related to the “take” of Macho B. Fernandez reviewed eight studies that used attractants and two of those concluded that the scent lures had no long range effect but were effective to hold the animal in front of a camera long enough to obtain a better photo. Fernandez told the USFWS SAs that, “although jaguars have well developed olfactory organs, there was little published information on the olfactory ability of jaguars.” Fernandez stated, “she did not think that scat would have a long distance effect.”

With regards to using jaguar scat as a scent lure and if that met the criteria for a “take” violation of the Endangered Species Act Fernandez was uncertain. She explained there was too little known about Macho B and when the scat was used in relation to his detections in southern Arizona. If a case for a “take” violation could be made Fernandez suggested the use of jaguar scat as a scent lure could meet the definition of “harass” under the “take” violation of the Endangered Species Act.

Ron Thompson of AZGFD and McCain’s perceived boss on the snaring project also told the USFWS SAs that “there are no published studies on the effectiveness of scat for lions and jaguars.”

Janay Brun, part 3

Transcripts

As I reviewed my transcripts from the USFWS investigation I was reminded of two mistakes which seemed innocuous at the time, but less so when the investigation was closed and no one else was prosecuted. The first one occurred in my first interview with the USFWS Special Agents (SAs). They had asked me to give them some background on myself so I was talking about how I taught myself how to TRACK cats and I often traveled to the borderlands to TRACK. In the transcript the transcriber (most interviews were taped without interviewees’ consent or awareness) turned TRACK into TRAP so the sentence now read: “… just started looking for lion traps and teaching myself how to trap.” This mistake was supposed to be corrected but as I am quoting from the transcripts provided in my FOIA request it obviously wasn’t. The next mistake occurred in the summary notes written by one of the USFWS SAs regarding my last interview. In it the SA writes, “BRUN said she was the only one carrying the scat that day and was the only one aware of scat placed at the snare that eventually caught the jaguar.” The first part of that sentence is true but the last part is false, I did not say that. I, McCain, and Smith were all aware that McCain directed me to place scat out by this snare and that I followed his directive. Fortunately, the interview was recorded and transcribed correctly. I’ve never understood how such a key point in my case could be interpreted/documented by the SA in such a blatantly wrong way.

Motion to Dismiss

For close to a year I was constantly preparing for trial. The AZ U.S. Attorneys Office had balked at my attorney’s offer of Diversion in the beginning and I reciprocated when they offered me a plea deal. My attorney was curious as to why the U.S. Attorneys Office was so intent on prosecuting me since I had followed my supervisor’s directive and believed at the time that permits were in place. He spoke to the Assistant U.S. Attorney’s boss about it and she said the push was coming from her boss in Phoenix. Even my pre-trial and diversion officer couldn’t understand why I was being prosecuted after she read the summary of the case file.

My trial was delayed several times for various reasons. One was to prepare for a Motion to Dismiss. Since AZGFD and the USFWS consistently claimed that AZGFD had a permit to intentionally and unintentionally capture a jaguar then why was I charged with Endangered Species violations? One of the permits the agencies cited as their authority to trap Macho B, the Section 6 Agreement, even had a portion authorizing AZGFD to: “use live traps, pitfalls, mistnets, handheld implements, radiotelemetry, videotape, infrared and digital cameras, vocalization tape playback, pit-tags, and other standard, accepted scientific techniques to conduct population surveys, monitor populations, capture, weigh, measure, photograph, map locality and distribution information, and mark and immediately release unharmed at the capture site unlimited numbers of all sex and age classes of mammals.” We argued that the use of scent lures, even jaguar scat, could be defined as a “standard, accepted scientific technique” and it’s use was not prohibited in any of the AZGFD or USFWS permits. In addition, it was questioned why I was being charged because jaguar scat did not capture Macho B, an authorized AZGFD snare did. Furthermore, several AZGFD and USFWS officials had knowledge of Macho B’s presence near the snares and chose not to shut them down and all preparations for Macho B’s capture, including the placement and activation of the snares were undertaken by AZGFD employees, which included McCain. Also, McCain had sought out jaguar scat from zoos, had brought the scat to be used in the field, and had directed me to place the scat. So how could I be charged with a violation for following a directive given to me by my supervisor whom was also pulling double duty as a state employee with AZGFD and in the presence of Smith, a state employee? In the end, the Motion to Dismiss was denied by the judge because it was determined what and whom was authorized under the permits would have to be decided by a jury.

Authorized by AZGFD Agent

So I would have to prove my activity was authorized by AZGFD by proving that McCain was their agent at the time he directed me to place the scat. At this point, AZGFD had disowned McCain. But McCain had been an agent of AZGFD prior to the snaring project. He was on the scientific advisory board for the AZGFD/NMGFD Jaguar Conservation Team and AZGFD, along with USFWS were the largest sources of funding for BJDP, a project turned over to McCain. But in regard to the snaring project, McCain’s actual boss, Kirby Bristow viewed McCain as an AZGFD employee/agent wether he was under contract or not. So did Ron Thompson, the guy McCain viewed to be his boss on the snaring project. And according to former AZGFD Endangered Species Coordinator, Terry Johnson:

He (McCain) may not be our employee, but is he our agent? Yeah, he’s our agent, in my opinion…I don’t care that McCain did not submit a billing to his company for his time spent. McCain is out there advising our employees, and we’re responsible for that. We’re responsible for the decisions to reopen the snares. We’re responsible for how the jaguar was handled when it did. We’re responsible for not having our protocols in place.

USFWS SA: “You’re responsible for the scat being placed, if he directed it, if he’s your agent?”

Johnson: “We’re accountable for it.”

And finally, even former AZ U.S. Attorney Dennis Burke viewed McCain to be a state employee. He refers to McCain in a May 15, 2010 Reuters article: “One of the state officials employed to protect our endangered wildlife instead endangered this same wildlife.”

Diversion

My final trial date had been reassigned to April 2011. In March, the Assistant U.S. Attorney prosecuting the case called my attorney and offered Diversion. I took it as the charges were guaranteed to be dropped against me and I would be ensured to have a clean record. I entered a Diversion Agreement with the AZ U.S. Attorneys Office in May 2011. In exchange for taking responsibility for my action of placing scat at a snare as directed (which I had done from the beginning when I reached out to Tony Davis of the AZ Daily Star) the charges would be dropped and I would serve a one year “lite” probation which included not working with big cats during this time period. A Diversion Agreement is NOT a plea agreement and I did not plead guilty to the charges.

My Diversion probation ended May 2012.

Janay Brun, Part 2

Third week in August 2010: It was a surreal moment for me to sit down at a very long conference table in one my lawyer’s offices and open the first of six extra-large binders full of thousands of pages accumulated because of the investigation I initiated. Even more so because I was about to begin contributing to my own  defense as an honorary legal assistant. As I spent the next week reading the investigation pages I was struck with all the evidence there was for charging other people with crimes (For the USFWS SAs monitoring this blog I can say that because a lot of that evidence was provided in my FOIA request ). What the investigation proved about me was what I had said from the beginning; that I had placed jaguar scat at the direction of my boss, Emil McCain. I had told Tony Davis of the AZ Daily Star and the USFWS SAs that I felt responsible in Macho B’s death because he was snared where I had placed scat at McCain’s direction. It wasn’t until I read Smith’s AZGFD Garrity interview in April 2010, right before I was charged, did I learn that another snare had been built and activated on the trap line, without scat, and Macho B would have been captured there if the snare hadn’t been tampered with.

I consistently used the word “mindless” to describe what I was thinking when I followed McCain’s directive. Today, I view it slightly different as I can remember now that McCain and I were friends, we had worked together for three years, and I trusted him at the time. I never asked McCain or our boss, Jack Childs if I was on BJDP’s Endangered Species permit. I didn’t find out I wasn’t until preparing for my trial. I never asked them if they had a permit for the jaguar scat that they first began using in 2004. Again, it wasn’t until preparing for trial that I found out they didn’t.

In October 2008 McCain called me to ask for advice on where to place snares based on BJDP camera photos of lions and bears because I had seen all the pictures as I was responsible for entering them into the BJDP photo log. I began to give him a few suggestions but then he focused me on the Atascosa camera sites. I gave him a few sites where bears and lions had been photographed and then he brought up Penasco Canyon. He wanted a snare in that canyon in case a new jaguar came in to take over Macho B’s territory if he truly was dead (we hadn’t seen his tracks or photographed him in a year). I didn’t ask him then if he had permits or permission or if a goal of the snaring project was to capture a jaguar. He was my supervisor and if he was talking about snaring a jaguar then he had his bases covered.

On February 4, 2009 when I met McCain and Smith to check BJDP cameras I thought Smith was just along so McCain could show him the area and where the snares were located. I wasn’t told when the snares were going to be opened. McCain and Smith both talk about this in their interviews about “showing” or being “shown” the snare sites on this day. In fact, when we all first met up this morning Smith was talking about how tired he was because he had waited at AZGFD headquarters until late the previous night to pick up the collars for the snaring project but they didn’t arrive. So they didn’t even have lion and bear collars this day.

When we went to the first camera/snare site and I realized Smith was opening the snare I don’t remember any words or discussion about Macho B. It was just obvious that Macho B was being targeted for capture. McCain had just picked up the three new pictures of him the day before, on the last one Macho B was headed this way, south. The only collar they had was the donated jaguar collar. And McCain had brought jaguar scat with him this day and had given it to me to place in the field. You don’t put jaguar scat at cameras or a snare and hope it lures a coyote, skunk, or black bear. Now aside from the personal, ethical, and moral issues which I’ve discussed in this blog and my essay, Truth and Consequences, legally I had no idea what I was being asked to do could be an alleged violation of the Endangered Species Act. This was my direct supervisor, whom I trusted, telling me to do something. It never entered my mind that he was asking me to do something that wasn’t above-board. And if it wasn’t, I didn’t know Smith, but I couldn’t imagine him going along with it and not saying anything. In fact, I don’t remember Smith asking about the scat or questioning it’s use. As I’ve said before and told the USFWS SAs and the Assistant U.S. Attorney, I asked McCain questions about snaring Macho B, his age, and his health. As an after thought, I asked if there were permits and my supervisor told me, “yes.”

There was talk this day about jaguar captures McCain had been apart of; immobilizing drugs for lions and a few comments about jaguars; jaguars breaking their teeth in captures, and a few more discussions that I interpreted as McCain prepping Smith for a jaguar capture. There was no conspiracy talk like, “lets keep this between us,” or “don’t tell anybody about what we’re doing today” or “what happens in Penasco Canyon stays in Penasco Canyon.” The one questionable thing I remember being said was when I asked what the protocols were for alerting AZGFD that Macho B was in the area and Smith replied, “AZGFD doesn’t want to know if a jaguar is around until after the snares are closed or a jaguar is caught.” McCain and Smith both kind of laughed and then changed the subject. I didn’t know if Smith made that up, was it his belief, was it said by his supervisor, or did he hear it from somewhere? I thought it had to do with plausible deniability because AZGFD hadn’t run the capture by all the members on the Jaguar Conservation Team. But if it was a legit comment someone from AZGFD had obviously given these guys the go ahead to snare despite Macho B’s presence. I didn’t think they really weren’t going to tell anyone in AZGFD and in fact McCain emailed USFWS and AZGFD about Macho B’s detections (several of those email recipients were aware of the snaring project) and AZGFD’s Ron Thompson and Bill Van Pelt were made aware that Macho B could be snared.

As I told the USFWS SAs I didn’t know what the whole intent behind the AZGFD snaring project was. By the virtue of AZGFD hiring McCain for the snaring project were they after a jaguar? Or, because they allowed McCain to set snares in known jaguar territory and leave them open after Macho B was detected in the area, plus the availability of the jaguar collar, it all seemed to add up to me that a jaguar capture was on someone’s radar and wish list. McCain had even talked about snaring a jaguar back in October. But, it wasn’t until Davis went to McCain with my statements and McCain outright lied about the use of scat did I realize something wasn’t right, most likely in a legal sense, and that was furthered when Davis and Stellar told me that it was questionable if AZGFD had a permit to intentionally capture a jaguar. As I wrote to a friend in an email during this time: “Apparently, Game and Fish only had a permit for an ‘accidental take’ of a jaguar during any other field study. With the element of scat and a photograph in the area that implies intent and there was no permit issued for Macho B. Thus violation of Endangered Species Act. If you know any good juju chants, now is the time to say them.”

So at this point, April 1, 2009, I believed McCain was a deceitful, evil mastermind that set up Macho B’s illegal capture and that is the prism I viewed him through for the next several years.

Janay Brun, Part 1

March 29, 2009: I emailed Tony Davis of the AZ Daily Star with the following information: the AZGFD snares set for their lion/bear project were placed in a canyon known to be utilized by jaguars; that a two week old picture of Macho B was retrieved on Feb, 4 and that BJDP camera site was just a few miles away from the AZGFD snares opened/activated on the same day; I was told to place female jaguar scat obtained from a zoo at cameras and the snare that eventually caught Macho B; Macho B’s tracks were found on Feb. 5 in the canyon where the snares were activated but the snares remained opened for several more days then were closed for a few more and then once again, reopened/activated at which point Macho B was snared a few days later; Macho B was hypothermic at his capture; I described the snare tree and finding pieces of his claws embedded in the bark; and I talked about the snare being referred to as a “kill snare” by experienced trappers (I had spoken with a neighbor whom used to be a professional trapper) because circulation is cut off to the extremity snared, there is no adequate padding on the snare to prevent further injury to that extremity (i.e. cutting into skin) and large mammals are known to exhaust themselves, some to the point of death, to get free.

March 30: I spoke to Tony Davis and Tim Stellar.

March 31: Davis spoke to McCain about my allegations of scat use. McCain and Smith met to conspire about covering up the use of scat in and near the AZGFD snares. At this point AZGFD and USFWS are  aware of my statements.

April 1: AZ Congressman Raul Grijalva makes inquiries with USFWS about Macho B’s capture and death. The federal criminal investigation into Macho B’s capture and death is launched. USFWS, AZGFD, and the AZ Attorney General’s Office are all on board for the investigation. Later it would be determined AZGFD would conduct their own, internal administrative investigation, the USFWS, at Congressman Grijalva’s request, would conduct the federal criminal investigation, and the AZ Attorney General’s Office would play no part except, I suppose, as legal counsel for AZGFD. On this day McCain goes to the snaring area and removes all jaguar scat from BJDP cameras close to the AZGFD snares. He does not notice the scat at the capture site. His actions constitute obstructing justice, tampering with evidence, hindering an investigation, etc. but he is never charged with these crimes.

April 2: The article written by Davis and Stellar based on my statements is published in the AZ Daily Star (see blogroll for link, AZ Daily Star article about scat). The article focuses on the placement of scat which becomes a she said/he said scenario when McCain denies it. His lying and denying focuses the investigation on himself and the scat. This gives the AZGFD and USFWS a huge pass on having to explain to the rightfully outraged public about their processes that allowed first, for the employment of McCain on the snaring project. The guy whom had access to all the cameras so he knew where Macho B was and the guy who chose the snare sites and who also happened to be a staunch advocate for collaring a jaguar. Second, for allowing snares to be built and activated in an area known to be utilized by an endangered species. Third, allowing those snares to remain open/active when Macho B’s presence was documented in the snaring area and on the actual trap line. This sort of breather gave the agencies time to come up with a game plan that included amending permits (more on this in a moment), and for AZGFD to come up with the strategy of disowning McCain and creating the talking point that would become their defense: Anywhere in SE AZ presented the possibility of inadvertently capturing a jaguar.

I meet with the USFWS Special Agents (SAs) on seven occasions and talked with the lead SA on the phone a few times. I turned over Macho B’s claw shavings I had collected from the snare tree, BJDP photos from all the camera sites, GPS coordinates for BJDP cameras, emails, the container the jaguar scat was in and leftover scat, the laptop McCain had given me to do BJDP data entry, and McCain’s hard drive that he gave me before he went to Spain that contained even more pictures and documents. I gave the USFWS SAs the names of people to talk to and directions to McCain’s home. I cooperated fully and every time I was asked.

May 6, 2010: I had my last interview with the USFWS SAs and they informed me to seek legal counsel. On May 15, one of the SAs presented me with a summons to appear in the U.S. district court because they alleged I, “placed jaguar scat or was directed to place jaguar scat at snare sites in an attempt to capture and trap an endangered species, to wit, a jaguar.” This constituted an alleged “take” violation of the Endangered Species Act.

May 20, 2010: I entered the Evo A. DeConcini Federal Building and Courthouse in Tucson, AZ. The building is named after a former AZ Attorney General and AZ Supreme Court Justice that according to Bill Bonanno’s book, Bound by Honor, A Mafioso’s Story, was friends with the Bonnano crime family‘s boss, Joe Bonnano. I then entered a courtroom that was packed with shackled men, all alleged to have entered the U.S. illegally on more than one occasion. My lawyer and I waited for my name to be called so I could plead not guilty to the charges presented against me by the AZ U.S. Attorney’s Office. This federal office was then led by AZ U.S. Attorney Dennis Burke. As it turns out, in a small world kinda way, Burke was given a job at the beginning of his career by DeConcini’s son, Dennis, a former senator for AZ. Burke had also worked for the AZ Attorney General’s Office (the lawyers for AZGFD) and for Janet Napolitano when she was Governor of AZ and then when she was appointed head of the Department of Homeland Security. According to McCain, his landlords at the time were friends with Napolitano. Burke would later have to resign his post as the U.S. Attorney for AZ because of his involvement in the Fast and Furious gun walking/smuggling operation. This operation allowed guns to be smuggled from AZ into Mexico in order to “track them” to cartel members. Unfortunately, guns from this operation have been found at murder scenes in Mexico and in AZ, most notably at the scene of U.S. Border Patrol Agent Brian Terry’s murder. I would find out later in the press that Burke had tried to discredit the whistleblower whom informed Congress of Operation Fast and Furious.

After court I was taken to the U.S. Marshall’s office to be fingerprinted and have my picture taken for my new FBI file. I then went to Pretrial Services and waited to meet my officer in a room full of people talking about their prison time due to drug charges. I finally met the pretrial officer and he explained what was expected of me while I awaited trial and what I had to do to comply with the terms of my release.

A few days later my lawyer contacted the U.S. Attorneys Office to see if they would do a Diversion Agreement. They said no, absolutely no way. They then offered me a plea deal, three years probation and I couldn’t work on large cat research in the U.S. during that time. I said, no, absolutely no way. Not long after I turned down their plea deal the AZ U.S. Attorneys Office charged me with conspiracy to take an endangered species.  Several days later a real conspiracy occurred when the USFWS amended AZGFD’s endangered species permit to authorize future intentional jaguar captures (see blogroll for link to new permit).

July 2010: I attended my first pre-trial hearing. The AUSA was pushing to have my trial scheduled for the following month even though he had yet to provide my attorney the disclosure documents for my case. Disclosure is basically the evidence that is being used against a defendant. The AUSA tried to say that all the calls from the press concerning the case prevented him from getting the disclosure to my attorney and he wanted the judge to place a gag order on myself and my attorney. The judge rebuked that request and gave the AUSA a deadline to meet in regards to turning over the disclosure documents to my attorney so he could begin preparing my defense. Trial was then set for September.

Emil McCain, part 3

First “Use Immunity” Interview

McCain’s first “use immunity” interview was held at the U.S. Attorney’s Office in Tucson, AZ with his lawyer present on January 15, 2010. Quoting from the Details of Investigation Report provided in my FOIA request: “McCain was given “use immunity” with the understanding that his statements could not be used against him in a legal proceeding unless his statements were later proven false.”

During this interview McCain lied to the USFWS Special Agents and the Assistant U.S. Attorney (AUSA) committing a felony, or actually several, if each lie equated to one charge.

A few “false, fictitious, or fraudulent statements” made by McCain:

McCain denied knowing anything about scat at the snares stating, “the subject of placing scat at the snares never came up with Janay.” At the first camera/snare site McCain claimed he used skunk scent near the camera and was unsure if I placed scat at the camera but thought I did. McCain also said he “was pretty sure” Smith knew we placed scat at one camera (the camera two miles south of the snares), but was not sure if Smith was aware of the scat placement at other cameras. When asked if scat was placed at the snare site where Macho B was eventually captured McCain responded, “Not to my knowledge.” McCain also claimed that he had always discouraged using snares.

Second “Use Immunity” interview, May 3, 2010

Again with his lawyer present. McCain stated that he had, “dodged the questions asked of him previously.” I guess “dodged” is the good ol’ boy word for “lied.”

McCain begins by implicating his “boss” on the snaring project, AZGFD bear and lion biologist, Ron Thompson in encouraging McCain to snare a jaguar. According to McCain, he had a phone conversation with Thompson and Thompson told him, “I want you to put those snares in the very best locations. Do you know what I mean?” To McCain, “this was a disguised, but clear direction to capture a jaguar, but not enough to get REDACTED (either Thompson or McCain) in trouble.”

McCain stated that after Macho B’s picture from August 2008 was retrieved from a BJDP camera in November he hesitated informing AZGFD and USFWS about the photo until he spoke with Thompson. McCain told Thompson, “This thing (Macho B) is here” and Thompson supposedly said, “Nothing to worry about – Legitimate state run study.” McCain then asked Thompson if the AZGFD had a permit for a jaguar capture and Thompson “assured him there was an incidental capture permit; Emil had a jaguar telemetry collar; and he (McCain) was working for the AZGFD.”

McCain also said that when the jaguar collar was returned to him in January 2009 after being refurbished “AZGFD really wanted the collar to be placed on a jaguar.”

On February 3, 2008 when McCain and a BJDP volunteer retrieved three new pictures of Macho B at a camera site north of the AZGFD snaring area McCain said he called his parents and Jack Childs to inform them of the photographs. He did not recall contacting Smith about the pictures or having the should we/shouldn’t we (see post of same name) discussion about opening snares the following day in the area Macho B was headed to based on his last photo. McCain said after he sent out the notification of Macho B’s detections to AZGFD and USFWS that night he “realized there was a possibility the jaguar could be caught.” Smith later told him that their boss, AZGFD Research Branch Chief, Chasa O’Brien “was working on a permit in case the jaguar was captured.”

On February 4, 2009 McCain said he gave jaguar scat to me and I was “expected to place it at BJDP cameras.” Again, McCain stated at the first camera/snare site he was unaware if I placed the scat, but thought I did. He goes on to say he was unsure if Smith knew about scat at the cameras (now its all the camera sites) but was “blind if he didn’t see” scat placed at the first AZGFD snare in Penasco Canyon. McCain claimed he told me to place it there. McCain also said he directed me to place scat at the second snare. He went from no scat at any of the snares to scat at all the snares.

For the record: At the first AZGFD snare site in Penasco Canyon the only person who was present was Smith (in Smith’s “use immunity” testimony he states he went to the first snare in Penasco alone and activated it by himself) and he had not been given any jaguar scat. McCain had given me the container of scat to carry this day and I did not give any of it to Smith. McCain and I left Smith to activate the first snare on his own and proceeded down the canyon so McCain could open the second snare. Before I left McCain at the second snare and continued down to the BJDP camera site to check/reset the camera, McCain asked me to save some scat for a snare. After I tended to the camera, I met Smith and McCain back at McCain’s snare and we then backtracked up the canyon to the last snare site. Here, McCain directed me to place the remaining scat out. This was the only snare site in Penasco Canyon where scat was placed on this day.

But according to McCain, he now had jaguar scat placed at all the AZGFD snare sites, including the second snare he opened by himself. He also says that at the third and last snare he didn’t direct me to place the scat but instead I asked him if I should place the scat and he said, “yes.” McCain told the USFWS SAs and the AUSA his thoughts about placing scat at the snares, “It can’t hurt, we got it, we’re here, let’s throw it out there.”

The next day when Macho B’s tracks were found on the snare line, McCain said he sat down with Smith and Crabb for about: “a thirty to forty-five minute discussion” where he told them, “there was a pretty good chance they may catch the jaguar because it was using the area.” They apparently discussed the “AZGFD capture permit, drugs needed, jaguar capture protocol, and the need for a dart rifle (Smith would leave the next day to obtain the rifle).” McCain said, “No one told him to stop or don’t do this.” Later McCain told Thompson about the possibility of capturing Macho B and then they had a discussion about whether Smith was a competent enough animal handler for a jaguar capture.

McCain admitted that he and Smith agreed to fabricate a story after I came forward with allegations of scat use in the vicinity of the snares. McCain said he went back to the area and removed all signs of scat but didn’t see any at the snare sites. The USFWS SAs told him they found scat at the snare/capture site and forensics confirmed it was jaguar scat (the USFWS SAs didn’t find the scat the first time they looked either). McCain then suggested I planted it, something Smith also claimed.

In reference to possibly catching a jaguar (Macho B) McCain told the USFWS SAs and AUSA: “If this happens, let it happen. I wanted that thing caught – absolutely.”

McCain’s third “use immunity” interview, May 11, 2010

Again with his attorney present, McCain tried to keep all the different versions of the stories he had told over the past year straight. On this day, he has Smith watching him separate two batches of jaguar scat from the Phoenix Zoo on Feb. 4, 2009. He now tells Smith at the second BJDP camera site to “look how decayed” the jaguar scat placed there at a prior trip looked (this is a different camera site from the one McCain had referenced in his first interview). At the first snare in Penasco Canyon (the one that Smith went to and activated alone) McCain now doesn’t remember who placed scat at the snare. At the second snare site McCain now asks me for scat and at the third snare site, where all three of us are together,  I supposedly ask McCain, “Do you want scat here too?” and he replies, “sure.” McCain also states, “Smith did not question or discuss the use of scat and thought it was possible Smith did not know it was being placed at the snares.”

McCain said he got the idea of placing jaguar scat at the snares when we entered Penasco Canyon. And his reason for placing it was to increase the odds of a jaguar capture. McCain also said he asked Thompson what if they caught the jaguar and Thompson supposedly responded: “AZGFD had permits and, if he gets caught – he gets caught.”

McCain told the USFWS SAs and the AUSA:

If it was not an intentional capture attempt, I don’t want to be there.

On May 14, 2010 McCain pled guilty to “violating the Endangered Species Act for his involvement in the placement of jaguar scat or directing another to place jaguar scat at the snares in an effort to capture a jaguar.”

Emil McCain, Part 2

Conspiracy to “take” an endangered species: “to knowingly and intentionally combine and conspire, confederate and agree with persons known and unknown to commit an offense against the United States and any agency thereof, that is, knowingly attempt to harass, harm, pursue, trap, capture and collect without lawful permit or authority a jaguar (Panthera Onca), an endangered species.”

On July 31, 2009 a search warrant was served on McCain’s email account.

1. August, 28, 2008: From McCain to REDACTED: “… feds (USFWS) won’t let me catch cats. Mostly they fear the implications of the data from a GPS collar. Pretty frustrating.”

2. August 29, 2008: McCain emails the Woodland Park Zoo in Seattle, WA requesting jaguar urine and feces.

3. September 2, 2008: McCain emails the Phoenix Zoo in Phoenix, AZ requesting jaguar scat and urine.

4. October 2, 2008: Ron Thompson (lion/bear biologist for AZGFD) emails Kirby Bristow (lead field biologist for AZGFD lion/bear snaring project) about using McCain for $200/day to assist with the AZGFD lion and bear snaring project.

5. October 5, 2008: Smith and McCain meet via email and talk about setting a date and time to meet in the field.

6. October 6, 2008: McCain gets added to Ron Thompson’s DEA license to possess and use the drug, Ketamine for lion captures. Thompson vouches for McCain that he does not have a criminal record nor has been convicted of a felony.

7. October 14, 2008: McCain emails Erin Fernandez, Jaguar Lead of USFWS that he is working with AZGFD. Fernandez is aware of the project as she asks if McCain will be working with Bristow.

8. November 1, 2008: McCain emails Bristow, “So I now have 3 lion collars and the other (donated jag collar) just in case.”

9. November 4, 2008: McCain collars female lion in Atascosa/Pajarita range with Michelle Crabb and his father. The lion is killed in January 2009.

10. November 8, 2008: McCain emails a friend in part: “Right now I am paid big bucks to catch the cats. And well that is fun and I have my own jag collar in my pack at all times. Did I say that I am choosing my sites carefully. So, yeah that (sic) fucking feds won’t give me permission, so I will just have to accidentally do it.”

McCain contacts Phoenix Zoo about scat collection.

11. November 9, 2008: McCain collars male puma in Patagonia Mountains. He emails pictures of the capture, including a picture of the VHF frequency of the lion’s collar to friends and AZGFD personnel.

12.November 10, 2008: McCain emails Thompson about picture just retrieved of Macho B from August 3rd confirming he is alive and well. Thompson responds: “I would like to reemphasize the need to watch the trapping situation and to know if there is a possibility of snaring him soon.”

13. November 12, 2008: McCain emails Thompson: “We need to talk about how to handle reporting this new sighting [Macho B] in the area where I am trapping and hope to be able to continue to do so without appearing to be hiding anything. I need to inform REDACTED and USFWS soon, but I want to talk to you soon.”

McCain emails Phoenix Zoo: “Well, something has come up that expedites and accentuates my need for the samples we spoke about. I just picked up a new jaguar picture… I would love to get the scat out there ASAP. The animal could be anywhere by now, and I need to catch up with him.”

McCain notifies AZGFD and USFWS of new Macho B picture (taken Aug.3) recently retrieved from a Borderlands Jaguar Detection Project (BJDP) camera in the Atascosa Mountains.

14. November 14, 2008: McCain sends the jaguar collar donated to him by Blake Henke of North Star back to Henke for refurbishment.

15. November 17, 2008: McCain collars female lion in Patagonia Mountains. That is the last of the lion collars until Feb. 2009.

McCain emails Dr. Aguilar about new Macho B picture and states: “We are again working on permission to collar him if we get the chance. Would you use the same ketamine/medatomidine cocktail with him as with a puma?” Aguilar responds: “I like the med/ket combo because its secure, but jags are a whole other kettle of corn, so to speak. They are denser. Most of the brazilian projects use Telazol, but the high end doses mean prolonged recovery. I really worry the noose [snare] may permanently damage a more powerful cat, such as a jag. And an old jag is a high risk, so I would think about it.”

16. November 19, 2008: McCain emails Ron Thompson: “Also has Terry (Terry Johnson, Endangered Species Coord. for AZGFD) talked with you at all about snaring in the Atascosas/Tumacacoris? Where does that stand? I would love to get those snares over there open again, but will wait for the word.”

17. November 21, 2008: McCain emails his BJDP boss, Jack Childs: “Just so you know. Terry has not said a word to Ron about the trapping situation.”

McCain emails a friend: “Also the old jaguar that I had not seen for over a year, just showed up again. Now my trapping efforts may be stepped up a notch.”

18. December 2&3, 2008: McCain communicates with Woodland Park Zoo about jaguar scat collection.

19. December 10, 2008: McCain emails me about his receiving a: “package of female in estrus jag scat. I am thinking about placing it under a certain tree. You concur?” The tree he is referring to is forty plus miles away from the snaring area. I concur.

20. December 17, 2008: McCain emails Thompson about possible jag tracks found (at the forty plus mile area) and that the BJDP cameras weren’t working. “If there is ever any hope to catch him this winter, I need to keep the cameras running, and I need some funds to do that.”

McCain emails Phoenix Zoo about scat pick up and: “the scat has been distributed all over the place already. Keep your fingers crossed.”

21.December 18, 2008: Henke emails McCain that the jaguar collar is ready but he wants to add a VHF unit to the collar before sending it back.

22. December 23, 2008: McCain emails Thompson about setting a camera on a high saddle where there was lots of cat sign and “Lucero’s (male jaguar from Phoenix Zoo) scent is wafting over both sides of the ridge.”

23. January 4, 2009: McCain contacts the Reid Park Zoo in Tucson, AZ about jaguar scat.

24. January 5, 2009: McCain emails Erin Fernandez (USFWS) and others that “Kirby (Bristow) and I have been planning the next trapping efforts to be focused in the east and west sides of the Atascosas.”

25. January 11, 2009: McCain receives email from Henke that jaguar collar will be shipped to him the next day. McCain responds, “Now all it (sic) gotta do is catch that cat!”

26. January 14, 2009: Bristow emails everyone on the snaring project, including McCain about the collared female lion being killed and: “I expect to get the replacement collars (3 bear 3 lion) from North Star any day now so we’ll be trapping full time again. We likely won’t start bear trapping until mid March…”

27. January 16, 2009: McCain has contact with Reid Park Zoo about scat.

28. January 19, 2009: McCain asks the Phoenix Zoo for more scat.

29. January 29, 2009: McCain emails me: “I have requested jag scat that should be here in a week or so. So, you may hold of (sic) on field work till that comes in.”

30. January 28&29, 2009: McCain and Thorry Smith email about collars coming in and McCain’s needing to show Smith where his snares in the Atascosas are located. Smith says, “Sounds like Chasa [O’Brien] is working on an EA [Environmental Assessment] in case we catch one with spots.”

31. January 29, 2009: McCain emails Thompson, “Now Kirby wants me to start trapping again…”

32. February 2, 2009: I email McCain about what he wants done when he is out of town and if the scat had arrived could I get some.

McCain emails Dr. Aguilar to inquire about “the most recent knowledge on jaguar immobilization” to “make ourselves completely prepared for the unintended event of catching a jag.” McCain also states, “I already set the snares in the most jag friendly way possible…”

McCain emails Phoenix Zoo to thank them for scat and to ask if the female jaguar is in heat.

33. February 3, 2009: Phoenix Zoo replies to McCain: “I would not have characterized the jaguar as in heat. I don’t agree with the keeper on that. McCain responds, “Off to set out some of that scat!” McCain and a BJDP volunteer checked cameras in the Tumacacoris and picked up 3 new pics of Macho B from one of the camera sites. The last pic was from Jan. 21st and Macho B was headed south, toward the snaring area.

McCain and Smith are emailed jaguar immobilization recommendations. Thorry Smith emails his thanks to Drs. Deem and Aguilar.

McCain emails family and friends a picture of Macho B retrieved that day. The email reads: “Now, some have called him geriatric in recent times. I’d like to hear them say that to his face! Look at that healthy animal!”

McCain emails AZGFD and USFWS info about new Macho B pictures.

34. February 4, 2009: Phoenix Zoo emails McCain: “I hear that Macho B has surfaced again. The female jaguar may be in estrus after all. Male is mewling at her. I asked them to collect fecal again.

Snares are activated by Smith and McCain in the Atascosa/Pajarita snaring area. I attend to all the BJDP cameras that are in the same area. McCain brought the Phoenix Zoo jaguar scat to be used in the field and at his direction it is placed in front of four BJDP cameras (one within 15 feet of an AZGFD snare) and at one snare site. A picture of Macho B is retrieved from a BJDP camera close to the border. The pic was from Jan. 12 and Macho B was heading north.

35. February 5, 2009: McCain, Smith, and Michelle Crabb document Macho B’s tracks (several weeks old) on the trap line and Smith adds a new snare close to the tracks.

McCain emails Drs. Aguilar and Deem to thank them for the drug info and, “Just to clarify things, Thorry is not trying to catch a jaguar, but he is working on a mountain lion and black bear study in an area where he may inadvertently encounter a jaguar.”

McCain emails his thesis advisor at Humboldt State University telling him of the new Macho B pictures. “And today I found his tracks while I was helping a Game and Fish biologist get started checking my snares… We are now running snares exactly where Macho B has been in the last REDACTED. No need to talk about this at all until it happen (sic), if it ever does. Game and fish will officially have caught him inadvertently while working on the lion/bear study. The high-ups in the agency are fully aware of what is happening and we are all on the same page. The timing may be perfect for me to be out of town. Wish us luck.”

On Feb. 6th McCain leaves for Spain.

36. February 9, 2009: McCain emails new Macho B photo and track info to AZGFD and USFWS.

McCain emails his and Thompson’s friend at Texas Tech: “By the way, old Macho B is again reigning over his territory along the border. My last two days in the field last week produce (sic) another picture and fresh tracks… yes, his. Tracks on that line that I was showing Thorry.”

37. February 13, 2009: McCain thanks Henke for “getting the donated jaguar collar back to me so quickly. I also wanted you to know that we have again started trapping and that there is fresh jaguar sign in the area.” He also inquires about testing the collar.

McCain emails Thompson about the AZGFD snaring contract he is applying for seeking direction on a question, “I’ve never handled bears… only 6 months with lions”

McCain was awarded the AZGFD contract “as the apparent low, responsive, and responsible offer” on March 4, 2009. But, on March 23rd, AZGFD sent an email out to McCain and other “Large carnivore capture bidders” that “Due to recent jaguar episode, AZGFD’s Director Voyles has placed large carnivore captures on hold.”

McCain emails Smith about testing jaguar collar.

38. February 16, 2009: McCain emails Henke and Smith: ” I think that for the week long trapping periods in the area where we may capture a jag, I think we should leave that collar on. Especially given the remoteness of the area… and the once in a lifetime change (sic) to collar a AZ jag…”

39. February 18, 2009: McCain emails Henke: “I sure hope that we can get that collar on that guy. I assure you we will do our best.”

Macho B was snared this day and collared by Smith and Crabb.

40. February 19, 2009: McCain receives an email from Thompson with the subject line: “Thorry did it!” There were no other contents.

McCain emails someone whom allowed BJDP to place a camera on her property: “I have to tell you I have pulled a hell of a fast one on the system here. I orchestrated this whole thing, including being out of the country when it happened. I chose my team (of qualified agency biologists), I set the snares and I waited till I knew what was coming. Then I placed a little of my very, very special sauce and jumped on a plain (sic). Now I am the only one with access to the data and I am sitting like the fat cat himself!”

Above is more than enough information to have charged McCain, and perhaps a few others, with conspiracy to take an endangered species, to wit, a jaguar known as Macho B. The only person to be charged with that particular violation of the Endangered Species Act was myself.

McCain’s emails concerning Macho B after his initial capture through his recapture can be found under the category, Capture. The emails include McCain delaying AZGFD to do a visual health assessment of Macho B even though he barely moved after his first day of capture. But, McCain insisted that Macho B could be on a kill and constantly compared Macho B’s behavior and activity to mountain lions. Macho B was a jaguar and there are distinct, recorded differences in the feeding behavior of mountain lions and jaguars. Unfortunately, McCain did not realize this as he knew nothing of Macho B’s behavior in any scenario and had zero experience in monitoring a radio-collared jaguar. So by the time a visual health assessment was done, it was too late. Macho B would be airlifted to the Phoenix Zoo where the vets determined the best and most humane course of action was to euthanize Macho B.

Emil McCain, Part 1

On April 2, 2009  Emil McCain met with a USFWS Special Agent (SA) for an interview regarding the criminal investigation that began the day before into Macho B’s capture and death. McCain told the SA he was “totally willing to talk to the agent and happy to be involved in a formal investigation where the truth would come out and be reported.” However, “he did not feel comfortable answering questions without the presence of an attorney.”

McCain did not speak with the USFWS SAs again until his first “use immunity” interview held at the U.S. Attorney’s office on January 15, 2010 with his lawyer present.

After several “use immunity” interviews McCain was only charged with the Endangered Species Act violation of “knowingly attempt to trap, capture and collect without lawful permit or authority a jaguar, an endangered species.”

I heard McCain first plead not guilty, but then changed his plea to guilty. His punishment was five years probation which included not working on any large cat or large carnivore project in the U.S. during that time. There was also a $1000 fine. Later AZGFD charged him with an $8000 fine and took away his hunting license.

McCain’s punishment had no immediate effect on him and perhaps still doesn’t. It was rumored that shortly after his pleading guilty he left for Spain where his girlfriend, a veterinarian with an Iberian Lynx project, had hooked him up with a job working with the lynx. The Iberian Lynx is one of the rarest wild felids of the WORLD. In fact, McCain co-authored a scientific paper about using scent lures to attract the Iberian Lynx to camera sets (see blogroll for link).

Thorry Smith, Part 3

The above picture is from the AZGFD website and is Thorry Smith posing with Macho B at his initial capture. Smith was involved in Macho B’s capture and recapture. To read more about his involvement please see this blog’s posts: Capture; Day 1: February 18, 2009; Day 10: Feb. 27; Day 11: Feb. 28; Day 12: March 1; Day 13: March 2.

There is not much to add to those posts except Smith told the USFWS SAs that he didn’t have much experience with the drug used to anesthetize Macho B, Telazol or older animals. But, the USFWS Special Agents ask Smith a question they should have asked every AZGFD and USFWS employee whom was aware Macho B was vulnerable to being snared: “And if you’re being so prepared, and you’re getting ready for this chance… wouldn’t it be the best thing to have a vet there?” And Smith replied: “I agree. That’s not my call. We can’t afford that, and this is the way Game and Fish works. We have no money.”

An additional point would be a reminder, that Smith checked the AZGFD snares until Feb. 11. He then de-activated them to return home. He came back to the snaring area on Feb. 15 and re-activated the snares. Macho B was caught on Feb.18.

Garrity Interviews

Smith was granted immunity, as all AZGFD employees were, when speaking with their employer during the course of their internal administrative investigation. Part of the Garrity Warning reads, “… any responses given during this administrative investigation cannot be used against you in a subsequent criminal investigation.”

Smith starts off by admitting to committing a felony: “Well, I lied to the feds about it (use of jaguar scat). Scared to death. You know, Emil (McCain) and I came up with, this is bad. The department is going to look so bad…” Smith then goes on to admit to conspiring with McCain to protect themselves: “We made a different story to protect the department, to protect Emil, to protect my association with Emil about, you know, not leaving jaguar scat but (inaudible) there was no scat at all placed anywhere…”

Smith acknowledges that: “I realized that he (McCain) had put – when I was with him, he had put scat at the upper two of the south two camera sites that were two and four (actually both are about two) miles away about from any of our snares, and being naive as I was, I thought that was okay. I didn’t question it.”

As for the first snare of the day that also had a camera within feet of it Smith claimed ignorance: “… I was working on the set. They were working on the camera. I turned around. There was a scat in the trail figuring it was one of the lion scats they just put in there to get…” Lion scat was never used on this day or ever by the BJDP at camera sites. Smith also claimed ignorance about scat being placed at the last camera site of the day in Penasco Canyon (where Macho B was snared) and at the actual snare site where Macho B was captured.

Smith apparently didn’t find out about jag scat being placed at the other two camera sites until March 31. This was the day McCain called him to make him aware of my allegations of jaguar scat at camera sites and the snare. Smith supposedly asked McCain: “You guys didn’t put any in the cameras within our snare loop, did you?” And McCain responded, “Yeah, we did.” But McCain denied scat was placed at the snare that became the capture site. Smith claimed McCain put jag scat at the other camera sites behind his back.

So on March 31, Smith and McCain meet and discuss what they’re going to do for hours and come up with a plan to lie about the scat and for McCain to go back to the area; “He went in and cleaned it up, made it look like our story.” Smith just admitted to conspiracy and obstruction of justice.

What doesn’t make sense to me is if Smith was truly ignorant of all the places where scat was placed why didn’t he tell McCain to fuck off and then get in touch with his supervisors at AZGFD about what McCain just admitted? Scat a few miles away from the snares was something the AZGFD PR people could work with and Smith’s supervisors could probably give him a pass on. Smith and McCain barely knew each other. Why did Smith choose McCain over his career and later his family as he sat lying to federal investigators, committing a felony with serious monetary fines and jail time attached to the crime?

So Smith never admits to AZGFD his full knowledge about the use of scat at all the camera sites and the snare. I think it’s because he still believed he would retain his job at AZGFD and admitting the full truth would guarantee him being sacked. He even makes a reference in his third Garrity interview (p.8) to a job position he foresees himself occupying in the future. By this time, Smith had retained a lawyer whom might be working on immunity for him with the feds so perhaps he feels legally “safe” and is focusing on keeping his job.

See blogroll for link to Smith’s Garrity transcripts; redacted, of course.

Use Immunity Interview

Smith was interviewed on March 18, 2010 with counsel present at the U.S. Attorneys Office. He admitted to lying to the USFWS Special Agents about the use of scat when cameras were checked and snares opened on Feb. 4, 2009. He continued to maintain that he only found out about the scat at all the camera sites from McCain after Macho B’s capture. Smith also admitted his and McCain’s plan to “clean up” the camera/snaring area of scat. Apparently McCain called him afterwards and said, “We’re good.” Smith never admits to his knowledge of scat being placed at the snare site where Macho B was captured.

With regard to a jaguar capture Smith said, “We (he & McCain) were both hopeful.” Smith thought scat had nothing to do with Macho B’s capture. He had stated the same to AZGFD pointing out that Macho B had come from the north, not passing any camera sites, and the first snare he came to (the one Smith built& activated on his own Feb.5) had no scat and would have captured Macho B if people hadn’t tampered with the snare.

Smith claimed that McCain had tried to contact AZGFD Endangered Species Coordinator, Terry Johnson to tell him that he had a [fabricated] camera log that indicated scat was not used at the camera sites.

In addition, Smith claimed that when he and McCain met on March 31, McCain told him he had informed AZGFD lion&bear biologist, Ron Thompson about the use of jaguar scat and Thompson recommended McCain “deny it.”

Smith said, “It was his and Emil’s word against Janay’s,”  in regards to the placement of jaguar scat at the snare site.

Smith was fired about a week after his “use immunity” interview. I wonder if he had been re-interviewed after losing his job with AZGFD he would have told the whole truth regarding his knowledge of scat placement on Feb.4?

The Investigation: Thorry Smith, Part 2

Smith was interviewed by USFWS SAs on two occasions. He lied to them on both even after they warned him several times in one interview that lying to them is a felony, unlike an Endangered Species Act violation which is a misdemeanor.

So what did he lie to them about? It was the use of jaguar scat at the Borderlands Jaguar Detection Project cameras, one within 15 feet of a snare, and at the snare site that eventually caught Macho B. Smith did acknowledge seeing an older scat at the second BJDP camera site. He said McCain told him it was a jaguar scat and Smith then asked him where he got it and McCain told him a zoo. And that was the end of that discussion. According to Smith: “There were existing lion scats in some of these places. I never saw anybody put a jaguar scat out, I never knew about that, (that) they did put jaguar scats out in some of these locations until the second camera site… But the accusation about having a scat placed at the actual capture site is false… I wouldn’t have allowed it.”

Smith was present at three out of the four camera sites where jaguar scat was placed in front a camera. His head was within inches of McCain’s as they activated the final snare of the day and McCain directed me to place the remaining scat out. As the saying goes, he would have to have been blind, deaf, and dumb this day to not be aware that jaguar scat was being placed in the snaring area.

Preparation for a jaguar capture

At a December 2008 internal AZGFD meeting about the lion/bear study the “j word,” meaning jaguar, was brought up. Smith tried to get guidance from his supervisors (the names are redacted but Chasa O’Brien was one of them) and O’Brien told him she did not want a jaguar collared if one was accidentally caught. This was the first time she learned that the snaring field team was carrying the donated jaguar collar of McCain’s with them every time they checked snares. Smith was still unclear about the protocol if a jaguar was captured so he went to his Director, Larry Voyles and Deputy Director, Gary Hovatter for guidance telling them snaring would be commencing soon in jaguar country and there was a donated jaguar collar available. They referred him to Endangered Species Coordinator, Terry Johnson. Apparently since it was the end of the day, Smith didn’t speak with Johnson nor did he attempt to do so at a later date.

On February 1st, Smith found out new collars would be arriving for the snaring project in the next couple days and snaring would begin in the Pajarita Wilderness. Trapping had been on hiatus since November when they ran out of collars. According to Smith, “Due to presence in years past of jaguar activity in the region, I also asked Emil if he knew the most current knowledge on jaguar chemical immobilization in case of an incidental capture and he agreed to contact Dr. Aguilar who contacted Sharon Deem.”

On February 3rd, McCain contacted Smith to alert him that he just picked up three new pictures of Macho B about a dozen miles north of the snares and the last pic, Jan.21, Macho B was heading south, toward the snaring area. They engaged in a discussion, according to a witness, about whether or not to go forward with snaring in the Pajaritas in light of these new pics of Macho B. At some point, according to Smith, McCain apparently said,”…relatively recent pictures( of Macho B) there (Atascosas/Pajarita pic from August) and some to the north, I just think the odds are greatest down there (of capturing Macho B in the Pajarita Mountains).” Smith said he did not feel a jaguar capture was “preventable.” And when it came time to snare again: “He just did what he was told. He was the person in charge in the field, but did not have the authority to stop the snaring.” Also on Feb.3rd Smith asked Ron Thompson about AZGFD’s Section 6 permit for an incidental jaguar capture. Smith was unfamiliar with the Section 6 and only knew, “he was told it was good” in reference to a jaguar capture. Smith also looked into the Jaguar Conservation Team protocol for a jaguar capture and received a copy of the Jaguar Health Manual from Dr. Aguilar.

On Feb. 4th, Smith accompanied McCain and I to check BJDP cameras. At the same time, he and McCain activated the AZGFD snares that had been left in the field when they were disarmed back in November. Based on their discussion about snaring the previous day, they decided to go ahead and reopen/activate the snares knowing Macho B was probably in the area. Also on this day a new picture of Macho B was picked up. The picture was taken two miles south of the snaring area and was from Jan. 12.

On Feb. 5th, Smith, McCain, and Crabb checked the snares and discovered Macho B’s tracks on the trap line. Smith built and activated a new snare close to these tracks though he said lion tracks were also nearby.

On Feb. 6th Smith drove to northern Arizona to pick up a dart rifle specific to a jaguar capture because McCain suggested it.

McCain and Smith set the snares in a “jaguar friendly” way; they both agreed to use a short leash (cable) and bungee cords because they, “had talked about this and there might be a jaguar in this area.” In addition McCain had spoken about his experience snaring jaguars (which out of 2 snaring captures resulted in the death of one jaguar, and a possible death of the other jaguar) and told Smith: “They get a run up and run as fast as they can and… just destroy themselves. They’re so powerful they just rip their arms out.” So based on that Smith stated, “We wanted a short lead…”

Days before Macho B was captured Smith and McCain coordinated via email to test the jaguar collar to make sure it was working properly. Smith said, “It was further preparation for an accidental jaguar capture, not because of new jaguar sign in area or that a jaguar capture was foreseen.”

Smith and McCain also talked about disabling the VHF capability of the satellite collar for a jaguar because they suspected lion hunters could intercept the signal. Smith took the VHF receiver off the collar days before the capture.

Smith did not inform his direct supervisors, Kirby Bristow or Chasa O’Brien about the recent presence of Macho B in the snaring area. He assumed they would get the information because McCain emailed his jaguar detection notifications out to AZGFD and USFWS. But, that was McCain’s duty as the biologist for BJDP to comply with the project’s Endangered Species permit. It had nothing to do with the snaring project and thus McCain did not include any information about the distance between Macho B’s detections and the AZGFD snares. Smith acknowledged to the USFWS SAs that he thought: “Bristow didn’t want to step into a jaguar capture and he didn’t think Bristow was excited about the possibility of it.” O’Brien had already told Smith back in December not to collar a jaguar.

Because the last picture of Macho B was from an area about a dozen miles to the north of the snaring area, Smith “felt they were in good shape to catch bears and lions because he thought they were in the safe zone because Macho B was two mountain ranges north of the snares.”

Given all the preparation made for a jaguar capture, Smith said the effort was for an unintentional capture. But he did tell the USFWS SAs: “We waited forever for it (Macho B) to come through the snare and when it did I was scared and happy at the same time… It wasn’t intentional but you’re still not exactly happy it happened.” Smith also stated: “He was glad to collar a jaguar hoping things would work. He was under the impression USFWS and AZGFD were aware of Macho B’s photos and track detections and they did not request the snares be closed.”

USFWS SA: But you’re the guy that’s down there working in the area. You’re the guy checking the snares, but you’re the guy deciding where to set other snares. If there’s really a jaguar in that area, you’re the first guy that ought to be saying “We need to pull these out of here, close them, or something.” You can’t leave that decision to somebody who’s three hours away in Phoenix, can you?

Smith: If they’re aware of pictures and tracks, I figure they’d be the ones to call that.

Later the USFWS SAs question Smith: “He’s an old cat and you knew it. And you stood to gain a lot from it, had everything worked out fine. You were willing to take that chance.”

Smith: I wasn’t after fame on this. I was after data… There’s risks with every capture, you know, and they didn’t hope to catch him.

USFWS SA: But the risks are much greater with this cat.

Smith: I know.

Smith told the USFWS SAs he believed AZGFD had a waiver or permit for an unintentional jaguar capture and said there was work to be done along the border: “How do you turn the whole project off along the whole border (The Pajaritas are a tiny fraction of the whole border)? I just don’t see that. I guess, I felt there was probably a distance between us and the last known position (of Macho B). Smith also said if “he did not prepare for a jaguar capture the matter would have come out worse.”

Smith also gave the AZGFD company line that “while working in southeast Arizona there is always a possibility of catching a jaguar.” Yet, Smith nor anyone else from AZGFD ever addressed or were asked to during the investigation, if they truly believed that, why was there no preparation for an “accidental/unintentional” jaguar capture back in October when snares were first built and activated in the Patagonia Mountains for the snaring project? And if working anywhere in SE AZ meant there was a possibility for a jaguar capture, why did AZGFD not prepare for one in November when snares were first built and activated in the Pajarita/Atascosa ranges, an area known for jaguar detections? So why did all the preparation for an accidental/unintentional jaguar capture occur only after it was confirmed Macho B was alive and well and documented in the snaring area? Simple, he was a target for capture by AZGFD, not an accident.

 

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