Because of Macho B we have the knowledge of what jaguar “conservation” truly means in Arizona and thus, the U.S. Because of him,
We can protect him,
It is past time to get AZGFD out of endangered carnivore “conservation.” It is time to shatter the incestuous world of wildlife conservation in Arizona. It is way past time to hold AZGFD and USFWS accountable for all they have not done to protect jaguars and other species (mainly carnivores) and all they did to contribute to Macho B’s snaring and death. If you have an idea on how to accomplish these goals please contact me (email@example.com) or please contact whomever to get the ball rolling. If you have information on how these agencies failed to protect any species and/or may have been complicit in their injury or death please speak out; either here or somewhere. It is time to act. Will you join me?
I received an email from Ron Thompson recently and have embedded it below in this post. Thompson was McCain’s supervisor/confidante/mentor on the AZGFD lion and bear snaring project and is currently employed on the tax payer funded University of Arizona jaguar study.
His message was just too bizarre so I had to share it.
Though I have seen the whole, un-redacted investigation file of Macho B’s case, legally I could only report on this blog what was included in my redacted Freedom of Information Act request. I had requested the whole investigation file and I received pretty much all of it. This blog is by no means the entire story and I am doubtful the full version will ever be known. Close to 98% of what is on this blog I discovered as a defendant in this case preparing for trial.
Just this past December I learned through the AZ Republic’s series on Macho B about a document that originated with USFWS “Jaguar Lead,” Erin Fernandez and was re-drafted by AZGFD’s Endangered Species Coordinator, Terry Johnson just 16 days before Macho B was captured. This document was a “draft” shared between USFWS and AZGFD that outlined a financial plan to capture and collar a jaguar with Macho B cited as the likely candidate. The “draft” was completed in time for a March 2009 deadline to submit proposals to the Department of Homeland Security for a chance at acquiring part of the $50 million mitigation funding or “pot of gold” as many AZGFD officials referred to it. This document was never turned over or talked about to the USFWS Special Agents in charge of the Macho B investigation and therefore, neither my attorney or I knew it existed. I believe this document could have been beneficial in a Motion to Dismiss that was submitted by my attorney so I am currently looking into any legal recourse I may have for AZGFD and USFWS suppressing evidence in a federal criminal investigation. And because of this suppressed document I seriously have to question how many other documents were suppressed and what else did the USFWS Special Agents fail to discover and investigate.
Currently, Emil McCain is claiming victimhood in the Macho B case while at the same time admitting to whoring out the truth and federal laws in exchange for being wined and dined and promised future employment by former AZGFD biologist and current University of Arizona jaguar researcher, Ron Thompson (see AZ Republic series, parts 1-3 under blogroll). When McCain directed me to place jaguar scat at the BJDP cameras and near the AZGFD snare on February 4, 2009 I believed he was a legit researcher whom had permission from AZGFD, USFWS, & BJDP to attempt to capture and collar Macho B. After Macho B was collared and McCain and Childs did not correct AZGFD’s statements that Macho B’s capture was “accidental” I became suspicious. Then after I contacted Tony Davis of the AZ Daily Star to tell him Macho B’s capture was definitely not accidental and McCain’s reaction was to attack and defame my character with his words supplemented by a script his father provided, I thought I had been duped by someone I trusted. It was at this point I considered him to be some evil, master-mind. When I read the discovery of my case while preparing for trial it became clear that McCain had intent to capture and collar Macho B all on his own and this intent was encouraged and fostered directly by Thompson (AZGFD), Johnson (AZGFD), Smith (AZGFD), Childs (BJDP), and indirectly by Van Pelt (AZGFD), O’Brien (AZGFD) and Fernandez (USFWS). Now, I just view McCain as a sociopath; adamant about taking zero responsibility for his actions (he has a history of breaking laws, maiming and killing jaguars) and even incapable of viewing any wrongdoing he has done as wrong. He always chooses the victim card as his defense and his new version of that is curious as he waited years to shift blame from me as a liar to Ron Thompson as his pimp. Since he suspiciously leaves Childs out of the equation I am wondering if Childs is still of some use to McCain? Perhaps Childs is dusting off a seat at the “jaguar conservation” table for McCain when his probation is over in two years?
To date, AZGFD has not been held accountable for violating the Endangered Species Act by illegally capturing Macho B during the course of an illegal lion and bear research project which had not been properly vetted and was done without the correct permits and without authorization from the USFWS. AZGFD has also not been held accountable for allowing their sub-contractor, Emil McCain to dictate when a visual health assessment would occur after Macho B was captured and had not moved for days. AZGFD deferred to McCain though he had no knowledge or experience in monitoring a jaguar, was not a vet, and constantly referenced mountain lion behavior to define Macho B’s behavior, though Macho B was obviously a jaguar. So because of McCain’s ineptitude and inexperience Macho B wasted away for twelve days and by the time someone with actual vet experience got to him he was diagnosed with irreversible kidney failure and killed. AZGFD has also not been held accountable for high-risk snaring protocols. Snares were only checked once a day, in the morning. Snares were placed in active human and drug smuggling corridors putting captive animals and perhaps humans at risk. Snares were activated during a time of year when it can snow one day and be seventy plus degrees and sunny the next, thus risking hypo and hyperthermia (Macho B was hypothermic) to the captive animals. The area was also inhabited by diverse species and any animal held captive in a snare could have been attacked by another animal as possibly evidenced by the javelina tooth found embedded in Macho B’s tail. And then the actual personnel and handling protocols for a jaguar capture went beyond negligent. Smith and Crabb had no vet experience, barely any wild cat experience, they didn’t even have the presence of mind to clean the dart wound on Macho B’s leg though Smith pulled the tranquilizer dart out himself. This same general area on Macho B’s leg is where the subcutaneous emphysema was located during the necropsy and was cited as one of the factors contributing to the decision to euthanize him. And AZGFD obviously has not been held accountable for lying to the public about their agency’s role in Macho B’s capture and health decline just like none of their personnel were ever charged or prosecuted for their roles despite the evidence.
USFWS still has “Jaguar Lead” Erin Fernandez in their employ and she continues to be involved in jaguar work despite her own agency recommending her for prosecution in the Macho B case. USFWS continues to be a partner with AZGFD in jaguar conservation allowing AZGFD to remain a lead agency in the “effort.” USFWS also covered for AZGFD when it became abundantly clear that AZGFD did not have the right permits to capture Macho B, no matter what the circumstances, and amended AZGFD’s permits for them a year after Macho B’s death to include pages of language authorizing AZGFD to capture and collar a jaguar. And as evidenced in this blog, the USFWS Special Agents in charge of the Macho B investigation didn’t exactly do a thorough or aggressive job.
Next are the empty words of AZ Congressman Grijalva. He requested USFWS lead in the investigation and then this past December when he got an inkling of the negligence and cover-up that occurred in Macho B’s case he said something about learning more about “prosecutorial decisions and the continuing role of key government officials in federal jaguar studies.” I first contacted his office 64 days ago to inquire if he really would follow-up on these issues but his office has never returned my calls or emails.
And then there is the former AZ U.S. Attorney, Dennis Burke. No one can question him as to why he chose not to prosecute any government officials in the Macho B case because he had to retire after his role in Operation Fast and Furious (AZ US Attorney and ATF joint gun smuggling/walking operation. A gun from this ridiculously negligent operation turned up at the murder scene of a U.S. Border Patrol agent, Brian Terry.) was made public.
One couldn’t dream of a more convoluted, corrupt, disturbing, sad and twisted tale surrounding the capture and death of an endangered species. If the government agencies, including legal ones, entrusted with conserving endangered species and enforcing endangered species law can get it so wrong with the most endangered species to reside in the U.S. just consider how bad it is for an endangered bug, plant, bird, or just about any other species living in the ecosystems that make up the U.S.
I still have not received a response from Congressman Grijalva’s office. That equates to 46 days of silence.
Erin Fernandez is still employed as “Jaguar Lead” for the USFWS and involved in the U of AZ jaguar study. Terry Johnson is still a paid AZGFD consultant for jaguar and wolf issues though he failed both species when he was the Endangered Species Coordinator for AZGFD. Jack Childs and Ron Thompson are still with the U of AZ jaguar study and had their co-workers falling over themselves in a recent interview (see blogroll for link) to describe the men’s “knowledge” and “skills” in the wake of Dennis Wagner’s damning series of the Macho B investigation published in the AZ Republic (see blogroll for parts 1-3) which implicates both men in having a definite role in Macho B’s illegal capture. Come to think of it, there was enough evidence from the federal criminal investigation into Macho B’s capture and death which accomplished the same thing.
“We are very pleased about these photos,” said Lisa Haynes, who manages the research project and coordinates the Wild Cat Conservation and Research Center project. “I am proud of our field team and their incredible knowledge and capacity to place these cameras in the best locations to detect jaguar and ocelot movement.”
Culver, who is the project’s principal investigator, said: “What is exciting about this research project is the combination of techniques and skills, from the deep knowledge of our field people of how wild cats move around the landscape to cutting edge molecular-genetic analysis of the scats.
AZGFD is still one of the lead agencies in jaguar conservation in AZ and the U.S. despite violating their Endangered Species permits and the Endangered Species Act. Not to mention that they had inexperienced personnel in the field to capture a jaguar despite knowing it was a possibility, plus their snaring techniques and protocols were unsafe for the animals especially given the location of the snares along human/drug smuggling corridors.
I’m beginning to think that keeping these people/agencies involved in jaguar conservation is someone’s or some agency’s design in order to ensure that the jaguar species has no chance of survival in the U.S.
January 16, 2013
Dear Congressman Grijalva,
I have contacted your Tucson and Washington DC offices on numerous occasions. I have left messages and talked with people on your staff that assured me someone would respond to my questions. So far, there has been silence from your office.
Rep. Raúl Grijalva, D-Ariz., who originally requested the criminal investigation, said Monday that his previous attempts to get answers were stymied but that he is determined to learn more about prosecutorial decisions and the continuing role of key officials in federal jaguar studies.
“It’s hard to describe,” Grijalva said. “Not only the tragedy involved, but the attempt to manipulate and cover up.”
Is the above quote accurate and are you truly going to learn why Dennis Burke decided not to prosecute AZGFD and USFWS officials in this case and why those same officials are still pocketing a government or otherwise tax-funded salary and why they continue to be involved in jaguar research?
In 2009 I came forward as the whistleblower in the Macho B case. The information I provided Tony Davis of the AZ Daily Star was passed on to you and it was you whom took responsibility for the Macho B investigation by requesting that USFWS be the investigative lead on the case. As it turns out, USFWS did a poor job investigating and Dennis Burke did an even worse job on deciding whom would or wouldn’t be prosecuted.
Will you please honor and complete your responsibility to the Macho B investigation?
As I write this I guarantee that AZGFD are making sure their jaguar capture protocols are current and their federal permits are valid in preparation for capturing and collaring the jaguar that has been documented recently by the proposed Rosemont Copper Mine site. In fact, a year after Macho B was snared and killed, USFWS “amended” AZGFD’s permit to specifically include, and thus allow, for the capture and collaring of a jaguar in Arizona! Unfortunately for the jaguar, the same people involved in Macho B’s illegal snaring and death will be apart of this capture through their AZGFD, USFWS, and University of AZ jaguar study affiliations.
Will you allow this jaguar, or any other documented in the U.S., to be the next victim(s) of the governmental agencies that captured, collared, and killed the last jaguar to be documented in this country? I beg of you that you don’t.
Thank you for your time. I hope to hear from you in the near future. Your offices have my contact information.
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.
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.”
After reading part one of Dennis Wagner’s Macho B series in the AZ Republic (see blogroll for link) I contacted him to find out about an AZGFD document he referred to that was drafted on February 2, 2009 just sixteen days before Macho B was snared. I had never heard of this document and as a former defendant in this case that struck me as disturbing. Terry Johnson, the former Endangered Species Coordinator for AZGFD had taken “responsibility” for the document in Wagner’s article but Johnson had not turned over this document to the USFWS Special Agents (SAs) during the course of the Macho B investigation and never mentioned it. Neither did his cohorts whom he sent the document to, Bill Van Pelt and Ron Thompson of AZGFD.
Wagner supplied me the name of the missing document: “Jaguar Collaring and Monitoring in the AZ-NM Borderlands with Mexico.” I then sent a public records request to AZGFD. Below is their response and explanation for the document. Links to the document and internal AZGFD emails about the document can be found under the blogroll or by using the links provided in the text.
AZGFD Response to my public records request:
We are in receipt of your records request and this letter will serve as the Department’s response. We understand that you desire the report that Mr. Dennis Wagner referred to in the Arizona Republic series which began December 9, 2012 and ran through December 11, 2012. There was no “report” and the document referred to was never published. Mr. Wagner is inaccurate in his characterization of the document. There was a tentative (draft) funding “proposal” document that was never finalized. We have four iterations, the first of which was authored by Ms. Erin Fernandez of the U.S. Fish and Wildlife Service and dated September 14, 2007. The email chain and the draft proposal for funding document are posted on our website in the Macho B page under “Other Relevant Documents.” This was a draft proposal generated by/for the U.S. Fish and Wildlife Service to consider in anticipation of seeking funding for jaguar research along the border, for which as much as $50 million was to be made available for allocation from the Department of Homeland Security to U.S. Fish and Wildlife Service. Note that Ms. Fernandez referred to her original 2007 version as “Internal– Draft” and commented that “Once they are finalized, they’ll be used for our discussions with DHS regarding implementation of jaguar conservation measures.” Of the Department’s three iterations, developed at U.S. Fish and Wildlife Service request in late January and early February 2009 to cover three time-frame and budget alternatives by adapting Ms. Fernandez’ version, edits were done by Mr. Ron Thompson, Large Carnivore Biologist (no longer with the Department), Josh Avey, Habitat Branch Chief (no longer with the Department), and (primarily) Terry Johnson Endangered Species Coordinator (now retired). Again, however, none of the three Department alternatives was formally conveyed to the U.S. Fish and Wildlife Service and all three remain unpublished agency draft proposals to date. Ms. Fernandez original draft may well be in the federal Report of Investigation (ROI). The records package of the emails and associated documents, regarding the draft proposal for funding, you requested, are located online on our Macho B page of the Department website in the “Other Relevant Documents” section, at http://www.azgfd.gov/w_c/jaguar/OtherRelevantDocuments.htm. Look to the bottom of the page Ms. Janay Brun December 20, 2012 Page 2 of 2 for “Other Relevant Documents.” A shortcut that will go directly to the page location is http://www.azgfd.gov/MachoBRecords. Consistent with the Department’s philosophy of transparency and open government, these documents are posted online, so that all who wish to have access or view them, are able to. Please direct any further questions you have regarding these issues to me.
Respectfully, Jim Paxon Chief of Information Arizona Game and Fish Department
Mr. Paxon states that the missing document was a draft and never finalized. That it was a document to be turned into the USFWS so they in turn could submit it to the Department of Homeland Security for consideration in granting some of that $50 million “pot of gold” for jaguar research, which included collaring a jaguar. The document specifically names Macho B as the “likely” candidate for collaring and Johnson’s version includes the dates of Macho B’s detections over the years, 1996-2008. I do not believe this document was viewed as a “draft” by Fernandez, Johnson, Thompson, or Van Pelt. I believe they viewed it as their permission slip to capture and collar Macho B. Below are a few reasons why.
Reasons #1 and #2:
The day after Johnson sent the “draft” of the jaguar collaring and monitoring document Van Pelt and Thompson, both recipients of the “draft”, became aware that Macho B could be snared because he had been documented in the vicinity of the AZGFD snaring project and the snares were being opened/re-activated at that time.
Neither Van Pelt or Thompson attempted to stop the snares from being reopened/reactivated nor did they express any concern for the possibility of Macho B being snared. If Macho B’s snaring and collaring wasn’t authorized yet, why no action from either man? And where was Johnson during this time?
Reasons #3 – #7:
Why did Johnson not provide this document to the USFWS SAs? He was asked to turn over anything and everything that had to do with jaguars as he was the “lead” for his agency, AZGFD on the species. In addition, why did he never mention this document to the SAs? Why did Thompson and Van Pelt also not mention it to the SAs? And what about the “jaguar lead” for the USFWS, Erin Fernandez? She never mentioned this document and despite the SAs seizing her computer this document was supposedly never located as it was never provided to my attorney in the government’s disclosure. And why did the SAs not find the emails discussing the document or the actual document which was emailed during the course of the investigation? If there was no conspiracy among these people to intentionally capture and collar Macho B, why was there so much silence and why was this document suppressed?
I also have to wonder if this document was ever provided to McCain or Jack Childs or if they were verbally made aware of this document through a phone call?
The missing document should have been provided to the USFWS Special Agents and anyone connected with the document should have been questioned. The fact that those things did not occur leads me to believe what McCain suggested in the AZ Republic article is true; that there was a conspiracy among AZGFD and USFWS officials to capture and collar Macho B to force the funding of jaguar research along the AZ-NM borderlands with Mexico. But, I still do not believe McCain was a victim in that scenario. I’m positive that he and Jack Childs giddily decided to go along with the conspiracy. What is most disgusting is that Childs, Thompson, and Fernandez all benefitted from their conspiracy as they are apart of the DHS funded (funded by tax payers), USFWS granted, $771,000 University of AZ jaguar study. And all of these people, except McCain for the time being, are still involved in jaguar research and will most likely end up capturing, collaring, and killing another jaguar in AZ all in the name of “conservation.”
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.
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.”
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.