Attorneys argued in federal court Wednesday over whether the legality of jaguar Macho B's capture is a question of fact or law.
The dispute is whether settling the capture's legality requires a jury to sort the facts, or if it's a matter of law, for a judge to decide.
The arguments pertain to a motion to dismiss criminal charges against research technician Janay Brun.
After questioning lawyers for Brun and the U.S. Attorney's Office, Federal Magistrate Thomas Ferraro said he would rule later on whether to dismiss two charges against Brun in the February 2009 capture of this country's last known wild jaguar.
Brun has admitted placing female jaguar scat in early February 2009 where a snare trap corralled Macho B two weeks later, but has denied violating the U.S. Endangered Species Act.
"If I can find as a matter of law a permit was issued" authorizing the capture, "ergo, no matter what happened after that, the facts would not support a criminal charge," Ferraro told Michael Piccarreta, Brun's attorney. "Let's assume I agreed with your analysis of these facts. ... My problem is that unless there is an issue of a matter of law, I am constrained."
Piccarreta has argued that the U.S. Fish and Wildlife Service issued the Arizona Game and Fish Department a permit to capture endangered species that covered jaguars.
"If there is a valid permit permitting snaring, there can't be prosecution," he told Ferraro. "The judge has to decide whether the permit authorized Game and Fish to snare trap Macho B."
"I'm not asking you to rule on facts of the cases; when they go to trial we will prove each in spades. If you rule that the state, its employees and agents are permitted to trap an endangered species - if that's true, judge ... their (prosecutors') case is effectively done," Piccarreta said.
Assistant U.S. Attorney Ryan DeJoe said Piccarreta is asking Ferraro to step into a jury's role - which he said is forbidden by court precedent.
Whether a valid permit was issued is a factual question, DeJoe said, since the species covered are listed and the government's rights are spelled out in the permit.
The permit said a Game and Fish employee or agent may in the course of official duties take a protected species "for conservation purposes consistent with the Endangered Species Act" and with a related state-federal agreement, assuming this action is not reasonably anticipated to result in the animal's death, DeJoe said.
"Take that clause in its entirety, and there cannot be a legal determination that Game and Fish had authority to take a jaguar," DeJoe said.
Contact reporter Tony Davis at tdavis@azstarnet.com or 806-7746.
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