Ninth Circuit Confirms That “Good Faith Belief” Defense Under The ESA Is Governed By A Subjective Standard


On October 25, the U.S. Court of Appeals for the Ninth Circuit vacated the Dan Calver Wallen’s conviction for killing three grizzly bears in violation of the Endangered Species Act, 16 U.S.C. §§ 1531 et seq. (ESA). The case was remanded to the Magistrate Judge to give the defendant an opportunity to establish his defense. The case is U.S. v. Wallen.

Wallen, who lives Ferndale, Montana — which is known as “bear country”— argued that he acted in self-defense, a defense that the presiding Magistrate Judge rejected because it was “objectively unreasonable.” Wallen was convicted following a bench trial for “taking” three grizzly bears in violation of the ESA and the implementing regulation, set forth at 50 C.F.R. § 17.40 (b)(1)(i)(A).

On appeal, Wallen argued that he was entitled to a jury trial. However, both the Magistrate and the Court of Appeals held that a right to a jury trial was limited to serious offenses by the Constitution, and a maximum six month sentence is not indicative of a serious crime for which the right to a jury trial is required. The Court of Appeals described as a “presumptively petty crime” because the maximum length of incarceration is six months.

On the other hand, the Court of Appeals confirmed that

the “good faith belief” defense for a prosecution under 16 U.S.C. § 1540 is governed by a subjective, rather than an objective, standard, and is satisfied when a defendant actually, even if unreasonably, believes his actions are necessary to protect himself or others from perceived danger from a grizzly bear.

And, the Court of Appeals concluded that the Magistrate Judge misconstrued the elements of a “subjective good faith defense.”