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Babbitt v. Sweet Home Chapter of Communities for a Great Or.

ELR Citation: 25 ELR 21194
Nos. No. 94-859, 115 S. Ct. 2407/515 U.S. 687/40 ERC 1897/(U.S., 06/29/1995) Rev'd

The U.S. Supreme Court upholds a U.S. Fish and Wildlife Service (FWS) regulation that defines Endangered Species Act (ESA) §9's prohibition on "taking" endangered or threatened species to include "significant habitat modification or degradation where it actually kills or injures wildfire." The Court determines that the Act provides three reasons for concluding that the FWS' regulation is a reasonable interpretation of the Act. First, the ordinary meaning of "harm" naturally encompasses habitat modification that results in actual injury or death to members of an endangered or threatened species. Second, the ESA's broad purpose of providing comprehensive protection for endangered and threatened species supports the reasonableness of the FWS' definition. Third, the fact that Congress in 1982 authorized the FWS to issue permits for takings that §9(a)(1)(B) would otherwise prohibit, strongly suggests that Congress understood §9 to prohibit indirect as well as deliberate takings. The Court notes that the D.C. Circuit made three errors in finding that "harm" must refer to a direct application of force because the words around it do. First, the court's premise was flawed since several of the words accompanying "harm" in §3's definition of "take" refer to actions or effects that do not require direct applications of force. Second, to the extent that it read an intent or purpose requirement into the definition of "take," the D.C. Circuit ignored §9's express provision that a "knowing" action is enough to violate the Act. Third, the court employed noscitur a sociis to give "harm" essentially the same function as other words in the definition, thereby denying it independent meaning. The Court also observes that the Act's inclusion of land acquisition authority under ESA §5 and a directive to federal agencies to avoid destruction or adverse modification of critical habitat under ESA §7, does not alter the Court's conclusion. The Court finds further support for its decision in the Act's legislative history. Committee reports accompanying the bills that became the ESA do not specifically discuss the meaning of "harm," but they make clear that Congress intended "take" to apply broadly to cover indirect as well as purposeful actions. The Court notes that the term "harm" was introduced in the Senate as a floor amendment to the bill in efforts to help achieve the purposes of the bill. The Court also observes that the 1982 amendments authorize the FWS to grant permits for "incidental" takings. The Court rejects arguments that reference to "incidental" takings meant only the killing of listed species in the process of hunting or trapping nonlisted species, determining that Congress had habitat modification directly in mind. Finally, the Court notes that it upholds the regulation against a facial challenge, and that difficult questions of proximity and degree must be addressed through case-by-case resolution and adjudication.

[Previous decisions are published at 23 ELR 21151, 20314 and 24 ELR 21470, 20680.]

Counsel for Appellants
John A. Macleod, Steven P. Quarles
Crowell & Moring
1001 Pennsylvania Ave. NW, Washington DC 20004
(202) 624-2500

Counsel for Appellees
Martin W. Matzen
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000