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Sweet Home and the Narrowing of Wildlife "Take" Under Section 9 of the Endangered Species Act

January 1996

Citation: ELR 10003

Author: Steven P. Quarles, John A. MacLeod, and Thomas R. Lundquist

Editors' Summary: The Supreme Court's recent Sweet Home decision validated the U.S. Fish and Wildlife Service's regulation defining "harm" under the ESA to include habitat modification. The decision leaves private landowners facing uncertainty regarding what types of actions they may take on their land without causing "harm" to a listed species and thereby committing a "take" of the species in violation of the Act. The authors examine the statutory "take" prohibition and the regulatory provisions further defining "take" and "harm." They then discuss the history of the Sweet Home case and the Sweet Home decision itself. Next, they describe the scope of the "harm" regulation in light of Sweet Home and several other decisions under the Act. They conclude that these decisions have substantially narrowed the extent to which habitat modification on private land may constitute a "take" under the ESA, but that substantial uncertainty remains.

Mr. Quarles and Mr. Macleod are partners in, and Mr. Lundquist is special counsel to, the law firm of Crowell & Moring in Washington, D.C. The authors have sought to provide a well-supported analysis. Still, the analysis below inevitably reflects some sympathy for landowners derived from the authors' role as counsel to the landowner and development interests in Sweet Home and several other cases discussed herein, as well as their representation of similar interests seeking legislative reform of the ESA.

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