Babbitt v. Sweet Home Chapter of Communities for a Great Oregon: A Clarion Call for Property Rights Advocates

Beth S. Ginsberg

Editors' Summary: Property rights advocates implicitly complained in Babbitt v. Sweet Home Chapter of Communities for a Great Oregon that a Fish and Wildlife Service regulation that aimed to protect endangered and threatened species by defining "harm" to include habitat modification impinged on their rights as private landowners by asking them to share with the government responsibility for protecting such species. The U.S. Supreme Court upheld the regulation as reasonable given the relevant language of the Endangered Species Act. The reasoning of the Court's majority, concurring, and dissenting opinions mirrors the property rights debate currently before the 104th Congress. The decision will likely impact the debate, serving as the "poster child" for those seeking to reverse what many argue has been successful, bipartisan implementation of the Act. In this Article, the author reviews the Act and the Supreme Court's opinions in Sweet Home, and analyzes the decision's likely impact on the property rights debate as it relates to the Act. The author concludes that the zeal of the 104th Congress will likely overcome the results of the Supreme Court's decision.

Ms. Ginsberg is a partner in the D.C. office of Bogle & Gates. Her practice includes litigation, counseling, legislative, and regulatory activities under all environmental and natural resource statutes. Ms. Ginsberg has also served as the Senior Advisor to the U.S. Environmental Protection Agency's Assistant Administrator for the Office of Solid Waste and Emergency Response. Ms. Ginsberg also held a trial attorney position with the environmental defense section of the Environment Division of the U.S. Department of Justice.

[25 ELR 10478]

In Babbitt v. Sweet Home Chapter of Communities for a Great Oregon,¹ the U.S. Supreme Court upheld the Secretary of the Interior's definition of "harm" as used in § 9 of the Endangered Species Act (ESA).² Heralded as a "land-mark" environmental decision, Sweet Home is certainly an important victory for environmentalists, and conservationists in particular, and is perhaps a major, albeit temporary, setback for property rights advocates.³

At issue in Sweet Home was whether the Secretary of the Interior exceeded his authority in determining that the ESA's broad prohibition against "taking," which by definition includes "harming"⁴ endangered or threatened species, encompasses habitat modification or degradation that "actually kills or injures wildlife." Petitioners implicitly asked the Court to determine whether Congress intended habitat preservation to be a duty the federal government and private landowners share to "save from extinction species that the Secretary of the interior designates as endangered or threatened."⁵ The majority concluded that the statutes plain language and legislative history supported the Secretary's assertion that the regulation was reasonable, because "the proper interpretation of a term such as 'harm' involves a complex policy choice,"⁶ which the Court was reluctant to gainsay.

Notably, the exchanges between the Supreme Court Justices, as set forth in the majority, concurring, and dissenting opinions, mirror the substance of the current debate in Congress over the affirmative obligations of private parties under the ESA to protect endangered and threatened species. Indeed, a significant majority of the House and a majority of the Senate agree with the dissent's view that the proper role of the Act's taking prohibitions and affirmative conservation obligations, as applied to private landowners, is merely to prevent the hunting, trapping, shooting, or killing of protected species as opposed to the more indirect forms of "harm," such as habitat modification, that often injure or result in the death of protected species. Although the Court's decision is undoubtedly correct, it promises to have enormous political impact on the survival of the "take" prohibitions and affirmative requirements under ESA §§ 9 and 10 in their present form as property rights advocates [25 ELR 10479] lobby Congress to overhaul the ESA to lessen the economic burdens it imposes on private landowners.

This Article outlines the ESA's major statutory provisions and summarizes the lower courts' treatment of the issues Sweet Home raised. The Article reviews the Supreme Court's majority, concurring, and dissenting opinions, and analyzes the decision's likely impact on the Clinton Administration's conservation policies and the direction the 104th Congress is preparing to take to disassemble the Act's authority over the activities of private landowners.

Statutory Background

To fully appreciate the significance of Sweet Home and its impact on private property owners, it is necessary to describe briefly the major provisions of the ESA. In 1973, Congress enacted the ESA in order to stem the tide of species extinction. In general, the ESA establishesa number of overlapping statutory provisions designed to protect and to preserve the habitat of endangered and threatened species.

Section 4 of the Act commands the Secretary of the Interior to identify species of fish or wildlife that are in danger of extinction and to publish periodically lists of all species that he determines are endangered or threatened.⁷ Section 4 also authorizes the Secretary to develop recovery plans that enable the species to return to their unendangered and nonthreatened status.⁸ ESA § 5 authorizes the Secretaries of Interior, Agriculture, and Commerce Departments to acquire land expressly to preserve and conserve habitat for endangered and threatened species of wildlife, fish, and plants.⁹

ESA § 7 protects these same species by establishing affirmative obligations for the federal government and by legislating a range of prohibited acts in order to conserve the species. Section 7 requires each federal agency to insure that any action authorized, funded or carried out by such agency . . . is not likely to jeopardize the continued existence of any endangered species or threatened species or result in destruction or adverse modification of habitat of such species" which has been determined by the Secretary . . . to be critical. . . .¹⁰

Under ESA § 9,¹¹ it is illegal for any person¹² to "take" any listed endangered species of fish or wildlife within the United States, its territorial sea, or on the high seas.¹³ ESA § 3 defines "take" to include "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct."¹⁴

Even as it enacted the ESA in its entirety, Congress expressed concern about the role of habitat destruction in the demise of endangered and threatened species.¹⁵ Following this cue, and because the Act does not specificallydefine "harm," the Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS)¹⁶ have interpreted the § 9 prohibition against "take" to prohibit habitat modification that results in actual death to a member of the protected species. The FWS issued an interpretative regulation that defines "harm" to include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering.¹⁷

Habitat modification is "harm" when it "causes ascertainable physical injury or death to an individual member of a listed species."¹⁸ Determining whether habitat modification constitutes "harm" "requires an evaluation of the species involved, the biological needs of that species, and the degree of habitat modification."¹⁹

While the § 7 "conservation" obligations and "jeopardy" prohibitions established for federal agencies address the species as a whole and, thus, prohibit only those actions that could jeopardize all members of a protected species, the § 9 taking prohibition applies to a single member of a species.²⁰ All "persons," including private individuals, corporations, states, and the federal agencies, are authorized to enforce these provisions.²¹

Under this comprehensive statutory and regulatory regime, private individuals that modify habitat located on their lands and thereby kill or injure a single member of a listed species violate the Act's takings prohibition and may be subject to civil and criminal penalties and injunctive relief.²² Given the breadth of the ESA's prohibition against a "take," Congress subsequently amended the Act to authorize several narrow exceptions to this general rule.

The Secretary of the Interior may permit private parties to take wildlife under ESA § 10 if the "take" is "incidental to, and not the purpose of, the carrying out of an otherwise [25 ELR 10480] lawful activity."²³ To obtain a § 10 permit, parties must prepare and submit to the FWS a habitat conservation plan that minimizes and mitigates the adverse impacts of an incidental taking. As long as the taking "will not appreciably reduce the likelihood of the survival and recovery of the species in the wild,"²⁴ private landowners may modify or destroy wildlife habitat pursuant to a § 10 incidental takings permit.

Federal agencies that first engage in a formal § 7 consultation with the FWS also may obtain permission to commit an incidental "take" in compliance with the specific terms and conditions of a written statement under § 7(b)(4)(C)(iv) designed to minimize the incidental taking.²⁵ In a further exception to the Act's "take" prohibition, Congress created an Endangered Species Committee (the "God Squad"). This Committee can, under certain narrowly defined circumstances, allow a project to proceed under § 7 despite a real threat of extinction to the affected species.²⁶

Sweet Home: Case History

The ESA's complexity and occasional lack of technical precision led to the series of complicated statutory challenges raised in Sweet Home at the district and appellate court levels.

District Court Decision

A group of small landowners, logging companies, and families dependent on the forest products industries in the southeast and pacific northwest regions of the United States filed their challenge to the Secretary's definition of "harm" in the U.S. District Court for the District of Columbia.²⁷ This plaintiff coalition claimed that the "harm" regulation as applied to the endangered red-cockaded woodpecker and the threatened northern spotted owl harmed them economically and was an impermissible extension of the § 9 "take" prohibition. According to plaintiffs, Congress did not intend the word "take" to include habitat modification and did not intend the ESA to apply to routine management of private property.

Plaintiffs argued that although the Senate's original version of the ESA would have defined "take" to include "destruction, modification, or curtailment of habitat or range," that language was omitted from the Act's final version.²⁸ They also argued that § 5's land acquisition provisions set forth an exclusive remedy in the event of habitat modification, authorizing the federal government to buy private land to prevent habitat degradation. Plaintiffs further argued that because the term "harm" was added to the bill eventually enacted into law at the last moment on the Senate floor without debate, an expansive interpretation of that term was inappropriate.

The district court rejected these arguments, concluding that Congress intended an expansive interpretation of the term "take" that encompassed habitat modification.²⁹ The court found significant Congress' decision not to modify the term "take" when it amended the Act in 1982, despite a Ninth Circuit decision³⁰ that applied the "harm" regulation to prohibit habitat modification that injured a protected species. In addition, the court applied the analysis for judicial review of agency regulations set forth in Chevron U.S.A., Inc. v. Natural Resources Defense Council,³¹ and held that the regulation was a reasonable interpretation of the statute.

D.C. Circuit Decision

The D.C. Circuit had more difficulty reaching its decision. A divided panel initially affirmed the district court ruling, rejecting appellants' facial challenge on void-for-vagueness grounds and more narrowly framed statutory construction and policy-oriented reasoning in Sweet Home Chapter of Communities for a Great Oregon v. Babbitt.³² The court focused more particularly on appellants' assertion that courts must construe "harm" in context and, thereby, require for a finding of harm affirmative, intentional, and direct actions causing death or injury to a protected species, much as the other terms in the definition of "take" were argued by appellants' to require.

The government's successful defense of its regulation, however, was short-lived. Without the benefit of additional briefing or argument, the D.C. Circuit granted the coalition's petition for rehearing and reversed itself from affirmance to reversal of the district court decision in Sweet Home Chapter of Communities for a Great Oregon v. Babbitt.³³ Relying on the doctrine of statutory construction known as noscitur a sociis—"a word is known by the company it keeps"—the new appellate court majority concluded that the statutory context in which "harm" appeared required the word to be interpreted as applicable only to "the perpetrator's direct application of force against the animal. . . ."³⁴ The majority determined that Congress did not intend the broad curtailment of private-property rights that the regulation necessarily required, and that the "harm" regulation was an ultra vires extension of the prohibition against a "take."³⁵ As support for this reading, the majority cited ESA § 5's land acquisition authority and § 7's broad affirmative "critical" habitat obligations imposed on federal agencies.³⁶ It is significant that before the D.C. Circuit's ruling on rehearing, no court had questioned the federal [25 ELR 10481] government's view that habitat preservation is as much a private responsibility as it is a public obligation.

U.S. Supreme Court Ruling

The D.C. Circuit's decision on rehearing conflicted with the Ninth Circuit's 1988 decision in Palila v. Hawaii Department of Land & Natural Resources (Palila II), which upheld the Secretary's definition of "harm."³⁷ The federal government's subsequent petition for certiorari in Sweet Home provided the Court with an opportunity to resolve the conflict.

In a 6-3 decision, the U.S. Supreme Court overturned the D.C. Circuit's decision on rehearing. Justice Stevens wrote the majority opinion, and he was joined by Justices O'Connor, Kennedy, Souter, Ginsburg, and Breyer. The majority's reasoning for reversing the D.C. Circuit's decision was threefold. First, the ordinary use of the term "harm" supports the Secretary's regulation, which in the context of the statute "naturally encompasses habitat modification that results in actual injury or death to members of an endangered or threatened species."³⁸ The majority thereby rejected the notion that "harm" must be narrowly defined to include only direct³⁹ or willful⁴⁰ action that leads to injury. In doing so, the majority noted that unless the term encompasses indirect injuries as well, the term "harm" would have no meaning that does not duplicate the meaning of other words defining the term "take."⁴¹

Second, the majority rejected respondents' arguments on the basis that they presented a "facial" challenge to the regulation. According to the majority, such challenges may only be upheld if every conceivable application of the regulation would lead to an ultra vires result. Thus, the majority easily rejected respondents' contention that the Secretary's regulation reached unforeseeable harm, because although drafted in a fashion that potentially sweeps within its scope activities that are inherently more attenuated, the regulation clearly prohibits activity that an actor would easily recognize as resulting in the extinction of a listed species by destroying its habitat.⁴² Therefore, noting its potential reach and that enforcement of the regulation could lead to unconstitutional results, the majority cautioned that resolution of those "difficult questions of proximity and degree" must be resolved on a case-by-case basis.⁴³

The majority cited Tennessee Valley Authority (TVA) v. Hill⁴⁴ to support its conclusion ESA's broad purpose supports extending the "take" prohibition to "activities that cause the precise harms Congress enacted the statute to avoid."⁴⁵ The majority explained that the TVA decision acknowledged the Act as "the most comprehensive legislation for the preservation of endangered species ever enacted by any nation."⁴⁶ Indeed, the TVA decision expressly precluded the completion of the now infamous Tellico Dam because of its predicted impact on the survival of the snail darter as a direct result of its habitat modification. The TVA Court explained:

the plain intent of Congress in enacting this statute was to halt and reverse the trend toward species extinction, whatever the cost. This is reflected not only in the stated policies of the Act, but in literally every section of the statute.⁴⁷

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Third, the majority in Sweet Home was strongly influenced by Congress' 1982 addition of § 10. The majority concluded that the addition of § 10 to the ESA

strongly suggests that Congress understood § 9(a)(1)(B) to prohibit indirect as well as deliberate takings. . . . Congress' addition of the § 10 permit provision supports the Secretary's conclusion that activities not intended to harm an endangered species, such as habitat modification, may constitute unlawful takings under the ESA unless the Secretary permits them.⁴⁸

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The majority rejected respondents' argument that the Act imposes distinctly different and mutually exclusive obligations on private parties and the federal government. The majority concluded that many of the § 7 and § 9 obligations and prohibitions overlap, reflecting the ESA's broad purposes, as set forth in § 2. Applying the doctrine of regulatory review set forth in Chevron, U.S.A., Inc. v. Natural Resources Defense Council,⁴⁹ the Court upheld the Secretary's "harm" regulation as reasonable, concluding that Congress did not unambiguously manifest its intent to adopt respondent's statutory interpretation.

The majority also looked to legislative history for further support for its construction of the statute and found that both the House and the Senate Reports emphasized that the prohibition against a "take" should be defined "in the broadest possible manner."⁵⁰ Noting that the House Report stressed that the "take" definition would allow the Secretary to prohibit the actions of birdwatchers that might disturb the birds and make it difficult for them to breed, the majority concluded that the term "take" in § 9 reached far more than the deliberate actions of hunters and trappers. The majority was also persuaded by the fact that the term "harm" was [25 ELR 10482] introduced in the Senate as a floor amendment to the bill in efforts to "help . . . achieve the purposes of the bill."⁵¹ Recognizing that the bill as finally enacted dropped references to "the destruction, modification, or curtailment of habitat or range" cited in the original Senate bill,⁵² the majority attributed that omission to the fact that the habitat protection required in S. 1983, the original Senate bill, was far broader than the Secretary's "harm" regulation. Thus, the "take" prohibition in the S. 1983 would have made adverse habitat modification a per se violation of the Act, "unbounded by the regulation's limitation to habitat modifications that actually kill or injure wildlife."⁵³

The majority concluded its analysis of the Act's legislative history by referencing the 1982 amendments authorizing the Secretary to grant permits for "incidental" takings.⁵⁴ Dismissing respondents arguments that reference to "incidental" takings meant only the killing of listed species in the process of hunting or trapping nonlisted species, the majority emphasized that Congress "had habitat modification directly in mind."⁵⁵ Indeed, in discussing the addition of § 10, both the House and Senate Reports explicitly referenced a development project that threatened incidental harm to an endangered butterfly through modification of its habitat.⁵⁶

In a concurring opinion, Justice O'Connor emphasized that her agreement with the majority was based on the Act's incorporation of "ordinary principles of proximate causation, which introduce notions of foreseeability."⁵⁷ Important to her opinion was the FWS' acknowledgement that the regulation is inapplicable to speculative harm and requires "demonstrable effect (i.e., actual injury or death) on actual, individual members of the protected species."⁵⁸ Therefore, Justice O'Connor explained,

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in the absence of congressional abrogation of traditional principles of causation, then, private parties should be held liable under 1540(1) only if their habitat-modifying actions proximately cause death or injury to protected animals.⁵⁹

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Responding to the dissent's suggestion that the regulation punishes injury inflicted to the unborn, or "hypothetical animals," Justice O'Connor cautioned:

I do not find it as easy as Justice Scalia does to dismiss the notion that significant impairments of breeding injures living creatures. To raze the last remaining ground on which the piping plover currently breeds, thereby making it impossible for any piping plovers to reproduce, would obviously injure the population (causing the species' extinction in a generation). . . . One need not subscribe to theories of "psychic harm," . . . to recognize that to make it impossible for an animal to reproduce is to impair its most essential physical functions and to render that animal, and its genetic material, biologically obsolete. This, in my view, is actual injury.⁶⁰

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Justice O'Connor further explained that interference with breeding causes animals to suffer other forms of injury because of the vulnerable state the animals are in during the breeding process.

Breeding, feeding, and sheltering are what animals do. If significant habitat modification, by interfering with these essential behaviors, actually kills or injures an animal protected by the Act, it causes "harm" within the meaning of the regulation.⁶¹

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Agreeing with the majority that ultimate resolution of the varied proximate cause questions that will undoubtedly arise and must be left to the trial courts, Justice O'Connor emphasized the importance of the foreseeability factor. On that basis she dismissed the majority of the dissent's remaining concerns.⁶²

Writing for the dissent and joined by Justices Rehnquist and Thomas, Justice Scalia criticized the majority's reasoning, concluding that the harm regulation was an ultra vires extension of the Act's "take" prohibition. The dissent's reasoning was severalfold.

First, the dissent stated that the regulation violated principles of foreseeability and proximate cause, emphasizing the unreasonableness of the Ninth Circuit's Palila decision.⁶³ On this basis, the dissent vehemently disagreed with the majority's treatment of the "facial" nature of the challenge. The dissent emphasized the majority's "unprecedented evisceration" of "facial challenges" and stated that the majority's analysis absurdly leaves susceptible to facial attack only a regulation that is not only invalid in all its applications but does "not sweep up any person who could have been held liable under a proper application of the statute."⁶⁴

Responding to Justice O'Connor's proximate cause rationale for joining the majority, the dissent asserted that the majority's opinion leaves no room for invoking the foreseeability limitation because there can be no category of causation that is both indirect and also proximate; "proximate" means direct.⁶⁵ According to the dissent, use of the term "actually" in the "harm" regulation does not alleviate this problem:

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[25 ELR 10483]

that the injury must be "actual" as opposed to "potential" simply says nothing at all about the length or foreseeability of the causal chain between the habitat modification and the "actual" injury.⁶⁶

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The dissent emphasized what it perceived to be an inability on the part of Justice O'Connor's opinion to resuscitate the "harm" regulation through emphasis on proximate cause theories:

Just as courts may not exercise an agency's power to adjudicate, and so may not affirm an agency order on discretionary grounds the agency has not advanced . . . so also this Court may not exercise the Secretary's power to regulate, and so may not uphold a regulation by adding to it even the most reasonable of elements it does not contain.⁶⁷

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Citing outdated dictionaries and the doctrine of noscitur a sociis, the dissent determined that the common use of the term "take," as informed by the other nine words used in its statutory definition, implies only direct intentional conduct. According to the dissent, here disregarding the broad definition of "take" that Congress enacted in § 3, "take" should be narrowly interpreted to mean "to reduce those animals, by killing or capturing, to human control."⁶⁸ In so concluding, the dissent derided the majority's decision and argued that the regulation could be stretched to encompass:

[a] farmer who tills his field and causes erosion that makes silt run into a nearby river which depletes oxygen and thereby "impairs [the] breeding" of protected fish. . . .⁶⁹

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The dissent intoned:

[a] large number of routine private activities—farming, for example, ranching, roadbuilding, construction and logging—are subjected to strict-liability penalties when they fortuitously injure protected wildlife, no matter how remote the chain of causation and no matter how difficult to foresee. . . .⁷⁰

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The dissent also urged that the Secretary's interpretation of the term "harm" does not comport with the use of the term "take" as applied elsewhere in the Act.⁷¹ Further, the dissent contended that Congress' specific use of the phrase "habitat modification" in the context of § 7 and omission of it in § 9 strongly indicates Congress' intent to limit the reach of the § 9 "take" prohibition:

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Where Congress includes particular language in one section of a statute but omits it in another . . ., it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.⁷²

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Additionally, the dissent asserted that by defining "harm" to include significant habitat modification that injures populations of wildlife, the regulation makes the § 7(a)(2) habitat modification restriction "almost wholly superfluous," because:

[as] "critical habitat" is habitat "essential to the conservation of the species," adverse modification of "critical" habitat by a federal agency would also constitute habitat modification that injures a population of wildlife.⁷³

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The dissent summarily rejected the majority's reliance on the laudable purposes of the Act as "empty flourish" and asserted that even if resort to the legislative history of the Act were proper, which Justice Scalia by no means conceded, the discussion by both Houses of Congress of § 5's land acquisition authority as the exclusive means to protect habitat on private lands was dispositive.⁷⁴ As for the majority's determination that Congress' subsequent conclusion that the addition of the "incidental takings" permitting authority under § 10 affords additional support for its holding, the dissent maintained that § 10 could just as easily be read to apply to the unintentional taking of an endangered species of salmon when fishing for species of salmon that remain unregulated under the ESA.

The sharply worded dissent concluded by emphasizing that

the Endangered Species Act is a carefully considered piece of legislation that forbids all persons to hunt or harm endangered animals, but places upon the public at large, rather than upon fortuitously accountable individual landowners, the cost of preserving the habitat of endangered species. There is neither textual support for, nor even evidence of congressional consideration of, the radically different disposition contained in the regulation that the Court sustains.⁷⁵

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Legislative and Policy Ramifications

Although Congress neither needed nor waited for Justice O'Connor's invitation for legislative reform, perhaps knowing that Congress lies poised to redress the problems articulated by the Sweet Home plaintiffs made it easier for Justice O'Connor and the other Justices in the majority to uphold the Secretary's harm regulation.⁷⁶ Indeed, the Republican-controlled 104th Congress is prepared to revamp the entire ESA consistent with principles espoused in the Republicans' Contract With America,⁷⁷ with the issues raised in the Sweet Home litigation serving as the reformists' poster child.

The Sweet Home decision has given the "property rights" movement more than ample fodder. Justice Scalia's foreboding, and at times vitriolic, dissent sounded a clarion call for the property rights movement, admonishing that

the Court's holding that the hunting and killing prohibition incidentally preserves habitat on private lands [25 ELR 10484] imposes unfairness to the point of financial ruin-not just upon the rich, but upon the simplest farmer who finds his land conscripted to national zoological use.⁷⁸

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The introduction of property compensation provisions in H.R. 9,⁷⁹ the House bill that sharply restricts environmental regulation through insistence on comprehensive cost-benefit and risk analyses, coupled with similar accommodations found in the Senate Judiciary Committee's "omnibus property rights bill,"⁸⁰ make it clear that the Republican majority in Congress is ready and eagerly awaiting legislative opportunities to scale back the scope of the § 9 "take" prohibition. Senator Gorton (R.-Wash.) introduced S. 768 in May 1995 to redress what property rights advocates anticipated from a Sweet Home decision adverse to their cause. This bill would require (1) the Secretary to consider human, economic, social, and cultural factors in determining how to handle endangered species; and (2) would relax the potentially tight hold the Secretary's "harm" regulation has on private landowners by expressly redefining the terms "take" and "harm" to exclude habitat modification on private property.⁸¹ The House is similarly moving to enact reforms that exceed the Senate's revisions, including provisions expressly authorizing compensation for landowners affected by the FWS' implementation of the "take" prohibitions.⁸² It would appear a virtual certainty that the 104th Congress will produce a strong legislative response to the Court's Sweet Home decision.

The Clinton Administration's attempts to stop the Republican juggernaut are viewed by many landowners sympathetic to property rights advocates to be too little, too late. In March 1995, the Secretary of the Interior, Bruce Babbitt, announced a series of administrative reforms attempting to demonstrate the Administration's commitment to increasing flexibility in administering the ESA. These reforms prominently feature a policy allowing landowners to engage in activities that result in incidental takes of threatened species but which individually and cumulatively have no lasting effect on the likelihood of a species survival and recovery. Such activities include (1) activities on tracts of land occupied by a single household and used solely for residential purposes; (2) one-time activities that affect five acres of land or less of contiguous property if that property was acquired before the date on which the Secretary listed the species occupying that land as endangered or threatened; and (3) activities the FWS identifies as negligibly effecting the survival of threatened species. Secretary Babbitt, however, signalled that Congress has the exclusive power to effectuate similar reforms for endangered species.

In addition, Secretary Babbitt proposed a number of measures designed to give landowners advanced notice of, and a "leg up" on, a probable determination that their land consists of protected habitat under the ESA.⁸³ Those measures include issuance of "no surprises" and "safe harbor" policies that would grant landowners greater certainty regarding their responsibilities under the Act. The policies would provide certainty by (1) ensuring that once signed by affected landowners, the § 10 habitat conservation plans are final and immune from future amendments that might increase demands on private landowners, and (2) protecting landowners that are not currently under an obligation to obtain a § 10 permit but who nonetheless voluntarily agree to enhance wildlife habitat on their property, from additional land use restrictions that could theoretically arise from future habitat designations.

While these measures are certainly a step in the right direction, they will probably do little to lessen the reformist zeal that currently grips Capitol Hill. Congress is currently considering bolder measures that would authorize consideration of social and economic factors in the development of § 4 recovery plans, and the Administration should be receptive to such measures to perhaps avoid even broader reforms that threaten to severely weaken the protection the Act affords threatened and endangered species from becoming a virtual certainty.⁸⁴ Similarly, the Department of the Interior should develop bolder measures that exempt larger tracts of land from the need to obtain "incidental take" permits and ease the burdens associated with obtaining approval for habitat conservation plans.⁸⁵ In short, Secretary Babbitt should respond to the current political climate by instituting administrative reforms that are broader than those recently proposed while advocating legislative amendments designed to alleviate some of the harsher impacts on private landowners resulting from strict enforcement of the "harm" regulation.

Conclusion

The ESA's successes in protecting endangered and threatened species are nothing short of remarkable. The Administration has emphasized:

the bald eagle, grizzly bear, and Aleutian Canada goose have been recovered from the brink of extinction and are now approaching recovery. California condors and red wolves have been returned to the wild and are improving dramatically. American alligators, Arctic peregrine falcons, gray whales, and brown pelicans no longer need the Act's protection and have been removed from the list [25 ELR 10485] of threatened and endangered species. Overall, nearly 40 percent of the plants and animals protected under the Endangered Species Act are now stable or improving as a direct result of recovery efforts.⁸⁶

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The 104th Congress, however, appears ready to reverse what many argue has been a largely successful 22 years of bipartisan implementation of the Act. Indeed, the House Appropriations Committee is poised to axe many of the activities the ESA authorize. For example, the Committee has proposed to "zero out" the budget for the National Biological Service and threatened to impose an appropriations restriction on the government's ability to list new species and to engage in species and habitat protection research.⁸⁷ Given these sharp restrictions at the request of property rights advocates, it is safe to assume that the de minimis exceptions and procedural reforms Secretary Babbitt has proposed will not quell the property rights fever that has struck the Republican Congress and been fed by the Court's Sweet Home decision. Given the activism the 104th Congress has demonstrated, it is safe to assume that the impact of the majority's decision in Sweet Home will be short-lived.

1. 25 ELR 21194 (U.S. 1995).

2. 16 U.S.C. § 1538(a)(1), ELR STAT. ESA § 9(a)(1) (1988).

3. In addition, the Texas Attorney General filed an amicus brief on behalf of Texas and other states and local governments that claimed the Secretary's enforcement of the ESA impinges on state sovereignty. More specifically, Texas claimed that the "harm" regulation at issue usurped the state's administration and interpretation of its water rights and property laws, as well as state and local control over land use planning. Environmental Groups Hail Sweet Home; Property Rights Movement Gears Up on Hill, Daily Env't Rep. (BNA), June 30, 1995, at AA-4.

4. See 16 U.S.C. § 1532(19), ELR STAT. ESA § 3(19).

5. Sweet Home, 25 ELR at 21194.

6. Id. at 21199.

7. 16 U.S.C. § 1533, ELR STAT. ESA § 4.

8. Id. § 1533(f), ELR STAT. ESA § 4(f).

9. Id. § 1534, ELR STAT. ESA § 5.

10. Id. § 1536(a)(2), ELR STAT. ESA § 7(a)(2).

11. Id. § 1538(a)(1)(B)-(C), ELR STAT. ESA § 9(a)(1)(B)-(C).

12. The ESA defines "person" to include private individuals, corporations, states, municipalities, state political subdivisions, and employees and agents of these governmental entities. Id. § 1532(13), ELR STAT. ESA § 3(13).

13. This prohibition has been extended to threatened wildlife species. 50 C.F.R. § 17.31(a) (1994). The U.S. Fish and Wildlife Service (FWS) adopted this regulation on the basis of § 4 authority permitting the Secretary to "issue such regulations as . . . necessary and advisable to provide for the conservation of the species. The Secretary may by regulation prohibit with respect to any threatened species any act prohibited under section 1538(a)(1) of this title, in the case of fish or wildlife. . . ." 16 U.S.C. § 1533(d), ELR STAT. ESA § 4(d).

14. 16 U.S.C. § 1532(19), ELR STAT. ESA § 3(19).

15. S. REP. No. 97-418, 97th Cong. 2d Sess. 10 (1982); H.R. CONF. REP. No. 97-835, 97th Cong., 2d Sess. 30-32 (1982).

16. While the FWS is responsible for enforcing the Act to protect terrestrial species, the NMFS is empowered to protect marine species. See 16 U.S.C. §§ 1532(15), 1533(a)(2), ELR STAT. ESA §§ 3(15), 4(a)(2) (1988); 50 C.F.R. §§ 17.2(b), 17.11 (1994).

17. 50 C.F.R. § 17.3 (1994). The Secretary of the Interior modified this regulation in 1981 to require that the habitat modification actually kills or injures wildlife. The original regulatory definition of the term "harm" was issued in 1975 and established "significant environmental habitat modification or degradation as a prohibited taking without further proof of actual injury or death to a listed species." See 40 Fed. Reg. 44412, 44416 (1975); 46 Fed Reg. 54748, 54750 (1981).

18. Sweet Home Chapter of Communities for a Great Oregon v. Babbitt, 1 F.3d 1, 5, 23 ELR 21151, 21153 (D.C. Cir. 1993).

19. Sweet Home Chapter of Communities for a Great Oregon v. Lujan, 806 F. Supp. 279, 286, 23 ELR 20314 (D.D.C. 1992).

20. 50 C.F.R. § 17.3 (1994).

21. 16 U.S.C. § 1540(g)(1)(A), ELR STAT. ESA § 11(g)(1)(A).

22. Id. § 1540(a), (b), and (e)(6), ELR STAT. ESA § 11(a),(b), and (e)(6).

23. Id. § 1539(a)(1)(B), ELR STAT. ESA § 10(a)(1)(B). The FWS' corresponding regulations are found at 50 C.F.R. §§ 17.22(b) and 17.32(b) (1994).

24. 16 U.S.C. § 1539(a)(2)(B)(iv), ELR STAT. ESA § 10(a)(2)(B)(iv).

25. Id. § 1536(o)(2), ELR STAT. ESA § 7(o)(2).

26. Id. § 1536(e), ELR STAT. ESA § 7(e).

27. Sweet Home Chapter of Communities for a Great Oregon v. Lujan, 806 F. Supp. 279, 286, 23 ELR 20314, 20317 (D.D.C. 1992).

28. Hearings on S.1592 and S.1983 Before the Subcomm. on Environment of the Senate Comm. on Commerce, 93d Cong., 1st Sess. 27 (1973).

29. Sweet Home Chapter of Communities for a Great Oregon v. Lujan, 806 F. Supp. at 285, 23 ELR at 20316.

30. Palila v. Hawaii Dept. of Land & Natural Resources, 639 F.2d 495, 11 ELR 20446 (9th Cir. 1981) (Palila I).

31. Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 843, 14 ELR 20507, 20509 (1984).

32. 1 F.3d 1, 23 ELR 21151 (D.C. Cir. 1993).

33. 17 F.3d 1463, 24 ELR 20680 (D.C. Cir. 1994).

34. Id. at 1465, 24 ELR at 20681.

35. Id.

36. Chief Judge Mikva dissented, arguing that the Chevron doctrine required the opposite conclusion.

37. Palila v. Hawaii Dept. of Land & Natural Resources, 852 F.2d 1106, 18 ELR 21199 (9th Cir. 1988) (Palila II).

38. Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 25 ELR 21194, 21196 (U.S. 1995).

39. The Court noted that Congress' use of the terms "harass," "pursue," and "wound" in defining "take" undermines the dissent's conclusion that the § 9 prohibition is limited only to direct actions leading to death or injury. Sweet Home, 25 ELR at 21196 n.10.

40. Id. at 21197. The Court concluded that the D.C. Circuit erred in reading a scienter requirement into the "take" prohibition, emphasizing that § 9 requires only that the prohibited action be performed "knowingly."

41. Id. at 21196. The Court explained that the D.C. Circuit's ruling gave "harm" the same function as other words in the "take" definition, thereby denying it independent meaning. According to the Court, canons of statutory construction require an interpretation that gives "harm" a particular function in the Act, "consistent with but distinct from the functions of the other verbs used to define 'take'." Id. at 21197.

42. Id. at 21197.

43. Id. at 21199.

44. 437 U.S. 153, 8 ELR 20513 (1978).

45. Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 25 ELR at 21196. The Court acknowledged that while TVA did not directly deal with the issue of whether the Secretary's "harm" regulation was an ultra vires extension of the "take" prohibition under ESA § 9, its reasoning in TVA was nonetheless instrumental in its Sweet Home analysis.

46. TVA, 437 U.S. at __, 8 ELR at 20519.

47. Id. at __, 8 ELR at 20520.

48. Sweet Home, 25 ELR at 21197.

49. 467 U.S. 837, 14 ELR 20507 (1984).

50. S. REP. NO. 93-307, 93d Cong., 1st Sess. 7 (1973); H.R. REP. NO. 93-412, 93d Cong., 1st Sess. 15 (1973).

51. 119 CONG. REC. 25683 (July 24, 1973).

52. Id.

53. Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 25 ELR at 21198.

54. H.R. REP. NO. 97-567, 97th Cong., 2d Sess. 31 (1982).

55. Sweet Home, 25 ELR at 21199.

56. S. REP. NO. 97-418, 97th Cong., 2d Sess. 10 (1982); H.R. CONF. REP. NO. 97-835, 97th Cong., 2d Sess. 30-32 (1982).

57. Sweet Home, 25 ELR at 21199 (O'Connor, J., concurring).

58. Id. at 21200 (O'Connor, J., concurring).

59. Id. (O'Connor, J., concurring).

60. Id. at 21199-200 (O'Connor, J., concurring).

61. Id. at 21200 (O'Connor, J., concurring).

62. Id. at 21200-201 (O'Connor, J., concurring). Using that rationale, Justice O'Connor posited that the Ninth Circuit's decision in Palila II, 852 F.2d 1106, 18 ELR 21199 (9th Cir. 1988), was wrongly decided. In Palila II, the Ninth Circuit held a Hawaii state agency in violation of the "take" prohibition because it permitted feral sheep to eat mamane-naio seedlings that, when full-grown, might have fed and sheltered endangered palila. According to Justice O'Connor, "destruction of the seedlings did not proximately cause actual death or injury to identifiable birds; it merely prevented the regeneration of forest land not currently inhabited by actual birds." Sweet Home, 25 ELR at 21201 (O'Connor, J., concurring).

63. See supra note 63. The Ninth Circuit decision did not reach the issue of whether the district court properly found that harm included habitat modification preventing recovery of an endangered species. It is also significant that Palila II upheld the district court's finding that the "harm" regulation did not require proof of death of individual members of a species or a decline in the species' population.

64. Sweet Home, 25 ELR at 21206 (Scalia, J., dissenting).

65. Id. (Scalia, J., dissenting).

66. Id. (Scalia, J., dissenting). Similarly, Justice Scalia argued that inclusion of omissions as well as affirmative acts within the breadth of the "harm" regulation further weakened the regulation's purported foreseeability element.

67. Id. (Scalia, J., dissenting).

68. Id. at 21207 (Scalia, J., dissenting).

69. Id. at 21202 (Scalia, J., dissenting).

70. Id. at 21203 (Scalia, J., dissenting).

71. The dissent cited references to ESA §§ 11(e)(4)(B) and 10(e)(1), which do not appear on their face to implicate habitat modification in the context of "take." 16 U.S.C. §§ 1540(e)(4)(B), 1539(e)(1), ELR STAT. ESA §§ 11(e)(4)(B), 10(e)(1).

72. Sweet Home, 25 ELR at 21204 (Scalia, J., dissenting).

73. Id. (Scalia, J., dissenting).

74. Id. (Scalia, J., dissenting).

75. Id. at 21207 (Scalia, J., dissenting).

76. Id. at 21201 (O'Connor, J., concurring).

77. See, e.g., H.R. 9, which generally would require the infusion of risk assessment, cost-benefit analysis, and compensation allowances in all major environmental regulatory schemes.

78. Sweet Home, 25 ELR at 21201 (Scalia, J., dissenting).

79. H.R. 9 would make landowners eligible for compensation if their property value is diminished by at least 20 percent due to the issuance of ESA regulations.

80. S. 605 would require the federal government to compensate property owners for government actions that diminish property values by 33 percent or more. These bills would make property owners eligible for payment if any portion of their property is diminished in value by at least the threshold percentage.

81. S. 768 was introduced on May 9, 1995.

82. Rep. Don Young (R-Alaska), Chairman of the House Committee on Resources, is expected to introduce ESA reform legislation this summer. See Environmental Groups Hail Sweet Home, supra note 3, at AA-3.

83. U.S. DEPT. OF THE INTERIOR, PROTECTING AMERICA'S LIVING HERITAGE: A FAIR, COOPERATIVE AND SCIENTIFICALLY SOUND APPROACH TO IMPROVING THE ENDANGERED SPECIES ACT 1 (Mar. 6, 1995).

84. In contrast to listing decisions and recovery plans under § 4, the Secretary is authorized to designate critical habitat on the basis of scientific data as well as "economic impact and any other impact." 16 U.S.C. § 1533(a)-(b), ELR STAT. ESA § 4(a)-(b).

85. Secretary Babbitt has recently issued a habitat conservation plan Guidance Document designed to alleviate the procedural burdens, costs, and extraordinary length of time associated with agency approval of private landowners' habitat conservation plans. Indeed, only approximately 45 habitat conservation plans have been finally approved since the enactment in 1982 of § 10's incidental "take" permitting program. Approximately 150 habitat conservation plans, however, are currently at various stages of development. See Environmental Groups Hail Sweet Home, supra note 3, at AA-2.

86. PROTECTING AMERICA'S LIVING HERITAGE, supra note 83, at 1.

87. Babbitt Says Appropriations Panel Measure Would Abolish National Biological Service, Daily Env't Rep. (BNA), June 29, 1995, at A-1.