No. 94-859 In the Supreme Court of the United States OCTOBER TERM, 1994 BRUCE BABBITT, SECRETARY OF THE INTERIOR, ET AL., PETITIONERS v. SWEET HOME CHAPTER OF COMMUNITIES FOR A GREAT OREGON, ET AL. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT DREW S. DAYS, III Solicitor General LOIS J. SCHIFFER Assistant Attorney General EDWIN S. KNEEDLER Deputy Solicitor General BETH S. BRINKMANN Assistant to the Solicitor General MARTIN W. MATZEN ELLEN J. DURKEE Attorneys Department of Justice Washington, D.C. 20530 (202)514-2217 ---------------------------------------- Page Break ---------------------------------------- QUESTION PRESENTED Under Section 9(a) (1) of the Endangered Species Act of 1973, 16 U.S.C. 1538(a) (1), it is unlawful for any person (including a federal agency) to "take" an en- dangered or threatened species, except for certain "takes" that are incidental to otherwise lawful activities and au- thorized by the Secretary of the Interior under conditions designed to minimize and mitigate the impact on the species, 16 U.S.C. 1536(b)(4), 1539(a)(1). The Act defines the term "take" to include "harm." 16 U.S.C. 1532 (19). The question presented is: Whether the regulation promulgated by the Secretary in 1975 and 1981 that defines "harm" to include "sig- nificant habitat modification or degradation" that "actu- ally kills or injures wildlife," 50 C.F.R. 17.3, is invalid on its face. (I) ---------------------------------------- Page Break ---------------------------------------- II PARTIES TO THE PROCEEDINGS The Secretary of the Interior, currently Bruce Babbitt, and the Director of the United States Fish and Wildlife Service, an agency within the Department of the Interior, currently Mollie H. Beattie, were the appellees in the proceeding below, where respondents Sweet Home Chap- ter of Communities for a Great Oregon, Betty F. Orem, Erickson Busheling, Inc., Southeastern Lumber Manu- facturers Association, Inc., Southern Timber Purchasers Council, Ridgetree Logging Company, Shotpouch Log- ging Company, Jean Reynolds, Emmy G. Birkenfeld, and Pat McCollum, were appellants. ---------------------------------------- Page Break ---------------------------------------- TABLE OF CONTENTS Page Opinions below . . . . 1 Jurisdiction . . . . 2 Statutory and regulatory provisions involved . . . . 2 Statement . . . . 2 Reasons for granting the petition . . . . 12 Conclusion . . . . 26 Appendix A . . . . 1a Appendix B . . . . 42a Appendix C . . . . 73a Appendix D . . . . 89a Appendix E . . . . 100a Appendix F . . . . 102a Appendix G . . . . 103a TABLE OF AUTHORITIES Cases: American Bald Eagle v. Bhatti, 9 F.3d 163 (1st Cir. 1993) . . . . 19, 23 Bowen v. Yuckert, 482 U.S. 137 (1987) . . . . 13 Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) . . . . 9, 10 Defenders of Wildlife v. Administrator, EPA, 882 F.2d 1294 (8th Cir. 1989) . . . . 23 Friends of Endangered Species, Inc. v. Jantzen, 760 F.2d 976 (9th Cir. 1985) . . . . 17 INS v. National Ctr. for Immigrants' Rights, 112 S. Ct. 551 (1991) . . . . 13 Lujan v. Defenders of Wildlife, 112 S. Ct. 2130 (1992) . . . . 3 Morrill v. Lujan, 802 F. Supp. 424 (S.D. Ala. 1992) . . . . 20 National Wildlife Fed'n v. Burlington N. R.R. Inc., 23 F.3d 1508 (9th Cir. 1994) . . . . 19, 20 (III) ---------------------------------------- Page Break ---------------------------------------- IV Cases-Continued: Page National Wildlife Fed'n v. National Park Serv., 669 F. Supp. 384 (D. Wyo. 1987) . . . . 20 Pyramid Lake Paiute Tribe of Indians v. United States Dep't of Navy, 898 F.2d 1410 (9th Cir. 1990) . . . . 20 Palila v. Hawaii Dep't of Land & Natural Re- sources 852 F.2d 1106 (9th Cir. 1988) . . . . 11, 12, 20, 21,22 639 F.2d 495 (9th Cir. 1981) . . . . 20, 22, 23 Reno v. Flores, 113 S. Ct. 1439 (1993) . . . . 13 Seattle Audubon Soc'y v. Evans, 952 F.2d 297 (9th Cir. 1991) . . . . 15 Sierra Club v. Yeutter, 926 F.2d 429 (5th Cir. 1991) . . . . 20, 23 Thomas Jefferson Univ. v. Shalala, 114 S. Ct. 2381 (1994) . . . . 20,21 TVA v. Hill, 437 U.S. 153 (1978) . . . . 12, 25, 26 United States v. Glenn-Colusa Irrigation Dist., 788 F. Supp. 1126 (E.D. Cal. 1992) . . . . 20 United States v. Salerno, 481 U.S. 739 (1987) . . . . 13 Statutes and regulations: Endangered Species Act of 1973, 16 U.S.C. 1531 et seq . . . . 3 2(a)(1), 16 U.S.C. 1531(a)(1) . . . . 3 2(b), 16 U.S.C. 1531(b) . . . . 3 3, 16 U.S.C. 1532 . . . . 2 3(3), 16 U.S.C. 1532(3) . . . . 6 3(5) (A), 16 U.S.C. 1532(5)(A) . . . . 6, 7 3(6), 16 U.S.C. 1532(6) . . . . 4 3(19), 16 U.S.C. 1532(19) . . . . 4, 13, 15 3(20), 16 U.S.C. 1532(20) . . . . 4 4, 16 U.S.C. 1533 . . . . 3 4(a)(1)(A), 16 U.S.C. 1533(a)(1)(A) . . . . 3 4(a)(3), 16 U.S.C. 1533(a)(3) . . . . 6 4(d), 16 U.S.C. 1533(d) . . . . 4 4(f), 16 U.S.C. 1533(f) . . . . 6 5, 16 U.S.C. 1534 . . . . 6 7, 16 U.S.C, 1536 . . . . 2, 6, 7 ---------------------------------------- Page Break ---------------------------------------- V Statutes and regulations-Continued: Page 7(a)(1), 16 U.S.C. 1536(a)(1) . . . . 6 7(a)(2), 16 U.S.C. 1536(a)(2) . . . . 7, 8, 10 7(a)(3), 16 U.S.C. 1536(a)(3) . . . . 7 7(b)(4), 16 U.S.C. 1536(b)(4) . . . . 7 7(b)(4) (B), 16 U.S.C. 1536(b)(4)(B) . . . . 7 7(e)-(n), 16 U.S.C. 1536(e)-(n) . . . . 7 7(h), 16 U.S.C. 1536(h) . . . . 7 7(o), 16 U.S.C. 1536(o) . . . . 7 9, 16 U.S.C. 1538 . . . . 2, 4, 5, 8, 19, 24 9(a)(1), 16 U.S.C. 1538(a)(1) . . . . 5, 16 9(a)(1)(B), 16 U.S.C. 1538(a)(1)(B) . . . . 5 10, 16 U.S.C. 1539 . . . . 2, 16, 17, 21 10(a)(1)(B), 16 U.S.C. 1539(a)(1)(B) . . . . 5, 16, 17 10(a)(2), 16 U.S.C. 1539(a)(2) . . . . 18 10(a)(2)(A), 16 U.S.C. 1539(a)(2)(A) . . . . 5, 24 10(a)(2)(B), 16 U.S.C. 1539(a)(2)(B) . . . . 5 11(a), 16 U.S.C. 1540(a) . . . . 4 11(b) ,16 U.S.C. 1540(b) . . . . 4 11(e)(6), 16 U.S.C. 1540(e)(6) . . . . 4 Endangered Species Conservation Act of 1969, Pub. L. No. 91-135, 83 Stat. 275 . . . . 8 Marine Mammal Protection Act of 1972, 16 U.S.C. 1362 (13) (Supp. V 1993) . . . . 15 Migratory Bird Treaty Act, 16 U.S.C. 703 et seq . . . . 15 16 U.S.C. 703 (1988 & Supp. V 1993) . . . . 15 28 U.S.C. 1391(b) (Supp. V 1993) . . . . 23 28 U.S.C. 1391(e) (1988 & Supp. V 1993) . . . . 22 50 C.F.R. : Section 17.3 . . . . 2, 4, 8, 13 Section 17.11 . . . . 8 Section 17.21(c)(1) . . . . 4 Section 17.31 . . . . 10 Section 17.31(a) . . . . 4, 8, 9 Sections 17.40-17.48 . . . . 4 Miscellaneous: 55 Cong. Rec. S5544-S5545 (daily ed. July 30, 1917) . . . . 15 ---------------------------------------- Page Break ---------------------------------------- VI Miscellaneous-continued: Page 119 Cong. Rec. 25,683 (1973) . . . . 15 40 Fed. Reg. 44,412 (1975) . . . . 4 46 Fed. Reg. (1981): p. 29,490 . . . . 22 p. 29,492 . . . . 22 p. 54,748 . . . . 4, 5 p. 54,750 . . . . 5, 19 55 Fed. Reg. 26,114 (1990) . . . . 8 58 Fed. Reg. (1993): p. 65,088 . . . . 18, 24 p. 65,090 . . . . 18 59 Fed. Reg. 5439 (1994) . . . . 24 H.R. Rep. No. 412, 93d Cong., 1st Sess. (1973) . . . . 14, 16 H.R. Rep. No. 835, 97th Cong., 2d Sess. (1982) . . . . 17 Endangered Species Act of 1973: Hearings Before the Subcomm. on Fisheries and Wildlife Conserv- vation and the Environment of the House Comm. on Merchant Marine and Fisheries, 97th Cong., 2d Sess. (1982) . . . . 17, 22 Daniel J. Rohlf, The Endangered Species Act: A Guide to its Protections and Implementation (Stan. Envtl. L. Soc'y 1989) . . . . 25 S. Rep. No. 2, 65th Cong., 1st Sess. (1917) . . . . 15 S. Rep. No. 307, 93d Cong., 1st Sess. (1973) . . . . 16, 21 S. Rep. No. 418, 97th Cong., 2d Sess. (1982) . . . . 17 The Random House Dictionary of the English Lan- guage (2d ed. 1987) . . . . 13 Webster's Third New International Dictionary (1986) . . . . 13 Edward O. Wilson, The Diversity of Life (Belknap Press of Harv. Univ. Press 1992) . . . . 25 ---------------------------------------- Page Break ---------------------------------------- In the Supreme Court of the United States OCTOBER TERM, 1994 BRUCE BABBITT, SECRETARY OF THE INTERIOR, ET AL., PETITIONERS v. SWEET HOME CHAPTER OF COMMUNITIES FOR A GREAT OREGON, ET AL. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT The Solicitor General, on behalf of the Secretary of the Interior, respectfully petitions for a writ of certiorari to review the judgment of the United States Court of Ap- peals for the District of Columbia Circuit in this case. OPINIONS BELOW The August 12, 1994, statements accompanying the court of appeals' denial of petitioners' petition for rehear- ing and suggestion for rehearing en banc (App., infra, 89a-99a) are reported at 30 F.3d 190. The March 11, 1994, opinion of the court of appeals on respondents' petition for rehearing (App., infra, 1a-41a) is reported at 17 F.3d 1463. The July 23, 1993, initial opinion of the court of appeals (App., infra, 42a-72a) is reported (1) ---------------------------------------- Page Break ---------------------------------------- 2 at 1 F.3d 1. The opinion of the district court (App., infra, 73a-88a) is reported at 806 F. Supp. 279. JURISDICTION The court of appeals entered its initial judgment on Ju1y 23, 1993. The court of appeals thereafter granted respondents' petition for rehearing, and on March 11, 1994, it entered a new judgment that differed from its earlier judgment. Petitioners then sought rehearing of that new judgment, and the court of appeals denied that petition for rehearing on August 12, 1994. App., infra, 89a-99a. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTORY AND REGULATORY PROVISIONS INVOLVED 1. Pertinent provisions of the Endangered Species Act (3, 7, 9, and 10; 16 U.S.C. 1532, 1536, 1538, 1539) are reprinted at App., infra, 103a-114a. 2. The Secretary of the Interior's regulation defining "harm" for purposes of the Endangered Species Act, 50 C.F.R. 17.3, provides: Harm in the definition of "take" in the [En- dangered Species] Act means an act which actually kills or injures wildlife. Such act may include sig- nificant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavorial patterns, including breeding, feeding or sheltering. STATEMENT This case concerns the facial validity of a regulation, 50 C.F.R. 17.3, promulgated by the United States Fish and Wildlife Service, an agency within the Department of the Interior, to define the term "harm" as it is used in the prohibition in Section 9 of the Endangered Spe- cies Act, 16 U.S.C. 1538(a)(1), against the "take" of ---------------------------------------- Page Break ---------------------------------------- 3 an endangered species. The regulation defines "harm" to mean an act that actually kills or injures wildlife, including significant habitat modification or degradation that has that effect. The district court sustained the validity of the "harm" regulation (as well as another challenged regulation ). In its initial opinion, the court of appeals affirmed the judgment of the district court. On rehearing, the court of appeals held the regulation invalid insofar as it defines "harm" to embrace habitat modification, and the court of appeals reversed the dis- trict court's judgment to that extent. 1. The Endangered Species Act, 16 U.S.C. 1531 et seq. (ESA), "seeks to protect species of animals [and plants] against threats to their continuing existence caused by man." Lujan v. Defenders of Wildlife, 112 S. Ct. 2130, 2135 (1992). The Act was passed in 1973 in response to increasing concern about the extent to which "various species of fish, wildlife, and plants * * * have been rendered extinct as a consequence of economic growth and development untempered by adequate con- cern and conservation." 16 U.S.C. 1531(a)(1). The purposes of the Act include providing "a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved." 16 U.S.C. 1531(b). The ESA provides for protection of endan- gered and threatened species through a number of dif- ferent techniques. 1 ___________________(footnotes) 1 Section 4 of the ESA, 16 U.S.C. 1533, provides for the deter- mination and listing of species by the Secretary as "endangered" or "threatened." In making the determination regarding the list- ing of species, the Secretary is to consider, inter alia, "the present or threatened destruction, modification, or curtailment of its habitat or range." 16 U.S.C. 1533(a)(1)(A). "Endangered species" means "any species which is in danger of extinction throughout all or a significant portion of its range other than a species of the Class Insects determined by the Secretary to constitute a pest whose protection under the provisions of this chapter would present ---------------------------------------- Page Break ---------------------------------------- 4 a. Section 9(a)(1) of the ESA (16 U.S.C. 1538 (a)(1)) provides, inter alia, that it is unlawful for any person to "take" any endangered species. By regulation, the "take" prohibition also applies to threatened species. 2. Section 3 (19) of the ESA (16 U.S.C. 1532(19)) defines the term "take" to mean "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to at- tempt to engage in any such conduct." The "take" pro- hibition may be enforced through suits for injunctive re- lief, 16 U.S.C. 1540(e)(6), as well as civil and criminal penalties, 16 U.S.C. 1540(a), and (b). The Fish and Wildlife Services (FWS) promulgated a regulation in 1975 to define "harm" for purposes of the "take" prohibition in Section 9 of the ESA. 40 Fed. Reg. 44, 412. As revised without substantive change in 1981, see 46 Fed. Reg. 54,748, the "harm" regulation (50 C.F.R. 17.3) provides: Harm in the definition of "take" in the Act means an act which actually kills or injures wildlife. Such act may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral pat- terns, including breeding, feeding or sheltering. ___________________(footnotes) an overwhelming and overriding risk to man." 16 U.S.C. 1532 (6). "Threatened species" means "any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range." 16 U.S.C. 1532 (20). Endan- gered and threatened species are referred to collectively as "listed species." 2 Under Section 4(d), 16 U.S.C. 1533(d), the Secretary may, by regulation, prohibit with respect to threatened species. any act prohibited under 16 U.S.C. 1538(a)(1). The Secretary, through authority delegated to the Director of the Fish and Wildlife Service, extended the "take" prohibition in 16 U.S.C. 1538(a)(1) to threatened species. See 50 C.F.R. 17.31(a), 17.21(c)(1). Thus, except where special rules applicable to particular species otherwise provide, see 50 C.F.R. 17.40-17.48, the "take" prohibition applies to all listed species. ---------------------------------------- Page Break ---------------------------------------- 5 In promulgating the regulation, the Secretary concluded that a showing of actual death or injury to the species is necessary to constitute "harm." 46 Fed. Reg. 54,748 (1981). The Secretary explained, however, that "harm" is not limited "to direct physical injury to an individual member of the wildlife species. " Ibid. Rather, "[d]eath or injury * * * may be caused by impairment of essen- tial behavioral patterns [as a result of habitat modifica- tion] which can have significant and permanent effects on a listed species." Ibid. The Secretary emphasized that without a showing of such impacts, habitat modification does not "harm" the species and cannot be considered a take. "[H]abitat modification or degradation, standing alone, is not a taking pursuant to section 9." 46 Fed. Reg. 54,750 (1981). In 1982, Congress enacted Section 10(a)(1)(B) of the Act, which authorizes the Secretary to permit a taking that would otherwise be prohibited under Section 9(a) (1)(B), if such taking is "incidental to, and not [for] the purpose of, the carrying out of an otherwise lawful activity." 16 U.S.C. 1539(a)(1)(B). The Secretary may not issue such an "incidental take permit" unless the ap plicant submits a conservation plan and the Secretary finds, inter alia, that the applicant will, "to the maximum extent possible, minimize and mitigate the impact of [such] taking," that "the applicant will ensure that ade- quate funding for the plan will be provided," that "the taking will not appreciably reduce the likelihood of the survival and recovery of the species in the wild," and that the applicant will take "such other measures that the Secretary may require as being necessary or appropriate for purposes of the plan." 16 U.S.C. 1539(a)(2)(A) and (B). b. In addition to Section 9, the ESA includes other methods of protecting endangered and threatened species. Section 4 authorizes the Secretary to designate "critical habitat" for listed species (see note 4, infra), and to ---------------------------------------- Page Break ---------------------------------------- 6 develop recovery plans to provide for the conservation and survival of such species. 16 U.S.C. 1533(a)(3), 1533(f). Section 5 of the Act directs the Secretary to utilize land acquisition and other authority under other wildlife protection statutes to acquire land for the purpose of conserving endangered species. 16 U.S.C. 1534. Section 7 applies to federal agencies, and provides that they "shall, in consultation with and with the assistance of the Secretary, utilize their authorities in furtherance of the purposes of [the Act] by carrying out programs for the conservation of endangered species and threatened species ." 16 U.S.C. 1536(a)(1). 3. In addition, in con- sultation with the Secretary, federal agencies must "insure that any action authorized, funded, or carried out by such agency * * * is not like]y to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species which is determined * * * to be critical, [4]. unless such agency has been granted an exemp- ___________________(footnotes) 3 Section 3 (3) of the Act, 16 U.S.C. 1532(3), defines "conserva- tion": The terms "conserve", "conserving", and "conservation" mean to use and the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this chapter are no longer necessary. Such methods and procedures include, but are not limited to, all activities asso- ciated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking. 16 U.S.C. 1532(3). 4 The Act defines "critical habitat" for a threatened or endan- gered species to mean: (i) the specific areas within the geographical area. occupied by the species, at the time it is listed * * *, on which are found those physical or biological features (I) essential to ---------------------------------------- Page Break ---------------------------------------- 7 ton for such action * * * pursuant to subsection (h)." 5. 16 U.S.C. 1536(a) (2). The Section 7 process applies to an agency's issuance of licenses and permits to private parties, as well as actions undertaken by the agency it- self. See 16 U.S.C. 1536(a) (3). In 1982, Congress provided a mechanism for authoriz- ing "incidental takes" by federal agencies, just as it did for such takes by private parties. See page 5, supra. Under the 1982 amendments, the Fish and Wildlife Serv- ice must prepare, as part of the biological opinion it furnishes to the agency during the Section 7 consultation process, what is known as an "incidental take statement." See 16 U.S.C. 1536(b)(4). That statement specifies the impact of any take that is anticipated to occur incidental to the proposed federal action as well as the "reasonable and prudent measures" that the Secretary considers "nec- essary or appropriate to minimize such impact," and sets forth the "terms and conditions * * * that must be com- plied with by the Federal agency or applicant [6]. (if any) or both, to implement the measures specified." 16 U.S.C. 1536(b)(4)(B).7 ___________________(footnotes) the conservation of the species and (II) which may require special management considerations or protection; and (ii) specific areas outside the geographical area occupied by the species at the time it is listed * * * upon a determina- tion by the Secretary that such areas are essential for the conservation of the species. 16 U.S.C. 1532(5)(A). 5 Subsection (h) of Section 7 provides for the granting of an exemption from the prohibitions of Section 7 by a specially con- stituted Endangered Species Committee. See 16 U.S.C. 1636 (e) - (n). 6 The term "applicant" refers to an applicant seeking a permit or license from a federal agency. 7 Authorization for exemptions from the taking prohibition in Section 9 in certain circumstances was enacted in 1978 as part of the special exemption procedure under subsections (e) - (n) of Section 7. See 16 U.S.C. 1536 (o). ---------------------------------------- Page Break ---------------------------------------- 8 There often is some overlap among the provisions of the Act applicable to federal agencies. For example, within Section 7(a) (2) itself, issues considered in deter- mining whether a federal action is "likely to jeopardize the continued existence" of a listed species may overlap with those relevant to determining whether the action is likely to "result[] in the destruction or adverse modifica- tion" of habitat designated by the Secretary as critical for the species. 16 U.S.C. 1536(a)(2). Also, because fed- eral agencies are subject to both Section 7(a)(2) and the "take" prohibition in Section 9, a particular action may cause a "taking" of an endangered species or threat- ened species, but not adversely affect the species to such an extent that it violates the "jeopardy" standard in Sec- tion 7(a)(2). So too, an action may result in the de- struction or adverse modification of "critical habitat," and yet not result in a "take" of an endangered species be- cause it does not "actually kill or injure wildlife." 50 C.F.R. 17.3. 2. Respondents are individuals and organizations in the Pacific Northwest and Southeast who are engaged in, or depend upon, timber harvesting. They allege that they are affected by the "harm" regulation because of its ap- plication to the northern spotted owl, which was listed as a threatened species in 1990, 55 Fed. Reg. 26,114, and the red-cockaded woodpecker, which was listed as an endangered species in 1970. 50 C.F.R. 17.11. 8 Respondents brought this action as a facial challenge to 50 C.F.R. 17.3 (which defines "harm"), and 17.31 (a) (which extends protections to threatened species) (see note 2, supra ). Respondents did not challenge either regulation as applied to any of their own actions in rela- tion to the listed birds. ___________________(footnotes) 8 The red-cockaded woodpecker was listed pursuant to authority under the Endangered Species Conservation Act of 1969, Pub. L. No. 91-135, 83 Stat. 275, a predecessor to the Endangered Species Act. ---------------------------------------- Page Break ---------------------------------------- 9 Respondents raised two claims with respect to the "harm" regulation. 9. First, they contended that the regu- lation failed under the first step of the analysis in Chev- ron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-843 (1984), because the regula- tion's inclusion of certain habitat modification activities within the meaning of "harm" was contrary to what in their view was an unambiguously expressed intent of Congress to exclude such activities from the statutory prohibition against "takes" of endangered species. Sec- ond, respondents claimed that the "harm" regulation is void for vagueness. On cross-motions for summary judgment, the district court upheld the validity of the "harm" regulation, con- cluding that the "language, structure, and history of the ESA reveal that Congress intended an expansive inter- pretation of the word 'take,' an interpretation that en- compasses habitat modification." App., infra, 82a-83a. The court stated that even if it were to find the ESA "silent or ambiguous" with respect to the issue, it would uphold the Secretary's regulation as a reasonable inter- pretation of the Act. Id. at 83a. The district court also held that the regulatory definition of "harm" was not void for vagueness. Id. at 83a-85a. 3. a. On July 23, 1993, a divided panel of the court of appeals initially affirmed the judgment of the district court. The court issued a brief per curiam order. App., infra, 46a. Chief Judge Mikva and Judge Williams wrote separate concurring opinions (id. at 59a, 67a), and Judge Sentelle dissented (id. at 68a). b. Respondents filed a petition for rehearing, limited to the question whether the "harm" regulation is contrary to congressional intent. On March 11, 1994, the panel granted respondents' petition for rehearing and, in an- other divided decision, reversed the district court's judg- ___________________(footnotes) 9 The courts below sustained 50 C.F.R. 17.31 (a), and this peti- tion therefore is limited to the "harm" regulation. ---------------------------------------- Page Break ---------------------------------------- 10 ment with respect to the validity of the regulation defining "harm." 10 App., infra, 1a-24a. Judge Sentelle filed a concurring opinion (id. at 25a) and Chief Judge Mikva filed a dissenting opinion (id. at 27a). The court of appeals concluded that the "harm" reg- ulation was neither clearly authorized by Congress nor a reasonable interpretation of the statute, citing Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. at 842-843, 844. App., infra, 3a. The court acknowledged that the term "harm" may be read to include the sort of habitat modification covered by the regulation. It reasoned that "harm" should not be con- strued to cover such actions, however, because, in its view, the other words in the statutory definition ("harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect") "contemplate the perpetrator's direct application of force against the animal taken"-e.g., "A hit B." Id. at 4a. The court applied the maxim "noscitur a sociis" (that a word is known by the company it keeps) and concluded that the term "harm" should be read in a similar manner. Id. at 5a-7a. The court further concluded that the "structure and history of the Act confirm this reading." App., infra, 7a. It read the "harm" regulation as having "transposed to the private anti-'take' provision" the duty of federal agen- cies under Section 7(a)(2) to refrain from "'the destruc- tion or adverse modification of habitat of such species which is determined * * * to be critical.'" Ibid. The court found that result to be contrary to the ESA, which assigned "the primary task of habitat preservation to the government," rather than to private parties. Id. at 8a. Finally, the court rejected the argument that the 1982 amendments to the ESA that authorized permits for "in- ___________________(footnotes) 10 The court's original judgment is otherwise unaltered. App., infra, 24a. Thus, the court of appeals adhered to its rulings that 50 C.F.R. 17.31 is valid and that the "harm" regulation is not void for vagueness. ---------------------------------------- Page Break ---------------------------------------- 11 cidental takings" reflected a congressional ratification of the Secretary's interpretation. Id. at 10a-24a. In a concurring opinion, Judge Sentelle expressed the view that the statutory language and structure of the ESA provided a sufficient basis for invalidating the "harm" regulation and that resort to the legislative history was unnecessary. App., infra, 25a. He also reasoned that to define "harm" as the Secretary does would render super- fluous the other words in the statutory definition of "take." App., infra, 25a. Judge Mikva dissented. App., infra, 27a. He first objected that the majority erroneously shifted the burden to the government agency to show that its interpretation is clearly authorized or reasonable, whereas, under Chev- ron, the burden is on those challenging governmental action to show either that Congress has directly spoken on the issue or that the agency's interpretation is un- reasonable. Id. at 28a. In this case, Judge Mikva con- cluded that the statute is silent, or at best ambiguous on the scope of the term "harm," so that the issue is whether the Secretary's interpretation of that term constitutes a permissible reading of the statute. He concluded that it does, expressing the view that the majority's application of noscitur a sociis was fatally flawed because the "defini- tion of 'take' does not conform to the paradigm of one broad word alongside many narrow ones." App., infra, 30a. Judge Mikva found additional support for the Secre- tary's interpretation in the legislative history of the ESA, including the 1982 amendments. The amendments, he reasoned, demonstrate that Congress thought that the orig- inal prohibition against "takings" included some "inci- dental takings," and that by "incidental takings" Congress meant to include certain habitat modification. App., infra, 37a. Finally, Judge Mikva pointed out that the court's ruling creates a conflict with the Ninth Circuit's decision in Palila v. Hawaii Dep't of Land & Natural ---------------------------------------- Page Break ---------------------------------------- 12 Resources, 852 F.2d 1106, 1107-1109 (9th Cir. 1988) (Palila II). c. On April 25, 1994, petitioners filed a petition for rehearing with suggestion for rehearing en bane, which the court denied on August 12, 1994. App., infra, 89a- 90a. Four members of the court of appeals voted to grant rehearing en banc. Id. at 90a. Three of those judges- Judge Silberman, joined by Chief Judge Mikva and Judge Wald-filed a statement expressing the view that apply- ing Chevron deference the interpretation of "harm" in the Secretary's regulation should be sustained. Id. at 98a. REASONS FOR GRANTING THE PETITION The court of appeals erred in holding that the Secre- tary's longstanding regulation defining the term "harm" in the prohibition against the "taking" of endangered species in Section 9(a)(1) of the Endangered Species Act of 1973 is invalid on its face. That regulation is consis- tent with the ordinary meaning of the term "harm," re- flects a reasonable administrative interpretation of the statutory provisions in the context of the Act as a whole, and is supported by the purposes and legislative history of the Act and by this Court's discussion of the prede- cessor regulation in TVA v. Hill, 437 U.S. 153, 184-185 & n.30 (1978). The contrary conclusion by the court below conflicts with Palila v. Hawaii Dep't of Land & Natural Resources, 852 F.2d 1106 (9th Cir. 1988), and is also inconsistent with decisions of other courts of ap- peals that have considered the "take" prohibition in the context of habitat modifications. The scope of the "take" prohibition is, in addition, a question of exceptional pub- lic importance in the administration of the ESA and the protection of endangered and threatened species. Review by this Court therefore is warranted. 1. a. To prevail in a facial challenge to a regulation, the plaintiff "must establish that no set of circumstances ---------------------------------------- Page Break ---------------------------------------- 13 exists under which the [regulation] would be valid." Reno v. Flores, 113 S. Ct. 1439, 1446 (1993), quoting United States v. Salerno, 481 U.S. 739, 745 (1987); see also INS v. National Ctr. for Immigrants' Rights, 112 S. Ct. 551, 555 (1991); cf. Bowen v. Yuckert, 482 U.S. 137, 154 n, 12 (1987). Thus, in this case, respondents were required to establish that in no set of circumstances could the statutory prohibition against the "taking" of a pro- tected species include "harm" to the species that takes the form of "significant habitat modification or degrada- tion" that "actually kills or injures wildlife." 50 C.F.R. 17.3. This respondents failed to do. The term "take" is defined in the Act to mean "to harass, harm, pursue, hunt, shoot, wound, kill, trap, cap- ture, or collect, or to attempt to engage in any such conduct." 16 U.S.C. 1532(19). This case includes the meaning of one of those enumerated forms of taking: "harm." In ordinary usage, the word "harm," in its verb form, means "to cause hurt or damage to: INJURE," Webster's Third New International Dictionary 1034 (1986), or "to do or cause harm to; injure; damage; hurt," The Random House Dictionary of the English Language 873 (2d ed. 1987). This common understand- ing of the word includes the actual killing or injury of wildlife whether by means of modification or degradation of its habitat of by other causes. The statutory definition of "take" itself expressly includes "kill" and "wound," and there is no reason why Congress would have intended to allow those consequences simply because they are brought about by the destruction of habitat essential for the wildlife's breeding, feeding, or shelter, rather than by the discharge of a firearm or other direct application of force (the types of actions to which the court of appeals believed the prohibition is limited. App., infra, 4a). 11 ___________________(footnotes) 11 For example, a bulldozer clearing land may instantaneously kill an individual member of a species as well as cause the death ---------------------------------------- Page Break ---------------------------------------- 14 The presence of the words "harass" and "pursue" in the definition of "take" also weighs against the court of ap- peals' crabbed interpretation, for neither necessarily (or even ordinarily ) involves the direct application of force. 12. Read in the context of the various other words in the definition of "take" that affirmatively support the Secre- tary's elaboration of the meaning of "harm," the court of appeals' reliance on the principle noscitur a sociis (App., infra, 6a-7 a) was misplaced. The assumption underlying the court's invocation of noscitur a sociis is that Congress must have intended for certain words in the definition of "take" that involve the application of physical force ("hunt," "shoot," "trap," "capture") to furnish a narrowing focus even with respect to other words, such as "harm," that have broader conno- tation. Whatever the merits of that proposition in other settings, it has no merit here, especially since the relevant statutory language contains a number of both broader and narrower terms. Congress's purpose in including the terms "harass" and "harm" was to ensure that the term "take" would have a broader meaning than it had been given in wildlife statutes such as the Migratory Bird ___________________(footnotes) of the entire species if the clearing activity destroys the whole habitat on which the species is dependent. 12 For example, Congress intended that the "harass" prohibition allow the "Secretary to regulate or prohibit the activities of bird- watchers where the effect of those activities might disturb the birds and make it difficult for them to hatch or raise their young." H.R. Rep. No. 412, 93d Cong., 1st Sess. 11 (1973). Notwithstanding the court of appeals' suggestion that the release of sound waves or light particles fits the model of "A hit B," App., infra, 4a, the Act's inclusion of what might otherwise be regarded as benign actions that would be encompassed by the word "harass" do not reasonably fit the paradigm of direct physical force applied against an animal. The House Report, quoted above, confirms that the "take" prohibition instead focuses on the "effect" of an action on the species. ---------------------------------------- Page Break ---------------------------------------- 15 Treaty Act (MBTA). 13 The court of appeals' focus on physical blows to the body of individual animals, by con- trast, effectively mirrors the MBTA concept of "take." The majority's endeavor to maintain conformity with the narrowest terms defining "take" defeats the intent ex- plicitly expressed by the responsible congressional com- mittees (even before the more expansive word "harm"' was added to the bill) that "take" have a broad scope and include actions having the effect of significantly dis- rupting a species' normal behavioral patterns. 14. See ___________________(footnotes) 13 The MBTA, 16 U.S.C. 703 et seq., was enacted 55 Years prior to the ESA for the purpose of halting the "indiscriminate slaughter of migratory birds." See, e.g., 55 Cong. Rec. S5544-S5545 (daily ed. July 30, 1917); S. Rep. No. 2, 65th Cong., 1st Sess. (1917). The MBTA prohibits the taking of virtually every bird in the United States, not just endangered or threatened birds. The defini- tion of "taking" under the MBTA., 16 U.S.C. 703 (1988 & Supp. V 1993), omits the words "harass" and "harm." See Seattle Audubon Soc'y v. Evans, 952 F.2d 297, 302-303 (9th Cir. 1991) ("Habitat destruction causes 'harm' to the owls under the ESA but does not 'take' them within the meaning of the MBTA."). When Congress enacted the Marine Mammal Protection Act in 1972 it included the word "harass" in the definition of "take." See 16 U.S.C. 1362 (13) (Supp. V 1993). Then, when enacting the ESA in 1973, Congress enlarged the concept of "take" further by adding the word "harm" to the definition. See 16 U.S.C. 1532 (19). 14 The court's suggestion (App., infra, 9a-10a) that its narrow reading of "take" is supported by the failure of the Senate com- mittee to adopt a proposed definition that made habitat modifica- tion a form of "take" disregards the circumstances surrounding the committee's action. The proposal before the committee would have made any habitat modification a "take." It did not include the limitations under the Secretary's narrower interpretation, which requires proof of significant modification and actual killing or injury as a result of significant impairment of essential be- havioral patterns. In any event, the report gives no explanation of why the committee selected one proposed definition over the other, and the word "harm" was added during the floor debate purportedly to clarify language that was omitted from the draft that emerged from committee. 119 Cong. Rec. 25,683 (1973) (Sen. Tunney). ---------------------------------------- Page Break ---------------------------------------- 16 S. Rep. No. 307, 93d Cong., 1st Sess. 7 (1973) ("'Take' is defined * * * in the broadest possible manner to include every conceivable way in which a person can 'take' or attempt to `take' any fish or wildlife."); note 12, supra, quoting H.R. Rep. No. 412, 93d Cong., 1st Sess. 11 (1973). Moreover, even if noscitur a sociis were properly in- voked below, the court of appeals' characterization of the unifying theme of the statutory language is mistaken. The unifying concept of the specific terms chosen by Congress to define "take''-to "hunt, shoot, wound, trap, and collect," as well as the broader and more general terms "harass, harm, pursue" and "kill''-is that the con- duct will result in some reasonably ascertainable and proximate injury (or death) to the protected species. 15. Thus, the statutory text does not compel the conclusion that the Secretary's regulation is invalid, as the court of appeals believed; the text affirmatively supports the valid- ity of the regulation. The 1982 amendments to the ESA reinforce the reason- ableness of the Secretary's interpretation. In 1982, Con- gress acted to lessen the restriction imposed by the "take" prohibition by adding the provisions in Section 10 that authorize the issuance of permits allowing a "take" that is "incidental to, and not the purpose of, the carry- ing out of an otherwise lawful activity." 16 U.S.C. 1539 (a)(1)(B). This description of the category of permitted "takes''-those that are merely "incidental" to otherwise lawful activity surely encompasses those that result from the serious adverse consequences of habitat ___________________(footnotes) 15 The principle against surplusage, a maxim on which the con- curring opinion below relied, App., infra, 25a, is also unenlight- ening. There is no reasonable definition of "harm" that would not render superfluous some of the other terms. Moreover, the prin- ciple against surplusage is in tension with noscitur a sociis. To avoid surplusage, the word "harm" must be given meaning that is different, rather than synonymous, with the other terms. ---------------------------------------- Page Break ---------------------------------------- 17 modification. Congress's provision of a mechanism for permitting such activities notwithstanding the "take" pro- hibition weighs against a construction of the prohibition that would not include such activities in the first place. Moreover, there is considerable evidence that, when it created the Section 10 permit program, Congress had specifically in mind incidental takes in connection with habitat modification activities. For example, the Section 10 incidental take permit process was described in H.R. Rep. No. 835, 97th Cong., 2d Sess. 30-32 (1982), and S. Rep. No. 418, 97th Cong., 2d Sess. 10 (1982), as being modeled after a situation in which the "take" of endangered butterflies was caused by the bulldozing of the butterflies' habitat in connection with "the develop- ment of some 300 dwelling units." 16. The incidental take permit provision was also intended to further the statutory purpose of habitat conservation. Ibid. 17. b. Far from applying the standard for determining whether a regulation is invalid on its face (i.e., whether there are any circumstances under which the regulation would be valid), the court of appeals took the opposite approach-it invalidated the "harm" regulation on the basis of imagined applications that were not before it. For example, the court of appeals stated that the regula- tion reflects an improbable relation to congressional intent ___________________(footnotes) 16 The cited development is described further in Friends of Endangered Species, Inc. v. Jantzen, 760 F.2d 976 (9th Cir. 1985); Endangered Species Act of 1973: Hearings Before the Subcomm. on Fisheries and Wildlife Conservation and the Environment of the House Comm. on Merchant Marine and Fisheries, 97th Cong., 2d Sess. 331-335 (1982) [1982 House Hearings]. 17 In addition, in the reauthorization hearings, objections to the regulatory definition of "harm" and proposals to change it were discussed in conjunction with the incidental take exemption. See 1982 House Hearings at 240, 262, 273, 290-293, 328-329, 331, 343. ---------------------------------------- Page Break ---------------------------------------- 18 because it might forbid any modification of an area between 35 and 42 million acres in size because "some scientists" believe such an area is necessary to the sur- vival of the threatened grizzly bear, even though the court acknowledged that such broad coverage represented the views of an "adherent of aggressive protection." App., infra, 6a. 18. By focusing only on extreme examples and the potential for unreasonably broad application of the regulation to specific species, the court of appeals failed ___________________(footnotes) 18 In the August 12, 1994, statement, the panel majority stated that in using that example, it understood that the regulation re- quired that the habitat modification be "fatal" to grizzly bears. It explained that if millions of acres are necessary to the survival of grizzly bears then any material curtailment necessarily would involve death for members of the species. App., infra, 91a. The panel majority also stated, however, that it did not endorse the specific claim of what acreage might actually be necessary for the grizzlies. Id. at 91a n.1. That qualification is significant because it is unrealistic to assume that a take violation could be found with respect to any and all habitat modification activities based on such evidence. The panel majority's August 12, 1994, statement also pointed to a Special Rule Concerning Take of the Threatened Coastal California Gnatcatcher, published at 58 Fed. Reg. 65,088 (1993), as evidencing that enforcement of the "harm" regulation entails Interior's exercise of power over large tracts of land. App., infra, 94a. The panel majority's reliance is misplaced, however, because the cited reference, 58 Fed. Reg. 65,090 (1993), is to a state plan- ning process that encompasses 3.8 million acres. That area does not equate to gnatcatcher habitat, nor does the reference mean, as the panel majority suggests. that the "take" prohibition would apply to all habitat modification activities within that area. The Fish and Wildlife Service's issuance by special rule of an incidental take authorization for the gnatcatcher is largely the result of special circumstances in California whereby state law provides for a regional planning process that incorporates criteria that meet ESA incidental take standards. See 16 U.S.C, 1539(a)(2). The special rule effectively eliminates duplication of state, local and federal efforts and serves to reduce federal involvement. ---------------------------------------- Page Break ---------------------------------------- 19 to heed the limited nature of review accorded in a facial challenge. 19 In any event, the court of appeals greatly exaggerated the breadth of the "harm" regulation. The court of ap- peals overlooked the fact that the evidentiary burden required to prove "actual death or injury" directly trace- able to habitat-disturbing actions taken by a defend- ant imposes significant limitations on the regulation's application. Prior to this case, the courts correctly interpreted the "harm" prohibition not to extend to activity that only potentially, as opposed to actually, causes (or will cause) harm. American Bald Eagle v. Bhatti, 9 F.3d 163, 166 (1st Cir. 1993) ("courts have granted injunctive relief only where petitioners have shown that the alleged activity has actually harmed the species or if continued will actually, as opposed to potentially, cause harm to the species"); see also National Wildlife Fed'n v. Burlington N. R.R., 23 F.3d 1508, 1511-1513 (9th Cir. 1994) ___________________(footnotes) 19 The court of appeals also suggested that the regulation is unreasonable and overly broad because it is directed at harm flow- ing from the withholding of a benefit, rather than physical intru- sions that wound an individual member of an endangered species. App., infra, 3a-4a. The August 12, 1994, statement reasserted that view and pointed to the Department of the Interior's com- mentary accompanying the "harm" rule, which stated that an "act" is inclusive of either commissions or "omissions" that would be prohibited by Section 9. App., infra, 91a; 46 Fed. Reg. 54,750 (1981). However, an "omission" constitutes an "act" prohibited by Section 9 only if there is a legal duty to act and the failure to discharge the duty causes a significant habitat modification that leads in turn to death or injury to a listed species. An example of such an omission might arise from a duty to maintain a licensed dam structure-a maintenance omission causing a dam breach could significantly destroy habitat and cause death or injury to a listed species as a result. The comment by the Department of the Interior does not encompass passive acts of nonfeasance or create a duty, where it otherwise would not exist, to maintain a listed species' habitat. ---------------------------------------- Page Break ---------------------------------------- 20 (corn spill was localized in nature and did not constitute significant habitat modification or cause significant im- pact); Pyramid Lake Paiute Tribe of Indians v. United States Dep't of Navy, 898 F.2d 1410, 1420 (9th Cir. 1990) (evidence does not establish that diversion of water actually caused spawning problems); National Wild- life Fed'n v. National Park Serv., 669 F. Supp. 384 (D. Wyo. 1987) (insufficient evidence of injury from plan designed to reduce conflicts between humans and grizzly bear); Merrill v. Lujan, 802 F. Supp. 424, 430-433 (S.D. Ala. 1992) (insufficient evidence that destruction of mouse habitat would cause injury to mouse). By the same token, the courts that have found violations of the regulation have recognized that it applies only where actual injury or death directly traceable to the actions of the defendant has occurred or will occur. See, e.g., Palila v. Hawaii Dep't of Land & Natural Resources, 639 F.2d 495, 498 (9th Cir. 1981) (Palila I); Palila II, 852 F.2d at 1108-1110; Sierra Club v. Yeutter, 926 F.2d 429 (5th Cir. 1991) (enjoining Forest Service from even- aged lumber practices following documentation of dra- matic decline in red-cockaded woodpecker colonies di- rectly traceable to lumbering practice); United States v. Glenn-Colusa Irrigation Dist., 788 F. Supp. 1126, 1133 (E.D. Cal. 1992) (water district's pumping kills fish by creating water velocity that causes salmon to be pinned or battered against screens or by diverting fish into chan- nels full of predators). c. In sum, the Secretary's appropriately tailored reg- ulation defining the term "harm" reflects a reasonable interpretation of the statutory term, and is supported by the structure of the Act as a whole and its purpose and legislative history. The court of appeals' contrary conclu- sion rests on an extravagant reading and speculative applications of the regulation, and thereby fails to respect both the limitations imposed by the Secretary's interpreta- tion and application of his own regulation (see Thomas ---------------------------------------- Page Break ---------------------------------------- 21 Jefferson Univ. v. Shalala, 114 S. Ct. 2381, 2386 (1994)) and the nature of a facial challenge to a regulation. 2. a. The court of appeals' ruling conflicts with the Ninth Circuit's decision in Palila II, 852 F.2d at 1108. Palila II involved mouflon sheep that had been introduced in a particular area at an earlier time for the enjoyment of hunters, and a challenge to the maintenance of the sheep there because they feed on and destroy the mamane- naio woodlands upon which an endangered bird species, the Palila, depends for survival. The Ninth Circuit held: The Secretary's inclusion of habitat destruction that could result in extinction follows the plain lan- guage of the statute because it serves the overall purpose of the Act, which is "to provide a means whereby the ecosystems upon which endangered spe- cies and threatened species depend may be con- served." . . . 16 U.S.C. 1531(b). * * * The Secretary's construction of harm is also con- sistent with the policy of Congress evidenced by the legislative history. * * * If the "harassment" form of taking includes activities so remote from actual injury to the bird as birdwatching, then the "harm" form of taking should include more direct activities, such as the mouflon sheep preventing any mamane from growing to maturity. Id. at 1108-1109. Finally, the Palila II court concluded that the Secre- tary's "harm" definition is consistent with the legislative history of the 1973 Act stating that "'[t]ake' is defined in . . . the broadest possible manner to include every conceivable way in which a person can 'take' or attempt to 'take' any fish or wildlife." 852 F.2d at 1108, quoting S. Rep. No. 307, supra, at 7. 20. Similarly, the Palila ___________________(footnotes) 20 The United States filed a brief as amicus curiae in Palila II in support of affirmance of the district court's ruling that the destruction of certain vegetation constituted an unlawful "take" ---------------------------------------- Page Break ---------------------------------------- 22 II court noted that the 1982 ESA amendments supported the Secretary's interpretation because Congress did not modify the "take" prohibition, thereby "indicat[ing] satis- faction with the current definition of harm and its inter- pretation by the Secretary and the judiciary." 852 F.2d at 1109 n.6. 21 The disruptive consequences of a circuit conflict be- tween the District of Columbia and Ninth Circuits are especially pronounced in the present context. Because of the geographic features of the territory included within the Ninth Circuit and the species found therein, issues under the ESA arise more frequently there than in other circuits. At the same time, although the ESA does not confer any special jurisdiction on the District of Colum- bia Circuit, a litigant suing a federal officer (as in this case) may bring suit not only in the district where the property that is the subject of the action is situated, but also in the District of Columbia. 28 U.S.C. 1391(e) ___________________(footnotes) because it would lead to the extinction of the listed species by depriving it of its food source. The United States contended, however, that the district court had erred in holding that a "take" could result from habitat destruction that merely retards the re- covery of a species. The Ninth Circuit affirmed that habitat degradation that would cause the extinction of a listed species constituted an unlawful "take." The court of appeals explicitly declined to reach the question whether habitat degradation that merely prevents recovery of an endangered species constitutes a "take." 852 F.2d 1110-1111. 21 In fact, in Palila I, 639 F.2d at 498, the court of appeals had ruled that another habitat modification constituted an unlawful "take." The Palila I decision preceded, and was considered by Congress during deliberations on, the 1982 amendments to the ESA, as was the Fish and Wildlife Service's interpretation of the term "harm" to include habitat modification that actually kills or injures species. See 1982 House Hearings at 273, 291, 331. Palila I also provided the impetus for the Secretary's rewording of the "harm" definition in 1981 to clarify that habitat modifica- tion per se does not constitute a take. See 46 Fed. Reg. 29,490, 29,492. ---------------------------------------- Page Break ---------------------------------------- 23 ( 1988 & Supp. V 1993). Accordingly, other persons who claim to be adversely affected by the Secretary's definition of "harm" may follow respondents' lead and bring an anticipatory action in the District of Columbia to take advantage of the precedent of the decision below. An enforcement action brought by the United States or in a citizen suit, on the other hand, generally must be brought in the district in which the defendant resides or the prop- erty is located. See 28 U.S.C. 1391(b) (Supp. V 1993). Thus, there is a real potential for the jurisdiction of the Ninth and D.C. Circuits to overlap with regard to activi- ties in the circuit most affected by the "harm" regulation. This situation creates considerable uncertainty for private landowners and federal agencies, and the potential for non-uniform treatment within the Ninth Circuit. b. The court of appeals' decision is also inconsistent with the decisions from other courts of appeals, which have recognized in the concrete context of particular ap- plications of the "take" prohibition that a "take" of an endangered species may result from habitat modification activities that cause harm to a species. See American Bald Eagle v. Bhatti, 9 F.3d 163 (1st Cir. 1993); Sierra Club v. Yeutter, 926 F.2d 429 (5th Cir. 1991); Defend- ers of Wildlife v. Administrator, EPA, 882 F.2d 1294 (8th Cir. 1989); see also Palila 1, 639 F.2d at 497-498. 3. a. The issue in this case is one of exceptional im- portance. Since enactment of the ESA in 1973, the Secre- tary of the Interior has consistently interpreted the Act to prohibit "harm" caused by actions that significantly modify listed species' habitat to such an extent that the modification actually kills or injures the species. Although the number of prosecutions enforcing the "take" prohibi- tion in the context of habitat-modification "harm" are relatively few, reliance on the regulation is far more prevalent than the number of prosecutions would sug- gest. Due to acceptance of the Secretary's interpretation, for example, numerous private parties have cooperated ---------------------------------------- Page Break ---------------------------------------- 24 in the formulation of scores of habitat conservation plans, which are a prerequisite to procurement of a Section 10 incidental take permit. See 16 U.S.C. 1539(a)(2)(A).22 The Secretary's "harm" regulation has also provided the impetus for (or recognition of) state and local conser- vation plans, which have provided the basis for develop- ing special federal rules defining the conditions under which the "take" of a species would not be regarded as a violation of ESA Section 9. 23 Numerous other parties, including Georgia-Pacific, a large lumber company op- erating in the range of the red-cockaded woodpecker, have, through discussions with the Fish and Wildlife Service, modified plans to avoid all incidental takes by habitat destruction." The court of appeals' decision threatens to undermine the significant protection to listed species afforded by such voluntary compliance. At the very least, the decision creates confusion for private landowners regarding the statutory requirements. The court of appeals' decision also threatens to cause significant disruptions to federal actions. For example, the court of appeals' decision in this case provides the basis for one claim in a suit filed by environmental groups, Seattle Audubon Soc'y v. Espy, Civ. No. 92- 479WD (W.D. Wash.), to challenge the final supple- mental environmental impact statement concerning Forest Service and Bureau of Land Management planning doc- ___________________(footnotes) 22 See Attachment C to Federal Appellees' Response in Opposi- tion to Motion of Sweet Home to Expedite Issuance of the Mandate (summarizing status of more than 150 habitat conservation plans submitted in connection with incidental-take permit applications). 23 See 58 Fed. Reg. 65,088 (1993) (special rule concerning take of threatened coastal California gnatcatcher) ; 59 Fed. Reg. 5439 (1994) (notice of intent to prepare environmental impact state- ment to evaluate effects of issuance of incidental take permit that would allow private development in conjunction with conservation plan on public lands for the desert tortoise). 24 Attachment D to Federal Appellees' Response in opposition to Motion of Sweet Home to Expedite Issuance of the Mandate. ---------------------------------------- Page Break ---------------------------------------- 25 uments within the range of the northern spotted owl. Those documents were prepared to assess the impact of the President's proposed plan for 24 million acres of public land and to permit the lifting of the injunctions banning timber harvests on federal lands throughout the Pacific Northwest. The complaint in Seattle Audubon Soc'y relies on the court of appeals' ruling in this case to allege that the environmental documents are inadequate because they assume that private landowners' activities that "harm" protected species may be circumscribed. If the court of appeals' decision in this case renders that assumption incorrect, the plaintiffs assert, then insuf- ficient federal land has been set aside for protection of listed species. b. The prohibition against habitat modification that ac- tually kills or injures species is a critical tool in the ef- fort to preserve listed species. Most endangered and threatened species are at risk more often because of loss and degradation of habitat than because of any other factor. See TVA v. Hill, 437 U.S. 153, 179 (1978); Edward O. Wilson, The Diversity of Life 253, 346 (Belknap Press of Harv. Univ. Press 1992); Daniel J. Rohlf, The Endangered Species A et: A Guide to its Pro- tections and Implementation 11 (Stan. Envtl. L. Soc'y 1989). As Judge Silberman observed in his dissent from the order denying rehearing en banc, one can readily imagine habitat modification activities that cover a range of con- duct falling within the core statutory concepts which animate the "take" definition as easily as one can imagine conduct that does not. App., infra, 98a. Thus, as this Court recognized in TVA v. Hill, 437 U.S. at 184 n.30, with specific reference to the definition of "harm" in the 1975 regulation, a dam project that causes the extinction of an endangered snail darter by destroying its entire habitat constitutes a "take." Similarly, the cutting of a nest tree in which an endangered species dwells and breeds ---------------------------------------- Page Break ---------------------------------------- 26 can effectively kill the bird, regardless of whether the bird is at home when the tree falls. The Court observed in TVA v. Hill, that "[t]he plain intent of Congress in enacting [the ESA]''-"to halt and reverse the trend toward species extinction''-is reflected in the ESA's instruction to "[a]ll persons" not to "take" protected species. 437 U.S. at 184. The Secretary's interpretation of the term "harm" in the "take" prohibi- tion to encompass significant modification or degradation of habitat that actually kills or injures protected species is supported by the text, structure and legislative history of the Act and furthers its central objectives. CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted. DREW S. DAYS, III Solicitor General LOIS J. SCHIFFER Assistant Attorney General EDWIN S. KNEEDLER Deputy Solicitor General BETH S. BRINKMANN Assistant to the Solicitor General MARTIN W. MATZEN ELLEN J. DURKEE Attorneys NOVEMBER 1994 ---------------------------------------- Page Break ---------------------------------------- APPENDIX A UNITED STATES COURT OF APPEALS DISTRICT OF COLUMBIA CIRCUIT No. 92-5255 SWEET HOME CHAPTER OF COMMUNITIES FOR A GREAT OREGON, ET AL., APPELLANTS v. BRUCE BABBITT, Secretary of the Interior, ET AL., APPELLEES On Appeal from the United States District Court for the District of Columbia Circuit (91cv01468) On Appellants' Petition for Rehearing Argued Feb. 17, 1993 Decided March 11, 1994 Rehearing and Suggestion for Rehearing In Banc Denied May 2, 1994 Before: MIKVA, Chief Judge, WILLIAMS and SENTELLE, Circuit Judges. Opinion for the Court filed by Circuit Judge WILLIAMS. Concurring opinion filed by Circuit Judge SENTELLE. (1a) ---------------------------------------- Page Break ---------------------------------------- 2a Dissenting opinion filed by Chief Judge MIKVA. STEPHEN F. WILLIAMS, Circuit Judge: Sweet Home Chapter of Communities for a Great Oregon and a number of other organizations (collec- tively referred to here as "Sweet Home" ) sued in dis- trict court to invalidate a number of regulations pro- mulgated by the Fish & Wildlife Service of the In- terior Department under the Endangered Species Act of 1973 ("ESA" or the "Act"), 16 U.S.C. 1531-44 (1988). The district court rejected all the challenges, 806 F. Supp. 279, and this court affirmed, unani- mously except as to one issue. Sweet home Chapter v. Babbitt, 1 F.3d 1 (D.C. Cir. 1993). The issue that split the court involved the scope of the Act's prohibi- tion of the "taking" of endangered species. On peti- tion for rehearing, and after securing a response from the government, we alter our view on that issue. The Act makes it a crime for any person to "take" any endangered species of fish or wildlife listed under the Act. ESA 9(a)(1)(B), 16 U.S.C. 1538(a) (1)(B). A definitional section of the Act states that "take" means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct. 16 U.S.C. 1532(19). The Fish & Wildlife Service ("FWS") has in turn defined the component term "harm" in such a way as to encompass any "signifi- cant" habitat modification that leads to an injury to an endangered species of wildlife: Harm in the definition of "take" in the Act means an act which actually kills or injures wild- life. Such act may include significant habitat ---------------------------------------- Page Break ---------------------------------------- 3a modification or degradation where it actually kills or injures wildlife by significantly impair- ing essential behavioral patterns, including breeding, feeding or sheltering. 50 CFR 17.3. The government contends that the Act as originally adopted in 1973 authorized this expansive definition, and that even if it did not, a 1982 amendment to an- other provision of the ESA, specifically 10(a)(1) (B) of the Act, 16 U.S.C. 1539(a)(1)(B), either so changed the context of the "take" definition as to validate the Service's definition, or at any rate rati- fied that definition. On petition for rehearing, we reject both theories. We find that the Service's definition of "harm" was neither clearly authorized by Congress nor a "reason- able interpretation" of the statute, see Chevron U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837, 842-43, 844, 104 S. Ct. 2778, 2781-82, 81 L.E.2d 694 (1984), and we find that no later action of Congress supplied the missing authority. The language, structure and legislative history of the 1973 Act The Fish & Wildlife Service found habitat modifi- cation within the idea of "harm", the most elastic of the words Congress used to define the acts that 9 of the ESA forbids private individuals to commit. The potential breadth of the word "harm" is indis- putable. In Lucas v. South Carolina Coastal Council, - U.S. -, 112 S. Ct. 2886, 120 L. Ed.2d 798 (1992), for example, the Supreme Court, in exploring the just compensation requirement of the 5th Amend- ---------------------------------------- Page Break ---------------------------------------- 4a ment, observed that "the distinction between "harm- preventing' and 'benefit-conferring' regulations is often in the eye of the beholder." Id. - U.S. at - -, 112 S. Ct. at 2897. As a matter of pure linguis- tic possibility one can easily recast any withholding of a benefit as an infliction of harm. In one sense of the word, we "harm" the people of Somalia to the extent that we refrain from providing humanitarian aid, and we harm the people of Bosnia to the extent that we fail to stop "ethnic cleansing". By the same token, it is linguistically possible to read "harm" as referring to a landowner's withholding of the bene- fits of a habitat that is beneficial to a species. A farmer who harvests crops or trees on which a species may depend harms it in the sense of withdrawing a benefit; if the benefit withdrawn be important, then the Service's regulation sweeps up the farmer's deci- sion. The immediate context of the word, however, ar- gues strongly against any such broad reading. With the single exception of the word "harm", the words of the definition contemplate the perpetrator's direct application of force against the animal taken: "ha- rass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect". The forbidden acts fit, in ordi- nary language, the basic model "A hit B." For some of the words, to be sure, the application of force may not be instantaneous or immediate, and the force may not involve a bullet or blade. In the case of "pursue", the perpetrator does not necessarily catch or destroy the animal, but pursuit would always or almost always be a step toward deliberate capture or destruction, and so would be picked up by 1532 (19)'s reference to "attempt[s]". While one may "trap" an animal without being physically present, ---------------------------------------- Page Break ---------------------------------------- 5a the perpetrator will have previously arranged for release of the energy that directly captures the animal. And one may under some circumstances "harass" an animal by aiming sound or light in its direction, but the waves and particles are themselves physical forces launched by the perpetrator. Inter- preting "harass" in the Marine Mammal Protection Act, where it appears as one of the components of "take" (defined as "to harass, hunt, capture, or kill, or attempt to harass, hunt, capture, or kill any marine mammal"), the 9th Circuit applied noscitur a sociis, saying: The statute groups "harass" with "hunt," "cap- ture," and "kill" as forms of prohibited "taking." The latter three each involve direct, sustained, and significant intrusions upon the normal, life- sustaining activities of a marine mammal; kill- ing is a direct and permanent intrusion, while hunting and capturing cause significant disrup- tions of a marine mammal's natural state. Con- sistent with these other terms, "harassment," to constitute a "taking" under the MMPA, must entail a similar level of direct and sustained intrusion. United States v. Hayashi, 5 F.3d 1278, 1282 (9th Cir. 1993). Accordingly the court overturned the defendant's conviction. Although he had fired a rifle twice into the water behind some porpoises, he had not harassed the porpoises within the meaning of the statute, as his acts were not "direct and significant intrusions upon the mammal's ordinary activities." Id. Here, the nine verbs accompanying "harm" all involve a substantially direct application of force, ---------------------------------------- Page Break ---------------------------------------- 6a which the Service's concept of forbidden habitat modification altogether lacks. 1 The implications of the Service's definition suggest its improbable relation to congressional intent. Spe- cies dependency may be very broad. One adherent of aggressive protection, for instance, notes that "[s]ome scientists believe as many as 35 million to 42 million acres of land are necessary to the survival of grizzlies", about as much land in the northern Rockies of the United States and Canada as is still usable grizzly habitat. Rocky Barker, Saving All the Parts 34 (1993). And for an individual to "know- ingly" violate 9 means criminal penalties of up to a $100,000 fine and imprisonment for one year. See 16 U.S.C. 1540(b); 18 U.S.C. 3559(a)(6), 3571(b) and (e) (raising the maximum penalty). Thus the gulf between the Service's habitat modifi- cation concept of "harm" and the other words of the statutory definition, and the implications in terms of the resulting extinction of private rights, counsel ap- plication of the maxim noscitur a sociis. "The maxim noscitur a sociis, that a word is known by the com- pany it keeps, while not an inescapable rule, is often wisely applied where a word is capable of many meanings in order to avoid the giving of unintended breadth to the Act Congress." Jarecki v. G.D. Searle & Co., 367 U.S. 303, 307, 81 S. Ct. 1579, 1582, 6 L. Ed.2d 859 (1961). See also Dole v. Steelworkers, ___________________(footnotes) 1 Of course each of the terms in the "take" definition itself implies some degree of habitat modification. Setting a trap for an animal certainly modifies its habitat, as in a slightly different sense, does firing bullets at it. This obviously does not imply that habitat modifications as the Service uses the term are also encompassed. ---------------------------------------- Page Break ---------------------------------------- 7a 494 U.S. 26, 36, 110 S.Ct. 929, 935, 108 L. Ed.2d 23 (1990) ("words grouped in a list should be given related meaning" ) (citations omitted ). 2 The Service's interpretation appears to yield precisely the "unin- tended breadth" that use of the maxim properly pre- vents. The structure and history of the Act confirm this reading. The ESA pursues its conservation purposes through three basic mechanisms: (1) a federal land acquisition program, ESA 5, 16 U.S.C. 1534; (2) the imposition of strict obligations on federal agen- cies to avoid adverse impacts on endangered species, ESA 7, 16 U.S.C. 1536; and (3) a prohibition on the taking of endangered species by anybody, ESA 9, 16 U.S.C. 1538. The Act addresses habitat pres- ervation in two ways-the federal land acquisition program and the directive to federal agencies to avoid adverse impacts. The latter frames the duty in terms that the Service has now transposed to the private anti-"take" provision: every such agency is to "in- sure 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 the destruction Or ad- verse modification of habitat of such species which is determined . . . to be critical", unless an exemption is granted. 16 U.S.C. 1536(a)(2) (emphasis added ). Thus, on a specific segment of society, the ___________________(footnotes) 2 "One hardly need rely on such Latin phrases as ejusdem generis and noscitur a sociis to reach this obvious conclusion [that "words grouped in a list should be given related mean- ing"]." Third National Bank v. Impac Limited, Inc., 432 U.S. 312, 322 n. 16, 97 S. Ct. 2307, 2313 n. 16, 53 L. Ed.2d 368 (1977) (internal quotations omitted). ---------------------------------------- Page Break ---------------------------------------- 8a federal government, the Act imposes very broad bur- dens, including the avoidance of adverse habitat modifications; on a broad segment, every person, it imposes relatively narrow ones. The legislative history reflects this balance, and confirms the intention to assign the primary task of habitat preservation to the government. Explaining the land acquisition program, Senator Tunney, the Senate floor manager for the ESA, stated: "Through these land acquisition provisions, we will be able to conserve habitats necessary to protect fish and wild- life from further destruction." 119 Cong.Rec. 25669 (July 24, 1973). Representative Sullivan, the floor manager for H.R. 37-the House version of the bill- confirmed this approach: For the most part, the principal threat to ani- mals stems from the destruction of their habitat. The destruction may be intentional, as would be the case in clearing of fields and forests for de- velopment of resource extraction, or it may be unintentional, as in the case of the spread of pesticides beyond their target area. Whether it is intentional or not, however, the result is un- fortunate for the species of animals that depend on that habitat, most of whom are already living on the edge of survival, H.R. 37 will meet this problem by providing funds for acquisition of critical habitat through the use of the land and water conservation fund. It will also enable the Department of Agriculture to cooperate with willing landowners who desire to assist in the protection of endangered species, but who are understandably unwilling to do so at excessive cost to themselves. ---------------------------------------- Page Break ---------------------------------------- 9a 119 Cong.Rec. 30162 (Sept. 18, 1973) (emphasis added). For habitat modification, then, Representa- tive Sullivan saw the Act as providing duties for the government, with private persons acting only in the form of "willing landowners" assisted by the Depart- merit of Agriculture. The floor managers differentiated loss of habitat from the hazard that was the target of the "taking" ban and the other prohibitions of 9. After the pas- sage quoted, Representative Sullivan went on to iden- tify "[a] nether hazard to endangered species" which "arises from those who would capture or kill them for pleasure or profit. There is no way that the Con- gress can make it less pleasurable for a person to take an animal, but we can certainly make it less profitable for them to do so." Id. (emphasis added). Senator Tunney drew the same line: Although most endangered species are threatened primarily by the destruction of their natural habitats, a significant portion of these animals are subject to predation by man for commercial, sport, consumption, or other purposes. The pro- visions in S. 1983 would prohibit the commerce in or the importation, exportation, or taking of endangered species except where permitted by the Secretary. 119 Cong.Rec. 25669 (July 24, 1973) (emphasis added). Congress's deliberate deletion of habitat modifica- tion from the definition of "take" strengthens our conclusion. As introduced before the Senate Com- merce Committee, S. 1983 defined "take" as including "the destruction, modification, or curtailment of [a ---------------------------------------- Page Break ---------------------------------------- 10a species'] habitat or range." Endangered Species Act of 1973: Hearings on S. 1592 and S. 1983 Before the Subcomm. on Environment of the Senate Comm. on Commerce, 93d Cong., 1st Sess., at 27 (1973). A number of persons appearing before the Subcommit- tee on Environment explicitly endorsed this language and stressed its importance. See, e.g., testimony of John Grandy of the National Parks and Conservation Association, id. at 86; testimony of Tom Garrett, Wildlife Director of Friends of the Earth, id. at 104. Senators made the same point. See statement of Senator Moss, id. at 113; statement of Senator Wil- liams, id. at 116. But the "take" definition of the version of S. 1983 submitted to the Senate omitted any reference to habitat modification, defining "take" to mean "harass, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." See 119 Cong. Rec. 25663 (July 24, 1973). In rejecting the Service's understanding of "take" to encompass habitat modification, "we are mindful that Congress had before it, but failed to pass, just such a scheme." John Hancock Mutual Life Insurance Co. v. Harris Trust & Savings Bank, - Us. - -, 114 S. Ct. 517, 526, 126 L. Ed.2d 524 (1993). The effect of the 1982 amendments Congress amended the Act in 1982, with two pos- sible implications. First, one might argue that one of the amendments so altered the context of the defi- nition of "take" as to render the Service's interpreta- tion reasonable, or even, conceivably, to reflect ex- press congressional adoption of that view. Second, one might argue that the process of amendment, which brought the Service's regulation and a judicial ---------------------------------------- Page Break ---------------------------------------- 11a endorsement to the attention of a congressional sub- committee, constituted a ratification of the regulation. We reject both theories. 1. The only legislative act from which the govern- ment claims support is the addition of ESA 10(a) (1)(B), 16 U.S.C. 1539(a)(1)(B), which author- izes the FWS to issue permits for "any taking other- wise prohibited by section 1538(a)(1)(B) of this title if such taking is incidental to, and not the pur- pose of, the carrying out of an otherwise lawful ac- tivity." This language clearly implies that some pro- hibited takings are "incidental" to otherwise lawful activities. It does not follow, however, that such in- cidental takings include the habitat modifications em- braced by the Service's definition of "harm". Harms involving the direct applications of force that char- acterize the nine other verbs of 1532(19) pose the problem of incidental takings. The trapping of a non- endangered animal, for example, may incidentally trap an endangered species. In fact, the key example of the sort of problem to be corrected by 10(a)(1)(B) involved the imme- diate destruction of animals that would be trapped by a human enterprise. Northeast Utilities reported that it had sought to construct a nuclear plant on the Connecticut River. Dr. John P. Cagnetta ex- plained on behalf of Northeast that the "EPA had concluded that Section 9 of the Act constituted a 'zero taking' rule which would prohibit the entrain- ment or impingement of any Shortnose Sturgeon eggs, larvae or adults by the Montague intake struc- ture." Endangered Species Act of 1973: Hearings Before the Subcomm. on Fisheries and Wildlife Con- servation and the Environment of the House Comm. on Merchant Marine and Fisheries ("Hearings"), ---------------------------------------- Page Break ---------------------------------------- 12a 97th Cong., 2d Sess., at 358 (1982) (emphasis added ). The "entrainment" and "impingement" of sturgeon eggs involve the crushing or capture of the eggs as a direct result of a human enterprise, just as would nets that catch fish driven in their way by the tides. The sort of advance conservation plan authorized by 10(a) makes complete sense for the kind of in- cidental taking exemplified by Northeast's dilemma. Dr. Cagnetta expressed concern that after the firm had invested $2 billion in the proposed plant, it might be subject to closure by injunction granted at the behest of a private person. Id. at 359. Section 10(a) provides procedural means by which to improve the trade-off between protecting endangered species and permitting normal development. Firms whose ac- tivities might incidentally "take" members of an endangered species can get advance protection from legal liability, but only if they convince the Secretary that the plan uses the maximum devices possible to mitigate and minimize species loss, and that the re- sulting losses will not unduly harm the species. See 10(a)(2)(B)(ii) & (iv), 16 U.S.C. 1539(a) (2)(B)(ii) & (iv). Thus, adoption of 10 (a)'s permit plan, at least as evidenced by Northeast's instigating role, arose from interpretive assumptions about the meaning of "taking"- namely the EPA's views (1) that the perpetrator need not have intended to take the crea- ture in question, and (2) that even the slightest taking would violate the Act (the "zero taking rule"). We need not explore the possible impact of these assumptions on the interpretation of "take"; a mem- ber of Congress might have supported the permit system on a completely agnostic premise about those interpretations: "There are some pretty wild inter- ---------------------------------------- Page Break ---------------------------------------- 13a pretations out there, and they may stick; if they do, it would certainly be helpful to have a mechanism for softening their impact." Normally, erroneous legislative assumptions about the meaning of an existing statute, even when they serve as the premise of an amendment, do not alter the meaning of un- amended provisions. See Mackey v. Lanier Collection Agency & Serv., 486 U.S. 825, 840, 108 S. Ct. 2182, 2191, 100 L. Ed.2d 836 (1988). Here, however, the matter is even easier, as the amendment involved no assumptions supporting the Service's position on habitat modification. So far the creation of the per- mit plan is concerned, the implicit assumptions simply do not embrace the idea that "take" included any significant habitat modification injurious to wild- life. 2. For its ratification theory, the government in- vokes (besides the 10(a)(2) amendment itself) (a) language in the Conference on the 1982 amend- ments; (b) notice to a House subcommittee of the Service's habitat modification regulation and of a decision upholding it; and (c) the decision of a sen- ator not to offer an amendment. We first examine these and then consider the cases on ratification of mistaken interpretations, on the basis of congres- sional awareness and peripheral action. (a) The Conference Report. The government highlights some observations of H.R.Rep. No. 835, 97th Cong., 2d Sess. (1982) ("Conference Report"), 1982 U.S.C.C.A.N. 2807, speaking of the innovation made by 10(a): This provision is modeled after a habitat conser- vation plan, that has been developed by three Northern California cities, the County of San Mateo, and private landowners and developers ---------------------------------------- Page Break ---------------------------------------- 14a to provide for the conservation of the habitat of three endangered species and other unlisted spe- cies of concern within the San Bruno Mountain area of San Mateo County. This provision will measurably reduce conflicts under the Act and will provide the institutional framework to permit cooperation between the public and private sectors in the interest of en- dangered species and habitat conservation. The terms of this provision require a unique partnership between the public and private sec- tors in the interest of species and habitat con- servation . . . . Id. at 30-31, reprinted in 1982 U.S.C.C.A.N. 2871-72 (emphasis added). Although the passage thrice uses the phrase "habitat conservation," the first reference simply describes the particular plan on which the provision was modeled, while the second and third couple the phrase with, respectively, "the interest of endan- gered species" and "the interest of species." The focus is on the flexibility of the relief offered. The expectation that relief under the 10(a) permit scheme would include habitat conservation does not imply an assumption that takings encompass habitat modification. Thus, if a nuclear plant will "entrain" and "impinge" sturgeon eggs, the area where this occurs will certainly not be hospitable for the stur- geon, and mitigation measures invited by 10(a) might well include provision of alternative habitat. Similarly, although 10(a) relief contemplates ad- vancing "the interest of endangered species, " it does not follow that every act detrimental to an endan- gered species constitutes a forbidden taking. ---------------------------------------- Page Break ---------------------------------------- 15a (b) Notice of the regulation. The Subcommittee on Fisheries and Wildlife Conservation and the En- vironment of the House Committee on Merchant Marine and Fisheries had notice of the regulation. See, e.g., Hearings at 290. In addition, speakers brought a decision of the 9th Circuit upholding the application of the ESA to habitat modification, Palila v. Hawaii Dep't of Land & Natural Resources, 639 F.2d 495 (9th Cir. 1981), to the attention of sub- committee members in attendance. See Hearings at 329, 331. See also id. at 331, 426 (expressions of conflicting views on validity of interpretation of "harm" to encompass habitat modification). So far as appears, no congressional awareness of the Serv- ice's regulation or of Palila reached the floor of either House. (c) The withdrawn amendment. The government says that Senator Garn proposed an amendment to change the definition of "take" but withdrew it voluntarily because he realized it did not have enough support for passage." Appellee Brief at 32. This falsely suggests a focus on "habitat modification" that was simply not there. In fact, the amendment that Senator Garn withdrew was not an isolated redefinition of the term "take," but a wholesale "rewrite" of the ESA 3.-the reading of which was ___________________(footnotes) 3 Senator Garn's proposed amendment included the follow- ing redefinition: The term "take" means purposefully to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct which is inimical to the continued existence of an endangered or threatened species. It does not include effects from ---------------------------------------- Page Break ---------------------------------------- 16a dispensed with on the Senate floor, and the text of which took 16 dense pages of legislative him. A Legislative History of the Endangered Species Act of 1973, As Amended in 1976, 1977, 1978, 1979, and 1980 (U.S. Govt. 1982) at 1080. The record reveals nothing to suggest any relation between Senator Garn's decision and congressional sentiment on the habitat modification issue. By what standard are these features of the 1982 amendment process to be evaluated? Although the precedents are hardly in perfect harmony, the Su- preme Court has generally refused to infer ratifica- tion from mere amendment of adjacent clauses in these circumstances. It has forcefully articulated reasons for this refusal. In Girouard v. United States, 328 U.S. 61, 66 S. Ct. 826, 90 L.Ed 1084 (1946), the Court concluded that it had erred in three prior cases holding that an alien who refused to bear arms could not be admitted to citizenship under the terms of the oath prescribed by Congress for naturalization. Id. at 61-69, 66 S. Ct. at 826-830. It then confronted a claim that Congress had im- pliedly adopted the rule of the earlier decisions, a claim to which the facts lent considerable support- unsuccessful efforts to change the rule, plus reenact- ment of the underlying language amid change of many related provisions. Id. at 69, 66 S. Ct. at 829 (emphasis added). ___________________(footnotes) normal forestry, farming, ranching, or water manage- ment practices. A Legislative History of the Endangered Species Act of 197.3, As Amended in 1976, 1977, 1978, 1979, and 1980 (U.S. Govt. 1982) at 1082. ---------------------------------------- Page Break ---------------------------------------- 17a In dissent, Chief Justice Stone set out the principle that where a statutory provision has been subject to a controversial construction, reenactment without change implies congressional approval of that con- struction. Id. at 76, 66 S. Ct. at 833 (Stone, C. J., dissenting). The court, however, rejected this ap- proach, and warned " [i]t is at best treacherous to find in congressional silence alone the adoption of a controlling rule of law." Id. at 69, 66 S. Ct. at 830. It observed that congressional silence and inaction- actually, reenactment of the pertinent language- were "as consistent with a desire to leave the prob- lem fluid as they are with an adoption by silence of the rule as [the prior] cases." Id. at 70, 66 S. Ct. at 830. Similarly, where Congress adopts amendments on the basis of misconception as to the meaning of a prior statute's related provisions, the later act does not turn the misconception into law. Mackey v. Lanier Collection Agency & Serv., 486 U.S. 825, 108 S. Ct. 2182, 100 L. Ed.2d 836 (1988), illustrates the principle. As originally enacted, the Employee Re- tirement Income Security Act ( "ERISA") preempted state laws "as they may now or hereafter relate to any employee benefit plan" covered by the statute. ERISA 514(a), 29 U.S.C. 1144(a). After a number of lower courts construed 514(a) to pre- empt state garnishment statutes, Congress in 1984 expanded the statutory list of exceptions to 514 (a), adding garnishments in support of domestic re- lations orders and thereby expressly eliminating ERISA's preemption of that narrow category. See ERISA 514(b) (7), 29 U.S.C. 1144(b) (7). Though the Court recognized that language in the House Committee report "suggest [cd] that the House ---------------------------------------- Page Break ---------------------------------------- 18a Committee in 1984 thought that 514(a) foreclosed state-law attachment orders akin-to those at issue here," id. at 840, 108 S. Ct. at 2191, i.e., garnishments outside the area of domestic relations, it refused to attach weight to that implicit suggestion. Rather, the Court said that "these views-absent an amend- ment to the original language of the section-do not direct our resolution of this case. Instead, we must look at the language of ERISA and its structure, to determine the intent of the Congress that originally enacted the provision in question. 'It is the intent of the Congress that enacted [the section] . . . that controls.' Teamsters v. United States, 431 U.S. 324, 354, n.39, 97 S. Ct. 1843, 1864 n. 39, 52 L, Ed.2d 396 (1977)." Id. And in Shearson/American Express Inc. v. Mc- Mahon, 482 U.S. 220, 107 S. Ct. 2332, 96 L. Ed.2d 185 (1987), the Supreme Court refused to find im- plied ratification even though Congress amended closely related statutory sections and the Conference Report appeared to support the prevailing interpreta- tion. The Court had, in Wilko v. Swan, 346 U.S. 427, 74 S. Ct. 182, 98 L. Ed. 168 (1953), construed cer- tain provisions of the Securities Act of 1983 to bar enforcement of pre-dispute agreements to arbitrate for disputes under 12 (2) of that act, despite the broad endorsement of arbitration in the previously adopted Federal Arbitration Act, 9 U.S.C. 1 et seq. The issue in Shearson/American Express was whether similar provisions in the Securities Exchange Act of 1934 prevented enforcement of a pre-dispute arbitra- tion agreement as to an alleged violation of 10(b) of that Act, as the circuit courts of appeal had gen- erally held. ---------------------------------------- Page Break ---------------------------------------- 19a After finding that the 1934 Act as originally en- acted created no exception to the Arbitration Act, the Court turned to whether a later congressional inter- vention, the 1975 amendments to both the 1933 and the 1934 Acts-" the 'most substantial and significant revision of this country's Federal securities laws since the passage of the Securities Exchange Act in 1934'", Shearson/American Express, 482 U.S. at 246, 107 S. Ct. at 2347 (Blackmun, J., dissenting) -altered that result. The 1975 amendments included a change in a section of the 1934 Act (28(b)) closely related to those sections from which lower courts had drawn the inference against pre-dispute arbitration clauses, and the Conference Report had in connection with that change virtually endorsed Wilko v. Swan: It was the clear understanding of the conferees that this amendment did not change existing law, as articulated in Wilko v. Swan, 346 U.S. 427 [74 S. Ct. 182, 98 L. Ed. 168] (1953), concerning the effect of arbitration proceedings provisions in agreements entered into by persons dealing with members and participants of self-regulatory or- ganizations. H.R.Conf.Rep. No. 94-229 at 111 (1975), 1975 U.S.C.C.A.N pp. 179, 342 (1975) (quoted at Shear- son/American Express, 482 U.S. at 236-37, 107 S. Ct. at 2343). To Justice Blackmun, dissenting for himself and Justices Brennan and Marshall, this showed that Con- gress was clearly aware of the extension of Wilko to the 1934 Act and, at a minimum, that it was "not concerned with arresting this trend." 482 U.S. at 247, 107 S. Ct. at 2348. But the majority, although ---------------------------------------- Page Break ---------------------------------------- 20a finding some ambiguities in the remarks of the Con- ference Report, stressed the absence of any affirma- tive action by Congress in regard to the controlling sections: "We cannot see how Congress could extend Wilko to the [1934] Act without enacting into law any provision remotely addressing that subject." Id. at 237, 107 S. Ct. at 2343. A variant on this theme is TVA v. Hill, 437 U.S. 153, 98 S. Ct. at 2279, 57 L. Ed.2d 117 (1978), involv- ing claims that Congress's several appropriations for the Tellico Dam, made with full awareness of its risks to the snail darter and with express statements in various House and Senate Appropriations Commit- tees' reports that the ESA was not meant to apply to this project, effectively exempted the dam from 7 of the Act. Despite Congress's endorsement of the dis- puted project with the ultimate accolade-hard cash -the Court refused to find any exemption. Id. at 189-93, 98 S. Ct. at 2299-2301. The Court underscored the proposition that only congressional committees had expressed the understanding of 7 that contra- dicted the Court's reading. Id. at 189, 193, 98 S. Ct. at 2299, 2301. Our own decision in State of Ohio v. U.S. Depart- ment of the Interior, 880 F.2d 432 (D.C. Cir. 1989), elaborates on the jurisprudential concerns raised by Shearson/American Express. The Court considered a situation where Congress had amended the key sec- tions being construed and had reenacted the entire statute. Judge Ward wrote for the court: Were we to infer congressional approval of In- terior's rules because it did not amend the statute to explicitly repudiate them, we would in effect be insisting that a Congress legislatively reiter- ---------------------------------------- Page Break ---------------------------------------- 21a ate an already clear statutory command in order to fend off an impermissible interpretation. As we all know, many statutes are on the books for which no congressional majority could presently be garnered either to reenact or to repeal, yet those acts continue as valid law; indeed, a canon of equal worth with the acquiescence-by-reenact- ment rule is the one disfavoring repeal by impli- cation. We conclude that the acquiescence-by- reenactment rule is not applicable to a situation where the regulations violate the original statu- tory language and where Congress' decision not to amend the relevant statutory provisions evi- dently stems from a belief that the provisions have been clear all along. Id. at 458-59. Although the court evidently under- stood congressional inaction to stem from a belief that the statute had been "clear all along" (against the ad- ministrative interpretation ), the ambiguity we pin- pointed is relevant more broadly. Congressional in- action may indicate no more than the press of other business. As inaction is inadequate to repeal a law, it should be inadequate to modify a law. Yet modifi- cation is required to sustain an interpretation that is invalid as against the original legislation. Professor Tribe has pointed out that judicial reliance on con- gressional silence generates an elaborate buck-passing. The courts pass the buck to Congress by invoking the congressional inaction, and individual members of Congress can freely pass the buck back by pointing to the court's action. See Laurence H. Tribe, Con- stitutional Choices 33-34 (1985). We do not pretend that the Court's treatment of this issue has been absolutely uniform. There are ---------------------------------------- Page Break ---------------------------------------- 22a cases indicating some readiness to infer ratification merely from amendment of related provisions (cou- pled with acute congressional focus on outstanding interpretation), and even from mere notice followed by inaction. In United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 106 S.Ct. 455, 88 L.Ed.2d 419 (1985), for example, the Court considered the Corps of Engineers' broad reading of "waters of the United States" in the 1972 Clean Water Act, and placed some weight on Congress's 1977 failure-in the course of making important amendments and after extensive floor debate-to modify the Corp's interpretation. "Although we are chary of attribut- ing significance to Congress' failure to act, a refusal by Congress to overrule an agency's construction of legislation is at least some evidence of the reasonable- ness of that construction, particularly where the ad- ministrative construction has been brought to Con- gress' attention through legislation specifically de- signed to supplant it." Id. at 137, 106 S.Ct. at 464. In Bob Jones University v. United States, 461 U.S. 574, 103 S.Ct. 2017, 76 L.Ed.2d 157 (1983), the Court attached weight to the fact of Congress's awareness of IRS rulings that barred tax-exempt status for racially discriminatory schools, noting that 13 bills had been introduced over the years to over- turn the rulings, none ever emerging from committee. Id. at 600, 103 S.Ct. at 2033. But the Court also observed that "[n]onaction by Congress is not often a useful guide". Id. More important, perhaps, Con- gress itself had, over the same period, adopted anti- discrimination prerequisites for private club exemp- tions a closely parallel issue with obvious implications for the meaning of the general language exempting ---------------------------------------- Page Break ---------------------------------------- 23a charitable and educational institutions. Id. at 601-02, 103 S. Ct. at 2033-34. And in Commodity Futures Trading Comm'n v. Schor, 478 U.S. 833, 106 S. Ct. 3245, 92 L. Ed.2d 675 (1986), the Court broadly sug- gested that congressional "revisit[ations]" of a stat- ute after a longstanding administrative interpreta- tion, coupled with failure to modify the interpretation suggested support for the agency view. Id. at 846, 106 S. Ct. at 3254. But in Schor the Court found the re- jected reading of the statute inconsistent with the statutory language, id. at 841-42, 106 S. Ct. at 3251- 52, and fraught with incongruities, see id. at 843-44, 106 S. Ct. at 3252-53, and also read the later amend- ments as "explicitly affirm[ing]" the agency's view, id. at 846, 106 S. Ct. at 3254. These cases may ultimately not be fully reconcil- able. We note, however, that the cases drawing in- ferences from inaction typically fail to address the serious jurisprudential problems of doing so-espe- cially those captured in Judge Wald's observation that there are plenty of statutes "on the books for which no congressional majority could presently be garnered either to reenact or to repeal". State of Ohio, 880 F.2d at 458. It hardly seems consistent to enforce such statutes yet to accept non-amendment of an in- terpretation as the equivalent of congressional en- dorsement. If the 1982 Congress had reenacted the pertinent sections of the ESA and "voice[d] its approval" of the FWS's interpretation, it might be appropriate to treat the reenactment as an adoption of that inter- pretation. United States v. Bd. of Commissioners, 435 U.S. 110, 134, 98 S. Ct. 965, 980, 55 L. Ed.2d 148 (1978). But see Girouard. Here, however, Congress ---------------------------------------- Page Break ---------------------------------------- 24a neither reenacted the sections having to do with "take", nor "voiced its approval" of the harm regula- tion. As we have seen, its creation of the permit scheme is fully consistent with the meaning of "take" as enacted in 1973; the other developments show no more than awareness of the Service's view, its sur- vival in Palila and the absence of any action to en- dorse or repudiate those developments. * * * * Accordingly, we hold invalid the Fish & Wildlife Service regulation defining "harm" to embrace habi- tat modifications. The judgment of the district court is reversed to that extent; otherwise, the judgment of this court in Sweet Home Chapter v. Babbitt, 1 F.3d 1 (D.C. Cir. 1993), is unaltered. So ordered. ---------------------------------------- Page Break ---------------------------------------- 25a SENTELLE, Circuit Judge concurring: As I remain of the view expressed in my dissent in the original version of this case, Sweet Home Chap- ter v. Babbitt, 1 F.3d 1, 11 (D.C. Cir. 1993) (Sentelle, dissenting), that the word "harm" in the context of the definition of "taking" in the Endangered Species Act of 1973 cannot reasonably be defined to include the broadly prohibited habitat modification encom- passed in the challenged regulation, I am most pleased to concur in the decision of the Court. Now as then I find the words and structure of the Act sufficiently clear as to require no resort to legislative history. I therefore join with enthusiasm those portions of Judge Williams' opinion that rely on the structure of the Act and on the maxim of noscitur a sociis. I fur- ther note, as I did in my earlier dissent, that to define "harm" as broadly as does the Secretary is to render all other words in the statutory definition of "taking" superfluous in violation of the presumption against surplusage: "[W]e are hesitant to adopt an interpre- tation of a congressional enactment which renders superfluous another portion of that same law." 1 F.3d at 13 (quoting Mackey v. Lanier Collection Agency & Serv., 486 U.S. 825, 837, 108 S. Ct. 2182, 2189, 100, L. Ed.2d 836 (1988)). In view of the language and structure of the Act, and the principles of construction applied by Judge Williams and in my earlier dissent, I do not find it necessary to rely on the legislative history incorpo- rated in Judge Williams's opinion. "[A]ppeals to statutory history are well taken only to resolve statu- tory ambiguity." Barnhill v. Johnson, - U.S. -, -, 112 S. Ct. 1386, 1391, 118 L. Ed. 2d 39 (1992) (internal quotation omitted). As the Su- ---------------------------------------- Page Break ---------------------------------------- 26a preme Court recently observed, "we do not resort to legislative history to cloud a statutory text that is clear." Ratzlaf v. United States, - U.S. -, -, 114 S. Ct. 655, 662, 126 L. Ed.2d 615 (1994): Because I find the meaning of "take" in the statute to be sufficiently clear that "I cannot cram the agency's huge regulatory definition" into any "tiny crack of ambiguity Congress left," 1 F.3d at 12. I concur in the decision to reverse the District Court judgment in part, but I would do so without resort to the legis- lative history. ---------------------------------------- Page Break ---------------------------------------- 27a MIKVA, Chief Judge, dissenting: The majority's decision in this case is unfortunate. It scuttles a carefully conceived Fish and Wildlife Service ("FWS") regulation and creates a split in the circuits on an important statutory question. De- spite the significance of the issue presented in this case, the majority insists on granting rehearing and reversing its earlier opinion without the benefit of ad- ditional oral argument, and without the benefit of additional briefing tailored to the court's concerns. What was rightly considered good law in the opinion in this case issued last year, published at 1 F.3d 1 (D.C. Cir. 1993), is now "altered" on the basis of a confusing and misguided legal analysis that creates a needless conflict among the circuits. I dissent. A. Standard of Review The majority's first, and biggest, mistake is to jet- tison the Chevron standard. Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S. Ct. 2778, 81 L. Ed.2d 694 (1984). Only once does the majority mention Chevron, conceding that it is supposed to govern our review of this case. But the majority concludes that the FWS's regula- tion is infirm under Chevron because "the Service's definition of 'harm' was neither clearly authorized by Congress nor a 'reasonable interpretation' of the stat- ute." Maj. op. at 1464. But the standard of review that we are bound to apply under Chevron actually reads as follows: When a court reviews an agency's construc- tion of the statute which it administers, it is con- fronted with two questions. First, always, is the ---------------------------------------- Page Break ---------------------------------------- 28a question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply im- pose its own construction on the statute, as would be necessary in the absence of an adminis- trative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible con- struction of the statute. Id. at 842-43, 104 S. Ct. at 2781-82 (footnotes omitted). Plainly, Chevron does not place the burden on the responsible agency to show that its interpretation is clearly authorized or reasonable. On the contrary, the burden is on the party seeking to overturn such an interpretation to show that Congress has clearly spoken to the contrary, or that the agency's interpre- tation is un reasonable. The whole point of Chevron deference is that when Congress has not given a clear command, we presume that it has accorded discretion to the agency to clarify any ambiguities in the stat- ute it administers. In requiring the agency to justify its regulation by reference to such a clear command, the majority confounds its role. Ties are supposed to go to the dealer under chevron. Along with (and perhaps because of) this back- wards reading, the majority also fails to note which step of Chevron is dispositive of the case. If it is step ---------------------------------------- Page Break ---------------------------------------- 29a one, the majority must show that Congress has "di- rectly spoken to the precise question at issue": whether the word "harm" includes "significant habi- tat modification [that] actually kills or injures wild- life." Surely the statute is silent, or at best ambig- uous, on this question. The Endangered Species Act ("ESA") nowhere defines "harm," and nowhere spe- cifically prohibits the extension of that term to habi- tat modification. Under step two, the only question is whether the FWS's interpretation of the word "harm" constitutes a "permissible" reading of the ambiguous language. The question is not-however much the majority might like it to be whether we think it constitutes the best reading. Under step two, "[t]he court need not conclude that the agency con- struction was the only one it permissibly could have adopted to uphold the construction, or even the read- ing the court would have reached if the question in- itially had arisen in a judicial proceeding." Chevron, 467 U.S. at 843 n. 11, 101 S. Ct. at 2782 n. 11 (em- phasis added). B. Applying Chevron Despite the command of Chevron, the majority sub- stitutes its own favorite reading of the Endangered Species Act for that of the agency. But Chevron makes it irrelevant whether the majority's preferred interpretation is better than the agency's; the only question is the reasonableness of the agency's inter- pretation. And a fair reading allows for no other conclusion than that the agency's interpretation is reasonable. The place to start is the statutory language. The ESA makes it unlawful to "take" a member of a species of fish or wildlife designated as "endangered" ---------------------------------------- Page Break ---------------------------------------- 30a by the FWS. 16 U.S.C. 1538(a)(1)(B). "Take" is a defined term, meaning "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." 16 U.S.C. 1532(19). The regulation at issue in this case pur- ports to define the term "harm" as "an act which ac- tually kills or injuries wildlife. Such act may include significant habitat modification or degradation where it actually kills or injures wildlife . . . . " 50 C.F.R. 17.3. It is this definition that the majority finds unreasonable. The majority relies primarily upon noscitur a sociss, a seldom-invoked principle of statutory con- struction. According to this canon, when a potentially broad word appears in a definition along with a list of narrow words, the broad word should be read nar- rowly to conform with its companions. This the ma- jority purports to do here, finding that all the words in the definition of "take," other than the crucial word "harm," involve a "direct application of force." Ipso facto, the word "harm" must also be read to require a direct application of force, and habitat mod- dification is not sufficiently direct to fall within this definition of "harm." To this display of reasoning by the majority, one is tempted to respond, "Watch that first step; it's a big one." The definition of "take" does not conform to the paradigm of one broad word alongside many narrow ones, and thus the majority's decision to ap- ply noscitur a sociis is fatally flawed. Instead, "take" includes several words that might be read as broadly, or nearly as broadly, as "harm": especially "harass," wound," and "kill." Indeed, as the regulation at issue defines "harm" as an act (including habitat modification ) that "actually kills or injures wildlife," ---------------------------------------- Page Break ---------------------------------------- 31a the FWS might as easily have derived a proscription of habitat modification from the words "kill," "wound," and "harass," as from the word "harm." In fact, the House Report specifically comments upon the breadth of the ESA's prohibition of "harass- merit, " stating: ["Take"] includes harassment, whether inten- tional or not. This would allow, for example, the Secretary to regulate or prohibit the activi- ties of birdwatchers where the effect of those activities might disturb the birds and make it difficult for them to hatch or raise their young. H.R.Rep. No. 93-412, 93rd Cong. 1st Sess. 11 (1973). Accordingly, FWS has defined the term "harass" nearly as broadly as the term "harm": Harass in the definition of "take" in the Act means an intentional or negligent act or omis- sion which creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral patterns which include, but are not limited to, breeding, feeding or sheltering. 50 C.F.R. 17.3. Appellants have not challenged this definition. A more limited definition of "harass" was required (if at all) in United States W. Hayashi, 5 F.3d 1278 (9th Cir. 1983), only because the word "harm" does not appear alongside "harass" in the Marine Mam- mal Protection Act; the only accompanying terms are "hunt," "capture," and "kill." 16 U.S.C. 1362(13). By contrast, the ESA also includes the more expan- sive "harm," "wound," and "pursue," and is clearly meant to proscribe a broader range of activity. The ---------------------------------------- Page Break ---------------------------------------- 32a 9th Circuit, the same court that decided Hayashi, has itself reached that conclusion, Palila v. Hawaii Dep't of Land and Natural Resources, 852 F.2d 1106, 1107- 09 (9th Cir. 1988) ( agency's interpretation of "harm" to include significant habitat modification is consist- ent with the language, purpose, and legislative his- tory of the ESA), and today's contrary decision thus creates a foolish circuit conflict. Noscitur a sociis means that a word is known by the company it keeps. Jarecki v. G.D. Searle & Co., 367 U.S. 303, 307, 81 S. Ct. 1579, 1582, 6 L. Ed.2d 859 (1961 ). In the definition of "take," the term "harm" is accompanied by an assortment of words ranging from the precise and narrow "shoot" to the vague and expansive "harass." Gratuitous references to our na- tion's foreign policy aside, see Maj. Op. at 1464, "harm" is not a single elastic word among many ironclad ones but an ambiguous term surrounded by other ambiguous terms. Consequently, even if it is ever appropriate to measure an agency's construc- tion of a statute against a seldom-used and indeter- minate principle of statutory construction, this is not the place for noscitur a sociis. Equally inappropriate is Judge Sentelle's use of the presumption against surplusage, There is no reason- able definition of the word "harm" (or, for that matter, the word "harass") that would not render superfluous some of the other defined terms. For ex- ample, one cannot "kill" or "wound" an animal with- out also "harming" it, even under the narrowest con- ceivable interpretation of "harm." Does that mean we must read "harm" out of the statute altogether? That would hardly be faithful to Congress's intent, which was to define takings "in the broadest possible ---------------------------------------- Page Break ---------------------------------------- 33a manner to include any conceivable way in which a person can 'take' or attempt to 'take', any fish or wild- life." S.Rep. No. 93-307, 93rd Cong., 1st Sess. 7 (1973), 1973 U.S.C.C.A.N pp. 2989, 2995. No, in- stead it means we must uphold the agency's reason- able accommodation of all the statutory terms. Defin- ing "harm" to include "significant habitat modifica- tion" renders no more terms superfluous than would a definition that did not include habitat modification but did include "direct" forms of killing and wounding. And indeed, the majority's holding that "harm" can- not include indirect means of injuring wildlife may render "harm" itself superfluous, or nearly so, as "direct" means of injury are well covered by the other terms. The plain language of the statute, then, lends no support to the majority's contention that the FWS's interpretation of "harm" is impermissible. The statute's purpose and legislative history pro- vide equally insufficient grounds for rejecting the agency's interpretation. The majority, adopting the view of the appellants in this case, acknowledges that Congress intended to halt injurious habitat modifica- tion when it passed the ESA. It contends that Con- gress intended to combat this problem solely through 1534's provision for federal land acquisition, and not through 1538's prohibition of private takings. According to the majority, the legislative history of the "take" provision establishes that Congress did not mean for that term to encompass habitat modifi- cation. It notes that the original bill that was re- ferred to the Senate Committee on Commerce, S. 1983, defined "take" to include "destruction, modifi- cation, or curtailment of [an endangered species'] habitat or range." S. 1983, 93rd Cong., 1st Sess. 3 ---------------------------------------- Page Break ---------------------------------------- 34a (6) (1973). The bill reported out of committee, how- ever, did not refer to habitat modification in the defini- tion of "take." This omission, the majority finds, evinces Congress's intent not to include habitat modi- fication within the scope of protected "takings." The majority also points to several statements from the floor suggesting that some members of Congress may have wanted land acquisition, not the prohibition of land uses, to be the ESA's sole weapon against habitat modification on private lands. I find the legislative history to be most ambiguous regarding whether Congress intended to include habi- that modification within the meaning of "take." It is true that the Senate Committee chose not to use the S. 1983 definition of "take," which specifically encompassed habitat modification. Instead, the Com- ittee adopted a definition from the other bill under consideration, S. 1592, which did not explicitly in- clude habitat modification. But as the district court noted, there is no indication in the legislative history as to why the Committee selected one definition over the other. And, in any event, the crucial ward "harm" was never voted on by the Committee but was added later on the floor of the Senate. It might well have been intended to cover the entire landscape originally contemplated by the S. 1983 definition. See 119 Cong. Rec. 25,683 (July 24, 1973) (Statement of Sen. Tunney) ("The amendments will help to achieve the purposes of the bill and will clarify some confusion caused by language remaining in the bill from earlier drafts or omitted from earlier drafts which went unnoticed during the final committee markup."). Most importantly for our Chevron inquiry, there is nothing to suggest that Congress chose the definition ---------------------------------------- Page Break ---------------------------------------- 35a it did in order to exclude habitat modification. The Committee may have rejected the S. 1983 definition only because it apparently would have made habitat modification a per se violation of the ESA, as op- posed to leaving such determinations to the discretion of the responsible agency whose judgment this court today casts aside. Surely there is nothing to indicate that the Committee intended to foreclose an adminis- trative regulation prohibiting habitat modification- particularly a prohibition accompanied by limitations, such as those contained in the FWS regulation under review, requiring that there be actual injury or death to wildlife. In any case, Congress manifested no clear intent to exclude habitat modification from the "take" defi- nition. Indeed, the Senate Committee Report states "'Take' is defined . . . in the broadest possible manner to include every conceivable way in which a person can 'take' or attempt to 'take' any fish or wildlife." S. Rep. No. 93-307, 93rd Cong., 1 Sess. 7 (1973), 1973 U.S.C.C.A.N. p. 2995. And, as I have noted above, the bill reported out of Committee did not even include the word "harm" in the definition of "take." That was added later on the floor, in a "technical and clarifying amendment []." 119 Cong.Rec. 25,682-83 (July 24, 1973) (Statement of Sen. Tunney). As the amendment added the word "harm," while subtract- ing nothing, that amendment can only have broadened the definition from the bill reported out of Committee -"clarifying" that "take" should be defined "in the broadest possible manner." The contention that Congress intended land acqui- sition to be the exclusive instrument for curbing habi- tat modification on private lands is totally speculative. Nothing in the language of 16 U.S.C. 1534 or in the ---------------------------------------- Page Break ---------------------------------------- 36a legislative history proves this sweeping assertion. The only evidence the majority can garner in support of its proposition is a few isolated and ambiguous re- marks by members of Congress on the floor. See 119 Cong.Rec. 25,669 (July 24, 1973) (Statement of Sen. Tunney) ; 119 Cong.Rec. 30,162 (Sept. 18, 1973) (Statement of Rep. Sullivan). The general rule is that "debates in Congress expressive of the views and motives of individual members are not a safe guide . . . in ascertaining the meaning and purpose of the law-making body." Duplex Printing Press Co. v. Deering, 254 U.S. 443, 474, 41 S. Ct. 172, 179, 65 L.Ed. 349 (1921). In any case, these statements do not establish that even the speakers themselves in- tended land acquisition to be the exclusive protective mechanism for habitats on private lands. In sum, the majority has found nothing in the language, structure, purpose, or legislative history that unambiguously shows that "harm" does not en- compass habitat modification. Under Chevron, that should dispose of the case: the FWS's gap-filling measure is a permissible exercise of its discretion as delegated by Congress. Moreover, not only is the ma- jority's evidence ambiguous, but there is additional evidence supporting the agency's interpretation. I have already cited the Senate and House Committee Reports, which suggest that Congress envisioned a broad interpretation of "take," even before the crucial word "harm" was added to the definition of that term. S.Rep. No. 93-307, 93rd Cong., 1st Sess. 7 (1973) U.S.C.C.A.N. p. 2995 ("'Take' is defined . . . in the broadest possible manner."); H.R.Rep. No. 93-412, 93rd Cong., 1st Sess. 15 (1973) (ESA "includes, in the broadest possible terms, restrictions on the taking, ---------------------------------------- Page Break ---------------------------------------- 37a importation and exportation, and transportation of [endangered] species, as well as other specified acts"); id. at 11 ("Harass" includes activities of bird- watchers "where the effects of those activities might disturb the birds and make it difficult for them to hatch or raise their young."). And I have adverted to the floor amendment that added the word "harm," purportedly to "clarify" language that was "omit- ted" from the draft that emerged from Committee. 119 Cong.Rec. 25,683 (July 24, 1973) (Statement of Sen. Tunney). In addition, the agency's interpretation draws sup- port from a subsequent amendment to the ESA. In 1982, Congress amended the ESA to include a pro- vision authorizing the FWS to issue a permit allow- ing "any taking otherwise prohibited by section 1538 (a)(1)(B) of this title if such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity." 16 U.S.C. 1539 (a)(1) (B). By negative inference, this provision demon- strates that Congress thought at least some "inci- dental takings" must be prohibited by 1538 (a)(1) (B) in the first instance. The majority speculates on what Congress could have meant by "incidental takings," but the evidence quite clearly suggests that Congress meant habitat modification. The House Report states, This provision is modeled after a habitat con- servation plan that has been developed by three Northern California cities, the County of San Mateo, and private landowners and developers to provide for the conservation of the habitat of three endangered species . . . . ---------------------------------------- Page Break ---------------------------------------- 38a This provision will . . . provide the institu- tional framework to permit cooperation between the public and private sectors in the interest of endangered species and habitat conservation. H.R.Rep. No. 97-835, 97th Cong., 2d Sess. 30-31 (1982) ,1982 U.S.C.C.A.N. pp. 2871, 2872, Moreover, the 1982 amendments came after the Secretary promulgated the present definition of "harm" at issue in this case. But instead of using the amendments as an occasion to overrule the Secre- tary's interpretation, Congress chose to allow the definition of "take" to stand, while amending an- other section of the statute making clear in the process that it knew habitat modification could be (and was being) prohibited under the ESA. See Lindahl v. Office of Personnel Management, 470 U.S. 768, 782 n. 15, 105 S. Ct. 1620, 1629 n. 15, 84 L. Ed.2d 674 (1985) ("Congress is presumed to be aware of an administrative or judicial interpretation of a stat- ute and to adopt that interpretation when it re-enacts a statute without change."); Albemarle Paper Co. v. Moody, 422 U.S. 405, 414 n. 8, 95 S. Ct. 2362, 2370 n. 8, 45 L.Ed2d 280 (1975) (same) ; Johnson v. Transportation Agency, 480 U.S. 616, 629 n. 7, 107 S. Ct. 1442, 1450 n. 7, 94 L. Ed.2d 615 (1987) (con- gressional inaction after interpretation may be pro- bative of approval). Judge Williams devotes a large portion of his majority opinion to a refutation of this argument. I presume the reason for this emphasis is that he concurred in the initial panel opinion in this case solely on the ground that the 1982 amendments "sup- port the inference" that the prohibition of takings includes a prohibition of some habitat modification. ---------------------------------------- Page Break ---------------------------------------- 39a 1 F.3d at 11 (Williams, J., concurring). Having placed all of his eggs in that basket, he understand- ably finds it necessary to explain his error at length now that he has changed his mind. I agree that Judge Williams was wrong the first time. He was wrong to rely solely on the 1982 amendments for his decision; I agree that they do not alone support its weight. They indicate that Congress in 1982 probably believed that habitat modi- fication was properly covered by the prohibition on takings. Admittedly, the 1982 amendments prove little about Congress's intent in 1973, and had Con- gress in 1973 specifically stated that "take" does not include habitat modification the 1982 amendments would not save the FWS regulation. But Congress did no such thing in 1973; it was silent on the ques- tion. Consequently, the 1982 amendments do lend some weight to the reasonableness of the agency's definition-if Congress in 1982 believed the definition was reasonable, and the agency believed it was rea- sonable, then Chevron demands that we uphold the regulation unless we find solid evidence to the con- trary. No such evidence exists. Thus the court today moves from wrong to more wrong in attempting to parse this statute. Having forsaken the 1982 amendments as dispositive evi- dence, no effort is made to determine whether the agency could reasonably have relied on such amend- ments as persuasive evidence supporting its inter- pretation. Instead, the agency is asked to prove that the best interpretation of "harm" encompasses habi- tat modification. Beginning from a wrong premise, applying a wrong standard, it is not surprising that the wrong result is achieved. ---------------------------------------- Page Break ---------------------------------------- 40a Overall, there is nothing in the ESA itself, or in its legislative history, that unambiguously demon- strates that the term "harm" in the definition of "take" does not encompass habitat modification. In- deed, there is evidence to the contrary. Chevron com- mands that we defer to an agency's interpretation of a statute it is entrusted to administer, unless that interpretation is contrary to Congress's unambiguous command or an unreasonable exercise of Congress's vague or ambiguous delegation. The majority has not been so quick to ignore Chevron before. See, e.g., Railway Labor Executives' Ass'n v. National Media- tion Bd., 988 F.2d 133, 144-45 (D.C. Cir.) (Williams, J., dissenting) ("legislative silence [is] precisely the condition that under Chevron is understood to create a gap to be filled by the agency."), vacated on motion for rehearing, 996 F.2d 1271 (D.C. Cir. 1993). Neither should it ignore Chevron today. Finally, the majority should be even more hesitant to cast aside the agency's interpretation in light of the circuit split that this decision now creates. The Ninth Circuit determined, in Palila v. Hawaii Dep't of Land and Natural Resources, 852 F.2d 1106 (9th Cir. 1988), that the FWS's "harm" definition was a permissible interpretation of the statute. "The Secre- tary's inclusion of habitat destruction that could re- sult in extinction follows the plain language of the statute because it serves the overall purpose of the Act, which is 'to provide a means whereby the eco- systems upon which endangered species and threat- ened species depend may be conserved . . . .' 16 U.S.C. 1531(b)." Id. at 1108. The purpose of the En- dangered Species Act, lest we forget, is to protect endangered species. In today's abandonment of our decision of less than a year ago, this court takes a ---------------------------------------- Page Break ---------------------------------------- 41a large step backward from that purpose. The major- ity may believe it is making a good policy-but that is not our job. Under Chevron, we may overturn an administrative regulation only if it contradicts the agency's legislative mandate. Congress does not al- ways speak as plainly as it might in designing administrative missions for the executive branch, so it is not always easy to decipher Congress's marching orders to an agency. But at least we ought to try. I dissent. ---------------------------------------- Page Break ---------------------------------------- 42a APPENDIX B UNITED STATES COURT OF APPEALS DISTRICT OF COLUMBIA CIRCUIT No. 92-5255 SWEET HOME CHAPTER OF COMMUNITIES FOR A GREAT OREGON, ET AL., APPELLANTS v. BRUCE BABBITT, Secretary of the Interior, ET AL., APPELLEES Appeal from the United States District Court for the District of Columbia (91cv01468) Argued Feb. 17, 1993 Decided July 23, 1993 Before MIKVA, Chief Judge; WILLIAMS and SENTELLE, Circuit Judges. Opinion for the Court filed by Chief Judge MIKVA, except section II(A)(1), which is filed per curium. Opinion concurring in section II(A)(1) filed by Chief Judge MIKVA. Opinion concurring in section II(A) (1) filed by Circuit Judge WILLIAMS. Opinion dissenting in part filed by Circuit Judge SENTELLE. ---------------------------------------- Page Break ---------------------------------------- 43a MIKVA, Chief Judge: Appellants, a group of non-profit citizens' groups, lumber companies, and lumber trade associations, op- pose two regulations promulgated by the Fish and Wildlife Service ("FWS" or "agency") under the Endangered Species Act ("ESA"), 16 U.S.C. 1531- 44. They appeal a memorandum opinion and order by the district court upholding the regulations by summary judgment and denying appellants' own mo- tion for summary judgment. We find that the chal- lenged regulations are reasonable interpretations of the ESA. We also reject appellants' claim that one of the regulations is void for vagueness. We there- fore affirm the district court's judgment. I. BACKGROUND The Endangered Species Act of 1973 is a multi- faceted and comprehensive law directed toward halt- ing the extinction of species. It is implemented pri- marily by the Fish and Wildlife Service, an agency of the Department of the Interior. The ESA em- ploys a number of techniques to preserve endangered and threatened species, including land acquisition by the government, the implementation of conservation programs by federal agencies, and the prohibition of various federal and private actions that harm listed species. Among the more important sections of the ESA is 16 U.S.C. 1538(a)(1), which forbids any person from committing any of a broad array of activities deemed dangerous to the continued survival of en- dangered fish and wildlife species. This appeal fo- cuses largely on the prohibition against "taking" an endangered species. ---------------------------------------- Page Break ---------------------------------------- 44a [W]ith respect to any endangered species of fish or wildlife listed pursuant to section 1533 of this title it is unlawful for any person subject to the jurisdiction of the United States to . . . . take any such species within the United States or the territorial sea of the United States [.] 16 U.S.C. 1538(a)(1)(B) (emphasis added). The ESA defines "take" as follows: "[T]o harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such con- duct." 16 U.S.C. 1532 (19) (emphasis added). Much of the controversy surrounding this definition has concerned the meaning of "harm" and the degree to which this term encompasses damage to habitats. One of the FWS regulations challenged by appellants states: Harm in the definition of "take" in the Act means an act which actually kills or injures wild- life. Such act may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impair- ing essential behavioral patterns, including breed- ing, feeding, or sheltering. 50 C.F.R. 17.3 (as amended in 1981). Appellants contend that this regulation's inclusion of habitat modification within the meaning of "take" violates the ESA. They also assert that even if the regulation is not ultra vires of the ESA, it is not clear precisely what sort of habitat modification the regulation for- bids. They therefore argue that this Court should either declare the regulation void for vagueness or adopt a limiting construction of the regulation, hold- ing that "harm" occurs only where there is an inten- ---------------------------------------- Page Break ---------------------------------------- 45a tionally-caused actual physical injury to a specific member of a listed wildlife species. The other regulation under review extends the pro- tections for endangered species to threatened species as well. The ESA defines an "endangered species" as "any species which is in danger of extension throughout all or a significant portion of its range. . . ." 16 U.S.C. 1532 (6). The ESA also protects species that are in less immediate peril but are listed as "threatened species." This term refers to "any species which is likely to become an endangered spe- cies within the foreseeable future throughout all or a significant portion of its range." 16 U.S.C. 1532 (20). On its face, 16 U.S.C. 1538(a)(1) applies its prohibitions, including the prohibition against tak- ings, only to endangered species. However, the ESA allows the FWS to apply these prohibitions to threat- ened species, as well. Whenever any species is listed as a threatened species . . . the Secretary shall issue such regula- tions as he deems necessary and advisable to pro- vide for the conservation of such species. The Secretary may by regulation prohibit with re- spect 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). Appellants challenge a FWS regulation which, at one fell swoop. brings all threatened fish and wildlife species into the protective net of 16 U.S.C. 1538(a) (l). Except as provided in subpart A of this part, or in a permit issued under this part, all of the pro- ---------------------------------------- Page Break ---------------------------------------- 46a visions in [50 C.F.R. 17.21, the regulation im- plementing the section 1538 (a) (1) prohibitions] shall apply to threatened wildlife . . . . 50 C.F.R. 17.3(a) (1978). Appellants argue that this regulation violates the ESA, because 1533(d) requires the FWS to extend the prohibitions to threat- ened species on a species-by-species basis and to do so only after making a specific finding that each such extension was "necessary and advisable." The district court rejected appellants' challenges to both 50 C.F.R. 17.3 and 17.31(a) and granted summary judgment to the government. 806 F. Supp. 279. Because all of the issues in this appeal are issues of law, we will review the district court's judgment de novo. II. ANALYSIS A. The "harm" regulation 1. Compliance with the Endangered Species Act Appellants argue that the "harm" regulation, 50 C.F.R. 17.3, violates the ESA, because the statute excludes habitat modification from the types of for- bidden actions that qualify as "takings" of species. They assert that the ESA's language and structure, as well as its legislative history, clearly demonstrate that Congress did not intend to prohibit habitat modi- fication when it defined "take" to include "harm" to an endangered species. 16 U.S.C. 1532(19). They claim that the meaning of harm should therefore be limited to direct physical injury to an identifiable member of a listed wildlife species. We hold, per curiam, that the "harm" regulation does not violate the ESA by including actions that modify habitat among prohibited "takings." ---------------------------------------- Page Break ---------------------------------------- 47a 2. The "void for vagueness" claim Appellants also maintain that, on its face, the "harm" regulation is void for vagueness. They point out that the Ninth Circuit has interpreted the regu- lation broadly so that prohibited "harm" includes habitat modification even without proof that death or physical injury to a specific member of a listed spe- cies has occurred. Palila v. Hawaii Dept. of Land and Natural Resources, 852 F.2d 1106, 1107-09 (1988). The appellants could also have mentioned that the FWS itself offered a similarly broad inter- pretation of the regulation when it introduced the current definition of "harm" in 1981: Some of the comments in favor of the redefini- tion . . . viewed the action as limiting "harm" to direct physical injury to an individual member of the wildlife species. This was not the intent of the Service and the final redefinition addresses that perception. The purpose of the redefinition was to preclude claims of a Section 9 taking for habitat modification alone without any attendant death or injury of the protected wildlife. Death or injury, however, may be caused by impair- ment of essential behavioral patterns which can have significant and permanent effects on a listed species. 46 Fed. Reg. 54,748, 54,748 (1981). Appellants argue that so long as the regulation is subject to such broad constructions, it is impermissi- bly vague. They claim it will be left to the whims and predictions of biologists to determine when a habitat modification is "significant" and when such a modifi- cation "significantly impair[s] essential behavioral patterns." 50 C.F.R. 17.3 (emphasis added). Prop- ---------------------------------------- Page Break ---------------------------------------- 48a erty owners, say appellants, will thus be subject to criminal sanctions under the ESA based on "some biologist's subjective view." We are urged to address this problem by constru- ing the regulation to state that "harm" occurs only where there is proof of an intentionally-caused physi- cal injury to a specific member of a listed wildlife species. If we determine that the regulation does not require such proof, appellants contend that we should declare the entire regulation void for vagueness. It is true, as appellants assert, that regulations with criminal sanctions must "define the criminal of- fense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and dis- criminatory enforcement." Kolender v. Lawson, 461 U.S. 352, 357, 103 S. Ct. 1855, 1858, 75 L. Ed.2d 903 (1983), This principle, however, does not lead to the conclusion that any person can have a regulation wiped off the books (or prompt a limiting judicial con- struction of the regulation) merely by showing that it will be impermissible vague in the context of some hypothetical application. The seminal case concerning pre-enforcement facial challenges on the grounds of vagueness is Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 102 S. Ct. 1186, 71 L. Ed.2d 362 (1982). Flipside states that when a court examines such a challenge, "assuming the enactment implicates no con- stitutionally protected conduct, [the court] should up- hold the challenge only if the enactment is impermissi- bly vague in all of its applications." Id. at 495, 102 S. Ct. at 1191 (emphasis added). Although the Su- preme Court does not state precisely what it means by "constitutionally protected conduct," it is clear ---------------------------------------- Page Break ---------------------------------------- 49a that it is referring primarily to the First Amendment expressive freedoms, which have long received special protection in vagueness cases. See, e.g. Smith, Sheriff v. Goguen, 415 U.S. 566, 573, 94 S. Ct. 1242, 1247, 39 L. Ed.2d 605 (1974). It is equally clear that the Court is not referring to economic activity, which modern vagueness cases have invariably afforded less protection. See, e.g., Flipside, 455 U.S. at 498, 102 S. Ct. at 1193 ("economic regulation is subject to a less strict vagueness test"). Appellants, who are not currently the subject of an enforcement action under 50 C.F.R. 17.3, none- theless contend that the regulation will inhibit their ability to develop their land, especially by harvesting timber. In other words, the conduct implicated by this case is economic activity. (To the degree that appellants contend that the regulation results in a "taking" of their property in the Fifth Amendment sense, their remedy would be compensation, not a void- ing of the regulation). In accordance with Flipside, we therefore will not find 50 C.F.R. 17.3 void for vagueness unless the regulation is impermissible vague in all of its applications. In fact, the regulation contains features that pre- vent it from being invariably vague as applied. The definition of "harm" explicitly limits prohibited habitat modification to that which "actually kills or injures wildlife." 50 C.F.R. 17.3. Moreover, in order to establish a civil or criminal violation under the "take" provision of the ESA or a regulation im- plementing that provision, the government must es- tablish that the charged party knowingly violated the statute or regulation. 16 U.S.C. 1540(a) and (b). The Supreme Court has recognized that "a ---------------------------------------- Page Break ---------------------------------------- 50a scienter requirement may mitigate a law's vagueness, especially with respect to the adequacy of notice to the complainant that his conduct is proscribed." Flipside, 455 U.S. at 499, 102 S. Ct. at 1193. In light of these limitations, there are obviously types of activity, including habitat modification, that 50 C.F.R. 17.3 clearly prohibits without a hint of vagueness. For example, it obviously forbids the very sort of conduct that appellants argue it should be limited to-habitat modification that causes as- certainable physical injury or death to an individual member of a listed species. Furthermore, 17.3 un- questionably prohibits major acts of habitat degra- dation that destroy a species' ability to breed, feed, or shelter. For instance, a person aware of the regu- lation would be considered impermissible vague. Un- clear-cutting an entire forested area known to be populated by spotted owls. Because the regulation is not vague in all of its applications, we may not declare it void on its face. We do not dismiss the possibility that some enforce- ment contexts may arise in which the challenged regu- lation would be considered impermissible vague. Un- der Flipside, however, the fact that there might be some type of activity whose legality is blurry under the regulation does not render the entire regulation facially invalid. Specific vagueness concerns about the regulation can be addressed when and if they are properly raised in the framework of a concrete chal- lenge to a particular application of the regulation. Appropriate judicial restraint obligates us to wait for specific applications of the regulation to arise, for, as Flipside observed, the government may in the meantime take further steps "that will sufficiently narrow potentially vague or arbitrary interpreta- ---------------------------------------- Page Break ---------------------------------------- 51a tions" of the regulation. 455 U.S. at 504, 102 S. Ct. at 1196. "Although it is possible that specific future applications . . . may engender concrete problems of constitutional dimension, it will be time enough to consider any such problems when they arise." Joseph E. Seagram & Sons, Inc. v. Hostetter, 384 U.S. 35, 52, 86 S. Ct. 1254, 1265, 16 L. Ed.2d 336 (1966), over- ruled on different grounds by Healy v. Beer Institute, Inc., 491 U.S. 324, 109 S. Ct. 2491, 105 L. Ed.2d 275 (1989). B. The blanket extension of protections to all threat- ened species Appellants also challenge 50 C.F.R. 17.31(a), by which the FWS extended the 16 U.S.C. 1538(a)(1) prohibitions as to endangered species to all threatened species as well. The FWS issued this regulation un- der the authority granted to it by the ESA at 16 U.S.C. 1533(d). For the sake of convenience, we quote that provision again: Whenever any species is listed as a threatened species . . . the Secretary shall issue such regula- tions as he deems necessary and advisable to provide for the conservation of such species. The Secretary may by regulation prohibit with re- spect 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). The challenged regulation provides in relevant part: (a) Except as provided in subpart A of this part, or in a permit issued under this subpart, all of the provisions in 17.21 [which implements the ---------------------------------------- Page Break ---------------------------------------- 52a prohibitions contained in 16 U.S.C. 1538(a) (1) ] shall apply to threatened wildlife, except 17.21(c)(5). * * * * * (c) Whenever a special rule in 17.40 to 17.48 applies to a threatened species, none of the pro- visions of [paragraph (a)] of this section will apply. The special rule will contain all the ap- plicable prohibitions and exceptions. 50 C.F.R 17.31. In short, the FWS has, with this regulation estab- lished a regime in which the prohibitions established for endangered species are extended automatically to all threatened species by a blanket rule and then with- drawn as appropriate, by special rule for particular species and by permit in particular situations. Al- though appellants' dissatisfaction is focused entirely on this treatment of the "take" prohibition, the regu- lation applies all of the 1538(a)(1) prohibitions to threatened species in this manner. Appellants contend that the FWS has created the system upside down, in violation of the ESA. They maintain that 1533(d) requires the Secretary to extend the prohibitions to threatened species on a species-by-species basis. They also assert that the statute requires the agency to explain in each instance why it is "necessary and advisable" to apply the pro- hibitions to a threatened species. We are not persuaded. As was the case with the "harm" regulation, there is no clear indication that 17.31(a) violates the intent of the ESA. The stat- ute does not unambiguously compel the agency to ex- pand regulatory protection for threatened species ---------------------------------------- Page Break ---------------------------------------- 53a only by promulgating regulations that are specific to individual species. In light of the substantial defer- ence we thus owe the agency under the principles of Chevron USA, Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984), we uphold the challenged regulation as a reasonable interpretation of the statute. Appellants argue that the plain language of the ESA establishes that Congress intended regulations extending the 1538(a)(1) prohibitions to threat- ened species to apply only to individual species. They focus on the first sentence of 1533(d), pointing out its clear use of the singular. ("Whenever any species is listed as a threatened species . . . . ") They maintain that in light of the first sentence's unambiguous ref- erence to regulations for a single threatened species, the phrase "any threatened species" in the second sen- tence must also refer to the singular. Appellants finally note that the Senate Report bolsters their in- terpretations of the language of 1533(d) as author- izing regulation tailored to individual species. [The section] requires the Secretary, once he has listed a species of fish or wildlife as a threatened species, to issue regulations to protect that spe- cies. Among other protective measures available, he may make any or all of the acts and conduct defined as "prohibited acts" . . . as to "endan- gered species" also prohibited acts as to the par- ticular threatened species. S.Rep. No. 93-307, 93d Cong., 1st Sess, 8 (1973), U.S.Code Cong. & Admin. News 1973, pp. 2989, 2996. (emphasis added). It is however, less than clear that the language of 1533(d) is actually intended to require regulations ---------------------------------------- Page Break ---------------------------------------- 54a extending the 1538(a)(1) prohibitions to apply only to individual species. The reference to "any threatened species" in the second sentence of 1538 (d) could just as easily mean "any or all threatened species." And appellants' claim that the clear mean- ing of the first sentence should control our interpreta- tions of the second is not necessarily valid, for, as appellees argue, the two sentences may represent sep- arate grants of authority. It is possible that it is the second sentence alone that grants the agency authority to extend the 1538(a)(1) prohibitions to threatened species. See infra pp. 7-8. Furthermore, in response to appellants' use of the Senate Report, appellees counterpoise the use of plural language in the discussion of 1533(d) in the House Report. The Secretary is authorized to issue appropriate regulations to protect endangered or threatened species; he may also make specifically applicable any of the prohibitions with regard to threatened species that have been listed in section 9(a) as are prohibited with regard to endangered species. Once an animal is on the threatened list, the Sec- retary has almost an infinite number of options available to him with regard to the permitted ac- tivities for those species. He may, for example, permit taking, but not importation of such spe- cies, or he may choose to forbid both taking and importation but allow the transportation of such species. H.R. Rep. No. 93-412, 93rd Cong., 1st Sess. 12 (1973). The possible conflict between the two reports, as well as the apparent inconsistency within the above-quoted paragraph itself as to singular and plural, shows the ---------------------------------------- Page Break ---------------------------------------- 55a perils of attempting to use ambiguous legislative his- tory to clarify ambiguous words within statutes. In any case, even assuming that the reference to "any threatened species" in the second sentence of 1533(d) is singular, the statute still would not clearly forbid the FWS from proceeding in the man- ner it did. Appellants impart inappropriate signifi- cance to the use of the singular versus the plural. The very first provision of the United States Code states, "In determining the meaning of any Act of Congress, unless the context indicates otherwise . . . Words importing the singular include and apply to several persons, parties, or things [and] words im- porting the plural include the singular." 1 U.S.C. 1. Furthermore, regardless of the use of singular and plural words, 1533(d) simply does not speak di- rectly to the question of whether the FWS must promulgate protections species-by-species or may ex- tend such protection in a single rulemaking. We will rarely impose a particular procedural strategy on an agency when the relevant statute does not even ex- plicitly address how the agency should proceed. "In [the] process of filling any gap left, implicitly or explicitly, by Congress, the courts must respect the interpretation of the agency to which Congress has delegated the responsibility for administering the statutory program." INS v. Cardoza-Fonseca, 480 U.S. 421, 448, 107 S.Ct. 1207, 1221, 94 L. Ed.2d 434 (1987) (citations omitted). Appellants attempt to bolster their argument by claiming that the design and structure of the ESA unavoidably require the FWS to extend the 1533 (d) prohibitions to threatened species on a species- by-species basis. They contend that Congress created ---------------------------------------- Page Break ---------------------------------------- 56a the distinct categories of endangered and threatened species specifically so that each category would re- ceive the precise degree of protection it required. By presumptively according the very same protections to threatened species as to endangered species, they ar- gue, the FWS is violating this statutory design. This argument also fails, because regardless of the ESA's overall design, 1533(d) arguably grants the FWS the discretion to extend maximum protection to all threatened species at once if, guided by its exper- tise in the field of wildlife protection, it finds it ex- peditious to do so. In any case, even assuming that Congress intended there to be an indelible difference between the treatment of endangered species and threatened species, appellants fail to acknowledge the very real differences that exist even under the chal- lenged regulation. As noted above, supra, p. 5, the regulation contemplates the issuance of "special rules" for individual threatened species. 50 C.F.R. 17.31(c). The FWS has actually issued special rules for a substantial number of the fish and wild- life species listed as threatened. See 50 C.F.R. 17.40-48. Moreover, FWS regulations provide for the issu- ance of permits, under certain circumstances, to individual applicants who request permission to com- mit otherwise prohibited activities with respect to threatened wildlife. 50 C.F.R. 17.32. Similar per- mits are available with regard to endangered species, 50 C.F.R. 17.22-23, but the FWS has made clear that they are more readily available for threatened species. The new Subpart D would establish a set of blanket prohibitions for threatened wildlife. These are the same prohibitions that the Act pro- ---------------------------------------- Page Break ---------------------------------------- 57a vides for endangered wildlife. . . . The new Sub- part D would then provide for permits for any threatened wildlife. These permits would be more liberal than permits available under Sub- part . . . for endangered wildlife, in that they would be available for more purposes, and the strict procedural rules for endangered wildlife permits would not apply. 40 Fed.Reg. 28,713 (1975). The FWS has thus maintained a two-tier approach to species protection. Consequently, even if the ESA does in fact mandate that the agency preserve dif- ferent approaches to the conservation of endangered and threatened species, the regulatory scheme satis- fies the statute. Lastly, appellants claim that 50 C.F.R. 17.31 (a) violates the ESA because 1533(d) requires the FWS to make individualized formal findings that the prohibitions are "necessary and advisable" for the conservation each threatened species to which they are extended. Not only did the agency fail to make such findings for each individual species; it did not even make such a finding in regard to the category of threatened species as a whole when it issued the blanket extension of prohibitions. As appellees argue, however, there is a reasonable reading of 1533(d) that would not require the FWS to issue formal "necessary and advisable" find- ings when extending the prohibitions to threatened species. According to this interpretation, the two sentences of 1533(d) represent separate grants of authority. The second sentence gives the FWS dis- cretion to apply any or all of the 1538(a) (1) pro- hibitions to threatened species without obligating it ---------------------------------------- Page Break ---------------------------------------- 58a to support such actions with findings of necessity. Only the first sentence of 1533(d) contains the "necessary and advisable" language and mandates formal individualized findings. This sentence re- quires the FWS to issue whatever other regulations are "necessary and advisable," including regulations that impose protective measures beyond those con- tained in 1538(a)(1). In sum, we find it far from clear that 16 U.S.C. 1533(d) requires the FWS to extend protections to threatened species on a species-by-species basis or that it mandates that the agency issue formal find- ings of necessity to support each such extension. In light of the statute's ambiguity, the challenged FWS regulation is a reasonable and permissible construc- tion of the ESA. We therefore uphold 50 C.F.R. 17.31(a). III. CONCLUSION Neither the regulation defining harm nor the regu- lation extending blanket protection to threatened species is an unreasonable interpretation of the En- dangered Species Act. Moreover, the "harm" regula- tion is not impermissible vague on its face. We therefore affirm the judgment of the district court and uphold both regulations. It is so ordered. ---------------------------------------- Page Break ---------------------------------------- 59a MIKVA, Chief Judge, concurring in Section II (A)(1) of the opinion: I write separately in order to articulate fully my reasons for rejecting appellants' argument that we should set aside the "harm" regulation as violative of the ESA. When we review an agency's construction of a statute that it is entrusted to administer, we follow the deferential approach set out by Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S. Ct. 2778, 81 L.Ed.2d 694 (1984). "If the statute is clear and unambiguous that is the end of the matter, for the court, as well as the agency, must give effect to the unambiguously expressed in- tent of Congress." K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291, 108 S. Ct. 1811, 1817, 100 L. Ed.2d 313 (1988) (citations omitted). If, however, "the statute is silent or ambiguous with respect to the spe- cific issue, the question for the court is whether the agency's answer is based on a permissible construc- tion of the statute." Chevron, 467 U.S. at 843, 104 S. Ct. at 2782. "In such a case, a court may not sub- stitute its own construction of a statutory provision for a reasonable interpretation made by the admin- istrator of an agency." Id. at 844, 108 S. Ct. at 2782. Appellants contend that Congress clearly intended to exclude habitat modification from the types of tak- ings prohibited by the ESA and that this Court thus owes no deference to the FWS "harm" regulation. I disagree. In my view, the "harm" regulation con- flicts with neither the ESA itself nor its ambiguous legislative history and is unquestionably a permis- sible and reasonable construction of the statute. I therefore do not accept appellants' claim that 50 C.F.R. 17.3 transgresses the ESA. ---------------------------------------- Page Break ---------------------------------------- 60a It is hard to construct a legislative scenario in which Congress would have avoided the problem of habitat modification when it crafted the ESA. The drafters of the statute realized that the degradation of habitats posed one of the gravest threats to the continued existence of endangered and threatened species. As the Supreme Court has noted: In shaping [the ESA], Congress started from the finding that "[t]he two major causes of ex- tinction are hunting and destruction of natural habitat." S.Rep. No. 93-307, p. 2 (1973). Of these twin threats, Congress was informed that the greatest was destruction of natural habitats. . . . TVA v. Hill, 437 U.S. 153, 179, 98 S. Ct. 2279, 2294, 57 L. Ed.2d 117 (1978). Indeed, the first stated pur- pose of the ESA is "to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved . . . ." 16 U.S.C. 1531(b). Appellants acknowledge that Congress intended to halt injurious habitat modification when it passed the ESA. They contend only that Congress did not mean to combat habitat degradation on private lands through the prohibition against takings in 16 U.S.C. 1538. They argue that Congress intended to combat this problem solely through 1534's provision for federal land acquisition. According to appellants, the legislative history of the "take" provision establishes that Congress did not mean for that term to encompass habitat modi- fication. They note that the original bill that was referred to the Senate Committee on Commerce, S. 1983, defined "take" to include "destruction, modi- ---------------------------------------- Page Break ---------------------------------------- 61a fication, or curtailment of [an endangered species'] habitat or range." S. 1983, 93d Cong., 1st Sess., 3(6) (1973). The bill reported out of committee, however, did not refer to habitat modification in the definition of "take." This omission, appellants argue, evinces Congress' intent not to include habitat modi- fication within the scope of prohibited "takings." Appellants maintain that Congress intended in- stead to address the problem of habitat modification caused by private actions on private lands exclusively through land acquisition by the federal government. Section 1534 authorizes the Secretary of the Interior, as well as the Secretary of Agriculture with respect to the National Forest System, to acquire land as part of "a program to conserve fish, wildlife, and plants, including those which are listed as endan- gered species or threatened species . . . . " 16 U.S.C. 1534(a). Appellants point to various statements in the legislative history that suggest that some mem- bers of Congress may have wanted land acquisition, not the prohibition of land uses, to be the ESA's sole weapon against habitat modification on private lands. Appellants further argue that Congress logically must have intended land acquisition to be the exclu- sive mechanism for preventing such habitat modifica- tion. Otherwise, they contend, agency officials would always choose the free alternative of prohibiting a damaging land use under the "take" provision, rather than paying to acquire the affected land. I find the legislative history to be most ambiguous regarding whether Congress intended to include habitat modification within the meaning of "take." It is true that the Senate Committee chose not to use the S, 1983 definition of "take," which specifically encompassed habitat modification. Instead, the Com- ---------------------------------------- Page Break ---------------------------------------- 62a mittee adopted a definition from the other bill under consideration, S. 1592, which did not explicitly in- clude habitat modification. But as the district court noted, there is no indication in the legislative history as to why the Committee selected one definition over the other. There is nothing to suggest that Congress chose the definition it did in order to exclude habitat modi- fication. The Committee may have rejected the S. 1983 definition only because it apparently would have made habitat modification a per se violation of the ESA. It is certainly possible that the Committee did not intend to foreclose an administrative regulation prohibiting habitat modification-so long as that pro- hibition was accompanied by limitations, such as those contained in the FWS regulation under review, requiring that there be actual injury or death to the species. In any case, Congress manifested no clear intent to exclude habitat modification from the "take" definition. Indeed, the Senate Committee Report states that "'Take' is defined . . . in the broadest possible manner to include every conceivable way in which a person can 'take' or attempt to 'take' any fish or wildlife." S.Rep. No. 93-307, 93d Cong., 1st Sess. 7 (1973), U.S.Code Cong. & Admin. News 1973, 2995. Appellants' contention that Congress intended land acquisition to be the exclusive instrument for curbing habitat modification on private lands is similarly speculative. Nothing in the language of 16 U.S.C. 1534 or in the legislative history establishes that Congress meant land acquisition to be the only mechanism for habitat protection on private lands. The only evidence appellants can garner in support of their assertion to the contrary is a few isolated ---------------------------------------- Page Break ---------------------------------------- 63a and ambiguous remarks by members of Congress on the floor. See 119 CONG.REC. 25,669 (1973) (state- ment of Sen. Tunney); 119 CONG.REC. 30,162 (1973) (statement of Rep. Sullivan); 119 CONG.REC. 25,691 (1973) (statement of Sen. Nelson). The general rule is that "debates in Congress expressive of the views and motives of individual members are not a safe guide . . . in ascertaining the meaning and purpose of the law-making body." Duplex Printing Press Co. v. Deering, 254 U.S. 443, 474, 41 S. Ct. 172, 179, 65 L.Ed. 349 (1921). In any case, these statements do not establish that even the speakers themselves in- tended land acquisition to be the exclusive protective mechanism for habitats on private lands. There is also little force behind appellants' claim that including habitat modification within the mean- ing of "take" renders the land acquisition provision of 1534 a nullity. Appellants suggest that agency officials will not pay to acquire land if they can accomplish the same habitat preservation objective without cost by banning the offending land use. But there are in fact many reasons why, in its effort to protect endangered and threatened species, the gov- ernment might choose to acquire land rather than simply forbid damaging activity. Federal wildlife managers can surely do more to help such species on government-owned and controlled preserves than they could ever accomplish on private lands. Indeed, 1534 land acquisition is explicitly designed to fa- cilitate "conservation programs," a phrase that sug- gests a type of intervention more complex and pro- active than simply forbidding certain activities on private lands. Appellants argue that the agency must interpret the word "harm" narrowly so as not to include ---------------------------------------- Page Break ---------------------------------------- 64a habitat modification because none of the other "take" terms- "harass, . . . pursue, hunt, shoot, wound, kill, trap, capture, [and] collect''-represents a land use action that injures wildlife only indirectly. They argue that under the principle of statutory construc- tion known as noscitur a sociis, a general term in a list should be interpreted narrowly "to avoid the giv- ing of unintended breadth to the Acts of Congress." Jarecki v. G.D. Searle & Co., 367 U.S. 303, 307, 81 S. Ct. 1579, 1582, 6 L. Ed.2d 859 (1961). Despite appellants' suggestions, however, the other prohibitions can limit a private landowner's use of his land in a rather broad manner. In particular, the prohibition against "harassment" can be used to supress activities that are in no way intended to injure an endangered species. The House Report stated: [Take] includes harassment, whether intentional or not. This would allow, for example, the Sec- retary to regulate or prohibit the activities of birdwatchers where the effect of those activities might disturb the birds and make it difficult for them to hatch or raise their young. H.R.Rep. No. 93-412, 93d Cong., 1st Sess. 11 (1973). Indeed, the FWS has defined "harass" in a way that is almost as broad as the "harm" definition: Harass in the definition of "take" in the Act means an intentional or negligent act or omis- sion which creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral patterns which include, but are not limited to, breeding, feeding, or sheltering. 50 C.F.R. 17.3. Appellants have not challenged this definition. ---------------------------------------- Page Break ---------------------------------------- 65a Noscitur a sociis means, literally, that a word is known by the company it keeps. Jarecki, 367 U.S. at 307, 81 S. Ct. at 1582. In the definition of "take," the term "harm" is accompanied by an assortment of words ranging from the precise and narrow "shoot" to the vague and expansive "harass." Consequently, even if I were willing to find an agency's construc- tion of a statute to be impermissible based solely on a seldom-used and indeterminate principle of statu- tory construction, I would not do so in the present case. Although the ESA is generally ambiguous as to whether the "take" prohibition forbids habitat modi- fication, there is at least one feature of the statute that strongly suggests that Congress did in fact in- tend to include habitat modification within the mean- ing of "take." In 1982, Congress amended the ESA to include a provision authorizing the FWS to issue a permit allowing "any taking otherwise prohibited by section 1538 (a)(1)(B) of this title if such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity, " 16 U.S.C. 1539(a)(1)(B). By allowing the agency, at its discretion, to permit "incidental takings," Congress implicitly confirmed that incidental takings were otherwise forbidden by the Act. And it is hard to imagine what "incidental takings" might be other than habitat modification. Indeed, the legislative history of the 1982 amend- ments reveals that habitat modification was precisely what Congress had in mind. The House Report states, "This provision is modeled after a habitat conservation plan that has been developed by three Northern California cities. . . . [It] will . . . provide the institutional framework to permit cooperation ---------------------------------------- Page Break ---------------------------------------- 66a between the public and private sectors in the interest of endangered species and habitat conservation." H.R.Rep. No. 97-835, 97th Cong., 2d Sess. 30-31 (1982), U.S.Code Cong. & Admin. News 1982, pp. 2807, 2871, 2872. Overall, there is nothing in the ESA itself or in its legislative history that unambiguously demon- strates that the term "take" does not encompass habi- tat modification. Indeed, as I noted in my discussion of the 1982 amendments, there is evidence to the con- trary. Chevron commands that unless it is absolutely clear that an agency's interpretation of a statute, entrusted to it to administer, is contrary to the will of Congress, courts must defer to that interpretation so long as it is reasonable. Chevron, 467 U.S. at 844, 104 S. Ct. at 2782. In upholding the challenged regulation, we join the Ninth Circuit, which has similarly held that the agency's inclusion of habitat destruction in the defi- nition of "harm" is a permissible interpretation of the ESA. That Circuit has stated that "[t]he Sec- retary's inclusion of habitat destruction that could result in extinction follows the plain language of the statute because it serves the overall purpose of the Act . . . ." Palila v. Hawaii Dep't of Land and Na- tural Resources, 852 F.2d 1106, 1108 (9th Cir. 1988). ---------------------------------------- Page Break ---------------------------------------- 67a WILLIAMS, Circuit Judge, concurring in Section II(A)(1) of the opinion: I agree that the "harm" regulation, 50 CFR 17.3, complies with the Endangered Species Act-but only because of the 1982 amendments to the ESA. See Pub.L. 97-304, 4(a)(2) and 6(1) (codified re- spectively at 16 U.S.C. 1536(b)(4)(B) and 1539(a)(1)(B)). Those amendments, which author- ize the FWS to issue permits for "any taking other- wise prohibited by section 1538(a)(1)(B) of this title if such taking is incidental to, and not the pur- pose of, the carrying out of an otherwise lawful activity," 16 U.S.C, 1539(a)(1)(B), support the inference that the ESA otherwise forbids some such incidental takings, including some habitat modifica- tion. But for the 1982 amendments, I would find Judge Sentelle's analysis highly persuasive-includ- ing his discussion of the noscitur a sociis canon. See RLEA v. NMB, 988 F.2d 133, 144 (D.C. Cir. 1993) (Williams, J. dissenting) (characterizing the canon as a "powerful linguistic norm"). ---------------------------------------- Page Break ---------------------------------------- 68a SENTELLE, Circuit Judge, dissenting: As we have observed, "some will find ambiguity even in a 'No Smoking' sign." International Union, United Auto, Aerospace and Agric. Implement Work- ers of Am. v. General Dynamics Land Sys. Div., 815 F.2d 1570, 1575 (D.C. Cir. 1987). In the present case the Fish and Wildlife Service has established that it would not only find such ambiguity, but would deem a congressional authorization for the erection of "No Smoking" signs to authorize the adoption of regula- tions against chewing and spitting. As Chief Judge Mikva notes, this case is governed by Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984). That decision mandates a two-step analysis, At the first step "we inquire into whether Congress has directly spoken to the precise question at issue. If we can come to the unmistakable con- clusion that Congress had an intention on the precise question at issue, our inquiry ends there." Nuclear Info. Resource Serv. v. Nuclear Regulatory Comm'n, 969 F.2d at 1169, 1173 (1992) (en banc) (citations and internal quotation marks omitted). At the sec- ond step "if the statute . . . is silent or ambiguous with respect to the specific issue before us, . . . we defer to the agency's interpretation of the statute if it is reasonable and consistent with the statute's purpose." Id. (citations and internal quotation marks omitted ). While I am willing to concede the possi- bility that some ambiguity may remain in the un- usually specific recitation by Congress of its intent in defining the term "take," I cannot cram the agency's huge regulatory definition into the tiny crack of am- biguity Congress left. ---------------------------------------- Page Break ---------------------------------------- 69a As a colleague of ours has observed, "the second prong of the Chevron inquiry, whether an agency's interpretation of an ambiguous statutory provision is reasonable, is also not devoid of content." National Ass'n for Better Broadcasting v. FCC, 849 F.2d 665, 671 n. 3 (D.C. Cir. 1988) (Wald, C. J., dissenting). In the present case, I see no reasonable way that the term "take" can be defined to include "significant habi- tat modification or degradation" as it is defined in 50 C.F.R. 17.3. I have in my time seen a great many farmers modifying habitat. They modify by plowing, by tilling, by clearing, and in a thousand other ways. At no point when I have seen a farmer so engaged has it occurred to me that he is taking game. Nor do I think it would occur to anyone else that he was taking wildlife. He may be doing some- thing harmful to wildlife, but he is not "taking" it. In my view, the fact that the farmer may be in- directly harming wildlife, and that the statutory defi- nition includes "harm" helps the agency's cause but little. To analogize again to the smoking proposition, if Congress authorized the erection of "No Smoking" signs in public buildings and thereafter defined smok- ing to include lighting, burning, puffing, inhaling, and otherwise harmfully employing the noxious nicotine- bearing tobacco products," some zealous bureau might well attempt to define smoking to include chewing and spitting under the rubric of the "harmful use" in Congress's definition of smoking. Perhaps some might think that reference to harm would cause the concept of smoking to include chewing. I do not think those creative regulators would be thinking reason- ably if they should do so, nor do I think the regulators act reasonably in the present case. ---------------------------------------- Page Break ---------------------------------------- 70a As my colleague observes, there is an ancient "princi- ple of statutory construction known as noscitur a sociis, a general word in a list should be interpreted narrowly 'to avoid the giving of unintended breadth to the Acts of Congress.'" Mikva Op. at 10, quoting Jarecki v. G.D. Searle & Co., 367 U.S. 303, 307, 81 S. Ct. 1579, 1582, 6 L. Ed.2d 859 (1961). In the pres- ent statute, all the other terms among which "harm" finds itself keeping company relate to an act which a specifically acting human does to a specific indi- vidual representative of a wildlife species. In fact, they are the sorts of things an individual human com- monly does when he intends to "take" an animal. Otherwise put, if I were intent on taking a rabbit, a squirrel, or a deer, as the term "take" is used in common English parlance, I would go forth with my dogs or my guns or my snares and proceed to "harass, . . . pursue, hunt, shoot, wound, kill, trap, capture, or collect" 1. one of the target species. 16 U.S.C. 1532 (19). If I succeeded in that endeavor, I would cer- tainly have "taken" the beast. If I failed, I would at least have "attempt [cd] to engage in . . . such conduct." Id. All this falls neatly within a reasonable construc- tion of "take," just as puffing a pipe falls neatly within the definition of smoking, and I would not dare to do such in front of a "No Smoking" sign. However, I would think it most unreasonable if a regulator told me that I could not chew nicotine gum in front of the same sign because the agency had de- cided that it was harmful and therefore constituted ___________________(footnotes) 1 The only word replaced by ellipses is "harm," the word under examination. ---------------------------------------- Page Break ---------------------------------------- 71a smoking. It appears to me that the Fish and Wildlife Service has engaged in a similarly unreasonable ex- pansion of terms in the present case. I do not find the unreasonableness of the Service's construction to be in any way alleviated by the Senate Committee Report stating that "'[t]ake' is defined . . . in the broadest possible manner to include every conceivable way in which a person can 'take' or at- tempt to 'take' any fish or wildlife." S.Rep. No. 93- 307, 93d Cong., 1st Sess. 7 (1973), U.S.Code Cong. & Admin.News 973, 2995 (quoted by Mikva Op. at 9). Should one committee of the anti-smoking Congress have included in its discussion of the "No Smoking" sign authorization language to the effect that "'smok- ing' is defined in the broadest possible manner to include every conceivable way in which a person can 'smoke' or attempt to 'smoke' any form of tobacco," that still would not convince me that the term could be defined to include chewing. Nor does the major- ity's reliance on that same sort of legislative history convince me that Congress, by mandating the broad- est possible manner of definition, intended to deprive the definition of any bounds whatsoever and turn the word into a free form concept inclusive of anything an agency might wish it to cover. I am bolstered in my conviction by another rule of statutory construction: that is, the presumption against surplusage." [W]e are hesitant to adopt an interpretation of a congressional enactment which renders superfluous another portion of that same law." Mackie v. Lanier Collection Agency, 486 U.S. 825, 837, 108 S. Ct. 2182, 2189, 100 L. Ed.2d 836 (1988). The construction placed upon the word "harm" by the agency and adopted by the court today ---------------------------------------- Page Break ---------------------------------------- 72a renders superfluous everything else in the definition of "take." If "harm" means any "act which actually kills or injures wildlife, " including "habitat modifica- tion or degradation," I can see no reason why Con- gress also included in the definition of "take" the terms "harass, . . . pursue, hunt, shoot, wound, kill, trap, capture, [and] collect." 16 U.S.C. 1532(19). Every single one of those acts, particularly when coupled with further language of the congressional definition which includes "to attempt to engage in any such conduct, " id., falls within the definition of "harm" as understood by the agency. I am unwilling to believe that Congress deliberately wasted the con- siderable ink and paper devoted to the many copies of this legislation containing all the other words in sec- tion 1532 (19). I am, therefore, unwilling to accept the Service's definition in the present case, no matter how well intended. Because I would void the regulation at this early stage, I would not reach the void-for-vagueness claim. I would observe, however, that I do not see how a definition as boundless as the agency conceives for the word "take" and the component "harm" of its defini- tion could readily avoid being impermissible vague. I respectfully dissent. ---------------------------------------- Page Break ---------------------------------------- 73a APPENDIX C UNITED STATES DISTRICT COURT DISTRICT OF COLUMBIA Civ. A. No. 91-1468 SWEET HOME CHAPTER OF COMMUNITIES FOR A GREAT OREGON, ET AL., PLAINTIFFS v. MANUAL LUJAN, JR., Secretary of the Interior, JOHN F. TURNER, Director, U.S. Fish and Wildlife Service, DEFENDANTS May 29, 1992 MEMORANDUM OPINION NORMA HOLLOWAY JOHNSON, District Judge. Plaintiffs are various organizations, businesses and individuals, who depend directly or indirectly on the timber industry in the Pacific Northwest and in the Southeast for their livelihood. They challenge two regulations promulgated by the Secretary of the In- terior ("the Secretary") as contrary to the Endan- gered Species Act ("ESA"), 16 U.S.C. 1531-1544 (1988). They also claim that one of these regulations is void for vagueness. Currently pending before the Court are the parties' cross-motions for summary judgment. The parties agree that there are no genu- ine disputes of material fact and that this case raises purely legal issues. After careful consideration of the ---------------------------------------- Page Break ---------------------------------------- 74a submission of the parties and the entire record herein, and for the reasons outlined below, the Court will grant defendants' motion for summary judgment and deny plaintiffs' motion for summary judgment. REGULATORY AND FACTUAL BACKGROUND The Endangered Species Act, 16 U.S.C. 1531- 1544 (1988), was enacted by Congress in 1973 to pro- vide a program for the conservation of endangered species and threatened species and for the preservation of their ecosystems. 16 U.S.C. 1531(b). Section 4 of the ESA directs the Secretary to designate species of fish, wildlife, or plants as "endangered" or "threat- ened" in accordance with certain procedures. 16 U.S.C. 1533(a)(1). The Secretary is also empow- ered to designate "critical habitat" for such listed species and to develop recovery plans for their sur- vival. 16 U.S.C. 1533(a)(3), 1533(f). The ESA prohibits certain activities with respect to species that are designated as endangered or threat- ened. Section 7(a)(2) of the ESA, which applies only to federally-authorized actions, requires all fed- eral agencies to insure that their activities will not "jeopardize the continued existence of any endan- gered species or threatened species or result in the destruction or adverse modification of habitat of such species which is determined by the Secretary. . . to be critical . . . . " 16 U.S.C. 1536(a)(2). Section 9 of the ESA, which applies to both federal and nonfederal actors, addresses prohibited actions with respect to endangered species only. At issue in this case is the scope of the "take" provision, 1538 (a)(1)(B), which makes it unlawful for any person to "take any [endangered] species within the United States." The ESA defines "take" as follows: ---------------------------------------- Page Break ---------------------------------------- 75a The term "take" means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct. 16 U.S.C. 1532(19). Although the ESA does not define the terms within this definition any further, the Secretary has promulgated a regulation defining the word "harm" as follows: Harm in the definition of "take" in the Act means an act which actually kills or injures wild- life. Such act may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impair- ing essential behavioral patterns, including breeding, feeding, or sheltering. 50 C.F.R. 17.3 (1991). The prohibition against "takings" set out in 1538 (a)(1) applies only to those species listed as endan- gered. However, section 4(d) of the ESA allows the Secretary to extend some or all of the protections in 1538(a)(1) to threatened species as well: Whenever any species is listed as a threatened species . . ., the Secretary shall issue such regula- tions as he deems necessary and advisable to pro- vide for the conservation of such species. The Secretary may by regulation prohibit with re- spect 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). Pursuant to this section, the Secretary has adopted a regulation which extends the prohibitions listed in 1538(a) (1), including the prohibition against "takings," to all wildlife species listed as threatened: ---------------------------------------- Page Break ---------------------------------------- 76a Except as provided in subpart A of this part, or in a permit issued under this subpart, all of the provisions in $17.21 [which restates the prohibi- tions outlined in 16 U.S.C. 1538(a) (1)] shall apply to threatened wildlife, except 17.21(c) (5). 50 C.F.R. 17.31(a) (1991). Plaintiffs in this action are small landowners, small logging companies, and families allegedly dependent on the forest products industry in the Pacific North- west and in the Southeast. In order to enforce the regulations at 50 C.F.R. 17.3 and 17.31(a) and to avoid "harm''-type takings of the northern spotted owl and other threatened wildlife species, the Fish and Wildlife Service ("FWS") has placed restric- tions on timber harvesting. Plaintiffs claim that these restrictions have forced them to lay off employees, limited their income from trust lands, reduced the timber supply, and placed some of the plaintiffs in the position of being unable to support their families. They bring this action challenging the "harm" defini- tion at 50 C.F.R. 17.3 as contrary to the ESA and void for vagueness. Plaintiffs also challenge the Sec- retary's regulation at 50 C.F.R. 17.31(a), extend- ing the protections for endangered species to threat- ened species, as contrary to the ESA. DISCUSSION In reviewing an agency's construction of a statute, a court must first determine "whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter." Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842, 104 S. Ct. ---------------------------------------- Page Break ---------------------------------------- 77a 2788, 2781, 81 L.Ed.2d 694 (1984). Where the stat- ute and the intent behind it are ambiguous with re- spect to a matter at issue, however, a court must de- cide whether the agency's construction of the statute is "based on a permissible construction of the stat- ute." Chevron, 467 U.S. at 843, 104 S. Ct. at 2782. A court may not substitute its own construction of a statutory provision if the agency's interpretation is "reasonable." Id. at 844, 104 S.Ct. at 2782. A. The Definition of "Harm" at 50 C.F.R. 17.3 1. 17.3 Does Not Violate the ESA The Secretary's regulation at 50 C.F.R. 17.3 de- fines "harm" to mean "an act which actually kills or injures wildlife"; the harm definition in 17.3 includes "significant habitat modification or degrada- tion where it actually kills or injures wildlife." Plain- tiffs argue that, by establishing habitat modification as a form of harm, this regulatory definition goes beyond the definition that Congress intended for the term "take." Under the ESA, the term "take" means "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." 16 U.S.C. 1532(19). Congress made clear that the definition of "take" was to be interpreted "in the broadest possible manner to in- clude every conceivable way in which a person can 'take' or attempt to 'take' any fish or wildlife." S. Rep. No. 307, 93d Cong., 1st Sess. 7 (1973). See also H.R.Rep. No. 412, 93d Cong., 1st Sess. 11, 15 (1973) ("'Take' is defined broadly"; prohibition against "takings" in Section 9 of ESA "includes, in the broadest possible terms, restrictions on the taking, ---------------------------------------- Page Break ---------------------------------------- 78a importation and exportation, and transportation of [endangered] species.") Notwithstanding this clear intent by Congress to give an expansive definition to the term "take," plain- tiffs insist that Congress did not intend the term to reach habitat modification. In support of this conten- tion, plaintiffs make three principal arguments. First, plaintiffs point out that the original ESA bill which was referred to the Senate Committee on Com- merce, S. 1983, defined "take," with respect to fish or wildlife, to include "destruction, modification, or cur- tailment of its habitat or range." The fact that the bill was reported out of committee without any refer- ence to habitat modification in the definition of "take" is an indication, plaintiffs argue, that the Senate in- tended the scope of the word "take" not to encom- pass habitat modification. Plaintiffs are asking this Court to engage in specu- lation about legislative intent. The Court acknowl- edges that S. 1983 offered a different definition of the word "take" than the one that was subsequently adopted by the Senate Committee on Commerce. However, the Court notes that S. 1983 was only one of two endangered species bills under consideration by the Senate Committee on Commerce at that time. The other bill, S. 1592, defines "take" exactly as it now appears in the statute. From this legislative his- tory, the Court can conclude no more than that the Senate chose to adopt the definition in one bill over that in another. There is absolutely nothing in the legislative history of the ESA to indicate that the Senate rejected the definition in S. 1983 specifically because it wanted to exclude habitat modification from the definition of take. In fact, the Senate Re- ---------------------------------------- Page Break ---------------------------------------- 79a port indicates just the opposite, that "take" was being defined "in the broadest possible manner." It may be, as defendants suggest, that the Senate rejected the definition of "take" in S. 1983 because it did not want habitat modification per se to constitute a taking; or it may be that the Senate chose to leave the decision of whether to define takings to include habitat modification in the hands of the Secretary. However, the Court will not rely upon such specula- tion to deduce legislative intent. Plaintiffs' second argument is that Congress in- tended to address the problem of habitat modification exclusively through federal land acquisition, not through the take provision. Section 4 of the ESA grants the Secretary the authority to utilize land ac- quisition measures to carry out conservation pro- grams for endangered and threatened species. See 16 U.S.C. 1534. However, nothing in the language of 1534 or in the legislative history of the land acquisition provision suggests that Congress intended land acquisition to be the exclusive protective mecha- nism for listed species' habitat. The language and legislative history of 1534 clearly indicate that Con- gress considered land acquisition a critical tool in pre- serving habitat, but they do not suggest that Con- gress intended it to be the only tool. See 16 U.S.C. 1534(a)(1) ("To carry out such a program [of species conservation], the appropriate Secretary shall utilize the land acquisition and other authority . . .) ; H.R. Conf.Rep. No. 740, 93d Cong., 1st Sess. 25 (1973) ("Any effective program for the conservation of endangered species demands that there be adequate authority vested in the program managers to acquire habitat which is critical to the survival of those spe- cies."); S.Rep. No. 307, 93 Cong., 1st Sess. 4 (1973) ---------------------------------------- Page Break ---------------------------------------- 80a ("Often, protection of habitat is the only means of protecting endangered animals which occur on non- public lands.") Finally, plaintiffs argue that the amendment which added the term "harm" to the ESA definition of "take" was a technical amendment which was never debated and should therefore not be interpreted ex- pansively. See 119 Cong.Rec. 25, 682-83 (1973) (clarifying amendments offered by Senator Tunney). Plaintiffs' argument itself relies upon an unwar- ranted expansive reading of the Secretary's regula- tion. Plaintiffs claim that the 17.3 definition of "harm," unlike every other component of the "take" definition, "allows land use or habitat modification actions to be barred as takings." Plaintiffs' Mem. for Summary Judgment at 21. The Secretary correctly points out, however, that not all habitat modification actions constitute "harm" under the 17.3 definition; rather, only an action which "actually kills or injures wildlife" falls into the category of "harm." The Sec- retary's definition thus requires proof of actual kill- ing or injury to wildlife, consistent with the ESA's definition of "take." The Court concludes that the Secretary's definition of harm at 17.3 is entirely consistent with the ESA's definition of take. Congress made clear that it was defining "take" extremely broadly, "to include every conceivable way in which a person can 'take' or attempt to 'take.'" S.Rep. No. 307, at 7. Courts interpreting the "take" definition have consistently upheld the Secretary's definition of "harm" under the ESA. See TVA v. Hill, 437 U.S. 153, 184-85 n. 30, 98 S.Ct. 2279, 2297 n. 30, 57 L.Ed.2d 117 (1978) ; Palila v. Hawaii Dep't of Land & Natural Resources (Palila I), 471 F.Supp. 985 (D.Haw.1979), aff'd, ---------------------------------------- Page Break ---------------------------------------- 81a 639 F.2d 495 (9th Cir. 1981) 1.; Palila v. Hawaii Dep't of Land & Natural Resources (Palila II), 852 F.2d 1106 (9th Cir. 1982). It is worth noting that, in 1982, when Congress re- authorized the ESA and amended certain of its pro- visions, Congress was aware of these court decisions. See Endangered Species Act of 1973: Hearings Be- fore the Subcomm. on Fisheries and Wildlife Conser- vation and the Environment of the House Comm. on Merchant Marine and Fisheries (hereinafter "Hear- ings"), 97th Cong., 2d Sess. 291, 329, 331, 343 (1982). Moreover, the precise question at issue in this case arose in the House hearings on the proposed reauthorization bill. One panelist before the subcom- mittee, Ken Berlin of the National Audubon Society, pointed out that industry groups had been seeking to remove the word "harm" from the ESA's definition of "take" because they disagreed with the Secretary's interpretation of that word to include habitat modifi- cation. Hearings, at 290. In response to subsequent questioning by Congressman Edwin B. Forsythe, Robert Carlton of the National Forest Products As- sociation and Mr. Berlin specifically addressed the issue of whether the statutory definition of "take" was intended to include habitat modification. Hear- ___________________(footnotes) 1 Both the TVA v. Hill and Palila I decisions were issued when a prior version of the Secretary's regulation was in effect; that prior version also defined "harm" to include habitat modification. The Secretary revised the language of the harm definition in 1981, but without changing its basic meaning. The final regulation simply clarified that habitat modification would not be considered a taking unless there was proof of attendant death or injury. See 46 Fed.Reg. 54,748 (November 4, 1981). ---------------------------------------- Page Break ---------------------------------------- 82a ings, at pp. 342-43. Rather than argue about statu- tory interpretation, Congressman William J. Tauzin turned the panelists' attention to the exemption proc- ess in Section 10(a) of the ESA, and the discussion subsequently focused on amending that section to pro- mote its efficiency. Id. at 344-46. The reauthorization bill that was eventually adopted by Congress did not amend the original definition of "take" to exclude the word "harm" or to correct the Secretary's definition of that term. Instead, it amended the provisions of the Section 10(a) permit process "to encourage crea- tive partnerships between the public and private sec- tors and among governmental agencies in the interest of species and habitat conservation." H.Rep. No. 835, 97th Cong., 2d Sess. 30 (1982). Finally, the structure of the ESA supports the Court's conclusion that Congress intended "take" to be interpreted broadly, even to include habitat mod- ification. Plaintiffs suggests that the 17.3 definition of "harm" to include habitat modification makes the land acquisition provision of the ESA largely super- fluous. However, as defendants point out, there is considerable overlap in the ESA between different provisions of different sections of the ESA, and this overlap is completely consistent with the statute's purpose of attacking the issue of conservation as ag- gressively as possible. The land acquisition provision of Section 5 offers a solution to the problem of habi- tat modification through federal spending; the take prohibitions of Sections 7 and 9 offer solutions through civil and criminal sanctions. The Court thus concludes that the language, struc- ture and history of the ESA reveal that Congress in- tended an expansive interpretation of the word "take," an interpretation that encompasses habitat ---------------------------------------- Page Break ---------------------------------------- 83a modification. However, even if the Court were some- how to find the ESA "silent or ambiguous" with re- spect to this issue, it would nevertheless uphold the Secretary's regulation as a reasonable interpretation of the statute. Chevron, 467 U.S. at 843, 104 S. Ct. at 2781. Plaintiffs have not addressed the question of the reasonableness of the Secretary's regulation under the second part of the Chevron test. In light of the statute's broad definition of "take," and the absence of any explicit language in the legislative history precluding habitat modification from the scope of that definition, the Court cannot conclude that 17.3 is an impermissible construction of the statute. Were the Court to reach the second step in chevron, there- fore, it must defer to the Secretary's interpretation. 2. 17.3 Is Not Void for Vagueness Plaintiffs also claim that the Secretary's definition of "harm" violates the Fifth Amendment's due proc- ess guarantee against vague regulations. This con- stitutional challenge is purely facial; plaintiffs do not allege that they are being threatened with actual criminal enforcement of the regulation. In general, the void for vagueness doctrine "re- quires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a man- ner that does not encourage arbitrary and discrim- inatory enforcement." Kolender v. Lawson, 461 U.S. 352, 357, 103 S. Ct. 1855, 1858, 75 L. Ed.2d 903 (1983). The primary purpose of the doctrine is to provide citizens with actual notice of offensive con- duct, to prevent arbitrary enforcement of criminal laws, and to ensure that such laws establish minimal ---------------------------------------- Page Break ---------------------------------------- 84a guidelines to govern law enforcement. Id. at 358, 103 S.Ct. at 1858. Defendants argue that, in order to succeed in their vagueness challenge, plaintiffs must demonstrate that the regulation is impermissible vague in all of its applications. They point out that this is a facial chal- lenge which does not implicate any "constitutionally protected conduct" such as expressive rights under the First Amendment. Village of Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. 389, 494, 102 Ct. 1186, 1191, 71 L.Ed.2d 362 (1982). Plaintiffs insist that 17.3 implicates private property rights protected by the Fifth Amendment, and that there- fore the broad standard of proof for vagueness out- lined in Flipside should not apply to their "constitu- tionally protected conduct." The Court agrees with plaintiffs that 17.3 im- plicates private property rights protected under the Fifth Amendment. It cannot, however, conclude that such Fifth Amendment interests constitute "constitu- tionally protected conduct" within the meaning of Flipside. Rather, the Court must apply the familiar standard outlined in United States v. Mazurie, 419 U.S. 544, 550, 95 S. Ct. 710, 714, 42 L.Ed.2d 706 1975): "[V]agueness challenges to statutes which do not involve First Amendment freedoms must be examined in the light of the facts of the case at hand." The facts of this case establish that the challenged regulation is not void for vagueness. The definition of "harm" found at 17.3 clearly limits prohibited conduct to that which "actually kills or injures wild- life." 50 C.F.R. 17.3. Furthermore, the regulation prohibits only "significant habitat modification or degradation," expressly defined as modification or ---------------------------------------- Page Break ---------------------------------------- 85a degradation which "actually kills or injures wildlife by significantly impairing essential behavioral pat- terns, including breeding, feeding or sheltering." Id. (emphasis added) As defendants point out, the de- termination of whether there has been a violation of this regulation requires an evaluation of the spec- ies involved, the biological needs of that species, and the degree of habitat modification, all of which are readily ascertainable. Moreover, the regulation itself requires a finding that actual death or injury to a species has occurred. The terms of the regulation thus clearly provide more than "minimal guidelines" and are sufficiently clear to put a party on notice of prohibited conduct. Finally, in order to establish a violation of the ESA under this regulation or any other, the govern- ment must prove that the charged party knowingly committed the violation. See 16 U.S.C. 1540(a) & (b). This intent requirement goes a long way to- wards vitiating vagueness concerns, since it elimi- nates the possibility that a person will be prosecuted for conduct which he or she did not know was unlaw- ful. Nor have plaintiffs offered any evidence, other than hypothetical possibilities, that the FWS is en- forcing this regulation in an arbitrary and discrim- inatory manner. The Court therefore concludes that 17.3 is not impermissible vague. B. The Extension of the Taking Prohibitions at 50 C.F.R. 17.31(a) The Secretary's regulation at 50 C.F.R. 17.31 (a) extends to threatened species all the protections that the ESA affords to endangered species. This regu- lation was promulgated under the authority set out ---------------------------------------- Page Break ---------------------------------------- 86a in Section 4(d) of the ESA, which states in pertinent part: Whenever any species is listed as a threatened species pursuant to subsection (c) of this sec- tion, the Secretary shall issue such regulations as he deems necessary and advisable to provide for the conservation of such species. The Secre- tary 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). Plaintiffs argue that 4(d) imposes limitations on the Secretary's ability to ex- tend the taking prohibitions for endangered species to threatened species. First, they claim that 4(d) allows such extensions only on a species-by-species basis. Second, they argue that 4(d) requires any such regulation to be accompanied by an explicit finding that the extension is "necessary and advis- able" for the conservation of the threatened species. The Court cannot accept plaintiffs' arguments. The plain language of the ESA clearly grants the Secre- tary the authority to promulgate a regulation such as 17.31(a). Where a statute is clear and unequivocal on its face, a court's decision may rest on the words of the statute itself, at least where it is not manifestly inconsistent with legislative intent. Gatewood v. Washington Healthcare Corp., 933 F.2d 1037, 1040 (D.C. Cir. 1991); Aviation Consumer Action Project v. Washburn, 535 F.2d 101, 106 (D.C. Cir. 1976). In this case, the language of the statute allows the Sec- retary to "prohibit with respect to any threatened species any act prohibited under section 1538 (a)(1) of this title." 16 U.S.C. 1533(d) (emphasis added). ---------------------------------------- Page Break ---------------------------------------- 87a The word "any" encompasses the entire range of threatened species and prohibited acts which the Sec- retary might consider. It allows the Secretary to pro- hibit one act with respect to one threatened species or as many as all acts with respect to all threatened species. Nothing in the language or legislative history of the statute requires the Secretary to promulgate regu- lations under 4(d) on a species-by-species basis. On the contrary, the statute gives the Secretary broad discretion to issue regulations "as he deems necessary and advisable." Plaintiffs' reading of this phrase as a requirement that the Secretary must issue some kind of "necessary and advisable" findings in con- junction with any promulgated regulation completely distorts the statutory language. The Secretary is not required to issue findings under 4(d); he is re- quired to issue regulations. To interpret the phrase as plaintiffs suggest would be to rewrite the statute. The legislative history of the ESA offers no evi- dence that the Court's plain reading of the language of 4(d) is "manifestly inconsistent with legislative intent." Gatewood, 933 F.2d at 1040. While the leg- islative record does contain statements which suggest that the Secretary would, under 4(d), draft regula- tions on an individual basis for each threatened species, there is nothing in the record to suggest that he is required to do so. In fact, the Senate Report evidences Congress' awareness of, and acquiescence in, a more sweeping use of 4(d). See S.Rep. No. 307, 93d Cong., 1st Sess. 8 (1973) (allowing the Sec- retary to make "any or all" of the acts prohibited for endangered species also prohibited as to threatened species. ---------------------------------------- Page Break ---------------------------------------- 88a The Court thus concludes that 17.31 (a) is not contrary to the ESA. CONCLUSION The Court concludes that both of the regulations challenged in this action, 50 C.F.R. 17.3 and 50 C.F.R. 17.31(a), are consistent with the ESA. Fur- thermore, 17.3 is not void for vagueness. The Court thus will grant defendants' motion for summary judg- ment and deny plaintiffs' motion for summary judg- ment. An Order consistent with this Memorandum Opinion will be entered on this date. ---------------------------------------- Page Break ---------------------------------------- 89a APPENDIX D UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT Filed August 12, 1994 No. 92-5255 SWEET HOME CHAPTER OF COMMUNITIES FOR A GREAT OREGON, ET AL., APPELLANTS v. BRUCE BABBITT, SECRETARY OF INTERIOR, ET AL. On Appellees' Petition for Rehearing and Suggestion for Rehearing En Banc Before: MIKVA, Chief Judge; WILLIAMS and SEN- TELLE, Circuit Judges. ORDER Upon consideration of appellees' petition for re- hearing, the response thereto, and the reply, it is ORDERED, by the Court, that the petition is denied. Per Curiam Chief Judge MIKVA would grant the petition for rehearing and joins in the statement by Circuit Judge SILBERMAN dissenting from the Court's denial of ap- pellees' suggestion for rehearing en bane. A statement of Circuit Judge WILLIAMS, joined in by Circuit Judge SENTELLE, is attached. ---------------------------------------- Page Break ---------------------------------------- 90a Before: MIKVA, Chief Judge, WALD, EDWARDS, SILBERMAN, BUCKLEY, WILLIAMS, GINSBURG, SEN- TELLE, HENDERSON, RANDOLPH, and ROGERS, Circuit Judges. ORDER Appellees' suggestion for rehearing en banc, the response thereto, and the reply, have been circulated to the full Court. The taking of a vote thereon was requested. Thereafter, a majority of the judges of the Court in regular active service did not vote in favor of the suggestion. Upon consideration of the foregoing, it is ORDERED, by the Court en banc, that the sug- gestion is denied. Per Curiam Chief Judge MIKVA and Circuit Judges WALD, SIL- BERMAN, and ROGERS would grant the suggestion for rehearing en banc. Separate statement filed by Circuit Judge SILBER- MAN, dissenting from the denial of rehearing en banc. WILLIAMS, Circuit Judge. In seeking rehearing, the government offers a number of ill-founded cri- tiques of the panel opinion, 17 F.3d 1463 (D.C. Cir. 1994). 1. The government suggests broadly that the panel found the harm regulation, 50 C.F.R. 17.3, invalid on the basis of false assumptions as to its meaning. See Petition for Rehearing and Suggestion for Re- hearing En Banc 6-9. Specifically, the government contends that the panel (a) disregarded the regula- tion's requirement that the habitat modification in- volve "affirmative action which creates death or dis- turbance to essential behavioral patterns with sig- ---------------------------------------- Page Break ---------------------------------------- 91a nificant and permanent, injurious effects", Petition at 8, and (b) manifested its misunderstanding of the regulation by referring to third parties' claims made about necessary grizzly bear habitat, id. at 8-9. It is the government that misrepresents the regula- tion. The Department of Interior in fact requires no "affirmative action." Quite the contrary. The De- partment carefully specified that there was no need to refer expressly to omissions because the text as a whole make clear that omissions were embraced as fully as acts of commission. Final Redefinition of "Harm", 46 Fed. Reg. 54,748, 54,750 (Nov. 4, 1981) ("the phrase 'or omission' was deleted since the Serv- ice feels that 'act' is inclusive of either commissions or omissions which would be prohibited by section 9"). The Department inserted the word "actually" before "kills or injures " in its redefinition of harm merely to underscore the need for a causal link-a showing that the "significant and permanent effects" on the species have been "due to a party's action." Id. at 54,749. Further, the grizzly example cited in the text, 17 F.3d at 1465, makes quite clear that the panel under- stood that the regulation addressed habitat modifica- tions that would be fatal to members of the species. It refers to a contention that "'as many as 35 million to 42 million acres of land are necessary to the sur- vival of grizzlies'.". Id. (emphasis added). If that habitat is "necessary to [the grizzlies'] survival", then any material curtailment must involve death for members of the species. 1 2. The government argues that the panel mis- stated the legislative history when it suggested a ___________________(footnotes) 1 Equally clearly, the panel did not endorse the specific claim of what acreage may actually be "necessary". ---------------------------------------- Page Break ---------------------------------------- 92a parallel between the ban on habitat modification re- tained in the Act as applied to federal government actors, 17 F.3d at 1466, and the "habitat modifica- tion" explicitly deleted from the draft provision gov- erning private actors, id. at 1467. See Petition at 8. The panel made the point both in noting the appar- ent structure of the Act (contrasting the imposition of "very broad burdens" on a narrow segment of so- ciety, the federal government, and relatively narrow burdens on all others), and in suggesting the sig- nificance of the Senate Committee's deletion of the bill's reference to "habitat modification" as one of the ways in which a person might "take" members of an endangered species. The suggested parallelism is false, says the government, because the statutory ban on habitat modification by federal agencies is far broader, reaching such modifications "whether de- struction of the habitat would actually kill or injure the species". Petition at 8. Again the government misrepresents. The panel quoted the provision applying to the government, "de- struction or adverse modification of habitat . . . which is determined . . . to be critical", 7(a) (2), Endan- gered Species Act, 16 U.S.C. 1536(a) (2) (empha- sis added (quoted in 17 F.3d at 1466). The statute in turn defines "critical habitat" in terms of char- acteristics "essential to the conservation of the species", 16 U.S.C. 1532(5)(A)(i) & (ii) (empha- sis added), which seems to be simply another way of referring to habitat modifications so significant to the species that they might lead to death (or at least some very serious injury) for members of the species. In looking at the Department's regulations discuss- ing modifications of "critical" habitat under 7, and habitat modifications that are forbidden under the Department's view of 9, we are unable to discern any substantive, operational difference, and the gov- ---------------------------------------- Page Break ---------------------------------------- 93a ernment has not identified any. Compare, e.g., 50 CFR 17.94 (regulations implementing 7 preclude "destruction or adverse modification of the constitu- ent elements essential to conservation of the listed species") (emphasis added) with 46 Fed. Reg. 54,748, 54,750 ("[t]o be subject to section 9, the modification or degradation must be significant, must significantly impair essential behavioral patterns, and must result in actual injury to a protected wildlife species") (emphasis in original). If there are "es- sential" habitat elements whose removal or destruc- tion causes no injury, the government cites no ex- ample and it is hard to imagine one. Michael Bean, Senior Counsel for the Environmental Defense Fund, recognized the virtual identity between what the Sen- ate deleted from 9 and what it retained in 7 when he wrote, not long after the Act passed, "if 'taking' comprehends habitat destruction, then it is at least doubtful whether Section 7 of the Act is even neces- sary. " Michael J. Bean, The Evolution of National Wildlife Law 397 (1977). But see Michael J. Bean, The Evolution of National Wildlife Law 342 (Re- vised & Expanded Edition 1983). To the extent that there may be some theoretical difference between habitat modification under 7 and under the Department's regulations purporting to im- plement 9, practical realities limit its role to pure theory. As noted in the panel opinion, 10(a) author- izes the advance issuance of permits for "incidental taking". 17 F.3d at 1467-68. As a practical matter, persons whose extended conduct might be found a "take", and who thus are exposed to the criminal penalties of 16 U.S.C. 1540(b) (see also 18 U.S.C. 3559(a) (6), 3571(b) & (e)), are under command- ing pressure to comply with 10(a) plans. The De- partment recognizes this reality. "Much of the pri- ---------------------------------------- Page Break ---------------------------------------- 94a vate land which would be covered by the long-term HCP [habitat conservation plan] cannot be developed due to the prohibitions of section 9 of the Act. In order for many planned development projects to pro- ceed in compliance with the Act, a permit for inci- dental take must be obtained." Notice of Intent to Prepare an Environmental Impact Statement to Allow Incidental Take of the Threatened Desert Tortoise (Gopherus agassizii) Under Section 10(a)(1)(B) of the Endangered Species Act and Notice of Public Meetings, 59 Fed. Reg. 5439 (Feb. 4, 1994). And the Department explicitly recognizes the restrictions that it imposes under 10(a) as "equivalent" to those it imposes under 7 to protect "critical habitat". See Special Rule Concerning Take of the Threatened Coastal California Gnatcatcher, 58 Fed. Reg. 65,088, 65,089-90 (Dec. 10, 1993) (taking per- mitted under 10(a) plan for California gnatcatcher "will not appreciably reduce the likelihood of survival and recovery of the gnatcatcher in the wild. This criterion is equivalent to the regulatory definition of 'jeopardy' under section 7(a)(2) of the Act") (em- phasis added). 2 3. To the extent that the government seeks to con- vey the impression that its enforcement of the harm regulation never entails the exercise of power over large tracts of land, the impression is false. The De- partment's 10(a) plans, into which 9 collapses de facto, are often sweeping. The plan to protect the ___________________(footnotes) 2 Technically the restrictions were under 4(d) of the Act, 15 U.S.C. 1533(d), because the gnatcatcher is not an en- dangered but a "threatened" species. But the Department by regulation has made the anti-take provisions fully applicable to threatened species, so the rule in effect implements 9 (through the lens of 10(a)). See Sweet Home Chapter v. Babbitt, 1 F.3d 1, 5-8 (1993). ---------------------------------------- Page Break ---------------------------------------- 95a California gnatcatcher, for example, covers 3.8 mil- lion acres. Special Rule Concerning Take of the Threatened Coastal California Gnatcatcher, 58 Fed. Reg. at 65,090. * * * * * The government faults the panel for failing to specify whether the regulation's excess of statutory authority failed under the first or second "step" of the analysis set forth in Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837 (1984), Petition at 9-10, and in a more general way for failing to give the agency the deference that is its due under Chevron. Because the court in determining whether Congress "unambigu- ously expressed" its intent on the issue, see 467 U.S. at 843, is to employ all the "traditional tools of statu- tory construction", INS v. Cardoza-Fonseca, 480 U.S. 421, 446 (1987), the factors involved in the first "step" are also pertinent to whether an agency's in- terpretation is "reasonable". Thus the exact point where an agency interpretation falls down may be unclear. (Indeed, the Chevron Court itself never specified which step it was applying at any point in its analysis, see 467 U.S. at 859-66.) Nonetheless, we conclude that the statute, fairly read in the light of the "traditional tools of statutory interpretation", manifests a clear determination by Congress that the prohibition of 9 should not reach habitat modifications as defined by the Department, where there is no direct action by the defendant against any member of the species. Extending the word "harm" to reach habitat modification as so con- ceived carries 9's prohibition far beyond the reach effected by all the other terms used in the definition; it applies to every citizen duties the Act expressly im- ---------------------------------------- Page Break ---------------------------------------- 96a posed only on federal government agencies; and it ignores the plausible inferences from the Senate's deletion of the phrase "habitat modification" from the draft bill. The extension vests the Department with authority to supervise the use of privately owned land in vast tracts of the United States, even to the point of forbidding modest clearing efforts conducted in the interest of fire protection in populated areas. See Determination of Threatened Status for the Coastal California Gnatcatcher, 58 Fed. Reg. 16,742, 16,753 (March 30, 1993); Determination of Endan- gered Status for the Delhi Sands Flower-loving Fly, 58 Fed. Reg. 49,881, 49,884-86 (Sept. 23, 1993) (de- struction of species habitat by removal of native vegetation for fire prevention on private land could be interpreted to constitute take); (fly "rare to ab- sent" in former habitat sites currently "degraded by ongoing soil disturbances, caused by grading, plowing, discing, to remove vegetation for fire control, and off-road vehicle use", id, at 49,884/3-85/1/ destruc- tion of habitat "could be interpreted to constitute take", id. at 49,886/2). Congress clearly did not hang so massive an expansion of government power on so slight a nail as 9's provision that no one should "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect" an endangered species. The petition for rehearing is Denied. ---------------------------------------- Page Break ---------------------------------------- 97a SILBERMAN, Circuit Judge, dissenting from the denial of rehearing en banc, with whom MIKVA, Chief Judge, and WALD, Circuit Judge, join: I find this case quite troublesome, as much for what is not ar- gued by the parties, and therefore not discussed by the court, as for what is. Keeping in mind that we are dealing with a criminal statute, I am not at all sure that Chevron even governs our review. Cf. United States v. Thompson/Center Arms Co., 112 S. Ct. 2102, 2110 & nn.9 & 10 (1992) (plurality opinion). That is to say, the chevron presumption- that Congress has delegated to the administrating agency primary authority to reconcile ambiguities in statutory language-may not apply when the statute contemplates criminal enforcement. Cf. Kelley v. EPA, 15 F.3d 1100, 1007 (D.C. Cir. 1994). The peti- tioner does not raise that concern, but it surely is not a separate claim that the petitioner has affirmatively waived. It is, therefore, not necessary in order to direct briefing on that question to rely on United States Nat'l Bank v. Independent Ins. Agents, Inc., 113 S. Ct. 2173 (1993), in which the Supreme Court pro- claimed unrestrained judicial discretion to decide any issue analytically anterior to the controversy before it, even if the plaintiff affirmatively waived the claim (which means, I gather, in the typical contract breach suit where both parties agree that the contract was formed but dispute only whether there was a breach, a federal court can, sua sponte, force the parties to litigate whether the contract was actually formed). Since the Court did not even purport to announce a rule governing this sort of discretion (which some might think implies that its opinion on this issue is not even law), I take it that no federal judge is bound ---------------------------------------- Page Break ---------------------------------------- 98a to exercise the discretion that the Supreme Court ob- viously wished to preserve for itself. 1 Indisputably, however, ripeness issues which go to our jurisdiction should be raised by a federal court sua sponte, and I rather doubt the ripeness of the appellant's facial challenge to the Department of In- terior regulation. I can imagine a string of hypothet- icals which range from "habitat modifications" that are sufficiently close to the core concept that the ma- jority believes animates the statutory language as to be surely included within the word "harm" to ones that seem clearly inconsistent with the statute. Sup- pose, for example, that someone wished to kill all the birds on a particular piece of property and could do so by draining a marsh. If that person did so, would not his actions properly be thought to "harm" the endangered species? Assuming the challenge to the regulation is ripe and that Chevron controls our review, I think the Chief Judge has the better of the argument. Were I interpreting this statute with deference, given its language and legislative history, I would certainly be troubled about any construction that might preclude a landowner from using his property for ordinary purposes just because it could be thought that an endangered species was somehow disadvantaged. I do not think, however, that the majority has sub- mitted to the discipline of the Chevron framework and given the Department of Interior its due defer- ___________________(footnotes) 1 It has recently been suggested that the Supreme Court is really a quasi-judicial institution. See Thomas W. Merrill (the John Paul Stevens Professor at Northwestern), A Mod- est Proposal For a Political Court, 17 Harv. J.L. & PUB. POL'Y, 137, 139 (1994). ---------------------------------------- Page Break ---------------------------------------- 99a ence. It was certainly not apparent whether the ma- jority's initial opinion rested on Chevron Step I or Step II. In its response to the government's petition for rehearing, the panel majority appears to shift perceptibly to a Step I "clear determination by Con- gress," against which no deference to the agency's interpretation is appropriate. I do not find in either the statutory language or the legislative history any such fixed view. And at the second step (which is where I would analyze the case), maxims of statutory construction like noscitur a sociis, although not totally irrelevant, certainly have less force. See Michigan Citizens for an Indep. Press v. Thornburgh, 868 F.2d 1285, 1292-93 (D.C. Cir.), aff'd per curiam by an equally divided court, 493 U.S. 38 (1989). I quite agree with the panel that "the factors involved in the first 'step' are also pertinent to whether an agen- cy's interpretation is 'reasonable,' " see Silberman, Chevron-The Intersection of Law & Policy, 58 GEO. WASH. L.Rev. 821, 827 (1990) ; but when thinking of the statute at that second step, one must assume that the statute has more than one plausible construc- tion as it applies to the case before you. If the agency offers one-it prevails. In any event, the issue would seem of sufficient im- portance, particularly in light of the circuit split, cf. Palila v. Hawaii Dep't of Land and Natural Re- sources, 852 F.2d 1106 (9th Cir. 1988), to warrant en bane treatment. ---------------------------------------- Page Break ---------------------------------------- 100a APPENDIX E [Filed Mar. 11, 1994] UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 92-5255 SWEET HOME CHAPTER OF COMMUNITIES FOR A GREAT OREGON, ET AL., APPELLANTS v. MANUEL LUJAN, JR., Secretary of Interior, ET AL. BEFORE: Mikva, Chief Judge; Williams and Sen- telle, Circuit Judges ORDER Upon consideration of appellant's petition for re- hearing and of the response thereto, it is ORDERED, by the Court, that the petition is granted, as is set forth in the opinion of the court filed herein this date. ---------------------------------------- Page Break ---------------------------------------- 101a Per Curiam FOR THE COURT: RON GARVIN Clerk By: /S/ Robert A. Bonner ROBERT A. BONNER Deputy Clerk Date: March 11, 1994 Opinion for the court on petition for rehearing filed by Circuit Judge Williams. Concurring opinion filed by Circuit Judge Sentelle. Dissenting opinion filed by Chief Judge Mikva. ---------------------------------------- Page Break ---------------------------------------- 102a APPENDIX F [Filed Mar. 11, 1994] UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 92-5255 SWEET HOME CHAPTER OF COMMUNITIES FOR A GREAT OREGON, ET AL., APPELLANTS v. MANUEL LUJAN, JR., Secretary of Interior, ET AL. BEFORE : Mikva, Chief Judge; Wald, Edwards, Silberman, Buckley, Williams, Gins- burg, Sentelle, Henderson, and Ran- dolph, Circuit Judges ORDER Appellant's Suggestion For Rehearing In Banc has been circulated to the full Court. No member of the Court requested the taking of a vote thereon. Upon consideration of the foregoing it is ORDERED, by the Court in banc, that the sug- gestion is denied. Per Curiam FOR THE COURT: RON GARVIN CLERK By: /s/ Robert A. Bonner ROBERT A. BONNER Deputy Clerk ---------------------------------------- Page Break ---------------------------------------- 103a APPENDIX G STATUTORY PROVISIONS The Endangered Species Act of 1973, as amended and codified at 16 U.S.C. 1531 et seq., provides in relevant part: 1532. Definitions For the purposes of this chapter- * * * * * (19) The term "take" means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct. * * * * * 1536. Interagency cooperation (a) Federal agency actions and consultations (1) The Secretary shall review other programs administered by him and utilize such programs in furtherance of the purposes of this chapter. All other Federal agencies shall, in consultation with and with the assistance of the Secretary, utilize their authorities in furtherance of the purposes of this chapter by carrying out programs for the conserva- tion of endangered species and threatened species listed pursuant to section 1533 of this title. (2) Each Federal agency shall, in consultation with and with the assistance of the Secretary, insure that any action authorized, funded, or carried out by such agency (hereinafter in this section referred to as an "agency action") is not likely to jeopardize the continued existence of any endangered species or ---------------------------------------- Page Break ---------------------------------------- 104a result in the destruction or adverse modification of habitat of such species which is determined by the Secretary, after consultation as appropriate with affected States, to be critical, unless such agency has been granted an exemption for such action by the Committee pursuant to subsection (h) of this section. In fulfilling the requirements of this paragraph each agency shall use the best scientific and commercial data available. (3) Subject to such guidelines as the Secretary may establish, a Federal agency shall consult with the Secretary on any prospective agency action at the request of, and in cooperation with, the prospec- tive permit or license applicant if the applicant has reason to believe that an endangered species or a threatened species may be present in the area affected by his project and that implementation of such action will likely affect such species. (4) Each Federal agency shall confer with the Secretary on any agency action which is likely to jeopardize the continued existence of any species proposed to be listed under section 1533 of this title or result in the destruction or adverse modification of critical habitat proposed to be designated for such species. This paragraph does not require a limitation on the commitment of resources as described in sub- section (d) of this section. (b) Opinion of Secretary (1)(A) Consultation under subsection (a)(2) of this section with respect to any agency action shall be concluded within the 90-day period beginning on the date on which initiated or, subject to subpara- graph (B), within such other period of time as is ---------------------------------------- Page Break ---------------------------------------- 105a mutually agreeable to the Secretary and the Federal agency. (B) In the case of an agency action involving a permit or license applicant, the Secretary and the Federal agency may not mutually agree to conclude consultation within a period exceeding 90 days unless the Secretary, before the close of the 90th day re- ferred to in subparagraph (A) - (i) if the consultation period proposed to be agreed to will end before the 150th day after the date on which consultation was initiated, submits to the applicant a written statement set- ting forth- (I) the reasons why a longer period is required, (II) the information that is required to complete the consultation, and (III) the estimated date on which consul- tation will be completed; or (ii) if the consultation period proposed to be agreed to will end 150 or more days after the date on which consultation was initiated, obtains the consent of the applicant to such period. The Secretary and the Federal agency may mutually agree to extend a consultation period established under the preceding sentence if the Secretary, before the close of such period, obtains the consent of the applicant to the extension. (2) Consultation under subsection (a) (3) of this section shall be concluded within such period as is agreeable to the Secretary, the Federal agency, and the applicant concerned. ---------------------------------------- Page Break ---------------------------------------- 106a (3) (A) Promptly after conclusion of consultation under paragraph (2) or (3) of subsection (a) of this section, the Secretary shall provide to the Fed- eral agency and the applicant, if any, a written state- ment setting forth the Secretary's opinion, and a summary of the information on which the opinion is based, detailing how the agency action affects the species or its critical habitat. If jeopardy or adverse modification is found, the Secretary shall suggest those reasonable and prudent alternatives which he believes would not violate subsection (a) (2) of this section and can be taken by the Federal agency or applicant in implementing the agency action. (B) Consultation under subsection (a) (3) of this section, and an opinion issued by the Secretary inci- dent to such consultation, regarding an agency action shall be treated respectively as a consultation under subsection (a) (2) of this section, and as an opinion issued after consultation under such subsection, re- garding that action if the Secretary reviews the action before it is commenced by the Federal agency and finds, and notifies such agency, that no signifi- cant changes have been made with respect to the action and that no significant change has occurred regarding the information used during the initial consultation. (4) If after consultation under subsection (a) (2) of this section, the Secretary concludes that- (A) the agency action will not violate such subsection, or offers reasonable and prudent al- ternatives which the Secretary believes would violate such subsection; (B) the taking of an endangered species or a threatened species incidental to the agency action will not violate such subsection; and ---------------------------------------- Page Break ---------------------------------------- 107a (C) if an endangered species or threatened species of a marine mammal is involved, the taking is authorized pursuant to section 1371 (a)(5) of this title; the Secretary shall provide the Federal agency and the applicant concerned, if any, with a written state- ment that- (i) specifies the impact of such incidental tak- ing on the species, (ii) specifies those reasonable and prudent measures that the Secretary considers necessary or appropriate to minimize such impact, (iii) in the case of marine mammals, specifies those measures that are necessary to comply with section 1371(a)(5) of this title with re- gard to such taking, and (iv) sets forth the terms and conditions (in- cluding, but not limited to, reporting require- ments) that must be complied with by the Fed- eral agency or applicant (if any), or both, to implement the measures specified under clauses (ii) and (iii). (c) Biological assessment (1) to facilitate compliance with the requirements of subsection (a)(2) of this section, each Federal agency shall, with respect to any agency action of such agency for which no contract for construction has been entered into and for which no construction has begun on November 10, 1978, request of the Sec- retary information whether any species which is listed or proposed to be listed may be present in the area of such proposed action. If the Secretary ad- ---------------------------------------- Page Break ---------------------------------------- 108a vises, based on the best scientific and commercial data available, that such species may be present, such agency shall conduct a biological assessment for the purpose of identifying any endangered species or threatened species which is likely to be affected by such action. Such assessment shall be completed within 180 days after the date on which initiated (or within such other period as is mutually agreed to by the Secretary and such agency, except that if a per- mit or license applicant is involved, the 180-day pe- riod may not be extended unless such agency provides the applicant, before the close of such period, with a written statement setting forth the estimated length of the proposed extension and the reasons therefor) and, before any contract for construction is entered into and before construction is begun with respect to such action. Such assessment may be undertaken as part of a Federal agency's compliance with the re- quirements of section 102 of the National Environ- mental Policy Act of 1969 (42 U.S.C. 4332). (2) Any person who may wish to apply for an exemption under subsection (g) of this section for that action may conduct a biological assessment to identify any endangered species or threatened species which is likely to be affected by such action. Any such biological assessment must, however, be con- ducted in cooperation with the Secretary and under the supervision of the appropriate Federal agency. (d) Limitation on commitment of resources After initiation of consultation required under sub- section (a) (2) of this section, the Federal agency and the permit or license applicant shall not make any irreversible or irretrievable commitment of re- ---------------------------------------- Page Break ---------------------------------------- 109a sources with respect to the agency action which has the effect of foreclosing the formulation or implemen- tation of any reasonable and prudent alternative measures which would not violate subsection (a) (2) of this section. * * * * * (h) Grant of exemption (1) The Committee shall make a final determinat- ion whether or not to grant an exemption within 30 days after receiving the report of the Secretary pur- suant to subsection (g)(5) of this section. The Com- mittee shall grant an exemption from the require- ments of subsection (a)(2) of this section for an agency action if, by a vote of not less than five of its members voting in person- (A) it determines on the record, based on the report of the Secretary, the record of the hearing held under subsection (g)(4) of this section and on such other testimony or evidence as it may receive, that- (i) there are no reasonable and prudent alternatives to the agency action; (ii) the benefits of such action clearly outweigh the benefits of alternative courses of action consistent with conserving the spe- cies or its critical habitat, and such action is in the public interest; (iii) the action is of regional or national significance; and (iv) neither the Federal agency concerned nor the exemption applicant made any ir- reversible or irretrievable commitment of ---------------------------------------- Page Break ---------------------------------------- 110a resources prohibited by subsection (d) of this section; and (B) it establishes such reasonable mitigation and enhancement measures, including, but not limited to, live propagation, transplantation, and habitat acquisition and improvement, as are nec- essary and appropriate to minimize the adverse effects of the agency action upon the endangered species, threatened species, or critical habitat concerned. Any final determination by the Committee under this subsection shall be considered final agency action for purposes of chapter 7 of Title 5. (2)(A) Except as provided in subparagraph (B), an exemption for an agency action granted under paragraph (1) shall constitute a permanent exemp- tion with respect to all endangered or threatened spe- cies for the purposes of completing such agency ac- tion- (i) regardless whether the species was identi- fied in the biological assessment; and (ii) only if a biological assessment has been conducted under subsection (c) of this section with respect to such agency action. (B) An exemption shall be permanent under sub- paragraph (A) unless- (i) the Secretary finds, based on the best scientific and commercial data available, that such exemption would result in the extinction of a species that was not the subject of consultation under subsection (a)(2) of this section or was not identified in any biological assessment con- ducted under subsection (c) of this section, and ---------------------------------------- Page Break ---------------------------------------- 111a (ii) the Committee determines within 60 days after the date of the Secretary's finding that the exemption should not be permanent. If the Secretary makes a finding described in clause (i), the Committee shall meet with respect to the matter within 30 days after the date of the finding. * * * * * (o) Exemption as providing exception on taking of endangered species Notwithstanding sections 1533(d) and 1538 (a)(1) (B) and (C) of this title, sections 1371 and 1372 of this title, or any regulation promulgated to imple- ment any such section- (1) any action for which an exemption is granted under subsection (h) of this section shall not be considered to be a taking of any endan- gered species or threatened species with respect to any activity which is necessary to carry out such action; and (2) any taking that is in compliance with the terms and conditions specified in a written state- ment provided under subsection (b)(4)(iv) of this section shall not be considered to be a pro- hibited taking of the species concerned. * * * * * 1538. Prohibited acts (a) Generally (1) Except as provided in sections 1535(g)(2) and 1539 of this title, with respect to any endangered species of fish or wildlife listed pursuant to section ---------------------------------------- Page Break ---------------------------------------- 112a 1533 of this title it is unlawful for any person sub- ject to the jurisdiction of the United States to- (A) import any such species into, or export any such species from the United States; (B) take any such species within the United States or the territorial sea of the United States; (C) take any such species upon the high seas; (D) possess, sell, deliver, carry, transport, or ship, by any means whatsoever, any such species taken in violation of subparagraphs (B) and (C); (E) deliver, receive, carry, transport, or ship in interstate or foreign commerce, by any means whatsoever and in the course of a commercial activity, any such species; (F) sell or offer for sale in interstate or for- eign commerce any such species; or (G) violate any regulation pertaining to such species or to any threatened species of fish or wildlife listed pursuant to section 1533 of this title and promulgated by the Secretary pursuant to authority provided by this chapter. * * * * * 1539. Exceptions (a) Permits (1) The Secretary may permit, under such terms and conditions as he shall prescribe- (A) any act otherwise prohibited by section 1538 of this title for scientific purposes or to enhance the propagation or survival of the af- fected species, including, but not limited to, acts ---------------------------------------- Page Break ---------------------------------------- 113a necessary for the establishment and maintenance of experimental populations pursuant to subsec- tion (j) of this section; or (B) any taking otherwise prohibited by sec- tion 1538 (a)(1)(B) of this title if such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity. (2) (A) No permit may be issued by the Secretary authorizing any taking referred to in paragraph (1) (B) unless the applicant therefor submits to the Sec- retary a conservation plan that specifies- (i) the impact which will likely result from such taking; (ii) what steps the applicant will take to minimize and mitigate such impacts, and the funding that will be available to implement such steps; (iii) what alternative actions to such taking the applicant considered and the reasons why such alternatives are not being utilized; and (iv) such other measures that the Secretary may require as being necessary or appropriate for purposes of the plan. (B) If the Secretary finds, after opportunity for public comment, with respect to a permit application and the related conservation plan that- (i) the taking will be incidental; (ii) the applicant will, to the maximum ex- tent practicable, minimize and mitigate the im- pacts of such taking; (iii) the applicant will ensure that adequate funding for the plan will be provided; ---------------------------------------- Page Break ---------------------------------------- 114a (iv) the taking will not appreciably reduce the likelihood of the survival and recovery of the species in the wild; and (v) the measures, if any, required under sub- paragraph (A) (iv) will be met; and he has received such other assurances as he may require that the plan will be implemented, the Secre- tary shall issue the permit. The permit shall contain such terms and conditions as the Secretary deems necessary or appropriate to carry out the purposes of this paragraph, including, but not limited to, such reporting requirements as the Secretary deems neces- sary for determining whether such terms and con- ditions are being complied with. (C) The Secretary shall revoke a permit issued under this paragraph if he finds that the permittee is not complying with the terms and conditions of the permit. * * * * * * U. S. Government Printing Office; 1994 387147 20005 ---------------------------------------- Page Break ---------------------------------------- No. 94-859 In the Supreme Court of the United States OCTOBER TERM, 1994 BRUCE BABBITT, SECRETARY OF THE INTERIOR, ET AL., PETITIONERS v. SWEET HOME CHAPTER OF COMMUNITIES FOR A GREAT OREGON, ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT BRIEF FOR PETITIONERS DREW S. DAYS, III Solicitor General LOIS J. SCHIFFER Assistant Attorney General EDWIN S. KNEEDLER Deputy Solicitor General BETH S. BRINKMANN Assistant to the Solicitor General MARTIN W. MATZEN ELLEN J. DURKEE JEAN E. WILLIAMS Attorneys Department of Justice Washington, D.C. 20530 (202)514-2217 ---------------------------------------- Page Break ---------------------------------------- QUESTION PRESENTED Under Section 9(a)(1) of the Endangered Species Act of 1973, 16 U.S.C. 1538(a)(1), and implementing regulations, it is unlawful for any person to "take" an endangered or threatened species, except for certain "takes" that are incidental to otherwise lawful activities and authorized by the Secretary of the Interior under conditions designed to minimize and mitigate the impact on the species, 16 U.S.C. 1536(b)(4), 1539(a)(1). The Act defines the term "take" to include "harm." 16 U.S.C. 1532(19), The question presented is: Whether the regulation promulgated by the Secretary in 1975 and 1981 that defines "harm" to include "significant habitat modification or degradation" that "actually kills or injures wildlife," 50 C.F.R. 17.3, is invalid on its face. (I) ---------------------------------------- Page Break ---------------------------------------- II PARTIES TO THE PROCEEDINGS The petitioners are Bruce Babbitt, in his official capacity as the Secretary of the Interior, and Mollie H. Beattie, in her official capacity as Direct or of the United States Fish and Wildlife Service, an agency within the Department of the Interior. The respondents are Sweet Home Chapter of Communities for a Great Oregon, Betty F. Orem, Erickson Busheling, Inc., Southeastern Lumber Manufacturers Association, Inc., Southern Timber Purchasers Council, Ridgetree Logging Company, Shotpouch Logging Company, Jean Reynolds, Emmy G. Birkenfeld, and Pat McCollum. ---------------------------------------- Page Break ---------------------------------------- TABLE OF CONTENTS Page Opinions below . . . . 1 Jurisdiction . . . . 2 Statutory and regulatory provisions involved . . . . 2 Statement . . . . 3 Summary of argument . . . . 16 Argument: The Secretary's interpretation of ''harm'' is based on a reasonable construction of the Endangered Species Act and therefore should be sustained . . . . 17 A. The text and structure of the Act support the Secretary's interpretation . . . . 20 B. The validity of the "harm" regulation is supported by the background of and subsequent amendments to the Endangered Species Act . . . . 25 C. The court of appeals' reasons for rejecting the Secretary's reasonable interpretation of "harm" are without merit . . . . 40 Conclusion . . . . 51 Appendix . . . . 1a TABLE OF AUTHORITIES Cases: American Bald Eagle v. Bhatti, 9 F.3d 163 (1st Cir. 1993) . . . . 46 Bowen v. Yuckert, 482 U.S. 137 (1987) . . . . 19 Brown v. Gardner, 115 S. Ct. 552 (1994) . . . . 23, 30 California Coastal Comm'n v. Granite Rock Co., 480 U.S. 572 (1987) . . . . 19 Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) . . . . 12, 13, 18, 19 Dole v. United Steelworkers, 494 U.S. 26 (1990) . . . . 22, 24 Friends of Endangered Species, Inc. v. Jantzen, 760 F.2d 976 (9th Cir, 1985) . . . . 35 (III) ---------------------------------------- Page Break ---------------------------------------- IV Cases-Continued: Page INS v. National Ctr. for Immigrants' Rights, 112 S. Ct. 551 (1991) . . . . 19 INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) . . . . 22 Michigan Citizens for an Indep. Press v. Thornburgh, 868 F.2d 1285 (D.C. Cir.), aff'd, 493 U.S. 38 (1989) . . . . 22 Morissette v. United States, 342 U.S. 246 (1952) . . . . 47 Morrill v. Lujan, 802 F. Supp. 424 (S.D. Ala. 1992) . . . . 46 National Treasury Employees Union v. Bush, 891 F.2d 99 (5th Cir. 1989) . . . . 45 National Wildlife Fed'n v. Burlington N. R.R., 23 F.3d 1508 (9th Cir. 1994) . . . . 46 National Wildlife Fed'n v. National Park Serv., 669 F. Supp. 384 (D. Wyo. 1987) . . . . 46 NationsBank v. Variable Annuity Life Ins. Co., No. 93-1612 (Jan. 18, 1995) . . . . 19, 20 Palila v. Hawaii Dep't of Land & Natural Resources: 639 F.2d 495 (9th Cir. 1981) . . . . 37, 45 852 F.2d 1106 (9th Cir. 1988) . . . . 27, 41, 45 Pyramid Lake Paiute Tribe of Indians v. United States Dep't of Navy, 898 F.2d 1410 (9th Cir. 1990) . . . . 46 Reno v. Flores, 113 S. Ct. 1439 (1993) . . . . 19 Russell Motor Car Co. v. United States, 261 U.S. 514 (1923) . . . . 22 Rust v. Sullivan, 500 U.S. 173 (1991) . . . . 19 Schreiber v. Burlington Northern, Inc., 472 U.S. 1 (1985) . . . . 23 Seattle Audubon Soc'y v. Evans, 952 F.2d 297 (9th Cir. 1991) . . . . 25 Sierra Club v. Yeutter, 926 F.2d 429 (5th Cir. 1991) . . . . 45 Third Nat'l Bank in Nashville v. Impac Ltd., 432 U.S. 312 (1977) . . . . 22 TVA v. Hill, 437 U.S. 153 (1978) . . . . 6, 16, 17, 18, 24, 30, 32, 50 United States v. FMC Corp., 572 F.2d 902 (2d Cir. 1978) . . . . 26, 47 ---------------------------------------- Page Break ---------------------------------------- V Cases-Continued: Page United States v. Glenn-Colusa Irrigration Dist., 788 F. Supp. 1126 (E.D. Cal. 1992) . . . . 36, 46 United States v. Hayashi, 22 F.3d 859 (9th Cir. 1993) . . . . 26 United States v. Lee, 937 F.2d 1388 (9th Cir. 1991), cert. denied, 112 S. Ct. 977 (1992) . . . . 29 United States v. Salerno, 481 U.S. 739 (1987) . . . . 19 Zenith Radio Corp. v. United States, 437 U.S. 443 (1978) . . . . 30 Statutes and regulations: Endangered Species Act of 1973, 16 U.S.C. 1531 et seq . . . . 3, 4, 16 16 U.S.C. 1531 (2) . . . . 3, 1a-3a 16 U.S.C. 1531(a)(1) . . . . 4, 1a 16 U.S.C. 1531(b) . . . . 4, 18, 24, 50, 2a-3a 16 U.S.C. 1531(3) . . . . 8, 9, 41 16 U.S.C. 1532(3) . . . . 8, 9, 41 16 U.S.C. 1532(5) . . . . 41 16 U.S.C. 1532(5)(A) . . . . 7-8 16 U.S.C. 1532(5)(C) . . . . 8 16 U.S.C. 1532(6) . . . . 4 16 U.S.C. 1532(8) . . . . 5 16 U.S.C. 1532(13) . . . . 5, 44 16 U.S.C. 1532(14) . . . . 5 16 U.S.C. 1532(15) . . . . 4 16 U.S.C. 1532(19) (3(19)) . . . . 2-3, 5, 18, 20, 26 16 U.S.C. 1532(20) . . . . 4 16 U.S.C. 1533 (4) . . . . 3, 7, 8, 18, 42, 3a-4a 16 U.S.C. 1533(a) . . . . 4, 3a 16 U.S.C. 1533(a)(3) . . . . 7, 24, 4a 16 U.S.C. 1533(a)(1)(A) . . . . 4 16 U.S.C. 1533(b)(2) . . . . 7, 24, 42, 43, 5a 16 U.S.C. 1533(b)(6)(C) . . . . 7, 24 16 U.S.C. 1533(b)(6)(C)(ii) . . . . 43 16 U.S.C. 1533(d) (4(d)) . . . . 5, 40, 5a-6a 16 U.S.C. 1533(f) (4(f)) . . . . 9 16 U.S.C. 1534 (5) . . . . 8, 9, 24, 29 16 U.S.C. 1536 (7) . . . . passim, 6a-13a ---------------------------------------- Page Break ---------------------------------------- VI Statutes and regulations-Continued: Page 16 U.S.C. 1536(a)(1) (7(a)(1)) . . . . 9, 6a 16 U.S.C. 1536(a)(2) (7(a)(2)) . . . . passim, 6a 16 U.S.C. 1536(a)(3) . . . . 8, 7a 16 U.S.C. 1536(b) (7(b)) . . . . 8, 44, 7a 16 U.S.C. 1536(b)(4) (7(b)(4)) . . . . 10, 11, 38, 39, 8a-9a 16 U.S.C. 1536(b)(4)(iii) . . . . 38, 39, 9a 16 U.S.C. 1536(b)(4)(iv) . . . . 38, 39, 44, 9a 16 U.S.C. 1536(c) . . . . 8, 9a-10a 16 U.S.C. 1536(e)-(n) . . . . 9, 11a-13a 16 U.S.C. 1536(e)-(o) . . . . 32, 11a-13a 16 U.S.C. 1536(h) (7(h)) . . . . 32, 38, 11a 16 U.S.C. 1536(o)(Supp. III 1979) . . . . 9, 32 16 U.S.C. 1536(o) (7(o)) . . . . 32, 33, 39, 44, 13a 16 U.S.C. 1536(o)(1) (7(o)(1)) . . . . 38, 44, 13a 16 U.S.C. 1536(o)(2) (7(o)(2)) . . . . 11, 38, 39, 40, 44, 13a 16 U.S.C. 1538 (9) . . . . passim, 14a-15a 16 U.S.C. 1538(a) (9(a)) . . . . 32, 38 16 U.S.C. 1538(a)(1) (9(a)(1)) . . . . 2, 3, 5, 33, 14a 16 U.S.C. 1538(a)(1)(B) (1976) . . . . 30 16 U.S.C. 1538(a)(1)(B) (9(a)(1)(B)) . . . . 2, 5, 9, 10, 16, 39, 40, 44, 14a 16 U.S.C. 1538(a)(1)(G) (9(a)(1)(G)) . . . . 2, 14a 16 U.S.C. 1538(a)(2) (9(a)(2)) . . . . 5, 37, 14a-15a 16 U.S.C. 1538(a)(2)(B) . . . . 37, 15a 16 U.S.C. 1539 (10) . . . . 3, 9, 18, 24, 36, 38, 40, 49, 16a-19a 16 U.S.C. 1539(a) (10(a)) . . . . 36, 50 16 U.S.C. 1539(a)(1)(B) (10(a)(1)(B)) . . . . 34, 36, 16a 16 U.S.C. 1539(a)(2) . . . . 34, 49, 16a 16 U.S.C. 1539(a)(2)(A) (10(a)(2)(A)) . . . . 10, 11, 16a 16 U.S.C. 1539(a)(2)(A)(i) . . . . 34, 16a 16 U.S.C. 1539(a)(2)(A)(ii) . . . . 34, 16a 16 U.S.C. 1539(a)(2)(A)(iv) . . . . 11, 16a 16 U.S.C. 1539(a)(2)(B) . . . . 11, 17a 16 U.S.C. 1539(a)(2)(B)(i) . . . . 34-35, 17a 16 U.S.C. 1539(a)(2)(B)(ii) . . . . 35, 17a 16 U.S.C. 1539(i) . . . . 33 ---------------------------------------- Page Break ---------------------------------------- VII Statutes and regulations-Continued: Page 16 U.S.C. 1539(i)(1) (Supp. III 1979) . . . . 33 16 U.S.C. 1539(j) (10(j)) . . . . 39, 17a-19a 16 U.S.C. 1539(j)(2)(C) . . . . 39, 17a-18a 16 U.S.C. 1540(a) . . . . 5 16 U.S.C. 1540(b) . . . . 5 16 U.S.C. 1540(e)(6) . . . . 5 16 U.S.C. 1631 . . . . 6 Endangered Species Act Amendments of 1978, Pub. L. No. 95-632, 92 Stat. 3752 . . . . 31 3, 92 Stat. 3752-3759 (16 U.S.C. 1536(o) (Supp. III 1979)) . . . . 9, 32 5,92 Stat. 3761 (16 U.S.C. 1539(i)(1) (Supp. III 1979)) . . . . 33 Endangered Species Act Amendments of 1982, Pub. L. 97-304, 96 Stat. 1411 . . . . 34 4(a)(2), 96 Stat. 1418 (16 U.S.C. 1536(b)(4)) . . . . 10, 8a 4(a)(7), 96 Stat. 1420 (16 U.S.C. 1536(o)(2) (1982)) . . . . 38, 13a 6, 96 Stat. 1422 . . . . 34 6(1), 96 Stat. 1422 (16 U.S.C. 1539(a)(1)(B)) . . . . 10, 34, 16a 6(5), 96 Stat. 1424 . . . . 33 6(6), 96 Stat. 1424 (16 U.S.C. 1539(j)) . . . . 39, 17a 9(b)(i), 96 Stat, 1426 . . . . 37 Endangered Species (Conservation Act of 1969, Pub. L. No. 91-135, 83 Stat. 275 . . . . 11 Energy and Water Development Appropriation Act, 1980, Pub. L. No. 96-69. Tit. IV, 93 Stat. 449 . . . . 33 Fisheries Conservation and Management Act, Pub. L. No. 99-659, Tit. IV, 401, 100 Stat. 3737: 41l(b)(4)-(6), 100 Stat. 3742 (16 U.S.C. 1536(b)(4) (iii)) . . . . 39 411(c), 100 Stat. 3742 (16 U.S.C. 1536(c)(iii)) . . . . 39 Marine Mammal Protection Act, 16 U.S.C. 1361 et seq . . . . 25 16 U.S.C. 1362(13) (Supp. V 1993) . . . . 26 16 U.S.C. 1371 (101) . . . . 39 ---------------------------------------- Page Break ---------------------------------------- VIII Statutes and regulations-Continued: Page 16 U.S.C. 1371(a)(5) . . . . 39 16 U.S.C. 1372 (102) . . . . 39 Marine Mammal Protection Act Amendments of 1994, Pub. L. No. 103-238, 12, 108 Stat. 557 . . . . 26 Migratory Bird Treaty Act, 16 U.S.C. 703 et seq . . . . 25, 48 16 U.S.C. 703 (1988 & Supp. V 1993) . . . . 25 Natural Community Conservation Planning Act, Cal. Fish & Game Code 2800-2840 (West 1995) . . . . 49 50 C. F. R,: Section 17.3 . . . . 3, 6, 7, 18, 21, 22, 29, 36, 40 Section 17.11 . . . . 4, 12 Section 17.11(h) . . . . 11 Section 17.12 . . . . 4 Section 17.21(c)(1) . . . . 5 Section 17.31 . . . . 13 Section 17.31(a) . . . . 5, 12 Sections 17.40-17.48 . . . . 5 Section 216.3 . . . . 26 Section 222.23(a) . . . . 4 Section 227.4 . . . . 4 Section 402.01(b) . . . . 4 Section 424.12(a)(1)(i) . . . . 43 Section 424.12(a)(1)(ii) . . . . 43 Miscellaneous: Amending the Endangered Species Act of 1973: Hearings on S. 2899 Before the Subcomm. on Resource Protection of the Senate Comm. on Environment and Public Work, 95th Cong., 2d Sess. (1978) . . . . 31 Rocky Barker, Saving All The Parts: Reconciling Economics and the Endangered Species Act (Island Press 1993) . . . . 48 Timothy Beatley, Habitat Conservation Planning (Univ. of Texas Press 1994) . . . . 35 55 Cong. Rec. 5544-5545 (1917) . . . . 25 ---------------------------------------- Page Break ---------------------------------------- IX Miscellaneous-Continued: Page 119 Cong. Rec. (1973): p. 25,683 . . . . 29 p. 42,913 . . . . 47 124 Cong. Rec. (1978): p. 21,565 . . . . 32 p. 38,148 . . . . 33 pp. 38,150-38,151 . . . . 33 132 Cong. Rec. (1986): pp. 31,294-31,295 . . . . 39 p. 32,185 . . . . 39 CRS, Senate Comm. on Environmental Public Works, 97th Cong., 2d Sess., A Legislative History of the Endangered Species Art of 1973, as amended (Comm. Print 1982) . . . . 33 Endangered Species Act Amendments of 1982: Hearings Before the Subcomm, on Environmental Pollution of the Senate Comm. on Environment and Public Works, 97th Cong., 2d Sess. (1982) . . . . 36, 38 Endangered Species Act: Hearings Before the Subcomm. on Fisheries and Wildlife Conservation and the Environment of the House Comm. on Merchant Marine and Fisheries, 97th Cong., 2d Sess. (1982) . . . . 35, 36, 37 Endangered Species Oversight: Hearings Before the Subcomm. on Resource Protection of the Senate Comm. on Environment and Public Works, 95th Cong., 1st Sess. (1977) . . . . 31 Endangered Species, Parts 1 & 2: Hearings Before the Subcomm. on Fisheries and Conservation and the Environment of the House Comm. on Merchant Marine and Fisheries, 95th Cong., 2d Sess. (1978) . . . . 31 40 Fed. Reg. (1975): p. 44,412 . . . . 6, 29 p. 44,413 . . . . 6 p. 44,416 . . . . 6, 29 46 Fed. Reg. (1981) p. 29,491 . . . . 23 p. 54,748 . . . . 6, 7, 29 ---------------------------------------- Page Break ---------------------------------------- X Miscellaneous-Continued: Page pp. 54,748 -54,749 . . . . 6 p. 54,749 . . . . 23 p. 54,750 . . . . 45, 47 49 Fed. Reg. (1984): p. 38,903 . . . . 43 p. 38,904 . . . . 8, 42 50 Fed. Reg. 60,252 (1994) . . . . 40 55 Fed. Reg. 26,114 (1990) . . . . 11 58 Fed. Reg. (1993): p. 65,088 . . . . 48 p. 65,090 . . . . 48 60 Fed. Reg. 9484 (1995) . . . . 5 H.R. Conf. Rep. No. 1804, 95th Cong., 2d Sess. (1978) . . . . 33, 47 H.R. Conf. Rep No. 835, 97th Cong., 2d Sess. (1982) . . . . 36 H.R. Rep. No. 412, 93d Cong., 1st Sess. (1973) . . . . 27, 28, 29 H.R. Rep. No. 1625, 95th Cong., 2d Sess. (1978) . . . . 31, 32, 33, 44 H.R. Rep. No. 567, 97th Cong., 2d Sess. (1982) . . . . 34, 37-38, 39 Daniel J. Rohlf, The Endangered Species Act: A Guide to its Protections and Implementation (Stan. Envtl. Law Soc'y 1989) . . . . 18 S. 1592, 93d Cong., 1st Sess. (1973) . . . . 28 S. 1983, 93d Cong., 1st Sess. (1973) . . . . 28 S. Rep. No. 2, 65th Cong., 1st Sess. (1917) . . . . 25 S. Rep. No. 307, 93d Cong., 1st Sess. (1973) . . . . 27, 28, 29 S. Rep. No. 418, 97th Cong., 2d Sess. (1982) . . . . 35, 37, 39, 40 2A Norman J. Singer, Sutherland Statutory Con- struction (5th ed. 1992) . . . . 22, 23, 24 The Random House Dictionary of the English Language (2d ed. 1987) . . . . 20-21 U.S. General Accounting Office, Endangered Species Act: Information in Species Protection on Nonfederal Lands (Dec. 1994) . . . . 50 Webster's Third New International Dictionary (1986) . . . . 20 Edward O. Wilson, The Diversity of Life (Belknap Press of Harv. Univ. Press 1992) . . . . 18 ---------------------------------------- Page Break ---------------------------------------- In the Supreme Court of the United States OCTOBER TERM, 1994 No. 94-859 BRUCE BABBITT, SECRETARY OF THE INTERIOR, ET AL., PETITIONERS v. SWEET HOME CHAPTER OF COMMUNITIES FOR A GREAT OREGON, ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT BRIEF FOR PETITIONERS OPINIONS BELOW The March 11, 1994, opinion of the court of appeals issued after granting respondents' petition for rehearing (Pet. App. la-41a) is reported at 17 F.3d 1463. The August 12, 1994, statements accompanying the court of appeals' denial of peti- tioners' petition for rehearing and suggestion of rehearing en banc (Pet. App. 89a-99a) are reported at 30 F.3d 190. The July 23, 1993, initial opinion of the court of appeals (Pet. App. 42a- 72a) is reported at, 1 F.3d 1. The opinion of the district court (Pet. App. 73a-88a) is reported at 806 F. Supp. 279. (1) ---------------------------------------- Page Break ---------------------------------------- 2 JURISDICTION The court of appeals entered its initial judgment on July 23, 1993. The court of appeals thereafter granted respondents' petition for rehearing, and on March 11, 1994, it entered a new judgment that differed from its earlier judgment. Petitioners then sought rehearing of that new judgment, and the court of appeals denied that petition for rehearing on August 12, 1994. Pet. App. 89a-99a. The petition for a writ of certiorari was filed on November 10, 1994, and was granted on January 6, 1995. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTORY AND REGULATORY PROVISIONS INVOLVED 1. Section 9(a)(1) of the Endangered Species Act of 1973 (ESA), 16 U.S.C. 1538(a)(l), provides in relevant part: Except as provided in sections 6(g)(2) and 10 of this Act, with respect to any endangered species of fish or wildlife listed pursuant to section 4 of this Act it is unlawful for any person subject to the jurisdiction of the United States to- * * * * * (B) take any such species within the United States or the territorial sea of the United States; * * * * * (G) violate any regulation pertaining to such species or to any threatened species of fish or wildlife listed pursuant to section 4 of this Act and promulgated by the Secretary pursuant to authority provided by this Act. 2. Section 3(19)) of the ESA, 16 U.S.C. 1532(19) pro- vides: For the purposes of this Act- ---------------------------------------- Page Break ---------------------------------------- 3 The term "take" means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct. Other pertinent provisions of the ESA (2, 4, 7, 9, 10, 16 U.S.C. 1531, 1533, 1536, 1538, 1539) are reprinted at App., infra, 1a-19a. 3. The Secretary of the Interior's regulation defining "harm" for purposes of the ESA, 50 C.F.R. 17.3, provides: Harm in the definition of "take" in the Act means an act which actually kills or injures wildlife. Such act may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering. STATEMENT The Endangered Species Act of 1973 (ESA), 16 U.S.C. 1531 et seq., makes it unlawful for any person to "take" a species of fish or wildlife that is listed as endangered or threatened. 16 U.S.C. 1538(a)(1). The ESA defines the term "take" to mean "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." 16 U.S.C. 1532(19). A regulation issued by the Secretary of the Interior in 1975 and 1981 in turn defines "harm" to mean an act "includ[ing] significant habitat modification or degradation" that "actually kills or injures wildlife" by "significantly impairing essential behavioral patterns, including breeding, feeding or sheltering." 50 C.F.R. 17.3. The district court sustained the validity of 50 C.F.R. 17.3. The court of appeals reversed and held the ---------------------------------------- Page Break ---------------------------------------- 4 regulation facially invalid insofar as it defines "harm" to embrace any form of habitat modification or degradation. 1. 1. Congress enacted the Endangered Species Act in 1973 in response to increasing concern about the extent to which "various species of fish, wildlife, and plants" had been rendered extinct "as a consequence of economic growth and development untempered by adequate concern and con- servation." 16 U.S.C 1531(a)(1). The purposes of the ESA include providing "a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved." 16 U.S.C. 1531(b). a. Under the ESA, the Secretary determines the wildlife species that are "endangered" or "threatened" within the meaning of the Act and maintains a list of such species. 2. 16 U.S.C. 1533(a). In deciding whether to list a species, the Secretary must consider, inter alia, "the present or threatened destruction, modification, or curtailment of its habitat or range." 16 U.S.C. 1533(a)(1)(A). ___________________(footnotes) 1 Responsibility for administration of the ESA is divided between the Fish and Wildlife Service (FWS) in the Department of the Interior and the National Marine Fisheries Service (NMFS), in the Department of Commerce. See 16 U.S.C. 1532(15); 50 C.F.R. 402.0l(b); see also 50 C.F.R. , 17.11, 17.12, 222.23(a) and 227.4 (listing species within NMFS and FWS jurisdiction). Because this action was brought against the Secretary of the Interior and the Director of FWS and was prompted by respondents' challenge to protection afforded to two species of birds within the jurisdiction of FWS, we shall refer in this brief only to the responsibilities of the Secretary of the Interior and FWS. 2 "Endangered species'" means any species (other than certain insect species) "which is in danger of extinction throughout all or a significant I portion of its range." 16 U.S.C. 1532(6). "Threatened species" means "any species which is likely to) become an endangered species within the foreseeable future throughout all or a significant portion of its range." 16 U.S.C. 1532(20). Endangered and threatened species are referred to collectively as "listed species." ---------------------------------------- Page Break ---------------------------------------- 5 When a fish or wildlife species is listed as endangered, it is protected by Section 9(a)(1) of the ESA. 3. Section 9(a)(1)(B) makes it unlawful for "any person" (which includes governmental entities, see 16 U.S.C. 1532(13)) to "take" an endangered species. 16 U.S.C. 1538(a)(1)(B). The prohibition may be enforced through suits for injunctive relief, 16 U.S.C. 1540(e)(6), as well as civil and criminal penalties, 16 U.S.C. 1540(a) and (b). By regulation, the Section 9 "take" pro- hibition also applies generally to species that are listed as threatened. 4 The ESA defines the term "take" to mean "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in my such conduct." 16 U.S.C. 1532(19). As part of its initial set of programmatic regulations implementing the ESA, FWS promulgated a regulation in 1975 interpreting the term "harm" for purposes of the ESA. As ___________________(footnotes) 3 "Fish or wildlife" is defined in the ESA as "any member of the animal kingdom, including without limitation any mammal, fish, bird (including any migratory, nonmigratory, or endangered bird for which protection is also afforded by treaty or other international agreement), amphibian, reptile, mollusk, crustacean, arthropod or other invertebrate, and includes any part, product, egg, or offspring thereof, or the dead body or parts thereof." 16 U.S.C. 1532(8). The term "plant" is separately defined, see 16 U.S.C. 1532(14). The "take" prohibition in Section 9(a)(1)(B) does not apply to endangered species of plants, which are instead protected by Section 9(a)(2) of the Act, 16 U.S.C. 1538(a)(2). See note 24, infra. 4 Under Section 4(d) of the Act, 16 U.S.C. 1533(d), the Secretary may, by regulation, prohibit with respect to threatened species any act prohibited under 16 U.S.C. 1538(a)(1). The Secretary has extended the "take" prohibition in 16 U.S.C. 1538(a)(1)(B) to threatened fish and wildlife species. See 50 C.F.R. 17.31(a), 17.21(c)(1). Thus, the "take" prohibition applies to all listed species of fish or wildlife except where special rules applicable to particular threatened species otherwise provide. See 50 C.F.R. 17.40-17.48. On February 17, 1995, the Secretary published regulations under Section 4(d) that address the application of the "take" prohibition to the northern spotted owl (a threatened species). 60 Fed. Reg. 9484. ---------------------------------------- Page Break ---------------------------------------- 6 this Court noted in TVA v. Hill, 437 U.S. 153, 184-185 n.30 (1978), the 1975 regulation defined "harm" to mean an act that "actually injures or kills wildlife, including acts which annoy it to such an extent as to significantly disrupt essential behavioral patterns, which include, but are not limited to, breeding, feeding or sheltering," and which include "significant environmental modification or degradation which has such effects." 50 C.F.R. 17.3; see 40 Fed. Reg. 44,412, 44,416 (1975) (J.A. 49, 51). The preamble to the 1975 regulation explained that the regulation represented a "reasonable response to the habitat needs of listed species, " which Congress had specifically acknowledged in the "[p]urposes" section of the ESA, 16 U.S.C. 1631; see 40 Fed. Reg. 44,413 (J.A. 50). The preamble further noted that the environmental degradation encompassed within the regulatory definition of "harm" was: expressly limited to those actions causing actual death or injury to a protected species of fish or wildlife. The actual consequences of such an action upon a listed species is paramount. 40 Fed. Reg. 44,413 (J.A. 50). The Secretary revised the "harm" regulation in 1981 because of concerns that the 1975 regulatory language was susceptible to an interpretation that would bar habitat modification even where there would be no resulting injury to listed fish or wildlife, contrary to the intent of both the Secretary and Congress. See 46 Fed. Reg. 54,748 (1981) (J.A 65). The Secretary modified the regulation to make it consistent with the original intent that a Section 9 "take" violation does not arise out of "habitat modification alone without any attendant death or injury of the protected wildlife." 46 Fed. Reg. 54,748-54,749 (1981) (J.A. 66-68). At the same time, however, the Secretary reaffirmed that "harm" is not limited "to direct physical injury to an individual member ---------------------------------------- Page Break ---------------------------------------- 7 of the wildlife species." and that in redefining the term, he "did not intend to imply that significant habitat destruction which could be shown to injure protected wildlife through the impairment of its essential behavioral patterns was not subject to the Art." 46 Fed. Reg. 54,748 (J.A. 66-67). The "harm" regulation as revised in 1981 provides: Harm in the definition of "take" in the Act means an act which actually kills or injures wildlife. Such an act may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breed- ing, feeding or sheltering. 50 C.F.R. 17.3; see 46 Fed. Reg. 54,748 (J.A. 65). b. in addition to the Section 9 "take" prohibition, the ESA includes other methods of protecting listed species. Section 7(a)(2) provides that each federal agency shall, in consultation with and with the assistance of the Secretary, 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 the destruction or adverse modification of habitat of such species which is determined by the Secretary * * * to be critical, [5]. unless ___________________(footnotes) 5 "Critical habitat" has a specific and limited meaning for purposes of the ESA. Section 4 empowers the Secretary to designate "critical" habitat for listed species. 16 U.S.C. 1533(a)(3), (b)(2) and (b)(6)(C). "Critical habitat" is defined by the Act to mean: (i) the specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the provisions of section 4 of this Act, on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection; and ---------------------------------------- Page Break ---------------------------------------- 8 such agency has been granted an exemption for such action * * * pursuant, to subsection (h). 16 U.S.C. 1536(a)(2). This obligation to ensure against "jeopardizing" a species' continued existence or destroying or adversely modifying its "critical" habitat applies to a federal agency's issuance of licenses and permits to non-federal parties (for activities on either public or private lands), as well as actions undertaken by the agency itself. 16 U.S.C. 1536(a)(3); see generally 16 U.S.C. 1536(c) (directing federal agency to prepare biological assessment to determine whether listed species is "likely to be affected" by proposed action); 16 U.S.C. 1536(b) (provisions for Secretary to issue biological opinion to action agency). The ESA also contains several provisions, in Sections 4, 5 and 7, that are aimed not merely at preventing extinction of listed species, but also at their conservation. For purposes of the ESA, "conservation" means "the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this chapter are no longer necessary." 16 U.S.C. 1532(3). Available conservation meas - ___________________(footnotes) (ii) specific areas outside the geographical area occupied by the species at the time it is listed in accordance with the provisions of section 4 of this Act, upon a determination by the Secretary that such areas are essential for the conservation of the species. 16 U.S.C. 1532(5)(A), In appropriate cases, designating unoccupied potential habitat for listed species can play a role in the recovery of the species by providing for "natural range expansion into adjacent suitable habitat." 49 Fed. Reg. 38,904 (1984). However, "[e]xcept in those circumstances determined by the Secretary, critical habitat shall not include the entire geographical area which can be occupied" by listed species. 16 U.S.C. 1532(5)(C). Thus, designation of critical habitat may add protections for a listed species against federal government actions that are likely to take place on some suitable, but unoccupied, habitat. ---------------------------------------- Page Break ---------------------------------------- 9 ures include, but are not limited to, "all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regula- ted taking." 16 U.S.C. 1532(3). The conservation provisions of the ESA are intended to achieve the eventual removal of the species from the endangered and threatened lists. To that end, Section 4(f) authorizes the Secretary to develop and implement recovery plans to promote the conservation of species. 16 U.S.C. 1533(f). Section 5 empowers the Secretary to utilize land acquisition and authority under other wildlife protection statutes to acquire land to implement a program to conserve endangered and threatened species. 16 U.S.C. 1534. And Section 7(a)(1) requires federal agencies, in consultation with and with the assistance of the Secretary, to "utilize their authorities in furtherance of the purposes of [the Act] by carrying out programs for the conservation of endangered species and threatened species." 16 U.S.C. 1536(a)(1). c. The "take" prohibition in Section 9 and the "jeopardy" and "critical" habitat, restrictions in Section 7 are not absolute-the Secretary may permit "incidental takings" in some instances that meet detailed criteria enacted by Congress in 1982. 6. Specifically, by amendments to Sections 7 and 10, Congress authorized the Secretary to permit takings that would otherwise be prohibited under Section 9(a)(1)(B), ___________________(footnotes) 6 Even prior to 1982, Sections 7 and 9 were not absolute. In 1978, Congress had established a procedure for exempting projects from the Section 7(a)(2) prohibitions, see 16 U.S.C. 1536(e)-(n), and from liability for violation of the Section 9 "take" prohibition, see 16 U.S.C. 1536(o) (Supp. III 1979). Endangered Species Act Amendments of 1978, Pub. L. No. 95-632, 3, 92 Stat. 3753-3759. See page 32, infra. ---------------------------------------- Page Break ---------------------------------------- 10 "if such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity." Endangered Species Act Amendments of 1982, Pub. L. No. 97-304, 6(1), 96 Stat. 1422 (codified at 16 U.S.C. 1539(a)(1)(B)); see also 4(a)(2), 96 Stat. 1418 (codified at 16 U.S.C. 1536(b)(4)). Section 10 provides for the issuance of an incidental take permit to applicants (including nonfederal entities and private parties) who are not subject to the jeopardy and critical habitat restrictions (and related consultation require- ment) applicable to federal agencies under Section 7(a)(2). Congress conditioned issuance of a Section 10 incidental take permit, however, on the assumption by the applicant of certain duties. The ESA states that "[n]o permit maybe issued by the Secretary" authorizing an incidental taking unless the applicant therefor submits to the Secretary a conservation plan that specifies- (i) the impact which will likely result from such taking; (ii) what steps the applicant will take to minimize and mitigate such impacts, and the funding that will be available to implement such steps; (iii) what alternative actions to such taking the applicant. considered and the reasons why such alter- natives are not being utilized; and (iv) such other measures that the Secretary may require as being necessary or appropriate for purposes of the plan. 16 U.S.C. 1539(a)(2)(A). The Secretary will issue the permit if he finds, inter alia, that the taking will be incidental, that the applicant will "to the maximum extent practicable, minimize and mitigate the impacts of such taking," that "the applicant will ensure that adequate funding for the plan will be provided," that "the taking will not appreciably reduce the likelihood of the survival and recovery of the species in the ---------------------------------------- Page Break ---------------------------------------- 11 wild," and that the applicant will meet "such other measures that the Secretary may require as being necessary or appro- priate for purposes of the plan." 16 U.S.C. 1539(a)(2)(B) and (A)(iv). Congress provided a somewhat different mechanism for authorizing "incidental takes" resulting from a project subject to the Section 7(a)(2) jeopardy prohibition and critical habitat restrictions. The biological opinion that FWS prepares during the formal Section 7 consultation process includes what is known as an "incidental take statement." That statement must identify the impact of any take that is anticipated to occur incidental to the proposed federal action, as well as the "reasonable and prudent measures" that the Secretary considers "necessary or appropriate to minimize such impact"; it also sets forth the "terms and conditions * * * that must be complied with by the Federal agency or [permit or license] applicant (if any) or both to implement the measures specified." 16 U.S.C. 1536(b)(4). Any taking that is in compliance with those terms and conditions is not considered a prohibited taking of the species in violation of Section 9. 16 U.S.C. 1536(o)(2). 2. Respondents are individuals and organizations in the Pacific Northwest and Southeast who are engaged in, or depend upon, timber harvesting. They allege that they are affected by the Secretary's "harm" regulation because of its application to the northern spotted owl, which was listed as a threatened species in 1990, 55 Fed. Reg. 26,114, and the red- cockaded woodpecker, which was listed as an endangered species in 1970, 50 C.F.R. 17.11(h). J.A. 17-23. 7 Respondents brought this action as a facial challenge to the regulation, and did not challenge it as applied to any of their ___________________(footnotes) 7 The red-cockaded woodpecker was listed pursuant to the Endangered Species Conservation Act of 1969, Pub. L. No. 91-135, 83 Stat. 275, a predecessor to the Endangered Species Act. ---------------------------------------- Page Break ---------------------------------------- 12 own actions in relation to the listed birds. 8. On cross-motions for summary judgment, the district court upheld the validity of the "harm" regulation under step one of the analytical framework set forth in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-843 (1984), concluding that the "language, structure and history of the ESA reveal that Congress intended an expansive interpretation of the word 'take,' an interpretation that encompasses habitat modification." Pet. App. 82a-83a. The court further stated that even if it were to find the ESA "silent or ambiguous" on the issue, it would uphold the Secretary's regulation under step two of the Chevron analysis as a reasonable interpretation of the Act. Id. at 83a. The district court also held that the regulatory definition of "harm" was not void for vagueness. Id. at 83a-85a. 3. a. The court of appeals initially affirmed the district court's judgment, with the panel divided on the question of the validity of the "harm" regulation. Pet. App. 42a-72a. The majority opinion included a per curium ruling that the "harm" regulation does not violate the ESA. Id. at 46a. Chief Judge Mikva wrote a concurring opinion, reasoning that the "harm" regulation represents a reasonable interpretation of the Act that is entitled to deference under Chevron. Id. at 59a-66a. Judge Williams wrote a concurring opinion agreeing that the regulation complies with the ESA. He reasoned that the 1982 amendments authorizing incidental taking permits "support the inference that the ESA otherwise forbids some such incidental takings, including some habitat modifications. " Id. at 67a. Judge Sentelle dissented. Id. at 68a-72a. ___________________(footnotes) 8 Respondents also Challenged the facial validity of a regulation that extends certain protections to threatened species, 50 C.F.R. 1731(a). The courts below sustained that regulation (see Pet. App. 85a-88a id. at 2a, 51a - 58a), and no party sought further review of that issue. ---------------------------------------- Page Break ---------------------------------------- 13 b. The panel granted respondents' petition for rehearing and, on March 11, 1994, in another divided decision, reversed the district court's judgment with respect to the validity of the "harm" regulation." 9. Pet. App. 1a-41a. Judge Sentelle filed a concurring opinion (id. at 25a-26a) and Chief Judge Mikva filed a dissenting opinion (id. at 27a-41a). The court of appeals concluded that the "harm" regulation was "neither clearly authorized by Congress nor a 'reasonable interpretation' of the statute," and that no later action of Congress "supplied the missing authority." Pet. App. 3a, citing Chevron, 467 U.S. at 842-843, 844. The court acknowl- edged that "[t]he potential breadth of the word 'harm' is indisputable," Pet. App. 3a, but nonetheless held that the Secretary's definition of the term is too broad. In the court's view, the other words in the statutory definition ("harass, * * * pursue, hunt, shoot, wound, kill, trap, capture, or collect") all "contemplate the perpetrator's direct application of force against, the animal taken"-e.g., "A hit B." Id. at 4a. The court reasoned that, it should therefore apply the maxim "noscitur a sociis" (that a word is known by the company it keeps) and read the term "harm" as limited to direct appli- cation of force against animals, and to exclude any habitat modification. Id. at 5a-7a. The court viewed the "structure and history of the Act" as confirming its reading. Pet. App. 7a. Thus, it read the "harm" regulation to have "transposed to the private anti-'take' provision" the duty of federal agencies under Section 7(a)(2) to ensure that actions are "not likely to jeopardize the continued existence" of a listed species or result in "'the destruction or adverse modification of habitat of such species which is determined * * * to be critical.'" Pet. App. 7a. The court ___________________(footnotes) 9 The court's original judgment is otherwise unaltered. Pet. App. 24a. Thus, the court of appeals adhered to its rulings that 50 C.F.R. 17.31 is valid and that the "harm" regulation is not void for vagueness. ---------------------------------------- Page Break ---------------------------------------- 14 found that result to be contrary to the legislative history of the ESA, which it read as assigning "the primary task of habitat preservation to the government." Id. at 8a. The court also noted that the bill ultimately enacted did not include language in one bill considered by the Senate committee that would have defined "take" to include "the destruction, modification, or curtailment of [a species'] habitat or range." Id. at 9a-10a. Finally, the court read the legislative history of the 1982 amendments' provision for incidental take permits as not referring to habitat modification, and therefore as not ratifying the Secretary's interpretation. Id. at 10a-24a. In a concurring opinion, Judge Sentelle expressed the view that the language and structure of the ESA provided a sufficient basis for invalidating the "harm" regulation and that resort to the legislative history was unnecessary. Pet. App. 25a. He also reasoned that to define "harm" as the Secretary does would render superfluous the other words in the statutory definition of "take." Ibid. Judge Mikva dissented. Pet App. 27a-41a. He first objected that the majority erroneously shifted the burden to the government agency to show that its interpretation is clearly authorized or reasonable, whereas, under Chevron, the burden is on those challenging governmental action to show either that Congress has directly spoken on the issue or that the agency's interpretation is unreasonable. Id. at 28a. In this case, Judge Mikva concluded that the Act is silent, or at best ambiguous, on the scope of the term "harm," so that the issue is whether the Secretary's interpretation of that term constitutes a permissible reading of the ESA. Id. at 29a. He concluded that it does, expressing the view that the majority's application of noscitur a sociis was fatally flawed because the "definition of `take' does not conform to the paradigm of one broad word alongside many narrow ones." Id. at 30a. Judge Mikva found additional support for the Secretary's interpretation in the purpose and legislative history of the ---------------------------------------- Page Break ---------------------------------------- 15 ESA, including the 1982 amendments. The amendments, he reasoned, demonstrate that Congress thought that the original Section 9 prohibition against "takings" included some "incidental takings, " and that by "incidental takings" Congress clearly meant to include some habitat modification. Pet. App. 37a-39a. c. Petitioners filed a petition for rehearing with suggestion of rehearing en banc, which the court denied on August 12, 1994. Pet. App. 89a-90a. Judge Williams, writing for the panel majority, issued a statement accompanying the order denying rehearing. In response to petitioners' contention that the court had ascribed an overly broad reading to the Secretary's "harm" regulation, the panel majority expressed the belief that omissions as well as affirmative acts are embraced by the regulation, and that enforcement of the regulation would reach habitat modification over vast tracts of land. Id. at 91a. The panel majority also reiterated its view that the "harm" regulation imposes on private parties responsibilities under Section 9 that are identical to those imposed on federal agencies under Section 7. Id. at 91a-94a. Finally, in response to petitioners' submission that its Chevron analysis was flawed and unclear, the panel majority announced that its invalidation of the regulation was based on step one of the Chevron analysis and that, in its view, the Act "manifests a clear determination by Congress" that the Section 9 "take" prohibition "should not reach habitat modifications * * * where there is no direct action by the defendant against any member of the species." Pet. App. 95a. Four members of the court of appeals voted to grant rehearing en bane. Pet. App. 90a. Three of those judges- Judge Silberman, joined by Chief Judge Mikva and Judge Wald-filed a statement expressing the view that under a Chevron analysis, the interpretation of "harm" in the Secretary's regulation should be sustained. Id. at 98a-99a. ---------------------------------------- Page Break ---------------------------------------- 16 SUMMARY OF ARGUMENT A. The Secretary of the Interior's interpretation of "harm" is based on a reasonable construction of the En- dangered Species Act of 1973 (ESA). Defining "harm" to include habitat modification or degradation that actually kills or injures wildlife is consistent with the text and structure of the Act. The carefully tailored "harm" regulation does not apply to habitat modification or degradation generally. It is limited to such actions that actually kill or injure. The ordinary meaning of "harm" encompasses killing or injuring, whether by habitat modification or otherwise. The court of appeals' reliance on noscitur a sociis to invalidate the Secretary's interpretation was misplaced. Construing "harm" as extending the "take" definition to embrace all conduct that comes within the more particular words of the statute, such as "kill, " gives effect to all the words in the statute so that none is superfluous. To sustain respondents' facial challenge to the regulation would be inconsistent with the object and structure of the Act as a whole. B. From the outset, Congress intended the prohibition against the "taking" of endangered species in Section 9(a)(1)(B) to be interpreted broadly to include "every con- ceivable way in which a person can `take'" wildlife. The Secretary's regulation has been in effect, with revision in 1981, since shortly after the ESA was enacted and warrants substantial deference. As early as 1978, this Court cited the "harm" regulation approvingly in TVA v. Hill, 437 U.S. 153, 185, emphasizing the regulation's inclusion of "significant environmental modification or degradation." Congress amended the ESA on the heels of TVA v. Hill to permit federal projects that obtain an exemption under Section 7 of the Act to be exempted from the Section 9 "take" prohibition, and any regulations promulgated thereunder (no doubt including the "harm" regulation in light, of the virtually contemporaneous ---------------------------------------- Page Break ---------------------------------------- 17 TVA ruling). Congress's 1982 amendment of the ESA reinforced the validity of the "harm" regulation through the creation of the incidental take permit process. The text and history of that permit process leave no doubt that Congress, like the Secretary, interprets the Section 9 "take" prohibition to extend, in the absence of such a permit, to actions that cause a "take" by habitat modification. C. Contrary to the court of appeals' interpretation, the Secretary's interpretation of "harm" does not impose on private parties the same obligations imposed on federal agencies by Section 7. The court's erroneous reasoning is based on its misunderstanding of "critical habitat" under the ESA and its failure to appreciate that various provisions of the ESA were designed to overlap to further the purposes of the Act. The court of appeals nonetheless invalidated the "harm" regulation on the basis of imagined applications that were not before it. Application of the standard for deter- mining whether a regulation is valid on its face (i.e., whether there are any circumstances under which the regulation would be valid) demonstrates that the Secretary's inter- pretation should be sustained. ARGUMENT THE SECRETARY'S INTERPRETATION OF "HARM" IS BASED ON A REASONABLE CONSTRUCTION OF THE ENDANGERED SPECIES ACT AND THEREFORE SHOULD BE SUSTAINED "[T]he Endangered Species Act of 1973 represented the most comprehensive legislation for the preservation of endangered species ever enacted by any nation." TVA v. Hill, 437 U.S. 153, 180 (1978). "The plain intent of Congress in enacting [the ESA] was to halt and reverse the trend toward species extinction, whatever the cost." Id. at 184. It is widely recognized that loss or degradation of habitat most often poses ---------------------------------------- Page Break ---------------------------------------- 18 the greatest risk to endangered and threatened species. Id. at 179; Edward O. Wilson, The Diversity of Life 253, 346 (Belknap Press, Harv. Univ. Press 1992); Daniel J. Rohlf, The Endangered Species Act: A Guide to its Protection and implementation 11 (Stan. Envtl. Law Soc'y 1989). When Congress enacted the ESA in 1973, it concluded that habitat destruction played a central role in the rising number of species threatened with extinction. Thus, one of the stated purposes of the ESA is "to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved." 16 U.S.C. 1531(b). The Secretary of the Interior is charged with responsibility for implementing and enforcing the ESA. See 16 U.S.C. 1533. The Secretary, through the Director of the Fish and Wildlife Service, promulgated a regulation, 50 C.F.R. 17.3, to define "harm, " which is one of the words used in the ESA to define "take." I6 U.S.C. 1532(19). The term "take" is significant under the ESA both because Section 9 makes it unlawful for "any person" to "take" an endangered species, and because Sections 7 and 10 establish procedures for permitting a "take" that is merely incidental to an otherwise lawful activity. The Secretary's regulation defines "harm" to mean an act that "actually kills or injures wildlife," including "significant habitat. modification or degradation" that causes those consequences by "significantly impairing essential behavioral patterns'" of the wildlife, such as "breeding, feeding and sheltering." 50 C.F.R. 17.3. When a court reviews an agency's construction of a statute that it administers, the two-step inquiry prescribed by this Court in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-843 (1984), governs the analysis. At step one, the reviewing court determines "whether Congress has directly spoken to the precise question at issue." Id. at 842. If the court determines that Congress unambiguous]y expressed an intent on the precise ---------------------------------------- Page Break ---------------------------------------- 19 question, the court must give effect to that intent. Id. at 843. If the statute is silent or ambiguous with respect to the issue, however, the court proceeds to step two and determines whether the agency's interpretation is based on a permissible construction of the statute. Id. at 843-845. "If the adminis- trator's reading fills a gap or defines a term in a way that is reasonable in light of the legislature's revealed design, [the Court] give[s] the administrator's judgment `controlling weight.'" NationsBank v. Variable Annuity Life Ins. Co., No. 93-1612 (Jan 18, 1995), slip op. 5 (quoting Chevron, 467 U.S. at 844). Respondents brought this action as a facial challenge to the "harm" regulation insofar as it embraces any habitat modification activities. Respondents assume a "heavy burden" by attacking the regulation on its face. See Rust v. Sullivan, 500 U.S. 173, 183 (1991), quoting United States v. Salerno, 481 U.S. 739, 745 (1987). To prevail, they "must establish that no set of circumstances exists under which the [regulation] would be valid." Reno v. Flores, 113 S. Ct. 1439, 1446 (1993), quoting United States v. Salerno, 481 U.S. at 745; see also INS v. National Ctr. for Immigrants' Rights, 112 S. Ct. 551, 555 (1991); cf. Bowen v. Yuckert, 482 U.S. 137, 154 n.12 (1987); California Coastal Comm`n v. Granite Rock Co., 480 U.S. 572, 593 (1987) (facial preemption challenge defeated by identifying Possible set of conditions in which state requirements are not in conflict with federal law). Thus, respondents must establish that Congress intended that in no set of circumstances could Section 9's provision forbidding any person to "take" a protected species-i.e., to "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect" such a species-be applied to conduct that "actually kills or injures wildlife" by means of "significant habitat modification or degradation." This respondents failed to do. The district court sustained the "harm" regulation against respondents' facial challenge at step one of the Chevron ---------------------------------------- Page Break ---------------------------------------- 20 analysis, holding that the "language, structure and history of the ESA reveal that Congress intended an expansive interpretation of the word 'take,' an interpretation that encompasses habitat modification." Pet. App. 82a-83a. At the very least, however, the Secretary's interpretation of the term "harm" is a "permissible" or "reasonable" one in light of the "revealed design" of Congress in the ESA (NationsBank, slip op. 5), and it therefore should be sustained under step two of the Chevron analysis. As its language makes clear, the regulatory definition of "harm" does not apply to habitat modification or degradation generally. It reaches only such acts that in turn actually kill or injure wildlife This carefully tailored regulation is firmly supported by the text of the statutory definition of "take," the structure and purposes of the ESA as a whole, the legislative history of the original 1973 enactment of the ESA, the consistent and longstanding administration of the Act, and the 1978 and 1982 amendments to the Act that specifically addressed the subject of "takes." The court of appeals therefore erred in holding that the regulation's inclusion of any habitat modification activities-even those that "actually kill or injure wildlife''-is invalid on its face. A. The Text And Structure Of The Act Support The Secretary's Interpretation The Secretary's interpretation of the statutory term "harm" is affirmatively supported by the text and structure of the ESA in a number of respects. 1. The term "take" is defined in the Act to mean "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." 16 U.S.C. 1532(19). In ordinary usage, the word "harm," in its verb form, means "to cause hurt or damage to: INJURE," Webster's Third New International Dictionary 1034 (1986), or "to do or cause harm to; injure; damage; hurt," The ---------------------------------------- Page Break ---------------------------------------- 21 Random House Dictionary of the English Language 873 (2d ed. 1987). This common understanding of the word unquestionably encompasses an act that actually "kills or injures wildlife''-the basic definition of "harm" in the first sentence of 50 C.F.R. 17.3. Respondents do not challenge that basic definition of "harm" by the Secretary, and its soundness is demonstrated by the fact that the definition of "take" in the ESA itself expressly includes "kill" and "wound." The second sentence of 50 C.F.R. 17.3, which respondents do challenge, merely elaborates on the basic definition in the first sentence by explaining its application in one particular context. The second sentence specifies that an act con- stituting "harm" may include the actual killing or injuring of wildlife by means of "significant habitat modification or degradation" that "significantly impair[s]" essential behav- ioral patterns of the wildlife. There is no reason why Congress would have intended to allow the killing or injuring of protected wildlife where that consequence is brought about by the destruction of habitat essential for the wildlife's breeding, feeding, or shelter, rather than by other means, such as the discharge of a firearm or similarly direct application of force (the types of actions to which the court of appeals believed the "take" prohibition should be limited, see Pet. App. 4a). 2. The court of appeals in fact acknowledged that the "potential breadth of the word 'harm' is indisputable" and that "harm" can be understood to include conduct encompassed by the regulatory definition. Pet. App. 3a-4a. The court never- theless rejected the Secretary's interpretation by relying on the maxim noscitur a sociis. Id. at 6a-7a. That reliance was misplaced. The assumption underlying the court of appeals' invocation of noscitur a sociis was that Congress must have intended for certain words in the definition of "take" that involve the application of physical force ("hunt," "shoot," "trap, " "capture") to furnish a narrowing focus even with ---------------------------------------- Page Break ---------------------------------------- 22 respect to "harm," despite that word's concededly broader connotation. Whatever utility the maxim noscitur a sociis might have in other settings, it does not assist respondents here, especially since the relevant statutory language contains both broader and narrower terms. 10. The placement of' "harm" between the words "harass" and "pursue " in the ESA's definition of "take" is sufficient in itself to refute the court of appeals' crabbed interpretation, for neither of those words necessarily (or even ordinarily) involves the direct application of force. There accordingly is no reason why the word "harm" should be artificially confined in that manner. Compare Third Nat'1 Bank in Nashville v. Impac Ltd., 432 U.S. 312, 322 (1977) (construing term by reference to words it is "sandwiched in between"); Dole v. United Steelworkers, 494 U.S. 26, 36 (1990) (statutory term ___________________(footnotes) 10 The maxim noscitur a sociis applies only where "the legislative intent or meaning of a statute is not clear." 2A Norman J. Singer, Sutherland Statutes and Statutory Construction 47.16 (5th ed. 1992) [Sutherland]; Russell Motor Car Co. v. United States, 261 U.S. 514, 519, 520 (1923). Thus, the majority's invocation of the maxim undermines its later statement (upon the denial of rehearing en bane) that its holding rested on a finding of an "unambiguously expressed" and "clear" determination by Congress that Section 9 does not reach the acts of habitat modification encompassed by the second sentence of 50 C.F.R. 17.3. See Pet. App. 95a. To be sure, a court may employ traditional tools of statutory construction at Chevron step one to determine whether Congress expressly resolved the relevant question, INS v. Cardoza-Fonseca, 480 U.S. 421, 446-447 (1987). But because resort to the maxim noscitur a sociis necessarily is premised on some measure of textual ambiguity, a court should not lightly rely on that maxim to override the agency's interpretation of a particular statutory term that is otherwise reasonable and consistent with the context of the statute as a whole. See Michigan Citizens for an Indep. Press v. Thornburgh, 868 F.2d 1285, 1292 (D.C. Cir.) ("Chevron implicitly precludes courts' picking and choosing among various canons of statutory construction to reject reasonable agency interpretations of ambiguous statutes."), aff'd by an equally divided court, 493 U.S. 38 (1989). ---------------------------------------- Page Break ---------------------------------------- 23 may be "understood to be analogous to the examples sur- rounding it"). The structure of the statutory definition of "take" reinforces that conclusion in another respect. A number of terms at the beginning of the definition ("harass, harm, pursue") are broader than those that follow ("hunt, shoot, wound, kill, trap, capture or collect"). When specific words follow general words in a statutory enumeration, effect is given "to both the particular and the general words, by treating the particular words as indicating the class, and the general words as extending the provisions of the statute to everything embraced in that class, though not specifically named by the particular words." Sutherland 47.17, at 189 (describing maxim ejusdem generis, a variation of noscitur a sociis). In this case, the general word "harm" can be understood to apply the statutory term "take" to all conduct of the sort that the other words ("kill," "wound," etc.) merely exemplify, Brown v. Gardner, 115 S. Ct. 552, 555 (1994), including conduct that causes such consequences as killing or wounding by means of significant habitat modification. See 46 Fed. Reg. 29,491 (1981) (J.A. 56-57); 46 Fed. Reg. 54,749 (J.A. 68) ("Congress intended to create a definition of take which included all of the various ways of killing or injuring protected wildlife."). This construction gives effect to all the words in the definition so that none is superfluous, thereby answering a concern expressed by Judge Sentelle in his concurring opinion below. See Pet. App. 25a. 11 ___________________(footnotes) 11 There is no reasonable definition of "harm" that would not overlap with some of the other terms. Moreover, the principle against surplusage is in tension with noscitur a sociis. To avoid surplusage, the word "harm" must be given meaning that is different from, rather than synonymous with, the other terms. The court of appeals' interpretation, by contrast, does render the term "harm" superfluous. ---------------------------------------- Page Break ---------------------------------------- 24 3. Respondents' effort to carve out of the "take" prohibition those actual killings of or injuries to wildlife that are brought about by means of habitat modification or degradation also is inconsistent with "the object and structure of the Act as a whole." Dole v. United Steel- workers, 494 U.S. at 36. In TVA v. Hill, this Court described preservation of endangered species ever enacted by any nation." 437 U.S. at 180. The Court also noted Congress's recognition that the destruction of habitat often poses the greatest risk to protected species, id. at 179, and that the ESA's "stated purposes were `to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved,' and `to provide a program for the conservation of such . . . species . . . ,'" id. at 180 (quoting 16 U.S.C. 1531(b)). To achieve those purposes, the Act contains numerous provisions that specifically address, in varying ways, the protection of habitat. See pages 7-9, supra; see, e.g., 16 U.S.C. 1533(a)(3), (b)(2) and (b)(6)(C), 1534, 1536(a)(2). It would be directly contrary to both the comprehensive thrust of the Act and its recognition of the importance of habitat for species survival to construe the prohibition against "taking" a protected species not to reach the actual killing or injuring of wildlife that results from significant modification or degradation of habitat on which the wildlife depends for its "essential" behavioral patterns. Furthermore, as we explain below (see pages 32, 34, infra), Congress amended Sections 7 and 10 in 1978 and 1982 to authorize exemptions to the taking prohibition in Section 9 in particular circumstances, and those exempting provisions are tailored precisely to accommodate incidental takes of protected species that are caused by land development and other forms of habitat modification. Congress's fashioning of exemptions for habitat modification activities that would otherwise constitute a "take" of protected species weighs ---------------------------------------- Page Break ---------------------------------------- 25 strongly against an interpretation of the Act that would altogether exclude such activities from the "take" prohibition in the first place. B. The Validity Of The "Harm" Regulation Is Supported By The Background Of And Subsequent Amendments To The Endangered Species Act Any doubts about whether the Secretary's interpretation of "harm" represents a reasonable interpretation of the ESA are removed by a consideration of the legislative history of the Act in 1973, as well as by the text and legislative history of the amendments to the Act in 1978 and 1982. 1. The background and legislative history of the 1973 Act support the Secretary's interpretation of "harm" and under- mine that of the court of appeals. In the first place, the court of appeals' attempt to tie "harm" to what it perceived to be narrower terms in the ESA's definition of "take" that involve the direct application of physical force ignores the fact that the inclusion of "harass" and "harm" in the ESA constituted a marked departure from the definition of "take" in predecessor wildlife statutes, such as the Migratory Bird Treaty Act (MBTA), 16 U.S.C. 703 et seq., and the Marine Mammal Protection Act (MMPA), 16 U.S.C. 1361 et seq. The definition of "take" under the Migratory Bird Treaty Act omits both "harm" and "harass." See 16 U.S.C. 703 (1988 & Supp. V 1993). 12. When Congress enacted the MMPA in 1972, it ___________________(footnotes) 12 The Migratory Bird Treaty Act, 16 U.S.C. 703 et seq., was passed 55 years prior to the ESA for the purpose of halting the "indiscriminate slaughter" of migratory birds. See, e.g., 55 Cong, Rec. 5544-5545 (1917); S. Rep. No. 2, 65th Cong., 1st Sess. (1917). It prohibits the taking of virtually every bird in the United States, not just endangered or threatened birds. Even though the definition of "take" in the Migratory Bird Treaty Act is undoubtedly narrower than that in the ESA, see Seattle Audubon Soc'y v. Evans, 952 F.2d 297, 302-303 (9th Cir. 1991) ("[h]abitat destruction causes `harm' to the owls under the ESA but does not `take' them within the ---------------------------------------- Page Break ---------------------------------------- 26 included "harass" in the definition of "take." See 16 U.S.C. 1362(13) (Supp. 1993). 13. Then, when enacting the ESA in 1973, Congress enlarged the concept of "take" still further by adding "harm" to the definition. See 16 U.S.C. 1532(19). The court of appeals' endeavor to maintain conformity with the narrowest terms defining "take" under the ESA defeats the deliberate enlargement of that concept under the ESA. ___________________(footnotes) meaning of the MBTA "), the MBTA has been applied to circumstances that cannot be characterized as involving a direct application of force. For example, United States v. FMC Corp., 572 F.2d 902 (2d Cir. 1978), held that migratory waterfowl were "killed" in violation of the Migratory Bird Treaty Act's "take" prohibition as the result of the defendant's release of chemicals in its manufacturing process, even though the defendant did not intend to harm birds and did not know its action would be lethal to them. 13 Contrary to the court of appeals' suggestion (Pet. App. 5a), United States v. Hayashi, 22 F.3d 859 (9th Cir. 1993), does not support the court's conclusion that the "take" prohibition under the ESA requires a substantially direct application of force. Hayashi involved a criminal prosecution for violation of the "take" provision under the MMPA. The Ninth Circuit specifically noted that the ESA "harm" regulation, "is not the controlling regulatory definition and is an improper starting point for any MMPA prosecution." 22 F.3d at 864; see also id at 862. The issue in Hayashi was whether a fisherman's firing of a rifle in order to scare porpoises away from his fishing lines constituted a criminal "take" by "harassment" under the MMPA, which is defined by a regulation, see 50 C.F.R. 216.3, that differs from the "harm" regulation at issue here. In holding that it did not, the court reasoned that the fisherman's action did not disrupt normal behavioral patterns because feeding from a fishing line is not part of porpoises' normal eating habits. 22 F.3d at 864-865. The court also believed that the fisherman's action did not have a significant impact on the porpoises because the disruption was of short duration and because regulations also prohibit the feeding of porpoises. Ibid. Thus, Hayashi turned on the court's conclusion that the activity in question had no significant adverse effect on the wildlife's normal and essential behavioral patterns. Moreover, the ruling in Hayashi is of no continuing importance, because in Section 12 of the MMPA Amendments of 1994, Pub. L. No. 103- 238, 108 Stat. 557, Congress enacted a definition of "harassment" that is more expansive than the Ninth Circuit's interpretation in Hayashi. ---------------------------------------- Page Break ---------------------------------------- 27 The court of appeals' narrow focus on actions that involve the direct application of physical force also is inconsistent with the legislative history addressing the word "harass," which immediately precedes "harm" in the statutory def- inition of "take" and which, as pointed out above (see pages 22- 23, supra) does not connote the direct application of physical force. The House Report on the 1973 Act explained that the prohibition of actions that "harass" species, "whether intentional or not," would allow the "Secretary to regulate or prohibit the activities of birdwatchers where the effect of those activities might disturb the birds and make it difficult for them to hatch or raise their young." H.R. Rep. No. 412, 93d Cong., 1st Sess. 11 (1973).14 Such otherwise benign actions as birdwatching do not reasonably fit the supposed paradigm of direct physical force applied against an animal. See Palila v. Hawaii Dep't of Land & Natural Resources, 852 F.2d 1106, 1108-1109 (9th Cir. 1988) (Palila II) ("If the `harassment' form of taking includes activities so remote from actual injury to the bird as birdwatching, then the `harm' form of taking should include more direct activities.''-in that case, the maintenance of sheep that fed on and destroyed woodlands on which an endangered species depended for survival). 15. Finally, a narrow focus on physical blows to the body of individual animals would defeat the intent expressed by the responsible congressional committees that "take" have a broad scope. See S. Rep., No. 307, 93d Cong., 1st Sess. 7 (1973) ___________________(footnotes) 14 The passage from the House Report quoted in the text also confirms that the taking prohibition focuses on the "effect" the conduct has on a species, rather than on the means by which the effect is brought about. 15 Palila II was a suit by environmental groups against the State of Hawaii for maintaining feral sheep in the remaining habitat areas of the endangered Palila bird. The sheep were maintained for hunting, but their overbrowsing and destruction of trees upon which the Palila depended for its survival were held to cause a "take" in violation of Section 9. ---------------------------------------- Page Break ---------------------------------------- 28 ("'Take' is defined * * * in the broadest possible manner to include every conceivable way in which a person can 'take' or attempt to 'take' any fish or wildlife."); see also H.R. Rep. No. 412, 93d Cong., 1st Sess. 11, 15 (1973). The court of appeals believed that its narrow reading of "take" was supported by the failure of the Senate Committee on Commerce to adopt a definition in the version of the bill (S. 1983, 93d Cong., 1st Sess. (1973)) that, as introduced, would have made modification of habitat a form of "take." See Pet. App. 8a-9a. The proposal in question, however, would have made all destruction, modification or curtailment of a listed species' habitat or range a "take," regardless of the effect on a listed species. 16. In other words, under that provision, habitat modification would have been a per se violation of Section 9. The provision did not contain the limitations inhering in the concept of "harm" to the species itself. "Harm" was added to the definition of "take" later in the legislative process (after the habitat modification provision was omitted) and, under the Secretary's interpretation, it applies only if the habitat modification or degradation is significant and actually kills or injures protected wildlife. Moreover, S. 1983 was one of two endangered species bills under consideration by the Senate committee. The other bill contained all of the terms in the definition of "take" as finally enacted except "harass" and "harm." See S. 1592, 93d Cong., 1st Sess. 2(d)(4) (reproduced at 119 Cong. Rec. 12,432 (1973)). The bill reported out of committee included the terms in S. 1592 as introduced, plus "harass" from S. 1983. See S. Rep. No. 307, supra, at 14. The Senate Report did not explain why the Committee included some terms in the definition but not ___________________(footnotes) 16 The bill in question defined "take" to mean to "threaten, harass, hunt, capture, or kill [an endangered species] * * * or the destruction, modification, or curtailment of its habitat or range." S. 1983, 93d Cong., 1st Sess. 3(6) (1973). ---------------------------------------- Page Break ---------------------------------------- 29 others, but it did express the intent (quoted above) to define "take" in the "broadest possible manner to include every conceivable way in which a person can `take' " fish or wildlife. Id. at 7. The Word "harm" was then added during the Senate floor debate as part, of a package of amendments that were intended "to achieve the purposes of the bill" and to "clarify some confusion caused by language remaining in the bill from earlier drafts or omitted from earlier drafts which went unnoticed during the final committee markup." 119 Cong. Rec. 25,683 (1973) (Sen. Tunney). In these circumstances, the Senate committee's failure to adopt a provision referring broadly to habitat modification per se (without regard to any effect on wildlife) does not suggest that the Secretary acted unreasonably in giving a far more circumscribed scope to a different term ("harm") under a regulation that does focus on resulting injury or death to wildlife. Cf. United States v. Lee, 937 F.2d 1388, 1391 (9th Cir. 1991) (declining to give limiting significance to deletion of word in Lacey Act because overall congressional intent was to expand scope of the Act), cert. denied, 112 S. Ct. 977 (1992). 17 2. The Secretary promulgated the original version of the "harm" regulation in 1975 (50 C.F.R. 17.3; see 40 Fed. Reg. 44, 412, 44,416 (J.A. 49, 51)), shortly after the ESA was passed. Following the 1981 revision (46 Fed. Reg. 54,748 (J.A. 65)), it has remained in effect ever since. The regulation therefore ___________________(footnotes) 17 The legislative history likewise does not support the court of appeals' suggestion that Congress intended land acquisition pursuant to Section 5 of the ESA to be the exclusive means by which habitat destruction on private lands can be curbed under the ESA. The legislative history cited by the court of appeals (Pet. App. 8a-9a) simply indicates that Congress considered acquisition of private land to be one available tool in addressing habitat concerns. It would depart from the ESA's comprehensive design to assume that Congress compartmentalized the problems associated with endangered species and provided only a single solution to a complex problem- especially one as central to the Act as the habitat of protected species. ---------------------------------------- Page Break ---------------------------------------- 30 represents the Secretary's contemporaneous and long- standing interpretation of the term "harm," and as such is entitled to particular deference. See Brown v. Gardner, 115 S. Ct. at 557, citing Zenith Radio Corp. v. United States, 437 U.S. 443, 450 (1978). The subsequent history of the regulation and the provisions later added to the Act to address the "take" prohibition validate that interpretation and build upon the protection it affords. 3. Significantly, only three years after the "harm" regulation was promulgated, this Court discussed the regulation's operation and its place in the overall statutory scheme in TVA v. Hill. The Court stated: 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. All persons, including federal agencies, are specifically instructed not to "take" endangered species, meaning that no one is "to harass, harm, pursue, hunt, shoot, wound, trap, capture, or collect" such life forms. 437 U.S. at 184-185 (quoting 16 U.S.C. 1538(a)(1)(B) (1976)). In a footnote to the word "harm" in the statutory definition of "take," the Court quoted (with emphasis) the "harm" regulation's inclusion of "significant environmental modifi- cation or degradation" that actually injures or kills wildlife, and explained that it did "not understand how TVA intends to operate Tellico Dam without `harming' the snail darter." 437 U.S. at 184-185 n.30. In light of this Court's early recognition of the central role played by the take prohibition (specifically including the "harm" regulation) in achieving the overall purposes of the Act, the Court should be reluctant, 17 years later, to endorse an interpretation of "harm" that would render the current version of that same regulation facially invalid insofar as it interprets the Act to prohibit those ---------------------------------------- Page Break ---------------------------------------- 31 significant modifications or degradations of habitat that actually kill or injure protected wildlife. 4. When Congress enacted the Endangered Species Act Amendments of 1978, Pub. L. No. 95-632, 92 Stat. 3752, in the immediate wake of this Court's decision in TVA v. Hill (see H.R. Rep. No. 1625, 92d Cong., 2d Sess. 3-4, 10 (1978)), it chose to retain the "harm" regulation in effect. During the extensive hearings that preceded those amendments, repre- sentatives of the timber industry and other witnesses called attention to the "take" prohibition in Section 9, its application to activities on private land, and the regulation defining "harm" to include significant environmental modification or degradation that significantly disrupts normal behavioral patterns; and a number of witnesses urged Congress to refine the statutory definition of "take" so as to exclude land management activities on private lands. 18. In response to those criticisms, Senator Garn proposed (and later withdrew) amendments that included the following redefinition of "take": The term "take" means purposefully to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct which is inimical to the continued existence of an endangered or threatened species. It does not include effects from normal forestry, farming, ranching or water management practices. ___________________(footnotes) 18 Endangered Species Oversight: Hearings Before the Subcomm. on Resource Protection of the Senate Comm. on Environment and Public Works, 95th Cong., 1st Sess. 306-307, 316 (1977); Amending the Endangered Species Act of 1973: Hearings on S. 2899 Before the Subcomm. on Resource Protection of the Senate Comm. on Environment and Public Works, 95th Cong., 2d Sess. 50, 52, 59, 222, 260, 389 (1978); Endangered Species, Parts 1 & 2: Hearings Before the Subcomm. on Fisheries and Conservation and the Environment of the House Comm. on Merchant Marine and Fisheries, 95th Cong., 2d Sess. 206, 211, 223, 413, 724-725, 726-727 (1978). ---------------------------------------- Page Break ---------------------------------------- 32 124 Cong. Rec. 21,565 (1978). Despite the attention focused on the subject, Congress did not revise the statutory definition of "take" or modify the general operation of the prohibition in Section 9 as it affects habitat-modification activities encompassed by the "harm" regulation. Instead, Congress responded in a far more limited manner that was premised on the regulation's continued existence. It did so by providing relief from the "take" prohibition in the specific context of the exemption mechanism it added in Section 7(h) of the Act, 16 U.S.C. 1536(h), which permits a project that would otherwise violate Section 7(a)(2) to go forward if it is authorized by a specially constituted Endangered Species Committee. See 16 U.S.C. 1536(e)-(o). Recognizing that an exemption from Section 7(a)(2) would not remove a project from the "take" prohibition in Section 9(a), Congress included Section 7(o) in the Act to provide (emphasis added): Notwithstanding sections 4(d) and 9(a) of this Act or any regulations promulgated pursuant to such sections, any action for which an exemption is granted under subsection (h) of this section shall not be considered a taking of any endangered or threatened species with respect to any activity which is necessary to carry out such action. Pub. L. No, 95-632, 3, 92 Stat. 3759 (codified at 16 U.S.C. 1536(o) (Supp. III 1979)). 19 Against the backdrop of this Court's discussion of the "harm" regulation in TVA v. Hill only five months earlier, as ___________________(footnotes) 19 The House Report explained that this provision (which was then contained in Section 7(k)(2) of the bill, see H.R. Rep. No. 1625, supra, at 51) was included "in recognition of the fact that even though a project might be exempted from the requirements of section 7, section 9 of the act would still prohibit the `taking' of any endangered animal species. " H.R. Rep. No. 1625, supra, at 25. ---------------------------------------- Page Break ---------------------------------------- 33 well as the specific discussion of that regulation in the legislative history of the 1978 amendments, the reference in the new Section 7(o) to "regulations promulgated pursuant to [section 9(a)]" plainly encompasses the "harm" regulation. 20. Yet far from disapproving that regulation or the interpre- tation of "harm" it embodied, Congress instead carved out only a narrow exception to the "take" prohibition and its implementing regulations and otherwise left those regul- ations in place. 5. Following the 1978 amendments to the Act, the Secretary revised the "harm" regulation in 1981 to clarify that it applies only to significant habitat modification or degradation that actually kills or injures a species. See page ___________________(footnotes) 20 During floor consideration of the bill, the House, by a roll-call vote of 231-157, adopted an amendment that would have entirely exempted the Tellico Dam Project from the Act and also would have provided that any "harassment, harm, killing or wounding" of any endangered or threatened species attributable to the construction or operation of the project would not be considered to be a taking under Section 9(a)(1). 124 Cong. Rec. 38,148 (1978); see id. at 38,150-38,151. The Senate bill did not contain such a provision. The Conference Committee adopted and Congress enacted a compromise that called for expedited consideration of the Tellico Dam Project under the special exemption provisions added to Section 7. See Pub. L. No. 95-632, 5, 92 Stat. 3761 (codified at 16 U.S.C. 1539(i)(1) (Supp. III 1979)); the Endangered Species Committee subsequently declined to grant an exemption, see Congressional Research Service, Senate Comm. on Environment and Public Works, 97th Cong., 2d Sess., A Legislative History of the Endangered Species Act of 1973, as amended, at Part V, pp. 1235-1236 (Comm. Print 1982). Congress thereafter directed TVA to complete construction and operation of the Tellico Dam and Reservoir, "notwithstanding the provision of 16 U.S.C. chapter 35 [the ESA], or any other law." Pub. L. No. 96-69, Tit. IV, 93 Stat. 449. H.R. Conf. Rep. No. 1804, 95th Cong., 2d Sess. 24-25 (1978). The special provision in the ESA for expedited consideration of the Project was then repealed (and replaced by another provision in 16 U.S.C. 1539(i) that is of no relevance here) by Section 6(5) of the Endangered Species Act Amendments of 1982, Pub. L. No. 97-304,96 Stat. 1424. ---------------------------------------- Page Break ---------------------------------------- 34 6, supra. Congress then amended the Act once again in the Endangered Species Act Amendments of 1982, Pub. L. No. 97- 304,96 Stat. 1411. In a number of respects, those amendments further reinforce the validity of the "harm" regulation. a. Of particular relevance to this case, Congress affirm- atively acted in 1982 to lessen the restriction imposed by Section 9's take prohibition by authorizing the Secretary to issue permits under Section 10 to allow a taking that is "incidental to, and not the purpose of, the carrying out of an otherwise lawful activity." 16 U.S.C. 1539(a)(1)(B) (as added by Pub. L. No. 97-304, 6, 96 Stat. 1422). The background and text of that provision show that Congress, like the Secretary, understood Section 9 to prohibit actions that cause a "take" through habitat modification. The House Report made clear that "by use of the word 'incidental' the Committee intend[ed] to cover situations in which it is known that a taking will occur if the other activity is engaged in hut such taking is incidental to, and not the purpose of, the activity." H.R. Rep. No. 567, 97th Cong., 2d Sess. 31 (1982), Thus, "incidental" was not intended to cover simply inadvertent takings of a listed species that might occur in conjunction with, e.g., the trapping or hunting of a nonlisted species. Rather, it was intended to include takings that are known ahead of time to be a consequence of an otherwise lawful activity-precisely the situation that arises when there are incidental takings through land development or other types of habitat modification or degradation. The applicability of the incidental take permit process to habitat modification is also reflected in the text of Section 10 that describes the "conservation plan" that must be prepared by an applicant. See 16 U.S.C. 1539(a)(2). In the conservation plan, the applicant must specify, inter alia, the "impact" that is likely to result, from the taking and what steps the applicant will carry out to "minimize and mitigate" such impacts. 16 U.S.C. 1539(a)(2)(A)(i) and (ii); see also 16 U.S.C. 1539(a)(2) ---------------------------------------- Page Break ---------------------------------------- 35 (B)(i) and (ii). The focus on minimization and mitigation demonstrates that Congress was concerned not merely with inadvertent takings that might occur during hunting or trapping, but also with those having varying degrees of impact that could be determined ahead of time and controlled-that is, actions such as habitat modification that can often be tailored in their scope, timing, or location. Thus, based on the statutory text that Congress enacted in 1982 to add flexibility to Section 9's take prohibition, it is all the more reasonable for the Secretary to interpret the category of permitted "takes''-those that are merely "incidental" to otherwise lawful activity-to encompass habitat modification or degrad- ation that actually kills or injures protected wildlife. Congress's enactment of a detailed mechanism for permitting such activities under specified conditions weighs against a construction of the prohibition that would not bar those activities in the first place. The legislative history shows, moreover, that Congress had incidental takes through habitat modification specifically in mind when it created the Section 10 incidental take program. The permit process was described in the Senate Report as being modeled after the response to a specific situation in San Mateo County, ("California, in which the "taking" of endanger- ed butterflies was incidental to "the development of some 3000 dwelling units" on a site inhabited by the species-i.e., was incidental to habitat modification. S. Rep. No. 418, 97th Cong., 2d Sess. 10 (1982). 21. The Conference Report similarly ___________________(footnotes) 21 The cited development is described further in Friends of Endangered Species, Inc. v. Jantzen, 760 F.2d 976 (9th Cir. 1985); Endangered Species Act: Hearings Before the Subcomm. on Fisheries and Wildlife Conservation and the Environment of the House Comm. on Merchant Marine and Fisheries, 97th Cong., 2d Sess. 331-335 (1982) [1982 House Hearings]. Not surprisingly, that housing development project received the frost Section 10 incidental take permit issued by the FWS. See generally Timothy Beatley, Habitat Conservation Planning 23-24, 54-68 (Univ. of Texas Press 1994). ---------------------------------------- Page Break ---------------------------------------- 36 discussed the San Mateo project in detail, noting that large portions of the butterflies' habitat was privately owned, that the County had conducted an exhaustive study of the location of the butterflies and "their food plants," and that the conservation plan developed through governmental and private efforts "preserves sufficient habitat to allow for enhancement of the survival of the species." See H.R. Conf. Rep. No. 835, 97th Cong., 2d Sess. 30-32 (1982).22 ___________________(footnotes) 22 In discussing the significance of the 1982 amendments, the court of appeals suggested (Pet App. 11a) that the "key example" of the sort of problem Congress had in mind when it enacted Section 10 was the incidental take caused by a water intake associated with a proposed nuclear power plant. See 1982 House Hearings at 358; Endangered Species Act Amendments of 1982: Hearings Before the Subcomm. on Environmental Pollution of the Senate Comm. on Environment and Public Works, 97th Cong., 2d Sess, (1982) 299-303 [1982 Senate Hearings]. The nuclear power plant would have resulted in a taking because it would have caused the "entrainment or impingement" of Shortnose Sturgeon eggs, larvae or adults. 1982 House Hearings at 358. The court of appeals suggested that such a taking is not the result of "habitat modification" and that the conservation plan required by Section 10(a) made the most sense for this type of incidental "take." Pet. App. 12a. Both suggestions are faulty. First, construction and operation of a water intake structure is appropriately characterized as "habitat modification" within the meaning of 50 C.F.R. 17.3. See, e g., United States v. Glenn- Colusa Irrigation Dist., 788 F. Supp. 1126, 1133 (E.D. Cal. 1992) (water district's pumping "harms" fish within the meaning of 50 C.F.R. 17.3 by creating water velocity that causes salmon to be pinned or battered against screens or by diverting fish into channels full of predators). Second, there is no foundation for the court of appeals' suggestion that the nuclear power plant example played the primary instigating role in Congress's authorization of incidental take permits. As explained in the text, the congressional reports and hearings demonstrate that Congress had takes by habitat modification primarily in mind. Moreover, Section 10 applies only to non-federal projects. The proposed nuclear power plant, however, required a federal permit and thus had to meet the Section 7(a)(2) "jeopardy" and "critical habitat" restrictions. Northeast Utilities sought an amendment to the ESA because its project would have remained subject to ---------------------------------------- Page Break ---------------------------------------- 37 Also, in the hearings that preceded enactment of the 1982 amendments, objections to the regulatory definition of "harm" were once again voiced. 23. Similarly, the Ninth Circuit's decision in Palila v. Hawaii Dep't of Land & Natural Resources, 639 F.2d 495 (1981) (Palila I), finding a prohibited taking based on "harm" caused by habitat modification, was before Congress during its consideration of the 1982 amendments. 1982 House Hearings at 273, 291, 331. It therefore is not surprising that the Senate Report specifically noted that "section 9 * * * prohibits the taking of any endangered fish or wildlife, including harm which may occur as a result of habitat modification ." S. Rep. No. 418, supra, at 26 (emphasis added); 24 see also H.R. Rep. No. 567, ___________________(footnotes) the take prohibition in Section 9 even if it had complied with Section 7(a)(2). 1982 House Hearings at 358-360; 1982 Senate Hearings at 297-309. Northeast proffered its illustration to support its proposal that the ESA be amended to provide that a project be immunized from Section 9 whenever the Secretary issues a "no jeopardy" opinion in connection with Section 7 consultation on a project-a problem separately addressed by Congress's enactment of Section 7(b)(4) and (o)(2), discussed at pages 38-39, infra. Northeast explicitly suggested, however, that "where no Section 7 consultation has been obtained because there is no federal involvement in the activity, Section 9 would remain fully operative." 1982 House Hearings at 360. 23 See 1982 House Hearings at 240, 262, 273, 328-329, 331, 343; see also 1982 Senate Hearings at 320-321. 24 The passage in the Senate Report quoted in the text was part of the discussion of an amendment to Section 9(a)(2) (now codified, as later amended, at 16 U.S.C. 1538(a)(2)(B)), that makes it unlawful to remove and reduce to possession endangered species of plants on federal lands. See Pub. L. No. 97-304, 9(b)(i), 96 Stat. 1426. The Report explained that although Section 9 "prohibits the taking of endangered species of fish or wildlife," it "does not * * * prohibit the taking of endangered plants," and that, as a result, "harm to species of plants" that "may occur as a result of "habitat modification" would not be within the scope of the new prohibition against removal of plants from federal lands. S. Rep. No. 418, supra, at 26. ---------------------------------------- Page Break ---------------------------------------- 38 supra, at 15 (incidental take permit provisions will respond to "situations where the unintentional taking may occur on private lands owned by a developer" and assist "private land owners" who present a "conservation plan"); id. at 31 (amendment to Section 10 addresses concerns of "private landowners"). b. Congress also amended Section 7 of the Act in 1982 to provide for the Secretary to issue an incidental take statement as part of the biological opinion that he prepares at the conclusion of the formal consultation process under Section 7(a)(2). See 16 U.S.C. 1536(b)(4). The terminology of that provision directly parallels that of the incidental take permit provision added to Section 10, discussed above, and for that reason it likewise confirms that incidental takes include those brought about by habitat modification or degradation of the sort described in the "harm" regulation. In addition, Congress enacted a new Section 7(o)(2) of the Act to provide that "[n]otwithstanding sections 4(d) and 9(a)(1)(B) and (C) or any regulation promulgated to implement either such section ," any "taking that is in compliance with the terms and conditions specified in a written [incidental take] statement provided under subsection (b)(4) (iii) [of Section 7] shall not be considered to be a taking of the species concerned." Pub. L. No. 97-304, 4(a)(7), 96 Stat. 1420 (emphasis added) (codified at 16 U.S.C. 1536 (o) (2) (1982). 25. By virtue of the emphasized ___________________(footnotes) Thus, Congress once again tailored the Act with specific reference to the "harm" regulation. 25 See H.R. Rep. No. 567, supra, at 26-27. The same provision of the 1982 amendments also reenacted (as Section 7(0 )(1) of the ESA) the exception from the take prohibition in Section 9(a) and implementing regulations for activities that are covered by an exemption granted under Section 7(h) of the Act. See 16 U.S.C. 1536(o)(1). In 1986, subsection (b)(4) of Section 7 was amended to move the reference to the terms and conditions in the incidental take statement from subsection (b)(4) (iii) to a new subsection (b)(4)(iv) (where they now appear), and ---------------------------------------- Page Break ---------------------------------------- 39 language, Congress once again specifically recognized in the text of the Act itself the "regulation[s]" promulgated to "implement," inter alia, the prohibition in Section 9(a)(1)(B) against the taking of protected species. 26. In light of the ___________________(footnotes) subsection (b)(4)(iii) was revised to provide for the incidental take statement to specify, in the case of marine mammals, the measures necessary to comply with Section 101(a)(5) of the Marine Mammal Protection Act (16 U.S.C. 1371(a)(5)) with regard to such taking. Pub. L. No. 99-659, 411(b)(4)-(6), 100 Stat. 3742 (codified at 16 U.S.C. 1536(b)(4)(iii) and (iv)). Corresponding amendments were made in 1986 to Section 7(o). These amendments consisted of the addition of Sections 101 and 102 of the MMPA (16 U.S.C. 1371 and 1372) to the "notwithstanding" clause at the beginning of Section 7(o); the substitution of subsection (b)(iv) for subsection (b)(iii) in Section 7(o)(2); and the insertion of the word "prohibited" before "taking" in Section 7(o)(2). See Pub. L. No. 99-659, 411(c), 100 Stat. 3742. These amendments are reflected in the 1988 codification of Section 7(o)(2). See 16 U.S.C. 1536(o)(2); see also 132 Cong. Rec. 31,294-31,295, 32,185 (1986) (describing 1986 amendments to ESA). 26 There is yet another feature of the 1982 amendments (involving "experimental populations") that is premised upon and accommodates the "harm" regulation's inclusion of certain habitat modifications within the statutory take prohibition. The Senate Report explained that the Secretary already had the authority to establish "experimental populations" to aid recovery of a species, such as by reestablishment in the wild of captive-bred animals. The Report continued: "Other Federal agencies, State officials and private individuals, however, are reluctant to allow experimental or new populations of endangered species to be established on their land for fear that the section 7 jeopardy standard, critical habitat designation, and the section 9 taking prohibitions will be applied to limit their land management options." S. Rep. No. 418, supra, at 3 (emphasis added). Congress's response was not to repeal the application of Section 9 to all "land management" activities, which is the result the court of appeals reached. Instead, Congress established a special mechanism in a new Section 10(j) to add still further flexibility to the take prohibition in the particular context of experimental populations. See id. at 3-4, 7-9; Pub. L. No. 94-307, 6(6), 96 Stat. 1424 (codified at 16 U.S.C. 1539(j)). Congress provided, inter alia, for experimental populations of endangered species to be treated as threatened species, see 16 U.S.C. 1539(j)(2)(C), which has the effect of ---------------------------------------- Page Break ---------------------------------------- 40 prominence during congressional consideration of the 1982 amendments of the "harm" regulation and the taking of species caused by habitat modification, Section 7(o)(2)- together with the provisions elsewhere in Section 7 and in Section 10 for allowing such incidental takings in particular circumstances-must be regarded as a congressional ratifi- cation of the interpretation of "harm" embodied in the Secretary's regulation. C. The Court of Appeals' Reasons for Rejecting the Secretary's Reasonable Interpretation of "Harm" Are Without Merit We have explained in Points A and B that the interpretation of "harm" set forth in 50 C.F.R. 17.3 is affirmatively supported by the text and structure of the ESA, its legislative history, this Court's decision in TVA v. Hill, and the subsequent amendments to the Act in 1978 and 1982. The court of appeals failed to appreciate the strength of each of those con- siderations, and we have already answered its efforts to minimize them in the course of our discussion above. The court of appeals advanced several additional objections to the Secretary's interpretation, based on the overlap it believed the Secretary's interpretation would create between Sections 7 and 9 of the Act and the potential breadth it ascribed to that interpretation. Those remaining objections are without merit. ___________________(footnotes) removing such populations from the automatic coverage of the take prohibition in Section 9(a)(1)(B) itself and instead subjecting the application of that prohibition to experimental populations to the discretion of the Secretary under Section 4(d), 16 U.S.C. 1533(d). The experimental populations of gray wolves that were recently introduced into central Idaho and into Yellowstone National Park in Montana (and that are endangered in those areas) are covered by that special provision. See 50 Fed. Reg. 60, 252 (1994). ---------------------------------------- Page Break ---------------------------------------- 41 1. Contrary to the court of appeals' interpretation, the Secretary's interpretation of "harm" for purposes of the Section 9 prohibition against the taking of listed species does not impose on private parties the equivalent of federal agencies' Section 7 obligation to avoid destruction or adverse modification of critical habitat. The Secretary's "harm" regulation prohibits only habitat modification that causes actual death or injury, and does not prohibit habitat degradation that merely retards recovery. See Palila II, 852 F.2d at 1108-1110. The court of appeals incorrectly suggested (Pet. App. 92a- 93a) that because "critical habitat" is defined as areas "essential to the conservation of the species," any alteration or use of land designated as "critical habitat" necessarily will result in prohibited "harm" to the species. That is not true. The obligations on federal agencies arising from Section 7 are more extensive than those imposed on such agencies and other persons by Section 9. An action may result in the destruction or adverse modification of critical habitat, and yet not result in a taking of an endangered species because it does not "actually kill or injure wildlife." For example, where there is an area designated as critical habitat for a species but not currently inhabited by the species, 27. a federal agency may be prevented by Section 7 from authorizing or carrying out action in the area, such as the harvesting of trees that, if allowed to stand, would likely attain the attributes of suitable ___________________(footnotes) 27 As explained above, see note 5, supra, critical habitat includes areas that are not occupied by the species, but are nonetheless "essential to the conservation of the species," 16 U.S.C. 1532(5). Conservation means the use of all methods necessary to recover the species so that it may be removed from the lists of species protected by the ESA. 16 U.S.C. 1532(3). Critical habitat for many species therefore includes areas the protection of which is crucial to the species' recovery but not to its bare survival. ---------------------------------------- Page Break ---------------------------------------- 42 habitat for the species. Harvest of a similar area would not, however, be prevented by the Section 9 "take" prohibition. 28 At the same time, the Section 9 "take" prohibition may restrict conduct that would not violate Section 7. A particular action may cause a taking of individual members of a listed species, but not adversely affect the species as a whole to such an extent that it violates the "jeopardy" prohibition or critical habitat restrictions in Section 7(a)(2). For example, interference with the spawning of particular fish would constitute prohibited "harm" to those fish because of its interference with their breeding, but its transitory nature and spatially circumscribed effect would likely prevent it from triggering a determination of "jeopardy" to the species or "adverse modification" of its critical habitat. Also, modification of habitat that actually kills or injures wildlife (and therefore constitutes a prohibited "take"), but is not within critical habitat designated under Section 4,29 does not ___________________(footnotes) 28 Part of the reason for the court's erroneous analysis was its apparent misinterpretation of critical habitat as "simply another way of referring to habitat modifications so significant to the species that they might lead to death (or at least some very serious injury) for members of the species." See Pet. App. 92a. As noted above (see notes 5 and 27 supra), however, in appropriate cases, unoccupied potential habitat may be designated as critical for a listed species in order to provide for "natural range expansion into adjacent suitable habitat." 49 Fed. Reg. 38,904 (1984). Indeed, designation of critical habitat is most likely to furnish meaningful additional protections for listed species when federal actions are likely to take place that will impact upon suitable, but unoccupied, habitat. 29 Under Section 4 of the ESA, the Secretary's decision whether to designate critical habitat for a species is not solely a biological judgment. The Secretary is also required to consider and weigh "the economic impact, and any other relevant impact," of such a designation. 16 U.S.C. 1533(b)(2). Moreover, the Secretary "may exclude any area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless he determines based on the best scientific and commercial data available, that the failure ---------------------------------------- Page Break ---------------------------------------- 43 violate Section 7 unless it rises to the level of jeopardizing the continued existence of the listed species. Thus, Sections 9 and 7 are not rendered coextensive by the "harm" regulation. They do overlap to some degree, however, as do many provisions of the ESA. Indeed, it is by design that various sections of the ESA provide for protection of endangered and threatened species through a variety of measures. For example, within Section 7(a)(2) itself, the determination whether a federal action is "likely to jeopardize the continued existence" of a listed species may overlap with the determination whether the action is likely to "result in the destruction or adverse modification" of habitat designated by the Secretary as "critical." 16 U.S.C. 1536(a)(2). In a similar vein, the fact that an action that would "jeopardize the continued existence" of a listed species or "destroy or adversely modify" its critical habitat in contravention of Section 7 may also result in a taking of the species in violation of Section 9 does not render either Section superfluous. Nor does any such overlap indicate that the Secretary's inter- pretation of "harm" is unreasonable. ___________________(footnotes) to designate such area as critical habitat will result in the extinction of the species concerned." 16 U.S.C. 1533(b)(2). Designation of critical habitat is authorized only "to the maximum extent prudent." 16 U.S.C. 1533(b)(6)(C)(ii). By regulation, "[a] designation of critical habitat is not prudent when one Or both of the following situations exist: (i) The species is threatened by taking or other human activity, and identification of critical habitat can be expected to increase the degree of such threat to the species, or (ii) Such designation of critical habitat would not be beneficial to the species." 50 C.F.R. 424.12(a)(1)(i) and (ii) (emphasis added). The factors to be considered in individual cases include whether "designation of critical habitat may generate public antagonism that could lead to vandalism" of habitat, and whether there would a "net benefit to the conservation of the species and their habitats." 49 Fed. Reg. 38,903 (1984). ---------------------------------------- Page Break ---------------------------------------- 44 It is significant in this regard that both Section 7 and Section 9 apply to federal agencies. 30. As we have explained above (see pages 32, 38, supra), Congress addressed their interaction and provided for their accommodation in Section 7(b) and (o) of the Act, specifically recognizing that authorization or exemption of a project under Section 7 does not exempt it from the taking prohibition in Section 9. 31. The court of appeals therefore erred in relying on the existence of critical habitat restrictions in Section 7, which do not even apply to private persons (except when such persons apply for a federal permit or license), as a reason for also construing Section 9 not to apply to habitat modification or degradation by private parties-even when it actually kills or injures protected wildlife. 2. Far from applying the proper standard for determining whether a regulation is invalid on its face (i.e., whether there are any circumstances under which the regulation would be valid), the court of appeals took the opposite approach-it invalidated the "harm" regulation on the basis of imagined applications that were not before it. That analytical error manifested itself in a number of ways. ___________________(footnotes) 30 The "take" prohibition in Section 9(a)(l)(B) applies to "any person," 16 U.S.C. 1538(a)(1)(B), and "person" is defined to include any "department, or instrumentality of the Federal Government." 16 U.S.C. 1532(13). 31 Section 7(o) confirms Congress' awareness that a Section 9 "take" may occur even though the action does not violate Section 7(a)(2). Thus, Section 7(o)(2) provides that any taking that is in compliance with the terms and conditions of an "incidental take" statement (see 16 U.S.C. 1536 (b)(4) (iv); page 38, supra) shall not be considered a prohibited take, and Section 7(o)(1) provides that any action granted an exemption under Section 7(h) shall not be considered a "taking" of listed species. See H.R. Rep. No. 1625, Supra, at 25) (Section 7(o)(1) was included "in recognition of the fact that even though a project might be exempted from the requirements of section 7, section 9 of the act would still prohibit the `taking' of any endangered animal species"). ---------------------------------------- Page Break ---------------------------------------- 45 a. The court of appeals failed to take into account the fact that the requirement of showing "actual death or injury" directly traceable to habitat-disturbing actions imposes significant limitations on the regulation's application. When the Secretary revised the "harm" regulation in 1981, he emphasized the circumscribed reach of its second sentence. He explained that the additional language makes it clear that habitat modifi- cation or degradation, standing alone, is not a taking pursuant to section 9. To be subject to section 9, the modification or degradation must be significant, must significantly impair essential behavioral patterns, and must result in actual injury to a protected wildlife species. The word "impair" was substituted for "disrupt" to limit harm to situations where a behavioral pattern was adversely affected and not simply disturbed on a temporary basis with no consequent injury to the protected species. 46 Fed. Reg. 54,750 (1981) (J.A. 72). The court of appeals also overlooked the cases in which courts have applied the regulation in an appropriate manner. 32. The courts that have found violations of the regulation have recognized that it applies only where actual injury or death directly traceable to the actions of the defendant has occurred or will occur. See, e.g., Palila I, 639 F.2d at 498; Palila II, 852 F.2d at 1108-1110: Sierra Club v. Yeutter, 926 F.2d 429 (5th Cir. 1991) (enjoining Forest Service from even-aged lumber practices following documentation of dramatic decline in red- cockaded woodpecker colonies found traceable to lumbering ___________________(footnotes) 32 The fact that other courts of appeals have upheld particular applications of the challenged regulation should weigh heavily in favor of upholding its facial validity See National Treasury Employees Union (NTEU) v. Bush, 891 F.2d 99.101 (5th Cir. 1989). ---------------------------------------- Page Break ---------------------------------------- 46 practices); United States v. Glenn-Colusa Irrigation Dist., 788 F. Supp. 1126, 1133 (E.D. Cal. 1992) (water district's pumping creates water velocity that causes salmon to be pinned or battered against screens or diverts fish into channels full of predators). By the same token, courts have correctly interpreted the "harm" prohibition not to extend to activity that only potentially, as opposed to actually, causes (or will cause) harm. American Bald Eagle v. Bhatti, 9 F.3d 163, 166 (1st Cir. 1993) ("courts have granted injunctive relief only where petitioners have shown that the alleged activity has actually harmed the species or if continued will actually, as opposed to potentially, cause harm to the species"); see also National Wildlife Fed'n v. Burlington N. R.R., 23 F.3d 1508, 1511-1513 (9th Cir. 1994) (corn spill was localized in nature and did not constitute significant habitat modification or cause signif- - icant impact to grizzly hears); Pyramid Lake Paiute Tribe of Indians v. United States Dep't of Navy, 898 F.2d 1410, 1420 (9th Cir. 1990) (evidence does not establish that diversion of water actually caused spawning problems); National Wildlife Fed'n v. National Park Serv., 669 F. Supp. 384 (D. Wyo. 1987) (insufficient evidence of injury from plan designed to reduce conflicts between humans and grizzly bears); Morrill v. Lujan, 802 F. Supp. 424, 430-433 (S.D. Ala. 1992) (insufficient evidence that destruction of habitat would cause injury to mouse). b. The court of appeals also suggested that the interpretation of " harm" in the regulation is overly broad because it is directed at harm flowing from the withholding of a benefit, rather than physical intrusions that wound an individual member of an endangered species. Pet. App. 3a-4a. The panel majority's statement upon denial of rehearing en bane reiterated that view and pointed to the commentary accompanying the promulgation of the "harm" regulation, which stated that, an "act," is inclusive of either commissions ---------------------------------------- Page Break ---------------------------------------- 47 or "omissions" that would be prohibited by Section 9. Pet. App. 91a; 46 Fed. Reg. 54,750 (1981) (J.A. 72). An "omission" constitutes an "act" prohibited by Section 9, however, only if there is a legal duty to act and the failure to discharge that duty causes significant habitat modification or degradation that in turn leads to death or injury to protected wildlife. 33. Such an omission might arise, for example, from a duty to maintain a licensed dam structure. A maintenance omission causing a dam breach could significantly destroy habitat and cause death or injury to a listed species as a result. The commentary cited by the majority below does not encompass passive acts of nonfeasance or create a duty (where none otherwise would exist) to maintain a listed species' habitat. c. The court of appeals expressed the view that the "harm" regulation reflects an improbable relation to congressional intent because it might, forbid any modification of an area between 35 and 42 million acres in size, which "some scientists" believed was necessary to the survival of the threatened grizzly bear-even though the court acknowledged that such broad coverage represented the views of an "adherent of aggressive protection. " Pet. App. 6a. 34. By ___________________(footnotes) 33 Cf. United States v. FMC Corp., 572 F.2d 902, 906-907 (2d Cir. 1978) (rejecting defendants' contention that liability for a "take" under the Migratory Bird Treaty Act cannot be imposed for failure to act to prevent a chemical from escaping into a pond and killing birds); Morissette v. United States, 342 U.S. 246, 255 (1952) (public welfare offenses may encompass inaction where the law imposes a duty). 34 In its statement upon denial of rehearing en bane, the panel majority expressed the view that if millions of acres are necessary to the survival of grizzly bears, then any material curtailment necessarily would involve death for members of' the species. Pet. App. 91a. The majority also stated, however, that it did not endorse the specific claim of what acreage might actually be necessary for the grizzlies. Id. at 91a n. 1. That qualification is significant, because it is unrealistic to assume that a prohibited taking could be found with respect to any and all habitat modification activities based on such evidence ---------------------------------------- Page Break ---------------------------------------- 48 focusing only on extreme examples and the potential for unreasonably broad application of the regulation to specific species, the court of appeals failed to heed the limited nature of review accorded in a facial challenge. The panel majority also cited the Special Rule Concerning Take of the Threatened Coastal California Gnatcatcher, published at 58 Fed Reg. 65,088 (1993), as evidence that the "harm" regulation entails the Secretary's exercise of power over large tracts of land. Pet. App. 94a-95a. That reliance was misplaced, however, because the cited reference (58 Fed. Reg. 65,090 (1993)) is to a state planning process that encompasses 3.8 million acres. That area does not equate to gnatcatcher habitat, nor does the reference mean, as the panel majority suggested (Pet. App. 94a-95a), that the "take" prohibition would apply to all habitat modification activities within that area. FWS's issuance by special rule of an incidental take authorization for the gnatcatcher was largely the result of special circumstances in California whereby state law, the Natural Community Conservation Planning Act (NCCP), Cal. Fish & Game Code 2800-2840 (West 1995), provides for a regional planning program for establishing systematic evaluation and restoration of the State's native habitats. The ___________________(footnotes) The inherent exaggeration of the regulation's impact based on that illustration is also reflected in the fact that the referenced 35 to 42 million- acre figure includes grizzly bear habitat in Canada. Rocky Barker, Saving All The Parts: Reconciling Economics and the Endangered Species Act 34- 35 (Island Press 1993). And much of the habitat in the continental United States is federal, not private, land. Id. at 41. For example, only one percent of the land in the Greater Yellowstone Ecosystem, the largest bear habitat area in the continental United States, is private land. Ibid. Furthermore, the court of appeals failed to note that the cited source noted that grizzly bear numbers have continued to rise despite the shrinking of their habitat. id. at 32. The author expressed concern, however, that the population increase will cause management complacency and that not enough is being done to ensure long-term survival. Ibid. ---------------------------------------- Page Break ---------------------------------------- 49 purpose of the NCCP program is to provide for regional protection and perpetuation of natural wildlife diversity (not limited to species listed under the ESA), while allowing compatible land use and appropriate development and growth. Because the state plan incorporates criteria that meet ESA incidental take permit standards (see 16 U.S.C. 1539(a)(2)), FWS, by its special rule, issued a blanket incidental take authorization for projects that comply with the criteria in the state plan. Thus, FWS's special rule effectively eliminates duplication of state, local and federal efforts and serves to reduce, rather than extend, federal involvement over the land included in the state planning process. The majority's erroneous characterization of the import of the gnatcatcher plan also reflected a misunderstanding of con- servation plan requirements under Section 10 of the ESA. Specifically, its concern about the breadth of the "harm" regulation failed to appreciate that Congress's creation of the Section 10 permit program adds flexibility to the "take" prohibition by enabling private owners' land uses to be accommodated in a way that protects listed species. By altogether removing private habitat modification and degradation that kills or injures protected wildlife from the reach of Section 9, the court of appeals' interpretation would upset the careful balance intended by Congress among the many competing interests of private landowners, govern- mental entities, and the purposes of the ESA. 3. In sum, the court of appeals erred when it invalidated the Secretary's interpretation of the statutory term "harm" based on an extravagant reading and speculative applications of the regulation. It thereby failed to respect both the limitations imposed by the Secretary's interpretation of his own regulation and the nature of a facial challenge to a regulation. Moreover, the Secretary's interpretation, unlike that of the court of appeals, furthers the object of the Act as a whole. The ESA is intended to be a powerful yet workable law ---------------------------------------- Page Break ---------------------------------------- 50 that accords substantial protection to listed species. Congress was aware that the greatest threat to listed species is the destruction of' their natural habitat, see TVA v. Hill, 437 U.S. at 179, and the purposes of the Act include providing a means whereby the ecosystems upon which endangered and threatened species depend may be conserved. 16 U.S.C. 1531(b). The "harm" regulation furthers that purpose by interpreting the Act to bar significant habitat modification or degradation that actually kills or injures protected wildlife. Furthermore, the Secretary's interpretation of "harm" dovetails with Congress's decision to temper the impact of the "take" prohibition on private land uses by enacting the 1982 amendments to allow the issuance of an incidental take permit in circumstances in which an acceptable habitat conservation plan has been prepared. The Section 10(a) process has resulted in the submission of more than 100 conservation plans and the approval of more than 30. See U.S. General Accounting Office, Endangered Species Act: Information on Species Protection on Nonfederal Lands at 9 (Dec. 1994). The first (and prototype) conservation plan was the plan, extensively discussed in the committee reports on the 1982 amendments, that was fashioned to protect listed butterflies in the context of habitat modification resulting from a housing development in California. See pages 35-36, supra; see also Pet. 23-25; note 4, supra. The interpretation of "take" and "harm" adopted by the court of appeals would substantially undermine such balanced and cooperative efforts to protect species while at the same time providing for development and productive land use. ---------------------------------------- Page Break ---------------------------------------- 51 CONCLUSION The judgment of the court of appeals should be reversed. Respectfully submitted. DREW S. DAYS, III Solicitor General LOIS J. SCHIFFER Assistant Attorney General EDWIN S. KNEEDLER Deputy Solicitor General BETH S. BRINKMANN Assistant to the Solicitor General MARTIN W. MATZEN ELLEN J. DURKEE JEAN E. WILLIAMS Attorneys FEBRUARY 1995 ---------------------------------------- Page Break ---------------------------------------- APPENDIX The Endangered Species Act of 1973, as amended and codified at 16 U.S.C. 1531 et seq., provides in rele- vant part: 1531. Congressional findings and declaration of purposes and policy (a) Findings The Congress finds and declares that- (1) various species of fish, wildlife, and plants in the United States have been rendered extinct as a consequence of economic growth and development untempered by adequate concern and conserv- ation; (2) other species of fish, wildlife, and plants have been so depleted in numbers that they are in danger of or threatened with extinction; (3) these species of fish, wildlife, and plants are of esthetic [sic], ecological, educational, histori- cal, recreational, and scientific value to the Nation and its people; (4) the United States has pledged itself as a sovereign state in the international community to conserve to the extent practicable the various species of fish or wildlife and plants facing extinction, pursuant to- (1a) ---------------------------------------- Page Break ---------------------------------------- 2a (A) migratory bird treaties with Canada and Mexico; (B) the Migratory and Endangered Bird Treaty with Japan; (C) the Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere: (D) the International Convention for the Northwest Atlantic Fisheries; (E) the International Convention for the High Seas Fisheries of the North Pacific Ocean; (F) the Convention on International Trade in Endangered Species of Wild Fauna and Flora; and (G) other international agreements; and (5) encouraging the States and other interested parties, through Federal financial assistance and a system of incentives, to develop and maintain conservation programs which meet national and international standards is a key to meeting the Nation's international commitments and to better safeguarding, for the benefit of all citizens, the Nation's heritage in fish, wildlife, and plants. (b) Purposes The purposes of this chapter are to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be con- served, to provide a program for the conservation of ---------------------------------------- Page Break ---------------------------------------- 3a such endangered species and threatened species, and to take such steps as may be appropriate to achieve the purposes of the treaties and conventions set forth in subsection (a) of this section. (c) Policy (1) It is further declared to be the policy of Congress that all Federal departments and agencies shall seek to conserve endangered species and threatened species and shall utilize their authorities in furtherance of the purposes of this chapter. (2) It is further declared to be the policy of Congress that Federal agencies shall cooperate with State and local agencies to resolve water resource issues in concert with conservation of endangered species. * * * * * 1533. Determination of endangered species and threatened species (a) Generally (1) The Secretary shall by regulation promulgated in accordance with subsection (b) of this section determine whether any species is an endangered species or a threatened species because of any of the following factors: (A) the present or threatened destruction, modification, or curtailment of its habitat or range: (B) overutilization for commercial, recrea- tional, scientific, or educational purposes; (C) disease or predation; ---------------------------------------- Page Break ---------------------------------------- 4a (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. * * * * * (3) The Secretary, by regulation promulgated in accordance with subsection (b) of this section and to the maximum extent prudent and determinable- (A) shall, concurrently with making a determination under paragraph (1) that a species is an endangered species or a threatened species, designate any habitat of such species which is then considered to be critical habitat; and (B) may, from time-to-time thereafter as appro- priate, revise such designation. (b) Basis for determinations (1)(A) The Secretary shall make determinations required by subsection (a) (1) of this section solely on the basis of the best scientific and commercial data available to him after conducting a review of the status of the species and after taking into account those efforts, if any, being made by any State or foreign nation, or any political subdivision of a State or foreign nation, to protect such species, whether by predator control, protection of habitat and food supply, or other conservation practices, within any area under its jurisdiction, or on the high seas. (B) In carrying out this section, the Secretary shall give consideration to species which have been- ---------------------------------------- Page Break ---------------------------------------- 5a (i) designated as requiring protection from un- restricted commerce by any foreign nation, or pursuant to any international agreement; or (ii) identified as in danger of extinction, or likely to become so within the foreseeable future, by any State agency or by any agency of a foreign nation that is responsible for the conservation of fish or wildlife or plants. (2) The Secretary shall designate critical habitat, and make revisions thereto, under subsection (a) (3) of this section on the basis of the best scientific data available and after taking into consideration the economic impact, and any other relevant impact, of specifying any particular area as critical habitat. The Secretary may exclude any area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless he determines, based on the best scientific and commercial data available, that the failure to designate such area as critical habitat will result in the extinction of the species concerned. * * * * * (d) Protective regulations Whenever any species is listed as a threatened species pursuant to subsection (c) of this section, the Secretary shall issue such regulations as he deems necessary and advisable to provide for the conservation of such 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, or section 1538(a) (2) of this title, in the case of plants, with respect to endangered species; except that with respect to the taking of resident species of fish or ---------------------------------------- Page Break ---------------------------------------- 6a wildlife, such regulations shall apply in any State which has entered into a cooperative agreement pursuant to section 1535(c) of this title only to the extent that such regulations have also been adopted by such State. * * * * * 1536. Interagency cooperation (a) Federal agency actions and consultations (1) The Secretary shall review other programs administered by him and utilize such programs in furtherance of the purposes of this chapter. All other Federal agencies shall, in consultation with and with the assistance of the Secretary, utilize their authorities in furtherance of the purposes of this chapter by carrying out programs for the con- servation of endangered species and threatened species listed pursuant to section 1533 of this title. (2) Each Federal agency shall, in consultation with and with the assistance of the Secretary, insure that any action authorized, funded, or carried out by such agency (hereinafter in this section referred to as an "agency action") is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species which is determined by the Secretary, after consultation as appropriate with affected States, to be critical, unless such agency has been granted an exemption for such action by the Committee pursuant to subsection (h) of this section. In fulfilling the requirements of this paragraph each agency shall use the best scientific and commercial data available. ---------------------------------------- Page Break ---------------------------------------- 7a (3) Subject to such guidelines as the Secretary may establish, a Federal agency shall consult with the Secretary on any prospective agency action at the request of, and in cooperation with, the prospective permit or license applicant if the applicant has reason to believe that an endangered species or a threatened species may be present in the area affected by his project and that implementation of such action will likely affect such species. (4) Each Federal agency shall confer with the Secretary on any agency action which is likely to jeopardize the continued existence of any species proposed to be listed under section 1533 of this title or result in the destruction or adverse modification of critical habitat proposed to be designated for such species. This paragraph does not require a limitation on the commitment of resources as described in subsection (d) of this section. (b) Opinion of Secretary (1)(A) Consultation under subsection (a) (2) of this section with respect to any agency action shall be concluded within the 90-day period beginning on the date on which initiated or, subject to subparagraph (B), within such other period of time as is mutually agreeable to the Secretary and the Federal agency. * * * * * (3)(A) Promptly after conclusion of consultation under paragraph (2) or (3) of subsection (a) of this section, the Secretary shall provide to the Federal agency and the applicant, if any, a written statement setting forth the Secretary's opinion, and a summary of the information on which the opinion is based, detailing how the agency action affects the species or ---------------------------------------- Page Break ---------------------------------------- 8a its critical habitat. If jeopardy or adverse modifi- cation is found, the Secretary shall suggest those reasonable and prudent alternatives which he believes would not violate subsection (a) (2) of this section and can be taken by the Federal agency or applicant in implementing the agency action. (B) Consultation under subsection (a) (3) of this section, and an opinion issued by the Secretary incident to such consultation, regarding an agency action shall be treated respectively as a consultation under subsection (a) (2) of this section, and as an opinion issued after consultation under such subsection, regarding that action if the Secretary reviews the action before it is commenced by the Federal agency and finds, and notifies such agency, that no significant changes have been made with respect to the action and that no significant change has occurred regarding the information used during the initial consultation. (4) If after consultation under subsection (a)(2) of this section, the Secretary concludes that- (A) the agency action will not violate such subsection, or offers reasonable and prudent alternatives which the Secretary believes would not violate such subsection; (B) the taking of an endangered species or a threatened species incidental to the agency action will not violate such subsection; and (C) if an endangered species or threatened species of a marine mammal is involved, the taking is authorized pursuant to section 1371(a)(5) of this title; ---------------------------------------- Page Break ---------------------------------------- 9a the Secretary shall provide the Federal agency and the applicant concerned, if any, with a written statement that- (i) specifies the impact of such incidental taking on the species, (ii) specifies those reasonable and prudent measures that the Secretary considers necessary or appropriate to minimize such impact, (iii) in the case of marine mammals, specifies those measures that are necessary to comply with section 1371(a)(5) of this title with regard to such taking, and (iv) sets forth the terms and conditions (includ- ing, but not limited to, reporting requirements) that must be complied with by the Federal agency or applicant (if any), or both, to implement the measures specified under clauses (ii) and (iii). (c) Biological assessment (1) To facilitate compliance with the requirements of subsection (a) (2) of this section, each Federal agency shall, with respect to any agency action of such agency for which no contract for construction has been entered into and for which no construction has begun on November 10, 1978, request of the Secretary information whether any species which is listed or proposed to be listed may be present in the area of such proposed action. If the Secretary advises, based on the best scientific and commercial data available, that such species may be present, such agency shall conduct a biological assessment for the purpose of identifying any endangered species or threatened species which is likely to be affected by such action. Such assessment shall be completed ---------------------------------------- Page Break ---------------------------------------- 10a within 180 days after the date on which initiated (or within such other period as is mutually agreed to by the Secretary and such agency, except that if a permit or license applicant is involved, the 180-day period may not be extended unless such agency provides the applicant, before the close of such period, with a written statement setting forth the estimated length of the proposed extension and the reasons therefor) and, before any contract for construction is entered into and before construction is begun with respect to such action. Such assessment may be undertaken as part of a Federal agency's compliance with the requirements of section 102 of the National Environmental Policy Act of 1969 (42 U.S.C. 4332). (2) Any person who may wish to apply for an exemption under subsection (g) of this section for that action may conduct a biological assessment to identify any endangered species or threatened species which is likely to be affected by such action. Any such biological assessment must, however, be con- ducted in cooperation with the Secretary and under the supervision of the appropriate Federal agency. (d) Limitation on commitment of resources After initiation of consultation required under subsection (a) (2) of this section, the Federal agency and the permit or license applicant shall not make any irreversible or irretrievable commitment of re- sources with respect to the agency action which has the effect of foreclosing the formulation or implementation of any reasonable and prudent alternative measures which would not violate subsection (a) (2) of this section. ---------------------------------------- Page Break ---------------------------------------- 11a (e) Endangered Species Committee (1) There is established a committee to be known as the Endangered Species Committee (hereinafter in this section referred to as the "Committee"). (2) The Committee shall review any application submitted to it pursuant to this section and deter- mine in accordance with subsection (h) of this section whether or not to grant an exemption from the requirements of subsection (a) (2) of this section for the action set forth in such application. * * * * * (h) Grant of exemption (1) The Committee shall make a final deter- mination whether or not to grant an exemption within 30 days after receiving the report of the Secretary pursuant to subsection (g) (5) of this section. The Committee shall grant an exemption from the requirements of subsection (a) (2) of this section for an agency action if, by a vote of not less than five of its members voting in person- (A) it determines on the record, based on the report. of the Secretary, the record of the hearing held under subsection (g) (4) of this section and on such other testimony or evidence as it may receive, that- (i) there are no reasonable and prudent alternatives to the agency action; (ii) the benefits of such action clearly outweigh the benefits of alternative courses of action consistent with conserving the species or its critical habitat, and such action is in the public interest; ---------------------------------------- Page Break ---------------------------------------- 12a (iii) the action is of regional or national significance; and (iv) neither the Federal agency concerned nor the exemption applicant made any irrever- sible or irretrievable commitment of resources prohibited by subsection (d) of this section; and (B) it establishes such reasonable mitigation and enhancement measures, including, but not limited to, live propagation, transplantation, and habitat acquisition and improvement, as are necessary and appropriate to minimize the adverse effects of the agency action upon the endangered species, threatened species, or critical habitat concerned. Any final determination by the Committee under this subsection shall be considered final agency action for purposes of chapter 7 of Title 5. (2)(A) Except as provided in subparagraph (B), an exemption for an agency action granted under paragraph (1) shall constitute a permanent exemption with respect to all endangered or threatened species for the purposes of completing such agency action- (i) regardless whether the species was identified in the biological assessment; and (ii) only if a biological assessment has been conducted under subsection (c) of this section with respect to such agency action. (B) An exemption shall be permanent under subparagraph (A) unless- (i) the Secretary finds, based on the best scientific and commercial data available, that such exemption would result in the extinction ---------------------------------------- Page Break ---------------------------------------- 13a of a species that was not the subject of consultation under subsection (a) (2) of this section or was not identified in any biological assessment conducted under subsection (c) of this section, and (ii ) the Committee determines within 60 days after the date of the Secretary's finding that the exemption should not be permanent. If the Secretary makes a finding described in clause (i), the Committee shall meet with respect to the matter within 30 days after the date of the finding. * * * * * (o) Exemption as providing exception on taking of endangered species Notwithstanding sections 1533(d) and 1538(a)(1)(B) and (C) of this title, sections 1371 and 1372 of this title, or any regulation promulgated to implement any such section - (1) any action for which an exemption is granted under subsection (h) of this section shall not be considered to be a taking of any endangered species or threatened species with respect to any activity which is necessary to carry out such action; and (2) any taking that is in compliance with the terms and conditions specified in a written statement provided under subsection (b)(4)(iv) of this section shall not be considered to be a prohibited taking of the species concerned. * * * * * ---------------------------------------- Page Break ---------------------------------------- 14a 1538. Prohibited acts (a) Generally (1) Except as provided in sections 1535(g)(2) and 1539 of this title, with respect to any endangered species of fish or wildlife listed pursuant to section 1533 of this title it is unlawful for any person subject to the jurisdiction of the United States to- (A) import any such species into, or export any such species from the United States; (B) take any such species within the United States or the territorial sea of the United States; (C) take any such species upon the high seas; (D) possess, sell, deliver, carry, transport, or ship, by any means whatsoever, any such species taken in violation of subparagraphs (B) and (C); (E) deliver, receive, carry, transport, or ship in interstate or foreign commerce, by any means whatsoever and in the course of a commercial activity, any such species; (F) sell or offer for sale in interstate or foreign commerce any such species; or (G) violate any regulation pertaining to such species or to any threatened species of fish or wildlife listed pursuant to section 1533 of this title and promulgated by the Secretary pursuant to authority provided by this chapter. (2) Except as provided in sections 1535(g)(2) and 1539 of this title, with respect to any endangered species of plants listed pursuant to section 1533 of ---------------------------------------- Page Break ---------------------------------------- 15a this title, it is unlawful for any person subject to the jurisdiction of the United States to- (A) import any such species into, or export any such species from, the United States; (B) remove and reduce to possession any such species from areas under Federal jurisdiction; maliciously damage or destroy any such species on any such area; or remove, cut, dig up, or damage or destroy any such species on any other area in knowing violation of any law or regulation of any State or in the course of any violation of a State criminal trespass law; (C) deliver, receive, carry, transport, or ship in interstate or foreign commerce, by any means whatsoever and in the course of a commercial activity, any such species; (D) sell or offer for sale in interstate or foreign commerce any such species; or (E) violate any regulation pertaining to such species or to any threatened species of plants listed pursuant to section 1533 of this title and promulgated by the Secretary pursuant to authority provided by this chapter. * * * * * (g) Violations It is unlawful for any person subject to the jurisdiction of the United States to attempt to commit, solicit another to commit, or cause to be committed, any offense defined in this section. ---------------------------------------- Page Break ---------------------------------------- 16a 1539. Exceptions (a) Permits (1) The Secretary may permit, under such terms and conditions as he shall prescribe- (A) any act otherwise prohibited by section 1538 of this title for scientific purposes or to enhance the propagation or survival of the affected species, including, but not limited to, acts necessary for the establishment and maintenance of experimental populations pursuant to sub- section (j) of this section; or (B) any taking otherwise prohibited by section 1538(a)(1)(B) of this title if such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity. (2)(A) No permit may be issued by the Secretary authorizing any taking referred to in paragraph (1) (B) unless the applicant therefor submits to the Secretary a conservation plan that specifies- (i) the impact which will likely result from such taking; (ii) what steps the applicant will take to minimize and mitigate such impacts, and the funding that will be available to implement such steps; (iii) what alternative actions to such taking the applicant considered and the reasons why such alternatives are not being utilized; and (iv) such other measures that the Secretary may require as being necessary or appropriate for purposes of the plan. ---------------------------------------- Page Break ---------------------------------------- 17a (B) If the Secretary finds, after opportunity for public comment, with respect to a permit application and the related conservation plan that- (i) the taking will be incidental; (ii) the applicant will, to the maximum extent practicable, minimize and mitigate the impacts of such taking; (iii) the applicant will ensure that adequate funding for the plan will be provided; (iv) the taking will not appreciably reduce the likelihood of the survival and recovery of the species in the wild; and (v) the measures, if any, required under subparagraph (A) (iv) will be met; and he has received such other assurances as he may require that the plan will be implemented, the Secretary shall issue the permit. The permit shall contain such terms and conditions as the Secretary deems necessary or appropriate to carry out the purposes of this paragraph, including, but not limited to, such reporting requirements as the Secretary deems necessary for determining whether such terms and conditions are being complied with. (C) The Secretary shall revoke a permit issued under this paragraph if he finds that the permittee is not complying with the terms and conditions of the permit. * * * * * (j) Experimental populations (1) For purposes of this subsection, the term "experimental population" means any population ---------------------------------------- Page Break ---------------------------------------- 18a (including any offspring arising solely therefrom) authorized by the Secretary for release under paragraph (2), but only when, and at such times as, the population is wholly separate geographically from nonexperimental populations of the same species. (2)(A) The Secretary may authorize the release (and the related transportation) of any population (including eggs, propagules, or individuals) of an endangered species or a threatened species outside the current range of such species if the Secretary determines that such release will further the conservation of such species. (B) Before authorizing the release of any population under subparagraph (A), the Secretary shall by regulation identify the population and determine, on the basis of the best available information, whether or not such population is essential to the continued existence of an endangered species or a threatened species. (C) For the purposes of this chapter, each member of an experimental population shall be treated as a threatened species; except that- (i) solely for purposes of section 1536 of this title (other than subsection (a) (1) thereof), an experimental population determined under sub- paragraph (B) to be not essential to the continued existence of a species shall be treated, except when it occurs in an area within the National Wildlife Refuge System or the National Park System, as a species proposed to be listed under section 1533 of this title; and (ii) critical habitat shall not be designated under this chapter for any experimental population determined under subparagraph (B) to be not essential to the continued existence of a species. ---------------------------------------- Page Break ---------------------------------------- 19a (3) The Secretary, with respect to populations of endangered species or threatened species that the Secretary authorized, before October 13, 1982, for release in geographical areas separate from the other populations of such species, shall determine by regulation which of such populations are an experi- mental population for the purposes of this subsection and whether or not each is essential to the continued existence of an endangered species or a threatened species. ---------------------------------------- Page Break ---------------------------------------- No. 94-859 In the Supreme Court of the United States OCTOBER TERM, 1994 BRUCE BABBITT, SECRETARY OF THE INTERIOR, ET AL., PETITIONERS V. SWEET HOME CHAPTER OF COMMUNITIES FOR A GREAT OREGON, ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT REPLY BRIEF FOR THE PETITIONERS DREW S. DAYS, III Solicitor General Department of Justice Washington, D.C. 20530 (202)514-2217 ---------------------------------------- Page Break ---------------------------------------- TABLE OF AUTHORITIES Cases: Anderson v. Edwards, No. 93-1883 (Mar. 22, 1995) . . . . 17 Bell Atlantic Tel. Cos. v. FCC, 24 F.3d 1441 (D.C. Cir. 1994) . . . . 15 Bowen v. Yuckert, 482 U.S. 137 (1987) . . . . 20 Brown v. Gardner, 115 S. Ct. 552 (1994) . . . . 10 Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) . . . . 6-7 Crandon v. United States, 494 U.S. 152 (1990) . . . . 11 Ehlert v. United States, 402 U.S. 99 (1971) . . . . 11 Forest Conservation Council v. Rosboro Lumber Co., No. 94-35070 (9th Cir. Mar. 24, 1995) . . . . 5, 16 Hodel v. Virginia Surface Mining & Reclamation Ass 'n, 452 U.S. 264 (1981) . . . . 16 Idaho Farm Bureau Fed'n v. Babbitt, 839 F. Supp. 739 (D. Idaho 1993), appeals pending, Nos. 94-35164, 94-35230 (9th Cir.) . . . . 20 Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 115 S. Ct. 1043 (1995) . . . . 4 Landgraf v. USI Film Products, 114 S. Ct. 1483 (1994) . . . . 6 Marbled Murrelet v. Pacific Lumber Co., No. C-93-1400- LCB (N.D. Cal. Feb. 27, 1995) . . . . 5 Qualitex Co. v. Jacobson Products Co., No. 93-1577 (Mar. 28, 1995) . . . . 10 Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969) . . . . 11 Reno v. Flores, 113 S. Ct. 1439 (1993) . . . . 17, 19, 20 Smith v. United States, 113 S. Ct. 2050 (1993) . . . . 11 Sweet Home Chapter of Communities for a Great Oregon v. Lujan, Civ. No. 91-2218 (D.D.C. Feb. 27, 1992) . . . . 18 TVA v. Hill, 437 U.S. 153 (1978) . . . . 5, 7, 15 (I) ---------------------------------------- Page Break ---------------------------------------- II Cases-Continued: Page Trinity County Concerned Citizens v. Babbitt, Civ. No. 92-1194 (D.D.C. Sept. 20, 1993) . . . . 14 United States v. FMC Corp., 572 F.2d 902 (2d Cir. 1978) . . . . 3, 4 United States v. Hayashi, 22 F.3d 859 (9th Cir. 1993) . . . . 5 United States v. Nguyen, 916 F.2d 1016 (5th Cir. 1990) . . . . 2 United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985) . . . . 11, 15, 16 United States v. Security Industrial Bank, 459 U.S. 70 (1982) . . . . 16 United States v. Thompson/Center Arms Co., 112 S. Ct. 2102 (1992) . . . . 11, 12 Village of Hoffman Estates v. The Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1982) . . . . 16 West Virginia Univ. Hospitals, Inc. v. Casey, 499 U.S. 83 (1991) . . . . 10 Constitution, statutes and regulations: U.S. Const. Amend. V (Just Compensation Clause) . . . . 15, 16 Administrative Procedure Act, 5 U.S.C. 553(b) . . . . 18 Clean Water Act, 33 U.S.C. 1311(a) . . . . 17 Endangered Species Act of 1973, 16 U.S.C. 1531 et sea.: 2(b), 16 U.S.C. 1531(b) . . . . 4 3(5)(A), 16 U.S.C. 1532(5)(A) . . . . 14 3(19), 16 U.S.C. 1532(19) . . . . 1 4, 16 U.S.C. 1533 . . . . 13 4(d), 16 U.S.C. 1533(d) . . . . 13, 18 7, 16 U.S.C. 1536 . . . . 7, 11, 12, 14, 15 7(a)(2), 16 U.S.C. 1536(a)(2) . . . . 12, 13, 14 7(b)(4), 16 U.S.C. 1536(b)(4) . . . . 8, 13 7(h), 16 U.S.C. 1536(h) . . . . 12 7(o), 16 U.S.C. 1536(o) . . . . 8, 15 7(o), 16 U.S.C. 1536(o) (Supp. III 1979) . . . . 7, 15 ---------------------------------------- Page Break ---------------------------------------- III Statutes and regulations-Continued: Page 9, 16 U.S.C. 1538 . . . . 7, 8, 10, 12, 13, 15, 19 9(a)(1)(B), 16 U.S.C. 1538(a)(1)(B) . . . . 1, 7, 8 10, 16 U.S.C. 1539 . . . . 7, 11, 13, 17, 20 10(a), 16 U.S.C. 1539(a) . . . . 8, 9 10, 16 U.S.C. 1539(a)(1)(B) . . . . 8, 13 10(a)(2), 16 U.S.C. 1539(a)(2) . . . . 13 10(a)(2)9A)16 U.S.C. 1539(a)(2)(A) . . . . 8 10(a)(2)(B)(ii),16 U.S.C. 1539(a)(2)(B)(ii) . . . . 8 11(a)(1), 16 U.S.C. 1540(a)(1) . . . . 11(a)(1), 16 U.S.C. 1540(a)(1) (1976) . . . . 2 11(b)(1), 16 U.S.C. 1540(b)(1) . . . . 2 11(e)(6), 16 U.S.C. 1540(e)(6) . . . . 2 11(g)(1)(A), 16 U.S.C. 1540(g)(1)(A) . . . . 2 Endangered Species Act Amendments of 1978, Pub. L. No. 95-632, 92 Stat. 3751: 6(1), 92 Stat. 3761 . . . . 2 6(2), 92 Stat. 3761 . . . . 2 6(3), 92 Stat. 3761 . . . . 2 Marine Mammal Protection Act of 1972, 16 U.S.C. 1361 et seq . . . . 5 Migratory Bird Treaty Act, 16 U.S.C. 703 (1988 & Supp. V 1993) . . . . 3 Surface Mining Control and Reclamation Act of 1977, 30 U.S.C. 1201 et seq . . . . 17 50 C.F.R. : Section 17.3 . . . . 1 Section 402.02 . . . . 14 Miscellaneous: 49 Fed. Reg. 38,904 (1984) . . . . 14 57 Fed. Reg. (1992): p. 1796 . . . . 14 pp. 1812-1813 . . . . 14 pp. 1831-1833 . . . . 14 p. 36,626 . . . . 14, 15 p. 36,627 . . . . 14, 15 ---------------------------------------- Page Break ---------------------------------------- IV Miscellaneous Continued: Page p. 36, 630 . . . . 14 58 Fed. Reg. (1993): p. 5938 . . . . 20 pp. 5941-5942 . . . . 20 59 Fed. Reg. (1994): p. 34,272 . . . . 19 p. 65,260 . . . . 14 p. 65,262 . . . . 14 pp. 65,274-65,275 . . . . 14 pp. 66,555-66,556 . . . . 19 60 Fed. Reg. (1995): p. 9484 . . . . 19 p. 9485 . . . . 19 Fish and Wildlife Service, Procedures Leading to Endangered Species Act Compliance for the Northern Spotted Owl (July 1990) . . . . 18 H.R. Conf. Rep. No. 1804, 95th Cong., 2d Sess. (1978) . . . . 2 H.R. Conf. Rep. No. 835, 97th Cong., 2d Sess. (1982) . . . . 10 H.R. Rep. No. 412, 93d Cong., 1st Sess. (1973) . . . . 6 H.R. Rep. No. 1625, 95th Cong., 2d Sess. (1978) . . . . 2 H.R. Rep. No. 567, 97th Cong., 2d Sess. Pt. 1 (1982) . . . . 8, 17 R. Lachenmeier, The Endangered Species Act of 1973: Preservation or Pandemonium?, 5 Envtl. L. 29 (1974) . . . . 6 S. Rep. No. 307, 93d Cong., 1st Sess. (1973) . . . . 6 ---------------------------------------- Page Break ---------------------------------------- In the Supreme Court of the United States OCTOBER TERM, 1994 No. 94-859 BRUCE BABBITT, SECRETARY OF THE INTERIOR, ET AL., PETITIONERS v. SWEET HOME CHAPTER OF COMMUNITIES FOR A GREAT OREGON, ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT REPLY BRIEF FOR THE PETITIONERS A. Respondents concede (Br. 9) that "harm" is "a word of extraordinary elasticity, arguably capable of the meaning" given to it by the Fish and Wildlife Service (FWS) in its regulation interpreting the prohibition in the Endangered Species Act (ESA) against the "take" of protected species. See 16 U.S.C. 1538(a)(l)(B); 50 C.F.R. 17.3. Respondents contend, however, that each of the other verbs accompanying "harm" in the ESA's definition of "take" (see 16 U.S.C. 1532(19)) describes "purposeful" conduct "directed at some living thing," and they ar- gue that "harm" should be given the same narrow construction. Resp. Br. 7, 10, 13, 14, 16-17, 20. Respondents' premise is flawed. The ESA does not limit the other verbs in the definition of "take" ("harass, * * * pursue, hunt, shoot, wound, kill, trap, capture, or collect") to "purposeful" conduct specifically "directed at a living (1) ---------------------------------------- Page Break ---------------------------------------- 2 thing." The ESA makes it unlawful to take a protected species, through, for example, wounding or killing, re- gardless of whether that was the purpose of the act or whether the act was directed at a living thing. Such violations are subject to an injunctive action under 16 U.S.C. 1540(e)(6) and (g)(1)(A), and to a civil penalty of not more than $500 under 16 U.S.C. 1540(a)(1). 1 Civil penalties of more than $500 and misdemeanor criminal sanctions are available only if the person acts "knowingly," 16 U.S.C. 1540(a)(1) and (b)(1)-i.e., knows, for example, that his action harasses, harms or wounds the type of species affected. Even in such cases, however, it is not necessary to show that the person acted with the purpose of harming wildlife. Indeed, the person need not know that the species is endangered or threatened; only a general intent to perform the act, and not a specific intent to violate the ESA, is required. 2 ___________________(footnotes) 1 As originally enacted, the maximum civil penalty for a non- knowing violation was $1000. 16 U.S.C. 1540(a)(1) (1976). In 1978, Congress "reduce[d] the strict liability penalty for othe[r] than importers and exporters to $500." H.R. Rep. No. 1625, 95th Cong., 2d Sess. 26 (1978); H.R. Conf. Rep. No. 1804, 95th Cong., 2d Sess. 25-26 (1978); see Endangered Species Act Amendments of 1978 (ESAA), Pub. L. No. 95-632, 6(1) and (2), 92 Stat. 3761. The Conference Committee noted (at 26) that although a tourist who unknowingly violates the pro- hibition of importing a protected species could be fined up to $500, it "assume[d] that in most cases, law enforcement officials will seek the forfeiture of the item rather than impose a civil penalty." 2 Respondents acknowledge that 16 U.S.C. 1540(b)(1) "requires only a general intent to perform an act, not a specific intent to violate the ESA." Resp. Br. 2 n.2 (citing United States v. Nguyen, 916 F.2d 1016 (5th Cir. 1990)). In the 1978 amendments, Congress replaced "willfully" with "knowingly" (see ESAA 6(3), 92 Stat. 3761) to make "criminal violations of the act a general rather than a specific intent crime." H.R. Conf. Rep. No. 1804, supra, at 26. ---------------------------------------- Page Break ---------------------------------------- 3 Respondents err in relying on United States v. FMC Corp., 572 F.2d 902 (2d Cir. 1978), to support their argument that all the terms in the definition of "take," including "kill," connote "intentional and directed" con- duct. Resp. Br. 13 n.15. The FMC court affirmed a conviction for killing protected birds in violation of the narrower "take" prohibition in the Migratory Bird Treaty Act (MBTA), 16 U.S.C. 703 (1988 & Supp. V 1993), based on the death of birds that were attracted to a pond containing chemicals released during the company's manufacturing process. See Gov't Br. 25 & n.12. The company did not intend to attract the birds to its pond, and its actions were in no way directed at the birds. 572 F.2d at 906-908. 3. ___________________(footnotes) Because the ESA imposes a scienter requirement ("knowingly") only for certain civil penalties and misdemeanor sanctions-but not, for example, in civil injunctive actions-respondents err in relying (Br. 10 & n.10) on several dated dictionaries for the proposition that "harm" must be limited in all circumstances to purposeful efforts to injure. Respondents are even further afield in relying (Br. 19 n.24) on dictionary definitions of "take" that refer to the holding, seizure or possession of an object. Congress provided its own definition of "take" in the ESA that includes harass, harm, pursue and wound, none of which is limited to actual holding, seizure or possession. 3 Respondents' attempt (Br. 21 n.26) to distinguish FMC on the ground that "[t]he manufacture and use of pesticides * * * are actions directed at killing animals" is completely without merit. There is no suggestion in FMC that the result would have been different if the chemical being manufactured was not a pesticide. Respondents quote a passing comment in FMC that it "'would offend reason and common sense' to find that wildlife 'take' includes 'deaths caused by automobiles.'" Resp. Br. 13 n.15; see also id. at 21. The context shows, however, that the court was concerned only with basing criminal liability on an act that was not done knowingly. Thus, in the passage immediately following the one quoted by respondents, the court observed: "As stated in one of the early decisions under the [MBTA], '[a]n innocent technical violation on the part of any defendant can be taken care of by the imposition of a small or nominal ---------------------------------------- Page Break ---------------------------------------- 4 Respondents' basic objection to the "harm" regulation is that it "focuses exclusively on the ultimate effect of the act on listed wildlife." Resp. Br. 14. In their view, "harm" should be construed to reach only purposeful conduct directed at wildlife because the "take" prohibition is concerned with the character of the actor's conduct, rather than its effect on the species. Ibid. That view ignores the central purpose of the ESA: to conserve endangered and threatened species. 16 U.S.C. 1531(b). The Act accomplishes that purpose in part by prohibiting conduct that undermines a listed species' continuing survival. For example, the prohibition against wounding a protected species is not intended to save individual animals from suffering pain. Wounding is prohibited because it is likely to impair the animal's ability to engage in activity essential to its own survival and that of its offspring, e.g., by impairing its ability to forage for food, build a shelter, and breed. Thus, wounding a protected species violates the ESA even if it is the unintended consequence of other- wise lawful activity directed at a different object. The character of the conduct may bear on the appropriate sanction, but not on the existence of a violation. 4 ___________________(footnotes) fine.' Such situations properly can be left to the sound discretion of prosecutors and the courts." 572 F.2d at 905 (citation omitted). 4 Respondents argue (Br. 14) that the "harm" regulation "confuses some remote effect on a species' population with a concrete effect on some member of that species" and "also ignores the role of intervening acts in bringing about that generalized effect." Those issues, however, are properly addressed not by categorically excluding all harms to wildlife that are caused by habitat modification from the statutory "take" prohibition, but by applying principles of proximate causation, based on the regulation's condition that habitat modification is covered only if it "actually kills or injures wildlife" by significantly impairing essential behavioral patterns. Compare Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 115 S. Ct. 1043, 1049-1050 (1995); see, ---------------------------------------- Page Break ---------------------------------------- 5 Because the terms that accompany "harm" in the statutory definition of "take'' are not limited to purposeful acts directed at wildlife, there is no merit to respondents' argument that the concededly broad term "harm" should be narrowly construed in that manner by application of noscitur a sociis. 5. A narrow construction that excluded ___________________(footnotes) e.g., Forest Conservation Council v. Rosboro Lumber Co., No. 94-35070 (9th Cir. Mar. 24, 1995); Marbled Murrelet v. Pacific Lumber Co., No. C-93-1400-LCB (N.D. Cal. Feb. 27, 1995), slip op. 55-60; Gov't Br. 45-46. Respondents, moreover, ignore the distinction between a violation of the ESA that is proven through indirect or circumstantial evidence (such as by proof of a population decline), and a situation in which there was no ESA violation at all because there was no causal link between the conduct and injury to wildlife. 5 Contrary to respondents' contention (Br. 15 & n.17), FWS's discussion of ejusdem generis when it first proposed a revision of the harm regulation in 1981 (see J.A. 58) did not reflect an agreement with their position. FWS's interpretation of "take" included negligent conduct (J.A. 60) and habitat modifications that result in the actual killing or injury of wildlife (J.A. 61 & n.2, quoting TVA v. Hill, 437 U.S. 153, 165 n.16, 184 n.30 (1978)). In the same footnote, respondents rely on United States v. Hayashi, 22 F.3d 859 (9th Cir. 1993), which construed "harass" and other forms of "take" under the Marine Mammal Protection Act of 1972 (MMPA), 16 U.S.C. 1361 et seq. See Gov't Br. 25-26 & n.13. The Ninth Circuit's conclusion that those terms connote "direct intrusions" meant something different from what respondents appear to mean by "directed at." For example, the Hayashi court understood hunt, capture and kill to involve "direct and significant intrusions upon the normal, life-sustaining activities of a marine mammal," explaining that "killing is a direct and permanent intrusion, while hunting and capturing cause significant disruptions of a marine mammal's natural state"; that "[t]o 'take' a marine mammal strongly suggests a serious diversion of the mammal from its natural routine"; and that the MMPA was aimed at "protecting natural animal behavior." 22 F.3d at 864, 866. The ESA "harm" regulation, which covers significant habitat modification or degradation that "actually kills or injures" wildlife by ---------------------------------------- Page Break ---------------------------------------- 6 all harm caused by habitat modification would also be inconsistent with Congress's intent to define "take" "in the broadest possible manner to include every conceivable way in which a person can `take' or attempt to `take' any fish or wildlife," S. Rep. No. 307, 93d Cong., 1st Sess. 7 (1973); see also H.R. Rep. No. 412, 93d Cong., 1st Sess. 11, 15 (1973), and with the central role that habitat protection plays throughout the Act. Gov't Br. 7-9, 24. 6. ___________________(footnotes) "significantly impairing essential behavioral patterns," is consistent with that view. 6 Respondents erroneously rely (Br. 30-31) on the failure by the Senate committee to include in its bill certain language contained in another bill that respondents assert was "very similar" to the "harm" regulation. As we have explained (Gov't Br. 28-29), the other bill was significantly broader than the regulation because it would have barred habitat modification per se, without regard to whether there was an ensuing effect on protected species. Respondents suggest (Br. 31 n.39) that the committee's omission of the broader provision is explained by the statements of "several legislators" expressing disapproval of the inclusion of habitat modification in the "take" prohibition. They cite, however, only one statement, by Senator Stevens, and that ambiguous remark does not support their position. The subject of his remark was whether a single bill should cover endangered flora as well as fauna, not the definition of "take" applicable to fauna. Thus, the unexplained fate of the bill proposed early in the legislative process sheds little light on congressional intent. Cf. Landgraf v. USI Film Products, 114 S. Ct. 1483, 1492, 1495-1496 ( 1994). Respondents also suggest (Br. 29 n.35, 30) that the legislative history of the 1973 Act is barren of discussion specifically relating to the precise issue here because no reasonable person could have imagined that the statutory text would support the Secretary's interpretation. That assertion is disproved by respondents' citation with approval (Br. 34 n.41) to an article, published before the Secretary's interpretation was proposed, that recognized that "harm" could be construed to encompass actions, such as timber harvesting, that destroy habitat. R. Lachenmeier, The Endangered Species Act of 1973: Preservation or Pandemonium?, 5 Envtl. L. 29, 39, 72 (1974). Furthermore, because respondents have the burden under Chevron ---------------------------------------- Page Break ---------------------------------------- 7 B. Respondents' narrow view of "harm" likewise can- not be squared with the subsequent amendments to Sections 7 and 10 of the ESA that specifically addressed the taking of protected species. As discussed in our opening brief (at 30-33), this Court's decision in TVA v. Hill provided the impetus for the 1978 amendments that created the process for exempting federal actions from both Section 7 and 9. The Tellico Dam at issue in TVA v. Hill was not "directed at" wildlife, yet it would have modified the snail darter's habitat to the point of rendering it extinct. For that reason, as the Court recognized (437 U.S. at 184-185 & n.30), completion of the dam would have constituted a prohibited taking under the Secretary's regulation that, defined "harm" to include "significant environmental modification or degradation" that kills or injures wildlife, Gov't Br. 30-31. Congress's recognition that such a project would require an exception to the Section 9 "taking" prohibition and implementing "regula- tions" (see 16 U.S.C. 1536(o) (Supp. III 1979))-including the "harm" regulation (see Gov't Br. 32-33 & n.20) - confirms that "take" encompasses habitat modification that actually kills or injures wildlife. The 1982 amendments also furnish compelling grounds for rejecting respondents' contention that a prohibited taking includes only purposeful conduct specifically directed at wildlife. In 1982, Congress added to Section 10 a provision for the Secretary to issue permits allowing "any taking otherwise prohibited by section 1538(a)(1)(B) of this title if such taking is incidental to, and not the ___________________(footnotes) U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), of demonstrating either that Congress expressed its intent with respect to the precise issue or that the Secretary's interpretation is unreasonable, the absence of legislative history contrary to the Secretary's interpretation cuts against their position. ---------------------------------------- Page Break ---------------------------------------- 8 purpose of, the carrying out of an otherwise lawful activity." 16 U.S.C. 1539(a)(1)(B) (emphasis added). That statutory text is inconsistent with respondents' notion that takings that are not purposeful and are not directed at wildlife (e.g., are "incidental" to otherwise lawful land use) are not covered by the taking prohibition in 16 U.S.C. 1538(a)(1)(B) in the first place. Similarly, respondents' contention that the taking prohibition is concerned with the character of the actor's conduct, not its effect on the species, is refuted by the statutory requirement that an "incidental take" permit may be issued only if the Secretary finds that "the applicant will, to the maximum extent practicable, minimize and mitigate the impacts of such taking." 16 U.S.C. 1539(a)(2)(A) and (B)(ii) (emphasis added); see also Gov't Br. 38-39 & nn.25-26 (discussing parallel 1982 amendments to 16 U.S.C. 1536(b)(4) and (o), as well as other amendments building on "harm" regulation). Respondents suggest that Congress enacted the ex- empting mechanisms for incidental takes in 1982 only to address those instances in which a listed species is inadvertently captured or targeted while the actor is hunting, fishing or trapping nonlisted species. That explanation is untenable. "Incidental takes" are "situa- tions in which it is known that a taking will occur if the other activity is engaged in but such taking is incidental to, and not the purpose of, the activity." H.R. Rep. No. 567, 97th Cong., 2d Sess. Pt. 1, at 31 (1982). The foreseeability of incidental takes shows that Congress was not addressing accidental killings. Moreover, the House Report explains that Section 10(a) enables "private land owners" to address "situations where the unintentional taking may occur on private lands owned by a developer who has no need of a Federal permit." Id. at 15; accord id. at 31. No private landowner expressed concern that Section 9 interfered with his hunting, trapping or fishing ---------------------------------------- Page Break ---------------------------------------- 9 for nonlisted species on private lands, 7. and incidental takes that result from commercial fishing, to which respondents refer (Br. 42), are not ordinarily associated with private land ownership or development. The incidental take that provided the model for Section 10(a) was the conversion into a housing complex of an undeveloped tract that served as habitat for listed butterflies. Yet because the bulldozing and land-clearing were "ordinary land use activities" that were not "directed at" any wildlife or conducted with a predatory purpose, those activities, despite their seriously adverse impact on the butterflies, would not have constituted a "take" under respondents' narrow interpretation. Respon- dents suggest (Br. 41-42, 43 n.51) that Congress focused on habitat only because it intended to prescribe a habitat conservation remedy for takings of listed species that inadvertently occur as the result of actions undertaken for the purpose of killing or injuring nonlisted species. That suggestion cannot be squared with Congress's recognition that in some instances habitat modification can itself constitute a "take" that would in turn require a habitat conservation plan to mitigate adverse impacts. Gov't Br. 35-38. 8 ___________________(footnotes) 7 Timber industry witnesses, however, did express concern that the "take" prohibition interfered with private timber harvests and attendant land uses that were not undertaken for the purpose of killing or injuring wildlife, yet had that unintended effect. See Gov't Br. 37 & n.23; id. at 31 & n.18. 8 Amici California, et al., implausibly suggest (Br. 26) that Congress believed the land-clearing at the housing development would have killed or injured listed butterflies, not by destroying their habitat, but by physical collisions of earthmoving equipment with butterflies or larvae. The extensive discussion of the project in the Conference Report makes clear that Congress understood that the ESA posed an obstacle to the project because it would seriously impair the butterflies' ---------------------------------------- Page Break ---------------------------------------- 10 Congress's refinement of the ESA through the 1978 and 1982 amendments that directly addressed Section 9 tak- ings constitutes a ratification of the statutory inter- pretation embodied in the "harm" regulation. At the very least, those amendments strongly reinforce the reason- ableness of the Secretary's interpretation, and therefore require that the regulation be sustained under Chevron. 9. The present case is not, as respondents suggest (Br. 40- 41), like Brown v. Gardner, 115 S. Ct. 552, 556-557 (1994), in which there was no "evidence to suggest that Congress was even aware of the [agency's] interpretive position." There is ample evidence that Congress was aware both of the agency's interpretation of "harm" as including certain incidental takes that could be characterized as habitat modification, and of private landowners' dissatisfaction with that interpretation. See Gov't Br. 31-40; see also Resp. Br. 43 & n.51 (acknowledging awareness manifested in Senate Report and hearings); Qualitex Co. v. Jacobson Products Co., No. 93-1577 (Mar. 28, 1995), slip op. 13-14 (relying on amendments enacted against "background" of administrative and judicial interpretation "strongly ___________________(footnotes) "habitat," including "their food plants." H.R. Conf. Rep. No. 835, 97th Cong., 2d Sess. 30-32 (1982); Gov't Br. 35-36. 9 Citing West Virginia Univ. Hospitals, Inc. v. Casey, 499 U.S. 83, 101 (1991), respondents suggest (Br. 44) that even if Congress in 1982 acted on the assumption that "harm" could reach some land uses, it would be legally irrelevant. West Virginia is inapposite because it addressed an argument that congressional intent should be divined from a later Congress's treatment of an issue in a different statute. In this case, by contrast, Congress enacted amendments to the ESA itself in 1978 and 1982 that both used the word "take" or "taking" (which had already been defined in important part in the "harm" regulation) and established exempting mechanisms that are premised upon an in- terpretation of "take" that includes killing and injury of protected wild- life that result from significant habitat modification. ---------------------------------------- Page Break ---------------------------------------- 11 suggest[ing]" that statutory language had "come to include" color). Nor is this a situation in which Congress remained silent. It affirmatively responded to the controversy by amending the Act to allow "incidental takes," subject to consultation under Section 7 or the permit process under Section 10. Compare United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 136-139 (1985); Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 380-386 (1969). 10 ___________________(footnotes) 10 Respondents invoke the rule of lenity to support their argument that "harm" should be narrowly construed. Resp. Br. 28-29, citing United States v. Thompson/Center Arms Co., 112 S. Ct. 2102 (1992), and Crandon v. United States, 494 U.S. 152, 157-158 (1990). Re- spondents did not make that argument below, and it is in any event without merit. First, this case involves a facial challenge to a reg- ulation issued by the agency charged with administering the Act, not an application of the "take" prohibition in the context of particular conduct alleged to be in violation of the Act, as in Thompson/Center Arms and Crandon. The origins of the rule of lenity in criminal prosecutions counsel against its invocation in this quite different setting. Second, even where it applies, the rule of lenity comes into play only at the end of the process, if the statute remains ambiguous after utilizing other tools of statutory construction. See, e.g., Smith v. United States, 113 S. Ct. 2050, 2059-2060 (1993). Here, as we have explained, the text, structure and history of the Act refute respondents' contentions that the "take" prohibition applies only to purposeful conduct directed at protected wildlife, and that it categorically excludes all actual killings or injuries of wildlife that result from significant habitat modification or degradation. At the very least, the Secretary's longstanding interpretation is reasonable, and therefore is controlling under Chevron. Cf. Ehlert v. United States, 402 U.S. 99, 105 (1971) (deferring to agency interpretation in criminal prosecution). And because that interpretation is published in the Code of Federal Regulations, the notice goal of the rule of lenity is satisfied. Third, respondents' position that the "take" prohibition is limited to purposeful conduct directed at wildlife is essentially an argument that ---------------------------------------- Page Break ---------------------------------------- 12 C. The remaining efforts by respondents and their amici to replace the meaning of "harm" that is now firmly embedded in the Act are without merit. 1. Respondents contend (Br. 25-26) that if the "take" prohibition applies to the killing or injuring of wildlife as a result of significant habitat modification, then it "sub- sumes" Section 7(a)(2) and renders that section "sur- plusage." Section 7(a)(2) requires every federal agency, in consultation with FWS, to ensure that actions it authorizes, funds or carries out are not likely to "jeopar- dize the continued existence" of a listed species or destroy or adversely modify habitat of the species that has been determined by the Secretary to be critical. In respondents' view, if everyone has a duty under Section 9 to avoid inadvertently injuring even one member of a listed species, there is nothing left of the separate federal duty to avoid actions that jeopardize the species' continued existence. Respondents misapprehend the statutory scheme. The "no jeopardy" standard establishes an absolute level of protection for a species as against federal actions covered by Section 7(a)(2) (in the absence of an exemption granted by the Endangered Species Committee under Section 7(h)). The "take" prohibition in Section 9, by contrast, is not absolute; by virtue of the 1982 amendments, FWS may allow "incidental takes" of a pro- tected species, either in connection with federal actions through the consultation process under Section 7, or in ___________________(footnotes) scienter must be shown in every application of that prohibition, even in civil injunctive actions where scienter typically is irrelevant. The ESA's criminal provision, however, contains its own scienter requirement ("knowingly"), which furnishes an additional element of a criminal offense. Compare Thompson/Center Arms, 112 S. Ct. at 2110 (plurality opinion) (criminal offense had no additional element of willfulness). Accordingly, the rule of lenity furnishes no basis for reading a scienter element into the basic "take" prohibition. ---------------------------------------- Page Break ---------------------------------------- 13 connection with non-federal actions through the issuance of incidental take permits under Section 10. See 16 U.S.C. 1536(b)(4), 1639(a)(1)(B) and (2). In addition, because the Section 9 "take" prohibition does not apply of its own force to threatened species (such as the northern spotted owl), but has instead been extended to such species by regulation under Section 4(d) (see Gov't Br. 5 & n.4), FWS may carve out exceptions to the "take" prohibition for threatened species. See pages 19-20, infra. FWS may not, however, carve out exceptions from Section 7(a)(2) for threatened species. Similarly, as we explain in our opening brief (at 41-44), the Secretary's interpretation of "harm" does not render superfluous the provision in Section 7(a)(2) for protection of critical habitat. Several amici assert that inclusion of habitat modifica- tion resulting in death or injury to protected wildlife in the definition of "harm" leads FWS to substitute Section 9's harm restrictions for the designation of critical habitat pursuant to the provisions added to Section 4 of the ESA in 1978 and 1982, which require consideration of economic and other factors. See State Water Contractors Br. 11-15; Nat'l Ass'n of Home Builders Br. 4-10; Congressman Baker Br. 6-21. FWS's approach to designating critical habitat of course is not at issue in this case. In any event, amici are wrong in asserting that the Secretary's interpretation of "harm" limits the role of critical habitat. To the extent critical habitat plays a relatively limited independent role as a practical matter under the ESA, it is primarily because the comprehensive evaluation required by Section 7 to determine whether a species would be jeopardized necessarily entails evaluation of impacts on its habitat, whether or not critical habitat has been for- mally designated for the species under Section 4. ---------------------------------------- Page Break ---------------------------------------- 14 50 C.F.R. 402.02. 11. As a result, formal designation of critical habitat often is not necessary to address habitat modification in the Section 7 context, and "the protection provided by a critical habitat designation usually only duplicates the protection provided under the section 7 jeopardy provision. " 57 Fed. Reg. 36,626, 36,627 (1992). 12. Moreover, amici lose sight of the fact that the 1978 and 1982 amendments to the ESA, which added the provisions for designation of critical habitat on which they rely, also added the provisions (discussed above) that strongly reinforce the Secretary's interpretation of "harm" as including death or injury to wildlife that is caused by significant habitat modification. Congress therefore saw no inconsistency between the Secretary's interpretation ___________________(footnotes) 11 Amici State Water Contractors, et al., argue (Br. 15) that FWS could conclude that little economic impact is felt from critical habitat designation only if "harm" is defined to include death or injuries caused by habitat modification. However, the very critical habitat designations they cite explicitly state that the listing of a species and the concomitant duty to avoid jeopardy under ESA Section 7(a)(2) encompass most of the federal agency obligations regarding critical habitat. See, e.g., 59 Fed. Reg. 65,260, 65,262, 65,274-65,275 (1994) (Delta smelt); 57 Fed. Reg. 36,626, 36,627, 36,630 (1992) (Sacramento River Winter-run Chinook salmon); id. at 1796, 1812-1813, 1831-1833 (northern spotted owl). The FWS's "incremental approach" to assessing the economic and other effects of a critical habitat designation has been challenged and upheld. Trinity County Con- cerned Citizens v. Babbitt, Civ. No. 92-1194 (D.D.C. Sept. 20, 1993). 12 The clearest instance in which a designation of critical habitat can afford additional protection to listed species involves unoccupied potential habitat. Critical habitat is defined as including areas both "within" and "outside" the areas occupied by the species at the time of listing. 16 U.S.C. 1532(5)(A) In appropriate cases, designating unoccupied potential habitat can promote recovery of the species by providing for "natural range expansion into adjacent suitable habitat." 49 Fed. Reg. 38,904 (1984); see also 57 Fed. Reg. 36,627 (1992). ---------------------------------------- Page Break ---------------------------------------- 15 and the statutory provisions for designation of critical habitat. That conclusion is reinforced by the fact that in TVA v. Hill, which was the impetus for the 1978 amendments, this Court recognized that completion of the Tellico Dam would have violated both Section 7 (by jeopardizing the continued existence of the snail darter and destroying critical habitat the Secretary had designated for the species) and Section 9 (by taking the snail darter under the Secretary's "harm" regulation). See 437 U.S. at 1.61-162, 171-172, 184-185 & n.30. And as we have explained (Gov't Br. 32, 38, 44), Congress specifically accommodated the overlap of Sections 7 and 9 in this regard by enacting Section 7(o) in 1978 and reenacting it in 1982. 2. Some amici argue that "harm" should be narrowly construed to avoid questions under the Just Compensation Clause of the Fifth Amendment. See, e.g., American Farm Bureau Fed'n Br. 20-26. This Court rejected the same argument in Riverside Bayview Homes, in holding that adjacent wetlands are included within the Clean Water Act's prohibition against the discharge of pollutants into "waters of the United States." There, as here, the statute proscribed conduct in absolute terms, with exceptions available by securing a federal permit. This Court explained that the mere assertion of regulatory juris- diction by a governmental body does not constitute a regulatory taking because "the very existence of a permit system implies that permission may be granted, leaving the landowner free to use the property as desired," and "even if the permit is denied, there may be other viable uses available to the owner." 474 U.S. at 127. Amici's reliance on Bell Atlantic Tel. Cos. v. FCC, 24 F.3d 1441, 1445 (D.C. Cir. 1994), is misplaced. There, the broader interpretation of the regulation would in every case have resulted in a Fifth Amendment taking. Compare ---------------------------------------- Page Break ---------------------------------------- 16 Riverside Bayview Homes, 474 U.S. at 128 n.5 (distin- guishing United States v. Security Industrial Bank, 459 U.S. 70 (1982), on that ground). Here, there is no identifiable category of situations in which application of the "harm'' regulation will necessarily (or even probably) result in a Fifth Amendment taking. In fact, amici do not identify a single instance (and we know of none) in which a plaintiff has even filed a claim alleging, much less proven, a Fifth Amendment taking as the result of an application of the "harm" regulation that inhibited land use. 13. 3. Respondents assert that Congress would not have intended that the ESA interfere with the use of private property because the land use activities affected by the regulation are not otherwise substantially regulated. Resp. Br. 27-28. To the contrary, timber harvesting on non-federal lands, which is the activity that respondents allege the "harm" regulation interferes with, often re - quires a permit. See, e.g., Forest Conservation Council v. Rosboro Lumber Co., No. 94-35070 (9th Cir. Mar. 24, 1995), slip op. 3303; J.A. 19; see also Resp. Br. 9 n.9. Respondents' assumption that Congress invariably acts with the intent to avoid any effect on private land use also ___________________(footnotes) 13 The suggestion by amici Arizona (Br. 24-25) and Texas (Br. 8-11) that the "harm" regulation impermissibly intrudes on state sovereignty is foreclosed by Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S. 264, 283-293 (1981). Arizona's argument (Br. 15-18) that the regulation is unconstitutionally vague is not presented here. The courts below rejected respondents' vagueness challenge (Pet. App. 24a, 47a-51a, 83a-85a), and respondents did not seek review of that holding. In any event, the court of appeals correctly held that unless a regulation is vague in ail its applications, it cannot be declared void on its face, see Village of Hoffman Estates v. The Flipside, Hoffman Estates, Inc., 455 U.S. 489, 497 (1982), and that the "harm" regulation contains limiting features that prevent it from being vague in all applications. Pet. App. 49a-50a. ---------------------------------------- Page Break ---------------------------------------- 17 is without foundation in law or experience-especially where, as here, significant environmental values of na- tional concern are present. See, e.g., Riverside Bayview Homes (Clean Water Act); Virginia Surface Mining (Surface Mining Control and Reclamation Act of 1977). By amending the ESA in 1982 "to increase the flexibility in balancing species protection and conservation with development project s," H.R. Rep. No. 567, supra, at 10, Congress recognized that land use is affected by the Act. The prohibition on the taking of species, in conjunction with the program for authorizing incidental takes, casts jurisdiction over a wider range of activities than ulti- mately will be restricted. This approach rationally and flexibly addresses the inherent difficulties involved in defining prohibited conduct in light of the wide diversity of species and the range of circumstances in which they live. FWS's informal discussions with landowners and the formal Section 10 permit process furnish the means by which the balance can be struck on a case-by-case basis, so that land use activities may continue while at the same time ensuring that the number of "takes" that result will be minimized. 4. Respondents and their amici speculate about pos- sible applications of the "harm" regulation, and they urge the Court to invalidate it in order to prevent such appli- cations. This case, however, involves a facial challenge to the regulation (J.A. 28; Pet. App. 24a), and the regulation therefore must be sustained unless respondents establish that "no set of circumstances exists under which the [regulation] would be valid." Reno v. Flores, 113 S. Ct. 1439, 1446 (1993); see also Anderson v. Edwards, No. 93- 1883 (Mar. 22, 1995), slip op. 11 n.6; Gov't Br. 19. This respondents have failed to do. There is no merit to respondents' suggestion (Br. 37-38) that this case challenges a concrete application of the ---------------------------------------- Page Break ---------------------------------------- 18 "harm" regulation to respondents through "owl guide- lines." In July, 1990, shortly after the northern spotted owl was listed as a threatened species, FWS prepared a document entitled "Procedures Leading to Endangered Species Act Compliance for the Northern Spotted Owl" (J.A. 36-48). That document provided information on various aspects of ESA compliance vis-a-vis the owl, and included a section entitled "Incidental Take Guidelines under Sections 7 and 10" (J.A. 41-44). It is that section that respondents refer to as the "owl guidelines." The courts below did not make any findings regarding the application of those guidelines (or the "take" prohibition) to particular parcels of land. Moreover, respondents fail to mention that they brought a separate suit challenging the same "owl guidelines," on the grounds that they were based on a definition of "harm" that was inconsistent with the ESA and had been developed without the notice and comment allegedly required by the Administrative Procedure Act, 5 U.S.C. 553(b). FWS subsequently withdrew the guidance. The district court then dismissed the complaint as moot, holding that FWS's rescission of the guidance provided the plaintiffs with all the relief they sought. Sweet Home Chapter of Communities for a Great Oregon v. Lujan, Civ. No. 91-2218 (D.D.C. Feb. 27, 1992), slip op. 5. On February 17, 1995, FWS proposed new regulations under Section 4(d) of the Act to address the application of the "take" prohibition to the northern spotted owl. See Gov't Br. 5 & n.4. Among other things, the special rule would exempt private timber harvests from that prohibition in defined areas. For example, on non-federal land located in the spotted owl's range but outside speci- fied zones where full protection is still needed, the rule would exempt incidental takings unless they result from harvesting within a 70-acre area closest to an owl's site ---------------------------------------- Page Break ---------------------------------------- 19 center (i.e., nest tree, or primary roost for non-nesting owls). 60 Fed. Reg. 9484, 9485 (1995). 14. Within special zones that require somewhat greater protection, small landowners (owning less than 80 acres) would be exempted with respect to incidental takings resulting from logging activities outside an owl's site center. Id. at 9485. The proposal also would provide additional flexibility for small landowners, such as a program for owners of between 80 and 5000 acres of forest lands within the special zones to acquire a Section 10 permit with a minimum of red tape by using a "short form" habitat conservation plan. Ibid. The proposed rule for the spotted owl is just one example of FWS's ongoing policy to assist the public in determining whether a particular activity would con- stitute a prohibited act under Section 9 and to streamline the process for obtaining exemptions. See, e.g., 59 Fed. Reg. 34,272 (1994) (policy statement committing agencies to provide guidance and assistance to public to avoid liability for incidental takes); J.A. 43-48. Another example has been implemented in Texas, where qualified land- owners may complete a simplified application form, contribute to the City of Austin Balcones Canyonlands Conservation Fund for mitigation of any taking, and usually within two months receive a permit to take listed species incidental to construction activities. See, e.g., 59 Fed. Reg. 66,555-66,556 (1994) (permit application notices). Respondents contend (Br. 37 n.45) that this case differs from Reno v. Flores because here "[t]here is no dispute ___________________(footnotes) 14 Even within the 70-acre core area.., harvest activities would not automatically constitute a prohibited taking. The proposed rule simply does not exclude such actions from coverage should a taking occur. As a biological matter, there is a substantial risk that such activities would actually kill or injure spotted owls. But as a legal matter, the ---------------------------------------- Page Break ---------------------------------------- 20 about [the "harm" regulation's] manner of application and scope." Even a cursory reading of the amici briefs dispels any notion that there is unanimity of view as to the scope and application of the regulation. Contrary to re- spondents' suggestion (Br. 36), moreover, here, as in Reno v. Flores, there are no findings of fact or a record con- cerning the agency's enforcement. Amici's scattershot introduction of material at this late stage can only provide a truncated, one-sided (and, we believe, inaccurate) view of the facts. 15. In any event, amici's arguments go beyond the scope of a facial challenge. "As the Court of Appeals * * * invalidated the regulation on its face, [this Court has] no occasion to consider whether it is valid as applied." Bowen v. Yuckert, 482 U.S. 137,154 n.12 (1987). ___________________(footnotes) government or plaintiff in a citizen suit seeking to enforce the "take" prohibition would have the burden of proving a "take." 15 For example, citing Idaho Farm Bureau Fed'n v. Babbitt, 839 F. Supp, 739 (D. Idaho 1993), appeals pending, Nos. 94-35164, 94-35230 (9th Cir.), amici American Farm Bureau Fed'n, et al., assert (Br. 15) that in 1985, FWS banned farmers in southwestern Idaho from pumping groundwater in order to protect a listed springsnail. To the contrary, existing groundwater pumping was never banned, and a moratorium placed in 1982 on new pumping applications was imposed by the State of Idaho, not FWS or any other federal agency, for reasons unrelated to any endangered species concerns. 58 Fed. Reg. 5938, 5941-5942 (1993). Moreover, the springsnail at issue was not even listed until January 25, 1993, years after the alleged ban on new groundwater pumping was imposed. 839 F. Supp. at 743-744. ---------------------------------------- Page Break ---------------------------------------- 21 * * * * * For the foregoing reasons and those stated in our opening brief, the judgment of the court of appeals should be reversed. Respectfully submitted. DREW S. DAYS, III Solicitor General APRIL 1995 ---------------------------------------- Page Break ----------------------------------------