Hastings Environmental Law JournalVolume 3Number 2 Winter 1996 Article 13

1-1-1996

Babbitt v. Sweet Home Chapter of Communities:When is Habitat Modification a Take Part IITara L. Mueller

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Recommended CitationTara L. Mueller, Babbitt v. Sweet Home Chapter of Communities: When is Habitat Modification a Take Part II, 3 Hastings West NorthwestJ. of Envtl. L. & Pol'y 333 (1996)Available at: https://repository.uchastings.edu/hastings_environmental_law_journal/vol3/iss2/13

Babbitt v. Sweet HomeChapter of Communities

When Is HabitatModification a Take?

(Part II of a two-part article)

Tara L. Mueller4

zSuch is the strange philosophy of the while man! He hews

down the forest that has stood for centuries in its pride and 31grandeur, tears up the bosom of mother earth, and causes the Isilvery watercourses to waste and vanish away. He ruthlesslydisfigures God's own pitures and monuments, and thendaubs a flat surface with many colors, and praises his work amasterplece!l

Environmentalists nationwide cheered and breathed asigh of relief this past summer wheni the U.S. Supreme Courthanded down its landmark decision in Babbitt v. Sweet HomeChapter of Communities ("Sweet Home).2 In an opinion signifi-cantly reaffirming the scope and importa'nce of theEndangered Species Act ("ESA13 in protecting our nation'sfish and wildlife resources, the Court reversed the D.C.Circuit Court of Appeals' decisiori holding that destructionor modification of a species' habitat may not lawfully be pro-hibited under the ESA.' Thus, the imminent judicial threat s

to the ESA's ability to protect species' habitat and to thenumerous habitat conservation planning processes under-way nationwide has now abated. Nevertheless, the SupremeCourt's opinion leaves unanswered a number of crucialquestions as to how the rule prohibiting destruction ormodification of species' habitat will be applied in particularcircumstances. Perhaps more significantly, some are arguingthat dicta in the Courts opinion indicates that the Court willbe inclined to construe the prohibition against habitat mod-ification narrowly in the future. This article summarizes theSweet Home opinion and then analyzes the implications ofthat decision for protection of endangered species and theirhabitats. The article concludes that the ESA's prohibitionagainst habitat modification should not be construed nar-rowly, for to do so would fail to effectuate the purposes ofthe ESA and cause significant hari to listed species.

0 Ms. Mueller Is a Staff Attorney with the Natural Heritage Institute. apublic Interest. non-profit natural resources law and consulting firm in SanFrancisco. She is the author of the GoE TO m FEDE,. AN CA.uORNIEN.NcRE SoEs Los (1994 & Supps. 1995. 1996). published by thePlanning and Conservation League Foundation. The author would like tothank Macon Cowles. Esq.. Macon Cowles & Associates. Professor BrianGray. Hastings College of the Law. and Michael Sherwood. SeniorAttomey.Sierra Club Legal Defense Fund. for their most helpful comments and sug-gestions on this article.

1. Sioux anecdote. In EAsn'rAu. CHAR.S. THE ltmuai Too v 149-50 (1915).

2.115 S. CL 2407 (1995).

3. 16 U.S.C. §§ 1531-1544 (1988).

4. See Tara L Mueller. Stop PBeore You Shao But Not "efbre You Destroy: ACritical Analysis of the D.C. Cirrulrs Decbbtn In Sweet Home Chapter ofCommunities v. Babbitt. 2 \VEs-Nomms 169 (1995) ("Part 1. for a com-plete discussion and analysis of the Circuit Courts opinion in Sweet Home.

5. The ESA Is also underattack in Congress. which is currently consid-ering several ESA reauthorization bills that would overturn the SupremeCourt's opinion and reinstate the D.C. Circuit's holding in Sweet Home. WhilePresident Clinton has threatened to veto any such bill. it would be prema-ture at best to assume a Presidential veto will save the day. A detailed dis-cussion of the ESA reauthorization bills, however. Is beyond the scope ofthis artide.

6. The USFWS Is one of the two federal agencies charged with respon-

Tara L Mueller Volume 3, Number 2I. The Sweet Home Opinion

As discussed in Part I of this article, the issue inSweet Home was whether a United States Fish andWildlife Service ("USFWS")6 regulation defining theterm "harm" in the ESA's definition of "take" toinclude destruction and modification of endan-gered and threatened species' habitat,7 is a reason-able interpretation of the ESA. The Supreme Courtupheld the definition, for a number of reasons.

Examining the text of the ESA, the Court foundthree basic reasons why the statutory language sup-ports the reasonableness of the USFWS' interpreta-tion of "harm." First, the Court held that the USFWSdefinition of "harm" is supported by the ordinarymeaning of that term. The dictionary definition ofthe verb "harm" is "to cause hurt or damage to:injure."8 In the context of the ESA, the Court stated,that "definition naturally encompasses habitatmodification that results in actual injury or death tomembers of an endangered or threatened species."9

The Court, on several grounds, rejected thelandowners' argument and the D.C. Circuit's opin-ion that the definition of the term "harm" should belimited to direct applications of force against aspecies. First, it stated that the dictionary definitionof harm is not limited to direct or willful actions.Second, several of the other verbs in the definitionof "take," especially "harass," "pursue" and "wound,"may refer to actions or effects that do not requiredirect applications of force. Third, the Court statedthat interpreting the word "harm" to exclude indi-rect injuries denies that term independent meaningapart from the other verbs in the definition of "take,"thus rendering it superfluous. Contrary to the D.C.Circuit's opinion, the Court noted, the doctrine ofnoscitur a sociis does not require words groupedtogether in a list to be given the same or similarmeaning, but rather states that each word must"gather[I meaning from the words around it."10 Thestatutory context of the term "harm," the Court said,"suggests that Congress meant that term to serve asibility for administering the federal ESA. The USFWS has juris-diction over all terrestrial species and some marine species.

7. Specifically, the regulation provides: ihlarm in the defin-ition of "take" in the IESAI means an act which actually kills oriniures wildlife. Such act may include significant habitat modifi-cation or degradation where it actually kills or iniures wildlife bysignificantly impairing essential behavioral patterns, includingbreeding, feedipg or sheltering." 50 C.F.R. § 17.3 (1992).

8. Sweet Home, 115 S. Ct. at 2412 (quoting WEBSTER's THIRDNEw INTERNATIONAL DICTIONARY 1034 (1966)).

9. Id. at 2412-13.

10. Sweet Home, 115 S. Ct. at 2415 (quoting jarecki v. G.D.Searle & Co., 367 U.S. 303, 307 (1961)).

1I. Sweet Home. 15 S. Ct. at 2415.

particular function in the ESA. consistent with butdistinct from the functions of the other verbs usedto define 'take'"" The USFWS' interpretation of"harm" as including indirect means of injuringspecies is consistent with this congressional intent.Finally, the Court noted that the D.C. Circuit's inter-pretation erroneously read a requirement of specif-ic intent to take a species into the act, which isinconsistent with the fact that a civil or criminal sec-tion 9 violation requires only a knowing act.i2

Next, the Court held that the USFIWS' definitionof "harm" is reasonable "[gliven Congress' clearexpression of the ESA's broad purpose to protectendangered and threatened wildlife...." i3 The Courtcited two authorities in support of this conclusion.First, the Court observed that it had previouslydescribed the ESA as "the most comprahensive leg-islation for the preservation of endangered speciesever enacted by any nation."'14 It further noted thatthe Tennessee Valley Authority v. Hill case held that"[tlhe plain intent of Congress... was to halt andreverse the trend toward species extinction, whatev-er the cost," and that this intent "is reflected notonly in the stated policies of the Act, but in literallyevery section of the statute," including, section 9.15Second, the Court cited section 1531(b) of the ESA,which states that the fundamental purpose of theESA is "to provide a means whereby the ecosystemsupon which endangered species and threatenedspecies depend may be conserved." 6

The Court also held that Congress implicitlyaffirmed the USFWS' definition of harm when Itamended the ESA in 1982 to include a permit pro-cedure providing for the "incidental take" of aspecies.17 The language of this provision, the Courtsaid, "strongly suggests that Congress understoodsection 9 II to prohibit indirect as well as deliberatetakings."18 The Court also observed tihat the inci-dental take permit procedure requires a permitapplicant to prepare a detailed habitat conservationplan which includes measures to minimize and mit-igate the impact of the permitted activity on endan-

12. Id., see 16 U.S.C. § 1540(a)(1). (b)(I).

13. Sweet Home, 115 S. Ct. at 2414.

14. Id. at 2413 (quoting Tennessee Valley Authority v. Hill,437 U.S. 153, 180 (1978) ("V.A. v. Hill")).

15. Sweet Home, 115 S. Ct. at 2413, (citing T'i.A. v. Hill, 437U.S. at 184). The Court specifically referenced footnote 30 In T.VA.v. Hill, in which it had stated in dicta that conm;truction of theTellico Dam would "harm" the snail darter by destroying Its lastremaining habitat.

16. Sweet Home, 115 S. Ct. at 2413 (citing 16 IU.S.C. §1531(b)).17. 16 U.S.C. § 1539(a)(i){B).

18. Sweet Home, 115 S. Ct. at 2414.

19. Id.

Voltme 3, Number 2Tara L Mueller

Winter 1996 Sweet Home (fup!er of (&rrnunifes

gered and threatened species. Thus, the Court said,this provision supports the USFWS' "conclusionthat activities not intended to harm an endangeredspecies, such as habitat modification, may consti-tute unlawful takings under the ESA unless the[USFWSI permits them."19

The Court found further support for its conclu-sions in the legislative history of the 1973 ESA. TheCourt noted that, although the legislative historydoes not discuss the meaning of the term "harm,"various statements in the Committee Reports domake clear that "Congress intended 'take' to applybroadly to cover indirect as well as purposefulactions." 20 The Court also found it significant that'the term "harm" was added to the Senate version ofthe ESA on the floor, noting that "lain obviouslybroad word that the Senate went out of its way. toadd to an important statutory definition is precise-ly the sort of provision that deserves a respectfulreading."21 The Court did not find it significant thata definition of take which included "destruction,modification or curtailment" of a species' habitat orrange was deleted in the Commerce Committeehearing on the ESA2 2 The Court observed that therewas no explanation of the deletion, and that thedefinition was significantly broader than the USFWSregulation. The deleted provision would have madehabitat modification a categorical violation of thetake prohibition, "unbounded by the regulationsrestriction to habitat modifications that actually killor injure wildlife" and unqualified by "the regula-tion's limiting adjective 'significant' B

Finally, the Court noted that the legislative his-tory of the 1982 amendment to the ESA, whichauthorizes the USFWS to issue permits for the "inci-dental taking" of an endangered fish or wildlifespecies, further supports the validity of the USFVS'harm regulation. Both the House and SenateCommittee reports make clear that "Congress hadhabitat modification directly in mind," since bothreports identify as the model for the incidental takepermit process a habitat conservation plan for ahousing project in California that would have

harmed the endangered Mission Blue butterflythrough development of its habitat.2 4 Further, theHouse Report states that"lbly use of the word 'inci-dental' the Committee intends to cover situationsin which it is known that a taking will occur if theother activity is engaged in but such taking is inci-dental to, and not the purpose of, the activity.": 5

This reference to the foreseeability of incidental tak-ings, the court said, undermines the plaintiffs' argu-ment that the 1982 amendment only covered acci-dental killings of endangered species that occur inthe course of hunting and trapping other animals? 6

The Court rejected the D.C. Circuit's holdingthat section 5's grant of land acquisition authorityto the federal govemment27 and section 7's require-ment that federal agenciesavoid jeopardizing listedspecies and adversely modifying or destroying theirdesignated critical habitat 2s are the exclusivemeans by which Congress intended habitat to beprotected under the ESA. As to section 5. the Courtobserved that:

Ithisl procedure allows for protection ofhabitat before the seller's activity hasharmed any endangered animal, whereasthe Government cannot enforce the § 9prohibition until an animal has actuallybeen killed or injured. The IUSFWSI mayalso find the § 5 authority useful for pre-venting modification of land that is not yetbut may in the future become habitat foran endangered or threatened species.29

The Court also distinguished section 7 fromsection 9 on several grounds. In contrast to section9, section 7 applies only to the federal government;it imposes a broad, affirmative duty to avoidadverse habitat modification: and it is not limitedto habitat modification that actually kills or injureswildlife. 0 The Court deemed -unexceptional" anyoverlap that sections 5 and 7 may have with section9 in particular cases.3i

In conclusion, the Court stated:

20. Id. at 2416 ("[Take' is defined ... in the broadest possi-ble manner to include every conceivable way In which a personcan 'take or attempt to 'take' any fish or wildlife) (quoting S.Rep. No. 307, 93d Cong.. 2d Sess. 7 (1973)). 'Take is defined In-the broadest possible terms. 'take" indudes -harassment,whether intentional or not. Id. at 2416 (quoting S. Rep. No. 412.93d Cong.. 2d Sess. 11. 15 (1973)).

21. Sweet Home, 115 S. Ct. at 2417.

22. Id. (citing Heanngs on S. 1592 and S. 1983 Bifore 1heSubcomm. on Environment of the Senate Subcomm. on Commerce, 93dCong.. Ist Sess. 27 (1973)).

23. Sweet Home. 115 S. Ct. at 2417.

24. Id. at 2418 (citing H.R. Conf. Rep. No. 835.97th Cong.. 2d

Sess. 30-32 (1982); S. Rep. No. 418. 97th Cong.. 2d Sess. 10(1982)).

25. Id. at 2417 (quoting H.R. Rep. No. 567. 97th Cong.. 2dSess. 31 (1982)).

26. Id. at 2417-18.

'27. 16 U.S.C. § 1534.

28. 16 U.S.C. § 1536(a)(2).

29. Sweet Home. 115 S. CL at 2415.

30. Id.

31. Id.

32. Id. at 2418.

Vinte 1996 Bdbft v. Swe-el Home fter d Urnmffes

Tara L Mueller VoltRile 3, Number 2When Congress has entrusted theSecretary with broad discretion, we areespecially reluctant to substitute our viewsof wise policy for his. See Chevron, 467 U.S.at 865-66. In this case, that reluctanceaccords with our conclusion, based on thetext, structure, and legislative history of theESA, that the Secretary reasonably con-strued the intent of Congress when hedefined "harm" to include "significant habi-tat modification or degradation that actu-ally kills or injures wildlife." 32

Justice O'Connor concurred in the judgmentbased on two understandings of the harm regula-tion. First, she stated, "the challenged regulation islimited to significant habitat modification thatcauses actual, as opposed to hypothetical or spec-ulative, death or injury to identifiable protectedanimals." Second, Justice O'Connor said, "regard-less of difficult questions of scienter, the regula-tion's application is limited by ordinary principlesof proximate causation, which introduce notions offoreseeability."33 These limitations caused JusticeO'Connor to "call into question" the Ninth Circuit'sruling in Palla 11.34 However, because the plaintiffshad only brought a facial challenge to the harmregulation and Justice O'Connor could envisionmany valid circumstances in which the regulationmight apply, she joined in the Court's opinion. Herconcurring opinion contains a very interesting dis-cussion of her view of the regulation's purported"particular animals," and "proximate cause" limita-tions, which is discussed further in the analysisbelow.

Justice Scalia, joined by Justices Rehnquist andThomas, dissented. They reasoned that Congressintended the section 9 take prohibition to prohibit

only affirmative conduct intentionally directed atparticular endangered animals, such as hunting andtrapping. They contended that three features of theUSFWS harm regulation are inconsistent with theirreading of the scope of the ESA's take prohibition.First, they stated, the regulation unlawfully dispens-es with the notions of proximate cause and foresee-ability, prohibiting habitat modification "that is nomore than the cause-in-fact of death or injury towildlife."35 Second, the dissenting Justices said theregulation subjects persons to liability for omis-sions as well as affirmative acts. Third, and mostimportantly, they stated that by inchlding impair-ment of breeding within the definition of harm, theregulation unlawfully encompasses injury inflictedupon populations as well as individual animals. Thedissenters explained that "[ilmpairment of breedingdoes not 'injure' living creatures; it prevents themfrom propagating, thus 'injuring' a population of ani-mals which would otherwise have maintained orincreased its numbers."36

II. Analysis of the Sweet Home Opinion: Where AreWe Now and Where Do We Go From Here?

The Court's holding finally puts to rest the crit-ical question of whether destruction or modificationof listed species' habitat can be prolibited undersection 9, This ruling is indeed a significant victoryfor proponents of the ESA. Had the Court ruled theother way, the Act's effectiveness in preventinghabitat destruction, which is the primary cause ofspecies extinction3 7 and a key problem Congressintended to address in enacting the ESA,38 wouldhave been eviscerated. If the Supreme Court hadupheld the D C. Circuit's decision, habitat destruc-tion would have been addressed almostV exclusivelythrough the section 7 consultation process and the

33. Id. (O'Connor, J., concurring) (emphasis added).

34. The Palita case cited by Justice O'Connor was actually thelast in a series of four opinions resulting from two separateactions concerning "take of the endangered palila bird. in thefirst case, plaintiffs sought to enioin the Hawaii Department ofLand and Natural Resources from maintaining feral sheep andgoat herds in the critical habitat of the endangered palila bird,arguing that such actions violated § 9 of the ESA. Specifically,plaintiffs contended that defendants' acts and omissions wereharming the palila by destroying and degrading its habitat, andthereby interfering with its essential breeding, feeding and shel-tering behaviors. The district court agreed, holding that theundisputed facts clearly established a taking within the meaningof the USFWS' harm regulation. Palla v. Hawaii Dep't of Land &Natural Resources, 471 F. Supp. 985, 995 (D. Haw. 1979). This rul-Ing was affirmed by the Ninth Circuit, which held that "ltlhedefendants' action in maintaining feral sheep and goats in thecritical habitat is a violation of the IESAI since it was shown thatthe pallia was endangered by the activity." Palla v. Hawaii Dep'tof Land & Natural Resources, 639 F.2d 495. 497 (9th Cir. 1981)("Palila I-.

in the second Palila action, plaintiffs similarly sought toenioin defendants from maintaining mouflon sheep herds withinthe palila's critical habitat. Again, plaintiffs contended that thesheep were causing a take of the palla by degrading and destroy-ing its breeding, feeding and sheltering habitat. Once more, thedistrict court found for the plaintiffs, holding that the degrada-tion of the palila's habitat by the sheep was "actually, presentlyinjuring the Palila." Palila v. Hawaii Dep't of Land & NaturalResources, 649 F. Supp. 1070, 1080 (D. Haw. 10)86). This rulinglikewise was affirmed on appeal to the Ninth Circuit. Palila v.Hawaii Dep't of Land & Natural Resources, 852 E2d 1106, i 110(9th Cir. 1988) ("Palila I1").

35. Sweet Home, i15 S. Ct at 2421.

36. Id. at 2422.

37. NATIONAL RESEARcH COUNCIL. SCIENCE AND THE ENDANGERED

SPEcIEs AcT (1995); JONES & STOKEs ASSOc., SLIDING TOWARDSEXTINCTiON: THE STATE OF CALIFORNIA'S NATURAL HERITAGE (1987).

38. 16 U.S.C. §§ 1531. 1532(3); T.VA. v, Hill, 437 U.S. at 179.

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Win~or 1996Baltitv. Seet Hiome Oup~ercof Cominuiffes

section 5 federal land acquisition authority. Neithersection is wholly effective in protecting listedspecies' habitat. Section 7 applies only to formallydesignated critical habitat and is only.invoked whena federal agency action threatens to adversely modi-fy or destroy that habitat. Moreover, funds for feder-al land acquisition under section 5 are inadequatefor preserving all the habitat necessary to protectendangered and threatened species.

Absent some kind of authority to restrict habi-tat modifying activities of non-federal landowners,who collectively own a large percentage of thenation's land base, the ESA could never hope tohold the line on extinction. A contrary ruling in theSweet Home case would have released theselandowners from all or nearly all liability fordestroying or modifying habitat of endangered andthreatened species. Thus, as noted in Part I of thisarticle, non-federal landowners would no longerhave had to prepare habitat conservation plansand obtain incidental take permits under section10(a)39 for land development and other habitatmodifying activities, unless these activities wouldhave directly resulted in a "take." Thus, in thisbroad sense, the significance of the Court's opin-ion cannot be overstated. There can no longer beany question that activities that destroy oradversely modify habitat are at least facially pro-hibited under the ESA, whether on federal or non-federal lands, regardless of whether the harm tothe species can be characterized as "direct" or"indirect."

Unfortunately, however, this general statementoffers little concrete guidance for a complex anddiverse world. Because the Sweet Home plaintiffswere challenging the harm regulation on its face,the Court was not adjudicating the regulation'svalidity in any particular factual context. As a con-sequence, the Court assumed the existence of cer-tain facts in order to decide the case. First, thecourt assumed that plaintiffs had no intent to harmendangered and threatened species by their log-ging activities. Second, the Court assumed that thelogging activities nevertheless would have theeffect of "detrimentally changing the natural habi-tat of... listed species and that, as a consequence,members of those species will be killed orinjured."40

In light of the absence of a factual context forthe case, many critical questions remain unan-swered as to how the'rule prohibiting destruction ormodification of species' habitat may lawfully be

applied in particular circumstances. It remains to beseen how the lower courts will follow the SupremeCourt's somewhat obscure direction in Sweet Home.Several passages in the Court's opinion seem toimply that it may be inclined to construe theUSFWS' harm regulation narrowly if faced with achallenge to the regulation in a particular factualsituation. This is exemplified by the following state-ment:

Respondents advance strong argumentsthat activities that cause minimal orunforeseeable harm will not violate theIESAI as construed in the "harm- regula-tion. Respondents, however, present afacial challenge to the regulation Icitationomittedl. Thus, they ask us to invalidatethe Secretary's understanding of "harm" inevery circumstance, even when an actorknows that an activity, such as draining apond, would actually result in the extinc-tion of a listed species by destroying itshabitat.

4 1

Again, at the conclusion of the opinion, theCourt observed:

In the elaboration and enforcement of the.ESA, the Secretary and all persons whomust comply with the law will confront dif-ficult questions of proximity and degree;for, as all recognize, the Act encompasses avast range of economic and social enter-prises and endeavors. These questionsmust be addressed in the usual course ofthe law. through case-by-case resolutionand adjudication.42

What follows is an analysis of some of the spe-cific issues raised in the Sweet Home majority, con-curring and dissenting opinions that will likely arisein future "as-applied' challenges to the harm regu-lation.

A. When Is Habitat Modification the ProximateCause of Death or Injury to a Species?

An issue raised in all three Sweet Home opinionsis whether the harm regulation can and should beread to preclude liability for habitat modificationthat is not the proximate or foreseeable cause ofdeath or injury to a listed fish or wildlife species.This is perhaps the only question that was clearly

39. 16 U.S.C. § I539(a)(2).40. Sweet Home, 115 S. Ct. at 2412.

41. Id. at 2414.

42. Id. at 2418.

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Volume 3, Number 2

answered in the affirmative by the majority.43

Likewise, Justice O'Connor concurred in the majori-ty opinion based on the explicit understanding thatliability for take only attaches to those habitat mod-ifying activities that are the proximate cause ofharm to a species.44 Finally, the dissenters alsoagreed that take liability must be limited by ordi-nary principles of proximate cause, although theydisagreed that the wording of the harm regulationcould be read to encompass such a limitation. 45

It is uncertain how this proximate cause limita-tion will affect the application of the harm regula-tion in a particular case. On the one hand, onecould argue that the effect will not be too signifi-cant, since the proximate cause principle simplyprecludes liability for "bizarre" consequences. 46

Proximate cause is fundamentally based on "con-siderations of the fairness of imposing liability forremote consequences." 47 Viewed in this light, theproximate cause limitation may only act to limit lia-bility for long or attenuated chains of causation inwhich it is obviously unfair to hold a landownerliable for a taking. One such example cited byJustice O'Connor is the "farmer whose fertilizer islifted by lal tornado from tilled fields and deposit-ed miles away in a wildlife refuge."48

On the other hand, as Justice O'Corinoracknowledges, "[plroximate causation is not a con-cept susceptible of precise definition" and is nor-mally decided on a case-by-case basis.49 In otherwords, what is and is not a "proximate cause" of a

particular activity is in the eye of the beholder. Thisis particularly true when proximate cause is viewedin terms of "foreseeability" (a term used in both themajority and concurring opinions), as opposed to"duty" or "remote" cause. That a landowner has aduty to protect endangered and threatened speciesis clearly established by the ESA. Likewise, thedetermination of "remote cause" would appear tobe relatively straightforward, cutting off liability fortake only in extreme and absurd circumstances. Onthe other hand, whether the adverse effects of habi-tat modification on a given species are deemed tobe "foreseeable" will depend upon the judge's sci-entific understanding of the direct relationshipbetween species survival and habitat preservation,and whether the judge believes that a reasonableperson may be charged with constructive knowl-edge of this relationship, both in the abstract and inthe context of a particular case.50

The open-ended nature of the proximate causelimitation thus introduces an element of uncertain-ty into the "take" calculus which could result in amore narrow application of the take prohibitionwith respect to habitat modifying activities.Moreover, because the proximate cause principle isbased primarily on notions of fairness to landown-ers and not on the biological needs of endangeredspecies and the scientific realities of the conse-quences of modification of a species' habitat, itcould result in fewer protections for species.5

Finally, the proximate cause principle may compli-43. See id. at 2412 n.9 ("Iwle do not agree with the dissent

that the regulation covers results that are not 'even foreseeable... no matter how long the chain of causality between modifica-tion and injury.' Respondents have suggested no reason why ...the 'harm' regulation ... should not be read to incorporate ordi-nary requirements of proximate causation and foreseeability")(citation omitted); id. at 2414 n.13 ("Itlhe dissent incorrectlyasserts that the Secretary's regulation ... 'dispenses with the fore-seeability of harm.' ... Itlhe regulation merely implements thestatute, and it is therefore subiect to the statute's 'knowingly vio-lates' language Icitation omitted], and ordinary requirements ofproximate causation and foreseeability").

44. See id. at 2418 ('the regulations application is limited byordinary principles of proximate causation, which introducenotions of foreseeability"); Id. at 2419 ("pnvate parties should beheld liable only if their habitat-modifying actions proximate-ly cause death or injury to protected animals); id. at 2420 ("by useof the word 'actually,' the regulation clearly relects speculative orconiectural effects, and thus itself invokes pnnciples of proximatecausation.... "ITIhe harm regulation applies where significanthabitat modification ... proximately (foreseeably) causes actualdeath or injury to identifiable animals") (O'Connor, I., concurnng)(emphasis in original).

45. Id. at 2421, 2429-30.

46. See jerome B. Orubart, Inc. v. Great Lakes Dredge & DockCo., 115 S. Ct. 1043, 1049 (1995).

47. Sweet Home, 115 S. Ct. at 2420 (O'Connor, j.. concurnng);see also WITKIN, SUMM. OV CAL. LAW, Torts § 968 (9th ed. 1995) (rules

of proximate or legal cause "operate to relieve the defendantwhose conduct is a cause in fact of the iniury, where it would beconsidered uniust to hold him legally responsible"),

48. Id.

49. Id. at 2420.

50. See Dillon v. Legg, 68 Cal. 2d 728. 739 (1968) (conduct Isnegligent where some unreasonable risk of d)nger to otherswould have been foreseen by a reasonable perscn),

51. However, there is a strong argument that, given theCourt's previous holding in T.VA. v. Hill, the proximate causeinquiry under the ESA should not involve considerations of fair-ness to landowners. In T.VA v. Hill, the Suprema Court rejectedthe appellants argument that the traditional "balance of hard-ships" test for injunctive relief should apply in ESA cases,Instead, the Court held. "Congress has spoken In the plainest ofwords, making it abundantly clear that the balance has beenstruck in favor of affording endangered species the highest of pri-orities, thereby adopting a policy which it described as 'institu-tionalized caution'." T.A. v. Hill. 437 U.S. at 194.

Thus, the Court enioined further construc:ion and opera-tion of the Tellico Dam. despite the fact that construction hadnearly been completed, and that Congress had authorized suchconstruction and had appropriated a total of nearly $100 millionfor the project. The Court acknowledged that Its holding mightnot be considered "reasonable" by some, but nevertheless Insist-ed that, under the ESA, its function was not to substitute Its ownjudgment for that of Congress. The Court stated that "Iwle haveno expert knowledge on the subiect of endangereI species, much

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Winter 1996 BaWl v. Sw-get flame U~r~r af Cam~uniffss

cate resolution of any case involving take of aspecies through habitat modification by makingproof of harm (i.e. death or injury) to that speciesmore difficult. Application of the proximate causeprinciple will raise new questions regarding howclose the causal connection must be between ahabitat modifying activity and harm to a species.and how to determine whether an activity is a "sub-stantial factor" in bringing about the harm (espe-cially where there are multiple causes of suchharm).5

2

The potential risk to species posed by the prox-imate cause principle is illustrated by severalexcerpts from the Court's opinions. For example.both Justice O'Connor and the dissenting Justicesappear to agree that application of the proximatecause principle would preclude liability for "a farmerwho tills his field and causes erosion that makes siltrun into a nearby river which depletes oxygen andthereby liniures] protected, fish."' 3 While this mayseem like an attenuated chain of causation to some,the close connection between the farmer's activityand the injury to protected fish is obvious to anyonewith even a minimal understanding of basic ecolo-gy. To the latter group, imposing take liability on thefarmer would likely seem fair, particularly if thefarmer could alter his or her farming practices toreduce erosion and thereby eliminate or minimizeharm -to the fish.' 4 When one considers that the

overall purpose of the ESA is to "halt and reversethe trend towards species extinction, whatever thecost,"5" the farmers liability can hardly be ques-tioned. Nevertheless, at least four Supreme CourtJustices would not find liability in this circumstance.and it is therefore likely that some lower courtswould not either.

Justice O'Connor also w6uld not find liability ina factual situation similar to the Palia 11 case.5 6 Asdiscussed in Part I of this article, in Palita 1. plaintiffssued the Hawaii Department of Land and NaturalResources to enjoin it from maintaining a herd ofmouflon sheep in the habitat of the endangeredpalila bird. The sheep ate the young, tender shootsof the mamane tree. upon which the palila depend-ed for its survival. The sheep prevented the mamanetrees from regenerating, thus leading to continueddegradation of the palila's habitat. The evidence attrial showed that there was a reasonable scientificcertainty that this habitat degradation would drivethe palila to extinction. 57 The Ninth Circuit held thisevidence sufficient to establish a taking of the palilabird under the USFWS' harm regulation.5

In her concurring opinion, however, JusticeO'Connor indicated that the proximate cause andforeseeability limitations "call into question" theNinth Circuit's reading of the scope of the harm reg-ulation. She explained:

less do we have a mandate from the people to strike a balance ofequities on the side of the Tellico Dam." Id.

In light of the ESAs strong policy of institutionalized cau-tion" and the Court's holding in T.V.A v. Hill, both of which requirethe balance of equities to be struck in favor of protecting endan-gered species, courts should not be able to cut off § 9 liabilitysimply on the basis that holding the landowner liable would be'unfair.' since this determination has nothing to do with protec-tion of species. Rather, liability should only be circumscribed Incases where there is an intervening cause of harm or a similarclear break in the chain of causation.

52. See. e.g.. Pyramid Lake Paiute Tribe v. United States Dep'tof the Navy. 898 E2d 1410. 1420 (9th Cir. 1990) (evidence didnotestablish that Navy's annual diversions upstream from PyramidLake. which lowered the lake level, was the cause of decline Inpopulation of endangered cui-ui fish in Pyramid Lake. Moreover.evidence failed to distinguish the impacts resulting from theNavy's diversions from other diversions, including the plaintiffsown).

53. Sweet Home. 115 S. Ct. at 2420. 2423.

54. Indeed, this is the very purpose of the 'incidental take"permit procedure enacted by Congress In 1982. 16 U.S.C.§I539(a)(1)(B). As discussed in section I of this article, the Courtitself concluded that Congress enacted § 10(a) specifically to pro-vide an exception to the § 9 take prohibition as It applied to habl-tat modifying activities. Sweet Home. 115 S. Ct..at 2418. Under the§ iO(a) procedure, any person may apply for a permit to Indden-tally -take' species lawfully, provided he or she prepares a habl-tat conservation plan specifying, among other things: (1) the like-ly impacts of the taking; (2) steps the applicant will take to mon-itor, minimize and mitigate these impacts; and (3) alternatives

that were considered and why these alternatives were reiected. 16U.S.C. § 1539(a)(2)(A). The USRVS must approve the permitapplication If It finds that: (I) the taking Is Incidental to an oth-erwise lawful activity; (2) the applicant will minimize and mitigatethe Impacts of the taking to the maximum extent practicable; and(3) the taking will "not appreciably reduce the likelihood of sur-vival and recovery of the species In the wild." 16 U.S.C. 41539(a)(2)(B).

The fact that this Incidental take permit procedure exists.and the maxim prohibiting a reading of a section of statute whichwould render another section of that statute superfluous, bothcounsel against a restricted reading of the scope of the take pro-hlbltion. It is significant that the standard for granting an ina-dental take permit Is the equivalent of the § 7 "no Jeopardy stan-dard (H.R. Conf. Rep. No. 835). which Is less stringent that the'take" prohibition. See Paul D. Ort. What Dczs It Take to Tak eandXVJatDon It Ta e to l epardiuz? 7TuL&E Etrat LI. 197, 209, 215 (1993). ifthe § 9 take prohibition Is Interpreted, through the proximatecause lIlmItation, to precWfie liability for many types of habitat-modifying activities which have adverse effects on (i.e. jeopardizethe continued existence of) listed species, this would render the§ 10(a) permit procedure a nullity. Because the 10(a) permit pro-cedures allows an exception to the § 9 take prohibition, the takeprohibition must be more stringent than the standard for granti-ng such a permit, otherwise the permit procedure makes nosense.

55. T.VA v. Hill. 437 U.S. at 184.

56. Palil2 II. 852 F2d 1106.57. PaliLz. 649 E Supp. at 1075.58. Patil HI. 852 E2d at 1110.

Rawd . smet Home 11= ,r Cf comiffesWinte 1996

Volume 3, Number 2

[iln my view, then, the "harm" regulationapplies where significant habitat modifica-tion, by impairing essential behaviors,proximately (foreseeably) causes actualdeath or injury to identifiable animals thatare protected under the IESAI. Pursuant tomy interpretation, Palla I-under whichthe [Ninth Circuit] Court of Appeals heldthat a state agency committed a "taking" bypermitting feral sheep to eat mamane-naioseedlings that, when full grown, might havefed and sheltered endangered palila[birdsl-was wrongly decided according tothe regulation's own terms. Destruction ofthe seedlings did not proximately causeactual death or injury to identifiable birds;it merely prevented the regeneration of for-est land not currently inhabited by actualbirds.' 9

Although this statement appears to reflect afundamental misunderstanding of the facts of Palila11,60 it nevertheless vividly highlights the negativebiological impact that application of the proximatecause and foreseeability requirements could haveon section 9 cases. If lower courts adopt anapproach similar to Justice O'Connor's, these limi-tations would preclude a finding of liability fordegradation of habitat that is currently unoccupied,but which could or might be utilized by a species onthe basis that the requisite degree of causation wasnot established.6 Of course, as any biologist knows,the fact that habitat is not currently occupied by a

species does not necessarily mean that it is not cru-cial to the species' survival. 62 But proving this con-nection may be difficult.63 Furthermore, JusticeO'Connor's view of the proximate cause principleimplicitly sanctions piecemeal destruction of aspecies' habitat, leading to "death by a thousandcuts."

Finally, all nine Justices appear to agree thatproximate cause is established, and therefore liabil-ity for "take" is appropriate, in circumstances wherean individual destroys the last remaining habitat ofthe species (thereby causing its extinction), or anindividual member of a species is directly killed bya habitat-modifying action (i.e. through cuttingdown a tree in which a bird is nesting).6 4 However, ifthe proximate cause standard limits liability forhabitat modification to these narrow circum-stances, the term "harm" would practically be readout of the statute altogether, since a,iy injury thatdoes not rise to the level of death (unless inten-tionally directed at a particular animal) would notbe the proximate cause of the activity in question.Such a restricted reading of the harm regulationalmost certainly would not be supported by themajority and concurring Justices, however, since itessentially resurrects the D.C. Circuit opinion over-turned in Sweet Home case.

A better causation standard, at least in casesinvolving civil and criminal penalties, is actual, or"but for," cause.65 The actual cause inquiry askswhether a particular habitat modifying activity has"some prohibited impact" on an endangeredspecies (i.e. "actually kills or injures" that species).66

59. Sweet Home, 115 S. Ct. at 2420-21 (O'Connor. j.. concur- destruction of this habitat would jeopardize the continued exis-tence of the mouse pursuant to § 7).

60. The undisputed facts in the Palila cases were that thepallia bird's entire known population (about 2,200 birds in 1986)was limited to the remaining mamane-naio forests, and the birdoccupied about 10% of its historical range. The experts agreedthat the palla was dangerously close to extinction, and that allremaining mamane forest was essential for the bird's survival.Under these circumstances, any further degeneration of the for-est was bound to cause death or injury to existing individualbirds, not merely prevent future occupation of "potential habitat"by presently nonexistent birds. Palia, 471 F. Supp. at 988-90.

61. See, e.g. Sweet Home. 115 S. Ct. at 2415 (4 5 distinguishablefrom § 9 in part because 4 5 can be used to prevent modificationof land not currently occupied by a species); Morrill v. Luian, 802F. Supp. 424, 431-32 (S.D. Ala 1992) (holding that plaintiff hadfailed to establish causal link between development of endan-gered Perdido Key beach mouse's habitat and harm to mouse inpart because there was no evidence that the mouse actuallyoccupied the habitat).

62. NATIONAL REsEARCH COUNCIL, Preface to SCIENCE AND THEENDANGERED SpEciEs Ac' (1995).

63. See, e.g., Morrill, 802 F Supp. at 431 (holding that unlaw-.ful take of species not shown where habitat unoccupied, eventhough USFWS had concluded in a biological opinion that

64. The dissenting justices would add the further require-ment that the actor possess a specific intent to take the speciesIn question. Sweet Home, 115 S. Ct. at 2424; see atso Id. at 2414-15n.i 5 ("ulnder the dissent's interpretation of the Act, a developercould drain a pond, knowing that the act would extinguish anendangered species of turtles, without even proposing a conser-vation plan or applying for a permit under j§ 1 0a)l; unless thedeveloperwas motivated by a desire 'to get at a turtle'..., We can-not accept that limitation"); Id. at 2420 ("the landowner whodrains a pond on his property, killing an endangered fish In theprocess, would likely satisfy any formulation of the Iproximatecausel pnnciple") (O'Connor, J., concurring); Id. at 2424 ("to chopdown the very tree in which Ian animall Is ne!,ting, or even todestroy its entir6 habitat in order to take it (as by draining a pondin order to get at a turtle), might neither wound nor kill, butwould directly and intentionally harm") (Scalia, I., dissenting).

65. Use of the "but for causation standard Is problematic Incases involving Injunctive relief due to difficulties In proving thata prospective activity will be the future "cause in fact" of harm toa species.

66. See Defenders of Wildlife v. Administiator, E.P.A,, 882F.2d 1294, 1300-01 (8th Cir. 1989) ("jal taking occurs when thechallenged activity has 'some prohibited Impact on an endan-gered species'") (quoting Palila I, 639 F.2d at 497).

Tara L Mueller

Winier 1996 Bati V. Sweet Homte Oopier of Crnurfes

By contrast, the proximate cause inquiry is basedon an unpredictable, non-biological policy analysis.performed on a case-by-case basis. Relying on sucha policy-based analysis to limit liability for harm isinappropriate when Congress has already made thehard policy choice: that protecting listed species is"to be afforded the highest of priorities."67 Underthese circumstances, it is improper for the courts toarrogate to themselves the authority to limit anindividual's liability for harming a species for non-biological reasons, through the uncertain vehicle ofa proximate cause standard. If a habitat modifyingactivity is the actual cause of harm to a listedspecies (i.e. death or injury), liability should attach.The circumstances under which habitat modifica-tion may be deemed to "actually kill or injure" aspecies are discussed below.

B. When Does Habitat Modification "Actually Killor Injure" a Species?

The USFWS harm regulation expressly limitstake liability to those habitat modifying activitieswhich "actually kill[I or injure wildlife."68 A key issueafter the Sweet Home opinion is how the actual injuryrequirement will be interpreted and applied in spe-cific cases. This issue involves several subissues,each of which is addressed below: (1) Does future orthreatened habitat modification satisfy the "actual.injury" requirement?; (2) If so, what degree of riskmust be posed by the threatened future harm andhow imminent must the threat be?; (3) What is"actual injury" in the context of habitat modifica-tion? Is impairment of a species' chances of recov-ery sufficient, or must a decline in the number ofindividual members of the species be shown?; (4)May actual death or injury through habitat modifi-cation be proven by reference to population statis-tics, or must one demonstrate harm to identifiableindividual animals?; and (5) what type and extent ofhabitat modification will result in a finding of actu-al death or injury" Interestingly, depending uponwhich way a given fact pattern is analyzed, all of

67. T.VA v. Hill. 437 U.S. at 174: accord Sierra Club v. Marsh,816 F.2d 1376. 1383 (9th Cir. 1987) (Congress -decided that thebalance of hardships and the public interest tips heavily in favorof endangered species [citation omittedl. We may not use equl-ty's scales to strike a different balance.'); see also United States v.Glenn-Colusa 1ig. Dist., 788 R Supp. 1126, 1132 (E.D. Cal. 1992)(-an analysis and weighing of competing [social and economiclconsiderations is precluded by the IESAI and has already beenundertaken by Congress).

68. 50 C.ER. § 17.3.

69. Sweet Home, 115 S. Ct. at 2412 n.9, 2415.

70. Forest Conservation Council v. Rosboro Lumber Co.. 50F.3d 781. 787 (9th Cir. 1995) (the term "actual' injury Is Intendedto specify the "degree of certainty that harm would befall a pro-

these issues also can be reframed as proximatecause problems.

I. Does threatened future habitat modification qualifyas "actual injury"?The majority opinion in Sweet Home provides

minimal guidance on the question whether threat-ened future harm qualifies as actual injury. Themajority simply observed that, by its own terms, theUSFWS harm regulation only applies in circum-stances where the activity in question "actuallyharms" a species. It is nbt clear how literally theCourt is inclined to read the "actual harm" limita-tion. The Ninth Circuit has held that this limitationdoes not preclude suits to enjoin prospective harmto a species, provided the harm is at least reason-ably certain to occur.70 One passage in the SweetHome opinion, however, raises the question whetherthe Court would agree that the Ninth Circuit's read-ing of the harm regulation is a reasonable construc-tion of section 9's take prohibition. In distinguish-ing section 5's land acquisition authority from sec-tion 9's take prohibition, the Court stated: "the § 5procedure allows for protection of habitat before theseller's activity has harmed any endangered animal,whereas the Government cannot enforce the § 9prohibition until an animal has actually been killed orinjured. 7'

It is difficult to predict how much weight courtsfaced with an "as-applied' challenge to the USFWSharm regulation will give this statement. On the onehand, the passage appears to conflict with the hold-ings of those courts that have considered the pre-cise question whether section 9 may be used toenjoin prospective harm toaa speciesY2 On the otherhand, however, the statement is merely dicta andtherefore was not made in a context in which theCourt was required to consider all of the ramifica-tions of its opinion. Indeed, the Court did not seemto have the ESKs injunctive relief provisions, whichspecifically authorize suits by a private citizen or theU.S. Attorney General to prevent prospective harm,

tected species, as opposed to the timing of the Injury: therefore.the ESA authorizes citizens to seek an Injunction against animminent threat of harm to a protected species): NationalWildlife Fed'n v. Burlington Northern R.R.. 23 F3d 1508, 1511 (9thair. 1994) (in order to obtain an Inlunction under § 9 of the ESA,citizen plaintiff -must prove that there Is a reasonable likelihoodof future [harml*).

71. Swit Home, 115 S. Ct. at 2415 (emphasis added).72. Fores Conseratlon Council, 50 F3d 781: National Widife

Fern. 23 E3d 1508. set also American Bald Eagle v. Bhatti. 9 F3d163. 166 list Cir. 1993) (Injunctive relief may be granted If activi-ty'wiU actually... cause harm to the species') (emphasis added).

Minter 1996

Tara L Mueller

in mind at all.73 All references in the opinion are tothe civil and criminal penalty provisions 7 4 Even theNinth Circuit has held that a threat of harm is insuf-ficient to sustain civil or criminal penalties 75

Finally, the majority may have been using thephrase "actual injury" to preclude section 9 liabilityfor "hypothetical or speculative" injury (but not nec-essarily imminent or likely prospective injury).76

Section 5 authorizes the Government to acquireland for endangered species protection withoutmaking any showing that land acquisition will fore-stall future harm to the species. By contrast, the"actual injury" requirement of the section 9 harmregulation does require a showing that a habitatmodifying activity has caused or is likely to causedeath or injury to a species. As the Ninth Circuit hasexplained:

The [USFWS'sj use of the term "actually" [inthe harm regulation] was not intended toforeclose claims of an imminent threat ofinjury to wildlife. Rather, because theIUSFWSI was concerned that the joriginalldefinition of "harm" could be read to meanhabitat modification alone, the IUSFWSIinserted the phrase "actually kills or injureswildlife" to preclude claims that onlyinvolve habitat modification without anyattendant requirement of death or injury toprotected wildlife.

(Defendant] points out that lplaintiff'sl

Volume 3, Number 2

claim is barred because the IUSF1SJ notedthat a claim for a "potential injury" towildlife would not be actionable. The word"potential" means "existing in pcssibility,"Thus, "potential injury" denotes only injurythat may or may not occur. In contrast,[plaintiff] alleges that Idefendant'sl projectcreates an imminent threat of death orinjury to Ian endangered speciesi. Theword "imminent" means "ready to takeplace; near at hand." The two assertions areclearly distinct ... [Clourts have conclud-ed that the IuSFWSI juxtaposed Ihe terms"actually" and "potentially" to specify thedegree of certainty that harm would befalla protected species, as opposed to the tim-ing of the injury.77

The propriety of the Ninth Circuit's interpreta-tion of the "actual injury" limitation is borne out bythe Sweet Home Court's affirmation of T.V.A. v. Hill (acase in which harm to an endangered species wasimminently threatened, but had not yet actuallyoccurred),78 as well as by the Court's factualassumptions in the case.79 Interpreting section 9 torequire a showing of wholly past or present, ongo-ing harm would be "contrary to the letter and spirit"of the ESA.80 Moreover, as a practical matter, suchan interpretation would lead to the absurd resultthat a citizen suit to enjoin a section 9 violationwould be rendered moot before it became ripe.8t

The meaning of the "actual injury" requirement73. Forest Conservation Council, 50 E3d at 785 (citing 16 U.S.C.

§ 1540(e)(6) and (g)(1)). Certainly, the Court was not thinking ofthe ESA's citizen suit provision, given its reference to "theGovernment."

74. 16 U.S.C. § 1540(a)(1 ) and (b)(1) provide that "lalny per-son who knowingly violates" any provision of the ESA or itsimplementing regulations shall be liable for specified civil and/orcriminal penalties. 16 U.S.C. § 1540(e)(6) and (g)(i)(A). by con-trast, authorize the U.S. Attorney General or any person to "seekto enjoin any person ... who is alleged to be in violation of anyprovision" of the ESA or its implementing regulations.

75.Forest Conservation Council, 50 F.3d at 786 n.3.

76. See 115 S. Ct. at 2418 ("the challenged regulation is lim-ited to significant habitat modification that causes actual, asopposed to hypothetical or speculative, death or injury to identifiableprotected animals") (O'Connor, I.. concurnng) (emphasis added).

77. Forest Conservation Council, 50 F.3d at 787 (quoting 46 Fed.Reg. 54,748-49 (1981)); accord National Wildlife Fed'n, 23 F.3d at 1512and n.8 ("lwlhile we do not require that future harm be shownwith certainty before an inlunction may issue, we do require thata future injury be sufficiently likely'. "what we require is a defini-tive threat of future harm to protected species, not mere specu-lation") (emphasis in original); compare Amencan Bald Eagle v. Bhatti,9 F.3d at 166 ("courts have granted injunctive relief only wherepetitioners have shown that the activity ... will actually, asopposed to potentially, cause harm to the species"). The difficul-ty with distinguishing between a "definitive" or "imminent" threat

versus "speculative" or "potential" harm, Is discussed below,

78. Sweet Home, 115 S. Ct. at 2413-14 ("illn Hill. we construedsection 7 as precluding the completion of the Tellico Dambecause of its predicted Impact on the survival of the snail darterIcitation omittedi.... Although the section 9 'take' prohibitionwas not at issue in Hill. we took note of that prohibition: placingparticular emphasis on the Secretary's Inclusion of habitat modi-fication in his definition of 'harm,' In light of that provision forhabitat protection, we could 'not understand how TVA Intends tooperate Tellico Dam without 'harming' the snail larter") (quotingT.VA. v. Hill, 437 U.S. at 184 n.30).

79. Id. at 2412 (ilwle must assume arguendo that Ilogginglactivities will have the effect ... of detrimentaly changing the nat-ural habitat of ... listed species and that, as a consequence,members of those species will be killed or injured. Under respon-dents' view of the law, the Secretary's only means of forestallingthat grave result--even when an actor kno vs it is certain to occur-is touse his section 5 authority to purchase lands upon which the sur-vival of the species depends. The Secretary, or, the other hand,submits that the section 9 prohibition on takings, whichCongress defined to include 'harm,' places on repondents a dutyto avoid harm that habitat aleration will cause the birds unlessrepondents first obtain a permit pursuant to section 10")(empha-sis added).

80. Forest Conservation Council, 50 F3d at 785

81. Id.

WinIer 1996 Ea~tit v. Sweet Horns Oinp!or cf Cemminifos

is the primary issue before the Ninth Circuit in theappeal of Marbe Murrelet v. Pacific Lumber Company.82

In that case, plaintiffs sought to enjoin implemen-tation of a plan to harvest timber on a 137-acre par-cel of old growth forest in Humboldt County on theground that the timber harvest would "take," i.e."harm" and "harass," the threatened marbled mur-relet by destroying its habitat. The court held aneight-day non-jury trial to determine whether themurrelet occupied the timber stand at issue and ifso, whether the harvest would in fact result in a"take." In its findings of fact and conclusions of law,the courtanswered both of these questions in theaffirmative and permanently enjoined the proposedtimber harvest.

The court found that plaintiffs had met theirburden of establishing that the proposed harvestwill harm and harass the murrelet because the "log-ging activities will result in the destruction anddegradation of occupied Imurreletl habitat, suchthat marbled murrelets will actually be killed orinjured by the logging operations" through signifi-cant impairment of their breeding, feeding andsheltering behavior8 3 The court cited the followingfacts in support of this conclusion:

(1) The timber harvest plan's proposedremoval of 40-60% of the old growth treeson the site "will significantly impair themarbled murrelets' breeding behavior,"thus decreasing the chance of successfulnesting.8 4

(2) Removal of 40-60% of the old growthtrees "Will result in loss of a substantialportion of the nesting opportunities" formurrelets returning to the area from sea tonest.8 5 Returning murrelets will becomedisoriented, and will be subjected toincreased competition. Nest sites that doremain will be degraded and substandard.As a consequence, many murrelets willlikely fail to find suitable nest sites, andthose that do may not be able to success-fully raise their young.

(3) The resulting open and fragmented

82. 880 E Supp. 1343 (N.D. Cal. 1995). appeal docketed, No.95-16504 (9th Cir. Nov. 6, 1995).

83. id. at 1365-66.

84. Id. at 1366.

85. Id.86. Id.

87. Id. at 1367 (citing National Wildlife Fe4'n. 23 F3d at 1512.

nest canopy will significantly increase thelikelihood of avian predation.

(4) The subsequent inevitable decline inthe murrelet population "will result in ahigh probability that the remaining popu-lation of marbled murrelets in this regionwill become extinct." 6

Based on these facts, the court concluded thatplaintiffs had demonstrated a "definite threat offuture harm to the marbled murrelet sufficient towarrant imposition of a permanent injunction s7

Pacific Lumber Company is now seeking to overturnthe district court's opinion, inter alia, on the groundthat a plaintiff is not entitled to injunctive reliefunder the ESA unless he or she proves that harm toa species has already been sustained or is currentlybeing sustained. In support of this contention.Pacific Lumber cites the paragraph in Sweet Homewherein the Court distinguishes between the sec-tion 9 take prohibition and the section 5 land acqui-sition authority on the'basis that the former onlyapplies "once an animal has actually been killed orinjured."3 Pacific Lumber asserts that plaintiffsfailed to meet this standard because they offered noproof that "any specific marbled murrelet had 'actu-ally been killed or injured' by timber harvesting....Rather, Iplaintiffsl offered evidence of theoretical orpossible future harm to unidentified birds."89

In their opposition brief, plaintiffs (appellees)argue, infer alia, that the phrase "actual injury"implies nothing about the timing of the injury, butwas included in the harm regulation simply to pre-clude a claim that habitat modification alone, with-out attendant death or injury (whenever that injurymay occur), violates the take prohibition. 0 Further,they argue, the Sweet Home Court's statement cannotreasonably be read to preclude claims of futureinjury since it clearly refers to the government'senforcement of the ESAs penalty provisions. Assuch, plaintiffs say, the Court's statement does notapply to the provisions authorizing a citizen or thegovernment to seek injunctive relief, which wereenacted for the specific purpose of preventing harmto species before it occurs.91

The plaintiffs' arguiment is clearly the more rea-88. S'uI Home. 115 S.Ct. at 2415.

89. Brief for Appellant at 14-15. Marbled Murrelet v. PacificLumber Co.. No. 95-16504 (9th Cir. 19951.

90.46 Fed. Reg. 54.748 (1981) (to be codified at 50 C.FR. § 17).

91. 16 U.S.C. § 1540(e)(6). (g)(i). See S. Rep. No. 97-418.97th Cong.. 2d Sess. 24 (1982) ('li]nlunctions provide greateropportunity to attempt resolution of conflicts fefore m to aspedes cacus .... The ability to enjoin a prospectke violation of the

Minter 1996 FaWd v. Smee I Nine &o','-rcf Cc mffwnifes

Tarn L Mueller Volt~ne 3, Number 2sonable interpretation of the ESAs take prohibition.Pacific Lumber's reading of the statute would leadto the absurd result that a citizen could not sue toenjoin a take until after it is too late to protect thespecies from such immenent harm. Moreover, asplaintiffs point out, Pacific Lumber's interpretationof the Sweet Home decision would overrule sub silentoT.V.A. v. Hill, which involved prospective harm.However, given the Sweet Home Court's favorable ref-erence to the T.V.A. v. Hill opinion in the context ofthe habitat modification issue, such a result couldnot have been intended. In Sweet Home, the Courtcharacterized the holding in T.V.A. v. Hill in the fol-lowing manner:

In Hill, we construed § 7 as precluding thecompletion of the Tellico Dam because ofits predicted impact on the survival of thesnail darter [citation omitted]. ... Althoughthe § 9 "take" prohibition was not at issuein Hill, we took note of that prohibition,placing particular emphasis on the[USFWS'I inclusion of habitat modificationin [itsl definition of "harm." In light of thatprovision for habitat protection, we could"not understand how TVA intend[edi tooperate Tellico Dam without harming thesnail darter.92

Therefore, neither Sweet Home nor the "actualinjury" requirement preclude suits to enjoinprospective harm to an endangered or threatenedspecies.

2. What degree of risk justifies a finding of actualharm?

If the ESA permits suits to enjoin prospectiveharm to a species, the next difficult and unansweredquestion is the degree of risk that must be posed bya given activity before an injunction will issue. InPalila II, the Ninth Circuit Court of Appeals held thatan activity that could harm a species may properly beenloined as a violation of the take prohibition. 93 Thecourt rejected the defendants' argument that only

activities that would "result in the immediate destruc-tion of the palila's food sources" satisfy the "actualinjury" limitation of the USFWS harm regulation.94

The court reasoned that the harm regulation's inclu-sion of habitat destruction which could or is likely toresult in death or injury to a species is consistentwith the overall purposes of the ESA to provide ameans for conserving the ecosystems upon whichthreatened and endangered species depend for sur-vival.95 More recently, in Forest Conseivation Council,the Ninth Circuit affirmed its prior conclusion, hold-ing that a violation of the take prohibition may beestablished where the threat of future injury is "rea-sonably certain" to occur.9

Although the "likelihood of future harm" issueis not directly addressed in the Sweet Home majorityopinion, the Court does assume that the plaintiffs'habitat modifying activities would have the effect ofkilling or injuring listed species.97 In addition, asmentioned previously, the Court also cites approv-ingly to T.V.A. v. Hill, a case in which destruction ofan endangered species' last remaining habitat wasvirtually certain to harm that species. Further, inrejecting the plaintiffs' facial challenge to the harmregulation, the Court stated: "they ask us to invali-date the IUSFWS'l understanding of 'harm' in everycircumstance, even when an actor k-iows that anactivity, such as draining a pond, would actually resultin the extinction of a listed species by destroying itshabitat."98

Some might contend that these aspects of theSweet Home opinion portend a ruling requiring adegree of certainty of future harm contrary to theNinth Circuit's interpretation of the actual harm lim-itation. However, it is difficult to place this muchweight on the Supreme Court's statements. First, theCourt does not directly address the degree of risk toa species that must exist in order for the take prohi-bition to be invoked. Second, a literal i'eading of theCourt's statements is inconsistent with other por-tions of the opinion wherein the Court explicitlyrejects an interpretation that limits the take prohibi-tion to actions which directly kill or injure listedspecies.99 Only direct harm satisfies a reading of the

Act rather than the ability only to prosecute a completed viola-tion will better serve the interests of the public, the potential vio-lator and the potentially harmed species") (emphasis added).

92. Sweet Home, 115 S. Ct. at 2413 (quoting T.vA. v. Hill, 437U.S. at 184 n.30 (emphasis added)).

93. Paulia II, 852 F.2d at 1108.

94. Id.

95. Id.

96. 50 F.3d at 784; accord National Wildlife Fed'n, 23 F.3d at 1512("Iwlhile we do not require that future harm be shown with cer-tainty before an iniunction may issue [under § 91, we do require

that future harm be sufficiently likely') (emphasis In original),However, the Ninth Circuit, like Justice O'Connor In her concur-ring'opinion, has cautioned that "mere speculation" will not suf-fice. National Wildlife Fed'n. 23 F.3d at 1512 n.8 ("what we require Isa definitive threat of future harm to a protected species, not merespeculation").

97. Sweet Home, 115 S. Ct. at 2412.

98. Id. at 2414; see also Amencan Bald Eagle, 9 F.3d at 166("courts have granted injunctive relief only where petitionershave shown that the alleged activity ... if continued will actually,as opposed to potentially, cause harm to the species"),

99. See. e.g., Sweet Home, 115 S. Ct. at 2413 ('unless the statu-

Tara L Mueller Volume 3, Number 2

Winier 1996 Boblit v. Sweet Home Oinpier of (cinmimifestake prohibition which requires proof of certain deathor injury. This is because it cannot be proven with100% certainty that harm will necessarily occurunless the activity will result in: (1) immediate death(as when a bulldozer crushes a member of a speciesor destroys its last remaining habitat); or (2) imme-diate destruction of all the species' remaining foodsources or breeding sites. The latter types of activi-ties ultimately lead to certain death by starvation orfailure to reproduce.

Finally, the Sweet Home Court's references to cer-tain future harm must be viewed in the context inwhich these statements are made. The Court ismerely using an extreme example for purposes ofillustrating the absurdity of invalidating the USFWSharm regulation in the context of a facial challenge.In such circumstances, a court is required to upholda regulation unless there is "no set of circumstances... under which the Iregulation] would be valid." °O

If section 9 is read to require an absolute cer-tainty of harm before liability will attach, this willfail to effectuate the ESAs purposes. By definition,an endangered species is on the brink of extinction.Therefore, "it should not be necessary for it to dip.closer to extinction before the prohibitions of sec-tion 9 come into force." 0i As the district court stat-ed in Defenders of Wildlife v. Administrator, E.P.A.,"Itihere is no level of threat that can be deemed'insignificant' absent an incidental take Ipermitl." 02

Moreover, limiting the take prohibition to caseswhere death or injury is certain to occur would leadto the bizarre result that an activity which wouldjeopardize the continued existence of the entirespecies under section 7 nevertheless would notconstitute a take of any individual member of thespecies in violation of section 9! Such was the D.C.District Court's remarkable conclusion in North SlopeBorough v. Andrus.103 In that case, the court enjoinedproposed offshore oil leasing activities under sec-

tion 7. but refused to do so under section 9, statingthat the government is not required to

halt all activity merely because there is apossibility that agency action will result ina "taking" at some future time ... . [lnjunc-tive relief should not herein issue unlessdanger to the protected species is suffi-ciently imminent or certain .... The leasesale itself threatens no species.104

Finally, as a leading ESA commentator hasstated, there is

no rational reason to consider futureadverse impacts to endangered species asnot constituting takings merely becausethey do not affect species immediately ....lit makes sensel to halt or modify activitiesas early as possible before takings occur,both to benefit endangered species and toavoid the potential waste of resources onan activity which may be enjoined in thefuture when a taking becomes imminent.10S

The degree of risk of future harm required toinvoke the take prohibition is a key issue in theMarbled Murrelet appeal. Pacific Lumber is arguingthat, assuming the "actual injury" requirement canbe read to proscribe prospective harm, that harmmust be certain to occur. In other words, PacificLumber contends, a plaintiff cannot obtain injunc-tive relief under section 9 unless he or she provesthat the activity being challenged will in fact kill orinjure particular members of the species.'1 AsPacific Lumber's bnef demonstrates, if future harmmust be conclusively demonstrated, this wouldrequire a defacto showing that the habitat modifyifigactivity would directly harm a species.iO 7

tory term 'harm' encompasses indirect as well as direct Injuries.the word has no meaning that does not duplicate the meaning ofthe other words in the definition of 'take'); id. at 2414 (the § 10(a)incidental take permit procedure "strongly suggests thatCongress understood j§ 91 to prohibit indirect as well as deliber-ate takings').

IGO. Reno v. Flores, 113 S. Ct. 1439. 1446 (1993).

101. Pali/a 1. 649 F. Supp. at 1077.

102.688 F Supp. 1334, 1354 (D. Minn 1988), affd. Inpar. rrv"din part, 882 F.2d 1294 (8th CiL 1989); see also Fo est Consen'allonCouncil. 50 E3d at 74 ('lilt is clearly conceivable that one couldinflict great harm on a protected species by creating an Imminentthreat of harm to that species. Such a threat therefore falls easi-ly within the broad scope of Congress' definition of 'take").Significantly, the definition of -take" includes any attempt to take aspecies, which by definition poses a threat of future harm. 16U.S.C. § 1532(19).

103. 486 F Supp. 332 (D.D.C. 1979), afd. in part, rv'd. In par,

642 E2d 589 (D.C. Cir. 1980).

104. North S.pz Borougi. 486 F. Sopp. at 362; accord Californiav. Watt. 520 . Supp. 1359. 1387 (C.D. Cal. 1981),.ald. on othergrounds, 683 E2d 1253 (9th Cir. 19821 (l'alssuming arguendo thatthe proposed leasing activities do constitute a threat to the con-tinued survival of species protected by Ithe ESAI, such a threatwould still not constitute a taking}.

105. DANiEL ROHLF, THE Etu cERED SF.Es AcT: A GUi" ToIrs PTEots.;o L.uix. rD atO:i 61-62 (1989).

106. See Appellants Opening Bnef at 18-23. MarbledMurrelet v. Pacific Lumber Co.. No. 95-16504 (9th Cir. 1995).

107. Pacific Lumbers opening brief reads the take prohibi-tion as narrowly as the dissenting lustices and the overturnedD.C. Circuit opinion In Swreet Hor. Pacific Lumber states:

The timber harvest Is scheduled to occur after the birdsbreeding season when they are at sea and not present inthe stand. Hence, any "harm" Is necessarily indirect. In

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Volume 3, Number 2

However, contrary to Pacific Lumber's argu-ments, the Sweet Home Court did not require evidencethat habitat modification would directly harm aspecies; quite the opposite-the court affirmed thata take may occur indirectly. Further, the court clear-ly stated that a habitat modifying activity must bethe proximate cause of harm to the species. Underthis standard, future harm only need be reasonablyforeseeable, not absolutely certain. In light of this, aplaintiff should only be required to show that it ismore likely than not that habitat modification willsignificantly impair species breeding, feeding andsheltering activities. 108

The district court's findings in the MarbledMurrelet case are more than sufficient to establishthat Pacific Lumber's proposed harvest of oldgrowth redwood trees will actually harm the mur-relet through significant impairment of its essentialbehavior patterns. The court found that the harvest-ing of the murrelet's critical nesting habitat "willresult in a high probability that the remaining popu-lation of marbled murrelets in [the Owl Creek]region will become extinct," and that the survivabilityof the murrelet population in Owl Creek is impor-tant to the survivability of the entire California pop-ulation. 0 9 The court also found that "logging activi-ties ... will result in the destruction and degradationof occupied habitat such that marbled murrelets willactually be killed or injured by the logging opera-tions."i 0 That the actual injury requirement wasmet in the Marbled Murrelet case is further illustratedby the kind of injury necessary to satisfy that test, asdiscussed below.

3. What kind of injury justifies a finding of actualharm?

Another open question after Sweet Home is thenature and extent of injury necessary to invoke the"actual injury" requirement. Although it is clear that

Sweet Home. the Supreme Court approved the indusion inthe regulation of habitat modification but did so onlybecause the Court read the regulation to require actualinjury or death to individual members of the particularspecies at issue. The district courts findings of indirectharm in this case-through "impaired" breeding andpossibly increased predation-are not sufficient to meetthis test.Even if it were shown ... that murrelets nested in the[proposed timber harvestl area. no individual marbledmurrelet would be iniured or killed by a harvest whenthose birds are not present in the stand.... "[llmpairedbreeding" is, at best, a potential or possible conse-quence of the harvesting of trees, and therefore ... notactionable under the ESA.

Appellants Opening Brief at 19, 22, 29.108. In effect, Pacific Lumber's argument changes the stan-

dard of proof required in a case involving the harm regulation

the death of an existing, individual protected animalfalls within the harm regulation's permissible scope,it is not clear to what extent other,,lesser forms ofinjury (such as impairment of species breeding,feeding and sheltering) may properly be proscribed.While the regulation on its face defines "actualinjury" to include impairment of a species' essentialbehavioral patterns such as breeding, feeding andsheltering, the degree of impairment must be signifi-cant."Ii As the preamble to the final harm regulationstates, "[dleath or injury may be caused by impair-ment of essential behavioral patterns which canhave significant and permanent effects on listedspecies."' 12 The question thus turns on the degree ofbehavioral impairment required in order to satisfythe actual injury standard and the proper interpreta-tion of "significant and permanent effects." Is harmto species' recovery sufficient to satisfy the actualharm limitation? Or is a decline in the populationand death of individual members of the speciesrequired? If so, is any decline in numbers sufficient,or must the activity also pose a risk of extinction?

Under one interpretation, the majority opinionin Sweet Home can be read to imply that only activi-ties posing a risk of extinction will meet the actualinjury requirement." 3 However, it is unwise to sec-ond guess the meaning of statements made indicta, as they are simply illustrative examples, anddo not necessarily indicate the Court's view of thepermissible scope of the regulation. Arid again, it isimportant to remember that the Court was onlyaddressing the propriety of the regulation in thecontext of a facial challenge. Further, the Sweet Homemajority clearly indicates that indirect forms ofinjury to a species could violate the take prohibition(such as impairment of essential behavioral pat-terns), but otherwise provides no guidance as to thekind and extent of indirect injuries thai would qual-ify under the statute.from -preponderance of the evidence" to "clear and convincingevidence* or even "beyond a reasonable doubt." There is no basisor precedent for such a high standard of proof In § 9 cases,

109. Marbled Murrelet v. Pacific Lumber Co., 880 F. Supp, at 1366(emphasis added).

110. Id.111. 50 C.E.R. § 17.3.

112. 46 Fed. Reg. 54,748 (1981),

113. See, e.g., Sweet Home, 115 S, Ct. at 2414 ("Irlespondentsask us to invalidate the IUSFWS'j understanding of 'harm' Inevery circumstance, even when an actor knows that an activity,such as draining a pond, would actually result in the extinction of alisted species by destroying its habitat"); Id. at 2414 n. 15 ("lulnderthe dissent's interpretation of the Act, a developer could drain apond, knowing that the act would extinguish an endangeredspecies of turtles, without even proposing a conservation plan orapplying for a permit under j§ 10(a)l") (emphasis added).

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Winier 1996 Bd~il v. Swoel Flame Utnp~er of Ccwaiuinifes

The concurring and dissenting opinions con-tain a more thorough analysis of what these justicesbelieve constitutes injury in the context of habitatmodification. Justice O'Connor agrees that impair-ment of essential behavioral patterns through habi-tat modification can constitute actual inlury.i1 4 Sheexplains:

To raze the last remaining ground on whichthe piping plover currently breeds, therebymaking it impossible for any piping plovers toreproduce, would obviously injurethe pop-ulation (causing the species' extinction in ageneration). But by completely preventingbreeding, it would also injure the individ-ual living bird, in the same way that steril-izing the creature injures the individual liv-ing bird... One need not subscribe to the-ories of "psychic harm" ... to recognize thatto make it impossible for an animal t repro-duce is to impair its most essential physi-cal functions and to render that animal.and its genetic material, biologically obso-lete. This, in my view, is actual injury.'i1

It is unclear whether Justice O'Connor believesthat habitat modification that interferes with aspecies' breeding behavior satisfies the actualinjury requirement only if it completely preventsbreeding and is therefore certain to cause thespecies' extinction (or at least a substantial declinein the population), or whether she was simply usingan extreme example in an attempt to discredit thedissent's analysis.

The dissent opines that habitat modification-which interferes' with a species' breeding behaviorcan never result in actual injury to a particular ani-mal, but can only harm populations of species and"hypothetical" individual animals by causing themnot to come into being.i 6 In Justice Scalia's view,"impairment of breeding" can only injure individualanimals if one believes that the harm regulationencompasses injuries that are not physical innature:

114. Id. at 2419 ('Iblreeding, feeding and sheltering are whatanimals do. If significant habitat modification, by interfering withthese essential behaviors, actually kills or Injures an animal pro-tected by the Act, it causes 'harm' within the meaning of the reg-ulation') (O'Connor, j., concurring).

115. Id. (emphasis added).

116. Id. at 2422 (Scalia, J.. dissenting).

117. Id. at 2430 n.5 (emphasis in original). This viewpoint Isof course completely at odds with basic biology, common sense.and every court decision that has interpreted the harm regula-tion. As justice O'Connor points out:'[o]ne need not subscribe to

[Slurely the only harm to the individualanimal from impairment of that "essentialfunction" is not-the failure of issue (whichharms only the issue), but the psychic harmof perceiving that it will leave this worldwith no issue (assuming, of course, thatthe animal in question, perhaps an endan-gered species of a slug, is capable of suchpainful sentiments). If it includes that psy-chic harm, then why not the psychic harmof not being able to frolic about-so thatthe draining of a pond used for an endan-gered animals' recreation, but in no wayessential to its survival, would be prohibit-ed by the Act?ii 7

Neither the concurring nor dissenting Justicesapparently believe that habitat modification whichimpairs essential behavioral patterns in a mannerwhich prevents or impedes a species' recoverywould satisfy-the actual injury limitation. As JusticeO'Connor explains: "Itlhat a protected animal couldhave eaten the leaves of a fallen tree or could, per-haps, have fruitfully multiplied in its branches is notsufficient under the regulation. Instead ... the reg-ulation requires demonstrable effect (i.e. actualinjury or death) on actual, individual members ofthe protected species."'s

The concurring and dissenting Justices' view ofwhat constitutes actual injury is in contrast to thatof the Ninth Circuit. In National Wildlife Federation, theNinth Circuit rejected the view that the injury sus-tained to a species must pose a threat of extinction,reasoning that "ItIhis would be contrary to the spir-it of the statute, whose goal of preserving threat-ened and endangered species can also be achievedthrough incremental steps."" 9 In fact, the courtnoted, a finding of harm is justified where habitatdegradation causes injury that "prevents, or possi-bly, retards, recovery of the species." 2 0 The districtcourt opinion in the second Palila case also foundthat degradation of the Palila's critical habitat "isactually, presently injunng the Palila by decreasingfood and resting sites so that the Palila populationis suppressed to its current critically endangered

theories of 'psychic harm' ... to recognize that to make it impos-sible for an animal to reproduce Is ... actual injury.' 115 S. Ct. at2419.

118. Id. at 2419 (O'Connor. I.. concumng).

119. 23 F3d at 1512 n.8.

120. Id. at 1513; accord Fort Conservaion Cauncil, 50 F3d at 788nA. Although the Ninth Circuit has never been required to passdirectly upon the Issue of whether harm to recovery is actionableunder § 9. this dicta nevertheless provides a clear indication ofhow the court would rule if faced with the fssue.

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Toro L Mueller Vlm ,Hme

levels. If the Mouflon continue eating the mamaneforest, the forest will not regenerate and the Palilapopulation will not recover to a point where it canbe removed from the endangered species list. Thus,the presence of mouflon sheep ... threatens thecontinued existence and the recovery of the Palilaspecies."1

2iThe Ninth Circuit's approach to the actual

injury clearly makes the most sense. If completeimpairment of breeding injures an individual livingcreature, why wouldn't a.lesser form of impairmentof breeding which prevents the species from recov-ering also actually injure that creature? 122 Indeed,the very purpose of the ESA is to "conserve" threat-ened and endangered species. 123 "To conserve" isspecifically defined as the use of all methods andprocedures necessary to bring the species to thepoint of full recovery.124 Why then, in the words of"the district court in Palila, 25 should a species haveto "dip closer to extinction" in order for the section9 prohibition to come into force? 126 Requiring ashowing of complete impairment of a species'essential behavior necessitates a showing of a sub-stantial threat or certainty of extinction, contrary tothe express purposes of the ESA. It unjustifiablyplaces the burden on the species to demonstrate itsright to survive and reads the term "harm" out of thetake prohibition altogether by requiring evidence ofcertain death of individual members of the species(see further discussion of proof of harm below).Moreover, the line between what constitutes harmto a species' chances of recovery and a species'prospects of survival is often indeterminably thin.1 27

Therefore, it is often difficult to determine whenhabitat modification will threaten a species' contin-ued existence versus when it will "simply" threatenits recovery prospects. For these reasons, the takeprohibition should not distinguish between activi-

121. 649 F Supp at 1080 (emphasis in original).122. See Id. ("Itlhis significant habitat degradation is actually

presently injunng the Palila by decreasing food and nesting sites, sothat the Palila population is suppressed to its current criticallyendangered levels").

123. 16 U.S.C. § 153 1(b).

124. 16 US.C. § 1532(3).125. 649 F. Supp. 1070.

126. Id. at 1077.

127. Id. at 1080; Idaho Dep't of Fish & Game v. Nat'l MarineFisheries Serv., 850 F. Supp. 886, 894 (D. Or. 1994).

128. Sweet Home, 115 S. Ct. at 2412 ("we must assume arguen-do that ... as a consequence [of plaintiffs' logging activitiesl, mem-bers of [an endangeredl species will be killed or injured"); id.at2414 n. 13 ("ltlhe dissent incorrectly asserts that the Iharml regu-lation ... fails to require injury to particular animals"); id. at 2414("no one could seriously request an 'incidental' take permit toavert section 9 liability for direct, deliberate action against a mem-

ties that jeopardize a species' chances of survivaland those that impair its chances of recovering tonon-endangered levels.

4. How may actual harm through habitat modificationbe proven?

After Sweet Home, it is also unclear whether theharm regulation must be read to require proof ofdeath or injury to specific, identifiable members ofa species or whether harm may be established byproof of harm to the population as a whole. Whilethe majority opinion does refer to "particular ani-mals" and "members" of the species, 28 these refer-ences cannot reasonably be read to address theissue of how harm may be proven. Rather, the refer-ences reflect the Court's understanding of the factthat section 9 protects individual animals, not justentire populations. Justice O'Connors concurringopinion, however, indicates that she reads theUSFWS harm regulation to require proof of harm tospecific, identifiable individual animals in order toestablish a "take " 129 Justices Scalia, Rehnquist andThomas also would limit the regulation in this man-ner.130

This "individual animals" proof issue creates aninteresting paradox. On the one band, in theabstract, it would appear that a prohibition againstharm to an individual animal is a more stringentstandard than a prohibition against harm to anentire population. This conclusion reflects section9's more protective focus on individual animals, ascompared with section 7's focus on jeopardy to thespecies as a whole.i3i Thus, if an entira populationhas been harmed, one can logically infer that indi-vidual members of the species necessarily havebeen harmed as well.2 2 For this reason, proof ofharm to a population is a legitimate means ofestablishing harm to individual animals through

ber of an endangered or threatened species"); Id. at 2415 ("theGovernment cannot enforce the section 9 prohibition until an ani-mal has actually been killed or iniured") (emphasi added),

129. Id. at 2418 ("the challenged regulation Is limited to sig-nificant habitat modification that causes actual death or Injuryto identifiable protected animals", "Illn my view, the regulation Islimited by its terms to actions that actually kill or injure Individualanimals"); id. at 2419 ("the regulation requires demonstrable effect .,on actual, individual members of the protected species"); Id. at 2420("the 'harm' regulation applies where significant habitat modifi-cation ... causes actual death or injury to identifiable animals")(O'Connor, J., concurring) (emphasis added).

130. Id. at 2422, 2430-31 (Scalia, J. dissenting).13 1. Frederick Cheever, An Introduction to the Prohibition Against

Takings in section 9 of the Endangered Species Act of 1973 Learning to LiveWith a Powerful Species Preservation Law, 62 U. CoL., L. R 109, 176(1991).

132. See Sierra Club v. Lyng, 694 F. Supp. 1260, 1270-71 (ED.Tex. 1988), aff'd. Sierra Club v. Yeutter, 926 F.2d 429 (5th Cir. 1991)

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circumstantial evidence. This is consistent with thestandard for granting.an exception to the take pro-hibition under 10(a),133 which is essentially theequivalent of the section 7 jeopardy standard. 34 Ifone's entitlement to a permit for incidental take ofspecies is established by proof that the populationas a whole will be protected, then one should like-wise be able to establish that an unlawful take hasoccurred by proving that the population has beenharmed.

On the other hand, if the Sweet Home opinion isread to mean that harm may only be established byproof of death or injury to specific, identifiable indi-vidual animals, this could lead to the absurd conse-quence that even an activity causing a species' pop-ulation to decline would not be a "take" unless thecorpses of individual animals were produced orthere was no other occupied habitat remaining. It isvery difficult to prove that harm has befallen orwould befall specific, individual animals absent evi-dence of a dead body or evidence that the activity atissue would raze the last remaining habitat of thespecies, causing it to go extinct (as was the case inT.VA v. Hill). Without around-the-clock evidence ofan individual animal's behavior, such as breeding,feeding and sheltering, it would be extremely diffi-cult to determine whether an activity was impairingor would impair that behavior. 135 In sum, it is muchmore difficult to prove that an dentifiable individualhas been or would be harmed by a particular activi-ty than it is to establish that the activity is causingor would cause an overall decline in the species'population.

The error of interpreting section 9 to requireproof of death or injury to individual members ofthe species is severalfold. First, as just explained,such an interpretation de facto requires proof ofdirect harm to the species, similar to the D.C.Circuit Court of Appeals' decision and the dissent-ing opinion Sweet Home, and contrary to the cleardirection in the majority opinion. As the Sweet Homemajority pointed out, "unless the statutory term'harm' encompasses indirect as well as direct('lilt is uncontested that a severe decline in the population ofwoodpeckers has occurred in the past ten years. 'Harm' does notnecessarily require proof of the death of specific or Individualmembers of the species [citing the Palia casesl. ... but as thenumbers show themselves, large percentages of the few remain-ing birds have died").

133. 16 U.S.C. § 1539(a)(2)(B)(iv) (an incidental take permitwill be granted if. among other things, it "does not appreciablyreduce the likelihood of the survival and recovery of the speciesin the wild').

134. H.R. Conf. Rep. No. 835. USEWS regulations define "tojeopardize the continued existence of" as "to engage In an actionthat reasonably would be expected, directly or indirectly, to reduceappreciably the likelihood of both the survival and recovery of a list-

injuries, the word has no meaning that does notduplicate the meaning of the other words [in thedefinition] of 'take'.""

Second, a requirement that a section 9 viola-tion be established through proof of death or injuryto identifiable individual animals is inconsistentwith both the plain language of the statute and theoverall purposes of the ESA. Such a crabbed inter-pretation ironically turns section 9, with its moreprotective focus on harm to individual members ofa listed species, into the poor stepchild of section 7,with a less protective focus on jeopardy to entirepopulations of species. In fact, such an interpretationof section 9 may render that section even less pro-tective of species than section 7, allowing the for-mer provision to be invoked only when an entirepopulation faces certain extinction (or an individualmember of a species will be killed directly). Section7, on the other hand, merely requires proof that anactivity is reasonably expected to reduce the likelihood ofthe species' survival and recovery 37 The potentialfor distortion of the purpose of section 9 is illus-trated by the illogical holding in North Slope Boroughv. Andrus, wherein the court held that the proposedoffshore oil leasing activity would jeopardize thecontinued existence of the entire species, but wouldnot result in a take of an individual member of thatspecies. 138

Third, a restrictive interpretation of section 9improperly nullifies the section 10(a)(2) and 7(b)(4)incidental take permit processes. 39 As explained infootnote 54, section 10(a)(2) contains a limitedexception to section 9's stringent take prohibition.Section 10(a)(2) authorizes the USFVS to issue apermit allowing a landowner to take individualmembers of a species as incident to an otherwiselawful activity. A so-called "incidental take" permitmay be issued if. inter alia, the activity will not"appreciably reduce the species likelihood of sur-vival and recovery in the wild: which is the equiva-lent of the section 7 -jeopardy- standardi 40

Significantly, the incidental take permit process wasenacted to address the "concerns of privateed species In the wild." 50 C.R. § 402.02.

135. See Appellant's Opening Brief at 22. Marbled Murreletv.Pacific Lumber Co.. No. 16504 (9th CiL 1995) (ilmpaired breed-ing' might result In f r cr Eirds. but it would not result in the'actu-al Injury' to 'particular animals" required to establish a section 9violation').

136. Swatl Hom. 115 S. Ct. at 2413.

137.50 C.MP,. § 402.02.

138.486 .Supp. 332 (D.D.C. 1979): see afso California v. watt.520 . Supp. 1359 (CD. Cal. 1981); Morrill v. Lulan. 802 E Supp.424 (S.D. Ala. 1992).

139. 16 U.S.C. § 1536(bJ(4). 1539(aJ(l1(B).

140. 16 U.S.C. § 1539(aj(2)(B)iv): H.R. Rep. No. 567. at 31

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Tara L Mueller Volwne 3, Number 2landowners who are faced with having otherwiselawful actions ... prevented by the section 9 prohi-bitions against taking."' 41

Section 7(b)(4) contains a similar process forauthorizing incidental take in conjunction with thefederal consultation process under section 7(a)(2).Congress recognized that, even an activity whichwould not jeopardize the continued existence of aspecies in violation of section 7 still could result inthe take of individual members of that species inviolation of section 9 142 For this reason, Congressauthorized the USFWS to issue an "incidental takestatement" to a federal agency or federal permit orlicense applicant if the taking would not jeopardizethe continued existence of the species as awhole.143 Section 7(o) provides that any taking incompliance with the terms and conditions of anincidental take statement is not a violation of sec-tion 9.144

The fact that a permit to take a species will begranted under section 1 0(a)(2) if the activity will notjeopardize the species' continued existence neces-sarily means that Congress intended the take prohi-bition to be substantially more stringent than thejeopardy standard. Likewise, the fact that Congressrecognized that a take could still occur even in theabsence of a jeopardy determination under section 7(a)(2),and was therefore compelled to enact a procedureauthorizing such take under sections 7(b)(4) and7(o), also means that the take prohibition is muchstricter than the jeopardy threshold.

This is the only interpretation that gives effectto Congress' inclusion of a "no jeopardy floor" insections lO(a)(2) and 7(b)(4) as a "safety valve"release from the restrictive application of the takeprohibition. If the section 9 take prohibition is inter-preted to be less restrictive than the section 7 jeop-ardy standard (through imposition of highly uncer-tain "individual animal" proof requirements, arequirement of proof of certain extinction, or other-("the legislation establishes a procedure whereby those personswhose actions may affect endangered or threatened species mayreceive permits for the incidental taking of such species if theaction would not ieopardize the continued existence of thespecies"); see also House Conf. Rep. No. 97-835, at 29 (1982).

141. H.R. Rep. No. 567, at 31.142. H.R. Rep. No. 835, at 27 ("Iflederal agencies that

receive favorable biological opinions which conclude that theagency action would not violate section 7(a)(2) remain subject tothe section 9 prohibition against taking individual specimens ofendangered or threatened species of fish or wildlife"); H.R. Rep.No. 567, at 26 ("ltlhe purpose of the Section 7(b)(4) and theamendment to Section 7(o) is to resolve the situation in which aFederal agency or a permit or license applicant has been advisedthat the proposed action will not violate Section 7(a)(2) of theIESAI but the proposed action will result in the taking of somespecies Incidental to that action-a clear violation of Section 9 ofthe [ESAI which prohibits any taking of a species. The Federal

wise), then these permit processes would be non-sensical and superfluous. This is because the takeprohibition would not be violated until after thejeopardy floor had been exceeded, and thereforethere would be no legal requirement to obtain suchpermits in the first instance.

5. What extent of habitat modification justifies a findingof actual harm?

Finally, there is the question of l'ow extensivehabitat modification must be in order to trigger thetake prohibition. The USFWS harm regulationdefines harm to include only significant habitat mod-ification. The Ninth Circuit has affirmed this limita-tion. 145 The Supreme Court has likewise stated that"activities that cause minimal ... harm will not vio-late the [ESA as construed in the 'harm' regula-tion." 46 It is unclear what is "insignificant" or "min-imal" harm. But since the Court has also stated that"every term in the regulation's definition of 'harm' issubservient to the phrase 'an act which actually killsor injures wildlife'," 47 it is safe to assume that habi-tat modification which results in actual death orinjury is, by definition, significant within the mean-ing of the harm regulation (regardless of the extentof the area adversely affected or destroyed), andvice versa.

C. Other IssuesThere are two remaining issues regarding the

proper interpretation of the take proiibition withrespect to habitat modification. The first questionpertains to the state of mind necessary to establisha "taking" through habitat modification. The major-ity in Sweet Home clarified that, at least in casesinvolving criminal and most civil penalties, a personneed not specifically intend to harm an endangeredspecies in order to be liable under section 9.148

Rather, the person need only intend the act thatresults in harm to the species. This interpretation isagency or permit or license applicant Is then confronted with thedilemma of having a biological opinion which permits the activi-ty to proceed but is, nevertheless, proscribed from Incidentallytaking any species even though the incidental taking was con-templated in the biological opinion and determined not to be aviolation of Section 7(a)(2)").

143. 16 U.S.C. 1536(b)(4): H.R. Rep, No. 567, at 26. HouseRep. No. 97-835, at 27.

144. 16 U.S.C. § 1536(o).145. National Wildlife Fed'n, 23 E3d at 1513.146. Sweet Home. 115 S. Ct. at 2414.147. Id. at n.13.148. Id. at 2412 n.9 (cnminal violations of the act are gener-

al rather than specific intent crimes), Id. at 2414 ('Congress" addi-tion of the section 10 permit provision supports the Secretary'sconclusion that activities not Intended to harm an endangered

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Winter 1996 Baait V. Sweael li m ftper of Ccrnrwnfes

consistent with Congress' substitution, in the 1978amendments to the ESA, of the term "knowingly" for"willfully" in the criminal and the higher civil penal-ty provision of the ESA.149

The Court's opinion does not address the stateof mind required to establish a section 9 violationin the context of an action for injunctive relief.However, it is sigfiificant that the harm regulationitself contains no intent requirement. Moreover,"with the exception of the provisions authorizingfines and criminal penalties, which require 'know-ing' violations, nothing in the IESA itself indicatesthat a violator must know [ofl or intend" to violate.thelaw. 50 Nor should courts read such a require-ment into the act. In fact, there should be no mensrea requirement for purposes of obtaining injunctiverelief under the ESA. In T.V.A. v. Hill, the SupremeCourt enjoined an action which would result inharm to an endangered species without any show-ing of intent. Requiring a plaintiff to prove that anactor knows that his or her action will result in aprohibited impact on an endangered or threatenedspecies would place an undue burden on plaintiffsand would be contrary to both the letter and thespirit of the ESA.i5i

The second issue -is whether a failure to act oran omission can ever be a taking. The final notice ofthe harm regulation states that use of the term "act"in the regulation is intended to be inclusive of bothcommissions and omissions. 152 Although this issuewas-not addressed in the Sweet Home majority opin-ion, the USFWS' decision to include omissionswithin the regulation's scope was one of the threekey reasons put forth by the dissenters for invali-dating the regulation. 5 3

One district court has held explicitly that a fail-ure to act violates the take prohibition. In Sierra Clubv. Lyng. 54 plaintiffs challenged the United StatesForest Service's (USFS's) forest management prac-tices as a-taking of the endangered red-cockaded

woodpecker. In its findings of fact, the court statedthat the causes of the woodpeckers' decline includ-ed the USFS' failure to: (1) control hardwood mid-story encroachment on pine trees which the wood-peckers used for nesting and foraging; (2) employprescribed burning to control encroachment ofyoung pines and hardwood trees; (3) provide anappropriate basal area in potential nesting stands;and (4) identify and preserve old growth treesappropriate for nesting. The court held that suchfailures to act, considered in conjunction with otherUSFS forest management practices and policies(namely clearcutting). amounted to a taking of thewoodpeckers in violation of section 9. This holding,however, may in part reflect the court's understand-ing of the federal government's affirmative duty toconserve endangered and threatened species undersection 7(a)(l).'5

Ill. Conclusion: An Appeal To Uphold the OriginalIntent of the ESA

If an unduly restrictive reading of the term"harm" is adopted, this will completely fail to effec-tuate Congress' intent in enacting the ESA. to pro-vide a means for conserving (i.e. recovering) endan-gered and threatened species and the habitatsupon which they depend for survival.i56 There is noescaping the biological fact that species cannot sur-vive without habitat. As a recent National Academyof Sciences report concluded: "if habitat is substan-tially reduced in area or degraded, species occurringin the wild will be lost.""57 Thus, any incrementaldestruction of habitat will have a cumulativeadverse impact on a species' chances of survival.Viewed in this context, there can be no de minimusdestruction of habitat. As long as we continue tolose species' habitat, we will continue to see adecline in our nation's biodiversity. Thus, becausethe biological reality is that any species depends on

species, such as habitat modification, may constitute unlawfultakings'); Id. at 2415 ('to the extent the ID.C. Circuit] court read arequirement of intent or purpose into the words used to define'take, it ignored section 9's express provision that a 'knowing'action is enough to violate the IESAI'). 16 U.S.C. § 1540(a)(1) and(b)(1) provide that anyone who "knowingly violates" any provisionof the ESA is subject to specified civil and criminal penalties. 16U.S.C. § 1540(a)(I) provides that any person who "otherwise vio-lates" any provision of the ESA is subject to a civil penalty of notmore than $500.

149. H.R. Rep. No. 1625.95th Cong., 2d Sess. 26 H.R. Conf.Rep. No. 1804. 95th Cong.. 2d Sess. 26. Although not at Issue inthe case, the Court did imply that it might be inclined to read theterm "knowingly" into the "otherwise violates" civil penalty provi-sion in § 1540(a)(1). The Court stated that the provision is "poten-tially sweeping." and that it has "imputed scienter requirementsto criminal statutes that impose sanctions without expresslyrequiring scienter." Sweet Home, 115 S. CL at 2412 n.9. However.

the Court said. the proper case to consider whether to do sowould be a challenge to enforcement of that proasion itself. Id.

150. Cheever. supra note 13 Pat 189.151. See als United States v. Nguyen. 916 F.2d 1016. 1018 (5th

dr. 1990) (violation of ESA is a general Intent crime. prosecutionneed not prove that the defendant knew species was endangeredor threatened or that it was illegal to take such species).

152.46 Fed. Reg. 54.748. 54.750 (1981).

153. Sirt Home. 115 S. Ct. at 2422.154.694 F. Supp. 1261 (E.D.Tex 1988). affd. in part. re/d. inart

on aftergmunds.. Sierra Club v. Yeutter 926 F2d 429 (5th Cir. 1991).155. 16 U.S.C. 1536(a)(1); see Lyng. 694 E Supp. at 1270.156. 16 US.C. 1531(b).157. NAmoA.L ResEARcH COu:sC.. SaEwC= AD h TE Eutoi£oma

SPmiEs Acr 5 (1995).

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habitat to survive, species cannot be artificially sep-arated from their habitat through fine legal distinc-tions which fail to take into account this reality.

Congress has already made the hard- policychoice: that protecting biodiversity is a goal that isimportant enough to outweigh other societal goals,including unrestricted economic development. 58

In enacting the ESA, Congress recognized thatspecies protection is not an easy or a simple matter,and that it often requires our society to make hardchoices and sacrifices. Nevertheless, Congressrequired these choices and sacrifices to be made.159What the cries for a "balanced interpretation" of theESA fail to recognize is that species would not beendangered or threatened if the scales had notalready been heavily tipped against them. The verydefinition of "endangered" means that the speciesis on the brink of extinction and that even incre-mental adverse impacts can have a serious impacton the species' chances of survival. 6° A narrowreading of the take prohibition, however, essential-ly sanctions a game of russian roulette with ournation's imperiled species, contrary to congression-al intent. By erecting numerous legal obstacles toprotection from harm, such a reading unlawfullyplaces the burden on the species to demonstrate itsright to survive, when in fact, given its precariouscondition, all presumptions should be in thespecies' favor.

Now, on the eve of reauthorization of the ESA,we as a nation have another policy decision tomake. We must either decide to do what it takes tomeet the ESA's goal of protecting our nation's price-less biodiversity, or we must determine that loss ofbiodiversity is an inevitable consequence of ever-increasing economic development that simply mustbe tolerated. This policy choice cannot and shouldnot be made by the courts, through an increasinglynarrow interpretation of the take prohibition.Rather, this is a legislative decision, and unless anduntil Congress speaks to this issue again, the courtsare obligated to effectuate Congress' intent asreflected in the current ESA.

158. T.V.A. v. Hill, 437 U.S. at 194 ('congress has spoken inthe plainest of words, making it abundantly clear that the balancehas been struck in favor of affording endangered species thehighest of priorities").

159. George C. Coggin, Snail Darters and Pork Barrels Revisited:Reflections on Endangered Species and Land Use in America, in BALANCINGON THE BRINK OF EXTiNCTION: THE ENDANGERED SPECIES ACT ANDLESSONS FOR THE FuTuRE 64 (Kathryn Kohm ed., 1990).

160. 16 U.S.C. § 1532(6) ("endangered species" means aspecies which is in danger of extinction throughout all or a sig-nificant portion of its range).

=

Steven G. Davison, Alteration of Wildlife Habitat as a ProhibitedTaking Under the Endangered Spedces Act, 10 1. LAND USE &ENvnL. L. 155 (1995).Analyzes provisions of the ESA and regulations of the Fish andWildlife Service that define when a taking has occurred, especiallywith regard to habitat destruction or modification. Areas of ambi-guity are highlighted and Interpretive solutions are suggested. Theinter-circult conflict on the Issue Is explored, and a method ofresolving the constitutional Issues is presented. The article also dis-cusses the Issues surrounding deference to executive agency dea-slon.

Starla K. Dill. Note, Animal Habitats in Harri's Way: SweetHome Chapter of Communities for a Great Oregon v.

Resource Guide Babbitt, 25 ENVn. L. 513 (1995).

Examines the inter-ctrcult split presented by the Ninth Circuit'sPalla cases and the D.C. Circuits Sweet Home decision with respect

Endangered Species' to the deference due the Fish and Wildlife Service regulations thatdefine 'harm' under the ESA. Whether the doctrine put forth inChrwn U.SA v. Natural Resurces Dzfmse Council was properly fol-lowed in each case is analyzed.

Jack Grosse, An Introduction to the Babbitt v. Sweet HomeTrilogy, 23 N. Ky. L. REv. 57 (1995).A short and concise account of why Sweet Home Is significant.Identifies the key legal Issues in the controversy, as well as a few ofthe other ramifications of the decision, such as balance of powersproblems.

Scott C. Lucas, Casenote. The Meaning of Harm Under theEndangered Species Act: Taking a Hard Look at Sweet HomeChapter of Communities for a Greater Oregon v. Babbitt,9 J. ENvTL. L. &Lmo. 591 (1994).Gives ESA background relevant to the Sweet Home decision, then asummary of the facts and the Court's analysis. The decision is con-sidered critically, and Its ramifications are discussed.

Tara L. Mueller, Stop Before You Shoot But Not Before You Destroy:A Critical Analysis of the D.C. Circuit's Decision in SweetHome Chapter of Communities v. Babbitt, 2 WEsr-NoRTH-VEsr 169 (1995)Describes the most Important provisions of the ESA and how theyrelate to the Sweet Home II decision of the D.C. Circuit. The D.C.Circuits decision is carefully scrutinized, and an argument is thenpresented on how the United States Supreme Court should decidethe Issue.

.TARA L. MUELLER, GUIDE TO THE FEDERAL AND CALIFORNIAENDANGERED SPECIES LAWS (Planning and ConservationLeague Foundation 1994 & Supps. 1995,1996).Provides a comprehensive resource on the federal and CaliforniaEndangered Species Acts, the State Natural CommunitiesConservation Planning Program, and other blodiversity protectionstatutes.

I. Sc aLso Resource Guide. Endangered Species. 2 %V/--roNorTcwnsr183 (1995).