From cei@access.digex.net Tue Jul 12 18:50:33 1994 Received: from nova.unix.portal.com (nova.unix.portal.com [156.151.1.101]) by jobe.shell.portal.com (8.6.4/8.6.5) with ESMTP id SAA26450 for ; Tue, 12 Jul 1994 18:50:30 -0700 Received: from access1.digex.net (access1.digex.net [164.109.10.3]) by nova.unix.portal.com (8.6.7/8.6.5) with SMTP id SAA09798 for ; Tue, 12 Jul 1994 18:50:27 -0700 Received: by access1.digex.net id AA25287 (5.67b8/IDA-1.5 for Jeff Chan ); Tue, 12 Jul 1994 21:40:59 -0400 Date: Tue, 12 Jul 1994 21:40:58 -0400 (EDT) From: Competitive Enterprise Institute Subject: CEI LIST - DEFINING "HARM" TO WILDLIFE To: Recipients of the CEI List Message-Id: Mime-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Status: RO DEFINING "HARM" TO WILDLIFE by Ike C. Sugg, CEI fellow in wildlife and land use policy appeared in *The National Law Journal*, 6/20/94 "Towering over the landscape of endangered species law is one monumental peak, the Supreme Court's 1978 opinion in *TVA v. Hill*. That decision set the tone for all future interpretations of the law's purposes and policies," wrote Richard Littell in his 1992 book *Endangered and Other Protected Species: Federal Law and Regulation*. As of March 11, however, a new king of the mountain is on the horizon that may well dwarf the Supreme Court's 1978 opinion. If upheld, a recent decision by the D.C. Circuit Court of Appeals will easily topple *TVA v. Hill* [1] in historical importance. In *Sweet Home Chapter of Communities for a Great Oregon v. Babbitt*, [2] the D.C. Circuit ruled invalidated the Endangered Species Act's regulation of ordinary land uses on private property. The court ruled that the regulation of the FWS, or the U.S. Fish and Wildlife Service, prohibiting habitat modification on private land if it might injure Endangered Species Act-listed wildlife "was neither clearly authorized by Congress nor a 'reasonable interpretation' of the statute." If upheld, it will shut down virtually all the ESA's land use regulation on private property. To put this landmark decision into proper context, one must recall that in *TVA v. Hill*, the Supreme Court held that Congress viewed conserving endangered species as "the highest of priorities" -- a goal to be attained "whatever the cost." Thus, the upshot of the D.C. Circuit's opinion is that no matter how high the priority nor how great the cost, Congress did not intend to foist preservation upon individual property owners merely because they own habitat for endangered species. When President Richard M. Nixon signed it into law Dec. 28, 1973, the ESA made it a crime for any person to "take" any endangered species listed as such in the law. Under the ESA, to "take" means "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." To resolve the meaning of "harm," the Court applied the maxim "noscitur a sociis," which says that a word is known by the company it keeps. "The words of the definition contemplate the perpetrator's direct application of force against the animal taken," concluded the court. It was partly on this basis that the Court invalidated FWS's 1981 regulatory definition of "harm." According to the regulation in 50 C.F.R. 17.3, harm "may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering." For more than a decade, the FWS has used this definition to appropriate the use rights on millions of acres of private property nationwide without compensation. The D.C. Circuit found this definition unauthorized by Congress. "The Act addresses habitat preservation in two ways -- the federal land acquisition program and the directive to federal agencies to avoid adverse impacts," ruled the court. "The latter frames the duty in terms that the [FWS] has now transposed to the private anti-'take' provision." This transposition is what the Court invalidated. The D.C. Circuit found a legislative intent that private landowners would not have to "assist in the protection of endangered species... at excessive costs to themselves" and that Congress wanted to address the habitat modification "problem by providing funds for the acquisition of critical habitat." [3] In *Sweet Home*, the plaintiff organization was joined by a number of for-profit and non-profit organizations representing timber-dependent communities in the Pacific Northwest and forest products companies in the Southeast. Apparently the plaintiffs depended on private timberland adversely affected by the listing of species under the ESA -- the northern spotted owl in the Northwest and the red-cockaded woodpecker in the Southeast. If the "harm" definition had not restricted their rights to use private property, it is unlikely that Sweet Home would have brought suit. It was the first case ever to challenge specifically the validity of the FWS' regulatory definition of "harm." [4] The D.C. Circuit initially ruled against Sweet Home -- but, in the words of that opinion, "only because of the 1982 amendments to the ESA." [5] Those amendments authorized the FWS to issue permits for any "taking otherwise prohibited... if such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity." [6] But in a rare acceptance of a petition for rehearing, the same three-judge panel reversed its initial decision. Sweet Home reiterated and strengthened its argument that the regulatory definition of "harm" was beyond the scope of the ESA, and on rehearing, Judge Stephen F. Williams changed his mind. Judge Williams decided that "it does not follow... that such incidental takings include the habitat modifications embraced by the Secretary's definition of 'harm.'" To argue otherwise, he said, "suggests a focus on 'habitat modification' that was simply not there." Even so, he reasoned, "the Supreme Court has generally refused to infer ratification from mere amendment of adjacent clauses." The original version of the "harm" definition was promulgated by the FWS in 1975 and included "significant environmental modification or degradation." [7] This definition came less than two years after the Senate Committee on Commerce expressly deleted all language defining habitat modification as a proscribed "take" from S. 1983, an early version of the ESA. Sen. John Tunney, D-Calif., the floor manager for the ESA in the Senate, stated that "most endangered species are threatened primarily by the destruction of their natural habitats." To address this problem, Tunney said, "The Secretary would be empowered to use the land acquisition authority... to acquire land for the use of the endangered species programs.... Through these land acquisition provisions, we will be able to conserve habitats necessary to protect fish and wildlife from further destruction." [8] Similar sentiments were expressed by the ESA's floor manager in the House. After he had explained to his colleagues that land acquisition with compensation was the ESA's answer to the habitat modification problem, on the same day Senator Tunney offered a "series of technical and clarifying amendments" that included adding "harm" to the ESA definition of "take." Given that Senator Tunney had distinguished habitat modification from prohibited "takings," it seems unlikely that he meant to prohibit habitat modification. What "harm" meant was not even discussed at the time, nor was it debated or defined until well after the ESA was enacted. In the statute as signed by President Nixon, "harm" was included within the meaning of "take" but was not defined. What followed the ESA's enactment is an object lesson in how ordinary language can be given extraordinary meaning by a regulatory agency. [9] In 1975, the FWS' definition of "harm" prohibited "acts which annoy [wildlife] to such an extent to significantly disrupt essential behavioral patterns, which include, but are not limited to, breeding, feeding or sheltering." Not until 1981, however, did anyone directly address the scope of the "harm" definition. KEY NINTH CIRCUIT CASE In *Palila v. Hawaii Department of Land and Natural Resources* (*Palila I*), decided in 1981, the 9th Circuit held that the state's failure to remove feral livestock from an endangered bird's habitat constituted a harm and therefore a taking of the bird. [10] In this case, feral sheep and goats were eating mamane seedlings on state land. The problem was that the endangered palila bird depended on mature mamane trees for food and shelter. The State was ordered to kill the feral animals so as to prevent an illegal harm. That same year, the U.S. secretary of the interior proposed to redefine "harm," acknowledging that the Ninth Circuit's decision in *Palila I* prompted the proposal. [11] The proposed amendment would have restricted severely the interior secretary's control of private property. In effect, strangely enough, a regulatory agency was arguing against an expansion of its own power and authority. Moreover, the proposal was supported by the Interior Department's solicitor, who found that the Ninth Circuit's ruling in *Palila I* was "inconsistent with the intent of Congress," because "an early version of the bill that became the ESA specifically included 'destruction, modification, or curtailment of habitat' within the definition of 'take,' but this was deleted from the final act." [12] But after receiving 328 comments on the proposed rule, 262 of which were opposed, the Secretary abandoned it. Before the end of 1981, while still under severe pressure from the environmental establishment, the FWS promulgated a new definition of "harm" that included "significant habitat modification or degradation where it actually kills or injures wildlife" (the same definition expressly invalidated by the Court in *Sweet Home*). In 1984, the Sierra Club reopened the *Palila* case by moving to add mouflon sheep to the list of harmful animals and have them removed. The State of Hawaii countered that the mouflon sheep were not harming the palila because the bird's population had ceased to decline. In this case -- *Palila II* -- the district court and the 9th Circuit stated in dicta that this new regulation on harm was consistent with the ESA. [13] Indeed, the district judge found that "harm" can occur without "a decline in population numbers," and ruled that habitat modification constitutes a taking even if it merely "prevents the population from recovering." The 9th Circuit affirmed the district court's finding that a taking had occurred but chose not to decide on the issue of whether harm includes habitat modification that prevents recovery. [14] Other courts have applied the harm definition since, but until *Sweet Home*, none was presented with the argument that the definition was unauthorized by the ESA and should be held void for vagueness. In November 1993, however, the District Court for the District of Oregon decided a case in which the plaintiffs alleged that under the ESA, timber harvesting would result in the future taking of a pair of northern spotted owls. In that case, *Forest Conservation Council v. Rosboro Lumber Company*, [15] the court held that "an allegation of a speculative one-time future violation of the ESA which will not result in the extinction of a species is insufficient to establish an actionable taking." The court added: "FWS does not have the authority to prohibit an incidental taking in advance and is limited to instituting prosecution after an incidental take has occurred." Despite the *Rosboro* ruling, the FWS continues to prevent private landowners from modifying habitat based on speculative future injuries. Secretary of the Interior Bruce Babbitt has said that "when a species is listed, there is a freeze across all of its habitat for two to three years while we construct a habitat conservation plan which will later free up the land." [16] DECISION'S FALLOUT The D.C. Circuit Court in *Sweet Home* went even further than the court in *Rosboro*, explicitly invalidating the definition of harm and all government land use regulations on private land arising from that definition. In response, Kevin Sweeney, Secretary Babbitt's chief spokesman, said that the Sweet Home decision "merely creates a split in the circuits and does not in any way change the definition of harm as it applies in the Ninth Circuit." [17] The Interior Department is hoping to use the 9th Circuit's 1988 decision in *Palila II* as a foil against *Sweet Home*. Given the issues in that case, however, that may be hard to do. As amicus curiae in *Palila II*, the United States argued against the broad interpretation of "harm" sought by the plaintiff environmental groups. The United States stood by its definition, simply agreeing with the state that mouflon sheep were not actually injuring or killing -- and therefore, not "harming" -- palila birds in violation of the ESA. Thus, when the 9th Circuit affirmed the district court's finding that permitting mouflon sheep in the area inhabited by palila birds constituted a taking,* the decision concerned the scope of the harm definition, not its validity. Perhaps most interesting were the arguments made by the government in briefs filed in *Sweet Home*. To save the harm definition from the "void for vagueness" challenge, the defendants argued that "the regulatory 'harm' definition is much more narrow and requires the evidence of actual physical impacts -- killing or injury to wildlife." Indeed, the government made its intentions clear by citing two cases supporting their contention that "where a precise and narrow judicial interpretation may save a statute from impermissible vagueness, that interpretation should be employed." [18] Moreover, the government argued that "the ESA requires the government to prove a 'knowing' violation before it can impose either civil or criminal liability for a Section 9 violation. The intent requirement thus vitiates any vagueness concerns." [19] Combined with the requirements of "proof of attendant death or injury" and "evidence of actual physical impacts," this might have mooted Sweet Home's "void for vagueness" argument. According to the U.S. District Court for the District of Columbia in *Sweet Home*, "Plaintiffs' argument itself relies upon an unwarranted expansive reading of the Secretary's regulation.... The Secretary's definition thus requires proof of actual killing or injury to wildlife, consistent with the ESA's definition of 'take.'" [20] The D.C. Circuit's first opinion in *Sweet Home* affirmed the district court's interpretation, and concluded that "the definition of 'harm' explicitly limits prohibited habitat modification to that which 'actually kills or injures wildlife,'" and that "the government must establish that the charged party *knowingly* violated the statute or regulation." [21] Such a limited construction, however, is at odds with how the FWS actually is actually applying the "harm" regulation on private property today -- as Secretary Babbitt himself implied when he admitted to freezing all "habitat for two to three years" when a species is listed. In December 1993, for example, the federal government filed an enforcement action to enjoin Anderson & Middleton Logging Co. from harvesting timber on 72 acres of its own land on Washington state's Olympic peninsula. The reason for this action was that a pair of northern spotted owls were nesting not on private land, but on government land 1.6 miles away from the company's 72-acre plot. [22] So far, the government has rejected the opportunity to drop its case in light of *Sweet Home*. Even if *Sweet Home* is overturned, this probably would not satisfy the ESA's prohibition of actions that "actually kill or injure wildlife." Like *TVA v. Hill*, which according to one observer "had a bombshell impact on Capitol Hill," [23] fallout from *Sweet Home* is bound to spread nationwide. If upheld, the decision will take much of the power over land use from environmental interests that were given such power in such cases as *TVA v. Hill*, *Palila I*, and *Palila II*. For this reason alone, one can expect the FWS and other environmental litigants to wage a fierce battle against *Sweet Home*, all the way to the Supreme Court if necessary. ENDNOTES [1] 437 U.S. 153 (1978). [2] 17 F.3d 1463 (D.C. Cir. 1994). [3] The D.C. Circuit was quoting from the remarks of the ESA floor manager in the House of Representatives. 119 Cong. Rec. 30162 (Sept. 18, 1973). [4] Originally, the plaintiffs also argued that 50 C.F.R. 17.31(a), by automatically extending the taking prohibition on endangered species to all threatened species, violated the ESA's statutory design and language. Their argument, that the statute allows the taking prohibition to be extended only by a regulation that is specific to a particular threatened species -- and documents why it is "necessary and advisable" to apply the taking prohibition to that species -- was rejected by the D.C. Circuit but was not appealed in the petition to rehear the case. [5] 1 F.3d 1 (D.C. Cir. 1993). [6] 16 U.S.C. 1539(a)(1)(B). [7] The original definition of harm appeared in 50 C.F.R. 17.3 (1975). [8] 119 Cong. Rec. 25669 (July 24, 1973), quoted in *Sweet Home*, 17 F.3d 1463 (D.C. Cir. 1994). [9] For additional information, see Ike C. Sugg, "Caught in the Act: Evaluating the Endangered Species Act, Its Effects on Man and Prospects for Reform," 24 Cumberland L. Rev., vol. 24, no. 1, p. 1 (1993-1994). [10] 471 F.Supp. 985 (D. Hawaii 1979), aff'd, 639 F.2d 495 (9th Cir. 1981). [11] 46 Fed. Reg. 29,490, 29,492 (1981). [12] Id. at 29,490, 29,491. [13] *Palila II*, 649 F.Supp. 1077 (D. Hawaii 1986), aff'd, 852 F.2d 1106 (9th Cir. 1988). [14] 852 F.2d 1106, 1110 (9th Cir. 1988). [15] 92-1114-HO (D. Ore. Nov. 18, 1993). [16] Bruce Babbitt, "The Triumph of the Blind Texas Salamander and Other Tales from the Endangered Species Act," E Magazine, 54 (March/April 1994). [17] See Kim Tyson and Ralph K.M. Hauritz, "Ruling Threatens Species Habitat," Austin American-Statesman, A-1 (March 16, 1994). [18] U.S. v. Harriss, 347 U.S. 612, 618, n. 6 (1954); U.S. v. Conlon, 481 F.Supp. 654, 665 (D.D.C. 1979). [19] Federal Defendants' Memorandum in Support of Federal Defendants' Cross Motion for Summary Judgment and in Opposition to Plaintiffs' Motion for Summary Judgment, p. 18 (Oct. 9, 1991). [20] 806 F.Supp. 279, 284 (D.D.C. 1992). [21] 1 F.3d at 4 (emphasis in the original). [22] U.S. v. Anderson & Middleton Logging Co., C93-5697R (W.D. Wash. Dec. 9, 1993). [23] Charles C. Mann and Mark L. Plummer, "The Butterfly Problem," Atlantic Monthly, p. 51 (Jan. 1992), quoting Donald Harry, who was then with the World Wildlife Fund and is now with the Interior Department. _______ __________ ___________ / | / | | | |__________ | | | | \ | | \ _______ |__________ ___________ COMPETITIVE ENTERPRISE INSTITUTE 1001 Connecticut Ave. NW #1250 Washington, DC 20036 202-331-1010, fax 202-331-0640 Permission to copy granted as long as these lines are left intact. To subscribe to the cei list, send a message to cei@digex.com. 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