ELR Citation: ELR 20314
No(s). 92-5255 (D.C. Cir. Jul 23, 1993)

The court holds that regulations promulgated by the Department of the Interior (DOI) establishing habitat modification as a form of "harm" prohibited by the Endangered Species Act (ESA) and extending to threatened species all protections afforded to endangered species under the ESA do not violate the ESA and are not void for vagueness. Small landowners, small logging companies, and families allegedly dependent on the forest products industry in the Pacific Northwest and in the Southeast challenged two regulations: the "harm" definition at 50 C.F.R. §17.3 as void for vagueness, and the Secretary of the Interior's (Secretary's) regulation at 50 C.F.R. §17.31(a), extending the protections for endangered species to threatened species, as contrary to the ESA.

The court holds that the language, structure, and history of the ESA reveal that Congress intended an expansive interpretation of the word "take," an interpretation that encompasses habitat modification. Although the legislative history reveals that one Senate bill introduced at the time of the 1982 amendments to the ESA offered a different definition of the word "take" from the one that was subsequently adopted, nothing in the legislative history of the ESA indicates that the Senate rejected the definition specifically because it wanted to exclude habitat modification from the definition of "take." The court declines to rely on such speculation to deduce legislative intent. The court next holds that contrary to plaintiffs' claim that Congress intended to address the problem of habitat modification exclusively through federal land acquisition under ESA §5, nothing in the legislative history suggests that Congress intended land acquisition to be the exclusive protective mechanism for listed species' habitat. And contrary to plaintiffs' assertion, not all habitat modification actions constitute "harm" under 50 C.F.R. §17.3. Rather, only an action that "actually kills or injures wildlife" falls into the category of "harm." The court concludes that the Secretary's definition of "harm" at §17.3 is entirely consistent with the ESA's definition of take.

The court next holds that the Secretary's definition of "harm" at 50 C.F.R. §17.3 is not impermissibly vague, and thus does not thus violate the Fifth Amendment's due process guarantee against vague regulations. The court applies a "facts of the case" standard for vagueness challenges to statutes that do not involve First Amendment freedoms. The court concludes that the facts of the case establish that the challenged regulation is not void for vagueness. The definition of "harm" clearly limits prohibited conduct to that which "actually kills or injures wildlife," and the regulation prohibits only "significant habitat modification or degradation." The regulation is thus more than minimal guidance and provides sufficient notice of prohibited conduct. Moreover, no evidence has been introduced to show that the U.S. Fish and Wildlife Service is enforcing the regulation in an arbitrary and discriminatory manner.

Finally, the court holds that extending the taking prohibitions at §17.31(a) to threatened species is not contrary to the ESA. The plain language of the ESA grants the Secretary the authority to promulgate a regulation such as §17.31(a). Specifically, the ESA allows the Secretary to "prohibit with respect to any threatened species any act prohibited under section 1538(a)(1) of this title." Moreover, nothing in the language or legislative history of the ESA requires the Secretary to promulgate regulations under ESA §4(d) on a species-by-species basis. Plaintiffs' reading of the "necessary and advisable" language in §4(d) as a requirement that the Secretary must issue some kind of findings in conjunction with any promulgated regulation distorts the statutory language. The Secretary is only required to issue regulations, but not findings, under §4(d). While the legislative record contains statements suggesting that the Secretary would, under §4(d), draft regulations on an individual basis for each threatened species, nothing suggests a requirement to do so.

Counsel for Plaintiffs
John A. MacLeod
Crowell & Moring
1001 Pennsylvania Ave. NW, Washington DC 20004
(202) 624-2500

Counsel for Defendants
Jean E. Williams
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530