ELR Citation: ELR 20680
No(s). 92-5255 (D.C. Cir. Mar 11, 1994)

On petition for rehearing, the court holds invalid the Fish and Wildlife Service (Service) regulation defining "harm" to embrace habitat modification. The court finds that the Service's definition was not clearly authorized by Congress. The immediate context of the word "harm," as used in §9 of the Endangered Species Act (ESA), argues against a broad reading, because with the exception of "harm," the terms in the definition contemplate direct application of force against the animal taken. This conclusion is supported by the structure of the ESA, which generally imposes broad burdens on the government, including an express obligation to avoid adverse habitat modification, and relatively narrow burdens on individuals. Moreover, the ESA's legislative history indicates that Congress deliberately deleted habitat modification from the definition of take. Finally, Congress' enactment of the 1982 amendments to the ESA neither so altered the context of the definition of take as to render the Service's interpretation reasonable, nor voiced approval of the harm regulations.

[Prior decision in this action are published at 23 ELR 20314 and 21151. Appellate briefs for the D.C. Circuit's first opinion in this action are digested at PEND. LIT. 66246.]

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

Counsel for Appellees
Ellen J. Durkee
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before: MIKVA, Chief Judge, WILLIAMS and SENTELLE, Circuit Judges.