ELR Citation: ELR 21470
No(s). 92-5255 (D.C. Cir. Aug 12, 1994)

The court rejects en banc a petition for rehearing in a case in which it had held invalid the U.S. Fish and Wildlife Service's (Service's) regulation defining "harm" under §9 of the Endangered Species Act (ESA) to embrace habitat modification. The court first holds that the harm regulation does not require affirmative action that creates death or disturbance to essential behavioral patterns with significant and permanent injurious effects. The rule makes clear that omissions were embraced as fully as acts of commission. The court next holds that there is no substantive, operational difference between the Service's regulations discussing modifications of "critical" habitat under §7 and habitat modifications that are forbidden under the Service's view of §9. The court notes that as a practical matter persons whose intended conduct might be found a criminal "taking" under §9 are under pressure to comply with §10(a) habitat conservation plans, which are recognized by the Service to be "equivalent" to the restrictions imposed under §7 to protect critical habitat. The court next holds that the Service's enforcement of the harm regulation can entail the exercise of power over large tracts of land.

The court finally holds that the statute manifests a clear determination by Congress that the prohibitions of §9 should not reach habitat modifications, as defined by the Service, when there is no direct action by the defendant against any member of the species.

[Prior decisions in this action are published at 23 ELR 20314 and 21151 and 24 ELR 20680. Appellate briefs for the D.C. Circuit's first opinion in this action are digested at ELR PEND. LIT. 66246.]

Counsel for Appellants
John A. MacLeod
Crowel & 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