ELR Citation: ELR 21151
No(s). 91-1468 (D.D.C. May 29, 1992)

The court upholds that the U.S. Fish and Wildlife Service (FWS) regulations promulgated under the Endangered Species Act (ESA) defining "harm" to endangered species as a prohibited taking, and a regulation promulgated under ESA §4(d) that extends the prohibitions established for endangered species to all threatened species. The court first holds that the "harm" regulation does not violate the ESA by including actions that modify habitat among prohibited "takings." The FWS interpretation of ESA §3(19) is reasonable. The court also holds that the regulation is not void for vagueness, because the regulation is not vague in all of its applications. That the legality of some activity under the regulation might be unclear does not render the entire regulation facially invalid. Instead, specific vagueness concerns regarding the regulation can be addressed when they are raised in the framework of a challenge to a particular application of the regulation.

The court holds that the FWS extension by regulation of prohibitions for endangered species to all threatened species is a reasonable interpretation of ESA §4(d), because there is no clear indication that the regulation violates the intent of the ESA. The court rejects arguments that the ESA's plain language establishes that Congress intended that regulations extending protections to threatened species be promulgated on a species-by-species basis or that the Act mandates that the U.S. Environmental Protection Agency (EPA or the Agency) issue formal findings of necessity to support each extension. The language on which these arguments are based is less than clear. Section 4(d) arguably grants the FWS the discretion to extend maximum protection to all threatened species at once if its expertise leads it to believe that it is expeditious to do so. Further, even if the ESA mandates that EPA preserve a tiered approach to the conservation of endangered and threatened species, the regulatory scheme satisfies the statute.

[Appellate briefs in this action are digested at PEND. LIT. 66246. The district court decision is published at 23 ELR 20314.]

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

Counsel for Appellees
Jean E. Williams
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.