26 ELR 10003 | Environmental Law Reporter | copyright © 1996 | All rights reserved

Sweet Home and the Narrowing of Wildlife "Take" Under Section 9 of the Endangered Species Act

Editors' Summary: The Supreme Court's recent Sweet Home decision validated the U.S. Fish and Wildlife Service's regulation defining "harm" under the ESA to include habitat modification. The decision leaves private landowners facing uncertainty regarding what types of actions they may take on their land without causing "harm" to a listed species and thereby committing a "take" of the species in violation of the Act. The authors examine the statutory "take" prohibition and the regulatory provisions further defining "take" and "harm." They then discuss the history of the Sweet Home case and the Sweet Home decision itself. Next, they describe the scope of the "harm" regulation in light of Sweet Home and several other decisions under the Act. They conclude that these decisions have substantially narrowed the extent to which habitat modification on private land may constitute a "take" under the ESA, but that substantial uncertainty remains.

Mr. Quarles and Mr. Macleod are partners in, and Mr. Lundquist is special counsel to, the law firm of Crowell & Moring in Washington, D.C. The authors have sought to provide a well-supported analysis. Still, the analysis below inevitably reflects some sympathy for landowners derived from the authors' role as counsel to the landowner and development interests in Sweet Home and several other cases discussed herein, as well as their representation of similar interests seeking legislative reform of the ESA.

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Without question, the Endangered Species Act of 1973 (ESA)¹ is the nation's preeminent wildlife protection law. Among all of the provisions in this peerless statute, ESA § 9 is the most stringent and most broadly applicable. Section 9 makes it unlawful for any "person"—public official and private landowner alike—to "take" any "endangered species of fish or wildlife" anywhere in the United States.² The ESA defines "take" to include 10 different forms of conduct.³ By regulation, the U.S. Fish and Wildlife Service (FWS) has defined one of those forms of conduct—"harm"—in a manner that can limit significantly the uses of private property.⁴

In a 1993 Article, we described the unsettled law of "take" and "harm."⁵ Cases decided since then have narrowed the breadth of the ESA prohibition on "takes," and affirmed the legality of the "harm" regulation. The most prominent decisions include Babbitt v. Sweet Home Chapter of Communities for a Great Oregon,⁶ and American Bald Eagle v. Bhatti.⁷

Despite these clarifications, many landowners still face a high level of uncertainty on potential liability for "takes." Congress is likely to clarify the meaning of "take" when it amends and reauthorizes the ESA.

We begin this Article with an overview of the statutory and regulatory provisions that prohibit "takes" of most listed wildlife species, and a summary of the opinions in Sweet Home. Since these matters were addressed recently in ELR—The Environmental Law Reporter,⁸ we only provide a background sufficient to understand the significance of the Sweet Home case.

The Article then presents our analysis of how Sweet Home has affected the law of wildlife "take" under the ESA. Our thesis is that Sweet Home, in upholding the FWS' "harm" regulation, has narrowed the situations in which land use activities can be found to "take" wildlife under the ESA.

Overview of the ESA and Regulatory Provisions on "Take"

Section 4 of the ESA⁹ creates a rulemaking procedure that the Department of the Interior (DOI) must follow in [26 ELR 10004] determining that species are endangered or threatened and placing them on lists of endangered species or threatened species. Section 9(a) then creates a series of prohibited acts with respect to endangered species, but not threatened species.¹⁰

Section 9(a)(1)(B) declares that "it is unlawful for any person" to "take" any "endangered species of fish or wildlife" anywhere "within the United States."¹¹ The prohibition applies to private individuals as well as government agencies and officials, and applies on both private and public lands within the United States. The prohibition against taking endangered wildlife is repeated in the federal regulations.¹²

A different set of ESA and regulatory provisions makes it unlawful to "take" a threatened wildlife species. While the ESA itself does not ban the taking of threatened species, § 4(d)¹³ grants the FWS discretionary authority to extend any of the prohibited acts of § 9(a)(1) to a threatened wildlife species. By regulation, the FWS has extended presumptively the "take" prohibition (and all other § 9(a)(1) prohibitions) to all threatened wildlife.¹⁴ The D.C. Circuit upheld that regulation in Sweet Home on the ground that the ESA was sufficiently ambiguous to allow the FWS to apply the "take" prohibition to all threatened species through a blanket rule, rather than make individualized determinations of which prohibitions should apply to each threatened species.¹⁵

Because § 9(a)(1)(G) makes it unlawful to violate an ESA regulation, it is unlawful to "take" a threatened species of fish or wildlife in violation of 50 C.F.R. § 17.31(a). Thus, the same "take" prohibition applies to all endangered species of fish and wildlife and to most threatened species of fish and wildlife (hereinafter collectively referred to as listed wildlife).

ESA § 11¹⁶ provides for three types of actions against those who "take" listed wildlife or otherwise violate § 9: government actions for civil penalties under § 11(a); government actions for criminal penalties under § 11(b); and government or citizen actions for injunctive relief under § 11(e)(6) and (g).¹⁷

There have been very few reported civil and criminal penalty cases alleging that a land use activity caused a "take." Actions to enjoin land uses in advance—due to fears that they could "take" listed wildlife—have been more prevalent. Most of these have been brought as private citizen suits under § 11(g).¹⁸

The ESA defines "take" as any of 10 types of conduct: "'take' means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct."¹⁹ The FWS has chosen to define two of these types of conduct—"harass" and "harm"—by regulation:

Harass in the definition of "take" in the Act means an intentional or negligent act or omission which creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral patterns which include, but are not limited to, breeding, feeding or sheltering.

Harm in the definition of "take" in the Act means an act which actually kills or injures wildlife. Such act 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.²⁰

The FWS' regulatory definition of "harm" arouses landowners' misgivings by explicitly placing the effects of "habitat modification"—land use activities—within the ambit of the "take" prohibition. This Article focuses on the meaning of the "harm" regulation as applied to private land use activities.

The Sweet Home Case

Background

The Sweet Home plaintiffs brought the suit in response to increasingly expansive administrative and judicial interpretations of the ambiguous "harm" regulation. In a set of Owl Guidelines issued in 1990, for example, FWS field personnel asserted that modifying habitat suitable for the threatened northern spotted owlby merely harvesting trees within specific areas, e.g., around a nest site, or from stands that were below certain densities (in foraging and dispersal areas) could be "harm" without any proof of death or injury to a specific owl.²¹ Similar FWS guidance for other listed wildlife characterized various habitat modification activities that do not conform to desired standards as "harm."²² Additionally, some courts had read the "harm" regulation broadly as prohibiting actions that would adversely affect the amount of habitat available for future generations of a listed wildlife species, and as prohibiting actions based on biological speculation regarding a land use's effects on the population trend for the species.²³

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Sweet Home was filed in 1991 by a group of small landowners and others who were engaged in silvicultural activities in habitats of the threatened northern spotted owl in the Pacific Northwest and the endangered red-cockaded woodpecker in the Southeast. The plaintiffs' planned timber harvesting had been prohibited or restricted by the application of this broad view of "harm." The plaintiffs maintained that wildlife "take" under the ESA is limited to actions directed at wildlife, such as hunting and fishing. They contended that Congress had not transformed ordinary land use activities not directed against wildlife, such as cutting brush or timber, plowing a field, or constructing a residence, into unlawful ESA "takes," and had not granted the FWS any authority to regulate land uses that are entirely private and do not require any federal authorization or funding. The plaintiffs argued that the "harm" regulation is invalid because its inclusion of habitat-modification activities exceeded the above-described statutory limitations on "take."²⁴

The FWS could usually induce compliance from landowners through threats of criminal enforcement of the broader view of "harm," without having to bring after-the-fact enforcement actions.²⁵ This held true for the Sweet Home plaintiffs. Though they felt the threat of enforcement of the broader view of "harm," the FWS brought no such enforcement actions against them. Therefore, they could bring their concerns to court only as a facial challenge to the "harm" regulation as ultra vires of the ESA.

Overview of the Sweet Home Decision

The facial challenge to the "harm" regulation failed in district court, succeeded in the Court of Appeals on rehearing, and failed in the Supreme Court by a 6-3 vote.²⁶ Justice Stevens authored the Supreme Court majority opinion on behalf of the six Justices who voted to uphold the regulation. Justice O'Connor filed a concurring opinion that describes some perceived limitations on "harm." Justice Scalia wrote a dissenting opinion, in which Chief Justice Rehnquist and Justice Thomas joined, that would have found the "harm" regulation invalid.

Before each court during the course of the Sweet Home litigation, the government's attorneys construed the "harm" regulation narrowly, presumably to improve the prospects that it would be upheld. The government interpreted "harm" as barring only habitat modification activities that have actually killed or injured, or definitely would kill or injure, a member of a listed wildlife species.²⁷ The Department of Justice (DOJ) disclaimed the broader notions that adversely modifying habitat by itself is a "take" or that land use actions can be prohibited where there is only a potential risk that listed wildlife could be injured in the future.²⁸ The Solicitor General also suggested proximate cause limits on liability for "harm."²⁹

The majority opinion in Sweet Home adopted these narrowing interpretations as the law of the land. The Supreme Court found that, so narrowed, the "harm" regulation is not facially inconsistent with the legislative intent of the ESA.³⁰ In dissent, Justice Scalia colorfully accused the majority of introducing "law a la carte"—of "incorrectly" interpreting the "harm" regulation narrowly and the ESA broadly to result in a "regulation that the Court has created and held consistent with the statute that it has also created."³¹

The majority opinion sustained the "harm" regulation for at least seven reasons. First, "harm" has a broad common meaning that "encompasses indirect as well as direct injuries."³² Second, reading "harm" to include injuries caused by habitat modifications is consistent with the ESA's purpose of conserving "the ecosystems upon which endangered species and threatened species depend."³³ Third, construing"harm" to protect against habitat modification that causes extinction comports with the Supreme Court's prior jurisprudence in Tennessee Valley Authority v. Hill that the ESA was intended to "reverse the trend toward species extinction, whatever the cost."³⁴

The fourth reason was that the plaintiffs did not meet the difficult burden of proof in a facial challenge. To invalidate the "harm" regulation in a facial challenge, the plaintiffs had to show that the FWS' understanding of "harm" is invalid in every circumstance.³⁵ The Sweet Home majority identified at least one circumstance in which a habitat modification activity would "take" listed wildlife within the meaning allowed by the ESA: "When an actor knows that an activity, such as draining a pond, would actually result in the extinction of a listed species by destroying its habitat."³⁶ The majority opinion found it reasonable to conclude that Congress intended to prohibit habitat modification that would proximately cause the extinction of an entire listed wildlife species or other major loss of listed wildlife. But the majority also stated that the plaintiffs in Sweet Home "advanced strong arguments that activities that cause minimal or unforeseeable harm will not violate the Act."³⁷ This leaves the door open for later "as applied" challenges to the "harm" regulation.

Fifth, the Sweet Home majority found support for the "harm" regulation in the "incidental take" provision in the [26 ELR 10006] 1982 ESA amendments and its legislative history.³⁸ The majority reasoned that the addition of the ESA § 10 provision authorizing the FWS to grant permits where the "take" would be incidental to an otherwise lawful activity indicates that the 1982 Congress supported the FWS' "conclusion that activities not intended to harm an endangered species, such as habitat modification, may constitute unlawful takings under the ESA unless the Secretary permits them" under § 10.³⁹

Sixth, the majority found that the legislative history of the 1973 ESA does not "undermine[] the reasonableness" of the regulation.⁴⁰ Justice Stevens concluded that the committee report statements that "take" should be construed broadly made the "harm" regulation a "permissible construction of the ESA," even though the Senate committee had deleted habitat modification from the definition of "take" and floor statements had distinguished between habitat destruction and "takes."⁴¹ Seventh and finally, because "Congress did not unambiguously manifest its intent to adopt respondents' view" of the ESA, the Court concluded that it must defer to the administering agency's "reasonable" interpretation of the ambiguous ESA under Chevron, U.S.A., Inc. v. Natural Resources Defense Council.⁴² These and other portions of the majority opinion suggest that the ESA does not compel the "harm" regulation and its restrictions on use of private land. Instead, the ambiguous legislative intent merely provides the FWS with the discretion to adopt such a regulation.

In a spirited dissent, Justice Scalia and two other Justices would have found the "harm" regulation invalid on the ground that Congress did not include ordinary land uses within the scope of an ESA "take" of listed wildlife.⁴³ The dissent provided a rebuttal to each of the significant arguments in the majority opinion and Justice O'Connor's concurrence.⁴⁴ Justice Scalia also raised the overarching policy issue of who should pay the cost of providing habitat for listed wildlife on nonfederal lands, and concluded that the ESA "places upon the public at large, rather than upon fortuitously accountable individual landowners, the cost of preserving the habitat of endangered species."⁴⁵

Justice O'Connor's concurrence recognized that the Court was only interpreting the intent of prior Congresses, and that the present "Congress may, of course, see fit to revisit this issue" by adopting a new definition of "take" when it reauthorizes and amends the ESA.⁴⁶ Indeed, Congress may clarify the meaning of both "take" and "harm."⁴⁷

The concurrence provided a specific example of an overly broad judicial interpretation of "harm." Justice O'Connor concluded that the Ninth Circuit decision finding "harm" in Palila v. Hawaii Department of Land & Natural Resources "was wrongly decided" under the "regulation's own limitations."⁴⁸ Justice O'Connor agreed with the majority that there also may be "questionable applications of the regulation that test the limits of the agency's [statutory] authority."⁴⁹

These statements in the majority and O'Connor opinions suggest that plaintiffs should be circumspect in bringing the ESA "harm" citizen suits and other enforcement actions. Any action asserting a broad interpretation of the "harm" regulation against a particular activity runs the risks that the action will be found to be outside the proper scope of the "harm" regulation or that the regulation is ultra vires of the ESA as applied to that activity.

The ESA Law of "Take" After Sweet Home

Summary

The law on when a land use activity becomes a violation of the § 9 "take" prohibition can be summarized as follows: the "harm" regulation renders unlawful only those significant habitat modification or land use activities that have proximately and foreseeably caused, or definitely would proximately cause, the death of or a significant actual injury to particular members (or perhaps a single member) of a listed wildlife species.

These elements of a land use-derived "take" are found in the Supreme Court's opinions in Sweet Home, the First Circuit's opinion in American Bald Eagle,⁵⁰ the text of the "harm" regulation itself,⁵¹ the preamble describing the final "harm" regulation,⁵² and the government's representations to the Supreme Court. The different elements required to prove "harm" are described below.

Adverse Modification of Habitat Without a Proven Injury to Listed Wildlife Is Not "Harm"

After Sweet Home, a mere showing that habitat modification would be adverse to the best interests of a listed wildlife species would not prove "harm." Adverse habitat modification by itself does not "take" wildlife.

Sweet Home supports this conclusion in two ways. First, contrasting the § 7(a)(2) duty that federally authorized actions not cause "adverse modification of [designated critical] habitat" with the § 9 duty that no person "take" wildlife, the majority stated that "Section 7 imposes a broad, affirmative duty to avoid adverse habitat modifications that § 9 does not replicate, and § 7 does not limit its admonition to habitat modification that 'actually kills or injures wildlife.'"⁵³ Second, the majority noted that the habitat protection [26 ELR 10007] language that had been in the Senate bill's original definition of "take" (before the committee of jurisdiction deleted it) "would have applied far more broadly than the regulation does because it made adverse habitat modification a categorical violation of the 'take' prohibition, unbounded by the regulation's limitation to habitat modifications that actually kill or injure wildlife."⁵⁴

Thus, as the district court found in Sweet Home, "not all habitat modification actions constitute 'harm' under the § 17.3 definition"—"habitat modification would not be considered a taking unless there was proof of attendant death or injury" to a listed wildlife species.⁵⁵

"Harm" Requires Proven Death of or Actual Injury to Particular Individuals

The Sweet Home majority noted that the "harm" regulation was amended "in 1981 to emphasize that actual death or injury of a protected animal is necessary for a violation."⁵⁶ The majority interpreted the "harm" regulation as requiring "injury to particular animals" by stating that the "dissent incorrectly asserts that the Secretary's regulation … 'fail[s] to require injury to particular animals.'"⁵⁷

Justice O'Connor concurred on the understanding that the Court had found that "the challenged regulation is limited to significant habitat modification that causes actual, as opposed to hypothetical or speculative, death or injury to identifiable protected animals."⁵⁸ Justice Scalia as well stated that the majority "apparently concedes that the statute requires injury to particular animals rather than merely to populations of animals."⁵⁹ At other points, Justice O'Connor reemphasized that "the regulation is limited by its terms to actions that actually kill or injure individual animals,"⁶⁰ that the "regulation requires demonstrable effect (i.e., actual injury or death) on actual, individual members of the protected species,"⁶¹ and that Palila was wrongly decided in part because there was no proven "actual death or injury to identifiable birds" or "actual birds."⁶²

Thus, it appears that all the Justices read the "harm" regulation as requiring proof of death or injury to particular animals or identifiable individuals. This also seems to be the result under the definitions in the regulations. The "harm" regulation requires "an act which actually kills or injures wildlife,"⁶³ and makes the "definitions contained in part 10 applicable" for discerning the meaning of "wildlife."⁶⁴ Part 10 defines "wildlife" to mean "fish or wildlife" and defines "fish or wildlife" to mean "any wild animal, whether alive or dead, … including any part, product, egg, or offspring thereof."⁶⁵ The references to a "wild animal" that is either "alive or dead" and to a "specific part, … egg, or offspring" of an animal only make sense if "wildlife" refers to a particular member of the species—either an identifiable living individual or the carcass or part of a deceased individual. This suggests that the "harm" regulation requires proof that an act has actually killed or injured, or would actually kill or injure, a particular wild animal.

"Harm" Requires Actual Injury—the Mere Potential for Future Injury Is Insufficient

The above-quoted excerpts from the Sweet Home opinions also disclose a requirement of proof that the land use would actually result in death or serious actual injury. Speculation that such deaths or injuries potentially could occur would not suffice. Even before Sweet Home, the First Circuit held this was required to prove "harm" in American Bald Eagle.⁶⁶

In American Bald Eagle, an environmental organization sought to enjoin a deer hunting season on state lands in Massachusetts, based on a theory that deer hunting increases the risk of "harm" to bald eagles from possible ingestion of lead slugs in deer carcasses. The Court of Appeals held that even a significant probability of injury to listed wildlife is not sufficient to enjoin an action. Instead, the regulation requires proof that injury or death will actually occur:

The proper standard for establishing a taking under the ESA, far from being a numerical probability of harm, has been unequivocally defined as a showing of "actual harm." … There is, however, no evidence in the record of any harm to the bald eagle at Quabbin as a result of the 1991 deer hunt…. By requiring the plaintiffs to show only "a significant risk of harm" instead of "actual harm," the district court required a lower degree of certainty of harm than we interpret the ESA to require. The appellants certainly cannot meet this court's standard of "actual harm" if the district court found that they failed to prove that even a "significant risk of harm" existed.⁶⁷

American Bald Eagle accurately described the degree of certainty of death or injury that the "harm" regulation requires. As the Solicitor General stated in Sweet Home, the American Bald Eagle court and other "courts have correctly interpreted the 'harm' prohibition not to extend to activity that only potentially, as opposed to actually, causes (or will cause) harm."⁶⁸ The requirement for a definite actual injury, as opposed to the potential for or risk of injury, is emphasized in the preamble to the final "harm" regulation:

The purpose of the redefinition was to preclude claims of a Section 9 taking for habitat modification without any attendant death or injury of the protected wildlife…. The word "actually" [has been] reinserted in the definition to bulwark the need for a proven injury to a species due to a party's actions…. The final redefinition … [is] precluding a taking where no actual injury is shown…. The Service feels that the legislative history cannot be read to prohibit habitat modification under section 9 [26 ELR 10008] without actual injury…. To the extent that the comment contends that habitat modification alone is a taking, it is without support in the Act or legislative history…. The Service agrees with the many other comments which recognized the need for actual injury…. The final definition adds the word "actually" before "kills or injures" to clarify that a standard of actual, adverse effects applies to section 9 takings…. To be subject to section 9, the modification or degradation must be significant, must significantly impair essential behavioral patterns, and must result in actual injury to a protected wildlife species.⁶⁹

Unfortunately, the FWS ignored this limitation on "harm" in the Owl Guidelines and in other situations when FWS personnel asserted that habitat modifications by themselves were "takes" or that the risk of loss of listed wildlife was a "take."⁷⁰ This abandonment of the actual injury requirement induced the Sweet Home plaintiffs to bring suit, and brought about the return to the original regulatory intent that the Supreme Court's and First Circuit's constructions of "harm" dictated.

Implications of the "Actual Injury" Requirement for Injunctive Relief and Penalty Actions

The meaning of "harm" as actual injury to particular animals led the Sweet Home majority to conclude that the "government cannot enforce the § 9 prohibition until an animal has actually been killed or injured."⁷¹ This conclusion likely means that an after-the-fact civil or criminal penalty proceeding under § 11(a) or (b) will be successful only when the government can produce a corpus delicti or can otherwise prove that a specific identifiable animal has been killed or injured. A biologist's speculation that a death may have occurred to some unknown, hypothetical animal would not seem to satisfy the Supreme Court's standard for "harm" in a criminal or civil penalty context—even ignoring the additional elements that may be required to prove a knowing violation.⁷²

Whenever the government or citizens attempt under § 11(e)(6) or (g)⁷³ to permanently enjoin a proposed habitat modification activity before any § 9 "take" has occurred, the plaintiff likely will be successful only if he or she can prove that the activity will actually cause the death of or injury to particular animals. These provisions expressly allow a court to enjoin only a violation of the ESA or an ESA regulation, not the risk of such a violation. Since a person violates the "harm" regulation only if members of a listed wildlife species are actually killed or injured, a permanent injunction cannot be issued when there is only a future risk of such actual injury.⁷⁴ The absence of proof that an activity had actually caused, or would definitely cause, the death of or injury to members of a listed wildlife species appears to underlie the dismissal of ESA "take" claims in cases such as Swan View Coalition, Inc. v. Turner,⁷⁵ National Wildlife Federation v. National Park Service,⁷⁶ and California v. Watt.⁷⁷

A preliminary injunction may present a slightly different situation. Because a preliminary injunction is available if the plaintiff is likely to succeed on the merits, a plaintiff may only need to "prove that there is a reasonable likelihood of future violations of the ESA" to preliminarily enjoin an activity pending resolution of the case on the merits at summary judgment or a trial.⁷⁸ To obtain a permanent injunction, in contrast, "the plaintiff must show … actual success" on the merits, not just a likelihood of success.⁷⁹ Since the standard for success under the "harm" regulation is death of or actual injury to wildlife, it appears that in order to obtain a permanent injunction, a plaintiff has to prove that the challenged land use activity actually will cause the death of or an injury to a particular member or members of a listed wildlife species.

This level of certainty is rare in predictive biology. Often, removing the cover of protective habitat merely increases certain risk factors for a member of a listed species by, for example, increasing the chances that a predator may discover the member or diminishing the chances that the member may find sufficient food. In other situations, habitat modification might not injure a particular animal because the animal can move to nearby suitable habitat or because individuals vary in their responses to environmental stresses.

Thus, plaintiffs seeking to enjoin a land use activity that has not taken listed wildlife in the past typically will find the requirement for a proven actual injury difficult to satisfy. Where injury is not certain, but there is a significant risk of harm or a high probability that injury may occur, the stringent standard for proving "harm" has not been met.⁸⁰ In this situation, it appears that a court should not enjoin the landowner from conducting the activity.

Instead, where there is only a risk that an activity might "take" wildlife in the future, a court likely cannot enjoin the landowner to do anything. The landowner is free to make a difficult choice among the options of: (1) not conducting the land use activity, and bearing the economic consequences; (2) conducting the land use activity, and bearing the consequences of potential civil and criminal liability if the activity actually does "take" listed wildlife; or (3) applying for an incidental take permit under § 10(a), and bearing the economic consequences. Because applying for an incidental take permit is not mandatory, the landowner cannot be enjoined to expend time and money in pursuing [26 ELR 10009] this authorization to "take" wildlife. Should an injury to listed wildlife actually and proximately result from the land use activity, however, the landowner would be subject to civil and criminal penalty proceedings for a completed "take" under § 11(a) and (b).

The Ninth Circuit's opinion on "harm" in Forest Conservation Council v. Rosboro Lumber Co.⁸¹ preceded the Supreme Court's decision in Sweet Home. The opinion suggests that plaintiffs will often be given an opportunity to prove their allegations that an activity will "take" listed wildlife, as Rosboro reversed a summary judgment dismissal of an ESA citizen suit and remanded for a trial. Many portions of the Rosboro opinion seem consistent with Sweet Home in requiring proof that the death of or actual injury to listed wildlife has occurred or will occur. For example, the Ninth Circuit stated that the "harm" regulation:

preclude[s] claims that only involve habitat modification without any attendant requirement of death or injury to protected wildlife…. The Secretary noted that a claim for a "potential injury" to wildlife would not be actionable…. [and] "potential injury" denotes only injury that may or may not occur…. The Secretary juxtaposed the terms "actually" and "potentially" to specify the degree of certainty that harm would befall a protected species….⁸²

Other portions of the opinion stated that a proposed use of private land that poses a "threat of injury" or "is reasonably certain to injure" a spotted owl satisfies the actual injury requirement and justifies enjoining the use.⁸³ If "threat" and "reasonably certain" refer to risks or probability levels that an injury might or might not occur, such a standard for a permanent injunction seems inconsistent with Sweet Home, American Bald Eagle, and other portions of the Rosboro opinion itself. The Ninth Circuit may have confused the standards for a permanent injunction with the more easily met standards for a preliminary injunction announced in National Wildlife Federation v. Burlington Northern Railroad.⁸⁴

Similarly imprecise language appears in another pre-Sweet Home decision: Marbled Murrelet v. Pacific Lumber Co.⁸⁵ Portions of the opinion suggest that timber harvesting would "decrease the chances of successful nesting" by marbled murrelets, or "significantly decrease the likelihood that they will be able to successfully nest and raise their" young.⁸⁶ Such risks or potential for future injury do not prove "harm" under Sweet Home and American Bald Eagle, even if reduced breeding success qualifies as actual injury.⁸⁷

But other portions of the Marbled Murrelet opinion stated more conclusively that logging activities "will result in the destruction and degradation of occupied habitat, such that marbled murrelets will actually be killed or injured."⁸⁸ This conclusion, if adequately supported, may meet the "actual injury" standard in the "harm" regulation, assuming that proximate causation and related tests are satisfied.

The Death of or Injury to One Individual May Not Be Sufficient to Prove "Harm"

The Sweet Home majority opinion and concurrence sustained the "harm" regulation when there are deaths of numerous individuals or members. Conspicuously, the majority found the "harm" regulation lawful when there is a "habitat modification that results in actual injury or death to members of an endangered species" or in the "extinction of listed species."⁸⁹ It further suggested that § 9, read literally, only makes it unlawful to "take" the entire species.⁹⁰

The majority states there are "strong arguments that activities that cause minimal … harm will not violate the Act as construed in the 'harm' regulation"—that the "difficult questions of proximity and degree" needed for "harm" can be addressed "through case-by-case resolution and adjudication."⁹¹ This raises the interesting question of whether the Supreme Court has only upheld the legality of the "harm" regulation when a land use activity would cause the demise of several members of a listed wildlife species. A habitat modification activity that causes the death of only one individual may be too minimal a harm to fall within the scope of § 9 or the "harm" regulation.

The DOJ, in both its amicus brief in the Palila case⁹² and its opening brief to the Supreme Court in Sweet Home,⁹³ has suggested one circumstance in which the early death or decreased reproductive success of an individual or a few individuals would not be "harm." The circumstance occurs when habitat modification would only retard the recovery of the population of the listed species, but would not threaten it with extinction. The government's amicus brief in Palila points out that "imposing a duty under Section 9 to avoid habitat modifications that merely prevent or delay the recovery of an endangered species is not consistent with the overall structure of the Act."⁹⁴ The government reasoned that since ESA §§ 2(c)(1), 4(f) and 7(a)(1)⁹⁵ only create duties for federal agencies to assist in conservation or recovery efforts, the § 9 concept of wildlife "take" should not be read as creating a private duty to maximize the recovery rate of a population. In its opening brief to the Supreme Court in Sweet Home, the government repeated that "harm" does "not prohibit habitat degradation that merely retards recovery."⁹⁶

The government's exclusion from "harm" of any activity that delays or retards recovery likely refers to an activity that ultimately reduces the future population of a listed wildlife species from what the population would have been [26 ELR 10010] without the activity's constraint on available habitat. And, as Justice O'Connor recognized, the trend for a population is simply the sum of what happens to individuals in that population—"death of an individual animal always reduces the size of the population in which it lives."⁹⁷ This means that a population's recovery rate or growth rate will be reduced or retarded from the biological maximum only when a few individuals die early or have a lower reproductive success rate. Therefore, the government's statement that "harm" does "not prohibit habitat degradation that merely retards recovery" seems to be a more genteel or euphemistic way of saying that the loss of one individual or a few individuals in a growing or stable population, which thereby retards recovery, is not "harm."

This possible limitation on "harm" has fared poorly in court under the pre-Sweet Home law of wildlife "take."⁹⁸ Nonetheless, we are unaware of any case in which a court has permanently enjoined a land use because it would kill or injure just one member of a listed wildlife species. Until this area of uncertainty is resolved, the cautious practitioner may wish to assume that the proven death of or serious injury to a single member of a listed wildlife species ordinarily is "harm."

"Harm" Includes Significant Physical Injuries to Individuals, But May Not Encompass Reduced Breeding Success

The Supreme Court's suggestion that the "harm" regulation and the ESA may not prohibit "minimal" harm could be particularly significant if a plaintiff ever argues that an anticipated nonphysical injury, such as reduction in breeding success, to a member or a few members of a listed wildlife species justifies prohibiting a land use. The "harm" regulation twice requires an act that "actually kills or injures wildlife," and then states that such "act may include habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering."⁹⁹ This wording creates ambiguity. It could mean either that the impairment of essential behavioral patterns is itself "injury," or that some tangible, physical "injury" must be proven and impairment of behavioral patterns is just the mechanism that causes an injury.

The preamble to the final "harm" regulation suggests the latter interpretation that "impairment of behavioral patterns" and "injury" are separate elements by stating: "To be subject to section 9, the modification or degradation must be significant, must significantly impair essential behavioral patterns, and must result in actual injury to a protected wildlife species."¹⁰⁰ The Sweet Home majority opinion also arguably adopted the latter view. Justice Scalia had asserted that the "harm" regulation made reduced breeding success (a behavioral pattern) an "injury," but that this cannot be squared with the ESA.¹⁰¹ The majority seemed to respond that there is a separate requirement for a more tangible injury:

The dissent incorrectly asserts that the Secretary's regulation (1) "dispenses with the foreseeability of harm" and (2) "fail[s] to require injury to particular animals." … As to the dissent's second assertion, every term in the regulation's definition of "harm" is subservient to the phrase "an act which actually kills or injures wildlife."¹⁰²

This passage arguably means that an impairment of behavioral patterns is not "harm" unless it leads to a death of, or a tangible and physical injury to, an individual. For example, reduced ability to find prey or to reproduce in the area where habitat has been modified might not be "harm," because the individual may find food or reproductive success on adjacent lands. The statement in the majority opinion that the ordinary meaning of "harm" is "to cause hurt or damage to: injure"¹⁰³ also suggests that the majority opinion employed "injury" in the sense of a tangible, physical injury that is proximately caused by a habitat modification.

Swan View Coalition also supports this result.¹⁰⁴ In that case, a district court concluded that impairment of behavioral patterns itself is not an injury: "Impairing essential behavioral patterns is [not] a sufficient basis on which to infer that death or injury is necessarily occurring. Whether the degree of impairment is so significant that it is actually killing or injuring grizzly bears is" an issue for trial.¹⁰⁵ This too implies that "actual injury" refers to a tangible, physical injury. On the other hand, the purported "injury" of reduced breeding success partially underlies the findings of "take" in Sierra Club v. Lyng¹⁰⁶ and Palila.¹⁰⁷

Assuming, however, that the majority in Sweet Home did not rule on whether nonphysical injuries can constitute "harm," then there remains an unresolved side debate between Justice O'Connor and the three Sweet Home dissenters on whether reduced breeding success can be "harm." The three dissenters in Sweet Home concluded that because lack of reproductive success really does not injure particular animals at all (it "takes" no lives in being), it is outside the legitimate scope of "harm."¹⁰⁸ Justice O'Connor opined that an action that makes it "impossible for [an animal] to reproduce" is "harm," but that speculation that an action might reduce the reproductive success rate is not "harm."¹⁰⁹ Justice O'Connor's statement that activities that "completely prevent[] breeding" are the equivalent of "sterilizing the creature"¹¹⁰ and constitute "harm" implies that actions that only temporarily impair breeding may not be "harm."

[26 ELR 10011]

Thus, if the majority opinion is silent on the breeding issue, four Justices have stated or implied that an action that only may reduce the reproductive success rate of an individual, but does not make reproduction impossible, is not "harm." Moreover, three Justices have opined that no nonphysical injury to reproductive success can be "harm," while one Justice believes it is "harm" when a habitat modification renders reproduction "impossible."

In sum, while the Supreme Court's decision leaves some uncertainty as to the type and degree of injury necessary for "harm," it suggests that lower courts should be more rigorous in determining whether a particular "injury" qualifies as "harm."

"Harm" Requires a Significant Habitat Modification

The "harm" regulation requires a "significant habitat modification or degradation."¹¹¹ Two aspects of the Sweet Home opinion may make the significance of the habitat modification a more frequently litigated issue. First, the majority opinion noted that the unenacted definition of "take" in the Senate bill had "failed to qualify 'modification' with the regulation's limiting adjective 'significant.'"¹¹² Second, the majority opinion's suggestion that certain types of harm may be too minimal or too minor in degree to be violations of the regulation or the ESA may refer in part to insignificant habitat modifications, such as the minor clearing of brush.¹¹³

It would appear that a habitat modification does not ipso facto become "significant" if it leads to the death or actual injury of a particular animal. Under that interpretation, "significant habitat modification" would add nothing to the actual injury requirement; however, the preamble to the "harm" regulation stresses that these are separate requirements. "To be subject to section 9, the modification or degradation must be significant, must significantly impair essential behavioral patterns, and must result in actual injury to a protected wildlife species."¹¹⁴

A "significant habitat modification" may refer to a significant percentage of the geographical area used by a member of a listed wildlife species or used by the species as a whole. Or, it might refer to particularly significant habitat such as essential nesting habitat versus less-essential foraging habitat. This area of uncertainty likely will be addressed in future cases.

The Proximate Causation and Foreseeability Elements of "Harm"

An aspect of the Sweet Home decision that is particularly bittersweet for landowners—providing both some relief and some uncertainty—is the majority's twice-repeated conclusion that liability for "harm" is limited by "ordinary requirements of proximate causation and foreseeability."¹¹⁵ The majority opinion does not expand on what proximate cause and foreseeability mean in the "harm" context, beyond observing that more than "'but for' causation" is required.¹¹⁶ Instead, it leaves the "difficult questions of proximity and degree" for resolution by the lower courts.¹¹⁷

The opinions of Justices O'Connor and Scalia attempt to flesh out the majority's skeletal references to proximate causation and foreseeability. It thus appears that "proximate causation" refers to both a fairly direct cause and a harm that was foreseeable.

Justice Scalia cited dictionaries stating that "'proximate' causation simply means 'direct' causation."¹¹⁸ This might explain why the majority opinion uses the conjunctive phrasing "proximate causation and foreseeability"—the land use must be both a fairly direct cause and cause a foreseeable wildlife death before "harm" exists. But as Justice Scalia pointed out, other parts of the majority opinion suggest that some indirectly caused injuries can be "harm."¹¹⁹

Justice O'Connor also used the phrase "proximate causation" in both the foreseeability sense and the sense that indirect (or at least temporally or geographically remote) consequences may be excluded. Her discussion of the proximate causation case law, which includes the venerable Palsgraf v. Long Island Railroad Co. case, focuses on foreseeability, but also contains an element of direct causation.¹²⁰

Justice O'Connor's two examples of proximate cause limitations on "harm" suggest that some indirect causes should be excluded from "harm." One example is that "harm," in Justice O'Connor's view, does not reach "a farmer who tills his field and causes erosion that makes silt run into a nearby river which depletes oxygen and thereby [injures] protected fish."¹²¹ Yet such results of agriculture are often foreseeable in the sense that biologists and civil engineers can predict they will occur. What seemed to trouble Justice O'Connor is the lack of a direct injury in the same geographic area where the habitat modification occurred.

The second example is Justice O'Connor's explanation of why the Ninth Circuit's decision in the Palila case was wrong.¹²² As she related, the "Court of Appeals held that a state agency committed a 'taking' by permitting feral sheep to eat mamane-naio seedlings that, when full-grown, might have fed and sheltered" the endangered palila bird.¹²³ In Justice O'Connor's view, "destruction of the seedlings did not proximately cause actual death or injury to identifiable birds; it merely prevented the regeneration of forest lands not currently inhabited by actual birds."¹²⁴

Again, the issue did not seem to be foreseeability, because the Palila plaintiffs' biologists predicted that preventing mamane trees from regenerating would cause the future extinction of the palila, and both the district court and Ninth [26 ELR 10012] Circuit found that result to be foreseeable and credible.¹²⁵ Instead, what appeared to trouble Justice O'Connor was: (1) the suggestion that "harm" prohibited land use activities in areas "not currently inhabited by actual birds"; (2) the remoteness in time between the action and the "take" of wildlife;¹²⁶ and (3) that the harm was caused indirectly—Hawaii was responsible for a "take" when it merely permitted feral animals to graze on its lands, and those animals ate seedlings that could have later provided food and shelter for palilas.

Thus, individually and collectively, the Sweet Home opinions suggest that the proximate cause constraint on "harm" creates limits in terms of both foreseeability and direct causation. But they do not explain exactly where those limits lie.

Justice O'Connor correctly observed that "proximate causation is not a concept susceptible of precise definition."¹²⁷ It often just describes the result of a decision based "to a great extent on consideration of the fairness of imposing liability for remote consequences."¹²⁸ Judges will differ considerably on the issue of when it is fair to prohibit private land uses to protect a listed wildlife species, just as the Supreme Court Justices did.

In Sweet Home, then, the Supreme Court applied to wildlife protection law a highly elastic and subjective concept of proximate causation that provides little guidance to landowners and lower courts. While the proximate cause limitation may have been intended to inure to the landowner's benefit, it creates legal uncertainty that does little to diminish the threat of litigation. In other words: Landowner beware.

Nonetheless, some rudimentary elements of foreseeability and proximate causation can be discerned from the Sweet Home opinion and lower court cases. First, the Supreme Court did not use "foreseeability" in any sense that would decrease the burden of proving actual death or injury. It does not allow a court to enjoin a land use any time it is foreseeable that a member of listed species merely might be injured. Instead, the majority opinion referred to the "foreseeability of incidental takings" when it is "known that a taking will occur" and contrasted this with the "accidental killings … that might occur in the course of hunting or trapping other animals."¹²⁹ The Sweet Home majority seemed to use "foreseeable" to mean the knowledge that injury or death actually would occur, as opposed to only might occur.

Under this meaning of "foreseeable," foreseeability has more significance for civil and criminal liability for a wildlife "take" that has already occurred than in actions to enjoin a proposed land use that allegedly would "take" listed wildlife in the future. In the injunctive relief situation, asking whether it is foreseeable that the land use would "take" listed wildlife in the future seems to add nothing to the requirement in the "harm" regulation that a plaintiff prove the death of or actual injury to a known individual will actually occur. There, the testimony of plaintiff's biologists on how "harm" would occur if an injunction is not issued also serves to make the landowner aware of the future "harm" and thereby satisfies the landowner knowledge element of foreseeability. In contrast, in considering whether after-the-fact criminal or civil liability should be imposed, it is relevant to inquire whether a reasonable person should have foreseen that the action would "take" wildlife.

Examples Concerning Proximate or Direct Causation

Proximate causation or the directness of causation has significance for both pre-"take" injunctive relief actions and post-"take" penalty actions. In both actions, the landowner may be able to defend on the basis that the land use activity would not be, or was not, a direct enough cause of actual death or injury to listed wildlife. For example, if a wildlife death occurred or is predicted to occur only through a bizarre chain of events, this would not be "harm" according to Justice O'Connor, given her example of a "farmer whose fertilizer is lifted by tornado" and deposited in an area where it kills listed wildlife.¹³⁰

Another proximate cause exclusion from "harm" may apply where the land use activity occurs on lands that the listed species does not currently occupy. The Sweet Home majority opinion seemed to exclude such activities by stating that ESA § 5 land acquisition authority, in contrast to the § 9 "take" prohibition, can be used to prevent "modification of land that is not yet but may in the future become habitat for an endangered or threatened species."¹³¹ Justice O'Connor also seemed to exclude liability for "harm" where the "forest land [is] not currently inhabited by actual birds."¹³²

Proximate causation may be a closer issue, for example, in situations concerning members of a listed bird species like northern spotted owls that are subject to predation by raptors. Assume that harvesting trees and removing the forest cover exposes members of the listed species to a greater risk of predation, but that such predation also occurs in forests with a closed canopy. If a raptor kills a member of the bird species in a previously harvested area that is now a clearing, Sweet Home raises the question of whether the proximate cause of death is the timber harvesting or the raptor. In the first case, some human would have committed a "take," while in the latter case the death is a natural event that does not give rise to any ESA liability. Since the raptor is a temporally intervening and semi-independent cause, there is a credible argument after Sweet Home that the raptor is the proximate cause of death and that no human agent is responsible for a "take."

Other examples that illustrate the proximate cause limitation involve a chain of human actions in which each action is in some sense the "but for" cause of a "take." In several pre-Sweet Home cases, courts have held the government responsible for "takes" that third parties directly caused. Two courts found that the U.S. Environmental Protection Agency took listed wildlife species by registering strychnine and allowing it to be sold, because misuse of the pesticide by farmers and other third parties was killing and injuring [26 ELR 10013] members of several listed species.¹³³ In the case with perhaps the most attenuated liability, a court found that the FWS "took" species associated with the Edwards Aquifer by not preparing a recovery plan that could have contained recommended minimum spring flows that the state of Texas or other entities could then have adopted and applied against hundreds of municipal, industrial, and agricultural pumpers who collectively could withdraw sufficient water from the aquifer to "take" listed wildlife located tens to hundreds of miles from the wells.¹³⁴

On the other hand, some courts have anticipated the proximate cause limitation established in Sweet Home. One court refused to hold the National Park Service liable for a "take" of wildlife when any potential takings would be caused by private campers disobeying the agency's rules.¹³⁵ Other courts have also refused to hold defendants (particularly private, rather than governmental, defendants) responsible for wildlife "takes" when it appeared that third parties were creating the real takings threat.¹³⁶

These latter cases seem to be decided correctly under the proximate causation principle announced in Sweet Home. The attenuated liability cases, however, are suspect. When an independently acting human directly causes a wildlife "take," he or she, and not other, more distant human links in the chain, is likely the proximate cause of the "take."

The attenuated liability issue frequently will arise in the context of the state or local permits that authorize private development. On occasion, the FWS has threatened to prosecute state and local officials if they issue permits that somehow allow a party to "take" wildlife, and has coerced these officials into granting only those permits that comply with the FWS' view of how best not to "take" wildlife.¹³⁷ If the SupremeCourt's 1992 ruling in New York v. United States¹³⁸ did not make such threats less credible, then perhaps Sweet Home will. After Sweet Home, the proximate cause of any "take" would be the permittee who modified the habitat, not the public official who only granted a permit. Because "but for" causation is no longer sufficient for "harm,"¹³⁹ the argument that the land could not be developed without the permit should not make the permitting official liable for any "take."

Some Type of Affirmative Action Is Usually Required for "Harm"

Another issue that the "harm" regulation poses is whether a person can cause "harm" through inaction by simply letting nature take its course. The "harm" regulation suggests a human being must commit an affirmative act that modifies habitat, in contrast to the companion "harass" regulation, which refers to either an "act or omission."¹⁴⁰

Yet the Fifth Circuit, without analysis, seemingly reached the opposite result in Sierra Club v. Yeutter.¹⁴¹ There, the court stated that the U.S. Forest Service was harming the endangered red-cockaded woodpecker partly because "it did not remove midstory hardwood … thus leading to [red-cockaded woodpecker] abandonment of cavity trees."¹⁴² Because the "harm" regulation applies equally to public officials and private citizens, the Yeutter decision arguably suggests that in order to avoid a violation of the "harm" regulation, landowners must do more than simply avoid adverse habitat modifications that injure listed wildlife species; landowners must also spend money to manage their lands for the express purpose of improving habitat conditions for a listed wildlife species.

But Yeutter appears to confuse a federal agency's responsibilities under § 9 with its separate duties under § 7. Section 7 imposes responsibilities only on federal agencies (either undertaking their own actions or permitting or funding nonfederal projects) and prohibits jeopardizing the continued existence of an entire listed species or adversely modifying designated critical habitat. Section 9 applies to actions the activities of any person—federal or nonfederal—and primarily prohibits the takings of individual members of listed species. The Fifth Circuit found that the Forest Service's failure to implement certain required measures for red-cockaded woodpecker protection that the FWS had approved in consultation under § 7(a)(2) violated its duty under § 7 to avoid jeopardy to the red-cockadedwoodpecker.¹⁴³ The court inappropriately transferred the federal agency obligation to follow § 7 measures to the § 9 prohibition on "take." This confusion between § 7 and § 9 infects much of the early case law on what constitutes an ESA "take," including the Palila cases.

In Sweet Home, the Solicitor General's opening brief¹⁴⁴ tried to bring some sense to the issue of whether "harm" applies only to affirmative acts. It stated that inaction is not "harm" except where law other than § 9 creates a duty to act.¹⁴⁵ Outside such narrow circumstances, "harm" does "not encompass passive acts of nonfeasance or create a duty (where none otherwise would exist) to maintain a listed species' habitat."¹⁴⁶

The "Knowing" Requirement for Criminal and Severe Civil Penalties

Section 11(a) and (b) reserves criminal penalties and the most severe civil penalties for actions that knowingly "take" listed wildlife.¹⁴⁷ Before Sweet Home, it was widely held that "knowingly" required nothing more than a general intent to perform an act, not a specific intent to perform an [26 ELR 10014] act violating § 9—that is, knowingly performing an act that "takes" wildlife, even when the actor has knowledge that this result would occur.¹⁴⁸ For example, in United States v. Billie,¹⁴⁹ a district court held that "knowingly" did not require proof that a person who fired a gun at an animal knew it to be a Florida panther (a listed species). Evidence that the person consciously shot the gun was enough.

Sweet Home likely heightens the standard for criminal liability. While the Supreme Court declined to opine on the additional elements required for a "knowing" take, it stated that "we have imputed scienter requirements in statutes that impose sanctions without expressly requiring scienter."¹⁵⁰

Additionally, according to the Solicitor General's reply brief, "knowingly" requires that the "person knows, for example, that his action harasses, harms or wounds the type of species affected."¹⁵¹ This seems to be contrary to the government's position in, and the result in, Billie.¹⁵²

As the D.C. Circuit observed in Sweet Home, "knowingly" creates a scienter requirement that makes only a person who has "knowingly violated the statute or regulation" guilty of a criminal "take."¹⁵³ The Ninth Circuit similarly limited criminal "take" under the Marine Mammal Protection Act in United States v. Hayashi.¹⁵⁴

The "Harm" Regulation Is Not Facially Void for Vagueness

The Sweet Home plaintiffs brought two facial challenges to the "harm" regulation. They alleged that the regulation was ultra vires of the ESA and that it was unconstitutionally vague in defining the prohibited conduct. The D.C. Circuit rejected the latter challenge on the ground that the regulation was not impermissibly vague in all applications.¹⁵⁵ This facial vagueness challenge was not pressed before the Supreme Court.¹⁵⁶

Although the Court of Appeals rejected the facial vagueness claim, it expressly left open the possibility that the "challenged regulation would be considered impermissibly vague" as applied in a specific enforcement context.¹⁵⁷ The Migratory Bird Treaty Act's provision on "take" has been found void for vagueness in such an "as applied" challenge.¹⁵⁸

But the Supreme Court's comment on a related issue in Sweet Home may make it difficult to succeed on any vagueness challenge. The majority opinion rejected the argument that the "harm" regulation should be construed narrowly under the criminal rule of lenity, which is designed to ensure a fair warning that the conduct is criminal.¹⁵⁹ The majority did so partially on the ground that "the 'harm' regulation … gives a fair warning of its consequences" within the meaning of the rule of lenity.¹⁶⁰ This may suggest that the "harm" regulation also provides fair warning of potential criminal consequences for the purposes of the void-for-vagueness doctrine.

The Regulatory Extension of the "Take" Prohibition to Most Threatened Wildlife Apparently Is Lawful

As described above, the ESA only makes it unlawful to take endangered wildlife, not threatened wildlife. In the Sweet Home case, plaintiffs also argued that the FWS' blanket regulatory extension of the "take" prohibition to all threatened wildlife species automatically when they are listed violated restrictions in § 4(d).¹⁶¹

Section 4(d) provides in pertinent part:

Whenever any species is listed as a threatened species pursuant to subsection (c) of this section, the Secretary shall issue such regulations as he deems necessary and advisable to provide for the conservation of such species. The Secretary may by regulation prohibit with respect to any threatened species any act prohibited under section 1538(a)(1) of this title.¹⁶²

The Sweet Home plaintiffs argued that the § 4(d) language allowed the "take" prohibition to be extended only on a species-by-species basis at the time each threatened species is listed and only when accompanied by findings that it is necessary to restrict private land uses to conserve the particular species. Both the district and appellate courts rejected this argument.¹⁶³

The D.C. Circuit concluded that the ESA was ambiguous on this issue—therefore, the FWS' interpretation was entitled to Chevron deference and had to prevail.¹⁶⁴ The D.C. Circuit affirmed the FWS' interpretation that the second sentence in § 4(d) grants discretionary authority to extend the "take" prohibition to all threatened wildlife species "without obligating it to support such actions with findings of necessity," while the first sentence "requires the FWS to issue whatever other regulations are 'necessary and advisable,' including regulations that impose protective measures beyond those contained in" § 9(a)(1).¹⁶⁵ The D.C. Circuit's holding that § 4(d) allows the FWS to regulate activities that do not "take" threatened species is counter-intuitive, as no ESA provision grants the FWS comparable authority with respect to the more imperilled endangered species.

[26 ELR 10015]

More generally, the panel read § 4(d) to give the FWS great flexibility in crafting rules to regulate, prohibit, or allow persons to "take" a threatened species. This reading contrasts with the Eighth Circuit's view in Sierra Club v. Clark¹⁶⁶ tha tthe FWS can allow persons to "take" wildlife only in the rare instance that the activity would assist in conserving the species. But the D.C. Circuit's decision in Sweet Home comports with another decision that gives the FWS and the National Marine Fisheries Service considerable discretion in fashioning § 4(d) rules.¹⁶⁷ Under that decision and Sweet Home, the FWS can craft a special rule for a particular threatened species under § 4(d) that grants relief to landowners by creating a safe harbor of land uses that are allowed even if they unintentionally "take" the species, and thereby violate the blanket rule applying the "take" prohibition to all threatened wildlife. The FWS' July 1995 proposed § 4(d) rule to provide relief for small landowners and others is an example of such innovative relief.¹⁶⁸

State Law May Not Limit ESA "Take"

The "harm" regulation also has been challenged on the ground that the ESA makes the federal definition of "harm" subsidiary to state law even in states with less restrictive provisions concerning wildlife "take." Several provisions of the ESA arguably allow state law to control what is a "take" violating the ESA. Two district courts, however, have rejected this type of challenge.¹⁶⁹

ESA § 6 encourages a state to develop an adequate and active program for the conservation of listed species.¹⁷⁰ If the program is approved by the FWS, the state is entitled to a cooperative agreement and partial federal funding of the program. In a state with a "full authorities" cooperative agreement, several ESA provisions—most notably §§ 4(d), 6(c)(1)(E)(ii) and (g)(2), and 9(a)(1)¹⁷¹—suggest that an action "takes" wildlife under the ESA only to the extent that the action violates a state law or regulation. On the other hand, § 6(f)¹⁷² suggests that the ESA preempts state takings laws that are less restrictive than the ESA.

One district court has found that while there are "compelling arguments" on the other side, "the clear language of § 6(f) of the ESA combined with the overwhelming priority Congress has given to the preservation of threatened and endangered species" means that the "less restrictive takings provisions under Montana law are preempted by the ESA" and that the federal definition of harm "is controlling."¹⁷³ The same result was reached in United States v. Glenn-Colusa Irrigation District.¹⁷⁴

"Harass" Seemingly Does Not Cover Wildlife Injuries Occurring Through Habitat Modifications

Some have argued that the difficulties in proving "harm" can be bypassed simply by alleging that the land use activity constitutes the "harass" form of "take." It appears, however, that "harass" as defined in 50 C.F.R. § 17.3 does not cover wildlife injuries that result from modifying habitat.

This clearly was the regulatory intent. The preamble to the final rule defining "harm" and "harass" explained that although habitat modification or environmental degradation had been included in the proposed definition of "harass," habitat modification effects were addressed in the final rule only under the "harm" regulation.

The concept of environmental damage being considered a "taking" has been retained but is now found in a new definition, of the word "harm."…By moving the concept of environmental degradation to the definition of "harm," potential restrictions on environmental modifications are expressly limited to those actions causing actual death or injury to a protected species of fish or wildlife.¹⁷⁵

Since the "harm" regulation expressly mentions habitat modification while the "harass" regulation does not, the rules' plain language precludes "harass" from including wildlife injuries that occur through habitat modification.¹⁷⁶ Moreover, if "harm" and "harass" were both to cover the same habitat modification effects, the result would be inconsistent regulatory standards. For example, "harass" only requires a likelihood of injury, while "harm" requires proof of actual injury; "harm" requires an affirmative act while "harass" includes a negligent act or omission.¹⁷⁷ Regulations should be interpreted so they are not inconsistent with each other.¹⁷⁸ To avoid inconsistency, "harass" should be read as not applying to the types of habitat modification effects that the "harm" regulation covers.

This analysis might not preclude a claim that, for example, the noise from construction equipment is directly harassing a listed wildlife species. However, the "harass" regulation only purports to make unlawful effects of light and noise that annoy wildlife "to such an extent as to significantly disrupt normal behavioral patterns."¹⁷⁹ Activities that have only transitory, short-term effects on listed wildlife usually do not meet the legal definition of "harass." Thus, airboat noise was found not to constitute harassment under the ESA in Fund for Animals v. Florida Game & Fresh Water Fish Commission.¹⁸⁰ Similarly, shooting a rifle near dolphins with the express purpose of frightening them away from a fishing boat was found not to constitute harassment under the Marine Mammal Protection Act in Hayashi.¹⁸¹

[26 ELR 10016]

Moreover, any attempt to apply "harass" to cover short-term injuries or the mere possibility of such injuries could provoke a challenge that such an application of the "harass" regulation is ultra vires of the ESA. Just as the Supreme Court stated that the Sweet Home plaintiffs "advance strong arguments that activities that cause minimal or unforeseeable harm will not violate the Act,"¹⁸² a court could find that any minimal form of "harass" also would not violate the ESA.

The FWS' Ability to Issue Guidance on ESA "Take" With and Without a Rulemaking

Landowners in areas inhabited by listed wildlife species face uncertainty as to whether courts will decide that their land use actions "take" wildlife. This springs both from factual uncertainty about whether the land use activity will actually injure a member of a listed wildlife species, and legal uncertainty over the applicable tests for "harm" and "harass."

Landowners do not relish such uncertainty over liability. There are answers, albeit usually unsatisfactory, for a landowner who wishes to be insulated from "take" liability. The most obvious is that a landowner could decline to undertake any activity that could possibly "take" a listed species. This answer will be unwelcome because it denies productive economic uses of land.

Alternatively, landowners can insulate themselves from potential liability for a "take" by seeking incidental take permits for their activities under § 10(a).¹⁸³ When the activities involve a federal agency action (such as permitting), landowners can seek incidental take statements under § 7(b)(4), following ESA consultations with the FWS.¹⁸⁴ However, the time and cost of preparing and implementing conservation plans under § 10(a) are often prohibitive. Further, when there is no federal action, the § 7(b)(4) process is unavailable.

The FWS, however, has proffered a number of reforms to improve the incidental take permit process. In one example, the FWS described land use practices designed to assist the red-cockaded woodpecker in a six-county region in North Carolina and issued an incidental take permit to itself.¹⁸⁵ This spared landowners the time and expense associated with applying for an incidental take permit. Landowners who desire to take advantage of the permit must agree to abide by the land use practices described in a side contract or cooperative agreement with the FWS.

There are two other rarely employed alternatives to provide landowners with greater certainty regarding allowed and prohibited activities. The first alternative is the special § 4(d) rule for a class of landowners or a particular threatened species. Examples include the proposed small landowners and northern spotted owl rules described above.¹⁸⁶ But § 4(d) relief is available only for threatened wildlife, not endangered wildlife.

In the second alternative, the FWS could informally announce that it will not prosecute some types of land use activities as potential sources of minimal "take." For example, a landowner can encourage the FWS to review a land management plan and issue a so-called no take letter, which would acknowledge that if the landowner follows his or her submitted management plan, no "take" is likely to occur and no government prosecution will be undertaken. Unlike § 4(d) relief, this second process can grant landowners relief with respect to endangered species as well as threatened species.¹⁸⁷

Though the ESA does not explicitly authorize this process, neither does the Act prohibit it. It is simply the FWS' exercise of prosecutorial discretion based on its good-faith judgment that an activity is not likely to "take" wildlife under the ESA. As long as the guidance is limited to asserting that if the landowner adopts specified mitigation measures, the FWS will not prosecute particular types of land use actions, and does not stray into insisting that a particular land use action is a "take," the guidance might not create the type of legal norm that requires a rulemaking under the Administrative Procedure Act (APA)¹⁸⁸ or runs the risk of violating Sweet Home's limitations on "take."

Of the two alternatives (and others not mentioned), proceeding by a § 4(d) rulemaking provides greater security for landowners. This is particularly true if the FWS announces a rule that when development conforms to certain standards, any resultant injury to threatened wildlife will not constitute a "take" within the meaning of the ESA. Usually, an FWS employee's informal view in nonrulemaking situations that a particular action would not "take" wildlife would not preclude a later prosecution, because estoppel ordinarily does not apply against the government.¹⁸⁹ Furthermore, the FWS' informal view might not prevent an ESA citizen suit by an environmental group alleging a violation of the "harm" regulation. But if the FWS states in a final rule that certain types of activities are exempt from the § 9 "take" prohibition, this should bind the FWS and all other litigants.

Thus, the FWS cannot provide binding guidance on what constitutes a "take" outside the rulemaking process prescribed by the APA. Since the existing 50 C.F.R. § 17.3 regulations set standards for what is a "take," the FWS can alter those standards only through rulemaking. For example, the Owl Guidelines that the FWS informally published in 1990—which directed timber owners to forego timber harvesting on up to 4,000 acres around each owl nest site to avoid investigation for an ESA "take"—were almost certainly invalid because the FWS adopted them without the public rulemaking procedures that the APA requires.¹⁹⁰ Indeed, when the Owl Guidelines were challenged on APA grounds in another Sweet Home case, the FWS chose not to defend them. The agency rescinded the Guidelines, and the court then dismissed that case as moot.¹⁹¹

The FWS recently proposed an interesting hybrid between the formal rulemaking approach, which provides greater [26 ELR 10017] security, and the informal guidance approach, which is more expeditious, in the draft § 4(d) rules. The proposed rule seems to be a general endorsement of "no take" letters.¹⁹² In contrast to the vagaries in relying on an informal FWS view that an activity would not "take" wildlife, a qualifying "no take" letter would have the backing of a regulation saying that the activity does not constitute a "take" and cannot be prosecuted.

Conclusion

Sweet Home and other recently decided cases have upheld and narrowly construed the regulation on "harm" to listed wildlife. However, significant areas of legal and factual uncertainty remain. Future direction on what constitutes an ESA "take" may be forthcoming from as-applied cases, as the Sweet Home majority foresaw. Or, future direction may be forthcoming from Congress in the ESA amendments, as Justice O'Connor invited.

1. 16 U.S.C. §§ 1531-1544, ELR STAT. ESA.

2. Id. § 1538(a)(1)(B), ELR STAT. ESA § 9(a)(1)(B).

3. Id. § 1532(19), ELR STAT. ESA § 3(19).

4. 50 C.F.R. § 17.3 (1994).

5. See Steven P. Quarles et al., The Unsettled Law of ESA Takings, 8 NAT. RESOURCES & ENV'T 10 (Summer 1993).

6. 115 S. Ct. 2407, 25 ELR 21194 (1995).

7. 9 F.3d 163, 24 ELR 20173 (1st Cir. 1993).

8. Beth S. Ginsberg, Babbitt v. Sweet Home Chapter of Communities for a Great Oregon: A Clarion Call for Property Rights Advocates, 25 ELR 10478 (Sept. 1995).

9. 16 U.S.C. § 1533, ELR STAT. ESA § 4.

10. Id. § 1538(a), ELR STAT. ESA § 9(a).

11. Id. § 1538(a)(1)(B), ELR STAT. ESA § 9(a)(1)(B). While the "take" prohibition does not apply to listed plant species, plants are protected against certain forms of destruction. Id. § 1538(a)(2), ELR STAT. ESA § 9(a)(2).

12. 50 C.F.R. § 17.21(c) (1994).

13. 16 U.S.C. § 1533(d), ELR STAT. ESA § 4(d).

14. 50 C.F.R. § 17.31(a) (1994).

15. Sweet Home Chapter of Communities for a Great Or. v. Lujan, 1 F.3d 1, 5-8, 23 ELR 21151, 21153-55 (D.C. Cir. 1993). The FWS has instead used individualized rulemakings to remove partially the generic "take" prohibition of 50 C.F.R. § 17.31(a) from about 30 threatened species, mostly to authorize the incidental "take" of threatened fish species while fishing for unimperilled fish. See 16 U.S.C. § 1533(d), ELR STAT. ESA § 4(d); 50 C.F.R. §§ 17.40-17.46 (1994).

16. 16 U.S.C. § 1540, ELR STAT. ESA § 11.

17. Id. § 1540(a), (b), (e)(6), (g), ELR STAT. ESA § 11(a), (b), (e)(6), (g).

18. Id. § 1540(g), ELR STAT. ESA § 11(g).

19. Id. § 1532(19), ELR STAT. ESA § 3(19).

20. 50 C.F.R. § 17.3 (1994).

21. U.S. FWS REGION I, PROCEDURES LEADING TO ENDANGERED SPECIES ACT COMPLIANCE FOR THE NORTHERN SPOTTED OWL 9-11 (1990).

22. E.g., U.S. FWS REGION IV, HABITAT MANAGEMENT GUIDELINES FOR THE RED-COCKADED WOODPECKER IN THE SOUTHEAST REGION (1991); FWS letters concerning the Stephens' kangaroo rat, Florida scrub jay, and golden-cheeked warbler, Brief as Amicus Curiae of the National Cattlemen's Association and the CATL Fund in Support of Respondents at app., Sweet Home (U.S.) (No. 94-859).

23. E.g., Palila v. Hawaii Dep't of Land & Natural Resources, 852 F.2d 1106, 18 ELR 21199 (9th Cir. 1988); Sierra Club v. Lyng, 694 F. Supp. 1260, 19 ELR 20450 (E.D. Tex. 1988), aff'd in part sub nom. Sierra Club v. Yeutter, 926 F.2d 429, 21 ELR 20755 (5th Cir. 1991).

24. See generally Brief for Respondents at 8-35, Sweet Home (U.S.) (No. 94-859).

25. Albert Gidari, The Endangered Species Act: Impact of Section 9 on Private Landowners, 24 ENVTL. L. 419, 421-43 (1994).

26. See Sweet Home Chapter of Communities for a Great Or. v. Lujan, 806 F. Supp. 279, 23 ELR 20314 (D.D.C. 1992), aff'd per curiam, 1 F.3d 1, 23 ELR 21151 (D.C. Cir. 1993), rev'd as to "harm" on rehearing, 17 F.3d 1463, 24 ELR 20680 (D.C. Cir. 1994), reh'g en banc denied with accompanying opinions, 30 F.3d 190, 24 ELR 21470 (D.C. Cir. 1994), rev'd sub nom. Babbitt v. Sweet Home Chapter of Communities for a Great Or., 115 S. Ct. 2407, 25 ELR 21194 (1995).

27. E.g., Brief for Petitioners at 20, 41, 45-46, Sweet Home (U.S.) (No. 94-859).

28. Id.

29. Reply Brief for the Petitioners at 4 n.4, Sweet Home (U.S.) (No. 94-859).

30. Sweet Home, 115 S. Ct. at 2407, 25 ELR at 21194.

31. Id. at 2431, 25 ELR at 21207 (Scalia, J., dissenting).

32. Id. at 2413, 25 ELR at 21196.

33. Id., quoting 16 U.S.C. § 1531(b), ELR STAT. ESA § 2(b).

34. Sweet Home, 115 S. Ct. at 2413-14, 25 ELR at 21196 (citing Tennessee Valley Auth. v. Hill, 437 U.S. 153, 184, 8 ELR 20513, 20520 (1978)).

35. Sweet Home, 115 S. Ct. at 2414, 25 ELR at 21197.

36. Id.

37. Id.

38. See id. at 2414, 2417-18, 25 ELR at 21197, 21199.

39. Id. at 2414, 25 ELR at 21197.

40. Id. at 2416-17, 25 ELR at 21198.

41. Id.

42. Id. at 2416, 2418, 25 ELR 21198, 21199. Chevron, 467 U.S. 837, 14 ELR 20507 (1984).

43. Sweet Home, 115 S. Ct. at 2421-23, 2431, 25 ELR at 21201-02, 21207 (Scalia, J., dissenting).

44. See id. at 2421-31, 25 ELR at 21201-07 (Scalia, J., dissenting).

45. Id. at 2431, 25 ELR at 21207 (Scalia, J., dissenting).

46. Id. at 2421, 25 ELR at 21201 (O'Connor, J., concurring).

47. See S. 768, 104th Cong., 1st Sess. § 402 (1995) and H.R. 2275, 104th Cong., 1st Sess. § 202 (1995) (defining "harm" to mean "to take a direct action against any member of an endangered species of fish or wildlife that actually injures or kills a member of the species"); Ginsberg, supra note 8.

48. Sweet Home, 115 S. Ct. at 2421, 25 ELR at 21201 (O'Connor, J., concurring); 852 F.2d 1106, 18 ELR 21199 (9th Cir. 1988).

49. See Sweet Home, 115 S. Ct. at 2421, 25 ELR at 21201 (O'Connor, J., concurring).

50. American Bald Eagle, 9 F.3d at 163, 24 ELR at 20173.

51. 50 C.F.R. § 17.3 (1994).

52. 46 Fed. Reg. 54748 (Nov. 4, 1981).

53. Sweet Home, 115 S. Ct. at 2415, 25 ELR at 21198.

54. Id. at 2417, 25 ELR at 21198.

55. Sweet Home Chapter of Communities for a Great Or. v. Lujan, 806 F. Supp. 279, 284 and n.1, 286, 23 ELR 20314, 20316 and n.1, 20317.

56. Sweet Home, 115 S. Ct. at 2410 n.2, 25 ELR at 21194 n.2; see id. at 2412 n.9, 25 ELR at 21196 n.9.

57. Id. at 2414 n.13, 25 ELR at 21197 n.13.

58. Id. at 2418, 25 ELR at 21199.

59. Id. at 2430, 25 ELR at 21206 (emphasis in original).

60. Id. at 2418, 25 ELR at 21199.

61. Id. at 2419, 25 ELR at 21200.

62. Id. at 2421, 25 ELR at 21201.

63. 50 C.F.R. § 17.3 (1994).

64. Id.

65. Id. § 10.12.

66. American Bald Eagle, 9 F.3d at 163, 24 ELR at 20173.

67. Id. at 165-67 and n.5, 24 ELR at 20174-75 and n.5.

68. Brief for Petitioners at 46, Sweet Home (U.S.) (No. 94-859).

69. 46 Fed. Reg. 54748-50 (Nov. 4, 1981) (emphasis added).

70. See supra notes 21-22. For example, the Owl Guidelines suggested that timber harvesting that did not leave at least 2,000 acres of suitable owl habitat around each owl nest site would constitute a "take," without any need to show actual injury to particular owls.

71. Babbitt v. Sweet Home Chapter of Communities for a Great Or., 115 S. Ct. 2704, 2415, 25 ELR 21194, 21197 (1995).

72. See infra text accompanying notes 147-154.

73. 16 U.S.C. § 1540(e)(6), (g), ELR STAT. ESA § 11(e)(6), (g).

74. See American Bald Eagle v. Bhatti, 9 F.3d 163, 165-66, 24 ELR 20173, 20174 (1st. Cir. 1993).

75. 824 F. Supp. 923, 939-40, 24 ELR 20318, 20235-36 (D. Mont. 1992) (dismissing a "take" claim concerning the gray wolf and ordering a trial on "take" of grizzly bears).

76. 669 F. Supp. 384, 389 (D. Wyo. 1987).

77. 520 F. Supp. 1359, 1387-88 (C.D. Cal. 1981) (the possibility or "threat [of future injury] would still not constitute a 'taking' under the statutes"), aff'd in part, 683 F.2d 1253, 12 ELR 21084 (9th Cir. 1982), rev'd on other grounds, 464 U.S. 312, 14 ELR 20129 (1984).

78. National Wildlife Fed'n v. Burlington N. R.R., 23 F.3d 1508, 1511, 24 ELR 20802, 20803 (9th Cir. 1994).

79. Amoco Production Co. v. Village of Gambell, 480 U.S. 531, 546 n.12, 17 ELR 20574, 20578 n.12 (1987).

80. American Bald Eagle v. Bhatti, 9 F.3d 163, 165-66 and n.5, 24 ELR 20173, 20174 and n.5. (1st Cir. 1993).

81. 50 F.3d 781, 25 ELR 20706 (9th Cir. 1995).

82. Id. at 784-85, 25 ELR at 20708-09.

83. Id.

84. 23 F.3d 1508, 1511, 24 ELR 20802, 20803 (9th Cir. 1994).

85. 880 F. Supp. 1343, 1365-67, 25 ELR 21301, 21312-13 (N.D. Cal. 1995), appeal docketed, No. 95-16504 (9th Cir. 1995).

86. Id. at 1366, 25 ELR at 21312.

87. See infra text accompanying notes 99-110.

88. Marbled Murrelet, 880 F. Supp. at 1366, 25 ELR at 21312.

89. Babbitt v. Sweet Home Chapter of Communities for a Great Or., 115 S. Ct. 2407, 2412-13, 2414, 25 ELR 21194, 21196, 21197 (emphasis added).

90. Id. at 2413 n.10, 25 ELR at 21196 n.10.

91. Id. at 2414, 2418, 25 ELR at 21197, 21199.

92. See Palila v. Hawaii Dep't of Land & Natural Resources, 852 F.2d 1106, 1108 n.4, 18 ELR 21199, 21200 n.4 (9th Cir. 1988).

93. Brief for Petitioners at 41, Sweet Home (U.S.) (No. 94-859).

94. Brief for the United States as Amicus Curiae at 18, Palila (9th Cir.) (No. 87-2188).

95. 16 U.S.C. §§ 1531(c)(1), 1533(f), 1536(a)(1), ELR STAT. ESA §§ 2(c)(1), 4(f), 7(a)(1).

96. Brief for Petitioners at 41, Sweet Home (U.S.) (No. 94-859).

97. Babbitt v. Sweet Home Chapter of Communities for a Great Or., 115 S. Ct. 2407, 2418, 25 ELR 21194, 21199 (1995).

98. E.g., Forest Conservation Council v. Rosboro Lumber Co., 50 F.3d 781, 788 n.4., 25 ELR 20706, 20711 n.4 (9th Cir. 1995).

99. 50 C.F.R. § 17.3 (1994).

100. 46 Fed. Reg. 54750 (Nov. 4, 1981).

101. Sweet Home, 115 S. Ct. at 2422, 2430, 25 ELR at 21201, 21206.

102. Id. at 2414 n.13, 25 ELR at 21197 n.13.

103. Id. at 2412, 25 ELR at 21196.

104. Swan View Coalition, 824 F. Supp. at 923, 24 ELR at 20318.

105. Id. at 939, 24 ELR at 20325.

106. 694 F. Supp. 1256, 1271-72, 18 ELR 20595 (E.D. Tex. 1988), aff'd in pertinent part sub nom. Sierra Club v. Yeutter, 926 F.2d 429, 21 ELR 20755 (5th Cir. 1991).

107. Palila, 649 F. Supp. at 1070, 17 ELR at 20514, aff'd, 852 F.2d at 1106, 18 ELR at 21199.

108. Babbitt v. Sweet Home Chapter of Communities for a Great Or., 115 S. Ct. 2407, 2430 n.5, 25 ELR 21194, 21206 n.5 (1995).

109. That a "protected animal could have eaten the leaves of a fallen tree or could, perhaps, have fruitfully multiplied in its branches is not sufficient under the regulation." Id. at 2419, 25 ELR at 21199-200.

110. Id.

111. 50 C.F.R. § 17.3 (1994).

112. Sweet Home, 115 S. Ct. at 2417, 25 ELR at 21198.

113. Id. at 2414, 2418, 25 ELR at 21197, 21199.

114. 46 Fed. Reg. 54750 (Nov. 4, 1981) (emphasis in original).

115. Sweet Home, 115 S. Ct. at 2412 n.9, 2414 n.13, 25 ELR at 21196 n.9, 21197 n.13.

116. Id. at 2414 n.13, 25 ELR 21197 n.13.

117. Id. at 2418, 25 ELR at 21199.

118. Id. at 2429, 25 ELR at 21206.

119. Id.

120. "Proximate cause does not reach 'remote and derivative' consequences." Id. at 2420, 25 ELR at 21200, quoting New York v. Shore Realty Corp., 759 F.2d 1032, 1044 and n.17, 15 ELR 20358, 20363 and n.17 (2d Cir. 1985). See also 162 N.E. 99 (N.Y. 1928).

121. Sweet Home, 115 S. Ct. at 2429, 25 ELR at 21201.

122. Id. at 2421, 25 ELR at 21201.

123. Id.

124. Id.

125. See Palila, 852 F.2d at 1106, 1108-10, 18 ELR at 21199, 21200-02.

126. "It takes twenty-five years for the mamane seedlings and sprouts to become mature trees capable of providing food and shelter for the Palila." Id. at 1109, 18 ELR at 21201.

127. Sweet Home, 115 S. Ct. at 2420, 25 ELR at 21200.

128. Id.

129. Id. at 2417-18, 25 ELR at 21199.

130. Id. at 2420, 25 ELR at 21200.

131. Id. at 2415, 25 ELR at 21197-98.

132. Id. at 2421, 25 ELR at 21201.

133. Defenders of Wildlife v. Administrator, 688 F. Supp. 1334, 18 ELR 20960 (D. Minn. 1988), aff'd, 882 F.2d 1294, 19 ELR 21440 (8th Cir. 1989).

134. Sierra Club v. Lujan, 36 Env't Rep. Cas. (BNA) 1533 (W.D. Tex. 1993).

135. National Wildlife Fed'n v. National Park Serv., 669 F. Supp. 384, 392 (D. Wyo. 1987).

136. See National Wildlife Fed'n v. Burlington N. R.R., 23 F.3d 1508, 24 ELR 20802; Pyramid Lake Paiute Tribe v. Department of the Navy, 898 F.2d 1410, 20 ELR 20572 (9th Cir. 1990); Morrill v. Lujan, 802 F. Supp. 424, 23 ELR 20379 (N.D. Ala. 1992).

137. See Gidari, supra note 25 at 419, 422 n.6, 432-40 (1994).

138. 112 S. Ct. 2408, 22 ELR 21082 (1992) (limiting the circumstances in which the federal government can require state governments to enforce federal laws and regulations).

139. Babbitt v. Sweet Home Chapter of Communities for a Great Or., 115 S. Ct. 2407, 2414 n.13, 25 ELR 21194, 21197 n.13 (1995).

140. 50 C.F.R. § 17.3 (1994).

141. 926 F.2d 429, 21 ELR 20755 (5th Cir. 1991).

142. Id. at 438, 21 ELR at 20759.

143. Id. at 439, 21 ELR at 20760.

144. Brief for Petitioners at 47, Sweet Home (U.S.) (No. 94-859).

145. E.g., a Federal Power Act duty to maintain a licensed dam structure.

146. Brief for Petitioners at 47, Sweet Home (U.S.) (No. 94-859).

147. 16 U.S.C. § 1540(a), (b), ELR STAT. ESA § 11(a), (b).

148. See United States v. Nguyen, 916 F.2d 1016, 21 ELR 20486 (5th Cir. 1990).

149. 667 F. Supp. 1485, 1492-93, 18 ELR 20209, 20213 (S.D. Fla. 1987).

150. Babbitt v. Sweet Home Chapter of Communities for a Great Or., 115 S. Ct. 2407, 2412 n.9, 25 ELR 21194, 21196 n.9 (1995).

151. Reply Brief for the Petitioners at 2, Sweet Home (U.S.) (No. 94-859).

152. Billie, 667 F. Supp. at 1485, 18 ELR at 20209.

153. Sweet Home Chapter of Communities for a Great Or. v. Lujan, 1 F.3d 1, 4, 23 ELR 21151, 21152 (D.C. Cir. 1993).

154. 22 F.3d 859, 24 ELR 20985 (9th Cir. 1994). Marine Mammal Protection Act, 16 U.S.C. §§ 1361-1421h, ELR STAT. MMPA §§ 2-409.

155. Sweet Home, 1 F.3d at 4-5, 23 ELR at 21152-53; but see 1 F.3d at 13, 23 ELR at 21157 (Judge Sentelle's suggestion of vagueness).

156. Babbitt v. Sweet Home Chapter of Communities for a Great Or., 115 S. Ct. 2407, 2410 n.3, 25 ELR 21194, 21195 n.3 (1995).

157. Sweet Home, 1 F.3d at 5, 23 ELR at 21153.

158. Migratory Bird Treaty Act, 16 U.S.C. §§ 703-711. United States v. Rollins, 706 F. Supp. 742, 19 ELR 20935 (D. Idaho 1989).

159. Sweet Home, 115 S. Ct. at 2416-17 n.18, 25 ELR at 21198 n.18.

160. Id.

161. 50 C.F.R. § 17.31(a) (1994).

162. 16 U.S.C. § 1533(d), ELR STAT. ESA § 4(d).

163. See Sweet Home Chapter of Communities for a Great Or. v. Lujan, 806 F. Supp. 279, 286-87, 23 ELR 20314, 20317 (D.D.C. 1992), aff'd, 1 F.3d 1, 5-8, 23 ELR 21151, 21153-54 (D.C. Cir. 1993).

164. Sweet Home, 1 F.3d at 5-8, 23 ELR at 21153-54; see Chevron, 467 U.S. at 837, 14 ELR at 20507 (1984).

165. Sweet Home, 1 F.3d 1, 8, 23 ELR 21151, 21154 (D.C. Cir. 1993).

166. 755 F.2d 608, 15 ELR 20391 (8th Cir. 1985).

167. Louisiana ex rel. Guste v. Verity, 853 F.2d 322, 18 ELR 21351 (5th Cir. 1988) (the NMFS could issue a regulation requiring use of turtle excluder devices (TEDs) while shrimping, and use of TEDs eliminates any liability for "take" of sea turtles).

168. See 60 Fed. Reg. 37419 (July 20, 1995). A second example is the proposed rule eliminating liability for "take" of threatened northern spotted owls in certain areas if the developer retains 70 acres of the best nesting habitat. See 60 Fed. Reg. 9484 (Feb. 17, 1995).

169. Swan View Coalition, Inc. v. Turner, 824 F. Supp. 923, 24 ELR 20318 (D. Mont. 1992); United States v. Glenn-Colusa Irrigation Dist., 788 F. Supp. 1126, 22 ELR 20877 (E.D. Cal. 1992).

170. 16 U.S.C. § 1535, ELR STAT. ESA § 6.

171. Id. §§ 1533(d), 1535(c)(1)(E)(ii), 1535(g)(2), 1538(a)(1), ELR STAT. ESA §§ 4(d), 6(c)(1)(E)(ii), 6(g)(2), 9(a)(1).

172. Id. at § 1535(f), ELR STAT. ESA § 6(f).

173. Swan View Coalition, 824 F. Supp. at 938, 24 ELR at 20325.

174. 788 F. Supp. 1126, 22 ELR 20877 (E.D. Cal. 1992).

175. 40 Fed. Reg. 44413 (Sept. 26, 1975).

176. 50 C.F.R. § 17.3 (1994).

177. Id.

178. Dyer v. United States, 832 F.2d 1062, 1066 (9th Cir. 1987).

179. 50 C.F.R. § 17.3 (1994).

180. 550 F. Supp. 1206, 13 ELR 20368 (S.D. Fla. 1982).

181. Hayashi, 22 F.3d at 859, 24 ELR at 20985. Marine Mammal Protection Act, 16 U.S.C. §§ 1361-1421h, ELR STAT. MMPA §§ 2-409.

182. Babbitt v. Sweet Home Chapter of Communities for a Great Or., 115 S. Ct. 2407, 2414, 25 ELR 21194, 21197 (1995).

183. See 16 U.S.C. § 1539(a), ELR STAT. ESA § 10(a).

184. See id. § 1536(b)(4), ELR STAT. ESA § 7(b)(4).

185. 60 Fed. Reg. 10400 (Feb. 24, 1995).

186. See supra note 168 and accompanying test.

187. The "no take" letters described above seem to be examples of this alternative. Supra note 22.

188. 5 U.S.C. §§ 500-596, 553, ELR STAT. APA §§ 500-596, 553.

189. Office of Personnel Management v. Richmond, 496 U.S. 414 (1990).

190. See Robert A. Anthony, Interpretive Rules, Policy Statements, Guidances, Manuals and the Like—Should Agencies Use Them to Bind the Public?, 41 DUKE L. J. 1311, 1312, 1366-72 (1992).

191. Sweet Home Chapter of Communities for a Great Or. v. Turner, No. 91-2218-NHJ (D.D.C. Feb. 27, 1992).

192. 50 Fed. Reg. 37423 (July 20, 1995) (to be codified at 50 C.F.R. § 17.31(d)(3)) (proposed July 20, 1995).

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