No. 94-859

In the Supreme Court of the United States

OCTOBER TERM, 1994

BRUCE BABBITT, SECRETARY OF THE INTERIOR, ET AL.,
PETITIONERS

v.

SWEET HOME CHAPTER OF COMMUNITIES
FOR A GREAT OREGON, ET AL.

PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

DREW S. DAYS, III
Solicitor General

LOIS J. SCHIFFER
Assistant Attorney General

EDWIN S. KNEEDLER
Deputy Solicitor General

BETH S. BRINKMANN
Assistant to the Solicitor General

MARTIN W. MATZEN
ELLEN J. DURKEE
Attorneys

Department of Justice
Washington, D.C. 20530
(202)514-2217 

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QUESTION PRESENTED

Under Section 9(a) (1) of the Endangered Species Act
of 1973, 16 U.S.C. 1538(a) (1), it is unlawful for any
person (including a federal agency) to "take" an en-
dangered or threatened species, except for certain "takes"
that are incidental to otherwise lawful activities and au-
thorized by the Secretary of the Interior under conditions
designed to minimize and mitigate the impact on the
species, 16 U.S.C. 1536(b)(4), 1539(a)(1). The Act
defines the term "take" to include "harm." 16 U.S.C.
1532 (19). The question presented is:

Whether the regulation promulgated by the Secretary
in 1975 and 1981 that defines "harm" to include "sig-
nificant habitat modification or degradation" that "actu-
ally kills or injures wildlife," 50 C.F.R. 17.3, is invalid
on its face.

(I)

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II

PARTIES TO THE PROCEEDINGS

The Secretary of the Interior, currently Bruce Babbitt,
and the Director of the United States Fish and Wildlife
Service, an agency within the Department of the Interior,
currently Mollie H. Beattie, were the appellees in the
proceeding below, where respondents Sweet Home Chap-
ter of Communities for a Great Oregon, Betty F. Orem,
Erickson Busheling, Inc., Southeastern Lumber Manu-
facturers Association, Inc., Southern Timber Purchasers
Council, Ridgetree Logging Company, Shotpouch Log-
ging Company, Jean Reynolds, Emmy G. Birkenfeld, and
Pat McCollum, were appellants.

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TABLE OF CONTENTS

Page

Opinions  below . . . . 1
Jurisdiction . . . . 2
Statutory and regulatory provisions involved . . . . 2
Statement . . . . 2
Reasons for granting the petition . . . . 12
Conclusion . . . . 26
Appendix A . . . . 1a
Appendix B . . . . 42a
Appendix C . . . . 73a
Appendix D . . . . 89a
Appendix E . . . . 100a
Appendix F . . . . 102a
Appendix G . . . . 103a

TABLE OF AUTHORITIES

Cases:

American Bald Eagle v. Bhatti, 9 F.3d 163 (1st
Cir. 1993) . . . . 19, 23
Bowen v. Yuckert, 482 U.S. 137 (1987) . . . . 13
Chevron U.S.A., Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837 (1984)  . . . . 9, 10
Defenders of Wildlife v. Administrator, EPA, 882
F.2d 1294 (8th Cir. 1989) . . . . 23
Friends of Endangered Species, Inc. v. Jantzen,
760 F.2d 976 (9th Cir. 1985) . . . . 17
INS v. National Ctr. for Immigrants' Rights, 112
S. Ct. 551 (1991) . . . . 13
Lujan v. Defenders of Wildlife, 112 S. Ct. 2130
(1992) . . . . 3
Morrill v. Lujan, 802 F. Supp. 424 (S.D. Ala.
1992) . . . . 20
National Wildlife Fed'n v. Burlington N. R.R.
Inc., 23 F.3d 1508 (9th Cir. 1994) . . . . 19, 20
        
(III)

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IV

Cases-Continued:               

Page

National Wildlife Fed'n v. National Park Serv., 669
F. Supp. 384 (D. Wyo. 1987) . . . . 20
Pyramid Lake Paiute Tribe of Indians v. United
States Dep't of Navy, 898 F.2d 1410 (9th Cir.
1990) . . . . 20
Palila v. Hawaii Dep't of Land & Natural Re-
sources
852 F.2d 1106 (9th Cir. 1988) . . . . 11, 12, 20, 21,22
639 F.2d 495 (9th Cir. 1981) . . . . 20, 22, 23
Reno v. Flores, 113 S. Ct. 1439 (1993) . . . . 13
Seattle Audubon Soc'y v. Evans, 952 F.2d 297 (9th
Cir. 1991) . . . . 15
Sierra Club v. Yeutter, 926 F.2d 429 (5th Cir.
1991)  . . . . 20, 23
Thomas Jefferson Univ. v. Shalala, 114 S. Ct. 2381
(1994) . . . . 20,21
TVA v. Hill, 437 U.S. 153 (1978) . . . . 12, 25, 26
United States v. Glenn-Colusa Irrigation Dist., 788
F. Supp. 1126 (E.D. Cal. 1992) . . . . 20
United States v. Salerno, 481 U.S. 739 (1987) . . . . 13

Statutes and regulations:

Endangered Species Act of 1973, 16 U.S.C. 1531
et  seq . . . .  3
2(a)(1), 16 U.S.C. 1531(a)(1) . . . . 3
2(b), 16 U.S.C. 1531(b) . . . . 3
3, 16 U.S.C. 1532 . . . . 2
3(3), 16 U.S.C. 1532(3) . . . . 6
3(5) (A), 16 U.S.C. 1532(5)(A) . . . . 6, 7
3(6), 16 U.S.C. 1532(6) . . . . 4
3(19), 16 U.S.C. 1532(19) . . . . 4, 13, 15
3(20), 16 U.S.C. 1532(20) . . . . 4
4, 16 U.S.C. 1533 . . . . 3
4(a)(1)(A), 16 U.S.C. 1533(a)(1)(A) . . . . 3
4(a)(3), 16 U.S.C. 1533(a)(3) . . . . 6
4(d), 16 U.S.C. 1533(d) . . . . 4
4(f), 16 U.S.C. 1533(f) . . . . 6
5, 16 U.S.C. 1534 . . . . 6
7, 16 U.S.C, 1536 . . . . 2, 6, 7

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V

Statutes and regulations-Continued:        

Page

7(a)(1), 16 U.S.C. 1536(a)(1) . . . . 6
7(a)(2), 16 U.S.C. 1536(a)(2) . . . . 7, 8, 10
7(a)(3), 16 U.S.C. 1536(a)(3) . . . . 7
7(b)(4), 16 U.S.C. 1536(b)(4) . . . . 7
7(b)(4) (B), 16 U.S.C. 1536(b)(4)(B) . . . . 7
7(e)-(n), 16 U.S.C. 1536(e)-(n) . . . . 7
7(h), 16 U.S.C. 1536(h) . . . . 7
7(o), 16 U.S.C. 1536(o) . . . . 7 
9, 16 U.S.C. 1538 . . . . 2, 4, 5, 8, 19, 24
9(a)(1), 16 U.S.C. 1538(a)(1) . . . . 5, 16
9(a)(1)(B), 16 U.S.C. 1538(a)(1)(B) . . . . 5   
10, 16 U.S.C. 1539 . . . . 2, 16, 17, 21
10(a)(1)(B), 16 U.S.C. 1539(a)(1)(B) . . . . 5, 16, 17
10(a)(2), 16 U.S.C. 1539(a)(2) . . . . 18
10(a)(2)(A), 16 U.S.C. 1539(a)(2)(A) . . . . 5, 24
10(a)(2)(B), 16 U.S.C. 1539(a)(2)(B) . . . . 5
11(a), 16 U.S.C. 1540(a) . . . . 4
11(b) ,16 U.S.C. 1540(b) . . . . 4
11(e)(6), 16 U.S.C. 1540(e)(6) . . . . 4
Endangered Species Conservation Act of 1969,
Pub. L. No. 91-135, 83 Stat. 275 . . . . 8
Marine Mammal Protection Act of 1972, 16 U.S.C.
1362 (13) (Supp. V 1993) . . . . 15
Migratory Bird Treaty Act, 16 U.S.C. 703 et seq . . . . 15
16 U.S.C. 703 (1988 & Supp. V 1993) . . . . 15
28 U.S.C. 1391(b) (Supp. V 1993) . . . . 23
28 U.S.C. 1391(e) (1988 & Supp. V 1993) . . . . 22
50 C.F.R. :
Section 17.3 . . . . 2, 4, 8, 13
Section 17.11 . . . . 8
Section 17.21(c)(1) . . . . 4
Section 17.31 . . . . 10
Section 17.31(a) . . . . 4, 8, 9
Sections 17.40-17.48 . . . . 4

Miscellaneous:

55 Cong. Rec. S5544-S5545 (daily ed. July 30,
1917) . . . . 15

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VI

Miscellaneous-continued:

Page

119 Cong. Rec. 25,683 (1973) . . . . 15
40 Fed. Reg. 44,412 (1975) . . . . 4
46 Fed. Reg. (1981):
p. 29,490 . . . . 22
p. 29,492 . . . . 22
p. 54,748 . . . . 4, 5
p. 54,750 . . . . 5, 19
55 Fed. Reg. 26,114 (1990) . . . . 8
58 Fed. Reg. (1993):
p. 65,088 . . . . 18, 24
p. 65,090 . . . . 18
59 Fed. Reg. 5439 (1994) . . . . 24
H.R. Rep. No. 412, 93d Cong., 1st Sess. (1973) . . . . 14, 16
H.R. Rep. No. 835, 97th Cong., 2d Sess. (1982) . . . . 17
Endangered Species Act of 1973: Hearings Before
the Subcomm. on Fisheries and Wildlife Conserv-
vation and the Environment of the House Comm.
on Merchant Marine and Fisheries, 97th Cong.,
2d Sess. (1982) . . . . 17, 22
Daniel J. Rohlf, The Endangered Species Act: A
Guide to its Protections and Implementation
(Stan. Envtl. L. Soc'y 1989) . . . . 25
S. Rep. No. 2, 65th Cong., 1st Sess. (1917) . . . . 15
S. Rep. No. 307, 93d Cong., 1st Sess. (1973) . . . . 16, 21
S. Rep. No. 418, 97th Cong., 2d Sess. (1982) . . . . 17
The Random House Dictionary of the English Lan-
guage (2d ed. 1987) . . . . 13
Webster's Third New International Dictionary
(1986) . . . . 13
Edward O. Wilson, The Diversity of Life (Belknap
Press of Harv. Univ. Press 1992) . . . . 25

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In the Supreme Court of the United States
      
OCTOBER TERM, 1994

BRUCE BABBITT, SECRETARY OF THE INTERIOR, ET AL.,
PETITIONERS

v.

SWEET HOME CHAPTER OF COMMUNITIES
FOR A GREAT OREGON, ET AL.

PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

The Solicitor General, on behalf of the Secretary of the
Interior, respectfully petitions for a writ of certiorari to
review the judgment of the United States Court of Ap-
peals for the District of Columbia Circuit in this case.

OPINIONS BELOW

The August 12, 1994, statements accompanying the
court of appeals' denial of petitioners' petition for rehear-
ing and suggestion for rehearing en banc (App., infra,
89a-99a) are reported at 30 F.3d 190. The March 11,
1994, opinion of the court of appeals on respondents'
petition for rehearing (App., infra, 1a-41a) is reported
at 17 F.3d 1463. The July 23, 1993, initial opinion of
the court of appeals (App., infra, 42a-72a) is reported

(1)

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2

at 1 F.3d 1. The opinion of the district court (App.,
infra, 73a-88a) is reported at 806 F. Supp. 279.

JURISDICTION

The court of appeals entered its initial judgment on
Ju1y 23, 1993. The court of appeals thereafter granted
respondents' petition for rehearing, and on March 11,
1994, it entered a new judgment that differed from its
earlier judgment. Petitioners then sought rehearing of
that new judgment, and the court of appeals denied that
petition for rehearing on August 12, 1994. App., infra,
89a-99a. The jurisdiction of this Court is invoked under
28 U.S.C. 1254(1).

STATUTORY AND REGULATORY
PROVISIONS INVOLVED

1. Pertinent provisions of the Endangered Species Act
(3, 7, 9, and 10; 16 U.S.C. 1532, 1536, 1538, 1539)
are reprinted at App., infra, 103a-114a.
2. The Secretary of the Interior's regulation defining
"harm" for purposes of the Endangered Species Act, 50
C.F.R. 17.3, provides:

Harm in the definition of "take" in the [En-
dangered Species] Act means an act which actually
kills or injures wildlife. Such act may include sig-
nificant habitat modification or degradation where
it actually kills or injures wildlife by significantly
impairing essential behavorial patterns, including
breeding, feeding or sheltering.

STATEMENT

This case concerns the facial validity of a regulation,
50 C.F.R. 17.3, promulgated by the United States Fish
and Wildlife Service, an agency within the Department
of the Interior, to define the term "harm" as it is used
in the prohibition in Section 9 of the Endangered Spe-
cies Act, 16 U.S.C. 1538(a)(1), against the "take" of

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3

an endangered species. The regulation defines "harm"
to mean an act that actually kills or injures wildlife,
including significant habitat modification or degradation
that has that effect. The district court sustained the
validity of the "harm" regulation (as well as another
challenged regulation ). In its initial opinion, the court
of appeals affirmed the judgment of the district court.
On rehearing, the court of appeals held the regulation
invalid insofar as it defines "harm" to embrace habitat
modification, and the court of appeals reversed the dis-
trict court's judgment to that extent.
1. The Endangered Species Act, 16 U.S.C. 1531 et
seq. (ESA), "seeks to protect species of animals [and
plants] against threats to their continuing existence
caused by man." Lujan v. Defenders of Wildlife, 112
S. Ct. 2130, 2135 (1992). The Act was passed in 1973
in response to increasing concern about the extent to
which "various species of fish, wildlife, and plants * * *
have been rendered extinct as a consequence of economic
growth and development untempered by adequate con-
cern and conservation." 16 U.S.C. 1531(a)(1). The
purposes of the Act include providing "a means whereby
the ecosystems upon which endangered species and
threatened species depend may be conserved." 16 U.S.C.
1531(b). The ESA provides for protection of endan-
gered and threatened species through a number of dif-
ferent techniques. 1

___________________(footnotes)

1 Section 4 of the ESA, 16 U.S.C. 1533, provides for the deter-
mination and listing of species by the Secretary as "endangered"
or "threatened." In making the determination regarding the list-
ing of species, the Secretary is to consider, inter alia, "the present
or threatened destruction, modification, or curtailment of its habitat
or range."  16 U.S.C. 1533(a)(1)(A). "Endangered species"
means "any species which is in danger of extinction throughout
all or a significant portion of its range other than a species of the
Class Insects determined by the Secretary to constitute a pest
whose protection under the provisions of this chapter would present

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4

a. Section 9(a)(1) of the ESA (16 U.S.C. 1538
(a)(1)) provides, inter alia, that it is unlawful for any
person to "take" any endangered species. By regulation,
the "take" prohibition also applies to threatened species. 2.
Section 3 (19) of the ESA (16 U.S.C. 1532(19)) defines
the term "take" to mean "to harass, harm, pursue, hunt,
shoot, wound, kill, trap, capture, or collect, or to at-
tempt to engage in any such conduct." The "take" pro-
hibition may be enforced through suits for injunctive re-
lief, 16 U.S.C. 1540(e)(6), as well as civil and criminal
penalties, 16 U.S.C. 1540(a), and (b).
The Fish and Wildlife Services (FWS) promulgated a
regulation in 1975 to define "harm" for purposes of the
"take" prohibition in Section 9 of the ESA. 40 Fed. Reg.
44, 412. As revised without substantive change in 1981,
see 46 Fed. Reg. 54,748, the "harm" regulation (50
C.F.R. 17.3) provides:

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 pat-
terns, including breeding, feeding or sheltering.

___________________(footnotes)

an overwhelming and overriding risk to man." 16 U.S.C. 1532 (6).
"Threatened species" means "any species which is likely to become
an endangered species within the foreseeable future throughout all
or a significant portion of its range." 16 U.S.C. 1532 (20). Endan-
gered and threatened species are referred to collectively as "listed
species."

2 Under Section 4(d), 16 U.S.C. 1533(d), the Secretary may, by
regulation, prohibit with respect to threatened species. any act
prohibited under 16 U.S.C. 1538(a)(1). The Secretary, through
authority delegated to the Director of the Fish and Wildlife
Service, extended the "take" prohibition in 16 U.S.C. 1538(a)(1)
to threatened species. See 50 C.F.R. 17.31(a), 17.21(c)(1). Thus,
except where special rules applicable to particular species otherwise
provide, see 50 C.F.R. 17.40-17.48, the "take" prohibition applies
to all listed species.

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5

In promulgating the regulation, the Secretary concluded
that a showing of actual death or injury to the species
is necessary to constitute "harm." 46 Fed. Reg. 54,748
(1981). The Secretary explained, however, that "harm"
is not limited "to direct physical injury to an individual
member of the wildlife species. " Ibid. Rather, "[d]eath
or injury * * * may be caused by impairment of essen-
tial behavioral patterns [as a result of habitat modifica-
tion] which can have significant and permanent effects
on a listed species." Ibid. The Secretary emphasized that
without a showing of such impacts, habitat modification
does not "harm" the species and cannot be considered a
take. "[H]abitat modification or degradation, standing
alone, is not a taking pursuant to section 9." 46 Fed.
Reg. 54,750 (1981). 
In 1982, Congress enacted Section 10(a)(1)(B) of
the Act, which authorizes the Secretary to permit a taking
that would otherwise be prohibited under Section 9(a)
(1)(B), if such taking is "incidental to, and not [for]
the purpose of, the carrying out of an otherwise lawful
activity." 16 U.S.C. 1539(a)(1)(B). The Secretary may
not issue such an "incidental take permit" unless the ap
plicant submits a conservation plan and the Secretary
finds, inter alia, that the applicant will, "to the maximum
extent possible, minimize and mitigate the impact of
[such] taking," that "the applicant will ensure that ade-
quate funding for the plan will be provided," that "the
taking will not appreciably reduce the likelihood of the
survival and recovery of the species in the wild," and that
the applicant will take "such other measures that the
Secretary may require as being necessary or appropriate
for purposes of the plan." 16 U.S.C. 1539(a)(2)(A)
and (B).
b. In addition to Section 9, the ESA includes other
methods of protecting endangered and threatened species.
Section 4 authorizes the Secretary to designate "critical
habitat" for listed species (see note 4, infra), and to

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6

develop recovery plans to provide for the conservation
and survival of such species. 16 U.S.C. 1533(a)(3),
1533(f). Section 5 of the Act directs the Secretary to
utilize land acquisition and other authority under other
wildlife protection statutes to acquire land for the purpose
of conserving endangered species. 16 U.S.C. 1534.
Section 7 applies to federal agencies, and provides that
they "shall, in consultation with and with the assistance
of the Secretary, utilize their authorities in furtherance of
the purposes of [the Act] by carrying out programs for
the conservation of endangered species and threatened
species ." 16 U.S.C. 1536(a)(1). 3. In addition, in con-
sultation with the Secretary, federal agencies must "insure
that any action authorized, funded, or carried out by such
agency * * * is not like]y to jeopardize the continued
existence of any endangered species or threatened species
or result in the destruction or adverse modification of
habitat of such species which is determined * * * to be
critical, [4]. unless such agency has been granted an exemp-

___________________(footnotes)

3 Section 3 (3) of the Act, 16 U.S.C. 1532(3), defines "conserva-
tion":
  
The terms "conserve", "conserving", and "conservation"
mean to use and the use of all methods and procedures which
are necessary to bring any endangered species or threatened
species to the point at which the measures provided pursuant
to this chapter are no longer necessary. Such methods and
procedures include, but are not limited to, all activities asso-
ciated with scientific resources management such as research,
census, law enforcement, habitat acquisition and maintenance,
propagation, live trapping, and transplantation, and, in the
extraordinary case where population pressures within a given
ecosystem cannot be otherwise relieved, may include regulated
taking.

16 U.S.C. 1532(3).

4 The Act defines "critical habitat" for a threatened or endan-
gered species to mean:
  
(i) the specific areas within the geographical area. occupied
by the species, at the time it is listed * * *, on which are
found those physical or biological features (I) essential to

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7

ton for such action * * * pursuant to subsection (h)." 5.
16 U.S.C. 1536(a) (2). The Section 7 process applies to
an agency's issuance of licenses and permits to private
parties, as well as actions undertaken by the agency it-
self. See 16 U.S.C. 1536(a) (3).
In 1982, Congress provided a mechanism for authoriz-
ing "incidental takes" by federal agencies, just as it did
for such takes by private parties. See page 5, supra.
Under the 1982 amendments, the Fish and Wildlife Serv-
ice must prepare, as part of the biological opinion it
furnishes to the agency during the Section 7 consultation
process, what is known as an "incidental take statement."
See 16 U.S.C. 1536(b)(4). That statement specifies the
impact of any take that is anticipated to occur incidental
to the proposed federal action as well as the "reasonable
and prudent measures" that the Secretary considers "nec-
essary or appropriate to minimize such impact," and sets
forth the "terms and conditions * * * that must be com-
plied with by the Federal agency or applicant [6]. (if any)
or both, to implement the measures specified." 16 U.S.C.
1536(b)(4)(B).7

___________________(footnotes)

the conservation of the species and (II) which may require
special management considerations or protection; and
(ii) specific areas outside the geographical area occupied
by the species at the time it is listed * * * upon a determina-
tion by the Secretary that such areas are essential for the
conservation of the species.

16 U.S.C. 1532(5)(A).

5 Subsection (h) of Section 7 provides for the granting of an
exemption from the prohibitions of Section 7 by a specially con-
stituted Endangered Species Committee. See 16 U.S.C. 1636 (e) -
(n).

6 The term "applicant" refers to an applicant seeking a permit
or license from a federal agency.

7 Authorization for exemptions from the taking prohibition in
Section 9 in certain circumstances was enacted in 1978 as part of
the special exemption procedure under subsections (e) - (n) of
Section 7. See 16 U.S.C. 1536 (o).

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8

There often is some overlap among the provisions of
the Act applicable to federal agencies. For example,
within Section 7(a) (2) itself, issues considered in deter-
mining whether a federal action is "likely to jeopardize
the continued existence" of a listed species may overlap
with those relevant to determining whether the action is
likely to "result[] in the destruction or adverse modifica-
tion" of habitat designated by the Secretary as critical for
the species. 16 U.S.C. 1536(a)(2). Also, because fed-
eral agencies are subject to both Section 7(a)(2) and
the "take" prohibition in Section 9, a particular action
may cause a "taking" of an endangered species or threat-
ened species, but not adversely affect the species to such
an extent that it violates the "jeopardy" standard in Sec-
tion 7(a)(2). So too, an action may result in the de-
struction or adverse modification of "critical habitat," and
yet not result in a "take" of an endangered species be-
cause it does not "actually kill or injure wildlife." 50
C.F.R. 17.3.
2. Respondents are individuals and organizations in
the Pacific Northwest and Southeast who are engaged in,
or depend upon, timber harvesting. They allege that they
are affected by the "harm" regulation because of its ap-
plication to the northern spotted owl, which was listed as
a threatened species in 1990, 55 Fed. Reg. 26,114, and
the red-cockaded woodpecker, which was listed as an
endangered species in 1970. 50 C.F.R. 17.11. 8
Respondents brought this action as a facial challenge
to 50 C.F.R. 17.3 (which defines "harm"), and 17.31 (a)
(which extends protections to threatened species) (see
note 2, supra ). Respondents did not challenge either
regulation as applied to any of their own actions in rela-
tion to the listed birds.

___________________(footnotes)

8 The red-cockaded woodpecker was listed pursuant to authority
under the Endangered Species Conservation Act of 1969, Pub. L.
No. 91-135, 83 Stat. 275, a predecessor to the Endangered Species
Act.

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9

Respondents raised two claims with respect to the
"harm" regulation. 9. First, they contended that the regu-
lation failed under the first step of the analysis in Chev-
ron U.S.A., Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837, 842-843 (1984), because the regula-
tion's inclusion of certain habitat modification activities
within the meaning of "harm" was contrary to what in
their view was an unambiguously expressed intent of
Congress to exclude such activities from the statutory
prohibition against "takes" of endangered species. Sec-
ond, respondents claimed that the "harm" regulation is
void for vagueness.
On cross-motions for summary judgment, the district
court upheld the validity of the "harm" regulation, con-
cluding that the "language, structure, and history of the
ESA reveal that Congress intended an expansive inter-
pretation of the word 'take,' an interpretation that en-
compasses habitat modification." App., infra, 82a-83a.
The court stated that even if it were to find the ESA
"silent or ambiguous" with respect to the issue, it would
uphold the Secretary's regulation as a reasonable inter-
pretation of the Act. Id. at 83a. The district court also
held that the regulatory definition of "harm" was not void
for vagueness. Id. at 83a-85a.
3. a. On July 23, 1993, a divided panel of the court
of appeals initially affirmed the judgment of the district
court. The court issued a brief per curiam order. App.,
infra, 46a. Chief Judge Mikva and Judge Williams wrote
separate concurring opinions (id. at 59a, 67a), and Judge
Sentelle dissented (id. at 68a).
b. Respondents filed a petition for rehearing, limited
to the question whether the "harm" regulation is contrary
to congressional intent. On March 11, 1994, the panel
granted respondents' petition for rehearing and, in an-
other divided decision, reversed the district court's judg-

___________________(footnotes)

9 The courts below sustained 50 C.F.R. 17.31 (a), and this peti-
tion therefore is limited to the "harm" regulation.

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10

ment with respect to the validity of the regulation defining
"harm." 10 App., infra, 1a-24a. Judge Sentelle filed a
concurring opinion (id. at 25a) and Chief Judge Mikva
filed a dissenting opinion (id. at 27a).
The court of appeals concluded that the "harm" reg-
ulation was neither clearly authorized by Congress nor
a reasonable interpretation of the statute, citing Chevron
U.S.A., Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. at 842-843, 844. App., infra, 3a. The court
acknowledged that the term "harm" may be read to
include the sort of habitat modification covered by the
regulation. It reasoned that "harm" should not be con-
strued to cover such actions, however, because, in its
view, the other words in the statutory definition ("harass,
harm, pursue, hunt, shoot, wound, kill, trap, capture, or
collect") "contemplate the perpetrator's direct application
of force against the animal taken"-e.g., "A hit B." Id.
at 4a. The court applied the maxim "noscitur a sociis"
(that a word is known by the company it keeps) and
concluded that the term "harm" should be read in a
similar manner. Id. at 5a-7a.
The court further concluded that the "structure and
history of the Act confirm this reading." App., infra, 7a.
It read the "harm" regulation as having "transposed to
the private anti-'take' provision" the duty of federal agen-
cies under Section 7(a)(2) to refrain from "'the destruc-
tion or adverse modification of habitat of such species
which is determined * * * to be critical.'" Ibid. The
court found that result to be contrary to the ESA, which
assigned "the primary task of habitat preservation to the
government," rather than to private parties. Id. at 8a.
Finally, the court rejected the argument that the 1982
amendments to the ESA that authorized permits for "in-

___________________(footnotes)

10 The court's original judgment is otherwise unaltered. App.,
infra, 24a. Thus, the court of appeals adhered to its rulings that
50 C.F.R. 17.31 is valid and that the "harm" regulation is not void
for vagueness.

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11

cidental takings" reflected a congressional ratification of
the Secretary's interpretation. Id. at 10a-24a.
In a concurring opinion, Judge Sentelle expressed the
view that the statutory language and structure of the ESA
provided a sufficient basis for invalidating the "harm"
regulation and that resort to the legislative history was
unnecessary. App., infra, 25a. He also reasoned that to
define "harm" as the Secretary does would render super-
fluous the other words in the statutory definition of "take."
App., infra, 25a.
Judge Mikva dissented. App., infra, 27a. He first
objected that the majority erroneously shifted the burden
to the government agency to show that its interpretation
is clearly authorized or reasonable, whereas, under Chev-
ron, the burden is on those challenging governmental
action to show either that Congress has directly spoken
on the issue or that the agency's interpretation is un-
reasonable. Id. at 28a. In this case, Judge Mikva con-
cluded that the statute is silent, or at best ambiguous on
the scope of the term "harm," so that the issue is whether
the Secretary's interpretation of that term constitutes a
permissible reading of the statute. He concluded that it
does, expressing the view that the majority's application
of noscitur a sociis was fatally flawed because the "defini-
tion of 'take' does not conform to the paradigm of one
broad word alongside many narrow ones." App., infra,
30a.
Judge Mikva found additional support for the Secre-
tary's interpretation in the legislative history of the ESA,
including the 1982 amendments. The amendments, he
reasoned, demonstrate that Congress thought that the orig-
inal prohibition against "takings" included some "inci-
dental takings," and that by "incidental takings" Congress
meant to include certain habitat modification.  App.,
infra, 37a. Finally, Judge Mikva pointed out that the
court's ruling creates a conflict with the Ninth Circuit's
decision in Palila v. Hawaii Dep't of Land & Natural

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12

Resources, 852 F.2d 1106, 1107-1109 (9th Cir. 1988)
(Palila II).
c. On April 25, 1994, petitioners filed a petition for
rehearing with suggestion for rehearing en bane, which
the court denied on August 12, 1994. App., infra, 89a-
90a. Four members of the court of appeals voted to grant
rehearing en banc. Id. at 90a. Three of those judges-
Judge Silberman, joined by Chief Judge Mikva and Judge
Wald-filed a statement expressing the view that apply-
ing Chevron deference the interpretation of "harm" in
the Secretary's regulation should be sustained. Id. at
98a.

REASONS FOR GRANTING THE PETITION

The court of appeals erred in holding that the Secre-
tary's longstanding regulation defining the term "harm"
in the prohibition against the "taking" of endangered
species in Section 9(a)(1) of the Endangered Species Act
of 1973 is invalid on its face. That regulation is consis-
tent with the ordinary meaning of the term "harm," re-
flects a reasonable administrative interpretation of the
statutory provisions in the context of the Act as a whole,
and is supported by the purposes and legislative history
of the Act and by this Court's discussion of the prede-
cessor regulation in TVA v. Hill, 437 U.S. 153, 184-185
& n.30 (1978). The contrary conclusion by the court
below conflicts with Palila v. Hawaii Dep't of Land &
Natural Resources, 852 F.2d 1106 (9th Cir. 1988), and
is also inconsistent with decisions of other courts of ap-
peals that have considered the "take" prohibition in the
context of habitat modifications. The scope of the "take"
prohibition is, in addition, a question of exceptional pub-
lic importance in the administration of the ESA and the
protection of endangered and threatened species. Review
by this Court therefore is warranted.
1. a. To prevail in a facial challenge to a regulation,
the plaintiff "must establish that no set of circumstances

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13

exists under which the [regulation] would be valid." Reno
v. Flores, 113 S. Ct. 1439, 1446 (1993), quoting United
States v. Salerno, 481 U.S. 739, 745 (1987); see also
INS v. National Ctr. for Immigrants' Rights, 112 S. Ct.
551, 555 (1991); cf. Bowen v. Yuckert, 482 U.S. 137,
154 n, 12 (1987). Thus, in this case, respondents were
required to establish that in no set of circumstances could
the statutory prohibition against the "taking" of a pro-
tected species include "harm" to the species that takes
the form of "significant habitat modification or degrada-
tion" that "actually kills or injures wildlife." 50 C.F.R.
17.3. This respondents failed to do.
The term "take" is defined in the Act to mean "to
harass, harm, pursue, hunt, shoot, wound, kill, trap, cap-
ture, or collect, or to attempt to engage in any such
conduct." 16 U.S.C. 1532(19). This case includes the
meaning of one of those enumerated forms of taking:
"harm." In ordinary usage, the word "harm," in its verb
form, means "to cause hurt or damage to: INJURE,"
Webster's Third New International Dictionary 1034
(1986), or "to do or cause harm to; injure; damage;
hurt," The Random House Dictionary of the English
Language 873 (2d ed. 1987). This common understand-
ing of the word includes the actual killing or injury of
wildlife whether by means of modification or degradation
of its habitat of by other causes. The statutory definition
of "take" itself expressly includes "kill" and "wound,"
and there is no reason why Congress would have intended
to allow those consequences simply because they are
brought about by the destruction of habitat essential for
the wildlife's breeding, feeding, or shelter, rather than by
the discharge of a firearm or other direct application of
force (the types of actions to which the court of appeals
believed the prohibition is limited. App., infra, 4a). 11

___________________(footnotes)

11 For example, a bulldozer clearing land may instantaneously
kill an individual member of a species as well as cause the death

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14

The presence of the words "harass" and "pursue" in the
definition of "take" also weighs against the court of ap-
peals' crabbed interpretation, for neither necessarily (or
even ordinarily ) involves the direct application of force. 12.
Read in the context of the various other words in the
definition of "take" that affirmatively support the Secre-
tary's elaboration of the meaning of "harm," the court of
appeals' reliance on the principle noscitur a sociis (App.,
infra, 6a-7 a) was misplaced.
The assumption underlying the court's invocation of
noscitur a sociis is that Congress must have intended for
certain words in the definition of "take" that involve the
application of physical force ("hunt," "shoot," "trap,"
"capture") to furnish a narrowing focus even with respect
to other words, such as "harm," that have broader conno-
tation. Whatever the merits of that proposition in other
settings, it has no merit here, especially since the relevant
statutory language contains a number of both broader
and narrower terms. Congress's purpose in including the
terms "harass" and "harm" was to ensure that the term
"take" would have a broader meaning than it had been
given in wildlife statutes such as the Migratory Bird

___________________(footnotes)

of the entire species if the clearing activity destroys the whole
habitat on which the species is dependent.

12 For example, Congress intended that the "harass" prohibition
allow the "Secretary to regulate or prohibit the activities of bird-
watchers where the effect of those activities might disturb the
birds and make it difficult for them to hatch or raise their young."
H.R. Rep. No. 412, 93d Cong., 1st Sess. 11 (1973). Notwithstanding
the court of appeals' suggestion that the release of sound waves or
light particles fits the model of "A hit B," App., infra, 4a, the
Act's inclusion of what might otherwise be regarded as benign
actions that would be encompassed by the word "harass" do not
reasonably fit the paradigm of direct physical force applied against
an animal. The House Report, quoted above, confirms that the
"take" prohibition instead focuses on the "effect" of an action on
the species.

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15

Treaty Act (MBTA). 13 The court of appeals' focus on
physical blows to the body of individual animals, by con-
trast, effectively mirrors the MBTA concept of "take."
The majority's endeavor to maintain conformity with the
narrowest terms defining "take" defeats the intent ex-
plicitly expressed by the responsible congressional com-
mittees (even before the more expansive word "harm"'
was added to the bill) that "take" have a broad scope
and include actions having the effect of significantly dis-
rupting a species' normal behavioral patterns. 14. See

___________________(footnotes)

13 The MBTA, 16 U.S.C. 703 et seq., was enacted 55 Years prior
to the ESA for the purpose of halting the "indiscriminate slaughter
of migratory birds." See, e.g., 55 Cong. Rec. S5544-S5545 (daily
ed. July 30, 1917); S. Rep. No. 2, 65th Cong., 1st Sess. (1917).
The MBTA prohibits the taking of virtually every bird in the
United States, not just endangered or threatened birds. The defini-
tion of "taking" under the MBTA., 16 U.S.C. 703 (1988 & Supp. V
1993), omits the words "harass" and "harm." See Seattle Audubon
Soc'y v. Evans, 952 F.2d 297, 302-303 (9th Cir. 1991) ("Habitat
destruction causes 'harm' to the owls under the ESA but does not
'take' them within the meaning of the MBTA."). When Congress
enacted the Marine Mammal Protection Act in 1972 it included
the word "harass" in the definition of "take." See 16 U.S.C.
1362 (13) (Supp. V 1993). Then, when enacting the ESA in 1973,
Congress enlarged the concept of "take" further by adding the
word "harm" to the definition. See 16 U.S.C. 1532 (19).

14 The court's suggestion (App., infra, 9a-10a) that its narrow
reading of "take" is supported by the failure of the Senate com-
mittee to adopt a proposed definition that made habitat modifica-
tion a form of "take" disregards the circumstances surrounding
the committee's action. The proposal before the committee would
have made any habitat modification a "take." It did not include
the limitations under the Secretary's narrower interpretation,
which requires proof of significant modification and actual killing
or injury as a result of significant impairment of essential be-
havioral patterns. In any event, the report gives no explanation
of why the committee selected one proposed definition over the
other, and the word "harm" was added during the floor debate
purportedly to clarify language that was omitted from the draft
that emerged from committee. 119 Cong. Rec. 25,683 (1973) (Sen.
Tunney).

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16

S. Rep. No. 307, 93d Cong., 1st Sess. 7 (1973) ("'Take'
is defined * * * in the broadest possible manner to
include every conceivable way in which a person can
'take' or attempt to `take' any fish or wildlife."); note 12,
supra, quoting H.R. Rep. No. 412, 93d Cong., 1st Sess.
11 (1973).
Moreover, even if noscitur a sociis were properly in-
voked below, the court of appeals' characterization of the
unifying theme of the statutory language is mistaken.
The unifying concept of the specific terms chosen by
Congress to define "take''-to "hunt, shoot, wound, trap,
and collect," as well as the broader and more general
terms "harass, harm, pursue" and "kill''-is that the con-
duct will result in some reasonably ascertainable and
proximate injury (or death) to the protected species. 15.
Thus, the statutory text does not compel the conclusion
that the Secretary's regulation is invalid, as the court of
appeals believed; the text affirmatively supports the valid-
ity of the regulation.
The 1982 amendments to the ESA reinforce the reason-
ableness of the Secretary's interpretation. In 1982, Con-
gress acted to lessen the restriction imposed by the "take"
prohibition by adding the provisions in Section 10 that
authorize the issuance of permits allowing a "take"
that is "incidental to, and not the purpose of, the carry-
ing out of an otherwise lawful activity." 16 U.S.C.
1539 (a)(1)(B). This description of the category of
permitted "takes''-those that are merely "incidental" to
otherwise lawful activity surely encompasses those that
result from the serious adverse consequences of habitat

___________________(footnotes)

15 The principle against surplusage, a maxim on which the con-
curring opinion below relied, App., infra, 25a, is also unenlight-
ening. There is no reasonable definition of "harm" that would not
render superfluous some of the other terms. Moreover, the prin-
ciple against surplusage is in tension with noscitur a sociis. To
avoid surplusage, the word "harm" must be given meaning that
is different, rather than synonymous, with the other terms.

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17

modification. Congress's provision of a mechanism for
permitting such activities notwithstanding the "take" pro-
hibition weighs against a construction of the prohibition
that would not include such activities in the first place.
Moreover, there is considerable evidence that, when it
created the Section 10 permit program, Congress had
specifically in mind incidental takes in connection with
habitat modification activities. For example, the Section
10 incidental take permit process was described in H.R.
Rep. No. 835, 97th Cong., 2d Sess. 30-32 (1982), and
S. Rep. No. 418, 97th Cong., 2d Sess. 10 (1982), as
being modeled after a situation in which the "take" of
endangered butterflies was caused by the bulldozing of
the butterflies' habitat in connection with "the develop-
ment of some 300 dwelling units." 16. The incidental
take permit provision was also intended to further the
statutory purpose of habitat conservation. Ibid. 17.
b. Far from applying the standard for determining
whether a regulation is invalid on its face (i.e., whether
there are any circumstances under which the regulation
would be valid), the court of appeals took the opposite
approach-it invalidated the "harm" regulation on the
basis of imagined applications that were not before it.
For example, the court of appeals stated that the regula-
tion reflects an improbable relation to congressional intent

___________________(footnotes)

16 The cited development is described further in Friends of
Endangered Species, Inc. v. Jantzen, 760 F.2d 976 (9th Cir. 1985);
Endangered Species Act of 1973: Hearings Before the Subcomm.
on Fisheries and Wildlife Conservation and the Environment of
the House Comm. on Merchant Marine and Fisheries, 97th Cong.,
2d Sess. 331-335 (1982) [1982 House Hearings].

17 In addition, in the reauthorization hearings, objections to
the regulatory definition of "harm" and proposals to change it
were discussed in conjunction with the incidental take exemption.
See 1982 House Hearings at 240, 262, 273, 290-293, 328-329, 331,
343.

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18

because it might forbid any modification of an area
between 35 and 42 million acres in size because "some
scientists" believe such an area is necessary to the sur-
vival of the threatened grizzly bear, even though the court
acknowledged that such broad coverage represented the
views of an "adherent of aggressive protection." App.,
infra, 6a. 18. By focusing only on extreme examples and
the potential for unreasonably broad application of the
regulation to specific species, the court of appeals failed

___________________(footnotes)

18 In the August 12, 1994, statement, the panel majority stated
that in using that example, it understood that the regulation re-
quired that the habitat modification be "fatal" to grizzly bears.
It explained that if millions of acres are necessary to the survival
of grizzly bears then any material curtailment necessarily would
involve death for members of the species. App., infra, 91a. The
panel majority also stated, however, that it did not endorse the
specific claim of what acreage might actually be necessary for the
grizzlies. Id. at 91a n.1. That qualification is significant because
it is unrealistic to assume that a take violation could be found
with respect to any and all habitat modification activities based
on such evidence.
The panel majority's August 12, 1994, statement also pointed
to a Special Rule Concerning Take of the Threatened Coastal
California Gnatcatcher, published at 58 Fed. Reg. 65,088 (1993),
as evidencing that enforcement of the "harm" regulation entails
Interior's exercise of power over large tracts of land. App., infra,
94a. The panel majority's reliance is misplaced, however, because
the cited reference, 58 Fed. Reg. 65,090 (1993), is to a state plan-
ning process that encompasses 3.8 million acres. That area does
not equate to gnatcatcher habitat, nor does the reference mean,
as the panel majority suggests. that the "take" prohibition would
apply to all habitat modification activities within that area. The
Fish and Wildlife Service's issuance by special rule of an incidental
take authorization for the gnatcatcher is largely the result of
special circumstances in California whereby state law provides for
a regional planning process that incorporates criteria that meet
ESA incidental take standards. See 16 U.S.C, 1539(a)(2). The
special rule effectively eliminates duplication of state, local and
federal efforts and serves to reduce federal involvement.

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19

to heed the limited nature of review accorded in a facial
challenge. 19
In any event, the court of appeals greatly exaggerated
the breadth of the "harm" regulation. The court of ap-
peals overlooked the fact that the evidentiary burden
required to prove "actual death or injury" directly trace-
able to habitat-disturbing actions taken by a defend-
ant imposes significant limitations on the regulation's
application.
Prior to this case, the courts correctly interpreted the
"harm" prohibition not to extend to activity that only
potentially, as opposed to actually, causes (or will cause)
harm. American Bald Eagle v. Bhatti, 9 F.3d 163, 166
(1st Cir. 1993) ("courts have granted injunctive relief
only where petitioners have shown that the alleged activity
has actually harmed the species or if continued will
actually, as opposed to potentially, cause harm to the
species"); see also National Wildlife Fed'n v. Burlington
N. R.R., 23 F.3d 1508, 1511-1513 (9th Cir. 1994)

___________________(footnotes)

19 The court of appeals also suggested that the regulation is
unreasonable and overly broad because it is directed at harm flow-
ing from the withholding of a benefit, rather than physical intru-
sions that wound an individual member of an endangered species.
App., infra, 3a-4a. The August 12, 1994, statement reasserted
that view and pointed to the Department of the Interior's com-
mentary accompanying the "harm" rule, which stated that an "act"
is inclusive of either commissions or "omissions" that would be
prohibited by Section 9. App., infra, 91a; 46 Fed. Reg. 54,750
(1981). However, an "omission" constitutes an "act" prohibited
by Section 9 only if there is a legal duty to act and the failure to
discharge the duty causes a significant habitat modification that
leads in turn to death or injury to a listed species. An example
of such an omission might arise from a duty to maintain a licensed
dam structure-a maintenance omission causing a dam breach
could significantly destroy habitat and cause death or injury to a
listed species as a result. The comment by the Department of the
Interior does not encompass passive acts of nonfeasance or create a
duty, where it otherwise would not exist, to maintain a listed
species' habitat.

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20

(corn spill was localized in nature and did not constitute
significant habitat modification or cause significant im-
pact); Pyramid Lake Paiute Tribe of Indians v. United
States Dep't of Navy, 898 F.2d 1410, 1420 (9th Cir.
1990) (evidence does not establish that diversion of
water actually caused spawning problems); National Wild-
life Fed'n v. National Park Serv., 669 F. Supp. 384 (D.
Wyo. 1987) (insufficient evidence of injury from plan
designed to reduce conflicts between humans and grizzly
bear); Merrill v. Lujan, 802 F. Supp. 424, 430-433
(S.D. Ala. 1992) (insufficient evidence that destruction
of mouse habitat would cause injury to mouse). By the
same token, the courts that have found violations of the
regulation have recognized that it applies only where
actual injury or death directly traceable to the actions
of the defendant has occurred or will occur. See, e.g.,
Palila v. Hawaii Dep't of Land & Natural Resources,
639 F.2d 495, 498 (9th Cir. 1981) (Palila I); Palila II,
852 F.2d at 1108-1110; Sierra Club v. Yeutter, 926 F.2d
429 (5th Cir. 1991) (enjoining Forest Service from even-
aged lumber practices following documentation of dra-
matic decline in red-cockaded woodpecker colonies di-
rectly traceable to lumbering practice); United States v.
Glenn-Colusa Irrigation Dist., 788 F. Supp. 1126, 1133
(E.D. Cal. 1992) (water district's pumping kills fish
by creating water velocity that causes salmon to be pinned
or battered against screens or by diverting fish into chan-
nels full of predators).
c. In sum, the Secretary's appropriately tailored reg-
ulation defining the term "harm" reflects a reasonable
interpretation of the statutory term, and is supported by
the structure of the Act as a whole and its purpose and
legislative history. The court of appeals' contrary conclu-
sion rests on an extravagant reading and speculative
applications of the regulation, and thereby fails to respect
both the limitations imposed by the Secretary's interpreta-
tion and application of his own regulation (see Thomas

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21

Jefferson Univ. v. Shalala, 114 S. Ct. 2381, 2386 (1994))
and the nature of a facial challenge to a regulation.
2. a. The court of appeals' ruling conflicts with the
Ninth Circuit's decision in Palila II, 852 F.2d at 1108.
Palila II involved mouflon sheep that had been introduced
in a particular area at an earlier time for the enjoyment
of hunters, and a challenge to the maintenance of the
sheep there because they feed on and destroy the mamane-
naio woodlands upon which an endangered bird species,
the Palila, depends for survival. The Ninth Circuit held:

The Secretary's inclusion of habitat destruction
that could result in extinction follows the plain lan-
guage of the statute because it serves the overall
purpose of the Act, which is "to provide a means
whereby the ecosystems upon which endangered spe-
cies and threatened species depend may be con-
served." . . . 16 U.S.C. 1531(b). * * *
The Secretary's construction of harm is also con-
sistent with the policy of Congress evidenced by the
legislative history. * * * If the "harassment" form
of taking includes activities so remote from actual
injury to the bird as birdwatching, then the "harm"
form of taking should include more direct activities,
such as the mouflon sheep preventing any mamane
from growing to maturity.

Id. at 1108-1109.

Finally, the Palila II court concluded that the Secre-
tary's "harm" definition is consistent with the legislative
history of the 1973 Act stating that "'[t]ake' is defined
in . . . the broadest possible manner to include every
conceivable way in which a person can 'take' or attempt
to 'take' any fish or wildlife." 852 F.2d at 1108, quoting
S. Rep. No. 307, supra, at 7. 20. Similarly, the Palila

___________________(footnotes)

20 The United States filed a brief as amicus curiae in Palila II
in support of affirmance of the district court's ruling that the
destruction of certain vegetation constituted an unlawful "take"

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22

II court noted that the 1982 ESA amendments supported
the Secretary's interpretation because Congress did not
modify the "take" prohibition, thereby "indicat[ing] satis-
faction with the current definition of harm and its inter-
pretation by the Secretary and the judiciary." 852 F.2d
at 1109 n.6. 21
The disruptive consequences of a circuit conflict be-
tween the District of Columbia and Ninth Circuits are
especially pronounced in the present context. Because
of the geographic features of the territory included within
the Ninth Circuit and the species found therein, issues
under the ESA arise more frequently there than in other
circuits. At the same time, although the ESA does not
confer any special jurisdiction on the District of Colum-
bia Circuit, a litigant suing a federal officer (as in this
case) may bring suit not only in the district where the
property that is the subject of the action is situated, but
also in the District of Columbia. 28 U.S.C. 1391(e)

___________________(footnotes)

because it would lead to the extinction of the listed species by
depriving it of its food source. The United States contended,
however, that the district court had erred in holding that a "take"
could result from habitat destruction that merely retards the re-
covery of a species. The Ninth Circuit affirmed that habitat
degradation that would cause the extinction of a listed species
constituted an unlawful "take." The court of appeals explicitly
declined to reach the question whether habitat degradation that
merely prevents recovery of an endangered species constitutes a
"take." 852 F.2d 1110-1111.

21 In fact, in Palila I, 639 F.2d at 498, the court of appeals had
ruled that another habitat modification constituted an unlawful
"take." The Palila I decision preceded, and was considered by
Congress during deliberations on, the 1982 amendments to the
ESA, as was the Fish and Wildlife Service's interpretation of
the term "harm" to include habitat modification that actually kills
or injures species. See 1982 House Hearings at 273, 291, 331.
Palila I also provided the impetus for the Secretary's rewording
of the "harm" definition in 1981 to clarify that habitat modifica-
tion per se does not constitute a take. See 46 Fed. Reg. 29,490,
29,492.

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23

( 1988 & Supp. V 1993). Accordingly, other persons who
claim to be adversely affected by the Secretary's definition
of "harm" may follow respondents' lead and bring an
anticipatory action in the District of Columbia to take
advantage of the precedent of the decision below. An
enforcement action brought by the United States or in a
citizen suit, on the other hand, generally must be brought
in the district in which the defendant resides or the prop-
erty is located. See 28 U.S.C. 1391(b) (Supp. V 1993).
Thus, there is a real potential for the jurisdiction of the
Ninth and D.C. Circuits to overlap with regard to activi-
ties in the circuit most affected by the "harm" regulation.
This situation creates considerable uncertainty for private
landowners and federal agencies, and the potential for
non-uniform treatment within the Ninth Circuit.
b. The court of appeals' decision is also inconsistent
with the decisions from other courts of appeals, which
have recognized in the concrete context of particular ap-
plications of the "take" prohibition that a "take" of an
endangered species may result from habitat modification
activities that cause harm to a species. See American
Bald Eagle v. Bhatti, 9 F.3d 163 (1st Cir. 1993); Sierra
Club v. Yeutter, 926 F.2d 429 (5th Cir. 1991); Defend-
ers of Wildlife v. Administrator, EPA, 882 F.2d 1294
(8th Cir. 1989); see also Palila 1, 639 F.2d at 497-498.
3. a. The issue in this case is one of exceptional im-
portance. Since enactment of the ESA in 1973, the Secre-
tary of the Interior has consistently interpreted the Act
to prohibit "harm" caused by actions that significantly
modify listed species' habitat to such an extent that the
modification actually kills or injures the species. Although
the number of prosecutions enforcing the "take" prohibi-
tion in the context of habitat-modification "harm" are
relatively few, reliance on the regulation is far more
prevalent than the number of prosecutions would sug-
gest. Due to acceptance of the Secretary's interpretation,
for example, numerous private parties have cooperated

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24

in the formulation of scores of habitat conservation plans,
which are a prerequisite to procurement of a Section 10
incidental take permit. See 16 U.S.C. 1539(a)(2)(A).22
The Secretary's "harm" regulation has also provided
the impetus for (or recognition of) state and local conser-
vation plans, which have provided the basis for develop-
ing special federal rules defining the conditions under
which the "take" of a species would not be regarded as
a violation of ESA Section 9. 23 Numerous other parties,
including Georgia-Pacific, a large lumber company op-
erating in the range of the red-cockaded woodpecker,
have, through discussions with the Fish and Wildlife
Service, modified plans to avoid all incidental takes
by habitat destruction." The court of appeals' decision
threatens to undermine the significant protection to listed
species afforded by such voluntary compliance. At the
very least, the decision creates confusion for private
landowners regarding the statutory requirements.
The court of appeals' decision also threatens to cause
significant disruptions to federal actions. For example,
the court of appeals' decision in this case provides the
basis for one claim in a suit filed by environmental
groups, Seattle Audubon Soc'y v. Espy, Civ. No. 92-
479WD (W.D. Wash.), to challenge the final supple-
mental environmental impact statement concerning Forest
Service and Bureau of Land Management planning doc-

___________________(footnotes)

22 See Attachment C to Federal Appellees' Response in Opposi-
tion to Motion of Sweet Home to Expedite Issuance of the Mandate
(summarizing status of more than 150 habitat conservation plans
submitted in connection with incidental-take permit applications).

23 See 58 Fed. Reg. 65,088 (1993) (special rule concerning take
of threatened coastal California gnatcatcher) ; 59 Fed. Reg. 5439
(1994) (notice of intent to prepare environmental impact state-
ment to evaluate effects of issuance of incidental take permit that
would allow private development in conjunction with conservation
plan on public lands for the desert tortoise).

24 Attachment D to Federal Appellees' Response in opposition
to Motion of Sweet Home to Expedite Issuance of the Mandate.

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25

uments within the range of the northern spotted owl.
Those documents were prepared to assess the impact of
the President's proposed plan for 24 million acres of
public land and to permit the lifting of the injunctions
banning timber harvests on federal lands throughout the
Pacific Northwest. The complaint in Seattle Audubon
Soc'y relies on the court of appeals' ruling in this case
to allege that the environmental documents are inadequate
because they assume that private landowners' activities
that "harm" protected species may be circumscribed. If
the court of appeals' decision in this case renders that
assumption incorrect, the plaintiffs assert, then insuf-
ficient federal land has been set aside for protection of
listed species.
b. The prohibition against habitat modification that ac-
tually kills or injures species is a critical tool in the ef-
fort to preserve listed species. Most endangered and
threatened species are at risk more often because of loss
and degradation of habitat than because of any other
factor. See TVA v. Hill, 437 U.S. 153, 179 (1978);
Edward O. Wilson, The Diversity of Life 253, 346
(Belknap Press of Harv. Univ. Press 1992); Daniel J.
Rohlf, The Endangered Species A et: A Guide to its Pro-
tections and Implementation 11 (Stan. Envtl. L. Soc'y
1989).
As Judge Silberman observed in his dissent from the
order denying rehearing en banc, one can readily imagine
habitat modification activities that cover a range of con-
duct falling within the core statutory concepts which
animate the "take" definition as easily as one can imagine
conduct that does not. App., infra, 98a. Thus, as this
Court recognized in TVA v. Hill, 437 U.S. at 184 n.30,
with specific reference to the definition of "harm" in the
1975 regulation, a dam project that causes the extinction
of an endangered snail darter by destroying its entire
habitat constitutes a "take." Similarly, the cutting of a
nest tree in which an endangered species dwells and breeds

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26

can effectively kill the bird, regardless of whether the bird
is at home when the tree falls.
The Court observed in TVA v. Hill, that "[t]he plain
intent of Congress in enacting [the ESA]''-"to halt and
reverse the trend toward species extinction''-is reflected
in the ESA's instruction to "[a]ll persons" not to "take"
protected species.  437 U.S. at 184. The Secretary's
interpretation of the term "harm" in the "take" prohibi-
tion to encompass significant modification or degradation
of habitat that actually kills or injures protected species
is supported by the text, structure and legislative history
of the Act and furthers its central objectives.
        
CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.
         
DREW S. DAYS, III
Solicitor General

LOIS J. SCHIFFER
Assistant Attorney General

EDWIN S. KNEEDLER
Deputy Solicitor General

BETH S. BRINKMANN
Assistant to the Solicitor General

MARTIN W. MATZEN
ELLEN J. DURKEE
Attorneys

NOVEMBER 1994

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APPENDIX A

UNITED STATES COURT OF APPEALS
DISTRICT OF COLUMBIA CIRCUIT

No. 92-5255

SWEET HOME CHAPTER OF COMMUNITIES
FOR A GREAT OREGON, ET AL., APPELLANTS

v.

BRUCE BABBITT, Secretary of the
Interior, ET AL., APPELLEES

On Appeal from the United States District Court
for the District of Columbia Circuit (91cv01468)
On Appellants' Petition for Rehearing

Argued Feb. 17, 1993

Decided March 11, 1994

Rehearing and Suggestion for Rehearing
In Banc Denied May 2, 1994

Before:  MIKVA, Chief Judge, WILLIAMS and
SENTELLE, Circuit Judges.
Opinion for the Court filed by Circuit Judge
WILLIAMS.
Concurring opinion filed by Circuit Judge
SENTELLE.

(1a)

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2a
 
Dissenting opinion filed by Chief Judge MIKVA.
 
STEPHEN F. WILLIAMS, Circuit Judge:

Sweet Home Chapter of Communities for a Great
Oregon and a number of other organizations (collec-
tively referred to here as "Sweet Home" ) sued in dis-
trict court to invalidate a number of regulations pro-
mulgated by the Fish & Wildlife Service of the In-
terior Department under the Endangered Species Act
of 1973 ("ESA" or the "Act"), 16 U.S.C. 1531-44
(1988). The district court rejected all the challenges,
806 F. Supp. 279, and this court affirmed, unani-
mously except as to one issue. Sweet home Chapter
v. Babbitt, 1 F.3d 1 (D.C. Cir. 1993). The issue that
split the court involved the scope of the Act's prohibi-
tion of the "taking" of endangered species. On peti-
tion for rehearing, and after securing a response
from the government, we alter our view on that issue.
The Act makes it a crime for any person to "take"
any endangered species of fish or wildlife listed under
the Act. ESA 9(a)(1)(B), 16 U.S.C. 1538(a)
(1)(B). A definitional section of the Act states that
"take" means

to harass, harm, pursue, hunt, shoot, wound, kill,
trap, capture, or collect, or to attempt to engage
in any such conduct.

16 U.S.C. 1532(19). The Fish & Wildlife Service
("FWS") has in turn defined the component term
"harm" in such a way as to encompass any "signifi-
cant" habitat modification that leads to an injury to
an endangered species of wildlife:

Harm in the definition of "take" in the Act
means an act which actually kills or injures wild-
life. Such act may include significant habitat

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3a

modification or degradation where it actually
kills or injures wildlife by significantly impair-
ing essential behavioral patterns, including
breeding, feeding or sheltering.

50 CFR  17.3.

The government contends that the Act as originally
adopted in 1973 authorized this expansive definition,
and that even if it did not, a 1982 amendment to an-
other provision of the ESA, specifically 10(a)(1)
(B) of the Act, 16 U.S.C. 1539(a)(1)(B), either
so changed the context of the "take" definition as to
validate the Service's definition, or at any rate rati-
fied that definition.
On petition for rehearing, we reject both theories.
We find that the Service's definition of "harm" was
neither clearly authorized by Congress nor a "reason-
able interpretation" of the statute, see Chevron
U.S.A. Inc. v. Natural Resources Defense Council,
467 U.S. 837, 842-43, 844, 104 S. Ct. 2778, 2781-82,
81 L.E.2d 694 (1984), and we find that no later
action of Congress supplied the missing authority.

The language, structure and legislative
history of the 1973 Act

The Fish & Wildlife Service found habitat modifi-
cation within the idea of "harm", the most elastic of
the words Congress used to define the acts that 9
of the ESA forbids private individuals to commit.
The potential breadth of the word "harm" is indis-
putable. In Lucas v. South Carolina Coastal Council,
- U.S. -, 112 S. Ct. 2886, 120 L. Ed.2d 798
(1992), for example, the Supreme Court, in exploring
the just compensation requirement of the 5th Amend-

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4a

ment, observed that "the distinction between "harm-
preventing' and 'benefit-conferring' regulations is
often in the eye of the beholder." Id. - U.S. at
- -, 112 S. Ct. at 2897. As a matter of pure linguis-
tic possibility one can easily recast any withholding
of a benefit as an infliction of harm. In one sense of
the word, we "harm" the people of Somalia to the
extent that we refrain from providing humanitarian
aid, and we harm the people of Bosnia to the extent
that we fail to stop "ethnic cleansing". By the same
token, it is linguistically possible to read "harm" as
referring to a landowner's withholding of the bene-
fits of a habitat that is beneficial to a species. A
farmer who harvests crops or trees on which a species
may depend harms it in the sense of withdrawing a
benefit; if the benefit withdrawn be important, then
the Service's regulation sweeps up the farmer's deci-
sion.
The immediate context of the word, however, ar-
gues strongly against any such broad reading. With
the single exception of the word "harm", the words
of the definition contemplate the perpetrator's direct
application of force against the animal taken: "ha-
rass, harm, pursue, hunt, shoot, wound, kill, trap,
capture, or collect". The forbidden acts fit, in ordi-
nary language, the basic model "A hit B."
For some of the words, to be sure, the application
of force may not be instantaneous or immediate, and
the force may not involve a bullet or blade. In the
case of  "pursue", the perpetrator does not necessarily
catch or destroy the animal, but pursuit would always
or almost always be a step toward deliberate capture
or destruction, and so would be picked up by 1532
(19)'s reference to "attempt[s]". While one may
"trap" an animal without being physically present,

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5a

the perpetrator will have previously arranged for
release of the energy that directly captures the
animal. And one may under some circumstances
"harass" an animal by aiming sound or light in its
direction, but the waves and particles are themselves
physical forces launched by the perpetrator. Inter-
preting "harass" in the Marine Mammal Protection
Act, where it appears as one of the components of
"take" (defined as "to harass, hunt, capture, or kill,
or attempt to harass, hunt, capture, or kill any
marine mammal"), the 9th Circuit applied noscitur a
sociis, saying:

The statute groups "harass" with "hunt," "cap-
ture," and "kill" as forms of prohibited "taking."
The latter three each involve direct, sustained,
and significant intrusions upon the normal, life-
sustaining activities of a marine mammal; kill-
ing is a direct and permanent intrusion, while
hunting and capturing cause significant disrup-
tions of a marine mammal's natural state. Con-
sistent with these other terms, "harassment," to
constitute a "taking" under the MMPA, must
entail a similar level of direct and sustained
intrusion.

United States v. Hayashi, 5 F.3d 1278, 1282 (9th
Cir. 1993). Accordingly the court overturned the
defendant's conviction. Although he had fired a rifle
twice into the water behind some porpoises, he had
not harassed the porpoises within the meaning of the
statute, as his acts were not "direct and significant
intrusions upon the mammal's ordinary activities."
Id. Here, the nine verbs accompanying "harm" all
involve a substantially direct application of force,

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6a

which the Service's concept of forbidden habitat
modification altogether lacks. 1
The implications of the Service's definition suggest
its improbable relation to congressional intent. Spe-
cies dependency may be very broad. One adherent
of aggressive protection, for instance, notes that
"[s]ome scientists believe as many as 35 million to
42 million acres of land are necessary to the survival
of grizzlies", about as much land in the northern
Rockies of the United States and Canada as is still
usable grizzly habitat. Rocky Barker, Saving All the
Parts 34 (1993). And for an individual to "know-
ingly" violate 9 means criminal penalties of up to
a $100,000 fine and imprisonment for one year. See
16 U.S.C. 1540(b); 18 U.S.C. 3559(a)(6),
3571(b) and (e) (raising the maximum penalty).
Thus the gulf between the Service's habitat modifi-
cation concept of "harm" and the other words of the
statutory definition, and the implications in terms of
the resulting extinction of private rights, counsel ap-
plication of the maxim noscitur a sociis. "The maxim
noscitur a sociis, that a word is known by the com-
pany it keeps, while not an inescapable rule, is often
wisely applied where a word is capable of many
meanings in order to avoid the giving of unintended
breadth to the Act Congress." Jarecki v. G.D.
Searle & Co., 367 U.S. 303, 307, 81 S. Ct. 1579, 1582,
6 L. Ed.2d 859 (1961). See also Dole v. Steelworkers,

___________________(footnotes)

1 Of course each of the terms in the "take" definition itself
implies some degree of habitat modification. Setting a trap
for an animal certainly modifies its habitat, as in a slightly
different sense, does firing bullets at it. This obviously does
not imply that habitat modifications as the Service uses the
term are also encompassed.

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7a

494 U.S. 26, 36, 110 S.Ct. 929, 935, 108 L. Ed.2d 23
(1990) ("words grouped in a list should be given
related meaning" ) (citations omitted ). 2 The Service's
interpretation appears to yield precisely the "unin-
tended breadth" that use of the maxim properly pre-
vents.
The structure and history of the Act confirm this
reading. The ESA pursues its conservation purposes
through three basic mechanisms: (1) a federal land
acquisition program, ESA 5, 16 U.S.C. 1534; (2)
the imposition of strict obligations on federal agen-
cies to avoid adverse impacts on endangered species,
ESA 7, 16 U.S.C. 1536; and (3) a prohibition on
the taking of endangered species by anybody, ESA
9, 16 U.S.C. 1538. The Act addresses habitat pres-
ervation in two ways-the federal land acquisition
program and the directive to federal agencies to avoid
adverse impacts. The latter frames the duty in terms
that the Service has now transposed to the private
anti-"take" provision: every such agency is to "in-
sure that any action authorized, funded, or carried
out by such agency . . . is not likely to jeopardize the
continued existence of any endangered species or
threatened species or result in the destruction Or ad-
verse modification of habitat of such species which
is determined . . . to be critical", unless an exemption
is granted.  16 U.S.C.  1536(a)(2) (emphasis
added ). Thus, on a specific segment of society, the

___________________(footnotes)

2 "One hardly need rely on such Latin phrases as ejusdem
generis and noscitur a sociis to reach this obvious conclusion
[that "words grouped in a list should be given related mean-
ing"]." Third  National Bank v. Impac Limited, Inc., 432
U.S. 312, 322 n. 16, 97 S. Ct. 2307, 2313 n. 16, 53 L. Ed.2d
368 (1977) (internal quotations omitted).

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8a

federal government, the Act imposes very broad bur-
dens, including the avoidance of adverse habitat
modifications; on a broad segment, every person, it
imposes relatively narrow ones.
The legislative history reflects this balance, and
confirms the intention to assign the primary task of
habitat preservation to the government. Explaining
the land acquisition program, Senator Tunney, the
Senate floor manager for the ESA, stated: "Through
these land acquisition provisions, we will be able to
conserve habitats necessary to protect fish and wild-
life from further destruction." 119 Cong.Rec. 25669
(July 24, 1973). Representative Sullivan, the floor
manager for H.R. 37-the House version of the bill-
confirmed this approach:

For the most part, the principal threat to ani-
mals stems from the destruction of their habitat.
The destruction may be intentional, as would be
the case in clearing of fields and forests for de-
velopment of resource extraction, or it may be
unintentional, as in the case of the spread of
pesticides beyond their target area. Whether it
is intentional or not, however, the result is un-
fortunate for the species of animals that depend
on that habitat, most of whom are already living
on the edge of survival, H.R. 37 will meet this
problem by providing funds for acquisition of
critical habitat through the use of the land and
water conservation fund. It will also enable the
Department of Agriculture to cooperate with
willing landowners who desire to assist in the
protection of endangered species, but who are
understandably unwilling to do so at excessive
cost to themselves.

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9a

119 Cong.Rec. 30162 (Sept. 18, 1973) (emphasis
added). For habitat modification, then, Representa-
tive Sullivan saw the Act as providing duties for the
government, with private persons acting only in the
form of "willing landowners" assisted by the Depart-
merit of Agriculture.
The floor managers differentiated loss of habitat
from the hazard that was the target of the "taking"
ban and the other prohibitions of 9. After the pas-
sage quoted, Representative Sullivan went on to iden-
tify "[a] nether hazard to endangered species" which
"arises from those who would capture or kill them
for pleasure or profit. There is no way that the Con-
gress can make it less pleasurable for a person to
take an animal, but we can certainly make it less
profitable for them to do so." Id. (emphasis added).
Senator Tunney drew the same line:

Although most endangered species are threatened
primarily by the destruction of their natural
habitats, a significant portion of these animals
are subject to predation by man for commercial,
sport, consumption, or other purposes. The pro-
visions in S. 1983 would prohibit the commerce
in or the importation, exportation, or taking of
endangered species except where permitted by
the Secretary.

119 Cong.Rec. 25669 (July 24, 1973) (emphasis
added).

Congress's deliberate deletion of habitat modifica-
tion from the definition of "take" strengthens our
conclusion. As introduced before the Senate Com-
merce Committee, S. 1983 defined "take" as including
"the destruction, modification, or curtailment of [a

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10a

species'] habitat or range." Endangered Species Act
of 1973: Hearings on S. 1592 and S. 1983 Before
the Subcomm. on Environment of the Senate Comm.
on Commerce, 93d Cong., 1st Sess., at 27 (1973). A
number of persons appearing before the Subcommit-
tee on Environment explicitly endorsed this language
and stressed its importance. See, e.g., testimony of
John Grandy of the National Parks and Conservation
Association, id. at 86; testimony of Tom Garrett,
Wildlife Director of Friends of the Earth, id. at 104.
Senators made the same point. See statement of
Senator Moss, id. at 113; statement of Senator Wil-
liams, id. at 116. But the "take" definition of the
version of S. 1983 submitted to the Senate omitted
any reference to habitat modification, defining "take"
to mean "harass, pursue, hunt, shoot, wound, kill,
trap, capture, or collect, or to attempt to engage in
any such conduct." See 119 Cong. Rec. 25663 (July
24, 1973). In rejecting the Service's understanding
of "take" to encompass habitat modification, "we are
mindful that Congress had before it, but failed to
pass, just such a scheme." John Hancock Mutual Life
Insurance Co. v. Harris Trust & Savings Bank, -
Us. - -, 114 S. Ct. 517, 526, 126 L. Ed.2d 524
(1993). 
   
The effect of the 1982 amendments

Congress amended the Act in 1982, with two pos-
sible implications. First, one might argue that one
of the amendments so altered the context of the defi-
nition of "take" as to render the Service's interpreta-
tion reasonable, or even, conceivably, to reflect ex-
press congressional adoption of that view. Second,
one might argue that the process of amendment,
which brought the Service's regulation and a judicial

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11a

endorsement to the attention of a congressional sub-
committee, constituted a ratification of the regulation.
We reject both theories.
1. The only legislative act from which the govern-
ment claims support is the addition of ESA 10(a)
(1)(B), 16 U.S.C. 1539(a)(1)(B), which author-
izes the FWS to issue permits for "any taking other-
wise prohibited by section 1538(a)(1)(B) of this
title if such taking is incidental to, and not the pur-
pose of, the carrying out of an otherwise lawful ac-
tivity." This language clearly implies that some pro-
hibited takings are "incidental" to otherwise lawful
activities. It does not follow, however, that such in-
cidental takings include the habitat modifications em-
braced by the Service's definition of "harm". Harms
involving the direct applications of force that char-
acterize the nine other verbs of 1532(19) pose the
problem of incidental takings. The trapping of a non-
endangered animal, for example, may incidentally
trap an endangered species.
In fact, the key example of the sort of problem to
be corrected by 10(a)(1)(B) involved the imme-
diate destruction of animals that would be trapped
by a human enterprise. Northeast Utilities reported
that it had sought to construct a nuclear plant on
the Connecticut River. Dr. John P. Cagnetta ex-
plained on behalf of Northeast that the "EPA had
concluded that Section 9 of the Act constituted a
'zero taking' rule which would prohibit the entrain-
ment or impingement of any Shortnose Sturgeon
eggs, larvae or adults by the Montague intake struc-
ture." Endangered Species Act of 1973: Hearings
Before the Subcomm. on Fisheries and Wildlife Con-
servation and the Environment of the House Comm.
on Merchant Marine and Fisheries ("Hearings"),

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12a

97th Cong., 2d Sess., at 358 (1982) (emphasis
added ). The "entrainment" and "impingement" of
sturgeon eggs involve the crushing or capture of the
eggs as a direct result of a human enterprise, just as
would nets that catch fish driven in their way by the
tides.
 The sort of advance conservation plan authorized
by 10(a) makes complete sense for the kind of in-
cidental taking exemplified by Northeast's dilemma.
Dr. Cagnetta expressed concern that after the firm
had invested $2 billion in the proposed plant, it might
be subject to closure by injunction granted at the
behest of a private person. Id. at 359. Section 10(a)
provides procedural means by which to improve the
trade-off between protecting endangered species and
permitting normal development. Firms whose ac-
tivities might incidentally "take" members of an
endangered species can get advance protection from
legal liability, but only if they convince the Secretary
that the plan uses the maximum devices possible to
mitigate and minimize species loss, and that the re-
sulting losses will not unduly harm the species. See
10(a)(2)(B)(ii) & (iv), 16 U.S.C. 1539(a)
(2)(B)(ii) & (iv).
Thus, adoption of 10 (a)'s permit plan, at least
as evidenced by Northeast's instigating role, arose
from interpretive assumptions about the meaning of
"taking"- namely the EPA's views (1) that the
perpetrator need not have intended to take the crea-
ture in question, and (2) that even the slightest
taking would violate the Act (the "zero taking rule").
We need not explore the possible impact of these
assumptions on the interpretation of "take"; a mem-
ber of Congress might have supported the permit
system on a completely agnostic premise about those
interpretations: "There are some pretty wild inter-

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13a

pretations out there, and they may stick; if they do,
it would certainly be helpful to have a mechanism
for softening their impact." Normally, erroneous
legislative assumptions about the meaning of an
existing statute, even when they serve as the premise
of an amendment, do not alter the meaning of un-
amended provisions. See Mackey v. Lanier Collection
Agency & Serv., 486 U.S. 825, 840, 108 S. Ct. 2182,
2191, 100 L. Ed.2d 836 (1988). Here, however, the
matter is even easier, as the amendment involved no
assumptions supporting the Service's position on
habitat modification. So far the creation of the per-
mit plan is concerned, the implicit assumptions
simply do not embrace the idea that "take" included
any significant habitat modification injurious to wild-
life.
2. For its ratification theory, the government in-
vokes (besides the  10(a)(2) amendment itself)
(a) language in the Conference on the 1982 amend-
ments; (b) notice to a House subcommittee of the
Service's habitat modification regulation and of a
decision upholding it; and (c) the decision of a sen-
ator not to offer an amendment. We first examine
these and then consider the cases on ratification of
mistaken interpretations, on the basis of congres-
sional awareness and peripheral action.
(a) The Conference Report. The government
highlights some observations of H.R.Rep. No. 835,
97th Cong., 2d Sess. (1982) ("Conference Report"),
1982 U.S.C.C.A.N. 2807, speaking of the innovation
made by 10(a):

This provision is modeled after a habitat conser-
vation plan, that has been developed by three
Northern California cities, the County of San
Mateo, and private landowners and developers

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14a
  
to provide for the conservation of the habitat of
three endangered species and other unlisted spe-
cies of concern within the San Bruno Mountain
area of San Mateo County.
This provision will measurably reduce conflicts
under the Act and will provide the institutional
framework to permit cooperation between the
public and private sectors in the interest of en-
dangered species and habitat conservation.
The terms of this provision require a unique
partnership between the public and private sec-
tors in the interest of species and habitat con-
servation . . . . 

Id. at 30-31, reprinted in 1982 U.S.C.C.A.N. 2871-72
(emphasis added).

Although the passage thrice uses the phrase
"habitat conservation," the first reference simply
describes the particular plan on which the provision
was modeled, while the second and third couple the
phrase with, respectively, "the interest of endan-
gered species" and "the interest of species." The
focus is on the flexibility of the relief offered. The
expectation that relief under the 10(a) permit
scheme would include habitat conservation does not
imply an assumption that takings encompass habitat
modification. Thus, if a nuclear plant will "entrain"
and "impinge" sturgeon eggs, the area where this
occurs will certainly not be hospitable for the stur-
geon, and mitigation measures invited by 10(a)
might well include provision of alternative habitat.
Similarly, although 10(a) relief contemplates ad-
vancing "the interest of endangered species, " it does
not follow that every act detrimental to an endan-
gered species constitutes a forbidden taking.

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15a

(b) Notice of the regulation. The Subcommittee
on Fisheries and Wildlife Conservation and the En-
vironment of the House Committee on Merchant
Marine and Fisheries had notice of the regulation.
See, e.g., Hearings at 290. In addition, speakers
brought a decision of the 9th Circuit upholding the
application of the ESA to habitat modification, Palila
v. Hawaii Dep't of Land & Natural Resources, 639
F.2d 495 (9th Cir. 1981), to the attention of sub-
committee members in attendance. See Hearings at
329, 331. See also id. at 331, 426 (expressions of
conflicting views on validity of interpretation of
"harm" to encompass habitat modification). So far
as appears, no congressional awareness of the Serv-
ice's regulation or of Palila reached the floor of
either House.
(c) The withdrawn amendment. The government
says that Senator Garn proposed an amendment to
change the definition of "take" but withdrew it
voluntarily because he realized it did not have enough
support for passage." Appellee Brief at 32. This
falsely suggests a focus on "habitat modification"
that was simply not there. In fact, the amendment
that Senator Garn withdrew was not an isolated
redefinition of the term "take," but a wholesale
"rewrite" of the ESA 3.-the reading of which was

___________________(footnotes)

3 Senator Garn's proposed amendment included the follow-
ing redefinition:

The term "take" means purposefully to harass, harm,
pursue, hunt, shoot, wound, kill, trap, capture, or collect,
or to attempt to engage in any such conduct which is
inimical to the continued existence of an endangered or
threatened species. It does not include effects from

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16a

dispensed with on the Senate floor, and the text of
which took 16 dense pages of legislative him. A
Legislative History of the Endangered Species Act of
1973, As Amended in 1976, 1977, 1978, 1979, and
1980 (U.S. Govt. 1982) at 1080. The record reveals
nothing to suggest any relation between Senator
Garn's decision and congressional sentiment on the
habitat modification issue.
By what standard are these features of the 1982
amendment process to be evaluated? Although the
precedents are hardly in perfect harmony, the Su-
preme Court has generally refused to infer ratifica-
tion from mere amendment of adjacent clauses in
these circumstances. It has forcefully articulated
reasons for this refusal. In Girouard v. United
States, 328 U.S. 61, 66 S. Ct. 826, 90 L.Ed 1084
(1946), the Court concluded that it had erred in
three prior cases holding that an alien who refused
to bear arms could not be admitted to citizenship
under the terms of the oath prescribed by Congress
for naturalization. Id. at 61-69, 66 S. Ct. at 826-830.
It then confronted a claim that Congress had im-
pliedly adopted the rule of the earlier decisions, a
claim to which the facts lent considerable support-
unsuccessful efforts to change the rule, plus reenact-
ment of the underlying language amid change of
many related provisions. Id. at 69, 66 S. Ct. at 829
(emphasis added).

___________________(footnotes)

normal forestry, farming, ranching, or water manage-
ment practices.

A Legislative History of the Endangered Species Act of
197.3, As Amended in 1976, 1977, 1978, 1979, and 1980 (U.S.
Govt. 1982) at 1082.

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17a

In dissent, Chief Justice Stone set out the principle
that where a statutory provision has been subject to
a controversial construction, reenactment without
change implies congressional approval of that con-
struction. Id. at 76, 66 S. Ct. at 833 (Stone, C. J.,
dissenting). The court, however, rejected this ap-
proach, and warned " [i]t is at best treacherous to
find in congressional silence alone the adoption of a
controlling rule of law." Id. at 69, 66 S. Ct. at 830.
It observed that congressional silence and inaction-
actually, reenactment of the pertinent language-
were "as consistent with a desire to leave the prob-
lem fluid as they are with an adoption by silence of
the rule as [the prior] cases." Id. at 70, 66 S. Ct.
at 830.
Similarly, where Congress adopts amendments on
the basis of misconception as to the meaning of a
prior statute's related provisions, the later act does
not turn the misconception into law. Mackey v.
Lanier Collection Agency & Serv., 486 U.S. 825, 108
S. Ct. 2182, 100 L. Ed.2d 836 (1988), illustrates the
principle. As originally enacted, the Employee Re-
tirement Income Security Act ( "ERISA") preempted
state laws "as they may now or hereafter relate to
any employee benefit plan" covered by the statute.
ERISA 514(a), 29 U.S.C. 1144(a). After a
number of lower courts construed 514(a) to pre-
empt state garnishment statutes, Congress in 1984
expanded the statutory list of exceptions to 514
(a), adding garnishments in support of domestic re-
lations orders and thereby expressly eliminating
ERISA's preemption of that narrow category. See
ERISA 514(b) (7), 29 U.S.C. 1144(b) (7).
Though the Court recognized that language in the
House Committee report "suggest [cd] that the House

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18a

Committee in 1984 thought that  514(a) foreclosed
state-law attachment orders akin-to those at issue
here," id. at 840, 108 S. Ct. at 2191, i.e., garnishments
outside the area of domestic relations, it refused to
attach weight to that implicit suggestion. Rather,
the Court said that "these views-absent an amend-
ment to the original language of the section-do not
direct our resolution of this case. Instead, we must
look at the language of ERISA and its structure, to
determine the intent of the Congress that originally
enacted the provision in question. 'It is the intent
of the Congress that enacted [the section] . . . that
controls.' Teamsters v. United States, 431 U.S. 324,
354, n.39, 97 S. Ct. 1843, 1864 n. 39, 52 L, Ed.2d 396
(1977)." Id.
And in Shearson/American Express Inc. v. Mc-
Mahon, 482 U.S. 220, 107 S. Ct. 2332, 96 L. Ed.2d
185 (1987), the Supreme Court refused to find im-
plied ratification even though Congress amended
closely related statutory sections and the Conference
Report appeared to support the prevailing interpreta-
tion. The Court had, in Wilko v. Swan, 346 U.S. 427,
74 S. Ct. 182, 98 L. Ed. 168 (1953), construed cer-
tain provisions of the Securities Act of 1983 to bar
enforcement of pre-dispute agreements to arbitrate
for disputes under 12 (2) of that act, despite the
broad endorsement of arbitration in the previously
adopted Federal Arbitration Act, 9 U.S.C. 1 et seq.
The issue in Shearson/American Express was whether
similar provisions in the Securities Exchange Act of
1934 prevented enforcement of a pre-dispute arbitra-
tion agreement as to an alleged violation of  10(b)
of that Act, as the circuit courts of appeal had gen-
erally held.

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19a

After finding that the 1934 Act as originally en-
acted created no exception to the Arbitration Act, the
Court turned to whether a later congressional inter-
vention, the 1975 amendments to both the 1933 and
the 1934 Acts-" the 'most substantial and significant
revision of this country's Federal securities laws since
the passage of the Securities Exchange Act in 1934'",
Shearson/American Express, 482 U.S. at 246, 107
S. Ct. at 2347 (Blackmun, J., dissenting) -altered
that result. The 1975 amendments included a change
in a section of the 1934 Act (28(b)) closely related
to those sections from which lower courts had drawn
the inference against pre-dispute arbitration clauses,
and the Conference Report had in connection with
that change virtually endorsed Wilko v. Swan:

It was the clear understanding of the conferees
that this amendment did not change existing law,
as articulated in Wilko v. Swan, 346 U.S. 427
[74 S. Ct. 182, 98 L. Ed. 168] (1953), concerning
the effect of arbitration proceedings provisions in
agreements entered into by persons dealing with
members and participants of self-regulatory or-
ganizations.

H.R.Conf.Rep. No. 94-229 at 111 (1975), 1975
U.S.C.C.A.N pp. 179, 342 (1975) (quoted at Shear-
son/American Express, 482 U.S. at 236-37, 107 S. Ct.
at 2343).

To Justice Blackmun, dissenting for himself and
Justices Brennan and Marshall, this showed that Con-
gress was clearly aware of the extension of Wilko to
the 1934 Act and, at a minimum, that it was "not
concerned with arresting this trend." 482 U.S. at
247, 107 S. Ct. at 2348. But the majority, although

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20a

finding some ambiguities in the remarks of the Con-
ference Report, stressed the absence of any affirma-
tive action by Congress in regard to the controlling
sections: "We cannot see how Congress could extend
Wilko to the [1934] Act without enacting into law
any provision remotely addressing that subject." Id.
at 237, 107 S. Ct. at 2343.
A variant on this theme is TVA v. Hill, 437 U.S.
153, 98 S. Ct. at 2279, 57 L. Ed.2d 117 (1978), involv-
ing claims that Congress's several appropriations for
the Tellico Dam, made with full awareness of its risks
to the snail darter and with express statements in
various House and Senate Appropriations Commit-
tees' reports that the ESA was not meant to apply
to this project, effectively exempted the dam from 7
of the Act. Despite Congress's endorsement of the dis-
puted project with the ultimate accolade-hard cash
-the Court refused to find any exemption. Id. at
189-93, 98 S. Ct. at 2299-2301. The Court underscored
the proposition that only congressional committees
had expressed the understanding of 7 that contra-
dicted the Court's reading. Id. at 189, 193, 98 S. Ct.
at 2299, 2301.
Our own decision in State of Ohio v. U.S. Depart-
ment of the Interior, 880 F.2d 432 (D.C. Cir. 1989),
elaborates on the jurisprudential concerns raised by
Shearson/American Express. The Court considered a
situation where Congress had amended the key sec-
tions being construed and had reenacted the entire
statute. Judge Ward wrote for the court:

Were we to infer congressional approval of In-
terior's rules because it did not amend the statute
to explicitly repudiate them, we would in effect
be insisting that a Congress legislatively reiter-

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21a

ate an already clear statutory command in order
to fend off an impermissible interpretation. As
we all know, many statutes are on the books for
which no congressional majority could presently
be garnered either to reenact or to repeal, yet
those acts continue as valid law; indeed, a canon
of equal worth with the acquiescence-by-reenact-
ment rule is the one disfavoring repeal by impli-
cation. We conclude that the acquiescence-by-
reenactment rule is not applicable to a situation
where the regulations violate the original statu-
tory language and where Congress' decision not
to amend the relevant statutory provisions evi-
dently stems from a belief that the provisions
have been clear all along.

Id. at 458-59. Although the court evidently under-
stood congressional inaction to stem from a belief that
the statute had been "clear all along" (against the ad-
ministrative interpretation ), the ambiguity we pin-
pointed is relevant more broadly. Congressional in-
action may indicate no more than the press of other
business. As inaction is inadequate to repeal a law,
it should be inadequate to modify a law. Yet modifi-
cation is required to sustain an interpretation that is
invalid as against the original legislation. Professor
Tribe has pointed out that judicial reliance on con-
gressional silence generates an elaborate buck-passing.
The courts pass the buck to Congress by invoking the
congressional inaction, and individual members of
Congress can freely pass the buck back by pointing
to the court's action. See Laurence H. Tribe, Con-
stitutional Choices 33-34 (1985).
We do not pretend that the Court's treatment of
this issue has been absolutely uniform. There are

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22a

cases indicating some readiness to infer ratification
merely from amendment of related provisions (cou-
pled with acute congressional focus on outstanding
interpretation), and even from mere notice followed
by inaction. In United States v. Riverside Bayview
Homes, Inc., 474 U.S. 121, 106 S.Ct. 455, 88 L.Ed.2d
419 (1985), for example, the Court considered the
Corps of Engineers' broad reading of "waters of the
United States" in the 1972 Clean Water Act, and
placed some weight on Congress's 1977 failure-in
the course of making important amendments and
after extensive floor debate-to modify the Corp's
interpretation. "Although we are chary of attribut-
ing significance to Congress' failure to act, a refusal
by Congress to overrule an agency's construction of
legislation is at least some evidence of the reasonable-
ness of that construction, particularly where the ad-
ministrative construction has been brought to Con-
gress' attention through legislation specifically de-
signed to supplant it." Id. at 137, 106 S.Ct. at 464.
In Bob Jones University v. United States, 461 U.S.
574, 103 S.Ct. 2017, 76 L.Ed.2d 157 (1983), the
Court attached weight to the fact of Congress's
awareness of IRS rulings that barred tax-exempt
status for racially discriminatory schools, noting that
13 bills had been introduced over the years to over-
turn the rulings, none ever emerging from committee.
Id. at 600, 103 S.Ct. at 2033. But the Court also
observed that "[n]onaction by Congress is not often
a useful guide". Id. More important, perhaps, Con-
gress itself had, over the same period, adopted anti-
discrimination prerequisites for private club exemp-
tions a closely parallel issue with obvious implications
for the meaning of the general language exempting

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23a
  
charitable and educational institutions. Id. at 601-02,
103 S. Ct. at 2033-34. And in Commodity Futures
Trading Comm'n v. Schor, 478 U.S. 833, 106 S. Ct.
3245, 92 L. Ed.2d 675 (1986), the Court broadly sug-
gested that congressional "revisit[ations]" of a stat-
ute after a longstanding administrative interpreta-
tion, coupled with failure to modify the interpretation
suggested support for the agency view. Id. at 846, 106
S. Ct. at 3254. But in Schor the Court found the re-
jected reading of the statute inconsistent with the
statutory language, id. at 841-42, 106 S. Ct. at 3251-
52, and fraught with incongruities, see id. at 843-44,
106 S. Ct. at 3252-53, and also read the later amend-
ments as "explicitly affirm[ing]" the agency's view,
id. at 846, 106 S. Ct. at 3254.
These cases may ultimately not be fully reconcil-
able. We note, however, that the cases drawing in-
ferences from inaction typically fail to address the
serious jurisprudential problems of doing so-espe-
cially those captured in Judge Wald's observation that
there are plenty of statutes "on the books for which
no congressional majority could presently be garnered
either to reenact or to repeal". State of Ohio, 880
F.2d at 458. It hardly seems consistent to enforce
such statutes yet to accept non-amendment of an in-
terpretation as the equivalent of congressional en-
dorsement.
If the 1982 Congress had reenacted the pertinent
sections of the ESA and "voice[d] its approval" of
the FWS's interpretation, it might be appropriate to
treat the reenactment as an adoption of that inter-
pretation. United States v. Bd. of Commissioners,
435 U.S. 110, 134, 98 S. Ct. 965, 980, 55 L. Ed.2d 148
(1978). But see Girouard. Here, however, Congress

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24a

neither reenacted the sections having to do with
"take", nor "voiced its approval" of the harm regula-
tion. As we have seen, its creation of the permit
scheme is fully consistent with the meaning of "take"
as enacted in 1973; the other developments show no
more than awareness of the Service's view, its sur-
vival in Palila and the absence of any action to en-
dorse or repudiate those developments.

* * * *

Accordingly, we hold invalid the Fish & Wildlife
Service regulation defining "harm" to embrace habi-
tat modifications. The judgment of the district court
is reversed to that extent; otherwise, the judgment of
this court in Sweet Home Chapter v. Babbitt, 1 F.3d
1 (D.C. Cir. 1993), is unaltered.

So ordered.

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25a

SENTELLE, Circuit Judge concurring:

As I remain of the view expressed in my dissent
in the original version of this case, Sweet Home Chap-
ter v. Babbitt, 1 F.3d 1, 11 (D.C. Cir. 1993) (Sentelle,
dissenting), that the word "harm" in the context of
the definition of "taking" in the Endangered Species
Act of 1973 cannot reasonably be defined to include
the broadly prohibited habitat modification encom-
passed in the challenged regulation, I am most pleased
to concur in the decision of the Court. Now as then
I find the words and structure of the Act sufficiently
clear as to require no resort to legislative history. I
therefore join with enthusiasm those portions of
Judge Williams' opinion that rely on the structure of
the Act and on the maxim of noscitur a sociis. I fur-
ther note, as I did in my earlier dissent, that to define
"harm" as broadly as does the Secretary is to render
all other words in the statutory definition of "taking"
superfluous in violation of the presumption against
surplusage: "[W]e are hesitant to adopt an interpre-
tation of a congressional enactment which renders
superfluous another portion of that same law." 1 F.3d
at 13 (quoting Mackey v. Lanier Collection Agency
& Serv., 486 U.S. 825, 837, 108 S. Ct. 2182, 2189,
100, L. Ed.2d 836 (1988)).
In view of the language and structure of the Act,
and the principles of construction applied by Judge
Williams and in my earlier dissent, I do not find it
necessary to rely on the legislative history incorpo-
rated in Judge Williams's opinion. "[A]ppeals to
statutory history are well taken only to resolve statu-
tory ambiguity." Barnhill v. Johnson, - U.S.
-, -, 112 S. Ct. 1386, 1391, 118 L. Ed. 2d 39
(1992) (internal quotation omitted). As the Su-

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26a

preme Court recently observed, "we do not resort to
legislative history to cloud a statutory text that is
clear." Ratzlaf v. United States, - U.S. -,
-, 114 S. Ct. 655, 662, 126 L. Ed.2d 615 (1994):
Because I find the meaning of "take" in the statute to
be sufficiently clear that "I cannot cram the agency's
huge regulatory definition" into any "tiny crack of
ambiguity Congress left," 1 F.3d at 12. I concur in
the decision to reverse the District Court judgment
in part, but I would do so without resort to the legis-
lative history.

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27a

MIKVA, Chief Judge, dissenting:

The majority's decision in this case is unfortunate.
It scuttles a carefully conceived Fish and Wildlife
Service ("FWS") regulation and creates a split in
the circuits on an important statutory question. De-
spite the significance of the issue presented in this
case, the majority insists on granting rehearing and
reversing its earlier opinion without the benefit of ad-
ditional oral argument, and without the benefit of
additional briefing tailored to the court's concerns.
What was rightly considered good law in the opinion
in this case issued last year, published at 1 F.3d 1
(D.C. Cir. 1993), is now "altered" on the basis of a
confusing and misguided legal analysis that creates a
needless conflict among the circuits. I dissent.

A. Standard of Review

The majority's first, and biggest, mistake is to jet-
tison the Chevron standard. Chevron U.S.A. Inc. v.
Natural Resources Defense Council, Inc., 467 U.S.
837, 104 S. Ct. 2778, 81 L. Ed.2d 694 (1984). Only
once does the majority mention Chevron, conceding
that it is supposed to govern our review of this case.
But the majority concludes that the FWS's regula-
tion is infirm under Chevron because "the Service's
definition of 'harm' was neither clearly authorized by
Congress nor a 'reasonable interpretation' of the stat-
ute." Maj. op. at 1464.
But the standard of review that we are bound to
apply under Chevron actually reads as follows:

When a court reviews an agency's construc-
tion of the statute which it administers, it is con-
fronted with two questions. First, always, is the

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28a

question whether Congress has directly spoken to
the precise question at issue. If the intent of
Congress is clear, that is the end of the matter;
for the court, as well as the agency, must give
effect to the unambiguously expressed intent of
Congress. If, however, the court determines
Congress has not directly addressed the precise
question at issue, the court does not simply im-
pose its own construction on the statute, as
would be necessary in the absence of an adminis-
trative interpretation. Rather, if the statute is
silent or ambiguous with respect to the specific
issue, the question for the court is whether the
agency's answer is based on a permissible con-
struction of the statute.

Id. at 842-43, 104 S. Ct. at 2781-82 (footnotes
omitted).

Plainly, Chevron does not place the burden on the 
responsible agency to show that its interpretation
is clearly authorized or reasonable. On the contrary,           
the burden is on the party seeking to overturn such                                                      
an interpretation to show that Congress has clearly
spoken to the contrary, or that the agency's interpre-           
tation is un reasonable. The whole point of Chevron
deference is that when Congress has not given a clear
command, we presume that it has accorded discretion
to the agency to clarify any ambiguities in the stat-
ute it administers. In requiring the agency to justify
its regulation by reference to such a clear command,
the majority confounds its role. Ties are supposed 
to go to the dealer under chevron.
Along with (and perhaps because of) this back-
wards reading, the majority also fails to note which 
step of Chevron is dispositive of the case. If it is step

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29a

one, the majority must show that Congress has "di-
rectly spoken to the precise question at issue":
whether the word "harm" includes "significant habi-
tat modification [that] actually kills or injures wild-
life." Surely the statute is silent, or at best ambig-
uous, on this question. The Endangered Species Act
("ESA") nowhere defines "harm," and nowhere spe-
cifically prohibits the extension of that term to habi-
tat modification. Under step two, the only question
is whether the FWS's interpretation of the word
"harm" constitutes a "permissible" reading of the
ambiguous language. The question is not-however
much the majority might like it to be whether we
think it constitutes the best reading. Under step two,
"[t]he court need not conclude that the agency con-
struction was the only one it permissibly could have
adopted to uphold the construction, or even the read-
ing the court would have reached if the question in-
itially had arisen in a judicial proceeding." Chevron,
467 U.S. at 843 n. 11, 101 S. Ct. at 2782 n. 11 (em-
phasis added).

B. Applying Chevron

Despite the command of Chevron, the majority sub-
stitutes its own favorite reading of the Endangered
Species Act for that of the agency. But Chevron
makes it irrelevant whether the majority's preferred
interpretation is better than the agency's; the only
question is the reasonableness of the agency's inter-
pretation. And a fair reading allows for no other
conclusion than that the agency's interpretation is
reasonable.
The place to start is the statutory language. The
ESA makes it unlawful to "take" a member of a
species of fish or wildlife designated as "endangered"

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30a

by the FWS. 16 U.S.C. 1538(a)(1)(B). "Take"
is a defined term, meaning "to harass, harm, pursue,
hunt, shoot, wound, kill, trap, capture, or collect, or
to attempt to engage in any such conduct." 16 U.S.C.
1532(19). The regulation at issue in this case pur-
ports to define the term "harm" as "an act which ac-
tually kills or injuries wildlife. Such act may include
significant habitat modification or degradation where
it actually kills or injures wildlife . . . . " 50 C.F.R.
17.3. It is this definition that the majority finds
unreasonable.
The majority relies primarily upon noscitur a
sociss, a seldom-invoked principle of statutory con-
struction. According to this canon, when a potentially
broad word appears in a definition along with a list
of narrow words, the broad word should be read nar-
rowly to conform with its companions. This the ma-
jority purports to do here, finding that all the words
in the definition of "take," other than the crucial
word "harm," involve a "direct application of force."
Ipso facto, the word "harm" must also be read to
require a direct application of force, and habitat mod-
dification is not sufficiently direct to fall within this
definition of "harm."
To this display of reasoning by the majority, one
is tempted to respond, "Watch that first step; it's a
big one." The definition of "take" does not conform
to the paradigm of one broad word alongside many
narrow ones, and thus the majority's decision to ap-
ply noscitur a sociis is fatally flawed. Instead, "take"
includes several words that might be read as broadly,
or nearly as broadly, as "harm": especially "harass,"
wound," and "kill." Indeed, as the regulation at
issue defines "harm" as an act (including habitat
modification ) that "actually kills or injures wildlife,"

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31a

the FWS might as easily have derived a proscription
of habitat modification from the words "kill,"
"wound," and "harass," as from the word "harm."
In fact, the House Report specifically comments
upon the breadth of the ESA's prohibition of "harass-
merit, " stating:

["Take"] includes harassment, whether inten-
tional or not. This would allow, for example,
the Secretary to regulate or prohibit the activi-
ties of birdwatchers where the effect of those
activities might disturb the birds and make it
difficult for them to hatch or raise their young.

H.R.Rep. No. 93-412, 93rd Cong. 1st Sess. 11 (1973).
Accordingly, FWS has defined the term "harass"
nearly as broadly as the term "harm":

Harass in the definition of "take" in the Act
means an intentional or negligent act or omis-
sion 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.

50 C.F.R. 17.3. Appellants have not challenged this
definition.

A more limited definition of "harass" was required
(if at all) in United States W. Hayashi, 5 F.3d 1278
(9th Cir. 1983), only because the word "harm" does
not appear alongside "harass" in the Marine Mam-
mal Protection Act; the only accompanying terms are
"hunt," "capture," and "kill." 16 U.S.C. 1362(13).
By contrast, the ESA also includes the more expan-
sive "harm," "wound," and "pursue," and is clearly
meant to proscribe a broader range of activity. The

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32a

9th Circuit, the same court that decided Hayashi, has
itself reached that conclusion, Palila v. Hawaii Dep't
of Land and Natural Resources, 852 F.2d 1106, 1107-
09 (9th Cir. 1988) ( agency's interpretation of "harm"
to include significant habitat modification is consist-
ent with the language, purpose, and legislative his-
tory of the ESA), and today's contrary decision thus
creates a foolish circuit conflict.
Noscitur a sociis means that a word is known by
the company it keeps. Jarecki v. G.D. Searle & Co.,
367 U.S. 303, 307, 81 S. Ct. 1579, 1582, 6 L. Ed.2d 859
(1961 ). In the definition of "take," the term "harm"
is accompanied by an assortment of words ranging
from the precise and narrow "shoot" to the vague and
expansive "harass." Gratuitous references to our na-
tion's foreign policy aside, see Maj. Op. at 1464,
"harm" is not a single elastic word among many
ironclad ones but an ambiguous term surrounded by
other ambiguous terms. Consequently, even if it is
ever appropriate to measure an agency's construc-
tion of a statute against a seldom-used and indeter-
minate principle of statutory construction, this is not
the place for noscitur a sociis.
Equally inappropriate is Judge Sentelle's use of the
presumption against surplusage, There is no reason-
able definition of the word "harm" (or, for that
matter, the word "harass") that would not render
superfluous some of the other defined terms. For ex-
ample, one cannot "kill" or "wound" an animal with-
out also "harming" it, even under the narrowest con-
ceivable interpretation of "harm." Does that mean
we must read "harm" out of the statute altogether?
That would hardly be faithful to Congress's intent,
which was to define takings "in the broadest possible

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33a

manner to include any conceivable way in which a
person can 'take' or attempt to 'take', any fish or wild-
life." S.Rep. No. 93-307, 93rd Cong., 1st Sess. 7
(1973), 1973 U.S.C.C.A.N pp. 2989, 2995. No, in-
stead it means we must uphold the agency's reason-
able accommodation of all the statutory terms. Defin-
ing "harm" to include "significant habitat modifica-
tion" renders no more terms superfluous than would a
definition that did not include habitat modification but
did include "direct" forms of killing and wounding.
And indeed, the majority's holding that "harm" can-
not include indirect means of injuring wildlife may
render "harm" itself superfluous, or nearly so, as
"direct" means of injury are well covered by the other
terms. The plain language of the statute, then, lends
no support to the majority's contention that the FWS's
interpretation of "harm" is impermissible.
The statute's purpose and legislative history pro-
vide equally insufficient grounds for rejecting the
agency's interpretation. The majority, adopting the
view of the appellants in this case, acknowledges that
Congress intended to halt injurious habitat modifica-
tion when it passed the ESA. It contends that Con-
gress intended to combat this problem solely through
1534's provision for federal land acquisition, and
not through  1538's prohibition of private takings.
According to the majority, the legislative history
of the "take" provision establishes that Congress did
not mean for that term to encompass habitat modifi-
cation. It notes that the original bill that was re-
ferred to the Senate Committee on Commerce, S.
1983, defined "take" to include "destruction, modifi-
cation, or curtailment of [an endangered species']
habitat or range." S. 1983, 93rd Cong., 1st Sess. 3

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34a

(6) (1973). The bill reported out of committee, how-
ever, did not refer to habitat modification in the defini-
tion of "take." This omission, the majority finds,
evinces Congress's intent not to include habitat modi-
fication within the scope of protected "takings." The
majority also points to several statements from the
floor suggesting that some members of Congress may
have wanted land acquisition, not the prohibition of
land uses, to be the ESA's sole weapon against habitat
modification on private lands.
I find the legislative history to be most ambiguous
regarding whether Congress intended to include habi-
that modification within the meaning of "take." It
is true that the Senate Committee chose not to use
the S. 1983 definition of "take," which specifically
encompassed habitat modification. Instead, the Com-
ittee adopted a definition from the other bill under
consideration, S. 1592, which did not explicitly in-
clude habitat modification. But as the district court
noted, there is no indication in the legislative history
as to why the Committee selected one definition over
the other. And, in any event, the crucial ward "harm"
was never voted on by the Committee but was added
later on the floor of the Senate. It might well have
been intended to cover the entire landscape originally
contemplated by the S. 1983 definition. See 119 Cong.
Rec. 25,683 (July 24, 1973) (Statement of Sen.
Tunney) ("The amendments will help to achieve the
purposes of the bill and will clarify some confusion
caused by language remaining in the bill from earlier
drafts or omitted from earlier drafts which went
unnoticed during the final committee markup.").
Most importantly for our Chevron inquiry, there is
nothing to suggest that Congress chose the definition

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35a

it did in order to exclude habitat modification. The
Committee may have rejected the S. 1983 definition
only because it apparently would have made habitat
modification a per se violation of the ESA, as op- 
posed to leaving such determinations to the discretion
of the responsible agency whose judgment this court
today casts aside. Surely there is nothing to indicate
that the Committee intended to foreclose an adminis-
trative regulation prohibiting habitat modification-
particularly a prohibition accompanied by limitations,
such as those contained in the FWS regulation under
review, requiring that there be actual injury or death
to wildlife.
In any case, Congress manifested no clear intent
to exclude habitat modification from the "take" defi-
nition. Indeed, the Senate Committee Report states
"'Take' is defined . . . in the broadest possible manner
to include every conceivable way in which a person
can 'take' or attempt to 'take' any fish or wildlife."
S. Rep. No. 93-307, 93rd Cong., 1 Sess. 7 (1973),
1973 U.S.C.C.A.N. p. 2995. And, as I have noted
above, the bill reported out of Committee did not even
include the word "harm" in the definition of "take."
That was added later on the floor, in a "technical and
clarifying amendment []." 119 Cong.Rec. 25,682-83
(July 24, 1973) (Statement of Sen. Tunney). As the
amendment added the word "harm," while subtract-
ing nothing, that amendment can only have broadened
the definition from the bill reported out of Committee
-"clarifying" that "take" should be defined "in the
broadest possible manner."
The contention that Congress intended land acqui-
sition to be the exclusive instrument for curbing habi-
tat modification on private lands is totally speculative.
Nothing in the language of 16 U.S.C. 1534 or in the

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36a

legislative history proves this sweeping assertion. The
only evidence the majority can garner in support of
its proposition is a few isolated and ambiguous re-
marks by members of Congress on the floor. See 119
Cong.Rec. 25,669 (July 24, 1973) (Statement of Sen.
Tunney) ; 119 Cong.Rec. 30,162 (Sept. 18, 1973)
(Statement of Rep. Sullivan). The general rule is
that "debates in Congress expressive of the views and
motives of individual members are not a safe guide
. . . in ascertaining the meaning and purpose of the
law-making body." Duplex Printing Press Co. v.
Deering, 254 U.S. 443, 474, 41 S. Ct. 172, 179, 65
L.Ed. 349 (1921). In any case, these statements do
not establish that even the speakers themselves in-
tended land acquisition to be the exclusive protective
mechanism for habitats on private lands.
In sum, the majority has found nothing in the
language, structure, purpose, or legislative history
that unambiguously shows that "harm" does not en-
compass habitat modification. Under Chevron, that
should dispose of the case: the FWS's gap-filling
measure is a permissible exercise of its discretion as
delegated by Congress. Moreover, not only is the ma-
jority's evidence ambiguous, but there is additional
evidence supporting the agency's interpretation. I
have already cited the Senate and House Committee
Reports, which suggest that Congress envisioned a
broad interpretation of "take," even before the crucial
word "harm" was added to the definition of that term.
S.Rep. No. 93-307, 93rd Cong., 1st Sess. 7 (1973)
U.S.C.C.A.N. p. 2995 ("'Take' is defined . . . in the
broadest possible manner."); H.R.Rep. No. 93-412,
93rd Cong., 1st Sess. 15 (1973) (ESA "includes, in
the broadest possible terms, restrictions on the taking,

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37a

importation and exportation, and transportation of
[endangered] species, as well as other specified
acts"); id. at 11 ("Harass" includes activities of bird-
watchers "where the effects of those activities might
disturb the birds and make it difficult for them to
hatch or raise their young."). And I have adverted
to the floor amendment that added the word "harm,"
purportedly to "clarify" language that was "omit-
ted" from the draft that emerged from Committee.
119 Cong.Rec. 25,683 (July 24, 1973) (Statement of
Sen. Tunney).
In addition, the agency's interpretation draws sup-
port from a subsequent amendment to the ESA. In
1982, Congress amended the ESA to include a pro-
vision authorizing the FWS to issue a permit allow-
ing "any taking otherwise prohibited by section 1538
(a)(1)(B) of this title if such taking is incidental
to, and not the purpose of, the carrying out of an
otherwise lawful activity." 16 U.S.C. 1539 (a)(1)
(B). By negative inference, this provision demon-
strates that Congress thought at least some "inci-
dental takings" must be prohibited by 1538 (a)(1)
(B) in the first instance. The majority speculates
on what Congress could have meant by "incidental
takings," but the evidence quite clearly suggests that
Congress meant habitat modification. The House
Report states,

This provision is modeled after a habitat con-
servation plan that has been developed by three
Northern California cities, the County of San
Mateo, and private landowners and developers
to provide for the conservation of the habitat of
three endangered species . . . . 

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38a

This provision will . . . provide the institu-
tional framework to permit cooperation between
the public and private sectors in the interest of
endangered species and habitat conservation.

H.R.Rep. No. 97-835, 97th Cong., 2d Sess. 30-31
(1982) ,1982 U.S.C.C.A.N. pp. 2871, 2872,

Moreover, the 1982 amendments came after the
Secretary promulgated the present definition of
"harm" at issue in this case. But instead of using
the amendments as an occasion to overrule the Secre-
tary's interpretation, Congress chose to allow the
definition of "take" to stand, while amending an-
other section of the statute making clear in the
process that it knew habitat modification could be
(and was being) prohibited under the ESA. See
Lindahl v. Office of Personnel Management, 470 U.S.
768, 782 n. 15, 105 S. Ct. 1620, 1629 n. 15, 84 L. Ed.2d
674 (1985) ("Congress is presumed to be aware of
an administrative or judicial interpretation of a stat-
ute and to adopt that interpretation when it re-enacts
a statute without change."); Albemarle Paper Co. v.
Moody, 422 U.S. 405, 414 n. 8, 95 S. Ct. 2362, 2370
n. 8, 45 L.Ed2d 280 (1975) (same) ; Johnson v.
Transportation Agency, 480 U.S. 616, 629 n. 7, 107
S. Ct. 1442, 1450 n. 7, 94 L. Ed.2d 615 (1987) (con-
gressional inaction after interpretation may be pro-
bative of approval).
Judge Williams devotes a large portion of his
majority opinion to a refutation of this argument.
I presume the reason for this emphasis is that he
concurred in the initial panel opinion in this case
solely on the ground that the 1982 amendments "sup-
port the inference" that the prohibition of takings
includes a prohibition of some habitat modification.

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39a

1 F.3d at 11 (Williams, J., concurring). Having
placed all of his eggs in that basket, he understand-
ably finds it necessary to explain his error at length
now that he has changed his mind.
I agree that Judge Williams was wrong the first
time. He was wrong to rely solely on the 1982
amendments for his decision; I agree that they do
not alone support its weight. They indicate that
Congress in 1982 probably believed that habitat modi-
fication was properly covered by the prohibition on
takings. Admittedly, the 1982 amendments prove
little about Congress's intent in 1973, and had Con-
gress in 1973 specifically stated that "take" does not
include habitat modification the 1982 amendments
would not save the FWS regulation. But Congress
did no such thing in 1973; it was silent on the ques-
tion. Consequently, the 1982 amendments do lend
some weight to the reasonableness of the agency's
definition-if Congress in 1982 believed the definition
was reasonable, and the agency believed it was rea-
sonable, then Chevron demands that we uphold the
regulation unless we find solid evidence to the con-
trary. No such evidence exists.
Thus the court today moves from wrong to more
wrong in attempting to parse this statute. Having
forsaken the 1982 amendments as dispositive evi-
dence, no effort is made to determine whether the
agency could reasonably have relied on such amend-
ments as persuasive evidence supporting its inter-
pretation. Instead, the agency is asked to prove that
the best interpretation of "harm" encompasses habi-
tat modification. Beginning from a wrong premise,
applying a wrong standard, it is not surprising that
the wrong result is achieved.

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40a

Overall, there is nothing in the ESA itself, or in
its legislative history, that unambiguously demon-
strates that the term "harm" in the definition of
"take" does not encompass habitat modification. In-
deed, there is evidence to the contrary. Chevron com-
mands that we defer to an agency's interpretation of
a statute it is entrusted to administer, unless that
interpretation is contrary to Congress's unambiguous
command or an unreasonable exercise of Congress's
vague or ambiguous delegation. The majority has
not been so quick to ignore Chevron before. See, e.g.,
Railway Labor Executives' Ass'n v. National Media-
tion Bd., 988 F.2d 133, 144-45 (D.C. Cir.) (Williams,
J., dissenting) ("legislative silence [is] precisely the
condition that under Chevron is understood to create
a gap to be filled by the agency."), vacated on motion
for rehearing, 996 F.2d 1271 (D.C. Cir. 1993).
Neither should it ignore Chevron today.
Finally, the majority should be even more hesitant
to cast aside the agency's interpretation in light of
the circuit split that this decision now creates. The
Ninth Circuit determined, in Palila v. Hawaii Dep't
of Land and Natural Resources, 852 F.2d 1106 (9th
Cir. 1988), that the FWS's "harm" definition was a
permissible interpretation of the statute. "The Secre-
tary's inclusion of habitat destruction that could re-
sult in extinction follows the plain language of the
statute because it serves the overall purpose of the
Act, which is 'to provide a means whereby the eco-
systems upon which endangered species and threat-
ened species depend may be conserved . . . .' 16 U.S.C.
1531(b)." Id. at 1108. The purpose of the En-
dangered Species Act, lest we forget, is to protect
endangered species. In today's abandonment of our
decision of less than a year ago, this court takes a

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41a

large step backward from that purpose. The major-
ity may believe it is making a good policy-but that
is not our job. Under Chevron, we may overturn an
administrative regulation only if it contradicts the
agency's legislative mandate. Congress does not al-
ways speak as plainly as it might in designing
administrative missions for the executive branch, so
it is not always easy to decipher Congress's marching
orders to an agency. But at least we ought to try.
I dissent.

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APPENDIX B

UNITED STATES COURT OF APPEALS
DISTRICT OF COLUMBIA CIRCUIT

No. 92-5255

SWEET HOME CHAPTER OF COMMUNITIES
FOR A GREAT OREGON, ET AL., APPELLANTS

v.

BRUCE BABBITT, Secretary of the Interior,
ET AL., APPELLEES

Appeal from the United States District Court
for the District of Columbia (91cv01468)

Argued Feb. 17, 1993
Decided July 23, 1993

Before MIKVA, Chief Judge; WILLIAMS and
SENTELLE, Circuit Judges.
Opinion for the Court filed by Chief Judge MIKVA,
except section II(A)(1), which is filed per curium.
Opinion concurring in section II(A)(1) filed by Chief
Judge MIKVA. Opinion concurring in section II(A)
(1) filed by Circuit Judge WILLIAMS.
Opinion dissenting in part filed by Circuit Judge
SENTELLE.

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43a

MIKVA, Chief Judge:

Appellants, a group of non-profit citizens' groups,
lumber companies, and lumber trade associations, op-
pose two regulations promulgated by the Fish and
Wildlife Service ("FWS" or "agency") under the
Endangered Species Act ("ESA"), 16 U.S.C. 1531-
44. They appeal a memorandum opinion and order
by the district court upholding the regulations by
summary judgment and denying appellants' own mo-
tion for summary judgment. We find that the chal-
lenged regulations are reasonable interpretations of
the ESA. We also reject appellants' claim that one
of the regulations is void for vagueness. We there-
fore affirm the district court's judgment.

I. BACKGROUND

The Endangered Species Act of 1973 is a multi-
faceted and comprehensive law directed toward halt-
ing the extinction of species. It is implemented pri-
marily by the Fish and Wildlife Service, an agency
of the Department of the Interior. The ESA em-
ploys a number of techniques to preserve endangered
and threatened species, including land acquisition by
the government, the implementation of conservation
programs by federal agencies, and the prohibition of
various federal and private actions that harm listed
species.
Among the more important sections of the ESA
is 16 U.S.C. 1538(a)(1), which forbids any person
from committing any of a broad array of activities
deemed dangerous to the continued survival of en-
dangered fish and wildlife species. This appeal fo-
cuses largely on the prohibition against "taking" an
endangered species.

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44a

[W]ith respect to any endangered species of fish
or wildlife listed pursuant to section 1533 of
this title it is unlawful for any person subject
to the jurisdiction of the United States to . . . . 
take any such species within the United States
or the territorial sea of the United States [.]

16 U.S.C. 1538(a)(1)(B) (emphasis added).

The ESA defines "take" as follows: "[T]o harass,
harm, pursue, hunt, shoot, wound, kill, trap, capture,
or collect, or to attempt to engage in any such con-
duct." 16 U.S.C. 1532 (19) (emphasis added).
Much of the controversy surrounding this definition
has concerned the meaning of "harm" and the degree
to which this term encompasses damage to habitats.
One of the FWS regulations challenged by appellants
states:

Harm in the definition of "take" in the Act
means an act which actually kills or injures wild-
life. Such act may include significant habitat
modification or degradation where it actually
kills or injures wildlife by significantly impair-
ing essential behavioral patterns, including breed-
ing, feeding, or sheltering.

50 C.F.R. 17.3 (as amended in 1981). Appellants
contend that this regulation's inclusion of habitat
modification within the meaning of "take" violates
the ESA. They also assert that even if the regulation
is not ultra vires of the ESA, it is not clear precisely
what sort of habitat modification the regulation for-
bids. They therefore argue that this Court should
either declare the regulation void for vagueness or
adopt a limiting construction of the regulation, hold-
ing that "harm" occurs only where there is an inten-

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45a

tionally-caused actual physical injury to a specific
member of a listed wildlife species.
The other regulation under review extends the pro-
tections for endangered species to threatened species
as well. The ESA defines an "endangered species"
as "any species which is in danger of extension
throughout all or a significant portion of its range.
. . ." 16 U.S.C. 1532 (6). The ESA also protects
species that are in less immediate peril but are listed
as "threatened species." This term refers to "any
species which is likely to become an endangered spe-
cies within the foreseeable future throughout all or
a significant portion of its range." 16 U.S.C. 1532
(20).
On its face, 16 U.S.C. 1538(a)(1) applies its
prohibitions, including the prohibition against tak-
ings, only to endangered species. However, the ESA
allows the FWS to apply these prohibitions to threat-
ened species, as well.

Whenever any species is listed as a threatened
species . . . the Secretary shall issue such regula-
tions as he deems necessary and advisable to pro-
vide for the conservation of such species. The
Secretary may by regulation prohibit with re-
spect to any threatened species any act prohibited
under section 1538(a)(1) of this title, in the
case of fish or wildlife . . . . 

16 U.S.C. 1533(d).

Appellants challenge a FWS regulation which, at
one fell swoop. brings all threatened fish and wildlife
species into the protective net of 16 U.S.C. 1538(a)
(l).
 Except as provided in subpart A of this part, or
in a permit issued under this part, all of the pro-

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46a

visions in [50 C.F.R.  17.21, the regulation im-
plementing the section 1538 (a) (1) prohibitions]
shall apply to threatened wildlife . . . . 

50 C.F.R.  17.3(a) (1978). Appellants argue that
this regulation violates the ESA, because  1533(d)
requires the FWS to extend the prohibitions to threat-
ened species on a species-by-species basis and to do so
only after making a specific finding that each such
extension was "necessary and advisable."

The district court rejected appellants' challenges to
both 50 C.F.R. 17.3 and  17.31(a) and granted
summary judgment to the government. 806 F. Supp.
279. Because all of the issues in this appeal are issues
of law, we will review the district court's judgment
de novo.    

II. ANALYSIS

A. The "harm" regulation

1. Compliance with the Endangered Species Act

Appellants argue that the "harm" regulation, 50
C.F.R. 17.3, violates the ESA, because the statute
excludes habitat modification from the types of for-
bidden actions that qualify as "takings" of species.
They assert that the ESA's language and structure,
as well as its legislative history, clearly demonstrate
that Congress did not intend to prohibit habitat modi-
fication when it defined "take" to include "harm" to
an endangered species. 16 U.S.C.  1532(19). They
claim that the meaning of harm should therefore be
limited to direct physical injury to an identifiable
member of a listed wildlife species.
We hold, per curiam, that the "harm" regulation
does not violate the ESA by including actions that
modify habitat among prohibited "takings."

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47a

2. The "void for vagueness" claim

Appellants also maintain that, on its face, the
"harm" regulation is void for vagueness. They point
out that the Ninth Circuit has interpreted the regu-
lation broadly so that prohibited "harm" includes
habitat modification even without proof that death or
physical injury to a specific member of a listed spe-
cies has occurred. Palila v. Hawaii Dept. of Land
and Natural Resources, 852 F.2d 1106, 1107-09
(1988). The appellants could also have mentioned
that the FWS itself offered a similarly broad inter-
pretation of the regulation when it introduced the
current definition of "harm" in 1981:

Some of the comments in favor of the redefini-
tion . . . viewed the action as limiting "harm" to
direct physical injury to an individual member
of the wildlife species. This was not the intent
of the Service and the final redefinition addresses
that perception. The purpose of the redefinition
was to preclude claims of a Section 9 taking for
habitat modification alone without any attendant
death or injury of the protected wildlife. Death
or injury, however, may be caused by impair-
ment of essential behavioral patterns which can
have significant and permanent effects on a listed
species.

46 Fed. Reg. 54,748, 54,748 (1981).

Appellants argue that so long as the regulation is
subject to such broad constructions, it is impermissi-
bly vague. They claim it will be left to the whims and
predictions of biologists to determine when a habitat
modification is "significant" and when such a modifi-
cation "significantly impair[s] essential behavioral
patterns." 50 C.F.R. 17.3 (emphasis added). Prop-

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48a

erty owners, say appellants, will thus be subject to
criminal sanctions under the ESA based on "some
biologist's subjective view."
We are urged to address this problem by constru-
ing the regulation to state that "harm" occurs only
where there is proof of an intentionally-caused physi-
cal injury to a specific member of a listed wildlife
species. If we determine that the regulation does not
require such proof, appellants contend that we should
declare the entire regulation void for vagueness.
It is true, as appellants assert, that regulations
with criminal sanctions must "define the criminal of-
fense with sufficient definiteness that ordinary people
can understand what conduct is prohibited and in a
manner that does not encourage arbitrary and dis-
criminatory enforcement." Kolender v. Lawson, 461
U.S. 352, 357, 103 S. Ct. 1855, 1858, 75 L. Ed.2d 903
(1983), This principle, however, does not lead to the
conclusion that any person can have a regulation
wiped off the books (or prompt a limiting judicial con-
struction of the regulation) merely by showing that it
will be impermissible vague in the context of some
hypothetical application.
The seminal case concerning pre-enforcement facial
challenges on the grounds of vagueness is Village of
Hoffman Estates v. Flipside, Hoffman Estates, Inc.,
455 U.S. 489, 102 S. Ct. 1186, 71 L. Ed.2d 362 (1982).
Flipside states that when a court examines such a
challenge, "assuming the enactment implicates no con-
stitutionally protected conduct, [the court] should up-
hold the challenge only if the enactment is impermissi-
bly vague in all of its applications." Id. at 495, 102
S. Ct. at 1191 (emphasis added). Although the Su-
preme Court does not state precisely what it means
by "constitutionally protected conduct," it is clear

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49a

that it is referring primarily to the First Amendment
expressive freedoms, which have long received special
protection in vagueness cases. See, e.g. Smith, Sheriff
v. Goguen, 415 U.S. 566, 573, 94 S. Ct. 1242, 1247, 39
L. Ed.2d 605 (1974). It is equally clear that the
Court is not referring to economic activity, which
modern vagueness cases have invariably afforded less
protection. See, e.g., Flipside, 455 U.S. at 498, 102
S. Ct. at 1193 ("economic regulation is subject to a
less strict vagueness test").
Appellants, who are not currently the subject of
an enforcement action under 50 C.F.R. 17.3, none-
theless contend that the regulation will inhibit their
ability to develop their land, especially by harvesting
timber. In other words, the conduct implicated by
this case is economic activity. (To the degree that
appellants contend that the regulation results in a
"taking" of their property in the Fifth Amendment
sense, their remedy would be compensation, not a void-
ing of the regulation). In accordance with Flipside,
we therefore will not find 50 C.F.R. 17.3 void for
vagueness unless the regulation is impermissible
vague in all of its applications.
In fact, the regulation contains features that pre-
vent it from being invariably vague as applied. The
definition of "harm" explicitly limits prohibited
habitat modification to that which "actually kills or
injures wildlife." 50 C.F.R. 17.3. Moreover, in
order to establish a civil or criminal violation under
the "take" provision of the ESA or a regulation im-
plementing that provision, the government must es-
tablish that the charged party knowingly violated
the statute or regulation. 16 U.S.C. 1540(a) and
(b). The Supreme Court has recognized that "a

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50a

scienter requirement may mitigate a law's vagueness,
especially with respect to the adequacy of notice to
the complainant that his conduct is proscribed."
Flipside, 455 U.S. at 499, 102 S. Ct. at 1193.
In light of these limitations, there are obviously
types of activity, including habitat modification, that
50 C.F.R. 17.3 clearly prohibits without a hint
of vagueness. For example, it obviously forbids the
very sort of conduct that appellants argue it should
be limited to-habitat modification that causes as-
certainable physical injury or death to an individual
member of a listed species. Furthermore, 17.3 un-
questionably prohibits major acts of habitat degra-
dation that destroy a species' ability to breed, feed,
or shelter. For instance, a person aware of the regu-
lation would be considered impermissible vague. Un-
clear-cutting an entire forested area known to be
populated by spotted owls.
Because the regulation is not vague in all of its
applications, we may not declare it void on its face.
We do not dismiss the possibility that some enforce-
ment contexts may arise in which the challenged regu-
lation would be considered impermissible vague. Un-
der Flipside, however, the fact that there might be
some type of activity whose legality is blurry under
the regulation does not render the entire regulation
facially invalid. Specific vagueness concerns about
the regulation can be addressed when and if they are
properly raised in the framework of a concrete chal-
lenge to a particular application of the regulation.
Appropriate judicial restraint obligates us to wait
for specific applications of the regulation to arise,
for, as Flipside observed, the government may in the
meantime take further steps "that will sufficiently
narrow potentially vague or arbitrary interpreta-

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51a

tions" of the regulation. 455 U.S. at 504, 102 S. Ct.
at 1196. "Although it is possible that specific future
applications . . . may engender concrete problems of
constitutional dimension, it will be time enough to
consider any such problems when they arise." Joseph
E. Seagram & Sons, Inc. v. Hostetter, 384 U.S. 35, 52,
86 S. Ct. 1254, 1265, 16 L. Ed.2d 336 (1966), over-
ruled on different grounds by Healy v. Beer Institute,
Inc., 491 U.S. 324, 109 S. Ct. 2491, 105 L. Ed.2d 275
(1989).

B. The blanket extension of protections to all threat-
ened species

Appellants also challenge 50 C.F.R. 17.31(a), by
which the FWS extended the 16 U.S.C. 1538(a)(1)
prohibitions as to endangered species to all threatened
species as well. The FWS issued this regulation un-
der the authority granted to it by the ESA at 16
U.S.C. 1533(d). For the sake of convenience, we
quote that provision again:

Whenever any species is listed as a threatened
species . . . the Secretary shall issue such regula-
tions as he deems necessary and advisable to
provide for the conservation of such species. The
Secretary may by regulation prohibit with re-
spect to any threatened species any act prohibited
under section 1538(a)(1) of this title, in the
case of fish or wildlife . . . . 

16 U.S.C. 1533(d).

The challenged regulation provides in relevant part:

(a) Except as provided in subpart A of this part,
or in a permit issued under this subpart, all of
the provisions in 17.21 [which implements the

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52a

prohibitions contained in 16 U.S.C. 1538(a)
(1) ] shall apply to threatened wildlife, except
17.21(c)(5).

* * * * *

(c) Whenever a special rule in 17.40 to 17.48
applies to a threatened species, none of the pro-
visions of [paragraph (a)] of this section will
apply. The special rule will contain all the ap-
plicable prohibitions and exceptions.

50 C.F.R 17.31.

In short, the FWS has, with this regulation estab-
lished a regime in which the prohibitions established
for endangered species are extended automatically to
all threatened species by a blanket rule and then with-
drawn as appropriate, by special rule for particular
species and by permit in particular situations. Al-
though appellants' dissatisfaction is focused entirely
on this treatment of the "take" prohibition, the regu-
lation applies all of the  1538(a)(1) prohibitions
to threatened species in this manner.
Appellants contend that the FWS has created the
system upside down, in violation of the ESA. They
maintain that 1533(d) requires the Secretary to
extend the prohibitions to threatened species on a
species-by-species basis. They also assert that the
statute requires the agency to explain in each instance
why it is "necessary and advisable" to apply the pro-
hibitions to a threatened species.
We are not persuaded. As was the case with the
"harm" regulation, there is no clear indication that
17.31(a) violates the intent of the ESA. The stat-
ute does not unambiguously compel the agency to ex-
pand regulatory protection for threatened species

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53a

only by promulgating regulations that are specific to
individual species. In light of the substantial defer-
ence we thus owe the agency under the principles of
Chevron USA, Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837, 104 S. Ct. 2778, 81 L. Ed.
2d 694 (1984), we uphold the challenged regulation
as a reasonable interpretation of the statute.
Appellants argue that the plain language of the
ESA establishes that Congress intended regulations
extending the 1538(a)(1) prohibitions to threat-
ened species to apply only to individual species. They
focus on the first sentence of 1533(d), pointing out
its clear use of the singular. ("Whenever any species
is listed as a threatened species . . . . ") They maintain
that in light of the first sentence's unambiguous ref-
erence to regulations for a single threatened species, the
phrase "any threatened species" in the second sen-
tence must also refer to the singular. Appellants
finally note that the Senate Report bolsters their in-
terpretations of the language of 1533(d) as author-
izing regulation tailored to individual species.
  
[The section] requires the Secretary, once he has
listed a species of fish or wildlife as a threatened
species, to issue regulations to protect that spe-
cies. Among other protective measures available,
he may make any or all of the acts and conduct
defined as "prohibited acts" . . . as to "endan-
gered species" also prohibited acts as to the par-
ticular threatened species.

S.Rep. No. 93-307, 93d Cong., 1st Sess, 8 (1973),
U.S.Code Cong. & Admin. News 1973, pp. 2989, 2996.
(emphasis added).

It is however, less than clear that the language of
1533(d) is actually intended to require regulations

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54a

extending the 1538(a)(1) prohibitions to apply
only to individual species. The reference to "any
threatened species" in the second sentence of 1538
(d) could just as easily mean "any or all threatened
species." And appellants' claim that the clear mean-
ing of the first sentence should control our interpreta-
tions of the second is not necessarily valid, for, as
appellees argue, the two sentences may represent sep-
arate grants of authority. It is possible that it is the
second sentence alone that grants the agency authority
to extend the 1538(a)(1) prohibitions to threatened
species. See infra pp. 7-8.
Furthermore, in response to appellants' use of the
Senate Report, appellees counterpoise the use of plural
language in the discussion of 1533(d) in the House
Report.

The Secretary is authorized to issue appropriate
regulations to protect endangered or threatened
species; he may also make specifically applicable
any of the prohibitions with regard to threatened
species that have been listed in section 9(a) as
are prohibited with regard to endangered species.
Once an animal is on the threatened list, the Sec-
retary has almost an infinite number of options
available to him with regard to the permitted ac-
tivities for those species. He may, for example,
permit taking, but not importation of such spe-
cies, or he may choose to forbid both taking and
importation but allow the transportation of such
species.

H.R. Rep. No. 93-412, 93rd Cong., 1st Sess. 12 (1973).
The possible conflict between the two reports, as well
as the apparent inconsistency within the above-quoted
paragraph itself as to singular and plural, shows the

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55a

perils of attempting to use ambiguous legislative his-
tory to clarify ambiguous words within statutes.

In any case, even assuming that the reference to
"any threatened species" in the second sentence of
1533(d) is singular, the statute still would not
clearly forbid the FWS from proceeding in the man-
ner it did. Appellants impart inappropriate signifi-
cance to the use of the singular versus the plural.
The very first provision of the United States Code
states, "In determining the meaning of any Act of
Congress, unless the context indicates otherwise . . .  
Words importing the singular include and apply to
several persons, parties, or things [and] words im-
porting the plural include the singular." 1 U.S.C. 1.
Furthermore, regardless of the use of singular and
plural words, 1533(d) simply does not speak di-
rectly to the question of whether the FWS must
promulgate protections species-by-species or may ex-
tend such protection in a single rulemaking. We will
rarely impose a particular procedural strategy on an
agency when the relevant statute does not even ex-
plicitly address how the agency should proceed. "In
[the] process of filling any gap left, implicitly or
explicitly, by Congress, the courts must respect the
interpretation of the agency to which Congress has
delegated the responsibility for administering the
statutory program." INS v. Cardoza-Fonseca, 480
U.S. 421, 448, 107 S.Ct. 1207, 1221, 94 L. Ed.2d 434
(1987) (citations omitted).
Appellants attempt to bolster their argument by
claiming that the design and structure of the ESA
unavoidably require the FWS to extend the 1533
(d) prohibitions to threatened species on a species-
by-species basis. They contend that Congress created

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56a

the distinct categories of endangered and threatened
species specifically so that each category would re-
ceive the precise degree of protection it required. By
presumptively according the very same protections to
threatened species as to endangered species, they ar-
gue, the FWS is violating this statutory design.
This argument also fails, because regardless of the
ESA's overall design, 1533(d) arguably grants the
FWS the discretion to extend maximum protection to
all threatened species at once if, guided by its exper-
tise in the field of wildlife protection, it finds it ex-
peditious to do so. In any case, even assuming that
Congress intended there to be an indelible difference
between the treatment of endangered species and
threatened species, appellants fail to acknowledge the
very real differences that exist even under the chal-
lenged regulation. As noted above, supra, p. 5, the
regulation contemplates the issuance of "special
rules" for individual threatened species. 50 C.F.R.
17.31(c). The FWS has actually issued special
rules for a substantial number of the fish and wild-
life species listed as threatened. See 50 C.F.R.
17.40-48.
Moreover, FWS regulations provide for the issu-
ance of permits, under certain circumstances, to
individual applicants who request permission to com-
mit otherwise prohibited activities with respect to
threatened wildlife. 50 C.F.R. 17.32. Similar per-
mits are available with regard to endangered species,
50 C.F.R. 17.22-23, but the FWS has made clear
that they are more readily available for threatened
species.

The new Subpart D would establish a set of
blanket prohibitions for threatened wildlife.
These are the same prohibitions that the Act pro-

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57a

vides for endangered wildlife. . . . The new Sub-
part D would then provide for permits for any
threatened wildlife. These permits would be
more liberal than permits available under Sub-
part . . . for endangered wildlife, in that they
would be available for more purposes, and the
strict procedural rules for endangered wildlife
permits would not apply.

40 Fed.Reg. 28,713 (1975).

The FWS has thus maintained a two-tier approach
to species protection. Consequently, even if the ESA
does in fact mandate that the agency preserve dif-
ferent approaches to the conservation of endangered
and threatened species, the regulatory scheme satis-
fies the statute.
Lastly, appellants claim that 50 C.F.R. 17.31 (a)
violates the ESA because 1533(d) requires the
FWS to make individualized formal findings that the
prohibitions are "necessary and advisable" for the
conservation each threatened species to which they
are extended. Not only did the agency fail to make
such findings for each individual species; it did not
even make such a finding in regard to the category
of threatened species as a whole when it issued the
blanket extension of prohibitions.
As appellees argue, however, there is a reasonable
reading of 1533(d) that would not require the
FWS to issue formal "necessary and advisable" find-
ings when extending the prohibitions to threatened
species. According to this interpretation, the two
sentences of 1533(d) represent separate grants of
authority. The second sentence gives the FWS dis-
cretion to apply any or all of the 1538(a) (1) pro-
hibitions to threatened species without obligating it

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58a

to support such actions with findings of necessity.
Only the first sentence of 1533(d) contains the
"necessary and advisable" language and mandates
formal individualized findings. This sentence re-
quires the FWS to issue whatever other regulations
are "necessary and advisable," including regulations
that impose protective measures beyond those con-
tained in  1538(a)(1).
In sum, we find it far from clear that 16 U.S.C.
1533(d) requires the FWS to extend protections to
threatened species on a species-by-species basis or
that it mandates that the agency issue formal find-
ings of necessity to support each such extension. In
light of the statute's ambiguity, the challenged FWS
regulation is a reasonable and permissible construc-
tion of the ESA. We therefore uphold 50 C.F.R.
17.31(a).  

III. CONCLUSION

Neither the regulation defining harm nor the regu-
lation extending blanket protection to threatened
species is an unreasonable interpretation of the En-
dangered Species Act. Moreover, the "harm" regula-
tion is not impermissible vague on its face. We
therefore affirm the judgment of the district court
and uphold both regulations.

It is so ordered.

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59a

MIKVA, Chief Judge, concurring in Section II
(A)(1) of the opinion:

I write separately in order to articulate fully my
reasons for rejecting appellants' argument that we
should set aside the "harm" regulation as violative
of the ESA.
When we review an agency's construction of a
statute that it is entrusted to administer, we follow
the deferential approach set out by Chevron U.S.A.
Inc. v. Natural Resources Defense Council, Inc., 467
U.S. 837, 104 S. Ct. 2778, 81 L.Ed.2d 694 (1984).
"If the statute is clear and unambiguous that is the
end of the matter, for the court, as well as the agency,
must give effect to the unambiguously expressed in-
tent of Congress." K Mart Corp. v. Cartier, Inc.,
486 U.S. 281, 291, 108 S. Ct. 1811, 1817, 100 L. Ed.2d
313 (1988) (citations omitted). If, however, "the
statute is silent or ambiguous with respect to the spe-
cific issue, the question for the court is whether the
agency's answer is based on a permissible construc-
tion of the statute." Chevron, 467 U.S. at 843, 104
S. Ct. at 2782. "In such a case, a court may not sub-
stitute its own construction of a statutory provision
for a reasonable interpretation made by the admin-
istrator of an agency." Id. at 844, 108 S. Ct. at 2782.
Appellants contend that Congress clearly intended
to exclude habitat modification from the types of tak-
ings prohibited by the ESA and that this Court thus
owes no deference to the FWS "harm" regulation.
I disagree. In my view, the "harm" regulation con-
flicts with neither the ESA itself nor its ambiguous
legislative history and is unquestionably a permis-
sible and reasonable construction of the statute. I
therefore do not accept appellants' claim that 50
C.F.R. 17.3 transgresses the ESA.

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60a

It is hard to construct a legislative scenario in
which Congress would have avoided the problem of
habitat modification when it crafted the ESA. The
drafters of the statute realized that the degradation
of habitats posed one of the gravest threats to the
continued existence of endangered and threatened
species. As the Supreme Court has noted:

In shaping [the ESA], Congress started from
the finding that "[t]he two major causes of ex-
tinction are hunting and destruction of natural
habitat." S.Rep. No. 93-307, p. 2 (1973). Of
these twin threats, Congress was informed that
the greatest was destruction of natural habitats.
. . . 

TVA v. Hill, 437 U.S. 153, 179, 98 S. Ct. 2279, 2294,
57 L. Ed.2d 117 (1978). Indeed, the first stated pur-
pose of the ESA is "to provide a means whereby the
ecosystems upon which endangered species and
threatened species depend may be conserved . . . ." 16
U.S.C. 1531(b).
Appellants acknowledge that Congress intended to
halt injurious habitat modification when it passed
the ESA. They contend only that Congress did not
mean to combat habitat degradation on private lands
through the prohibition against takings in 16 U.S.C.
1538. They argue that Congress intended to combat
this problem solely through 1534's provision for
federal land acquisition.
According to appellants, the legislative history of
the "take" provision establishes that Congress did
not mean for that term to encompass habitat modi-
fication. They note that the original bill that was
referred to the Senate Committee on Commerce, S.
1983, defined "take" to include "destruction, modi-

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61a

fication, or curtailment of [an endangered species']
habitat or range." S. 1983, 93d Cong., 1st Sess.,
3(6) (1973). The bill reported out of committee,
however, did not refer to habitat modification in the
definition of "take." This omission, appellants argue,
evinces Congress' intent not to include habitat modi-
fication within the scope of prohibited "takings."
Appellants maintain that Congress intended in-
stead to address the problem of habitat modification
caused by private actions on private lands exclusively
through land acquisition by the federal government.
Section 1534 authorizes the Secretary of the Interior,
as well as the Secretary of Agriculture with respect
to the National Forest System, to acquire land as
part of "a program to conserve fish, wildlife, and
plants, including those which are listed as endan-
gered species or threatened species . . . . " 16 U.S.C.
1534(a). Appellants point to various statements in
the legislative history that suggest that some mem-
bers of Congress may have wanted land acquisition,
not the prohibition of land uses, to be the ESA's sole
weapon against habitat modification on private lands.
Appellants further argue that Congress logically
must have intended land acquisition to be the exclu-
sive mechanism for preventing such habitat modifica-
tion. Otherwise, they contend, agency officials would
always choose the free alternative of prohibiting a
damaging land use under the "take" provision, rather
than paying to acquire the affected land.
I find the legislative history to be most ambiguous
regarding whether Congress intended to include
habitat modification within the meaning of "take."
It is true that the Senate Committee chose not to use
the S, 1983 definition of "take," which specifically
encompassed habitat modification. Instead, the Com-

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62a

mittee adopted a definition from the other bill under
consideration, S. 1592, which did not explicitly in-
clude habitat modification. But as the district court
noted, there is no indication in the legislative history
as to why the Committee selected one definition over
the other.
There is nothing to suggest that Congress chose
the definition it did in order to exclude habitat modi-
fication. The Committee may have rejected the S.
1983 definition only because it apparently would have
made habitat modification a per se violation of the
ESA. It is certainly possible that the Committee did
not intend to foreclose an administrative regulation
prohibiting habitat modification-so long as that pro-
hibition was accompanied by limitations, such as
those contained in the FWS regulation under review,
requiring that there be actual injury or death to the
species. In any case, Congress manifested no clear
intent to exclude habitat modification from the "take"
definition. Indeed, the Senate Committee Report
states that "'Take' is defined . . . in the broadest
possible manner to include every conceivable way in
which a person can 'take' or attempt to 'take' any
fish or wildlife." S.Rep. No. 93-307, 93d Cong., 1st
Sess. 7 (1973), U.S.Code Cong. & Admin. News 1973,
2995.
 Appellants' contention that Congress intended land
acquisition to be the exclusive instrument for curbing
habitat modification on private lands is similarly
speculative. Nothing in the language of 16 U.S.C.
1534 or in the legislative history establishes that
Congress meant land acquisition to be the only
mechanism for habitat protection on private lands.
The only evidence appellants can garner in support
of their assertion to the contrary is a few isolated

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63a

and ambiguous remarks by members of Congress on
the floor. See 119 CONG.REC. 25,669 (1973) (state-
ment of Sen. Tunney); 119 CONG.REC. 30,162 (1973)
(statement of Rep. Sullivan); 119 CONG.REC. 25,691
(1973) (statement of Sen. Nelson). The general rule
is that "debates in Congress expressive of the views
and motives of individual members are not a safe
guide . . . in ascertaining the meaning and purpose
of the law-making body." Duplex Printing Press Co.
v. Deering, 254 U.S. 443, 474, 41 S. Ct. 172, 179, 65
L.Ed. 349 (1921). In any case, these statements do
not establish that even the speakers themselves in-
tended land acquisition to be the exclusive protective
mechanism for habitats on private lands.
There is also little force behind appellants' claim
that including habitat modification within the mean-
ing of "take" renders the land acquisition provision
of 1534 a nullity. Appellants suggest that agency
officials will not pay to acquire land if they can
accomplish the same habitat preservation objective
without cost by banning the offending land use. But
there are in fact many reasons why, in its effort to
protect endangered and threatened species, the gov-
ernment might choose to acquire land rather than
simply forbid damaging activity. Federal wildlife
managers can surely do more to help such species on
government-owned and controlled preserves than they
could ever accomplish on private lands. Indeed,
1534 land acquisition is explicitly designed to fa-
cilitate "conservation programs," a phrase that sug-
gests a type of intervention more complex and pro-
active than simply forbidding certain activities on
private lands.
Appellants argue that the agency must interpret
the word "harm" narrowly so as not to include

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64a

habitat modification because none of the other "take"
terms- "harass, . . . pursue, hunt, shoot, wound, kill,
trap, capture, [and] collect''-represents a land use
action that injures wildlife only indirectly. They
argue that under the principle of statutory construc-
tion known as noscitur a sociis, a general term in a
list should be interpreted narrowly "to avoid the giv-
ing of unintended breadth to the Acts of Congress."
Jarecki v. G.D. Searle & Co., 367 U.S. 303, 307, 81
S. Ct. 1579, 1582, 6 L. Ed.2d 859 (1961).
Despite appellants' suggestions, however, the other
prohibitions can limit a private landowner's use of
his land in a rather broad manner. In particular,
the prohibition against "harassment" can be used to
supress activities that are in no way intended to
injure an endangered species. The House Report
stated:

[Take] includes harassment, whether intentional
or not. This would allow, for example, the Sec-
retary to regulate or prohibit the activities of
birdwatchers where the effect of those activities
might disturb the birds and make it difficult for
them to hatch or raise their young.

H.R.Rep. No. 93-412, 93d Cong., 1st Sess. 11 (1973).
Indeed, the FWS has defined "harass" in a way that
is almost as broad as the "harm" definition:

Harass in the definition of "take" in the Act
means an intentional or negligent act or omis-
sion 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.

50 C.F.R. 17.3. Appellants have not challenged
this definition.

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65a

Noscitur a sociis means, literally, that a word is
known by the company it keeps. Jarecki, 367 U.S. at
307, 81 S. Ct. at 1582. In the definition of "take,"
the term "harm" is accompanied by an assortment of
words ranging from the precise and narrow "shoot"
to the vague and expansive "harass." Consequently,
even if I were willing to find an agency's construc-
tion of a statute to be impermissible based solely on
a seldom-used and indeterminate principle of statu-
tory construction, I would not do so in the present
case.
 Although the ESA is generally ambiguous as to
whether the "take" prohibition forbids habitat modi-
fication, there is at least one feature of the statute
that strongly suggests that Congress did in fact in-
tend to include habitat modification within the mean-
ing of "take." In 1982, Congress amended the ESA to
include a provision authorizing the FWS to issue a
permit allowing "any taking otherwise prohibited by
section 1538 (a)(1)(B) of this title if such taking
is incidental to, and not the purpose of, the carrying
out of an otherwise lawful activity, " 16 U.S.C.
1539(a)(1)(B).
By allowing the agency, at its discretion, to permit
"incidental takings," Congress implicitly confirmed
that incidental takings were otherwise forbidden by
the Act. And it is hard to imagine what "incidental
takings" might be other than habitat modification.
Indeed, the legislative history of the 1982 amend-
ments reveals that habitat modification was precisely
what Congress had in mind. The House Report
states, "This provision is modeled after a habitat
conservation plan that has been developed by three
Northern California cities. . . . [It] will . . . provide
the institutional framework to permit cooperation

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66a

between the public and private sectors in the interest
of endangered species and habitat conservation."
H.R.Rep. No. 97-835, 97th Cong., 2d Sess. 30-31
(1982), U.S.Code Cong. & Admin. News 1982, pp.
2807, 2871, 2872.
Overall, there is nothing in the ESA itself or in
its legislative history that unambiguously demon-
strates that the term "take" does not encompass habi-
tat modification. Indeed, as I noted in my discussion
of the 1982 amendments, there is evidence to the con-
trary. Chevron commands that unless it is absolutely
clear that an agency's interpretation of a statute,
entrusted to it to administer, is contrary to the will
of Congress, courts must defer to that interpretation
so long as it is reasonable. Chevron, 467 U.S. at
844, 104 S. Ct. at 2782.
In upholding the challenged regulation, we join
the Ninth Circuit, which has similarly held that the
agency's inclusion of habitat destruction in the defi-
nition of "harm" is a permissible interpretation of
the ESA. That Circuit has stated that "[t]he Sec-
retary's inclusion of habitat destruction that could
result in extinction follows the plain language of the
statute because it serves the overall purpose of the
Act . . . ." Palila v. Hawaii Dep't of Land and Na-
tural Resources, 852 F.2d 1106, 1108 (9th Cir. 1988).

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67a

WILLIAMS, Circuit Judge, concurring in Section
II(A)(1) of the opinion:

I agree that the "harm" regulation, 50 CFR 17.3,
complies with the Endangered Species Act-but only
because of the 1982 amendments to the ESA. See
Pub.L. 97-304, 4(a)(2) and 6(1) (codified re-
spectively at 16 U.S.C. 1536(b)(4)(B) and
1539(a)(1)(B)). Those amendments, which author-
ize the FWS to issue permits for "any taking other-
wise prohibited by section 1538(a)(1)(B) of this
title if such taking is incidental to, and not the pur-
pose of, the carrying out of an otherwise lawful
activity," 16 U.S.C, 1539(a)(1)(B), support the
inference that the ESA otherwise forbids some such
incidental takings, including some habitat modifica-
tion. But for the 1982 amendments, I would find
Judge Sentelle's analysis highly persuasive-includ-
ing his discussion of the noscitur a sociis canon. See
RLEA v. NMB, 988 F.2d 133, 144 (D.C. Cir. 1993)
(Williams, J. dissenting) (characterizing the canon
as a "powerful linguistic norm").

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68a

SENTELLE, Circuit Judge, dissenting:

As we have observed, "some will find ambiguity
even in a 'No Smoking' sign." International Union,
United Auto, Aerospace and Agric. Implement Work-
ers of Am. v. General Dynamics Land Sys. Div., 815
F.2d 1570, 1575 (D.C. Cir. 1987). In the present case
the Fish and Wildlife Service has established that it
would not only find such ambiguity, but would deem
a congressional authorization for the erection of "No
Smoking" signs to authorize the adoption of regula-
tions against chewing and spitting.
As Chief Judge Mikva notes, this case is governed
by Chevron U.S.A. Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837, 104 S. Ct. 2778, 81 L. Ed.
2d 694 (1984). That decision mandates a two-step
analysis, At the first step "we inquire into whether
Congress has directly spoken to the precise question
at issue. If we can come to the unmistakable con-
clusion that Congress had an intention on the precise
question at issue, our inquiry ends there." Nuclear
Info. Resource Serv. v. Nuclear Regulatory Comm'n,
969 F.2d at 1169, 1173 (1992) (en banc) (citations
and internal quotation marks omitted). At the sec-
ond step "if the statute . . . is silent or ambiguous
with respect to the specific issue before us, . . . we
defer to the agency's interpretation of the statute
if it is reasonable and consistent with the statute's
purpose." Id. (citations and internal quotation marks
omitted ). While I am willing to concede the possi-
bility that some ambiguity may remain in the un-
usually specific recitation by Congress of its intent in
defining the term "take," I cannot cram the agency's
huge regulatory definition into the tiny crack of am-
biguity Congress left.

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69a

As a colleague of ours has observed, "the second
prong of the Chevron inquiry, whether an agency's
interpretation of an ambiguous statutory provision is
reasonable, is also not devoid of content." National
Ass'n for Better Broadcasting v. FCC, 849 F.2d 665,
671 n. 3 (D.C. Cir. 1988) (Wald, C. J., dissenting).
In the present case, I see no reasonable way that the
term "take" can be defined to include "significant habi-
tat modification or degradation" as it is defined in
50 C.F.R. 17.3. I have in my time seen a great
many farmers modifying habitat. They modify by
plowing, by tilling, by clearing, and in a thousand
other ways. At no point when I have seen a farmer
so engaged has it occurred to me that he is taking
game. Nor do I think it would occur to anyone else
that he was taking wildlife. He may be doing some-
thing harmful to wildlife, but he is not "taking" it.
In my view, the fact that the farmer may be in-
directly harming wildlife, and that the statutory defi-
nition includes "harm" helps the agency's cause but
little. To analogize again to the smoking proposition,
if Congress authorized the erection of "No Smoking"
signs in public buildings and thereafter defined smok-
ing to include lighting, burning, puffing, inhaling, and
otherwise harmfully employing the noxious nicotine-
bearing tobacco products," some zealous bureau might
well attempt to define smoking to include chewing
and spitting under the rubric of the "harmful use"
in Congress's definition of smoking. Perhaps some
might think that reference to harm would cause the
concept of smoking to include chewing. I do not think
those creative regulators would be thinking reason-
ably if they should do so, nor do I think the regulators
act reasonably in the present case.

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70a

As my colleague observes, there is an ancient "princi-
ple of statutory construction known as noscitur a
sociis, a general word in a list should be interpreted
narrowly 'to avoid the giving of unintended breadth
to the Acts of Congress.'" Mikva Op. at 10, quoting
Jarecki v. G.D. Searle & Co., 367 U.S. 303, 307, 81
S. Ct. 1579, 1582, 6 L. Ed.2d 859 (1961). In the pres-
ent statute, all the other terms among which "harm"
finds itself keeping company relate to an act which
a specifically acting human does to a specific indi-
vidual representative of a wildlife species. In fact,
they are the sorts of things an individual human com-
monly does when he intends to "take" an animal.
Otherwise put, if I were intent on taking a rabbit, a
squirrel, or a deer, as the term "take" is used in
common English parlance, I would go forth with my
dogs or my guns or my snares and proceed to "harass,
. . . pursue, hunt, shoot, wound, kill, trap, capture, or
collect" 1. one of the target species. 16 U.S.C. 1532
(19). If I succeeded in that endeavor, I would cer-
tainly have "taken" the beast. If I failed, I would
at least have "attempt [cd] to engage in . . . such
conduct." Id.
All this falls neatly within a reasonable construc-
tion of "take," just as puffing a pipe falls neatly
within the definition of smoking, and I would not
dare to do such in front of a "No Smoking" sign.
However, I would think it most unreasonable if a
regulator told me that I could not chew nicotine gum
in front of the same sign because the agency had de-
cided that it was harmful and therefore constituted

___________________(footnotes)

1 The only word replaced by ellipses is "harm," the word
under examination.

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71a

smoking. It appears to me that the Fish and Wildlife
Service has engaged in a similarly unreasonable ex-
pansion of terms in the present case.
I do not find the unreasonableness of the Service's
construction to be in any way alleviated by the Senate
Committee Report stating that "'[t]ake' is defined
. . . in the broadest possible manner to include every
conceivable way in which a person can 'take' or at-
tempt to 'take' any fish or wildlife." S.Rep. No. 93-
307, 93d Cong., 1st Sess. 7 (1973), U.S.Code Cong. &
Admin.News 973, 2995 (quoted by Mikva Op. at 9).
Should one committee of the anti-smoking Congress
have included in its discussion of the "No Smoking"
sign authorization language to the effect that "'smok-
ing' is defined in the broadest possible manner to
include every conceivable way in which a person can
'smoke' or attempt to 'smoke' any form of tobacco,"
that still would not convince me that the term could
be defined to include chewing. Nor does the major-
ity's reliance on that same sort of legislative history
convince me that Congress, by mandating the broad-
est possible manner of definition, intended to deprive
the definition of any bounds whatsoever and turn the
word into a free form concept inclusive of anything
an agency might wish it to cover.
I am bolstered in my conviction by another rule of
statutory construction: that is, the presumption
against surplusage." [W]e are hesitant to adopt an
interpretation of a congressional enactment which
renders superfluous another portion of that same
law." Mackie v. Lanier Collection Agency, 486 U.S.
825, 837, 108 S. Ct. 2182, 2189, 100 L. Ed.2d 836
(1988). The construction placed upon the word
"harm" by the agency and adopted by the court today

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72a

renders superfluous everything else in the definition
of "take." If "harm" means any "act which actually
kills or injures wildlife, " including "habitat modifica-
tion or degradation," I can see no reason why Con-
gress also included in the definition of "take" the
terms "harass, . . . pursue, hunt, shoot, wound, kill,
trap, capture, [and] collect." 16 U.S.C. 1532(19).
Every single one of those acts, particularly when
coupled with further language of the congressional
definition which includes "to attempt to engage in any
such conduct, " id., falls within the definition of
"harm" as understood by the agency. I am unwilling
to believe that Congress deliberately wasted the con-
siderable ink and paper devoted to the many copies of
this legislation containing all the other words in sec-
tion 1532 (19). I am, therefore, unwilling to accept
the Service's definition in the present case, no matter
how well intended.
Because I would void the regulation at this early
stage, I would not reach the void-for-vagueness claim.
I would observe, however, that I do not see how a
definition as boundless as the agency conceives for the
word "take" and the component "harm" of its defini-
tion could readily avoid being impermissible vague.
I respectfully dissent.

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APPENDIX C

UNITED STATES DISTRICT COURT
DISTRICT OF COLUMBIA

Civ. A. No. 91-1468

SWEET HOME CHAPTER OF COMMUNITIES
FOR A GREAT OREGON, ET AL., PLAINTIFFS
      
v.

MANUAL LUJAN, JR., Secretary of the Interior, JOHN
F. TURNER, Director, U.S. Fish and Wildlife
Service, DEFENDANTS

May 29, 1992

MEMORANDUM OPINION

NORMA HOLLOWAY JOHNSON, District Judge.

Plaintiffs are various organizations, businesses and
individuals, who depend directly or indirectly on the
timber industry in the Pacific Northwest and in the
Southeast for their livelihood. They challenge two
regulations promulgated by the Secretary of the In-
terior ("the Secretary") as contrary to the Endan-
gered Species Act ("ESA"), 16 U.S.C. 1531-1544
(1988). They also claim that one of these regulations
is void for vagueness. Currently pending before the
Court are the parties' cross-motions for summary
judgment. The parties agree that there are no genu-
ine disputes of material fact and that this case raises
purely legal issues. After careful consideration of the

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74a

submission of the parties and the entire record
herein, and for the reasons outlined below, the Court
will grant defendants' motion for summary judgment
and deny plaintiffs' motion for summary judgment.

REGULATORY AND FACTUAL BACKGROUND

The Endangered Species Act, 16 U.S.C. 1531-
1544 (1988), was enacted by Congress in 1973 to pro-
vide a program for the conservation of endangered
species and threatened species and for the preservation
of their ecosystems. 16 U.S.C. 1531(b). Section 4
of the ESA directs the Secretary to designate species
of fish, wildlife, or plants as "endangered" or "threat-
ened" in accordance with certain procedures. 16
U.S.C. 1533(a)(1). The Secretary is also empow-
ered to designate "critical habitat" for such listed
species and to develop recovery plans for their sur-
vival. 16 U.S.C. 1533(a)(3), 1533(f).
The ESA prohibits certain activities with respect to
species that are designated as endangered or threat-
ened. Section 7(a)(2) of the ESA, which applies
only to federally-authorized actions, requires all fed-
eral agencies to insure that their activities will not
"jeopardize the continued existence of any endan-
gered species or threatened species or result in the
destruction or adverse modification of habitat of such
species which is determined by the Secretary. . . to be
critical . . . . " 16 U.S.C. 1536(a)(2).
Section 9 of the ESA, which applies to both federal
and nonfederal actors, addresses prohibited actions
with respect to endangered species only. At issue in
this case is the scope of the "take" provision, 1538
(a)(1)(B), which makes it unlawful for any person
to "take any [endangered] species within the United
States." The ESA defines "take" as follows:

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75a

The term "take" means to harass, harm, pursue,
hunt, shoot, wound, kill, trap, capture, or collect,
or to attempt to engage in any such conduct.

16 U.S.C. 1532(19). Although the ESA does not
define the terms within this definition any further,
the Secretary has promulgated a regulation defining
the word "harm" as follows:

Harm in the definition of "take" in the Act
means an act which actually kills or injures wild-
life. Such act may include significant habitat
modification or degradation where it actually
kills or injures wildlife by significantly impair-
ing essential behavioral patterns, including
breeding, feeding, or sheltering.

50 C.F.R. 17.3 (1991).

The prohibition against "takings" set out in 1538
(a)(1) applies only to those species listed as endan-
gered. However, section 4(d) of the ESA allows the
Secretary to extend some or all of the protections in
1538(a)(1) to threatened species as well:

Whenever any species is listed as a threatened
species . . ., the Secretary shall issue such regula-
tions as he deems necessary and advisable to pro-
vide for the conservation of such species. The
Secretary may by regulation prohibit with re-
spect to any threatened species any act prohibited
under section 1538(a)(1) of this title, in the
case of fish or wildlife . . . . 

16 U.S.C.  1533(d). Pursuant to this section, the
Secretary has adopted a regulation which extends the
prohibitions listed in  1538(a) (1), including the
prohibition against "takings," to all wildlife species
listed as threatened:

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76a

Except as provided in subpart A of this part, or
in a permit issued under this subpart, all of the
provisions in $17.21 [which restates the prohibi-
tions outlined in 16 U.S.C.  1538(a) (1)] shall
apply to threatened wildlife, except  17.21(c)
(5).

50 C.F.R.  17.31(a) (1991).

Plaintiffs in this action are small landowners, small
logging companies, and families allegedly dependent
on the forest products industry in the Pacific North-
west and in the Southeast. In order to enforce the
regulations at 50 C.F.R. 17.3 and  17.31(a) and
to avoid "harm''-type takings of the northern spotted
owl and other threatened wildlife species, the Fish
and Wildlife Service ("FWS") has placed restric-
tions on timber harvesting. Plaintiffs claim that these
restrictions have forced them to lay off employees,
limited their income from trust lands, reduced the
timber supply, and placed some of the plaintiffs in
the position of being unable to support their families.
They bring this action challenging the "harm" defini-
tion at 50 C.F.R. 17.3 as contrary to the ESA and
void for vagueness. Plaintiffs also challenge the Sec-
retary's regulation at 50 C.F.R. 17.31(a), extend-
ing the protections for endangered species to threat-
ened species, as contrary to the ESA.
     
DISCUSSION

In reviewing an agency's construction of a statute,
a court must first determine "whether Congress has
directly spoken to the precise question at issue. If
the intent of Congress is clear, that is the end of the
matter." Chevron, U.S.A., Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837, 842, 104 S. Ct.

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77a

2788, 2781, 81 L.Ed.2d 694 (1984). Where the stat-
ute and the intent behind it are ambiguous with re-
spect to a matter at issue, however, a court must de-
cide whether the agency's construction of the statute
is "based on a permissible construction of the stat-
ute." Chevron, 467 U.S. at 843, 104 S. Ct. at 2782.
A court may not substitute its own construction of
a statutory provision if the agency's interpretation is
"reasonable." Id. at 844, 104 S.Ct. at 2782.

A. The Definition of "Harm" at 50 C.F.R.  17.3

1. 17.3 Does Not Violate the ESA

The Secretary's regulation at 50 C.F.R. 17.3 de-
fines "harm" to mean "an act which actually kills
or injures wildlife"; the harm definition in 17.3
includes "significant habitat modification or degrada-
tion where it actually kills or injures wildlife." Plain-
tiffs argue that, by establishing habitat modification
as a form of harm, this regulatory definition goes
beyond the definition that Congress intended for the
term "take." Under the ESA, the term "take" means
"to harass, harm, pursue, hunt, shoot, wound, kill,
trap, capture, or collect, or to attempt to engage in
any such conduct." 16 U.S.C. 1532(19). Congress
made clear that the definition of "take" was to be
interpreted "in the broadest possible manner to in-
clude every conceivable way in which a person can
'take' or attempt to 'take' any fish or wildlife." S.
Rep. No. 307, 93d Cong., 1st Sess. 7 (1973). See also
H.R.Rep. No. 412, 93d Cong., 1st Sess. 11, 15 (1973)
("'Take' is defined broadly"; prohibition against
"takings" in Section 9 of ESA "includes, in the
broadest possible terms, restrictions on the taking,

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78a

importation and exportation, and transportation of
[endangered] species.")
Notwithstanding this clear intent by Congress to
give an expansive definition to the term "take," plain-
tiffs insist that Congress did not intend the term to
reach habitat modification. In support of this conten-
tion, plaintiffs make three principal arguments.
First, plaintiffs point out that the original ESA bill
which was referred to the Senate Committee on Com-
merce, S. 1983, defined "take," with respect to fish or
wildlife, to include "destruction, modification, or cur-
tailment of its habitat or range." The fact that the
bill was reported out of committee without any refer-
ence to habitat modification in the definition of "take"
is an indication, plaintiffs argue, that the Senate in-
tended the scope of the word "take" not to encom-
pass habitat modification.
Plaintiffs are asking this Court to engage in specu-
lation about legislative intent. The Court acknowl-
edges that S. 1983 offered a different definition of
the word "take" than the one that was subsequently
adopted by the Senate Committee on Commerce.
However, the Court notes that S. 1983 was only one
of two endangered species bills under consideration
by the Senate Committee on Commerce at that time.
The other bill, S. 1592, defines "take" exactly as it
now appears in the statute. From this legislative his-
tory, the Court can conclude no more than that the
Senate chose to adopt the definition in one bill over
that in another. There is absolutely nothing in the
legislative history of the ESA to indicate that the
Senate rejected the definition in S. 1983 specifically
because it wanted to exclude habitat modification
from the definition of take. In fact, the Senate Re-

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79a

port indicates just the opposite, that "take" was being
defined "in the broadest possible manner."
It may be, as defendants suggest, that the Senate
rejected the definition of "take" in S. 1983 because it
did not want habitat modification per se to constitute
a taking; or it may be that the Senate chose to leave
the decision of whether to define takings to include
habitat modification in the hands of the Secretary.
However, the Court will not rely upon such specula-
tion to deduce legislative intent.
Plaintiffs' second argument is that Congress in-
tended to address the problem of habitat modification
exclusively through federal land acquisition, not
through the take provision. Section 4 of the ESA
grants the Secretary the authority to utilize land ac-
quisition measures to carry out conservation pro-
grams for endangered and threatened species. See
16 U.S.C. 1534. However, nothing in the language
of 1534 or in the legislative history of the land
acquisition provision suggests that Congress intended
land acquisition to be the exclusive protective mecha-
nism for listed species' habitat. The language and
legislative history of 1534 clearly indicate that Con-
gress considered land acquisition a critical tool in pre-
serving habitat, but they do not suggest that Con-
gress intended it to be the only tool. See 16 U.S.C.
1534(a)(1) ("To carry out such a program [of
species conservation], the appropriate Secretary shall
utilize the land acquisition and other authority . . .) ;
H.R. Conf.Rep. No. 740, 93d Cong., 1st Sess. 25
(1973) ("Any effective program for the conservation
of endangered species demands that there be adequate
authority vested in the program managers to acquire
habitat which is critical to the survival of those spe-
cies."); S.Rep. No. 307, 93 Cong., 1st Sess. 4 (1973)

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80a

("Often, protection of habitat is the only means of
protecting endangered animals which occur on non-
public lands.")
Finally, plaintiffs argue that the amendment which
added the term "harm" to the ESA definition of
"take" was a technical amendment which was never
debated and should therefore not be interpreted ex-
pansively. See 119 Cong.Rec. 25, 682-83 (1973)
(clarifying amendments offered by Senator Tunney).
Plaintiffs' argument itself relies upon an unwar-
ranted expansive reading of the Secretary's regula-
tion. Plaintiffs claim that the 17.3 definition of
"harm," unlike every other component of the "take"
definition, "allows land use or habitat modification
actions to be barred as takings." Plaintiffs' Mem. for
Summary Judgment at 21. The Secretary correctly
points out, however, that not all habitat modification
actions constitute "harm" under the 17.3 definition;
rather, only an action which "actually kills or injures
wildlife" falls into the category of "harm." The Sec-
retary's definition thus requires proof of actual kill-
ing or injury to wildlife, consistent with the ESA's
definition of "take."
The Court concludes that the Secretary's definition
of harm at 17.3 is entirely consistent with the
ESA's definition of take. Congress made clear that
it was defining "take" extremely broadly, "to include
 every conceivable way in which a person can 'take'
or attempt to 'take.'" S.Rep. No. 307, at 7. Courts
interpreting the "take" definition have consistently
upheld the Secretary's definition of "harm" under the
ESA. See TVA v. Hill, 437 U.S. 153, 184-85 n. 30,
98 S.Ct. 2279, 2297 n. 30, 57 L.Ed.2d 117 (1978) ;
Palila v. Hawaii Dep't of Land & Natural Resources
(Palila I), 471 F.Supp. 985 (D.Haw.1979), aff'd,   

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81a

639 F.2d 495 (9th Cir. 1981) 1.; Palila v. Hawaii
Dep't of Land & Natural Resources (Palila II), 852
F.2d 1106 (9th Cir. 1982).
It is worth noting that, in 1982, when Congress re-
authorized the ESA and amended certain of its pro-
visions, Congress was aware of these court decisions.
See Endangered Species Act of 1973: Hearings Be-
fore the Subcomm. on Fisheries and Wildlife Conser-
vation and the Environment of the House Comm. on
Merchant Marine and Fisheries (hereinafter "Hear-
ings"), 97th Cong., 2d Sess. 291, 329, 331, 343
(1982). Moreover, the precise question at issue in
this case arose in the House hearings on the proposed
reauthorization bill. One panelist before the subcom-
mittee, Ken Berlin of the National Audubon Society,
pointed out that industry groups had been seeking
to remove the word "harm" from the ESA's definition
of "take" because they disagreed with the Secretary's
interpretation of that word to include habitat modifi-
cation. Hearings, at 290. In response to subsequent
questioning by Congressman Edwin B. Forsythe,
Robert Carlton of the National Forest Products As-
sociation and Mr. Berlin specifically addressed the
issue of whether the statutory definition of "take"
was intended to include habitat modification. Hear-

___________________(footnotes)

1 Both the TVA v. Hill and Palila I decisions were issued
when a prior version of the Secretary's regulation was in
effect; that prior version also defined "harm" to include
habitat modification. The Secretary revised the language of
the harm definition in 1981, but without changing its basic
meaning. The final regulation simply clarified that habitat
modification would not be considered a taking unless there
was proof of attendant death or injury. See 46 Fed.Reg.
54,748 (November 4, 1981).

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82a

ings, at pp. 342-43. Rather than argue about statu-
tory interpretation, Congressman William J. Tauzin
turned the panelists' attention to the exemption proc-
ess in Section 10(a) of the ESA, and the discussion
subsequently focused on amending that section to pro-
mote its efficiency. Id. at 344-46. The reauthorization
bill that was eventually adopted by Congress did not
amend the original definition of "take" to exclude the
word "harm" or to correct the Secretary's definition
of that term. Instead, it amended the provisions of
the Section 10(a) permit process "to encourage crea-
tive partnerships between the public and private sec-
tors and among governmental agencies in the interest
of species and habitat conservation." H.Rep. No. 835,
97th Cong., 2d Sess. 30 (1982).
Finally, the structure of the ESA supports the
Court's conclusion that Congress intended "take" to
be interpreted broadly, even to include habitat mod-
ification. Plaintiffs suggests that the 17.3 definition
of "harm" to include habitat modification makes the
land acquisition provision of the ESA largely super-
fluous. However, as defendants point out, there is
considerable overlap in the ESA between different
provisions of different sections of the ESA, and this
overlap is completely consistent with the statute's
purpose of attacking the issue of conservation as ag-
gressively as possible. The land acquisition provision
of Section 5 offers a solution to the problem of habi-
tat modification through federal spending; the take
prohibitions of Sections 7 and 9 offer solutions
through civil and criminal sanctions.
The Court thus concludes that the language, struc-
ture and history of the ESA reveal that Congress in-
tended an expansive interpretation of the word
"take," an interpretation that encompasses habitat

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83a

modification. However, even if the Court were some-
how to find the ESA "silent or ambiguous" with re-
spect to this issue, it would nevertheless uphold the
Secretary's regulation as a reasonable interpretation
of the statute. Chevron, 467 U.S. at 843, 104 S. Ct.
at 2781.
Plaintiffs have not addressed the question of the
reasonableness of the Secretary's regulation under
the second part of the Chevron test. In light of the
statute's broad definition of "take," and the absence
of any explicit language in the legislative history
precluding habitat modification from the scope of
that definition, the Court cannot conclude that 17.3
is an impermissible construction of the statute. Were
the Court to reach the second step in chevron, there-
fore, it must defer to the Secretary's interpretation.

2. 17.3 Is Not Void for Vagueness

Plaintiffs also claim that the Secretary's definition
of "harm" violates the Fifth Amendment's due proc-
ess guarantee against vague regulations. This con-
stitutional challenge is purely facial; plaintiffs do not
allege that they are being threatened with actual
criminal enforcement of the regulation.
In general, the void for vagueness doctrine "re-
quires that a penal statute define the criminal offense
with sufficient definiteness that ordinary people can
understand what conduct is prohibited and in a man-
ner that does not encourage arbitrary and discrim-
inatory enforcement." Kolender v. Lawson, 461 U.S.
352, 357, 103 S. Ct. 1855, 1858, 75 L. Ed.2d 903
(1983). The primary purpose of the doctrine is to
provide citizens with actual notice of offensive con-
duct, to prevent arbitrary enforcement of criminal
laws, and to ensure that such laws establish minimal

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84a

guidelines to govern law enforcement. Id. at 358,
103 S.Ct. at 1858.
Defendants argue that, in order to succeed in their
vagueness challenge, plaintiffs must demonstrate that
the regulation is impermissible vague in all of its
applications. They point out that this is a facial chal-
lenge which does not implicate any "constitutionally
protected conduct" such as expressive rights under
the First Amendment. Village of Hoffman Estates v.
Flipside, Hoffman Estates, 455 U.S. 389, 494, 102
Ct. 1186, 1191, 71 L.Ed.2d 362 (1982). Plaintiffs
insist that 17.3 implicates private property rights
protected by the Fifth Amendment, and that there-
fore the broad standard of proof for vagueness out-
lined in Flipside should not apply to their "constitu-
tionally protected conduct."
The Court agrees with plaintiffs that 17.3 im-
plicates private property rights protected under the
Fifth Amendment. It cannot, however, conclude that
such Fifth Amendment interests constitute "constitu-
tionally protected conduct" within the meaning of
Flipside. Rather, the Court must apply the familiar
standard outlined in United States v. Mazurie, 419
U.S. 544, 550, 95 S. Ct. 710, 714, 42 L.Ed.2d 706
1975): "[V]agueness challenges to statutes which
do not involve First Amendment freedoms must be
examined in the light of the facts of the case at
hand."
The facts of this case establish that the challenged
regulation is not void for vagueness. The definition
of "harm" found at 17.3 clearly limits prohibited
conduct to that which "actually kills or injures wild-
life." 50 C.F.R. 17.3. Furthermore, the regulation
prohibits only "significant habitat modification or
degradation," expressly defined as modification or

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85a

degradation which "actually kills or injures wildlife
by significantly impairing essential behavioral pat-
terns, including breeding, feeding or sheltering." Id.
(emphasis added) As defendants point out, the de-
termination of whether there has been a violation
of this regulation requires an evaluation of the spec-
ies involved, the biological needs of that species, and
the degree of habitat modification, all of which are
readily ascertainable. Moreover, the regulation itself
requires a finding that actual death or injury to a
species has occurred. The terms of the regulation
thus clearly provide more than "minimal guidelines"
and are sufficiently clear to put a party on notice of
prohibited conduct.
Finally, in order to establish a violation of the
ESA under this regulation or any other, the govern-
ment must prove that the charged party knowingly
committed the violation. See 16 U.S.C. 1540(a) &
(b). This intent requirement goes a long way to-
wards vitiating vagueness concerns, since it elimi-
nates the possibility that a person will be prosecuted
for conduct which he or she did not know was unlaw-
ful. Nor have plaintiffs offered any evidence, other
than hypothetical possibilities, that the FWS is en-
forcing this regulation in an arbitrary and discrim-
inatory manner. The Court therefore concludes that
17.3 is not impermissible vague.

B. The Extension of the Taking Prohibitions at 50
C.F.R. 17.31(a)

The Secretary's regulation at 50 C.F.R. 17.31 (a)
extends to threatened species all the protections that
the ESA affords to endangered species. This regu-
lation was promulgated under the authority set out

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86a

in Section 4(d) of the ESA, which states in pertinent
part:

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

16 U.S.C. 1533(d). Plaintiffs argue that 4(d)
imposes limitations on the Secretary's ability to ex-
tend the taking prohibitions for endangered species
to threatened species. First, they claim that 4(d)
allows such extensions only on a species-by-species
basis. Second, they argue that 4(d) requires any
such regulation to be accompanied by an explicit
finding that the extension is "necessary and advis-
able" for the conservation of the threatened species.
The Court cannot accept plaintiffs' arguments. The
plain language of the ESA clearly grants the Secre-
tary the authority to promulgate a regulation such as
17.31(a). Where a statute is clear and unequivocal
on its face, a court's decision may rest on the words
of the statute itself, at least where it is not manifestly
inconsistent with legislative intent.  Gatewood v.
Washington Healthcare Corp., 933 F.2d 1037, 1040
(D.C. Cir. 1991); Aviation Consumer Action Project
v. Washburn, 535 F.2d 101, 106 (D.C. Cir. 1976). In
this case, the language of the statute allows the Sec-
retary to "prohibit with respect to any threatened
species any act prohibited under section 1538 (a)(1)
of this title." 16 U.S.C. 1533(d) (emphasis added).

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87a

The word "any" encompasses the entire range of
threatened species and prohibited acts which the Sec-
retary might consider. It allows the Secretary to pro-
hibit one act with respect to one threatened species or
as many as all acts with respect to all threatened
species.
Nothing in the language or legislative history of
the statute requires the Secretary to promulgate regu-
lations under 4(d) on a species-by-species basis. On
the contrary, the statute gives the Secretary broad
discretion to issue regulations "as he deems necessary
and advisable." Plaintiffs' reading of this phrase as
a requirement that the Secretary must issue some
kind of "necessary and advisable" findings in con-
junction with any promulgated regulation completely
distorts the statutory language. The Secretary is not
required to issue findings under 4(d); he is re-
quired to issue regulations. To interpret the phrase
as plaintiffs suggest would be to rewrite the statute.
The legislative history of the ESA offers no evi-
dence that the Court's plain reading of the language
of 4(d) is "manifestly inconsistent with legislative
intent." Gatewood, 933 F.2d at 1040. While the leg-
islative record does contain statements which suggest
that the Secretary would, under 4(d), draft regula-
tions on an individual basis for each threatened
species, there is nothing in the record to suggest that
he is required to do so. In fact, the Senate Report
evidences Congress' awareness of, and acquiescence
in, a more sweeping use of 4(d). See S.Rep. No.
307, 93d Cong., 1st Sess. 8 (1973) (allowing the Sec-
retary to make "any or all" of the acts prohibited for
endangered species also prohibited as to threatened
species.

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88a

The Court thus concludes that 17.31 (a) is not
contrary to the ESA.

CONCLUSION

The Court concludes that both of the regulations
challenged in this action, 50 C.F.R. 17.3 and 50
C.F.R. 17.31(a), are consistent with the ESA. Fur-
thermore, 17.3 is not void for vagueness. The Court
thus will grant defendants' motion for summary judg-
ment and deny plaintiffs' motion for summary judg-
ment. An Order consistent with this Memorandum
Opinion will be entered on this date.

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89a
       
APPENDIX D

UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Filed August 12, 1994

No. 92-5255

SWEET HOME CHAPTER OF COMMUNITIES
FOR A GREAT OREGON, ET AL., APPELLANTS
        
v.

BRUCE BABBITT, SECRETARY OF INTERIOR, ET AL.

On Appellees' Petition for Rehearing and
Suggestion for Rehearing En Banc

Before: MIKVA, Chief Judge; WILLIAMS and SEN-
TELLE, Circuit Judges.
        
ORDER

Upon consideration of appellees' petition for re-
hearing, the response thereto, and the reply, it is

ORDERED, by the Court, that the petition is
denied.           

Per Curiam

Chief Judge MIKVA would grant the petition for
rehearing and joins in the statement by Circuit Judge
SILBERMAN dissenting from the Court's denial of ap-
pellees' suggestion for rehearing en bane.
A statement of Circuit Judge WILLIAMS, joined in
by Circuit Judge SENTELLE, is attached.

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90a

Before: MIKVA, Chief Judge, WALD, EDWARDS,
SILBERMAN, BUCKLEY, WILLIAMS, GINSBURG, SEN-
TELLE, HENDERSON, RANDOLPH, and ROGERS, Circuit
Judges.      

ORDER

Appellees' suggestion for rehearing en banc, the
response thereto, and the reply, have been circulated
to the full Court. The taking of a vote thereon was
requested. Thereafter, a majority of the judges of
the Court in regular active service did not vote in
favor of the suggestion. Upon consideration of the
foregoing, it is

ORDERED, by the Court en banc, that the sug-
gestion is denied.        

Per Curiam

Chief Judge MIKVA and Circuit Judges WALD, SIL-
BERMAN, and ROGERS would grant the suggestion for
rehearing en banc.
Separate statement filed by Circuit Judge SILBER-
MAN, dissenting from the denial of rehearing en banc.
WILLIAMS, Circuit Judge. In seeking rehearing,
the government offers a number of ill-founded cri-
tiques of the panel opinion, 17 F.3d 1463 (D.C. Cir.
1994).
1. The government suggests broadly that the panel
found the harm regulation, 50 C.F.R. 17.3, invalid
on the basis of false assumptions as to its meaning.
See Petition for Rehearing and Suggestion for Re-
hearing En Banc 6-9. Specifically, the government
contends that the panel (a) disregarded the regula-
tion's requirement that the habitat modification in-
volve "affirmative action which creates death or dis-
turbance to essential behavioral patterns with sig-

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91a

nificant and permanent, injurious effects", Petition
at 8, and (b) manifested its misunderstanding of the
regulation by referring to third parties' claims made
about necessary grizzly bear habitat, id. at 8-9.
It is the government that misrepresents the regula-
tion. The Department of Interior in fact requires no
"affirmative action." Quite the contrary. The De-
partment carefully specified that there was no need
to refer expressly to omissions because the text as a
whole make clear that omissions were embraced as
fully as acts of commission. Final Redefinition of
"Harm", 46 Fed. Reg. 54,748, 54,750 (Nov. 4, 1981)
("the phrase 'or omission' was deleted since the Serv-
ice feels that 'act' is inclusive of either commissions
or omissions which would be prohibited by section
9"). The Department inserted the word "actually"
before "kills or injures " in its redefinition of harm
merely to underscore the need for a causal link-a
showing that the "significant and permanent effects"
on the species have been "due to a party's action."
Id. at 54,749.
Further, the grizzly example cited in the text, 17
F.3d at 1465, makes quite clear that the panel under-
stood that the regulation addressed habitat modifica-
tions that would be fatal to members of the species.
It refers to a contention that "'as many as 35 million
to 42 million acres of land are necessary to the sur-
vival of grizzlies'.". Id. (emphasis added). If that
habitat is "necessary to [the grizzlies'] survival",
then any material curtailment must involve death for
members of the species. 1
2. The government argues that the panel mis-
stated the legislative history when it suggested a

___________________(footnotes)

1 Equally clearly, the panel did not endorse the specific
claim of what acreage may actually be "necessary".

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92a

parallel between the ban on habitat modification re-
tained in the Act as applied to federal government
actors, 17 F.3d at 1466, and the "habitat modifica-
tion" explicitly deleted from the draft provision gov-
erning private actors, id. at 1467. See Petition at 8.
The panel made the point both in noting the appar-
ent structure of the Act (contrasting the imposition
of "very broad burdens" on a narrow segment of so-
ciety, the federal government, and relatively narrow
burdens on all others), and in suggesting the sig-
nificance of the Senate Committee's deletion of the
bill's reference to "habitat modification" as one of the
ways in which a person might "take" members of an
endangered species. The suggested parallelism is
false, says the government, because the statutory ban
on habitat modification by federal agencies is far
broader, reaching such modifications "whether de-
struction of the habitat would actually kill or injure
the species". Petition at 8.
Again the government misrepresents. The panel
quoted the provision applying to the government, "de-
struction or adverse modification of habitat . . . which
is determined . . . to be critical",  7(a) (2), Endan-
gered Species Act, 16 U.S.C.  1536(a) (2) (empha-
sis added (quoted in 17 F.3d at 1466). The statute
in turn defines "critical habitat" in terms of char-
acteristics "essential to the conservation of the
species", 16 U.S.C. 1532(5)(A)(i) & (ii) (empha-
sis added), which seems to be simply another way of
referring to habitat modifications so significant to
the species that they might lead to death (or at least
some very serious injury) for members of the species.
In looking at the Department's regulations discuss-
ing modifications of "critical" habitat under  7, and
habitat modifications that are forbidden under the
Department's view of 9, we are unable to discern
any substantive, operational difference, and the gov-

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93a

ernment has not identified any. Compare, e.g., 50
CFR 17.94 (regulations implementing 7 preclude
"destruction or adverse modification of the constitu-
ent elements essential to conservation of the listed
species") (emphasis added) with 46 Fed. Reg.
54,748, 54,750 ("[t]o 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") (emphasis in original). If there are "es-
sential" habitat elements whose removal or destruc-
tion causes no injury, the government cites no ex-
ample and it is hard to imagine one. Michael Bean,
Senior Counsel for the Environmental Defense Fund,
recognized the virtual identity between what the Sen-
ate deleted from 9 and what it retained in 7 when
he wrote, not long after the Act passed, "if 'taking'
comprehends habitat destruction, then it is at least
doubtful whether Section 7 of the Act is even neces-
sary. " Michael J. Bean, The Evolution of National
Wildlife Law 397 (1977). But see Michael J. Bean,
The Evolution of National Wildlife Law 342 (Re-
vised & Expanded Edition 1983).
To the extent that there may be some theoretical
difference between habitat modification under 7 and
under the Department's regulations purporting to im-
plement 9, practical realities limit its role to pure
theory. As noted in the panel opinion, 10(a) author-
izes the advance issuance of permits for "incidental
taking". 17 F.3d at 1467-68. As a practical matter,
persons whose extended conduct might be found a
"take", and who thus are exposed to the criminal
penalties of 16 U.S.C. 1540(b) (see also 18 U.S.C.
3559(a) (6), 3571(b) & (e)), are under command-
ing pressure to comply with 10(a) plans. The De-
partment recognizes this reality. "Much of the pri-

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94a

vate land which would be covered by the long-term
HCP [habitat conservation plan] cannot be developed
due to the prohibitions of section 9 of the Act. In
order for many planned development projects to pro-
ceed in compliance with the Act, a permit for inci-
dental take must be obtained." Notice of Intent to
Prepare an Environmental Impact Statement to Allow
Incidental Take of the Threatened Desert Tortoise
(Gopherus agassizii) Under Section 10(a)(1)(B) of
the Endangered Species Act and Notice of Public
Meetings, 59 Fed. Reg. 5439 (Feb. 4, 1994). And
the Department explicitly recognizes the restrictions
that it imposes under 10(a) as "equivalent" to
those it imposes under 7 to protect "critical
habitat". See Special Rule Concerning Take of the
Threatened Coastal California Gnatcatcher, 58 Fed.
Reg. 65,088, 65,089-90 (Dec. 10, 1993) (taking per-
mitted under 10(a) plan for California gnatcatcher
"will not appreciably reduce the likelihood of survival
and recovery of the gnatcatcher in the wild. This
criterion is equivalent to the regulatory definition of
'jeopardy' under section 7(a)(2) of the Act") (em-
phasis added). 2
3. To the extent that the government seeks to con-
vey the impression that its enforcement of the harm
regulation never entails the exercise of power over
large tracts of land, the impression is false. The De-
partment's 10(a) plans, into which 9 collapses de
facto, are often sweeping. The plan to protect the

___________________(footnotes)

2 Technically the restrictions were under 4(d) of the Act,
15 U.S.C. 1533(d), because the gnatcatcher is not an en-
dangered but a "threatened" species. But the Department by
regulation has made the anti-take provisions fully applicable
to threatened species, so the rule in effect implements 9
(through the lens of 10(a)). See Sweet Home Chapter v.
Babbitt, 1 F.3d 1, 5-8 (1993).

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95a

California gnatcatcher, for example, covers 3.8 mil-
lion acres. Special Rule Concerning Take of the
Threatened Coastal California Gnatcatcher, 58 Fed.
Reg. at 65,090. 

*  *  *  *  *

The government faults the panel for failing to
specify whether the regulation's excess of statutory
authority failed under the first or second "step" of
the analysis set forth in Chevron U.S.A. Inc. v.
NRDC, 467 U.S. 837 (1984), Petition at 9-10, and in
a more general way for failing to give the agency the
deference that is its due under Chevron. Because the
court in determining whether Congress "unambigu-
ously expressed" its intent on the issue, see 467 U.S.
at 843, is to employ all the "traditional tools of statu-
tory construction", INS v. Cardoza-Fonseca, 480 U.S.
421, 446 (1987), the factors involved in the first
"step" are also pertinent to whether an agency's in-
terpretation is "reasonable". Thus the exact point
where an agency interpretation falls down may be
unclear. (Indeed, the Chevron Court itself never
specified which step it was applying at any point in
its analysis, see 467 U.S. at 859-66.)
Nonetheless, we conclude that the statute, fairly
read in the light of the "traditional tools of statutory
interpretation", manifests a clear determination by
Congress that the prohibition of 9 should not reach
habitat modifications as defined by the Department,
where there is no direct action by the defendant
against any member of the species. Extending the
word "harm" to reach habitat modification as so con-
ceived carries 9's prohibition far beyond the reach
effected by all the other terms used in the definition;
it applies to every citizen duties the Act expressly im-

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96a

posed only on federal government agencies; and it
ignores the plausible inferences from the Senate's
deletion of the phrase "habitat modification" from
the draft bill. The extension vests the Department
with authority to supervise the use of privately owned
land in vast tracts of the United States, even to the
point of forbidding modest clearing efforts conducted
in the interest of fire protection in populated areas.
See Determination of Threatened Status for the
Coastal California Gnatcatcher, 58 Fed. Reg. 16,742,
16,753 (March 30, 1993); Determination of Endan-
gered Status for the Delhi Sands Flower-loving Fly,
58 Fed. Reg. 49,881, 49,884-86 (Sept. 23, 1993) (de-
struction of species habitat by removal of native
vegetation for fire prevention on private land could
be interpreted to constitute take); (fly "rare to ab-
sent" in former habitat sites currently "degraded by
ongoing soil disturbances, caused by grading, plowing,
discing, to remove vegetation for fire control, and
off-road vehicle use", id, at 49,884/3-85/1/ destruc-
tion of habitat "could be interpreted to constitute
take", id. at 49,886/2). Congress clearly did not hang
so massive an expansion of government power on so
slight a nail as 9's provision that no one should
"harass, harm, pursue, hunt, shoot, wound, kill, trap,
capture, or collect" an endangered species.
The petition for rehearing is

Denied.

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97a

SILBERMAN, Circuit Judge, dissenting from the
denial of rehearing en banc, with whom MIKVA, Chief
Judge, and WALD, Circuit Judge, join: I find this
case quite troublesome, as much for what is not ar-
gued by the parties, and therefore not discussed by
the court, as for what is. Keeping in mind that we
are dealing with a criminal statute, I am not at all
sure that Chevron even governs our review. Cf.
United States v. Thompson/Center Arms Co., 112
S. Ct. 2102, 2110 & nn.9 & 10 (1992) (plurality
opinion). That is to say, the chevron presumption-
that Congress has delegated to the administrating
agency primary authority to reconcile ambiguities in
statutory language-may not apply when the statute
contemplates criminal enforcement. Cf. Kelley v.
EPA, 15 F.3d 1100, 1007 (D.C. Cir. 1994). The peti-
tioner does not raise that concern, but it surely is not
a separate claim that the petitioner has affirmatively
waived.
It is, therefore, not necessary in order to direct
briefing on that question to rely on United States
Nat'l Bank v. Independent Ins. Agents, Inc., 113
S. Ct. 2173 (1993), in which the Supreme Court pro-
claimed unrestrained judicial discretion to decide any
issue analytically anterior to the controversy before
it, even if the plaintiff affirmatively waived the claim
(which means, I gather, in the typical contract breach
suit where both parties agree that the contract was
formed but dispute only whether there was a breach,
a federal court can, sua sponte, force the parties to
litigate whether the contract was actually formed).
Since the Court did not even purport to announce a
rule governing this sort of discretion (which some
might think implies that its opinion on this issue is
not even law), I take it that no federal judge is bound

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98a

to exercise the discretion that the Supreme Court ob-
viously wished to preserve for itself. 1
Indisputably, however, ripeness issues which go to
our jurisdiction should be raised by a federal court
sua sponte, and I rather doubt the ripeness of the
appellant's facial challenge to the Department of In-
terior regulation. I can imagine a string of hypothet-
icals which range from "habitat modifications" that
are sufficiently close to the core concept that the ma-
jority believes animates the statutory language as to
be surely included within the word "harm" to ones
that seem clearly inconsistent with the statute. Sup-
pose, for example, that someone wished to kill all the
birds on a particular piece of property and could do
so by draining a marsh. If that person did so, would
not his actions properly be thought to "harm" the
endangered species?
Assuming the challenge to the regulation is ripe
and that Chevron controls our review, I think the
Chief Judge has the better of the argument. Were I
interpreting this statute with deference, given its
language and legislative history, I would certainly be
troubled about any construction that might preclude
a landowner from using his property for ordinary
purposes just because it could be thought that an
endangered species was somehow disadvantaged. I
do not think, however, that the majority has sub-
mitted to the discipline of the Chevron framework
and given the Department of Interior its due defer-

___________________(footnotes)

1 It has recently been suggested that the Supreme Court
is really a quasi-judicial institution. See Thomas W. Merrill
(the John Paul Stevens Professor at Northwestern), A Mod-
est Proposal For a Political Court, 17 Harv. J.L. & PUB.
POL'Y, 137, 139 (1994).

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99a

ence. It was certainly not apparent whether the ma-
jority's initial opinion rested on Chevron Step I or
Step II. In its response to the government's petition
for rehearing, the panel majority appears to shift
perceptibly to a Step I "clear determination by Con-
gress," against which no deference to the agency's
interpretation is appropriate. I do not find in either
the statutory language or the legislative history any
such fixed view. And at the second step (which is
where I would analyze the case), maxims of statutory
construction like noscitur a sociis, although not totally
irrelevant, certainly have less force. See Michigan
Citizens for an Indep. Press v. Thornburgh, 868 F.2d
1285, 1292-93 (D.C. Cir.), aff'd per curiam by an
equally divided court, 493 U.S. 38 (1989). I quite
agree with the panel that "the factors involved in the
first 'step' are also pertinent to whether an agen-
cy's interpretation is 'reasonable,' " see Silberman,
Chevron-The Intersection of Law & Policy, 58 GEO.
WASH. L.Rev. 821, 827 (1990) ; but when thinking
of the statute at that second step, one must assume
that the statute has more than one plausible construc-
tion as it applies to the case before you. If the agency
offers one-it prevails.
In any event, the issue would seem of sufficient im-
portance, particularly in light of the circuit split, cf.
Palila v. Hawaii Dep't of Land and Natural Re-
sources, 852 F.2d 1106 (9th Cir. 1988), to warrant
en bane treatment.

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100a

APPENDIX E

[Filed Mar. 11, 1994]

UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 92-5255

SWEET HOME CHAPTER OF COMMUNITIES
FOR A GREAT OREGON, ET AL., APPELLANTS

v.

MANUEL LUJAN, JR., Secretary of Interior, ET AL.

BEFORE: Mikva, Chief Judge; Williams and Sen-
telle, Circuit Judges

ORDER

Upon consideration of appellant's petition for re-
hearing and of the response thereto, it is

ORDERED, by the Court, that the petition is
granted, as is set forth in the opinion of the court
filed herein this date.

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101a

Per Curiam

FOR THE COURT:
RON GARVIN
Clerk

By: /S/ Robert A. Bonner
            ROBERT A. BONNER
            Deputy Clerk

Date: March 11, 1994

Opinion for the court on petition for rehearing filed
by Circuit Judge Williams.

Concurring opinion filed by Circuit Judge Sentelle.

Dissenting opinion filed by Chief Judge Mikva.

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102a
      
APPENDIX F
            
[Filed Mar. 11, 1994]

UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 92-5255

SWEET HOME CHAPTER OF COMMUNITIES
FOR A GREAT OREGON, ET AL., APPELLANTS

v.

MANUEL LUJAN, JR., Secretary of Interior, ET AL.

BEFORE :  Mikva, Chief Judge; Wald, Edwards,
Silberman, Buckley, Williams, Gins-
burg, Sentelle, Henderson, and Ran-
dolph, Circuit Judges

ORDER

Appellant's Suggestion For Rehearing In Banc has
been circulated to the full Court. No member of the
Court requested the taking of a vote thereon. Upon
consideration of the foregoing it is

ORDERED, by the Court in banc, that the sug-
gestion is denied.

Per Curiam

FOR THE COURT:
RON GARVIN
CLERK

By: /s/ 	Robert A. Bonner
            ROBERT A. BONNER
            Deputy Clerk

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103a

APPENDIX G

STATUTORY PROVISIONS

The Endangered Species Act of 1973, as amended
and codified at 16 U.S.C. 1531 et seq., provides in
relevant part:

1532. Definitions

For the purposes of this chapter-
          
* * * * *

(19) The term "take" means to harass, harm,
pursue, hunt, shoot, wound, kill, trap, capture,
or collect, or to attempt to engage in any such
conduct. 

* * * * *

1536. Interagency cooperation

(a) Federal agency actions and consultations

(1) The Secretary shall review other programs
administered by him and utilize such programs in
furtherance of the purposes of this chapter. All
other Federal agencies shall, in consultation with and
with the assistance of the Secretary, utilize their
authorities in furtherance of the purposes of this
chapter by carrying out programs for the conserva-
tion of endangered species and threatened species
listed pursuant to section 1533 of this title.
(2) Each Federal agency shall, in consultation
with and with the assistance of the Secretary, insure
that any action authorized, funded, or carried out by
such agency (hereinafter in this section referred to
as an "agency action") is not likely to jeopardize the
continued existence of any endangered species or

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104a

result in the destruction or adverse modification of
habitat of such species which is determined by the
Secretary, after consultation as appropriate with
affected States, to be critical, unless such agency has
been granted an exemption for such action by the
Committee pursuant to subsection (h) of this section.
In fulfilling the requirements of this paragraph each
agency shall use the best scientific and commercial
data available.
(3) Subject to such guidelines as the Secretary
may establish, a Federal agency shall consult with
the Secretary on any prospective agency action at
the request of, and in cooperation with, the prospec-
tive permit or license applicant if the applicant has
reason to believe that an endangered species or a
threatened species may be present in the area affected
by his project and that implementation of such action
will likely affect such species.
(4) Each Federal agency shall confer with the
Secretary on any agency action which is likely to
jeopardize the continued existence of any species
proposed to be listed under section 1533 of this title
or result in the destruction or adverse modification
of critical habitat proposed to be designated for such
species. This paragraph does not require a limitation
on the commitment of resources as described in sub-
section (d) of this section.

(b) Opinion of Secretary

(1)(A) Consultation under subsection (a)(2) of
this section with respect to any agency action shall
be concluded within the 90-day period beginning on
the date on which initiated or, subject to subpara-
graph (B), within such other period of time as is

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105a

mutually agreeable to the Secretary and the Federal
agency.
(B) In the case of an agency action involving a
permit or license applicant, the Secretary and the
Federal agency may not mutually agree to conclude
consultation within a period exceeding 90 days unless
the Secretary, before the close of the 90th day re-
ferred to in subparagraph (A) -

(i) if the consultation period proposed to be
agreed to will end before the 150th day after
the date on which consultation was initiated,
submits to the applicant a written statement set-
ting forth- 

(I) the reasons why a longer period is
required,
(II) the information that is required to
complete the consultation, and
(III) the estimated date on which consul-
tation will be completed; or

(ii) if the consultation period proposed to be
agreed to will end 150 or more days after the
date on which consultation was initiated, obtains
the consent of the applicant to such period.

The Secretary and the Federal agency may mutually
agree to extend a consultation period established
under the preceding sentence if the Secretary, before
the close of such period, obtains the consent of the
applicant to the extension.

(2) Consultation under subsection (a) (3) of this
section shall be concluded within such period as is
agreeable to the Secretary, the Federal agency, and
the applicant concerned.

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106a

(3) (A) Promptly after conclusion of consultation
under paragraph (2) or (3) of subsection (a) of
this section, the Secretary shall provide to the Fed-
eral agency and the applicant, if any, a written state-
ment setting forth the Secretary's opinion, and a
summary of the information on which the opinion
is based, detailing how the agency action affects the
species or its critical habitat. If jeopardy or adverse
modification is found, the Secretary shall suggest
those reasonable and prudent alternatives which he
believes would not violate subsection (a) (2) of this
section and can be taken by the Federal agency or
applicant in implementing the agency action.
(B) Consultation under subsection (a) (3) of this
section, and an opinion issued by the Secretary inci-
dent to such consultation, regarding an agency action
shall be treated respectively as a consultation under
subsection (a) (2) of this section, and as an opinion
issued after consultation under such subsection, re-
garding that action if the Secretary reviews the
action before it is commenced by the Federal agency
and finds, and notifies such agency, that no signifi-
cant changes have been made with respect to the
action and that no significant change has occurred
regarding the information used during the initial
consultation.
(4) If after consultation under subsection (a) (2)
of this section, the Secretary concludes that-

(A) the agency action will not violate such
subsection, or offers reasonable and prudent al-
ternatives which the Secretary believes would
violate such subsection;
(B) the taking of an endangered species or a
threatened species incidental to the agency action
will not violate such subsection; and

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107a

(C) if an endangered species or threatened
species of a marine mammal is involved, the
taking is authorized pursuant to section 1371
(a)(5) of this title;

the Secretary shall provide the Federal agency and
the applicant concerned, if any, with a written state-
ment that- 

(i) specifies the impact of such incidental tak-
ing on the species,
(ii) specifies those reasonable and prudent
measures that the Secretary considers necessary
or appropriate to minimize such impact,
(iii) in the case of marine mammals, specifies
those measures that are necessary to comply
with section 1371(a)(5) of this title with re-
gard to such taking, and
(iv) sets forth the terms and conditions (in-
cluding, but not limited to, reporting require-
ments) that must be complied with by the Fed-
eral agency or applicant (if any), or both, to
implement the measures specified under clauses
(ii) and (iii).

(c) Biological assessment

(1) to facilitate compliance with the requirements
of subsection (a)(2) of this section, each Federal
agency shall, with respect to any agency action of
such agency for which no contract for construction
has been entered into and for which no construction
has begun on November 10, 1978, request of the Sec-
retary information whether any species which is
listed or proposed to be listed may be present in the
area of such proposed action. If the Secretary ad-

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108a

vises, based on the best scientific and commercial data
available, that such species may be present, such
agency shall conduct a biological assessment for the
purpose of identifying any endangered species or
threatened species which is likely to be affected by
such action. Such assessment shall be completed
within 180 days after the date on which initiated (or
within such other period as is mutually agreed to by
the Secretary and such agency, except that if a per-
mit or license applicant is involved, the 180-day pe-
riod may not be extended unless such agency provides
the applicant, before the close of such period, with a
written statement setting forth the estimated length
of the proposed extension and the reasons therefor)
and, before any contract for construction is entered
into and before construction is begun with respect to
such action. Such assessment may be undertaken as
part of a Federal agency's compliance with the re-
quirements of section 102 of the National Environ-
mental Policy Act of 1969 (42 U.S.C. 4332).
(2) Any person who may wish to apply for an
exemption under subsection (g) of this section for
that action may conduct a biological assessment to
identify any endangered species or threatened species
which is likely to be affected by such action. Any
such biological assessment must, however, be con-
ducted in cooperation with the Secretary and under
the supervision of the appropriate Federal agency.

(d) Limitation on commitment of resources

After initiation of consultation required under sub-
section (a) (2) of this section, the Federal agency
and the permit or license applicant shall not make
any irreversible or irretrievable commitment of re-

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109a

sources with respect to the agency action which has
the effect of foreclosing the formulation or implemen-
tation of any reasonable and prudent alternative
measures which would not violate subsection (a) (2)
of this section.

* * * * *                            

(h) Grant of exemption

(1) The Committee shall make a final determinat-
ion whether or not to grant an exemption within 30
days after receiving the report of the Secretary pur-
suant to subsection (g)(5) of this section. The Com-
mittee shall grant an exemption from the require-
ments of subsection (a)(2) of this section for an
agency action if, by a vote of not less than five of its
members voting in person-

(A) it determines on the record, based on the
report of the Secretary, the record of the hearing
held under subsection (g)(4) of this section and
on such other testimony or evidence as it may
receive, that-

(i) there are no reasonable and prudent
alternatives to the agency action;
(ii) the benefits of such action clearly
outweigh the benefits of alternative courses
of action consistent with conserving the spe-
cies or its critical habitat, and such action
is in the public interest;
(iii) the action is of regional or national
significance; and
(iv) neither the Federal agency concerned
nor the exemption applicant made any ir-
reversible or irretrievable commitment of

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110a

resources prohibited by subsection (d) of
this section; and

(B) it establishes such reasonable mitigation
and enhancement measures, including, but not
limited to, live propagation, transplantation, and
habitat acquisition and improvement, as are nec-
essary and appropriate to minimize the adverse
effects of the agency action upon the endangered
species, threatened species, or critical habitat
concerned.

Any final determination by the Committee under this
subsection shall be considered final agency action for
purposes of chapter 7 of Title 5.

(2)(A) Except as provided in subparagraph (B),
an exemption for an agency action granted under
paragraph (1) shall constitute a permanent exemp-
tion with respect to all endangered or threatened spe-
cies for the purposes of completing such agency ac-
tion-

(i) regardless whether the species was identi-
fied in the biological assessment; and
(ii) only if a biological assessment has been
conducted under subsection (c) of this section
with respect to such agency action.

(B) An exemption shall be permanent under sub-
paragraph (A) unless-

(i) the Secretary finds, based on the best
scientific and commercial data available, that
such exemption would result in the extinction of
a species that was not the subject of consultation
under subsection (a)(2) of this section or was
not identified in any biological assessment con-
ducted under subsection (c) of this section, and

---------------------------------------- Page Break ----------------------------------------
          
111a

(ii) the Committee determines within 60 days
after the date of the Secretary's finding that the
exemption should not be permanent.

If the Secretary makes a finding described in clause
(i), the Committee shall meet with respect to the
matter within 30 days after the date of the finding.
      
* * * * *
   
(o) Exemption as providing exception
on taking of endangered species

Notwithstanding sections 1533(d) and 1538 (a)(1)
(B) and (C) of this title, sections 1371 and 1372 of
this title, or any regulation promulgated to imple-
ment any such section-

(1) any action for which an exemption is
granted under subsection (h) of this section shall
not be considered to be a taking of any endan-
gered species or threatened species with respect
to any activity which is necessary to carry out
such action; and
(2) any taking that is in compliance with the
terms and conditions specified in a written state-
ment provided under subsection (b)(4)(iv) of
this section shall not be considered to be a pro-
hibited taking of the species concerned.
      
* * * * *

1538. Prohibited acts

(a) Generally

(1) Except as provided in sections 1535(g)(2)
and 1539 of this title, with respect to any endangered
species of fish or wildlife listed pursuant to section

---------------------------------------- Page Break ----------------------------------------

112a

1533 of this title it is unlawful for any person sub-
ject to the jurisdiction of the United States to-

(A) import any such species into, or export
any such species from the United States;
(B) take any such species within the United
States or the territorial sea of the United
States;
(C) take any such species upon the high seas;
(D) possess, sell, deliver, carry, transport, or
ship, by any means whatsoever, any such species
taken in violation of subparagraphs (B) and
(C);
 (E) deliver, receive, carry, transport, or ship
in interstate or foreign commerce, by any means
whatsoever and in the course of a commercial
activity, any such species;
(F) sell or offer for sale in interstate or for-
eign commerce any such species; or
(G) violate any regulation pertaining to such
species or to any threatened species of fish or
wildlife listed pursuant to section 1533 of this
title and promulgated by the Secretary pursuant
to authority provided by this chapter.

* * * * *

1539. Exceptions

(a) Permits

(1) The Secretary may permit, under such terms
and conditions as he shall prescribe-

(A) any act otherwise prohibited by section
1538 of this title for scientific purposes or to
enhance the propagation or survival of the af-
fected species, including, but not limited to, acts

---------------------------------------- Page Break ----------------------------------------

113a

necessary for the establishment and maintenance
of experimental populations pursuant to subsec-
tion (j) of this section; or
(B) any taking otherwise prohibited by sec-
tion 1538 (a)(1)(B) of this title if such taking
is incidental to, and not the purpose of, the
carrying out of an otherwise lawful activity.

(2) (A) No permit may be issued by the Secretary
authorizing any taking referred to in paragraph (1)
(B) unless the applicant therefor submits to the Sec-
retary a conservation plan that specifies-

(i) the impact which will likely result from
such taking;
(ii) what steps the applicant will take to
minimize and mitigate such impacts, and the
funding that will be available to implement such
steps;
(iii) what alternative actions to such taking
the applicant considered and the reasons why
such alternatives are not being utilized; and
(iv) such other measures that the Secretary
may require as being necessary or appropriate
for purposes of the plan.

(B) If the Secretary finds, after opportunity for
public comment, with respect to a permit application
and the related conservation plan that-

(i) the taking will be incidental;
(ii) the applicant will, to the maximum ex-
tent practicable, minimize and mitigate the im-
pacts of such taking;
(iii) the applicant will ensure that adequate
funding for the plan will be provided;

---------------------------------------- Page Break ----------------------------------------

114a

(iv) the taking will not appreciably reduce
the likelihood of the survival and recovery of the
species in the wild; and
(v) the measures, if any, required under sub-
paragraph (A) (iv) will be met;

and he has received such other assurances as he may
require that the plan will be implemented, the Secre-
tary shall issue the permit. The permit shall contain
such terms and conditions as the Secretary deems
necessary or appropriate to carry out the purposes
of this paragraph, including, but not limited to, such
reporting requirements as the Secretary deems neces-
sary for determining whether such terms and con-
ditions are being complied with.
(C) The Secretary shall revoke a permit issued
under this paragraph if he finds that the permittee
is not complying with the terms and conditions of
the permit.  

* * * * *

* U. S. Government Printing Office; 1994     387147  20005

---------------------------------------- Page Break ----------------------------------------
      
No. 94-859

In the Supreme Court of the United States

OCTOBER TERM, 1994

BRUCE BABBITT, SECRETARY OF THE INTERIOR, ET AL.,
PETITIONERS

v.

SWEET HOME CHAPTER OF COMMUNITIES FOR 
A GREAT OREGON, ET AL.

ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR PETITIONERS

DREW S. DAYS, III
Solicitor General

LOIS J. SCHIFFER
Assistant Attorney General

EDWIN S. KNEEDLER
Deputy Solicitor General

BETH S. BRINKMANN
Assistant to the Solicitor General

MARTIN W. MATZEN
ELLEN J. DURKEE
JEAN E. WILLIAMS
Attorneys

Department of Justice
Washington, D.C. 20530
(202)514-2217

---------------------------------------- Page Break ----------------------------------------

QUESTION PRESENTED

Under Section 9(a)(1) of the Endangered Species Act of
1973, 16 U.S.C. 1538(a)(1), and implementing regulations, it is
unlawful for any person to "take" an endangered or threatened
species, except for certain "takes" that are incidental to
otherwise lawful activities and authorized by the Secretary of
the Interior under conditions designed to minimize and
mitigate the impact on the species, 16 U.S.C. 1536(b)(4),
1539(a)(1). The Act defines the term "take" to include "harm."
16 U.S.C. 1532(19), The question presented is:
Whether the regulation promulgated by the Secretary in
1975 and 1981 that defines "harm" to include "significant
habitat modification or degradation" that "actually kills or
injures wildlife," 50 C.F.R. 17.3, is invalid on its face.

(I)

---------------------------------------- Page Break ----------------------------------------

II

PARTIES TO THE PROCEEDINGS

The petitioners are Bruce Babbitt, in his official capacity as
the Secretary of the Interior, and Mollie H. Beattie, in her
official capacity as Direct or of the United States Fish and
Wildlife Service, an agency within the Department of the
Interior. The respondents are Sweet Home Chapter of
Communities for a Great Oregon, Betty F. Orem, Erickson
Busheling, Inc., Southeastern Lumber Manufacturers
Association, Inc., Southern Timber Purchasers Council,
Ridgetree Logging Company, Shotpouch Logging Company,
Jean Reynolds, Emmy G. Birkenfeld, and Pat McCollum.

---------------------------------------- Page Break ----------------------------------------

TABLE OF CONTENTS

Page

Opinions below . . . . 1
Jurisdiction  . . . . 2
Statutory and regulatory provisions involved . . . . 2
Statement  . . . . 3
Summary of argument . . . . 16
Argument:
The Secretary's interpretation of ''harm'' is based on a
reasonable construction of the Endangered Species
Act and therefore should be sustained . . . . 17
A. The text and structure of the Act support the
  Secretary's interpretation . . . . 20
B. The validity of the "harm" regulation is supported
by the background of and subsequent amendments to
the Endangered Species Act . . . . 25
C. The court of appeals' reasons for rejecting the
Secretary's reasonable interpretation of "harm"
are without merit . . . . 40
Conclusion . . . . 51
Appendix . . . . 1a 
     
TABLE OF AUTHORITIES

Cases:

American Bald Eagle v. Bhatti, 9 F.3d 163 (1st Cir.
1993) . . . . 46
Bowen v. Yuckert, 482 U.S. 137 (1987) . . . . 19 
Brown v. Gardner, 115 S. Ct. 552 (1994) . . . . 23, 30
California Coastal Comm'n v. Granite Rock Co., 480
U.S. 572 (1987) . . . . 19
Chevron U.S.A. Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837 (1984) . . . . 12, 13, 18, 19
Dole v. United Steelworkers, 494 U.S. 26 (1990) . . . . 22, 24
Friends of Endangered Species, Inc. v. Jantzen, 760
F.2d 976 (9th Cir, 1985) . . . . 35

(III)

---------------------------------------- Page Break ----------------------------------------
            
IV

Cases-Continued:

Page

INS v. National Ctr.  for Immigrants' Rights, 112
S. Ct. 551 (1991) . . . . 19
INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) . . . . 22 
Michigan Citizens for an Indep. Press v.
Thornburgh, 868 F.2d 1285 (D.C. Cir.), aff'd, 493 U.S.
38 (1989) . . . . 22
Morissette v. United States, 342 U.S. 246 (1952) . . . . 47
Morrill v. Lujan, 802 F. Supp. 424 (S.D. Ala. 1992) . . . . 46
National Treasury Employees Union v. Bush, 891 F.2d
99 (5th Cir. 1989) . . . . 45
National Wildlife Fed'n v. Burlington N. R.R., 23 F.3d
1508 (9th Cir. 1994)  . . . . 46
National Wildlife Fed'n v. National Park Serv., 669
F. Supp. 384 (D. Wyo. 1987) . . . . 46
NationsBank v. Variable Annuity Life Ins. Co., No.
93-1612 (Jan. 18, 1995) . . . . 19, 20
Palila v. Hawaii Dep't of Land & Natural Resources:
639 F.2d 495 (9th Cir. 1981) . . . . 37, 45
852 F.2d 1106 (9th Cir. 1988) . . . . 27, 41, 45
Pyramid Lake Paiute Tribe of Indians v. United States
Dep't of Navy, 898 F.2d 1410 (9th Cir. 1990) . . . . 46
Reno v.  Flores, 113 S. Ct. 1439 (1993) . . . . 19
Russell Motor Car Co. v. United States, 261 U.S.
514 (1923) . . . . 22
Rust v. Sullivan, 500 U.S. 173 (1991) . . . . 19
Schreiber v. Burlington Northern, Inc., 472 U.S. 1
(1985) . . . . 23
Seattle Audubon Soc'y v. Evans, 952 F.2d 297 (9th Cir.
1991) . . . .  25
Sierra Club v. Yeutter, 926 F.2d 429 (5th Cir. 1991) . . . . 45
Third Nat'l Bank in Nashville v. Impac Ltd.,
432 U.S. 312 (1977) . . . . 22
TVA v. Hill, 437 U.S. 153 (1978) . . . . 6, 16, 17, 18, 24, 30, 32, 50
United States v. FMC Corp., 572 F.2d 902 (2d Cir.
1978) . . . . 26, 47

---------------------------------------- Page Break ----------------------------------------
          
V

Cases-Continued:                 

Page

United States v. Glenn-Colusa Irrigration Dist., 788
F. Supp. 1126 (E.D. Cal. 1992)  . . . . 36, 46
United States v. Hayashi, 22 F.3d 859 (9th Cir. 1993) . . . . 26
United States v. Lee, 937 F.2d 1388 (9th Cir. 1991),
cert. denied, 112 S. Ct. 977 (1992) . . . . 29
United States v. Salerno, 481 U.S. 739 (1987) . . . . 19
Zenith Radio Corp. v. United States, 437 U.S. 443
(1978) . . . . 30

Statutes and regulations:

Endangered Species Act of 1973, 16 U.S.C. 1531 et seq . . . . 3, 4, 16

16 U.S.C. 1531 (2) . . . . 3, 1a-3a
16 U.S.C. 1531(a)(1) . . . . 4, 1a
16 U.S.C. 1531(b) . . . . 4, 18, 24, 50, 2a-3a
16 U.S.C. 1531(3) . . . . 8, 9, 41
16 U.S.C. 1532(3) . . . . 8, 9, 41
16 U.S.C. 1532(5) . . . . 41
16 U.S.C. 1532(5)(A) . . . . 7-8
16 U.S.C. 1532(5)(C) . . . . 8
16 U.S.C. 1532(6) . . . . 4
16 U.S.C. 1532(8) . . . . 5
16 U.S.C. 1532(13) . . . . 5, 44
16 U.S.C. 1532(14) . . . . 5
16 U.S.C. 1532(15) . . . . 4
16 U.S.C. 1532(19) (3(19)) . . . . 2-3, 5, 18, 20, 26
16 U.S.C. 1532(20) . . . . 4
16 U.S.C. 1533 (4) . . . . 3, 7, 8, 18, 42, 3a-4a
16 U.S.C. 1533(a) . . . . 4, 3a
16 U.S.C. 1533(a)(3) . . . . 7, 24, 4a
16 U.S.C. 1533(a)(1)(A) . . . . 4
16 U.S.C. 1533(b)(2) . . . . 7, 24, 42, 43, 5a
16 U.S.C. 1533(b)(6)(C) . . . . 7, 24
16 U.S.C. 1533(b)(6)(C)(ii) . . . . 43
16 U.S.C. 1533(d) (4(d)) . . . . 5, 40, 5a-6a
16 U.S.C. 1533(f) (4(f)) . . . . 9
16 U.S.C. 1534 (5) . . . . 8, 9, 24, 29
16 U.S.C. 1536 (7) . . . . passim, 6a-13a

---------------------------------------- Page Break ----------------------------------------

VI

Statutes and regulations-Continued:          

Page

16 U.S.C. 1536(a)(1) (7(a)(1)) . . . . 9, 6a
16 U.S.C. 1536(a)(2) (7(a)(2)) . . . . passim, 6a
16 U.S.C. 1536(a)(3) . . . . 8, 7a
16 U.S.C. 1536(b) (7(b)) . . . . 8, 44, 7a
16 U.S.C. 1536(b)(4) (7(b)(4)) . . . . 10, 11, 38, 39, 8a-9a
16 U.S.C. 1536(b)(4)(iii) . . . . 38, 39, 9a
16 U.S.C. 1536(b)(4)(iv) . . . . 38, 39, 44, 9a
16 U.S.C. 1536(c) . . . . 8, 9a-10a
16 U.S.C. 1536(e)-(n) . . . . 9, 11a-13a
16 U.S.C. 1536(e)-(o) . . . . 32, 11a-13a
16 U.S.C. 1536(h) (7(h)) . . . . 32, 38, 11a
16 U.S.C. 1536(o)(Supp. III 1979) . . . . 9, 32
16 U.S.C. 1536(o) (7(o)) . . . . 32, 33, 39, 44, 13a
16 U.S.C. 1536(o)(1) (7(o)(1)) . . . . 38, 44, 13a
16 U.S.C. 1536(o)(2) (7(o)(2)) . . . . 11, 38, 39, 40, 44, 13a
16 U.S.C. 1538 (9) . . . . passim, 14a-15a
16 U.S.C. 1538(a) (9(a)) . . . . 32, 38
16 U.S.C. 1538(a)(1) (9(a)(1)) . . . . 2, 3, 5, 33, 14a
16 U.S.C. 1538(a)(1)(B) (1976) . . . . 30
16 U.S.C. 1538(a)(1)(B) (9(a)(1)(B)) . . . . 2, 5, 9, 10, 16,
39, 40, 44, 14a
16 U.S.C. 1538(a)(1)(G) (9(a)(1)(G)) . . . . 2, 14a
16 U.S.C. 1538(a)(2) (9(a)(2)) . . . . 5, 37, 14a-15a
16 U.S.C. 1538(a)(2)(B) . . . . 37, 15a
16 U.S.C. 1539 (10) . . . . 3, 9, 18, 24, 36, 38, 40, 49, 16a-19a
16 U.S.C. 1539(a) (10(a)) . . . . 36, 50
16 U.S.C. 1539(a)(1)(B) (10(a)(1)(B)) . . . . 34, 36, 16a
16 U.S.C. 1539(a)(2) . . . . 34, 49, 16a
16 U.S.C. 1539(a)(2)(A) (10(a)(2)(A)) . . . . 10, 11, 16a
16 U.S.C. 1539(a)(2)(A)(i) . . . . 34, 16a
16 U.S.C. 1539(a)(2)(A)(ii) . . . . 34, 16a
16 U.S.C. 1539(a)(2)(A)(iv) . . . . 11, 16a
16 U.S.C. 1539(a)(2)(B) . . . . 11, 17a
16 U.S.C. 1539(a)(2)(B)(i) . . . . 34-35, 17a
16 U.S.C. 1539(a)(2)(B)(ii) . . . . 35, 17a
16 U.S.C. 1539(i) . . . . 33

---------------------------------------- Page Break ----------------------------------------
           
VII

Statutes and regulations-Continued:          

Page

16 U.S.C. 1539(i)(1) (Supp. III 1979) . . . . 33
16 U.S.C. 1539(j) (10(j)) . . . . 39, 17a-19a
16 U.S.C. 1539(j)(2)(C) . . . . 39, 17a-18a
16 U.S.C. 1540(a) . . . . 5
16 U.S.C. 1540(b) . . . . 5
16 U.S.C. 1540(e)(6) . . . . 5
16 U.S.C. 1631 . . . . 6

Endangered Species Act Amendments of 1978, Pub. L.
No. 95-632, 92 Stat. 3752 . . . . 31
3, 92 Stat. 3752-3759 (16 U.S.C. 1536(o) (Supp. III
1979)) . . . . 9, 32
5,92 Stat. 3761 (16 U.S.C. 1539(i)(1) (Supp. III
1979)) . . . . 33
Endangered Species Act Amendments of 1982, Pub. L.
97-304, 96 Stat. 1411 . . . . 34
4(a)(2), 96 Stat. 1418 (16 U.S.C. 1536(b)(4)) . . . . 10, 8a
4(a)(7), 96 Stat. 1420 (16 U.S.C. 1536(o)(2) 
(1982)) . . . . 38, 13a
6, 96 Stat. 1422 . . . . 34
6(1), 96 Stat. 1422 (16 U.S.C. 1539(a)(1)(B)) . . . . 10, 34, 16a
6(5), 96 Stat. 1424 . . . . 33
6(6), 96 Stat. 1424 (16 U.S.C. 1539(j)) . . . . 39, 17a
9(b)(i), 96 Stat, 1426 . . . . 37

Endangered Species (Conservation Act of 1969, Pub. L.
No. 91-135, 83 Stat. 275 . . . . 11
Energy and Water Development Appropriation Act, 1980,
Pub. L. No. 96-69. Tit. IV, 93 Stat. 449 . . . . 33
Fisheries Conservation and Management Act, Pub. L.
No. 99-659, Tit. IV, 401, 100 Stat. 3737:
41l(b)(4)-(6), 100 Stat. 3742 (16 U.S.C. 1536(b)(4)
(iii)) . . . .  39
411(c), 100 Stat. 3742 (16 U.S.C. 1536(c)(iii)) . . . . 39
Marine Mammal Protection Act, 16 U.S.C. 1361 et seq . . . . 25
16 U.S.C. 1362(13) (Supp. V 1993) . . . . 26
16 U.S.C. 1371 (101) . . . . 39

---------------------------------------- Page Break ----------------------------------------
          
VIII

Statutes and regulations-Continued:          

Page

16 U.S.C. 1371(a)(5) . . . . 39
16 U.S.C. 1372 (102) . . . . 39
Marine Mammal Protection Act Amendments of 1994,
Pub. L. No. 103-238, 12, 108 Stat. 557 . . . . 26
Migratory Bird Treaty Act, 16 U.S.C. 703 et seq . . . . 25, 48
16 U.S.C. 703 (1988 & Supp. V 1993) . . . . 25
Natural Community Conservation Planning Act,         
Cal. Fish & Game Code 2800-2840 (West 1995) . . . . 49
50 C. F. R,:
Section 17.3 . . . . 3, 6, 7, 18, 21, 22, 29, 36, 40
Section 17.11 . . . . 4, 12
Section 17.11(h) . . . . 11
Section 17.12 . . . . 4
Section 17.21(c)(1) . . . . 5
Section 17.31 . . . . 13
Section 17.31(a) . . . . 5, 12
Sections 17.40-17.48 . . . . 5
Section 216.3 . . . . 26
Section 222.23(a) . . . . 4
Section 227.4 . . . . 4
Section 402.01(b) . . . . 4
Section 424.12(a)(1)(i) . . . . 43
Section 424.12(a)(1)(ii) . . . . 43

Miscellaneous:

Amending the Endangered Species Act of 1973: Hearings
on S. 2899 Before the Subcomm. on Resource Protection
of the Senate Comm. on Environment and Public Work,
95th Cong., 2d Sess. (1978) . . . . 31
Rocky Barker, Saving All The Parts: Reconciling
Economics and the Endangered Species Act
(Island Press 1993) . . . . 48
Timothy Beatley, Habitat Conservation Planning
(Univ. of Texas Press 1994) . . . . 35
55 Cong. Rec. 5544-5545 (1917) . . . . 25

---------------------------------------- Page Break ----------------------------------------

IX

Miscellaneous-Continued:

Page

119 Cong. Rec. (1973):
p. 25,683 . . . . 29
p. 42,913 . . . . 47
124 Cong. Rec. (1978):
p. 21,565 . . . . 32
p. 38,148 . . . . 33
pp. 38,150-38,151 . . . . 33
132 Cong. Rec. (1986):
pp. 31,294-31,295 . . . . 39
p. 32,185 . . . . 39
CRS, Senate Comm. on Environmental Public Works,
97th Cong., 2d Sess., A Legislative History of the
Endangered Species Art of 1973, as amended (Comm.
Print 1982) . . . . 33
Endangered Species Act Amendments of 1982: Hearings
Before the Subcomm, on Environmental Pollution
of the Senate Comm. on Environment and Public
Works, 97th Cong., 2d Sess. (1982) . . . . 36, 38
Endangered Species Act: Hearings Before the Subcomm.
on Fisheries and Wildlife Conservation and the
Environment of the House Comm. on Merchant Marine
and Fisheries, 97th Cong., 2d Sess. (1982) . . . . 35, 36, 37
Endangered Species Oversight: Hearings Before the
Subcomm. on Resource Protection of the Senate
Comm. on Environment and Public Works, 95th Cong.,
1st Sess. (1977) . . . . 31
Endangered Species, Parts 1 & 2: Hearings Before the
Subcomm. on Fisheries and Conservation and the
Environment of the House Comm. on Merchant
Marine and Fisheries, 95th Cong., 2d Sess. (1978) . . . . 31
40 Fed. Reg. (1975):
p. 44,412 . . . . 6, 29
p. 44,413 . . . . 6
p. 44,416 . . . . 6, 29
46 Fed. Reg. (1981)
p. 29,491 . . . . 23
p. 54,748 . . . . 6, 7, 29

---------------------------------------- Page Break ----------------------------------------
         
X

Miscellaneous-Continued:

Page

pp. 54,748 -54,749 . . . . 6
p. 54,749 . . . . 23
p. 54,750 . . . . 45, 47
49 Fed. Reg. (1984):
p. 38,903 . . . . 43
p. 38,904 . . . . 8, 42
50 Fed. Reg. 60,252 (1994) . . . . 40
55 Fed. Reg. 26,114 (1990) . . . . 11
58 Fed. Reg. (1993):
p. 65,088 . . . . 48
p. 65,090 . . . . 48
60 Fed. Reg. 9484 (1995) . . . . 5
H.R. Conf. Rep. No. 1804, 95th Cong., 2d Sess. (1978) . . . . 33, 47
H.R. Conf. Rep No. 835, 97th Cong., 2d Sess. (1982) . . . . 36
H.R. Rep. No. 412, 93d Cong., 1st Sess. (1973) . . . . 27, 28, 29
H.R. Rep. No. 1625, 95th Cong., 2d Sess. (1978) . . . . 31, 32, 33, 44
H.R. Rep. No. 567, 97th Cong., 2d Sess. (1982) . . . . 34, 37-38, 39
Daniel J. Rohlf, The Endangered Species Act: A Guide
to its Protections and Implementation (Stan. Envtl.
Law Soc'y 1989) . . . . 18
S. 1592, 93d Cong., 1st Sess. (1973) . . . . 28
S. 1983, 93d Cong., 1st Sess. (1973) . . . . 28
S. Rep. No. 2, 65th Cong., 1st Sess. (1917) . . . . 25
S. Rep. No. 307, 93d Cong., 1st Sess. (1973) . . . . 27, 28, 29
S. Rep. No. 418, 97th Cong., 2d Sess. (1982) . . . . 35, 37, 39, 40
2A Norman J. Singer, Sutherland Statutory Con-
struction (5th ed. 1992) . . . . 22, 23, 24
The Random House Dictionary of the English Language
(2d ed. 1987) . . . . 20-21
U.S. General Accounting Office, Endangered Species Act:
Information in Species Protection on Nonfederal Lands
(Dec. 1994) . . . . 50
Webster's Third New International Dictionary (1986) . . . . 20
Edward O. Wilson, The Diversity of Life (Belknap
Press of Harv. Univ. Press 1992) . . . . 18

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In the Supreme Court of the United States
   
OCTOBER TERM, 1994

No. 94-859

BRUCE BABBITT, SECRETARY OF THE INTERIOR, ET AL.,
PETITIONERS

v.

SWEET HOME CHAPTER OF COMMUNITIES FOR
A GREAT OREGON, ET AL.

ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR PETITIONERS

OPINIONS BELOW

The March 11, 1994, opinion of the court of appeals issued
after granting respondents' petition for rehearing (Pet. App.
la-41a) is reported at 17 F.3d 1463. The August 12, 1994,
statements accompanying the court of appeals' denial of peti-
tioners' petition for rehearing and suggestion of rehearing en
banc (Pet. App. 89a-99a) are reported at 30 F.3d 190. The July
23, 1993, initial opinion of the court of appeals (Pet. App. 42a-
72a) is reported at, 1 F.3d 1. The opinion of the district court
(Pet. App. 73a-88a) is reported at 806 F. Supp. 279.

(1)

---------------------------------------- Page Break ----------------------------------------
           
2

JURISDICTION

The court of appeals entered its initial judgment on July 23,
1993. The court of appeals thereafter granted respondents'
petition for rehearing, and on March 11, 1994, it entered a new
judgment that differed from its earlier judgment. Petitioners
then sought rehearing of that new judgment, and the court of
appeals denied that petition for rehearing on August 12, 1994.
Pet. App. 89a-99a. The petition for a writ of certiorari was
filed on November 10, 1994, and was granted on January 6,
1995. The jurisdiction of this Court is invoked under 28
U.S.C. 1254(1).
    
STATUTORY AND REGULATORY  
PROVISIONS INVOLVED

1. Section 9(a)(1) of the Endangered Species Act of 1973
(ESA), 16 U.S.C. 1538(a)(l), provides in relevant part:

Except as provided in sections 6(g)(2) and 10 of this Act,
with respect to any endangered species of fish or wildlife
listed pursuant to section 4 of this Act it is unlawful for any
person subject to the jurisdiction of the United States to-

* * * * *

(B) take any such species within the United States or
the territorial sea of the United States;

* * * * *

(G) violate any regulation pertaining to such species or
to any threatened species of fish or wildlife listed
pursuant to section 4 of this Act and promulgated by the
Secretary pursuant to authority provided by this Act.

2. Section 3(19)) of the ESA, 16 U.S.C. 1532(19) pro-
vides:

For the purposes of this Act-

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3

The term "take" means to harass, harm, pursue, hunt,
shoot, wound, kill, trap, capture, or collect, or to attempt
to engage in any such conduct.

Other pertinent provisions of the ESA (2, 4, 7, 9, 10,
16 U.S.C. 1531, 1533, 1536, 1538, 1539) are reprinted at App.,
infra, 1a-19a.
3. The Secretary of the Interior's regulation defining
"harm" for purposes of the ESA, 50 C.F.R. 17.3, provides:

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.
         
STATEMENT

The Endangered Species Act of 1973 (ESA), 16 U.S.C. 1531
et seq., makes it unlawful for any person to "take" a species of
fish or wildlife that is listed as endangered or threatened. 16
U.S.C. 1538(a)(1). The ESA defines the term "take" to mean
"to harass, harm, pursue, hunt, shoot, wound, kill, trap,
capture, or collect, or to attempt to engage in any such
conduct." 16 U.S.C. 1532(19). A regulation issued by the
Secretary of the Interior in 1975 and 1981 in turn defines
"harm" to mean an act "includ[ing] significant habitat
modification or degradation" that "actually kills or injures
wildlife" by "significantly impairing essential behavioral
patterns, including breeding, feeding or sheltering." 50
C.F.R. 17.3. The district court sustained the validity of 50
C.F.R. 17.3. The court of appeals reversed and held the

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4

regulation facially invalid insofar as it defines "harm" to
embrace any form of habitat modification or degradation. 1.
1. Congress enacted the Endangered Species Act in 1973
in response to increasing concern about the extent to which
"various species of fish, wildlife, and plants" had been
rendered extinct "as a consequence of economic growth and
development untempered by adequate concern and con-
servation." 16 U.S.C 1531(a)(1). The purposes of the ESA
include providing "a means whereby the ecosystems upon
which endangered species and threatened species depend may
be conserved." 16 U.S.C. 1531(b).
a. Under the ESA, the Secretary determines the wildlife
species that are "endangered" or "threatened" within the
meaning of the Act and maintains a list of such species. 2. 16
U.S.C. 1533(a). In deciding whether to list a species, the
Secretary must consider, inter alia, "the present or
threatened destruction, modification, or curtailment of its
habitat or range." 16 U.S.C. 1533(a)(1)(A).

___________________(footnotes)

1 Responsibility for administration of the ESA is divided between the
Fish and Wildlife Service (FWS) in the Department of the Interior and the
National Marine Fisheries Service (NMFS), in the Department of
Commerce. See 16 U.S.C. 1532(15); 50 C.F.R. 402.0l(b); see also 50 C.F.R. ,
17.11, 17.12, 222.23(a) and 227.4 (listing species within NMFS and FWS
jurisdiction). Because this action was brought against the Secretary of the
Interior and the Director of FWS and was prompted by respondents'
challenge to protection afforded to two species of birds within the
jurisdiction of FWS, we shall refer in this brief only to the responsibilities
of the Secretary of the Interior and FWS.

2 "Endangered species'" means any species (other than certain insect
species) "which is in danger of extinction throughout all or a significant   I
portion of its range." 16 U.S.C. 1532(6). "Threatened species" means "any
species which is likely to) become an endangered species within the
foreseeable future throughout all or a significant portion of its range." 16 
U.S.C. 1532(20). Endangered and threatened species are referred to
collectively as "listed species."

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5

When a fish or wildlife species is listed as endangered, it is
protected by Section 9(a)(1) of the ESA. 3. Section 9(a)(1)(B)
makes it unlawful for "any person" (which includes
governmental entities, see 16 U.S.C. 1532(13)) to "take" an
endangered species. 16 U.S.C. 1538(a)(1)(B). The prohibition
may be enforced through suits for injunctive relief, 16 U.S.C.
1540(e)(6), as well as civil and criminal penalties, 16 U.S.C.
1540(a) and (b). By regulation, the Section 9 "take" pro-
hibition also applies generally to species that are listed as
threatened. 4
The ESA defines the term "take" to mean "to harass, harm,
pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to
attempt to engage in my such conduct." 16 U.S.C. 1532(19).
As part of its initial set of programmatic regulations
implementing the ESA, FWS promulgated a regulation in 1975
interpreting the  term "harm" for purposes of the ESA. As

___________________(footnotes)

3 "Fish or wildlife" is defined in the ESA as "any member of the animal
kingdom, including without limitation any mammal, fish, bird (including
any migratory, nonmigratory, or endangered bird for which protection is
also afforded by treaty or other international agreement), amphibian,
reptile, mollusk, crustacean, arthropod or other invertebrate, and includes
any part, product, egg, or offspring thereof, or the dead body or parts
thereof." 16 U.S.C. 1532(8). The term "plant" is separately defined, see 16
U.S.C. 1532(14). The "take" prohibition in Section 9(a)(1)(B) does not apply
to endangered species of plants, which are instead protected by Section
9(a)(2) of the Act, 16 U.S.C. 1538(a)(2). See note 24, infra.

4 Under Section 4(d) of the Act, 16 U.S.C. 1533(d), the Secretary may,
by regulation, prohibit with respect to threatened species any act prohibited
under 16 U.S.C. 1538(a)(1). The Secretary has extended the "take"
prohibition in 16 U.S.C. 1538(a)(1)(B) to threatened fish and wildlife species.
See 50 C.F.R. 17.31(a), 17.21(c)(1). Thus, the "take" prohibition applies to
all listed species of fish or wildlife except where special rules applicable to
particular threatened species otherwise provide. See 50 C.F.R. 17.40-17.48.
On February 17, 1995, the Secretary published regulations under Section
4(d) that address the application of the "take" prohibition to the northern
spotted owl (a threatened species). 60 Fed. Reg. 9484.

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6

this Court noted in TVA v. Hill, 437 U.S. 153, 184-185 n.30
(1978), the 1975 regulation defined "harm" to mean an act that
"actually injures or kills wildlife, including acts which annoy
it to such an extent as to significantly disrupt essential
behavioral patterns, which include, but are not limited to,
breeding, feeding or sheltering," and which include
"significant environmental modification or degradation which
has such effects." 50 C.F.R. 17.3; see 40 Fed. Reg. 44,412,
44,416 (1975) (J.A. 49, 51). The preamble to the 1975 regulation
explained that the regulation represented a "reasonable
response to the habitat needs of listed species, " which
Congress had specifically acknowledged in the "[p]urposes"
section of the ESA, 16 U.S.C. 1631; see 40 Fed. Reg. 44,413
(J.A. 50). The preamble further noted that the environmental
degradation encompassed within the regulatory definition of
"harm" was:

expressly limited to those actions causing actual death or
injury to a protected species of fish or wildlife. The actual
consequences of such an action upon a listed species is
paramount.

40 Fed. Reg. 44,413 (J.A. 50).
The Secretary revised the "harm" regulation in 1981
because of concerns that the 1975 regulatory language was
susceptible to an interpretation that would bar habitat
modification even where there would be no resulting injury to
listed fish or wildlife, contrary to the intent of both the
Secretary and Congress. See 46 Fed. Reg. 54,748 (1981) (J.A
65). The Secretary modified the regulation to make it
consistent with the original intent that a Section 9 "take"
violation does not arise out of "habitat modification alone
without any attendant death or injury of the protected
wildlife." 46 Fed. Reg. 54,748-54,749 (1981) (J.A. 66-68). At the
same time, however, the Secretary reaffirmed that "harm" is
not limited "to direct physical injury to an individual member

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7

of the wildlife species." and that in redefining the term, he
"did not intend to imply that significant habitat destruction
which could be shown to injure protected wildlife through the
impairment of its essential behavioral patterns was not
subject to the Art." 46 Fed. Reg. 54,748 (J.A. 66-67). The
"harm" regulation as revised in 1981 provides:

Harm in the definition of "take" in the Act means an act
which actually kills or injures wildlife. Such an act may
include significant habitat modification or degradation
where it actually kills or injures wildlife by significantly
impairing essential behavioral patterns, including breed-
ing, feeding or sheltering.

50 C.F.R. 17.3; see 46 Fed. Reg. 54,748 (J.A. 65).
b. in addition to the Section 9 "take" prohibition, the ESA
includes other methods of protecting listed species. Section
7(a)(2) provides that each federal agency shall, in consultation
with and with the assistance of the Secretary,

insure that any action authorized, funded, or carried out
by such agency * * * is not likely to jeopardize the
continued existence of any endangered species or
threatened species or result in the destruction or adverse
modification of habitat of such species which is
determined by the Secretary * * * to be critical, [5]. unless

___________________(footnotes)

5 "Critical habitat" has a specific and limited meaning for purposes of
the ESA. Section 4 empowers the Secretary to designate "critical" habitat
for listed species. 16 U.S.C. 1533(a)(3), (b)(2) and (b)(6)(C). "Critical
habitat" is defined by the Act to mean:

(i) the specific areas within the geographical area occupied by the
species, at the time it is listed in accordance with the provisions of
section 4 of this Act, on which are found those physical or biological
features (I) essential to the conservation of the species and (II) which
may require special management considerations or protection; and

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8

such agency has been granted an exemption for such
action * * * pursuant, to subsection (h).

16 U.S.C. 1536(a)(2). This obligation to ensure against
"jeopardizing" a species' continued existence or destroying or
adversely modifying its "critical" habitat applies to a federal
agency's issuance of  licenses and permits to non-federal
parties (for activities on either public or private lands), as well
as actions undertaken by the agency itself. 16 U.S.C.
1536(a)(3); see generally 16 U.S.C. 1536(c) (directing federal
agency to prepare biological assessment to determine whether
listed species is "likely to be affected" by proposed action); 16
U.S.C. 1536(b) (provisions for Secretary to issue biological
opinion to action agency).
The ESA also contains several provisions, in Sections 4, 5
and 7, that are aimed not merely at preventing extinction of
listed species, but also at their conservation. For purposes of
the ESA, "conservation" means "the use of all methods and
procedures which are necessary to bring any endangered
species or threatened species to the point at which the
measures provided pursuant to this chapter are no longer
necessary." 16 U.S.C. 1532(3). Available conservation meas -

___________________(footnotes)

(ii) specific areas outside the geographical area occupied by the
species at the time it is listed in accordance with the provisions of
section 4 of this Act, upon a determination by the Secretary that such
areas are essential for the conservation of the species.

16 U.S.C. 1532(5)(A), In appropriate cases, designating unoccupied
potential habitat for listed species can play a role in the recovery of the
species by providing for "natural range expansion into adjacent suitable
habitat." 49 Fed. Reg. 38,904 (1984). However, "[e]xcept in those
circumstances determined by the Secretary, critical habitat shall not
include the entire geographical area which can be occupied" by listed
species. 16 U.S.C. 1532(5)(C). Thus, designation of critical habitat may add
protections for a listed species against federal government actions that are
likely to take place on some suitable, but unoccupied, habitat.

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9

ures include, but are not limited to, "all activities associated
with scientific resources management such as research,
census, law enforcement, habitat acquisition and maintenance,
propagation, live trapping, and transplantation, and, in the
extraordinary case where population pressures within a given
ecosystem cannot be otherwise relieved, may include regula-
ted taking." 16 U.S.C. 1532(3).
The conservation provisions of the ESA are intended to
achieve the eventual removal of the species from the
endangered and threatened lists. To that end, Section 4(f)
authorizes the Secretary to develop and implement recovery
plans to promote the conservation of species. 16 U.S.C.
1533(f). Section 5 empowers the Secretary to utilize land
acquisition and authority under other wildlife protection
statutes to acquire land to implement a program to conserve
endangered and  threatened species. 16 U.S.C. 1534. And
Section 7(a)(1) requires federal agencies, in consultation with
and with the assistance of the Secretary, to "utilize their
authorities in furtherance of the purposes of [the Act] by
carrying out programs for the conservation of endangered
species and threatened species." 16 U.S.C. 1536(a)(1).
c. The "take" prohibition in Section 9 and the "jeopardy"
and "critical" habitat, restrictions in Section 7 are not
absolute-the Secretary may permit "incidental takings" in
some instances that meet detailed criteria enacted by
Congress in 1982. 6. Specifically, by amendments to Sections 7
and 10, Congress authorized the Secretary to permit takings
that would otherwise be prohibited under Section 9(a)(1)(B),

___________________(footnotes)

6 Even prior to 1982, Sections 7 and 9 were not absolute. In 1978,
Congress had established a procedure for exempting projects from the
Section 7(a)(2) prohibitions, see 16 U.S.C. 1536(e)-(n), and from liability for
violation of the Section 9 "take" prohibition, see 16 U.S.C. 1536(o) (Supp. III
1979). Endangered Species Act Amendments of 1978, Pub. L. No. 95-632,
3, 92 Stat. 3753-3759. See page 32, infra.

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10

"if such taking is incidental to, and not the purpose of, the
carrying out of an otherwise lawful activity." Endangered
Species Act Amendments of 1982, Pub. L. No. 97-304, 6(1), 96
Stat. 1422 (codified at 16 U.S.C. 1539(a)(1)(B)); see also
4(a)(2), 96 Stat. 1418 (codified at 16 U.S.C. 1536(b)(4)).
Section 10 provides for the issuance of an incidental
take permit to applicants (including nonfederal entities and
private parties) who are not subject to the jeopardy and
critical habitat restrictions (and related consultation require-
ment) applicable to federal agencies under Section 7(a)(2).
Congress conditioned issuance of a Section 10 incidental take
permit, however, on the assumption by the applicant of certain
duties. The ESA states that "[n]o permit maybe issued by the
Secretary" authorizing an incidental taking unless the
applicant therefor submits to the Secretary

a conservation plan that specifies-

(i) the impact which will likely result from such
taking;
(ii) what steps the applicant will take to minimize
and mitigate such impacts, and the funding that will be
available to implement such steps;
(iii) what alternative actions to such taking the
applicant. considered and the reasons why such alter-
natives are not being utilized; and
(iv) such other measures that the Secretary may
require as being necessary or appropriate for purposes of
the plan.

16 U.S.C. 1539(a)(2)(A). The Secretary will issue the permit if
he finds, inter alia, that the taking will be incidental, that the
applicant will "to the maximum extent practicable, minimize
and mitigate the impacts of such taking," that "the applicant
will ensure that adequate funding for the plan will be
provided," that "the taking will not appreciably reduce the
likelihood of the survival and recovery of the species in the

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11

wild," and that the applicant will meet "such other measures
that the Secretary may require as being necessary or appro-
priate for purposes of the plan." 16 U.S.C. 1539(a)(2)(B) and
(A)(iv).
Congress provided a somewhat different mechanism for
authorizing "incidental takes" resulting from a project
subject to the Section 7(a)(2) jeopardy prohibition and critical
habitat restrictions. The biological opinion that FWS
prepares during the formal Section 7 consultation process
includes what is known as an "incidental take statement."
That statement must identify the impact of any take that is
anticipated to occur incidental to the proposed federal action,
as well as the "reasonable and prudent measures" that the
Secretary considers "necessary or appropriate to minimize
such impact"; it also sets forth the "terms and conditions
* * * that must be complied with by the Federal agency or
[permit or license] applicant (if any) or both to implement the
measures specified." 16 U.S.C. 1536(b)(4). Any taking that is
in compliance with those terms and conditions is not
considered a prohibited taking of the species in violation of
Section 9. 16 U.S.C. 1536(o)(2).
2. Respondents are individuals and organizations in the
Pacific Northwest and Southeast who are engaged in, or
depend upon, timber harvesting. They allege that they are
affected by the Secretary's "harm" regulation because of its
application to the northern spotted owl, which was listed as a
threatened species in 1990, 55 Fed. Reg. 26,114, and the red-
cockaded woodpecker, which was listed as an endangered
species in 1970, 50 C.F.R. 17.11(h). J.A. 17-23. 7
Respondents brought this action as a facial challenge to the
regulation, and did not challenge it as applied to any of their

___________________(footnotes)

7 The red-cockaded woodpecker was listed pursuant to the Endangered
Species Conservation Act of 1969, Pub. L. No. 91-135, 83 Stat. 275, a
predecessor to the Endangered Species Act.

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12

own actions in relation to the listed birds. 8. On cross-motions
for summary judgment, the district court upheld the validity
of the "harm" regulation under step one of the analytical
framework set forth in Chevron U.S.A. Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837, 842-843 (1984),
concluding that the "language, structure and history of the
ESA reveal that Congress intended an expansive
interpretation of the word 'take,' an interpretation that
encompasses habitat modification." Pet. App. 82a-83a. The
court further stated that even if it were to find the ESA
"silent or ambiguous" on the issue, it would uphold the
Secretary's regulation under step two of the Chevron
analysis as a reasonable interpretation of the Act. Id. at 83a.
The district court also held that the regulatory definition of
"harm" was not void for vagueness. Id. at 83a-85a.
3. a. The court of appeals initially affirmed the district
court's judgment, with the panel divided on the question of the
validity of the "harm" regulation. Pet. App. 42a-72a. The
majority opinion included a per curium ruling that the
"harm" regulation does not violate the ESA. Id. at 46a. Chief
Judge Mikva wrote a concurring opinion, reasoning that the
"harm" regulation represents a reasonable interpretation of
the Act that is entitled to deference under Chevron. Id. at
59a-66a. Judge Williams wrote a concurring opinion agreeing
that the regulation complies with the ESA. He reasoned that
the 1982 amendments authorizing incidental taking permits
"support the inference that the ESA otherwise forbids some
such  incidental takings, including  some habitat
modifications. " Id. at 67a. Judge Sentelle dissented. Id. at
68a-72a.

___________________(footnotes)

8 Respondents also Challenged the facial validity of a regulation that
extends certain protections to threatened species, 50 C.F.R. 1731(a). The
courts below sustained that regulation (see Pet. App. 85a-88a id. at 2a, 51a -
58a), and no party sought further review of that issue.

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13

b. The panel granted respondents' petition for rehearing
and, on March 11, 1994, in another divided decision, reversed
the district court's judgment with respect to the validity of
the "harm" regulation." 9. Pet. App. 1a-41a. Judge Sentelle
filed a concurring opinion (id. at 25a-26a) and Chief Judge
Mikva filed a dissenting opinion (id. at 27a-41a).
The court of appeals concluded that the "harm" regulation
was "neither clearly authorized by Congress nor a 'reasonable
interpretation' of the statute," and that no later action of
Congress "supplied the missing authority." Pet. App. 3a,
citing Chevron, 467 U.S. at 842-843, 844. The court acknowl-
edged that "[t]he potential breadth of the word 'harm' is
indisputable," Pet. App. 3a, but nonetheless held that the
Secretary's definition of the term is too broad. In the court's
view, the other words in the statutory definition ("harass,
* * * pursue, hunt, shoot, wound, kill, trap, capture, or
collect") all "contemplate the perpetrator's direct application
of force against, the animal taken"-e.g., "A hit B." Id. at 4a.
The court reasoned that, it should therefore apply the maxim
"noscitur a sociis" (that a word is known by the company it
keeps) and read the term "harm" as limited to direct appli-
cation of force against animals, and to exclude any habitat
modification. Id. at 5a-7a.
The court viewed the "structure and history of the Act" as
confirming its reading. Pet. App. 7a. Thus, it read the "harm"
regulation to have "transposed to the private anti-'take'
provision" the duty of federal agencies under Section 7(a)(2) to
ensure that actions are "not likely to jeopardize the continued
existence" of a listed species or result in "'the destruction or
adverse modification of habitat of such species which is
determined * * * to be critical.'" Pet. App. 7a. The court

___________________(footnotes)
         
9 The court's original judgment is otherwise unaltered. Pet. App. 24a.
Thus, the court of appeals adhered to its rulings that 50 C.F.R. 17.31 is
valid and that the "harm" regulation is not void for vagueness.

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14

found that result to be contrary to the legislative history of
the ESA, which it read as assigning "the primary task of
habitat preservation to the government." Id. at 8a. The court
also noted that the bill ultimately enacted did not include
language in one bill considered by the Senate committee that
would have defined "take" to include "the destruction,
modification, or curtailment of [a species'] habitat or range."
Id. at 9a-10a. Finally, the court read the legislative history of
the 1982 amendments' provision for incidental take permits as
not referring to habitat modification, and therefore as not
ratifying the Secretary's interpretation. Id. at 10a-24a.
In a concurring opinion, Judge Sentelle expressed the view
that the language and structure of the ESA provided a
sufficient basis for invalidating the "harm" regulation and
that resort to the legislative history was unnecessary. Pet.
App. 25a. He also reasoned that to define "harm" as the
Secretary does would render superfluous the other words in
the statutory definition of "take." Ibid.
Judge Mikva dissented. Pet App. 27a-41a. He first objected
that the majority erroneously shifted the burden to the
government agency to show that its interpretation is clearly
authorized or reasonable, whereas, under Chevron, the burden
is on those challenging governmental action to show either
that Congress has directly spoken on the issue or that the
agency's interpretation is unreasonable. Id. at 28a. In this
case, Judge Mikva concluded that the Act is silent, or at best
ambiguous, on the scope of the term "harm," so that the issue
is whether the Secretary's interpretation of that term
constitutes a permissible reading of the ESA. Id. at 29a. He
concluded that it does, expressing the view that the majority's
application of noscitur a sociis was fatally flawed because the
"definition of `take' does not conform to the paradigm of one
broad word alongside many narrow ones." Id. at 30a.
Judge Mikva found additional support for the Secretary's
interpretation in the purpose and legislative history of the

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15

ESA, including the 1982 amendments. The amendments, he
reasoned, demonstrate that Congress thought that the
original Section 9 prohibition against "takings" included some
"incidental takings, " and that by "incidental takings"
Congress clearly meant to include some habitat modification.
Pet. App. 37a-39a.
c. Petitioners filed a petition for rehearing with
suggestion of rehearing en banc, which the court denied on
August 12, 1994. Pet. App. 89a-90a. Judge Williams, writing
for the panel majority, issued a statement accompanying the
order denying rehearing.  In response to petitioners'
contention that the court had ascribed an overly broad reading
to the Secretary's "harm" regulation, the panel majority
expressed the belief that omissions as well as affirmative acts
are embraced by the regulation, and that enforcement of the
regulation would reach habitat modification over vast tracts of
land. Id. at 91a. The panel majority also reiterated its view
that the "harm" regulation imposes on private parties
responsibilities under Section 9 that are identical to those
imposed on federal agencies under Section 7. Id. at 91a-94a.
Finally, in response to petitioners' submission that its
Chevron analysis was flawed and unclear, the panel majority
announced that its invalidation of the regulation was based on
step one of the Chevron analysis and that, in its view, the Act
"manifests a clear determination by Congress" that the
Section 9 "take" prohibition "should not reach habitat
modifications * * * where there is no direct action by the
defendant against any member of the species." Pet. App. 95a.
Four members of the court of appeals voted to grant
rehearing en bane. Pet. App. 90a. Three of those judges-
Judge Silberman, joined by Chief Judge Mikva and Judge
Wald-filed a statement expressing the view that under a
Chevron analysis, the interpretation of "harm" in the
Secretary's regulation should be sustained. Id. at 98a-99a.

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SUMMARY OF ARGUMENT

A. The Secretary of the Interior's interpretation of
"harm" is based on a reasonable construction of the En-
dangered Species Act of 1973 (ESA). Defining "harm" to
include habitat modification or degradation that actually kills
or injures wildlife is consistent with the text and structure of
the Act. The carefully tailored "harm" regulation does not
apply to habitat modification or degradation generally. It is
limited to such actions that actually kill or injure. The
ordinary meaning of "harm" encompasses killing or injuring,
whether by habitat modification or otherwise. The court of
appeals' reliance on noscitur a sociis to invalidate the
Secretary's interpretation was misplaced. Construing
"harm" as extending the "take" definition to embrace all
conduct that comes within the more particular words of the
statute, such as "kill, " gives effect to all the words in the
statute so that none is superfluous. To sustain respondents'
facial challenge to the regulation would be inconsistent with
the object and structure of the Act as a whole.
B. From the outset, Congress intended the prohibition
against the "taking" of endangered species in Section
9(a)(1)(B) to be interpreted broadly to include "every con-
ceivable way in which a person can `take'" wildlife. The
Secretary's regulation has been in effect, with revision in
1981, since shortly after the ESA was enacted and warrants
substantial deference. As early as 1978, this Court cited the
"harm" regulation approvingly in TVA v. Hill, 437 U.S. 153,
185, emphasizing the regulation's inclusion of "significant
environmental modification or degradation." Congress
amended the ESA on the heels of TVA v. Hill to permit federal
projects that obtain an exemption under Section 7 of the Act
to be exempted from the Section 9 "take" prohibition, and any
regulations promulgated thereunder (no doubt including the
"harm" regulation in light, of the virtually contemporaneous

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17

TVA ruling). Congress's 1982 amendment of the ESA
reinforced the validity of the "harm" regulation through the
creation of the incidental take permit process. The text and
history of that permit process leave no doubt that Congress,
like the Secretary, interprets the Section 9 "take" prohibition
to extend, in the absence of such a permit, to actions that
cause a "take" by habitat modification.
C. Contrary to the court of appeals' interpretation, the
Secretary's interpretation of "harm" does not impose on
private parties the same obligations imposed on federal
agencies by Section 7. The court's erroneous reasoning is
based on its misunderstanding of "critical habitat" under the
ESA and its failure to appreciate that various provisions of
the ESA were designed to overlap to further the purposes of
the Act. The court of appeals nonetheless invalidated the
"harm" regulation on the basis of imagined applications that
were not before it. Application of the standard for deter-
mining whether a regulation is valid on its face (i.e., whether
there are any circumstances under which the regulation
would be valid) demonstrates that the Secretary's inter-
pretation should be sustained.
         
ARGUMENT

THE SECRETARY'S INTERPRETATION OF "HARM" IS
BASED ON A REASONABLE CONSTRUCTION OF THE
ENDANGERED SPECIES ACT AND THEREFORE SHOULD
BE SUSTAINED

"[T]he Endangered Species Act of 1973 represented the
most comprehensive legislation for the preservation of
endangered species ever enacted by any nation." TVA v. Hill,
437 U.S. 153, 180 (1978). "The plain intent of Congress in
enacting [the ESA] was to halt and reverse the trend toward
species extinction, whatever the cost." Id. at 184. It is widely
recognized that loss or degradation of habitat most often poses

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18

the greatest risk to endangered and threatened species. Id. at
179; Edward O. Wilson, The Diversity of Life 253, 346
(Belknap Press, Harv. Univ. Press 1992); Daniel J. Rohlf, The
Endangered Species Act: A Guide to its Protection and
implementation 11 (Stan. Envtl. Law Soc'y 1989). When
Congress enacted the ESA in 1973, it concluded that habitat
destruction played a central role in the rising number of
species threatened with extinction. Thus, one of the stated
purposes of the ESA is "to provide a means whereby the
ecosystems upon which endangered species and threatened
species depend may be conserved." 16 U.S.C. 1531(b).
The Secretary of the Interior is charged with
responsibility for implementing and enforcing the ESA. See
16 U.S.C. 1533. The Secretary, through the Director of the
Fish and Wildlife Service, promulgated a regulation, 50 C.F.R.
17.3, to define "harm, " which is one of the words used in the
ESA to define "take." I6 U.S.C. 1532(19). The term "take" is
significant under the ESA both because Section 9 makes it
unlawful for "any person" to "take" an endangered species,
and because Sections 7 and 10 establish procedures for
permitting a "take" that is merely incidental to an otherwise
lawful activity. The Secretary's regulation defines "harm" to
mean an act that "actually kills or injures wildlife," including
"significant habitat. modification or degradation" that causes
those consequences by "significantly impairing essential
behavioral patterns'" of the wildlife, such as "breeding, feeding
and sheltering." 50 C.F.R. 17.3.
When a court reviews an agency's construction of a statute
that it administers, the two-step inquiry prescribed by this
Court in Chevron U.S.A. Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837, 842-843 (1984), governs the 
analysis. At step one, the reviewing court determines
"whether Congress has directly spoken to the precise
question at issue." Id. at 842. If the court determines that    
Congress unambiguous]y expressed an intent on the precise

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19

question, the court must give effect to that intent. Id. at 843.
If the statute is silent or ambiguous with respect to the issue,
however, the court proceeds to step two and determines
whether the agency's interpretation is based on a permissible
construction of the statute. Id. at 843-845. "If the adminis-
trator's reading fills a gap or defines a term in a way that is
reasonable in light of the legislature's revealed design, [the
Court] give[s] the administrator's judgment `controlling
weight.'" NationsBank v. Variable Annuity Life Ins. Co.,
No. 93-1612 (Jan 18, 1995), slip op. 5 (quoting Chevron, 467
U.S. at 844).
Respondents brought this action as a facial challenge to the
"harm" regulation insofar as it embraces any habitat
modification activities. Respondents assume a "heavy
burden" by attacking the regulation on its face. See Rust v.
Sullivan, 500 U.S. 173, 183 (1991), quoting United States v.
Salerno, 481 U.S. 739, 745 (1987). To prevail, they "must
establish that no set of circumstances exists under which the
[regulation] would be valid." Reno v. Flores, 113 S. Ct. 1439,
1446 (1993), quoting United States v. Salerno, 481 U.S. at 745;
see also INS v. National Ctr. for Immigrants' Rights, 112
S. Ct. 551, 555 (1991); cf. Bowen v. Yuckert, 482 U.S. 137, 154
n.12 (1987); California Coastal Comm`n v. Granite Rock Co.,
480 U.S. 572, 593 (1987) (facial preemption challenge defeated
by identifying Possible set of conditions in which state
requirements are not in conflict with federal law). Thus,
respondents must establish that Congress intended that in no
set of circumstances could Section 9's provision forbidding
any person to "take" a protected species-i.e., to "harass,
harm, pursue, hunt, shoot, wound, kill, trap, capture, or
collect" such a species-be applied to conduct that "actually
kills or injures wildlife" by means of "significant habitat
modification or degradation." This respondents failed to do.
The district court sustained the "harm" regulation against
respondents' facial challenge at step one of the Chevron

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20

analysis, holding that the "language, structure and history of
the ESA reveal that Congress intended an expansive
interpretation of the word 'take,' an interpretation that
encompasses habitat modification." Pet. App. 82a-83a. At the
very least, however, the Secretary's interpretation of the
term "harm" is a "permissible" or "reasonable" one in light of
the "revealed design" of Congress in the ESA (NationsBank,
slip op. 5), and it therefore should be sustained under step two
of the Chevron analysis.
As its language makes clear, the regulatory definition of
"harm" does not apply to habitat modification or degradation
generally. It reaches only such acts that in turn actually kill
or injure wildlife This carefully tailored regulation is firmly
supported by the text of the statutory definition of "take," the
structure and purposes of the ESA as a whole, the legislative
history of the original 1973 enactment of the ESA, the
consistent and longstanding administration of the Act, and the
1978 and 1982 amendments to the Act that specifically
addressed the subject of "takes." The court of appeals
therefore erred in holding that the regulation's inclusion of
any habitat modification activities-even those that "actually
kill or injure wildlife''-is invalid on its face.

A. The Text And Structure Of The Act Support The
Secretary's Interpretation

The Secretary's interpretation of the statutory term
"harm" is affirmatively supported by the text and structure of
the ESA in a number of respects.
1. The term "take" is defined in the Act to mean "to
harass, harm, pursue, hunt, shoot, wound, kill, trap, capture,
or collect, or to attempt to engage in any such conduct." 16   
U.S.C. 1532(19). In ordinary usage, the word "harm," in its
verb form, means "to cause hurt or damage to: INJURE," 
Webster's Third New International Dictionary 1034 (1986),   
or "to do or cause harm to; injure; damage; hurt," The
                          
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21

Random House Dictionary of the English Language 873 (2d
ed. 1987). This common understanding of the word
unquestionably encompasses an act that actually "kills or
injures wildlife''-the basic definition of "harm" in the first
sentence of 50 C.F.R. 17.3. Respondents do not challenge that
basic definition of "harm" by the Secretary, and its soundness
is demonstrated by the fact that the definition of "take" in the
ESA itself expressly includes "kill" and "wound."
The second sentence of 50 C.F.R. 17.3, which respondents do
challenge, merely elaborates on the basic definition in the
first sentence by explaining its application in one particular
context. The second sentence specifies that an act con-
stituting "harm" may include the actual killing or injuring of
wildlife by means of "significant habitat modification or
degradation" that "significantly impair[s]" essential behav-
ioral patterns of the wildlife. There is no reason why
Congress would have intended to allow the killing or injuring
of protected wildlife where that consequence is brought about
by the destruction of habitat essential for the wildlife's
breeding, feeding, or shelter, rather than by other means,
such as the discharge of a firearm or similarly direct
application of force (the types of actions to which the court of
appeals believed the "take" prohibition should be limited, see
Pet. App. 4a).
2. The court of appeals in fact acknowledged that the
"potential breadth of the word 'harm' is indisputable" and that
"harm" can be understood to include conduct encompassed by
the regulatory definition. Pet. App. 3a-4a. The court never-
theless rejected the Secretary's interpretation by relying on
the maxim noscitur a sociis. Id. at 6a-7a. That reliance was
misplaced. The assumption underlying the court of appeals'
invocation of noscitur a sociis was that Congress must have
intended for certain words in the definition of "take" that
involve the application of physical force ("hunt," "shoot,"
"trap, " "capture") to furnish a narrowing focus even with

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22

respect to "harm," despite that word's concededly broader
connotation. Whatever utility the maxim noscitur a sociis
might have in other settings, it does not assist respondents
here, especially since the relevant statutory language
contains both broader and narrower terms. 10.
The placement of' "harm" between the words "harass" and
"pursue " in the ESA's definition of "take" is sufficient in
itself to refute the court of appeals' crabbed interpretation, for
neither of those words necessarily (or even ordinarily)
involves the direct application of force. There accordingly is
no reason why the word "harm" should be artificially confined
in that manner. Compare Third Nat'1 Bank in Nashville v.
Impac Ltd., 432 U.S. 312, 322 (1977) (construing term by
reference to words it is "sandwiched in between"); Dole v.
United Steelworkers, 494 U.S. 26, 36 (1990) (statutory term

___________________(footnotes)

10 The maxim noscitur a sociis applies only where "the legislative
intent or meaning of a statute is not clear." 2A Norman J. Singer,
Sutherland Statutes and Statutory Construction 47.16 (5th ed. 1992)
[Sutherland]; Russell Motor Car Co. v. United States, 261 U.S. 514, 519, 520
(1923). Thus, the majority's invocation of the maxim undermines its later
statement (upon the denial of rehearing en bane) that its holding rested on a
finding of an "unambiguously expressed" and "clear" determination by
Congress that Section 9 does not reach the acts of habitat modification
encompassed by the second sentence of 50 C.F.R. 17.3. See Pet. App. 95a.
To be sure, a court may employ traditional tools of statutory construction at
Chevron step one to determine whether Congress expressly resolved the
relevant question, INS v. Cardoza-Fonseca, 480 U.S. 421, 446-447 (1987).
But because resort to the maxim noscitur a sociis necessarily is premised
on some measure of textual ambiguity, a court should not lightly rely on
that maxim to override the agency's interpretation of a particular statutory
term that is otherwise reasonable and consistent with the context of the
statute as a whole. See Michigan Citizens for an Indep. Press v.
Thornburgh, 868 F.2d 1285, 1292 (D.C. Cir.) ("Chevron implicitly precludes
courts' picking and choosing among various canons of statutory construction
to reject reasonable agency interpretations of ambiguous statutes."), aff'd
by an equally divided court, 493 U.S. 38 (1989).

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23

may be "understood to be analogous to the examples sur-
rounding it").
The structure of the statutory definition of "take"
reinforces that conclusion in another respect. A number of
terms at the beginning of the definition ("harass, harm,
pursue") are broader than those that follow ("hunt, shoot,
wound, kill, trap, capture or collect"). When specific words
follow general words in a statutory enumeration, effect is
given "to both the particular and the general words, by
treating the particular words as indicating the class, and the
general words as extending the provisions of the statute to
everything embraced in that class, though not specifically
named by the particular words." Sutherland  47.17, at 189
(describing maxim ejusdem generis, a variation of noscitur a
sociis). In this case, the general word "harm" can be
understood to apply the statutory term "take" to all conduct of
the sort that the other words ("kill," "wound," etc.) merely
exemplify, Brown v. Gardner, 115 S. Ct. 552, 555 (1994),
including conduct that causes such consequences as killing or
wounding by means of significant habitat modification. See 46
Fed. Reg. 29,491 (1981) (J.A. 56-57); 46 Fed. Reg. 54,749 (J.A.
68) ("Congress intended to create a definition of take which
included all of the various ways of killing or injuring
protected wildlife."). This construction gives effect to all the
words in the definition so that none is superfluous, thereby
answering a concern expressed by Judge Sentelle in his
concurring opinion below. See Pet. App. 25a. 11

___________________(footnotes)

11 There is no reasonable definition of "harm" that would not overlap
with some of the other terms. Moreover, the principle against surplusage is
in tension with noscitur a sociis. To avoid surplusage, the word "harm"
must be given meaning that is different from, rather than synonymous
with, the other terms. The court of appeals' interpretation, by contrast,
does render the term "harm" superfluous.

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24

3. Respondents' effort to carve out of the "take"
prohibition those actual killings of or injuries to wildlife that
are brought about by means of habitat modification or
degradation also is inconsistent with "the object and
structure of the Act as a whole." Dole v. United Steel-
workers, 494 U.S. at 36. In TVA v. Hill, this Court described
preservation of endangered species ever enacted by any
nation." 437 U.S. at 180. The Court also noted Congress's
recognition that the destruction of habitat often poses the
greatest risk to protected species, id. at 179, and that the
ESA's "stated purposes were `to provide a means whereby the
ecosystems upon which endangered species and threatened
species depend may be conserved,' and `to provide a program
for the conservation of such . . . species . . . ,'" id. at 180
(quoting 16 U.S.C. 1531(b)). To achieve those purposes, the
Act contains numerous provisions that specifically address, in
varying ways, the protection of habitat. See pages 7-9, supra;
see, e.g., 16 U.S.C. 1533(a)(3), (b)(2) and (b)(6)(C), 1534,
1536(a)(2). It would be directly contrary to both the
comprehensive thrust of the Act and its recognition of the
importance of habitat for species survival to construe the
prohibition against "taking" a protected species not to reach
the actual killing or injuring of wildlife that results from
significant modification or degradation of habitat on which the
wildlife depends for its "essential" behavioral patterns.
Furthermore, as we explain below (see pages 32, 34, infra),
Congress amended Sections 7 and 10 in 1978 and 1982 to
authorize exemptions to the taking prohibition in Section 9 in
particular circumstances, and those exempting provisions are
tailored precisely to accommodate incidental takes of
protected species that are caused by land development and
other forms of habitat modification. Congress's fashioning of
exemptions for habitat modification activities that would
otherwise constitute a "take" of protected species weighs

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25

strongly against an interpretation of the Act that would
altogether exclude such activities from the "take" prohibition
in the first place.

B.  The Validity Of The "Harm" Regulation Is Supported
By The Background Of And Subsequent Amendments
To The Endangered Species Act

Any doubts about whether the Secretary's interpretation of
"harm" represents a reasonable interpretation of the ESA are
removed by a consideration of the legislative history of the
Act in 1973, as well as by the text and legislative history of
the amendments to the Act in 1978 and 1982.
1. The background and legislative history of the 1973 Act
support the Secretary's interpretation of "harm" and under-
mine that of the court of appeals. In the first place, the court
of appeals' attempt to tie "harm" to what it perceived to be
narrower terms in the ESA's definition of "take" that involve
the direct application of physical force ignores the fact that
the inclusion of "harass" and "harm" in the ESA constituted a
marked departure from the definition of "take" in predecessor
wildlife statutes, such as the Migratory Bird Treaty Act
(MBTA), 16 U.S.C. 703 et seq., and the Marine Mammal
Protection Act (MMPA), 16 U.S.C. 1361 et seq. The definition
of "take" under the Migratory Bird Treaty Act omits both
"harm" and "harass." See 16 U.S.C. 703 (1988 & Supp. V
1993). 12. When Congress enacted the MMPA in 1972, it

___________________(footnotes)

12 The Migratory Bird Treaty Act, 16 U.S.C. 703 et seq., was passed 55
years prior to the ESA for the purpose of halting the "indiscriminate
slaughter" of migratory birds. See, e.g., 55 Cong, Rec. 5544-5545 (1917); S.
Rep. No. 2, 65th Cong., 1st Sess. (1917). It prohibits the taking of virtually
every bird in the United States, not just endangered or threatened birds.
Even though the definition of "take" in the Migratory Bird Treaty Act is
undoubtedly narrower than that in the ESA, see Seattle Audubon Soc'y v.
Evans, 952 F.2d 297, 302-303 (9th Cir. 1991) ("[h]abitat destruction causes
`harm' to the owls under the ESA but does not `take' them within the

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26

included "harass" in the definition of "take." See 16 U.S.C.
1362(13) (Supp. 1993). 13. Then, when enacting the ESA in
1973, Congress enlarged the concept of "take" still further by
adding "harm" to the definition. See 16 U.S.C. 1532(19). The
court of appeals' endeavor to maintain conformity with the
narrowest terms defining "take" under the ESA defeats the
deliberate enlargement of that concept under the ESA.

___________________(footnotes)
                    
meaning of the MBTA "), the MBTA has been applied to circumstances that
cannot be characterized as involving a direct application of force. For
example, United States v. FMC Corp., 572 F.2d 902 (2d Cir. 1978), held that
migratory waterfowl were "killed" in violation of the Migratory Bird
Treaty Act's "take" prohibition as the result of the defendant's release of
chemicals in its manufacturing process, even though the defendant did not
intend to harm birds and did not know its action would be lethal to them.

13 Contrary to the court of appeals' suggestion (Pet. App. 5a), United
States v. Hayashi, 22 F.3d 859 (9th Cir. 1993), does not support the court's
conclusion that the "take" prohibition under the ESA requires a
substantially direct application of force. Hayashi involved a criminal
prosecution for violation of the "take" provision under the MMPA. The
Ninth Circuit specifically noted that the ESA "harm" regulation, "is not the
controlling regulatory definition and is an improper starting point for any
MMPA prosecution." 22 F.3d at 864; see also id at 862. The issue in
Hayashi was whether a fisherman's firing of a rifle in order to scare
porpoises away from his fishing lines constituted a criminal "take" by
"harassment" under the MMPA, which is defined by a regulation, see 50
C.F.R. 216.3, that differs from the "harm" regulation at issue here. In
holding that it did not, the court reasoned that the fisherman's action did not
disrupt normal behavioral patterns because feeding from a fishing line is
not part of porpoises' normal eating habits. 22 F.3d at 864-865. The court
also believed that the fisherman's action did not have a significant impact
on the porpoises because the disruption was of short duration and because
regulations also prohibit the feeding of porpoises. Ibid. Thus, Hayashi
turned on the court's conclusion that the activity in question had no    
significant adverse effect on the wildlife's normal and essential behavioral
patterns. Moreover, the ruling in Hayashi is of no continuing importance,
because in Section 12 of the MMPA Amendments of 1994, Pub. L. No. 103-    
238, 108 Stat. 557, Congress enacted a definition of "harassment" that is
more expansive than the Ninth Circuit's interpretation in Hayashi.

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27

The court of appeals' narrow focus on actions that involve
the direct application of physical force also is inconsistent
with the legislative history addressing the word "harass,"
which immediately precedes "harm" in the statutory def-
inition of "take" and which, as pointed out above (see pages 22-
23, supra) does not connote the direct application of physical
force. The House Report on the 1973 Act explained that the
prohibition of actions that "harass" species, "whether
intentional or not," would allow the "Secretary to regulate or
prohibit the activities of birdwatchers where the effect of
those activities might disturb the birds and make it difficult
for them to hatch or raise their young." H.R. Rep. No. 412,
93d Cong., 1st Sess. 11 (1973).14 Such otherwise benign
actions as birdwatching do not reasonably fit the supposed
paradigm of direct physical force applied against an animal.
See Palila v. Hawaii Dep't of Land & Natural Resources, 852
F.2d 1106, 1108-1109 (9th Cir. 1988) (Palila II) ("If the
`harassment' form of taking includes activities so remote from
actual injury to the bird as birdwatching, then the `harm' form
of taking should include more direct activities.''-in that case,
the maintenance of sheep that fed on and destroyed woodlands
on which an endangered species depended for survival). 15.
Finally, a narrow focus on physical blows to the body of
individual animals would defeat the intent expressed by the
responsible congressional committees that "take" have a
broad scope. See S. Rep., No. 307, 93d Cong., 1st Sess. 7 (1973)

___________________(footnotes)

14 The passage from the House Report quoted in the text also confirms
that the taking prohibition focuses on the "effect" the conduct has on a
species, rather than on the means by which the effect is brought about.

15 Palila II was a suit by environmental groups against the State of
Hawaii for maintaining feral sheep in the remaining habitat areas of the
endangered Palila bird. The sheep were maintained for hunting, but their
overbrowsing and destruction of trees upon which the Palila depended for
its survival were held to cause a "take" in violation of Section 9.

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28

("'Take' is defined * * * in the broadest possible manner to
include every conceivable way in which a person can 'take' or
attempt to 'take' any fish or wildlife."); see also H.R. Rep. No.
412, 93d Cong., 1st Sess. 11, 15 (1973).
The court of appeals believed that its narrow reading of
"take" was supported by the failure of the Senate Committee
on Commerce to adopt a definition in the version of the bill (S.
1983, 93d Cong., 1st Sess. (1973)) that, as introduced, would
have made modification of habitat a form of "take." See Pet.
App. 8a-9a. The proposal in question, however, would have
made all destruction, modification or curtailment of a listed
species' habitat or range a "take," regardless of the effect on a
listed species. 16. In other words, under that provision, habitat
modification would have been a per se violation of Section 9.
The provision did not contain the limitations inhering in the
concept of "harm" to the species itself. "Harm" was added to
the definition of "take" later in the legislative process (after
the habitat modification provision was omitted) and, under the
Secretary's interpretation, it applies only if the habitat
modification or degradation is significant and actually kills or
injures protected wildlife.
Moreover, S. 1983 was one of two endangered species bills
under consideration by the Senate committee. The other bill
contained all of the terms in the definition of "take" as finally
enacted except "harass" and "harm." See S. 1592, 93d Cong.,
1st Sess. 2(d)(4) (reproduced at 119 Cong. Rec. 12,432 (1973)).
The bill reported out of committee included the terms in
S. 1592 as introduced, plus "harass" from S. 1983. See S. Rep.
No. 307, supra, at 14. The Senate Report did not explain why
the Committee included some terms in the definition but not

___________________(footnotes)

16 The bill in question defined "take" to mean to "threaten, harass, hunt,
capture, or kill [an endangered species] * * * or the destruction,
modification, or curtailment of its habitat or range." S. 1983, 93d Cong., 1st
Sess.  3(6) (1973).

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29

others, but it did express the intent (quoted above) to define
"take" in the "broadest possible manner to include every
conceivable way in which a person can `take' " fish or wildlife.
Id. at 7. The Word "harm" was then added during the Senate
floor debate as part, of a package of amendments that were
intended "to achieve the purposes of the bill" and to "clarify
some confusion caused by language remaining in the bill from
earlier drafts or omitted from earlier drafts which went
unnoticed during the final committee markup." 119 Cong.
Rec. 25,683 (1973) (Sen. Tunney). In these circumstances, the
Senate committee's failure to adopt a provision referring
broadly to habitat modification per se (without regard to any
effect on wildlife) does not suggest that the Secretary acted
unreasonably in giving a far more circumscribed scope to a
different term ("harm") under a regulation that does focus on
resulting injury or death to wildlife. Cf. United States v. Lee,
937 F.2d 1388, 1391 (9th Cir. 1991) (declining to give limiting
significance to deletion of word in Lacey Act because overall
congressional intent was to expand scope of the Act), cert.
denied, 112 S. Ct. 977 (1992). 17
2. The Secretary promulgated the original version of the
"harm" regulation in 1975 (50 C.F.R. 17.3; see 40 Fed. Reg.
44, 412, 44,416 (J.A. 49, 51)), shortly after the ESA was passed.
Following the 1981 revision (46 Fed. Reg. 54,748 (J.A. 65)), it
has remained in effect ever since. The regulation therefore

___________________(footnotes)
                               
17 The legislative history likewise does not support the court of appeals'
suggestion that Congress intended land acquisition pursuant to Section 5 of
the ESA to be the exclusive means by which habitat destruction on private
lands can be curbed under the ESA. The legislative history cited by the
court of appeals (Pet. App. 8a-9a) simply indicates that Congress considered
acquisition of private land to be one available tool in addressing habitat
concerns. It would depart from the ESA's comprehensive design to assume
that Congress compartmentalized the problems associated with endangered
species and provided only a single solution to a complex problem-
especially one as central to the Act as the habitat of protected species.

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30

represents the Secretary's contemporaneous and long-
standing interpretation of the term "harm," and as such is
entitled to particular deference. See Brown v. Gardner, 115
S. Ct. at 557, citing Zenith Radio Corp. v. United States, 437
U.S. 443, 450 (1978). The subsequent history of the regulation
and the provisions later added to the Act to address the "take"
prohibition validate that interpretation and build upon the
protection it affords.
3. Significantly, only three years after the "harm"
regulation was promulgated, this Court discussed the
regulation's operation and its place in the overall statutory
scheme in TVA v. Hill. The Court stated:

The plain intent of Congress in enacting this statute was
to halt and reverse the trend toward species extinction,
whatever the cost. This is reflected not only in the stated
policies of the Act, but in literally every section of the
statute. All persons, including federal agencies, are
specifically instructed not to "take" endangered species,
meaning that no one is "to harass, harm, pursue, hunt,
shoot, wound, trap, capture, or collect" such life forms.

437 U.S. at 184-185 (quoting 16 U.S.C. 1538(a)(1)(B) (1976)). In
a footnote to the word "harm" in the statutory definition of
"take," the Court quoted (with emphasis) the "harm"
regulation's inclusion of "significant environmental modifi-
cation or degradation" that actually injures or kills wildlife,
and explained that it did "not understand how TVA intends to
operate Tellico Dam without `harming' the snail darter." 437
U.S. at 184-185 n.30. In light of this Court's early recognition
of the central role played by the take prohibition (specifically
including the "harm" regulation) in achieving the overall
purposes of the Act, the Court should be reluctant, 17 years
later, to endorse an interpretation of "harm" that would
render the current version of that same regulation facially
invalid insofar as it interprets the Act to prohibit those

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31

significant modifications or degradations of habitat that
actually kill or injure protected wildlife.
4. When Congress enacted the Endangered Species Act
Amendments of 1978, Pub. L. No. 95-632, 92 Stat. 3752, in the
immediate wake of this Court's decision in TVA v. Hill (see
H.R. Rep. No. 1625, 92d Cong., 2d Sess. 3-4, 10 (1978)), it chose
to retain the "harm" regulation in effect. During the
extensive hearings that preceded those amendments, repre-
sentatives of the timber industry and other witnesses called
attention to the "take" prohibition in Section 9, its application
to activities on private land, and the regulation defining
"harm" to include significant environmental modification or
degradation that significantly disrupts normal behavioral
patterns; and a number of witnesses urged Congress to refine
the statutory definition of "take" so as to exclude land
management activities on private lands. 18. In response to those
criticisms, Senator Garn proposed (and later withdrew)
amendments that included the following redefinition of "take":

The term "take" means purposefully to harass, harm,
pursue, hunt, shoot, wound, kill, trap, capture, or collect,
or to attempt to engage in any such conduct which is
inimical to the continued existence of an endangered or
threatened species. It does not include effects from
normal forestry, farming, ranching or water management
practices.

___________________(footnotes)

18 Endangered Species Oversight: Hearings Before the Subcomm. on
Resource Protection of the Senate Comm. on Environment and Public
Works, 95th Cong., 1st Sess. 306-307, 316 (1977); Amending the Endangered
Species Act of 1973: Hearings on S. 2899 Before the Subcomm. on Resource
Protection of the Senate Comm. on Environment and Public Works, 95th
Cong., 2d Sess. 50, 52, 59, 222, 260, 389 (1978); Endangered Species, Parts 1
& 2: Hearings Before the Subcomm. on Fisheries and Conservation and the
Environment of the House Comm. on Merchant Marine and Fisheries, 95th
Cong., 2d Sess. 206, 211, 223, 413, 724-725, 726-727 (1978).

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32

124 Cong. Rec. 21,565 (1978).
Despite the attention focused on the subject, Congress did
not revise the statutory definition of "take" or modify the
general operation of the prohibition in Section 9 as it affects
habitat-modification activities encompassed by the "harm"
regulation. Instead, Congress responded in a far more limited
manner that was premised on the regulation's continued
existence. It did so by providing relief from the "take"
prohibition in the specific context of the exemption
mechanism it added in Section 7(h) of the Act, 16 U.S.C.
1536(h), which permits a project that would otherwise violate
Section 7(a)(2) to go forward if it is authorized by a specially
constituted Endangered Species Committee. See 16 U.S.C.
1536(e)-(o). Recognizing that an exemption from Section
7(a)(2) would not remove a project from the "take" prohibition
in Section 9(a), Congress included Section 7(o) in the Act to
provide (emphasis added):
  
Notwithstanding sections 4(d) and 9(a) of this Act or
any regulations promulgated pursuant to such sections,
any action for which an exemption is granted under
subsection (h) of this section shall not be considered a
taking of any endangered or threatened species with
respect to any activity which is necessary to carry out
such action.

Pub. L. No, 95-632, 3, 92 Stat. 3759 (codified at 16 U.S.C.
1536(o) (Supp. III 1979)). 19
Against the backdrop of this Court's discussion of the
"harm" regulation in TVA v. Hill only five months earlier, as

___________________(footnotes)

19 The House Report explained that this provision (which was then
contained in Section 7(k)(2) of the bill, see H.R. Rep. No. 1625, supra, at 51)
was included "in recognition of the fact that even though a project might be
exempted from the requirements of section 7, section 9 of the act would still
prohibit the `taking' of any endangered animal species. " H.R. Rep. No.
1625, supra, at 25.

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33

well as the specific discussion of that regulation in the
legislative history of the 1978 amendments, the reference in
the new Section 7(o) to "regulations promulgated pursuant to
[section 9(a)]" plainly encompasses the "harm" regulation. 20.
Yet far from disapproving that regulation or the interpre-
tation of "harm" it embodied, Congress instead carved out
only a narrow exception to the "take" prohibition and its
implementing regulations and otherwise left those regul-
ations in place.
5. Following the 1978 amendments to the Act, the
Secretary revised the "harm" regulation in 1981 to clarify
that it applies only to significant habitat modification or
degradation that actually kills or injures a species. See page

___________________(footnotes)

20 During floor consideration of the bill, the House, by a roll-call vote of
231-157, adopted an amendment that would have entirely exempted the
Tellico Dam Project from the Act and also would have provided that any
"harassment, harm, killing or wounding" of any endangered or threatened
species attributable to the construction or operation of the project would not
be considered to be a taking under Section 9(a)(1). 124 Cong. Rec. 38,148
(1978); see id. at 38,150-38,151. The Senate bill did not contain such a
provision. The Conference Committee adopted and Congress enacted a
compromise that called for expedited consideration of the Tellico Dam
Project under the special exemption provisions added to Section 7. See
Pub. L. No. 95-632, 5, 92 Stat. 3761 (codified at 16 U.S.C. 1539(i)(1) (Supp.
III 1979)); the Endangered Species Committee subsequently declined to
grant an exemption, see Congressional Research Service, Senate Comm. on
Environment and Public Works, 97th Cong., 2d Sess., A Legislative History
of the Endangered Species Act of 1973, as amended, at Part V, pp. 1235-1236
(Comm. Print 1982). Congress thereafter directed TVA to complete
construction and operation of the Tellico Dam and Reservoir,
"notwithstanding the provision of 16 U.S.C. chapter 35 [the ESA], or any
other law." Pub. L. No. 96-69, Tit. IV, 93 Stat. 449. H.R. Conf. Rep. No.
1804, 95th Cong., 2d Sess. 24-25 (1978). The special provision in the ESA for
expedited consideration of the Project was then repealed (and replaced by
another provision in 16 U.S.C. 1539(i) that is of no relevance here) by
Section 6(5) of the Endangered Species Act Amendments of 1982, Pub. L.
No. 97-304,96 Stat. 1424. 

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34

6, supra. Congress then amended the Act once again in the
Endangered Species Act Amendments of 1982, Pub. L. No. 97-
304,96 Stat. 1411. In a number of respects, those amendments
further reinforce the validity of the "harm" regulation.
a. Of particular relevance to this case, Congress affirm-
atively acted in 1982 to lessen the restriction imposed by
Section 9's take prohibition by authorizing the Secretary to
issue permits under Section 10 to allow a taking that is
"incidental to, and not the purpose of, the carrying out of an
otherwise lawful activity." 16 U.S.C. 1539(a)(1)(B) (as added
by Pub. L. No. 97-304, 6, 96 Stat. 1422). The background and
text of that provision show that Congress, like the Secretary,
understood Section 9 to prohibit actions that cause a "take"
through habitat modification.
The House Report made clear that "by use of the word
'incidental' the Committee intend[ed] to cover situations in
which it is known that a taking will occur if the other activity
is engaged in hut such taking is incidental to, and not the
purpose of, the activity." H.R. Rep. No. 567, 97th Cong., 2d
Sess. 31 (1982), Thus, "incidental" was not intended to cover
simply inadvertent takings of a listed species that might
occur in conjunction with, e.g., the trapping or hunting of a
nonlisted species. Rather, it was intended to include takings
that are known ahead of time to be a consequence of an
otherwise lawful activity-precisely the situation that arises
when there are incidental takings through land development
or other types of habitat modification or degradation.
The applicability of the incidental take permit process to
habitat modification is also reflected in the text of Section 10
that describes the "conservation plan" that must be prepared
by an applicant. See 16 U.S.C. 1539(a)(2). In the conservation
plan, the applicant must specify, inter alia, the "impact" that
is likely to result, from the taking and what steps the applicant
will carry out to "minimize and mitigate" such impacts. 16
U.S.C. 1539(a)(2)(A)(i) and (ii); see also 16 U.S.C. 1539(a)(2)

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35

(B)(i) and (ii). The focus on minimization and mitigation
demonstrates that Congress was concerned not merely with
inadvertent takings that might occur during hunting or
trapping, but also with those having varying degrees of impact
that could be determined ahead of time and controlled-that is,
actions such as habitat modification that can often be tailored
in their scope, timing, or location. Thus, based on the
statutory text that Congress enacted in 1982 to add flexibility
to Section 9's take prohibition, it is all the more reasonable for
the Secretary to interpret the category of permitted
"takes''-those that are merely "incidental" to otherwise
lawful activity-to encompass habitat modification or degrad-
ation that actually kills or injures protected wildlife.
Congress's enactment of a detailed mechanism for permitting
such activities under specified conditions weighs against a
construction of the prohibition that would not bar those
activities in the first place.
The legislative history shows, moreover, that Congress had
incidental takes through habitat modification specifically in
mind when it created the Section 10 incidental take program.
The permit process was described in the Senate Report as
being modeled after the response to a specific situation in San
Mateo County, ("California, in which the "taking" of endanger-
ed butterflies was incidental to "the development of some 3000
dwelling units" on a site inhabited by the species-i.e., was
incidental to habitat modification. S. Rep. No. 418, 97th Cong.,
2d Sess. 10 (1982). 21. The Conference Report similarly

___________________(footnotes)

21 The cited development is described further in Friends of Endangered
Species, Inc. v. Jantzen, 760 F.2d 976 (9th Cir. 1985); Endangered Species
Act: Hearings Before the Subcomm. on Fisheries and Wildlife Conservation
and the Environment of the House Comm. on Merchant Marine and
Fisheries, 97th Cong., 2d Sess. 331-335 (1982) [1982 House Hearings]. Not
surprisingly, that housing development project received the frost Section 10
incidental take permit issued by the FWS. See generally Timothy Beatley,
Habitat Conservation Planning 23-24, 54-68 (Univ. of Texas Press 1994).
    
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36

discussed the San Mateo project in detail, noting that large
portions of the butterflies' habitat was privately owned, that
the County had conducted an exhaustive study of the location
of the butterflies and "their food plants," and that the
conservation plan developed through governmental and private
efforts "preserves sufficient habitat to allow for enhancement
of the survival of the species." See H.R. Conf. Rep. No. 835,
97th Cong., 2d Sess. 30-32 (1982).22

___________________(footnotes)

22  In discussing the significance of the 1982 amendments, the court of
appeals suggested (Pet App. 11a) that the "key example" of the sort of
problem Congress had in mind when it enacted Section 10 was the
incidental take caused by a water intake associated with a proposed nuclear
power plant. See 1982 House Hearings at 358; Endangered Species Act
Amendments of 1982: Hearings Before the Subcomm. on Environmental
Pollution of the Senate Comm. on Environment and Public Works, 97th
Cong., 2d Sess, (1982) 299-303 [1982 Senate Hearings]. The nuclear power
plant would have resulted in a taking because it would have caused the
"entrainment or impingement" of Shortnose Sturgeon eggs, larvae or
adults. 1982 House Hearings at 358. The court of appeals suggested that
such a taking is not the result of "habitat modification" and that the
conservation plan required by Section 10(a) made the most sense for this
type of incidental "take." Pet. App. 12a. Both suggestions are faulty.
First, construction and operation of a water intake structure is
appropriately characterized as "habitat modification" within the meaning
of 50 C.F.R. 17.3. See, e g., United States v. Glenn- Colusa Irrigation Dist.,
788 F. Supp. 1126, 1133 (E.D. Cal. 1992) (water district's pumping "harms"
fish within the meaning of 50 C.F.R. 17.3 by creating water velocity that
causes salmon to be pinned or battered against screens or by diverting fish
into channels full of predators).
Second, there is no foundation for the court of appeals' suggestion that
the nuclear power plant example played the primary instigating role in
Congress's authorization of incidental take permits. As explained in the
text, the congressional reports and hearings demonstrate that Congress had
takes by habitat modification primarily in mind. Moreover, Section 10
applies only to non-federal projects. The proposed nuclear power plant,
however, required a federal permit and thus had to meet the Section 7(a)(2)
"jeopardy" and "critical habitat" restrictions. Northeast Utilities sought an
amendment to the ESA because its project would have remained subject to

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37

Also, in the hearings that preceded enactment of the 1982
amendments, objections to the regulatory definition of "harm"
were once again voiced. 23. Similarly, the Ninth Circuit's
decision in Palila v. Hawaii Dep't of Land & Natural
Resources, 639 F.2d 495 (1981) (Palila I), finding a prohibited
taking based on "harm" caused by habitat modification, was
before Congress during its consideration of the 1982
amendments. 1982 House Hearings at 273, 291, 331. It
therefore is not surprising that the Senate Report
specifically noted that "section 9 * * * prohibits the taking of
any endangered fish or wildlife, including harm which may
occur as a result of habitat modification ." S. Rep. No. 418,
supra, at 26 (emphasis added); 24 see also H.R. Rep. No. 567,

___________________(footnotes)
                     
the take prohibition in Section 9 even if it had complied with Section 7(a)(2).
1982 House Hearings at 358-360; 1982 Senate Hearings at 297-309.
Northeast proffered its illustration to support its proposal that the ESA be
amended to provide that a project be immunized from Section 9 whenever
the Secretary issues a "no jeopardy" opinion in connection with Section 7
consultation on a project-a problem separately addressed by Congress's
enactment of Section 7(b)(4) and (o)(2), discussed at pages 38-39, infra.
Northeast explicitly suggested, however, that "where no Section 7
consultation has been obtained because there is no federal involvement in
the activity, Section 9 would remain fully operative." 1982 House Hearings
at 360.

23 See 1982 House Hearings at 240, 262, 273, 328-329, 331, 343; see also
1982 Senate Hearings at 320-321.

24 The passage in the Senate Report quoted in the text was part of the
discussion of an amendment to Section 9(a)(2) (now codified, as later
amended, at 16 U.S.C. 1538(a)(2)(B)), that makes it unlawful to remove and
reduce to possession endangered species of plants on federal lands. See
Pub. L. No. 97-304, 9(b)(i), 96 Stat. 1426. The Report explained that
although Section 9 "prohibits the taking of endangered species of fish or
wildlife," it "does not * * * prohibit the taking of endangered plants," and
that, as a result, "harm to species of plants" that "may occur as a result of
"habitat modification" would not be within the scope of the new prohibition
against removal of plants from federal lands. S. Rep. No. 418, supra, at 26.

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38

supra, at 15 (incidental take permit provisions will respond to
"situations where the unintentional taking may occur on
private lands owned by a developer" and assist "private land
owners" who present a "conservation plan"); id. at 31
(amendment to Section 10 addresses concerns of "private
landowners").
b. Congress also amended Section 7 of the Act in 1982 to
provide for the Secretary to issue an incidental take
statement as part of the biological opinion that he prepares at
the conclusion of the formal consultation process under
Section 7(a)(2). See 16 U.S.C. 1536(b)(4). The terminology of
that provision directly parallels that of the incidental take
permit provision added to Section 10, discussed above, and for
that reason it likewise confirms that incidental takes include
those brought about by habitat modification or degradation of
the sort described in the "harm" regulation. In addition,
Congress enacted a new Section 7(o)(2) of the Act to provide
that "[n]otwithstanding sections 4(d) and 9(a)(1)(B) and (C) or
any regulation promulgated to implement either such
section ," any "taking that is in compliance with the terms and
conditions specified in a written [incidental take] statement
provided under subsection (b)(4) (iii) [of Section 7] shall not be
considered to be a taking of the species concerned." Pub. L.
No. 97-304,  4(a)(7), 96 Stat. 1420 (emphasis added) (codified at
16 U.S.C. 1536 (o) (2) (1982). 25. By virtue of the emphasized

___________________(footnotes)

Thus, Congress once again tailored the Act with specific reference to the
"harm" regulation.

25 See H.R. Rep. No. 567, supra, at 26-27. The same provision of the
1982 amendments also reenacted (as Section 7(0 )(1) of the ESA) the
exception from the take prohibition in Section 9(a) and implementing
regulations for activities that are covered by an exemption granted under
Section 7(h) of the Act. See 16 U.S.C. 1536(o)(1).

In 1986, subsection (b)(4) of Section 7 was amended to move the reference
to the terms and conditions in the incidental take statement from subsection
(b)(4) (iii) to a new subsection (b)(4)(iv) (where they now appear), and

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39

language, Congress once again specifically recognized in the
text of the Act itself the "regulation[s]" promulgated to
"implement," inter alia, the prohibition in Section 9(a)(1)(B)
against the taking of protected species. 26. In light of the

___________________(footnotes)

subsection (b)(4)(iii) was revised to provide for the incidental take
statement to specify, in the case of marine mammals, the measures
necessary to comply with Section 101(a)(5) of the Marine Mammal
Protection Act (16 U.S.C. 1371(a)(5)) with regard to such taking. Pub. L.
No. 99-659,  411(b)(4)-(6), 100 Stat. 3742 (codified at 16 U.S.C. 1536(b)(4)(iii)
and (iv)). Corresponding amendments were made in 1986 to Section 7(o).
These amendments consisted of the addition of Sections 101 and 102 of the
MMPA (16 U.S.C. 1371 and 1372) to the "notwithstanding" clause at the
beginning of Section 7(o); the substitution of subsection (b)(iv) for subsection
(b)(iii) in Section 7(o)(2); and the insertion of the word "prohibited" before
"taking" in Section 7(o)(2). See Pub. L. No. 99-659,  411(c), 100 Stat. 3742.
These amendments are reflected in the 1988 codification of Section 7(o)(2).
See 16 U.S.C. 1536(o)(2); see also 132 Cong. Rec. 31,294-31,295, 32,185 (1986)
(describing 1986 amendments to ESA).

26 There is yet another feature of the 1982 amendments (involving
"experimental populations") that is premised upon and accommodates the
"harm" regulation's inclusion of certain habitat modifications within the
statutory take prohibition. The Senate Report explained that the Secretary
already had the authority to establish "experimental populations" to aid
recovery of a species, such as by reestablishment in the wild of captive-bred
animals. The Report continued: "Other Federal agencies, State officials
and private individuals, however, are reluctant to allow experimental or
new populations of endangered species to be established on their land for fear
that the section 7 jeopardy standard, critical habitat designation, and the
section 9 taking prohibitions will be applied to limit their land management
options." S. Rep. No. 418, supra, at 3 (emphasis added). Congress's
response was not to repeal the application of Section 9 to all "land
management" activities, which is the result the court of appeals reached.
Instead, Congress established a special mechanism in a new Section 10(j) to
add still further flexibility to the take prohibition in the particular context
of experimental populations. See id. at 3-4, 7-9; Pub. L. No. 94-307,  6(6),
96 Stat. 1424 (codified at 16 U.S.C. 1539(j)). Congress provided, inter alia,
for experimental populations of endangered species to be treated as
threatened species, see 16 U.S.C. 1539(j)(2)(C), which has the effect of

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40

prominence during congressional consideration of the 1982
amendments of the "harm" regulation and the taking of
species caused by habitat modification, Section 7(o)(2)-
together with the provisions elsewhere in Section 7 and in
Section 10 for allowing such incidental takings in particular
circumstances-must be regarded as a congressional ratifi-
cation of the interpretation of "harm" embodied in the
Secretary's regulation.

C. The Court of Appeals' Reasons for Rejecting the
Secretary's Reasonable Interpretation of "Harm" Are
Without Merit

We have explained in Points A and B that the interpretation
of "harm" set forth in 50 C.F.R. 17.3 is affirmatively supported
by the text and structure of the ESA, its legislative history,
this Court's decision in TVA v. Hill, and the subsequent
amendments to the Act in 1978 and 1982. The court of appeals
failed to appreciate the strength of each of those con-
siderations, and we have already answered its efforts to
minimize them in the course of our discussion above.
The court of appeals advanced several additional objections
to the Secretary's interpretation, based on the overlap it
believed the Secretary's interpretation would create between
Sections 7 and 9 of the Act and the potential breadth it
ascribed to that interpretation. Those remaining objections
are without merit.

___________________(footnotes)

removing such populations from the automatic coverage of the take
prohibition in Section 9(a)(1)(B) itself and instead subjecting the application
of that prohibition to experimental populations to the discretion of the
Secretary under Section 4(d), 16 U.S.C. 1533(d). The experimental
populations of gray wolves that were recently introduced into central Idaho
and into Yellowstone National Park in Montana (and that are endangered
in those areas) are covered by that special provision.  See 50 Fed. Reg.
60, 252 (1994).

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41

1. Contrary to the court of appeals' interpretation, the
Secretary's interpretation of "harm" for purposes of the
Section 9 prohibition against the taking of listed species does
not impose on private parties the equivalent of federal
agencies' Section 7 obligation to avoid destruction or adverse
modification of critical habitat. The Secretary's "harm"
regulation prohibits only habitat modification that causes
actual death or injury, and does not prohibit habitat
degradation that merely retards recovery. See Palila II, 852
F.2d at 1108-1110.
The court of appeals incorrectly suggested (Pet. App. 92a-
93a) that because "critical habitat" is defined as areas
"essential to the conservation of the species," any alteration
or use of land designated as "critical habitat" necessarily will
result in prohibited "harm" to the species. That is not true.
The obligations on federal agencies arising from Section 7 are
more extensive than those imposed on such agencies and other
persons by Section 9. An action may result in the destruction
or adverse modification of critical habitat, and yet not result
in a taking of an endangered species because it does not
"actually kill or injure wildlife." For example, where there is
an area designated as critical habitat for a species but not
currently inhabited by the species, 27. a federal agency may be
prevented by Section 7 from authorizing or carrying out
action in the area, such as the harvesting of trees that, if
allowed to stand, would likely attain the attributes of suitable

___________________(footnotes)

27 As explained above, see note 5, supra, critical habitat includes areas
that are not occupied by the species, but are nonetheless "essential to the
conservation of the species," 16 U.S.C. 1532(5). Conservation means the use
of all methods necessary to recover the species so that it may be removed
from the lists of species protected by the ESA. 16 U.S.C. 1532(3). Critical
habitat for many species therefore includes areas the protection of which is
crucial to the species' recovery but not to its bare survival.

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habitat for the species. Harvest of a similar area would not,
however, be prevented by the Section 9 "take" prohibition. 28
At the same time, the Section 9 "take" prohibition may
restrict conduct that would not violate Section 7. A particular
action may cause a taking of individual members of a listed
species, but not adversely affect the species as a whole to such
an extent that it violates the "jeopardy" prohibition or critical
habitat restrictions in Section 7(a)(2). For example,
interference with the spawning of particular fish would
constitute prohibited "harm" to those fish because of its
interference with their breeding, but its transitory nature
and spatially circumscribed effect would likely prevent it from
triggering a determination of "jeopardy" to the species or
"adverse modification" of its critical habitat. Also,
modification of habitat that actually kills or injures wildlife
(and therefore constitutes a prohibited "take"), but is not
within critical habitat designated under Section 4,29 does not
         
___________________(footnotes)

28 Part of the reason for the court's erroneous analysis was its apparent
misinterpretation of critical habitat as "simply another way of referring to
habitat modifications so significant to the species that they might lead to
death (or at least some very serious injury) for members of the species."
See Pet. App. 92a. As noted above (see notes 5 and 27 supra), however, in
appropriate cases, unoccupied potential habitat may be designated as
critical for a listed species in order to provide for "natural range expansion
into adjacent suitable habitat." 49 Fed. Reg. 38,904 (1984). Indeed,
designation of critical habitat is most likely to furnish meaningful
additional protections for listed species when federal actions are likely to
take place that will impact upon suitable, but unoccupied, habitat.

29 Under Section 4 of the ESA, the Secretary's decision whether to
designate critical habitat for a species is not solely a biological judgment.
The Secretary is also required to consider and weigh "the economic impact,
and any other relevant impact," of such a designation. 16 U.S.C. 1533(b)(2).

Moreover, the Secretary "may exclude any area from critical habitat if
he determines that the benefits of such exclusion outweigh the benefits of
specifying such area as part of the critical habitat, unless he determines
based on the best scientific and commercial data available, that the failure

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43

violate Section 7 unless it rises to the level of jeopardizing the
continued existence of the listed species.
Thus, Sections 9 and 7 are not rendered coextensive by the
"harm" regulation. They do overlap to some degree, however,
as do many provisions of the ESA. Indeed, it is by design that
various sections of the ESA provide for protection of
endangered and threatened species through a variety of
measures. For example, within Section 7(a)(2) itself, the
determination whether a federal action is "likely to jeopardize
the continued existence" of a listed species may overlap with
the determination whether the action is likely to "result in
the destruction or adverse modification" of habitat designated
by the Secretary as "critical." 16 U.S.C. 1536(a)(2). In a
similar vein, the fact that an action that would "jeopardize the
continued existence" of a listed species or "destroy or
adversely modify" its critical habitat in contravention of
Section 7 may also result in a taking of the species in violation
of Section 9 does not render either Section superfluous. Nor
does any such overlap indicate that the Secretary's inter-
pretation of "harm" is unreasonable.

___________________(footnotes)

to designate such area as critical habitat will result in the extinction of the
species concerned." 16 U.S.C. 1533(b)(2). Designation of critical habitat is
authorized only "to the maximum extent prudent." 16 U.S.C.
1533(b)(6)(C)(ii). By regulation, "[a] designation of critical habitat is not
prudent when one Or both of the following situations exist: (i) The species is
threatened by taking or other human activity, and identification of critical
habitat can be expected to increase the degree of such threat to the species,
or (ii) Such designation of critical habitat would not be beneficial to the
species." 50 C.F.R. 424.12(a)(1)(i) and (ii) (emphasis added). The factors to
be considered in individual cases include whether "designation of critical
habitat may generate public antagonism that could lead to vandalism" of
habitat, and whether there would a "net benefit to the conservation of the
species and their habitats." 49 Fed. Reg. 38,903 (1984).

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It is significant in this regard that both Section 7 and
Section 9 apply to federal agencies. 30. As we have explained
above (see pages 32, 38, supra), Congress addressed their
interaction and provided for their accommodation in Section
7(b) and (o) of the Act, specifically recognizing that
authorization or exemption of a project under Section 7 does
not exempt it from the taking prohibition in Section 9. 31. The
court of appeals therefore erred in relying on the existence of
critical habitat restrictions in Section 7, which do not even
apply to private persons (except when such persons apply for
a federal permit or license), as a reason for also construing
Section 9 not to apply to habitat modification or degradation
by private parties-even when it actually kills or injures
protected wildlife.
2. Far from applying the proper standard for determining
whether a regulation is invalid on its face (i.e., whether there
are any circumstances under which the regulation would be
valid), the court of appeals took the opposite approach-it
invalidated the "harm" regulation on the basis of imagined
applications that were not before it. That analytical error
manifested itself in a number of ways.

___________________(footnotes)
                    
30 The "take" prohibition in Section 9(a)(l)(B) applies to "any person," 16
U.S.C. 1538(a)(1)(B), and "person" is defined to include any "department, or
instrumentality of the Federal Government." 16 U.S.C. 1532(13).

31 Section 7(o) confirms Congress' awareness that a Section 9 "take"
may occur even though the action does not violate Section 7(a)(2). Thus,
Section 7(o)(2) provides that any taking that is in compliance with the
terms and conditions of an "incidental take" statement (see 16 U.S.C. 1536
(b)(4) (iv); page 38, supra) shall not be considered a prohibited take, and
Section 7(o)(1) provides that any action granted an exemption under Section
7(h) shall not be considered a "taking" of listed species. See H.R. Rep. No.
1625, Supra, at 25) (Section 7(o)(1) was included "in recognition of the fact
that even though a project might be exempted from the requirements of
section 7, section 9 of the act would still prohibit the `taking' of any
endangered animal species").

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a. The court of appeals failed to take into account the fact
that the requirement of showing "actual death or injury"
directly traceable to habitat-disturbing actions imposes
significant limitations on the regulation's application. When
the Secretary revised the "harm" regulation in 1981, he
emphasized the circumscribed reach of its second sentence.
He explained that the

additional language makes it clear that habitat modifi-
cation or degradation, standing alone, is not a taking
pursuant to section 9. 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. The word "impair" was substituted for "disrupt"
to limit harm to situations where a behavioral pattern was
adversely affected and not simply disturbed on a
temporary basis with no consequent injury to the
protected species.

46 Fed. Reg. 54,750 (1981) (J.A. 72).
The court of appeals also overlooked the cases in which
courts have applied the regulation in an appropriate manner. 32.
The courts that have found violations of the regulation have
recognized that it applies only where actual injury or death
directly traceable to the actions of the defendant has occurred
or will occur. See, e.g., Palila I, 639 F.2d at 498; Palila II, 852
F.2d at 1108-1110: Sierra Club v. Yeutter, 926 F.2d 429 (5th
Cir. 1991) (enjoining Forest Service from even-aged lumber
practices following documentation of dramatic decline in red-
cockaded woodpecker colonies found traceable to lumbering

___________________(footnotes)

32 The fact that other courts of appeals have upheld particular
applications of the challenged regulation should weigh heavily in favor of
upholding its facial validity See National Treasury Employees Union
(NTEU) v. Bush, 891 F.2d 99.101 (5th Cir. 1989).

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46

practices); United States v. Glenn-Colusa Irrigation Dist.,
788 F. Supp. 1126, 1133 (E.D. Cal. 1992) (water district's
pumping creates water velocity that causes salmon to be
pinned or battered against screens or diverts fish into
channels full of predators).
By the same token, courts have correctly interpreted the
"harm" prohibition not to extend to activity that only
potentially, as opposed to actually, causes (or will cause)
harm. American Bald Eagle v. Bhatti, 9 F.3d 163, 166 (1st
Cir. 1993) ("courts have granted injunctive relief only where
petitioners have shown that the alleged activity has actually
harmed the species or  if continued will actually, as opposed to
potentially, cause harm to the species"); see also National
Wildlife Fed'n v. Burlington N. R.R., 23 F.3d 1508, 1511-1513
(9th Cir. 1994) (corn spill was localized in nature and did not
constitute significant habitat modification or cause signif- -
icant impact to grizzly hears); Pyramid Lake Paiute Tribe of
Indians v. United States Dep't of Navy, 898 F.2d 1410, 1420
(9th Cir. 1990) (evidence does not establish that diversion of
water actually caused spawning problems); National Wildlife
Fed'n v. National Park Serv., 669 F. Supp. 384 (D. Wyo. 1987)
(insufficient evidence of injury from plan designed to reduce
conflicts between humans and grizzly bears); Morrill v.
Lujan, 802 F. Supp. 424, 430-433 (S.D. Ala. 1992) (insufficient
evidence that destruction of habitat would cause injury to
mouse).
b. The court of appeals also suggested that the
interpretation of " harm" in the regulation is overly broad
because it is directed at harm flowing from the withholding of
a benefit, rather than physical intrusions that wound an
individual member of an endangered species. Pet. App. 3a-4a.
The panel majority's statement upon denial of rehearing en
bane reiterated that view and pointed to the commentary
accompanying the promulgation of the "harm" regulation,
which stated that, an "act," is inclusive of either commissions

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47

or "omissions" that would be prohibited by Section 9. Pet.
App. 91a; 46 Fed. Reg. 54,750 (1981) (J.A. 72). An "omission"
constitutes an "act" prohibited by Section 9, however, only if
there is a legal duty to act and the failure to discharge that
duty causes significant habitat modification or degradation
that in turn leads to death or injury to protected wildlife. 33.
Such an omission might arise, for example, from a duty to
maintain a licensed dam structure. A maintenance omission
causing a dam breach could significantly destroy habitat and
cause death or injury to a listed species as a result. The
commentary cited by the majority below does not encompass
passive acts of nonfeasance or create a duty (where none
otherwise would exist) to maintain a listed species' habitat.
c. The court of appeals expressed the view that the "harm"
regulation reflects an improbable relation to congressional
intent because it might, forbid any modification of an area
between 35 and 42 million acres in size, which "some
scientists" believed was necessary to the survival of the
threatened grizzly bear-even though the court acknowledged
that such broad coverage represented the views of an
"adherent of aggressive protection. " Pet. App. 6a. 34. By

___________________(footnotes)
                        
33 Cf. United States v. FMC Corp., 572 F.2d 902, 906-907 (2d Cir. 1978)
(rejecting defendants' contention that liability for a "take" under the
Migratory Bird Treaty Act cannot be imposed for failure to act to prevent a
chemical from escaping into a pond and killing birds); Morissette v. United
States, 342 U.S. 246, 255 (1952) (public welfare offenses may encompass
inaction where the law imposes a duty).

34 In its statement upon denial of rehearing en bane, the panel majority
expressed the view that if millions of acres are necessary to the survival of
grizzly bears, then any material curtailment necessarily would involve
death for members of' the species. Pet. App. 91a. The majority also stated,
however, that it did not endorse the specific claim of what acreage might
actually be necessary for the grizzlies. Id. at 91a n. 1. That qualification is
significant, because it is unrealistic to assume that a prohibited taking
could be found with respect to any and all habitat modification activities
based on such evidence

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48

focusing only on extreme examples and the potential for
unreasonably broad application of the regulation to specific
species, the court of appeals failed to heed the limited nature
of review accorded in a facial challenge.
The panel majority also cited the Special Rule Concerning
Take of the Threatened Coastal California Gnatcatcher,
published at 58 Fed Reg. 65,088 (1993), as evidence that the
"harm" regulation entails the Secretary's exercise of power
over large tracts of land. Pet. App. 94a-95a. That reliance was
misplaced, however, because the cited reference (58 Fed. Reg.
65,090 (1993)) is to a state planning process that encompasses
3.8 million acres. That area does not equate to gnatcatcher
habitat, nor does the reference mean, as the panel majority
suggested (Pet. App. 94a-95a), that the "take" prohibition
would apply to all habitat modification activities within that
area. FWS's issuance by special rule of an incidental take
authorization for the gnatcatcher was largely the result of
special circumstances in California whereby state law, the
Natural Community Conservation Planning Act (NCCP), Cal.
Fish & Game Code 2800-2840 (West 1995), provides for a
regional planning program for establishing systematic
evaluation and restoration of the State's native habitats. The

___________________(footnotes)                       

The inherent exaggeration of the regulation's impact based on that
illustration is also reflected in the fact that the referenced 35 to 42 million-
acre figure includes grizzly bear habitat in Canada. Rocky Barker, Saving
All The Parts: Reconciling Economics and the Endangered Species Act 34-
35 (Island Press 1993). And much of the habitat in the continental United
States is federal, not private, land. Id. at 41. For example, only one
percent of the land in the Greater Yellowstone Ecosystem, the largest bear
habitat area in the continental United States, is private land. Ibid.
Furthermore, the court of appeals failed to note that the cited source noted
that grizzly bear numbers have continued to rise despite the shrinking of
their habitat. id. at 32. The author expressed concern, however, that the
population increase will cause management complacency and that not
enough is being done to ensure long-term survival. Ibid.

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49

purpose of the NCCP program is to provide for regional
protection and perpetuation of natural wildlife diversity (not
limited to species listed under the ESA), while allowing
compatible land use and appropriate development and growth.
Because the state plan incorporates criteria that meet ESA
incidental take permit standards (see 16 U.S.C. 1539(a)(2)),
FWS, by its special rule, issued a blanket incidental take
authorization for projects that comply with the criteria in the
state plan. Thus, FWS's special rule effectively eliminates
duplication of state, local and federal efforts and serves to
reduce, rather than extend, federal involvement over the land
included in the state planning process.
The majority's erroneous characterization of the import of
the gnatcatcher plan also reflected a misunderstanding of con-
servation plan requirements under Section 10 of the ESA.
Specifically, its concern about the breadth of the "harm"
regulation failed to appreciate that Congress's creation of the
Section 10 permit program adds flexibility to the "take"
prohibition by enabling private owners' land uses to be
accommodated in a way that protects listed species. By
altogether removing private habitat modification and
degradation that kills or injures protected wildlife from the
reach of Section 9, the court of appeals' interpretation would
upset the careful balance intended by Congress among the
many competing interests of private landowners, govern-
mental entities, and the purposes of the ESA.
3. In sum, the court of appeals erred when it invalidated
the Secretary's interpretation of the statutory term "harm"
based on an extravagant reading and speculative applications
of the regulation. It thereby failed to respect both the
limitations imposed by the Secretary's interpretation of his
own regulation and the nature of a facial challenge to a
regulation. Moreover, the Secretary's interpretation, unlike
that of the court of appeals, furthers the object of the Act as a
whole. The ESA is intended to be a powerful yet workable law

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50

that accords substantial protection to listed species.
Congress was aware that the greatest threat to listed species
is the destruction of' their natural habitat, see TVA v. Hill,
437 U.S. at 179, and the purposes of the Act include providing a
means whereby the ecosystems upon which endangered and
threatened species depend may be conserved. 16 U.S.C.
1531(b). The "harm" regulation furthers that purpose by
interpreting the Act to bar significant habitat modification or
degradation that actually kills or injures protected wildlife.
Furthermore, the Secretary's interpretation of "harm"
dovetails with Congress's decision to temper the impact of the
"take" prohibition on private land uses by enacting the 1982
amendments to allow the issuance of an incidental take permit
in circumstances in which an acceptable habitat conservation
plan has been prepared. The Section 10(a) process has
resulted in the submission of more than 100 conservation
plans and the approval of more than 30. See U.S. General
Accounting Office, Endangered Species Act: Information on
Species Protection on Nonfederal Lands at 9 (Dec. 1994). The
first (and prototype) conservation plan was the plan,
extensively discussed in the committee reports on the 1982
amendments, that was fashioned to protect listed butterflies
in the context of habitat modification resulting from a housing
development in California. See pages 35-36, supra; see also
Pet. 23-25; note 4, supra. The interpretation of "take" and
"harm" adopted by the court of appeals would substantially
undermine such balanced and cooperative efforts to protect
species while at the same time providing for development and
productive land use.

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51

CONCLUSION

The judgment of the court of appeals should be reversed.

Respectfully submitted.

DREW S. DAYS, III
Solicitor General

LOIS J. SCHIFFER
Assistant Attorney General

EDWIN S. KNEEDLER
Deputy Solicitor General

BETH S. BRINKMANN
Assistant to the Solicitor General

MARTIN W. MATZEN
ELLEN J. DURKEE
JEAN E. WILLIAMS
Attorneys

FEBRUARY 1995

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APPENDIX

The Endangered Species Act of 1973, as amended
and codified at 16 U.S.C. 1531 et seq., provides in rele-
vant part:

1531. Congressional findings and declaration
of purposes and policy

(a) Findings

The Congress finds and declares that-

(1) various species of fish, wildlife, and plants in
the United States have been rendered extinct as a
consequence of economic growth and development
untempered by adequate concern and conserv-
ation;

(2) other species of fish, wildlife, and plants have
been so depleted in numbers that they are in
danger of or threatened with extinction;

(3) these species of fish, wildlife, and plants are
of esthetic [sic], ecological, educational, histori-
cal, recreational, and scientific value to the
Nation and its people;

(4) the United States has pledged itself as a
sovereign state in the international community to
conserve to the extent practicable the various
species of fish or wildlife and plants facing
extinction, pursuant to-

(1a)

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2a

(A) migratory bird treaties with Canada and
Mexico;

(B) the Migratory and Endangered Bird
Treaty with Japan;

(C) the Convention on Nature Protection
and Wildlife Preservation in the Western
Hemisphere:

(D) the International Convention for the
Northwest Atlantic Fisheries;

(E) the International Convention for the
High Seas Fisheries of the North Pacific
Ocean;

(F) the Convention on International Trade
in Endangered Species of Wild Fauna and
Flora; and

(G) other international agreements; and

(5) encouraging the States and other interested
parties, through Federal financial assistance and
a system of incentives, to develop and maintain
conservation programs which meet national and
international standards is a key to meeting the
Nation's international commitments and to better
safeguarding, for the benefit of all citizens, the
Nation's heritage in fish, wildlife, and plants.

(b) Purposes

The purposes of this chapter are to provide a means
whereby the ecosystems upon which endangered
species and threatened species depend may be con-
served, to provide a program for the conservation of

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3a

such endangered species and threatened species, and
to take such steps as may be appropriate to achieve
the purposes of the treaties and conventions set forth
in subsection (a) of this section.

(c) Policy

(1) It is further declared to be the policy of
Congress that all Federal departments and agencies
shall seek to conserve endangered species and
threatened species and shall utilize their authorities
in furtherance of the purposes of this chapter.
(2) It is further declared to be the policy of
Congress that Federal agencies shall cooperate with
State and local agencies to resolve water resource
issues in concert with conservation of endangered
species.      

* * * * *

1533. Determination of endangered species
and threatened species
(a) Generally

(1) The Secretary shall by regulation promulgated
in accordance with subsection (b) of this section
determine whether any species is an endangered
species or a threatened species because of any of the
following factors:

(A) the present or threatened destruction,
modification, or curtailment of its habitat or
range:

(B) overutilization for commercial, recrea-
tional, scientific, or educational purposes;

(C) disease or predation;

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4a

(D) the inadequacy of existing regulatory
mechanisms; or

(E) other natural or manmade factors affecting
its continued existence.

* * * * * 

(3) The Secretary, by regulation promulgated in
accordance with subsection (b) of this section and to
the maximum extent prudent and determinable-

(A) shall, concurrently with making a
determination under paragraph (1) that a species
is an endangered species or a threatened species,
designate any habitat of such species which is
then considered to be critical habitat; and

(B) may, from time-to-time thereafter as appro-
priate, revise such designation.

(b) Basis for determinations

(1)(A) The Secretary shall make determinations
required by subsection (a) (1) of this section solely on
the basis of the best scientific and commercial data
available to him after conducting a review of the
status of the species and after taking into account
those efforts, if any, being made by any State or
foreign nation, or any political subdivision of a State
or foreign nation, to protect such species, whether by
predator control, protection of habitat and food
supply, or other conservation practices, within any
area under its jurisdiction, or on the high seas.
(B) In carrying out this section, the Secretary
shall give consideration to species which have been-

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5a

(i) designated as requiring protection from un-
restricted commerce by any foreign nation, or
pursuant  to any international agreement; or

(ii) identified as in danger of extinction, or
likely to become so within the foreseeable future,
by any State agency or by any agency of a foreign
nation that is responsible for the conservation of
fish or wildlife or plants.

(2) The Secretary shall designate critical habitat,
and make revisions thereto, under subsection (a) (3) of
this section on the basis of the best scientific data
available and after taking into consideration the
economic impact, and any other relevant impact, of
specifying any particular area as critical habitat. The
Secretary may exclude any area from critical habitat
if he determines that the benefits of such exclusion
outweigh the benefits of specifying such area as part
of the critical habitat, unless he determines, based on
the best scientific and commercial data available, that
the failure to designate such area as critical habitat
will result in the extinction of the species concerned.

* * * * *

(d) Protective regulations

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, in the case of fish or wildlife, or section
1538(a) (2) of this title, in the case of plants, with
respect to endangered species; except that with
respect to the taking of resident species of fish or

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6a

wildlife, such regulations shall apply in any State
which has entered into a cooperative agreement
pursuant to section 1535(c) of this title only to the
extent that such regulations have also been adopted
by such State.   

* * * * *

1536. Interagency cooperation

(a) Federal agency actions and consultations

(1) The Secretary shall review other programs
administered by him and utilize such programs in
furtherance of the purposes of this chapter. All other
Federal agencies shall, in consultation with and with
the assistance of the Secretary, utilize their
authorities in furtherance of the purposes of this
chapter by carrying out programs for the con-
servation of endangered species and threatened
species listed pursuant to section 1533 of this title.
(2) Each Federal agency shall, in consultation
with and with the assistance of the Secretary, insure
that any action authorized, funded, or carried out by
such agency (hereinafter in this section referred to
as an "agency action") is not likely to jeopardize the
continued existence of any endangered species or
threatened species or result in the destruction or
adverse modification of habitat of such species which
is determined by the Secretary, after consultation as
appropriate with affected States, to be critical, unless
such agency has been granted an exemption for such
action by the Committee pursuant to subsection (h) of
this section. In fulfilling the requirements of this
paragraph each agency shall use the best scientific
and commercial data available.

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7a

(3) Subject to such guidelines as the Secretary
may establish, a Federal agency shall consult with
the Secretary on any prospective agency action at the
request of, and in cooperation with, the prospective
permit or license applicant if the applicant has reason
to believe that an endangered species or a threatened
species may be present in the area affected by his
project and that implementation of such action will
likely affect such species.
(4) Each Federal agency shall confer with the
Secretary on any agency action which is likely to
jeopardize the continued existence of any species
proposed to be listed under section 1533 of this title or
result in the destruction or adverse modification of
critical habitat proposed to be designated for such
species. This paragraph does not require a limitation
on the commitment of resources as described in
subsection (d) of this section.

(b) Opinion of Secretary

(1)(A) Consultation under subsection (a) (2) of this
section with respect to any agency action shall be
concluded within the 90-day period beginning on the
date on which initiated or, subject to subparagraph
(B), within such other period of time as is mutually
agreeable to the Secretary and the Federal agency.
        
* * * * *

(3)(A) Promptly after conclusion of consultation
under paragraph (2) or (3) of subsection (a) of this
section, the Secretary shall provide to the Federal
agency and the applicant, if any, a written statement
setting forth the Secretary's opinion, and a summary
of the information on which the opinion is based,
detailing how the agency action affects the species or

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8a

its critical habitat. If jeopardy or adverse modifi-
cation is found, the Secretary shall suggest those
reasonable and prudent alternatives which he believes
would not violate subsection (a) (2) of this section and
can be taken by the Federal agency or applicant in
implementing the agency action.
(B) Consultation under subsection (a) (3) of this
section, and an opinion issued by the Secretary
incident to such consultation, regarding an agency
action shall be treated respectively as a consultation
under subsection (a) (2) of this section, and as an
opinion issued after consultation under such
subsection, regarding that action if the Secretary
reviews the action before it is commenced by the
Federal agency and finds, and notifies such agency,
that no significant changes have been made with
respect to the action and that no significant change
has occurred regarding the information used during
the initial consultation.
(4) If after consultation under subsection (a)(2) of
this section, the Secretary concludes that-

(A) the agency action will not violate such
subsection, or offers reasonable and prudent
alternatives which the Secretary believes would
not violate such subsection;

(B) the taking of an endangered species or a
threatened species incidental to the agency action
will not violate such subsection; and

(C) if an endangered species or threatened
species of a marine mammal is involved, the
taking is authorized pursuant to section 1371(a)(5)
of this title;

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9a

the Secretary shall provide the Federal agency and
the applicant concerned, if any, with a written
statement that-

(i) specifies the impact of such incidental
taking on the species,

(ii) specifies those reasonable and prudent
measures that the Secretary considers necessary
or appropriate to minimize such impact,

(iii) in the case of marine mammals, specifies
those measures that are necessary to comply with
section 1371(a)(5) of this title with regard to such
taking, and

(iv) sets forth the terms and conditions (includ-
ing, but not limited to, reporting requirements)
that must be complied with by the Federal agency
or applicant (if any), or both, to implement the
measures specified under clauses (ii) and (iii).

(c) Biological assessment

(1) To facilitate compliance with the requirements
of subsection (a) (2) of this section, each Federal
agency shall, with respect to any agency action of
such agency for which no contract for construction
has been entered into and for which no construction
has begun on November 10, 1978, request of the
Secretary information whether any species which is
listed or proposed to be listed may be present in the
area of such proposed action. If the Secretary
advises, based on the best scientific and commercial
data available, that such species may be present, such
agency shall conduct a biological assessment for the
purpose of identifying any endangered species or
threatened species which is likely to be affected by
such action. Such assessment shall be completed

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10a

within 180 days after the date on which initiated (or
within such other period as is mutually agreed to by
 the Secretary and such agency, except that if a
permit or license applicant is involved, the 180-day
period may not be extended unless such agency
provides the applicant, before the close of such period,
with a written statement setting forth the estimated
length of the proposed extension and the reasons
therefor) and, before any contract for construction is
entered into and before construction is begun with
respect to such action. Such assessment may be
undertaken as part of a Federal agency's compliance
with the requirements of section 102 of the National
Environmental Policy Act of 1969 (42 U.S.C. 4332).
(2) Any person who may wish to apply for an
exemption under subsection (g) of this section for
that action may conduct a biological assessment to
identify any endangered species or threatened species
which is likely to be affected by such action. Any
such biological assessment must, however, be con-
ducted in cooperation with the Secretary and under
the supervision of the appropriate Federal agency.

(d) Limitation on commitment of resources

After initiation of consultation required under
subsection (a) (2) of this section, the Federal agency
and the permit or license applicant shall not make any
irreversible or irretrievable commitment of re-
sources with respect to the agency action which has
the effect of foreclosing the formulation or
implementation of any reasonable and prudent
alternative measures which would not violate
subsection (a) (2) of this section.

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11a

(e) Endangered Species Committee

(1) There is established a committee to be known
as the Endangered Species Committee (hereinafter in
this section referred to as the "Committee").
(2) The Committee shall review any application
submitted to it pursuant to this section and deter-
mine in accordance with subsection (h) of this section
whether or not to grant an exemption from the
requirements of subsection (a) (2) of this section for
the action set forth in such application.

* * * * *

(h) Grant of exemption

(1) The Committee shall make a final deter-
mination whether or not to grant an exemption
within 30 days after receiving the report of the
Secretary pursuant to subsection (g) (5) of this
section. The Committee shall grant an exemption
from the requirements of subsection (a) (2) of this
section for an agency action if, by a vote of not less
than five of its members voting in person-

(A) it determines on the record, based on the
report. of the Secretary, the record of the hearing
held under subsection (g) (4) of this section and on
such other testimony or evidence as it may
receive, that-

(i) there are no reasonable and prudent
alternatives to the agency action;

(ii) the benefits of such action clearly
outweigh the benefits of alternative courses of
action consistent with conserving the species
or its critical habitat, and such action is in the
public interest;

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12a

(iii) the action is of regional or national
significance; and

(iv) neither the Federal agency concerned
nor the exemption applicant made any irrever-
sible or irretrievable commitment of resources
prohibited by subsection (d) of this section; and

(B) it establishes such reasonable mitigation
and enhancement measures, including, but not
limited to, live propagation, transplantation, and
habitat acquisition and improvement, as are
necessary and appropriate to minimize the
adverse effects of the agency action upon the
endangered species, threatened species, or
critical habitat concerned.

Any final determination by the Committee under this
subsection shall be considered final agency action for
purposes of chapter 7 of Title 5.
(2)(A) Except as provided in subparagraph (B), an
exemption for an agency action granted under
paragraph (1) shall constitute a permanent exemption
with respect to all endangered or threatened species
for the purposes of completing such agency action-

(i) regardless whether the species was
identified in the biological assessment; and

(ii) only if a biological assessment has
been conducted under subsection (c) of this
section with respect to such agency action.

(B) An exemption shall be permanent under
subparagraph (A) unless-

(i) the Secretary finds, based on the best
scientific and commercial data available, that
such exemption would result in the extinction

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13a

of a species that was not the subject of
consultation under subsection (a) (2) of this
section or was not identified in any biological
assessment conducted under subsection (c) of
this section, and

(ii ) the Committee determines within 60
days after the date of the Secretary's finding
that the exemption should not be permanent.

If the Secretary makes a finding described in clause
(i), the Committee shall meet with respect to the
matter within 30 days after the date of the finding.

* * * * *

(o) Exemption as providing exception on
taking of endangered species

Notwithstanding sections 1533(d) and 1538(a)(1)(B)
and (C) of this title, sections 1371 and 1372 of this
title, or any regulation promulgated to implement any
such section -
(1) any action for which an exemption is granted
under subsection (h) of this section shall not be
considered to be a taking of any endangered
species or threatened species with respect to any
activity which is necessary to carry out such
action; and
(2) any taking that is in compliance with the
terms and conditions specified in a written
statement provided under subsection (b)(4)(iv) of
this section shall not be considered to be a
prohibited taking of the species concerned.

* * * * *

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14a

1538. Prohibited acts

(a) Generally

(1) Except as provided in sections 1535(g)(2) and
1539 of this title, with respect to any endangered
species of fish or wildlife listed pursuant to section
1533 of this title it is unlawful for any person subject
to the jurisdiction of the United States to-

(A) import any such species into, or export any
such species from the United States;

(B) take any such species within the United
States or the territorial sea of the United States;

(C) take any such species upon the high seas;

(D) possess, sell, deliver, carry, transport, or
ship, by any means whatsoever, any such species
taken in violation of subparagraphs (B) and (C);

(E) deliver, receive, carry, transport, or ship in
interstate or foreign commerce, by any means
whatsoever and in the course of a commercial
activity, any such species;

(F) sell or offer for sale in interstate or foreign
commerce any such species; or

(G) violate any regulation pertaining to such
species or to any threatened species of fish or
wildlife listed pursuant to section 1533 of this
title and promulgated by the Secretary pursuant
to authority provided by this chapter.

(2) Except as provided in sections 1535(g)(2) and
1539 of this title, with respect to any endangered
species of plants listed pursuant to section 1533 of

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15a

this title, it is unlawful for any person subject to the
jurisdiction of the United States to-

(A) import any such species into, or export any
such species from, the United States;

(B) remove and reduce to possession any such
species from areas under Federal jurisdiction;
maliciously damage or destroy any such species
on any such area; or remove, cut, dig up, or
damage or destroy any such species on any other
area in knowing violation of any law or regulation
of any State or in the course of any violation of a
State criminal trespass law;

(C) deliver, receive, carry, transport, or ship in
interstate or foreign commerce, by any means
whatsoever and in the course of a commercial
activity, any such species;

(D) sell or offer for sale in interstate or foreign
commerce any such species; or

(E) violate any regulation pertaining to such
species or to any threatened species of plants
listed pursuant to section 1533 of this title and
promulgated by the Secretary pursuant to
authority provided by this chapter.

* * * * *

(g) Violations

It is unlawful for any person subject to the
jurisdiction of the United States to attempt to
commit, solicit another to commit, or cause to be
committed, any offense defined in this section.

---------------------------------------- Page Break ----------------------------------------
        
16a

1539. Exceptions

(a) Permits

(1) The Secretary may permit, under such terms
and conditions as he shall prescribe-

(A) any act otherwise prohibited by section
1538 of this title for scientific purposes or to
enhance the propagation or survival of the
affected species, including, but not limited to, acts
necessary for the establishment and maintenance
of experimental populations pursuant to sub-
section (j) of this section; or

(B) any taking otherwise prohibited by section
1538(a)(1)(B) of this title if such taking is
incidental to, and not the purpose of, the carrying
out of an otherwise lawful activity.

(2)(A) No permit may be issued by the Secretary
authorizing any taking referred to in paragraph (1)
(B) unless the applicant therefor submits to the
Secretary a conservation plan that specifies-
(i) the impact which will likely result from
such taking;

(ii) what steps the applicant will take to
minimize and mitigate such impacts, and the
funding that will be available to implement such
steps;

(iii) what alternative actions to such taking
the applicant considered and the reasons why
such alternatives are not being utilized; and

(iv) such other measures that the Secretary
may require as being necessary or appropriate
for purposes of the plan.

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17a

(B) If the Secretary finds, after opportunity for
public comment, with respect to a permit application
and the related conservation plan that-

(i) the taking will be incidental;

(ii) the applicant will, to the maximum extent
practicable, minimize and mitigate the impacts of
such taking;

(iii) the applicant will ensure that adequate
funding for the plan will be provided;

(iv) the taking will not appreciably reduce the
likelihood of the survival and recovery of the
species in the wild; and

(v) the measures, if any, required under
subparagraph (A) (iv) will be met;

and he has received such other assurances as he may
require that the plan will be implemented, the
Secretary shall issue the permit. The permit shall
contain such terms and conditions as the Secretary
deems necessary or appropriate to carry out the
purposes of this paragraph, including, but not limited
to, such reporting requirements as the Secretary
deems necessary for determining whether such
terms and conditions are being complied with.
(C) The Secretary shall revoke a permit issued
under this paragraph if he finds that the permittee is
not complying with the terms and conditions of the
permit.      

* * * * *

(j) Experimental populations

(1) For purposes of this subsection, the term
"experimental population" means any population

---------------------------------------- Page Break ----------------------------------------

18a

(including any offspring arising solely therefrom)
authorized by the Secretary for release under
paragraph (2), but only when, and at such times as,
the population is wholly separate geographically from
nonexperimental populations of the same species.
(2)(A) The Secretary may authorize the release
(and the related transportation) of any population
(including eggs, propagules, or individuals) of an
endangered species or a threatened species outside
the current range of such species if the Secretary
determines that such release will further the
conservation of such species.
(B) Before authorizing the release of any
population under subparagraph (A), the Secretary
shall by regulation identify the population and
determine, on the basis of the best available
information, whether or not such population is
essential to the continued existence of an endangered
species or a threatened species.
(C) For the purposes of this chapter, each member
of an experimental population shall be treated as a
threatened species; except that-

(i) solely for purposes of section 1536 of this
title (other than subsection (a) (1) thereof), an
experimental population determined under sub-
paragraph (B) to be not essential to the continued
existence of a species shall be treated, except
when it occurs in an area within the National
Wildlife Refuge System or the National Park
System, as a species proposed to be listed under
section 1533 of this title; and

(ii) critical habitat shall not be designated under
this chapter for any experimental population
determined under subparagraph (B) to be not
essential to the continued existence of a species.

---------------------------------------- Page Break ----------------------------------------

19a

(3) The Secretary, with respect to populations of
endangered species or threatened species that the
Secretary authorized, before October 13, 1982, for
release in geographical areas separate from the other
populations of such species, shall determine by
regulation which of such populations are an experi-
mental population for the purposes of this subsection
and whether or not each is essential to the continued
existence of an endangered species or a threatened
species.

---------------------------------------- Page Break ----------------------------------------

No. 94-859

In the Supreme Court of the United States

OCTOBER TERM, 1994

BRUCE BABBITT, SECRETARY OF THE INTERIOR,
ET AL., PETITIONERS

V.

SWEET HOME CHAPTER OF COMMUNITIES FOR
A GREAT OREGON, ET AL.

ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

REPLY BRIEF FOR THE PETITIONERS

DREW S. DAYS, III
Solicitor General

Department of Justice
Washington, D.C. 20530
(202)514-2217 

---------------------------------------- Page Break ----------------------------------------

TABLE OF AUTHORITIES

Cases:

Anderson v. Edwards, No. 93-1883 (Mar. 22, 1995) . . . . 17
Bell Atlantic Tel. Cos. v. FCC, 24 F.3d 1441
(D.C. Cir. 1994) . . . . 15
Bowen v. Yuckert, 482 U.S. 137 (1987) . . . . 20
Brown v. Gardner, 115 S. Ct. 552 (1994) . . . . 10
Chevron U.S.A. Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837 (1984) . . . . 6-7
Crandon v. United States, 494 U.S. 152 (1990) . . . . 11
Ehlert v. United States, 402 U.S. 99 (1971) . . . . 11
Forest Conservation Council v. Rosboro Lumber Co.,
No. 94-35070 (9th Cir. Mar. 24, 1995) . . . . 5, 16
Hodel v. Virginia Surface Mining & Reclamation Ass 'n,
452 U.S. 264 (1981) . . . . 16
Idaho Farm Bureau Fed'n v. Babbitt, 839 F. Supp.
739 (D. Idaho 1993), appeals pending, Nos. 94-35164,
94-35230 (9th Cir.) . . . . 20
Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock
Co., 115 S. Ct. 1043 (1995) . . . . 4
Landgraf v. USI Film Products, 114 S. Ct. 1483
(1994) . . . . 6
Marbled Murrelet v. Pacific Lumber Co., No. C-93-1400-
LCB (N.D. Cal. Feb. 27, 1995) . . . . 5
Qualitex Co. v. Jacobson Products Co., No. 93-1577
(Mar. 28, 1995) . . . . 10
Red Lion Broadcasting Co. v. FCC, 395 U.S. 367
(1969) . . . . 11
Reno v. Flores, 113 S. Ct. 1439 (1993) . . . . 17, 19, 20
Smith v. United States, 113 S. Ct. 2050 (1993) . . . . 11
Sweet Home Chapter of Communities for a Great
Oregon v. Lujan, Civ. No. 91-2218 (D.D.C.
Feb. 27, 1992) . . . . 18
TVA v. Hill, 437 U.S. 153 (1978) . . . . 5, 7, 15
         
(I)

---------------------------------------- Page Break ----------------------------------------

II

Cases-Continued:

Page

Trinity County Concerned Citizens v. Babbitt,
Civ. No. 92-1194 (D.D.C. Sept. 20, 1993) . . . . 14
United States v. FMC Corp., 572 F.2d 902 (2d Cir.
1978) . . . . 3, 4
United States v. Hayashi, 22 F.3d 859 (9th Cir. 1993) . . . . 5
United States v. Nguyen, 916 F.2d 1016 (5th Cir.
1990) . . . . 2
United States v. Riverside Bayview Homes, Inc.,
474 U.S. 121 (1985) . . . . 11, 15, 16
United States v. Security Industrial Bank,
459 U.S. 70 (1982) . . . . 16
United States v. Thompson/Center Arms Co.,
112 S. Ct. 2102 (1992) . . . . 11, 12
Village of Hoffman Estates v. The Flipside, Hoffman
Estates, Inc., 455 U.S. 489 (1982) . . . . 16
West Virginia Univ. Hospitals, Inc. v. Casey,
499 U.S. 83 (1991) . . . . 10

Constitution, statutes and regulations:

U.S. Const. Amend. V (Just Compensation Clause) . . . . 15, 16
Administrative Procedure Act, 5 U.S.C. 553(b) . . . . 18
Clean Water Act, 33 U.S.C. 1311(a) . . . . 17
Endangered Species Act of 1973, 16 U.S.C. 1531 et sea.:
2(b), 16 U.S.C. 1531(b) . . . . 4
3(5)(A), 16 U.S.C. 1532(5)(A) . . . . 14
3(19), 16 U.S.C. 1532(19) . . . . 1
4, 16 U.S.C. 1533 . . . . 13
4(d), 16 U.S.C. 1533(d)  . . . . 13, 18
7, 16 U.S.C. 1536 . . . . 7, 11, 12, 14, 15
7(a)(2), 16 U.S.C. 1536(a)(2) . . . . 12, 13, 14
7(b)(4), 16 U.S.C. 1536(b)(4) . . . . 8, 13
7(h), 16 U.S.C. 1536(h) . . . . 12
7(o), 16 U.S.C. 1536(o) . . . . 8, 15
7(o), 16 U.S.C. 1536(o) (Supp. III 1979) . . . . 7, 15

---------------------------------------- Page Break ----------------------------------------

III

Statutes and regulations-Continued:          

Page

9, 16 U.S.C. 1538 . . . . 7, 8, 10, 12, 13, 15, 19
9(a)(1)(B), 16 U.S.C. 1538(a)(1)(B) . . . . 1, 7, 8
10, 16 U.S.C. 1539 . . . . 7, 11, 13, 17, 20
10(a), 16 U.S.C. 1539(a) . . . . 8, 9 
10, 16 U.S.C. 1539(a)(1)(B) . . . . 8, 13
10(a)(2), 16 U.S.C. 1539(a)(2) . . . . 13
10(a)(2)9A)16 U.S.C. 1539(a)(2)(A) . . . . 8
10(a)(2)(B)(ii),16 U.S.C. 1539(a)(2)(B)(ii) . . . . 8
11(a)(1), 16 U.S.C. 1540(a)(1) . . . . 
11(a)(1), 16 U.S.C. 1540(a)(1) (1976) . . . . 2
11(b)(1), 16 U.S.C. 1540(b)(1) . . . . 2
11(e)(6), 16 U.S.C. 1540(e)(6) . . . . 2
11(g)(1)(A), 16 U.S.C. 1540(g)(1)(A) . . . . 2
Endangered Species Act Amendments of 1978,
Pub. L. No. 95-632, 92 Stat. 3751:
6(1), 92 Stat. 3761 . . . . 2
6(2), 92 Stat. 3761 . . . . 2
6(3), 92 Stat. 3761 . . . . 2
Marine Mammal Protection Act of 1972, 16 U.S.C. 1361
et seq . . . . 5
Migratory Bird Treaty Act, 16 U.S.C. 703 (1988 &
Supp. V 1993) . . . . 3
Surface Mining Control and Reclamation Act of 1977,
30 U.S.C. 1201 et seq . . . . 17
50 C.F.R. :
Section 17.3 . . . . 1
Section 402.02 . . . . 14

Miscellaneous:

49 Fed. Reg. 38,904 (1984) . . . . 14
57 Fed. Reg. (1992):
p.  1796 . . . . 14
pp. 1812-1813 . . . . 14
pp. 1831-1833 . . . . 14
p.  36,626 . . . . 14, 15
p.  36,627 . . . . 14, 15

---------------------------------------- Page Break ----------------------------------------

IV

Miscellaneous Continued:

Page

p. 36, 630 . . . . 14
58 Fed. Reg. (1993):
p.  5938  . . . . 20
pp. 5941-5942 . . . . 20
59 Fed. Reg. (1994):
p. 34,272 . . . . 19
p. 65,260 . . . . 14
p. 65,262 . . . . 14
pp. 65,274-65,275 . . . . 14
pp. 66,555-66,556 . . . . 19
60 Fed. Reg. (1995):
p. 9484 . . . . 19
p. 9485 . . . . 19
Fish and Wildlife Service, Procedures Leading to
Endangered Species Act Compliance for the
Northern Spotted Owl (July 1990) . . . . 18
H.R. Conf. Rep. No. 1804, 95th Cong., 2d Sess. (1978) . . . . 2
H.R. Conf. Rep. No. 835, 97th Cong., 2d Sess. (1982) . . . . 10
H.R. Rep. No. 412, 93d Cong., 1st Sess. (1973) . . . . 6
H.R. Rep. No. 1625, 95th Cong., 2d Sess. (1978) . . . . 2
H.R. Rep. No. 567, 97th Cong., 2d Sess. Pt. 1 (1982) . . . . 8, 17
R. Lachenmeier, The Endangered Species Act of 1973:
Preservation or Pandemonium?, 5 Envtl. L. 29 (1974) . . . . 6
S. Rep. No. 307, 93d Cong., 1st Sess. (1973) . . . . 6

---------------------------------------- Page Break ----------------------------------------

In the Supreme Court of the United States

OCTOBER TERM, 1994

No. 94-859

BRUCE BABBITT, SECRETARY OF THE INTERIOR,
ET AL., PETITIONERS

v.

SWEET HOME CHAPTER OF COMMUNITIES FOR
A GREAT OREGON, ET AL.

ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

REPLY BRIEF FOR THE PETITIONERS

A. Respondents concede (Br. 9) that "harm" is "a word
of extraordinary elasticity, arguably capable of the
meaning" given to it by the Fish and Wildlife Service
(FWS) in its regulation interpreting the prohibition in the
Endangered Species Act (ESA) against the "take" of
protected species. See 16 U.S.C. 1538(a)(l)(B); 50 C.F.R.
17.3. Respondents contend, however, that each of the other
verbs accompanying "harm" in the ESA's definition of
"take" (see 16 U.S.C. 1532(19)) describes "purposeful"
conduct "directed at some living thing," and they ar-
gue that "harm" should be given the same narrow
construction. Resp. Br. 7, 10, 13, 14, 16-17, 20.
Respondents' premise is flawed. The ESA does not limit
the other verbs in the definition of "take" ("harass, * * *
pursue, hunt, shoot, wound, kill, trap, capture, or collect")
to "purposeful" conduct specifically "directed at a living

(1)

---------------------------------------- Page Break ----------------------------------------

2

thing." The ESA makes it unlawful to take a protected
species, through, for example, wounding or killing, re-
gardless of whether that was the purpose of the act or
whether the act was directed at a living thing. Such
violations are subject to an injunctive action under 16
U.S.C. 1540(e)(6) and (g)(1)(A), and to a civil penalty of not
more than $500 under 16 U.S.C. 1540(a)(1). 1
Civil penalties of more than $500 and misdemeanor
criminal sanctions are available only if the person acts
"knowingly," 16 U.S.C. 1540(a)(1) and (b)(1)-i.e., knows,
for example, that his action harasses, harms or wounds the
type of species affected. Even in such cases, however, it is
not necessary to show that the person acted with the
purpose of harming wildlife. Indeed, the person need not
know that the species is endangered or threatened; only a
general intent to perform the act, and not a specific intent
to violate the ESA, is required. 2

___________________(footnotes)
                       
1 As originally enacted, the maximum civil penalty for a non-
knowing violation was $1000. 16 U.S.C. 1540(a)(1) (1976). In 1978,
Congress "reduce[d] the strict liability penalty for othe[r] than
importers and exporters to $500." H.R. Rep. No. 1625, 95th Cong., 2d
Sess. 26 (1978); H.R. Conf. Rep. No. 1804, 95th Cong., 2d Sess. 25-26
(1978); see Endangered Species Act Amendments of 1978 (ESAA), Pub.
L. No. 95-632,  6(1) and (2), 92 Stat. 3761. The Conference Committee
noted (at 26) that although a tourist who unknowingly violates the pro-
hibition of importing a protected species could be fined up to $500, it
"assume[d] that in most cases, law enforcement officials will seek the
forfeiture of the item rather than impose a civil penalty."

2 Respondents acknowledge that 16 U.S.C. 1540(b)(1) "requires only
a general intent to perform an act, not a specific intent to violate the
ESA." Resp. Br. 2 n.2 (citing United States v. Nguyen, 916 F.2d 1016
(5th Cir. 1990)). In the 1978 amendments, Congress replaced "willfully"
with "knowingly" (see ESAA  6(3), 92 Stat. 3761) to make "criminal
violations of the act a general rather than a specific intent crime." H.R.
Conf. Rep. No. 1804, supra, at 26.

---------------------------------------- Page Break ----------------------------------------

3

Respondents err in relying on United States v. FMC
Corp., 572 F.2d 902 (2d Cir. 1978), to support their
argument that all the terms in the definition of "take,"
including "kill," connote "intentional and directed" con-
duct. Resp. Br. 13 n.15. The FMC  court affirmed a
conviction for killing protected birds in violation of the
narrower "take" prohibition in the Migratory Bird Treaty
Act (MBTA), 16 U.S.C. 703 (1988 & Supp. V 1993), based on
the death of birds that were attracted to a pond containing
chemicals released during the company's manufacturing
process. See Gov't Br. 25 & n.12. The company did not
intend to attract the birds to its pond, and its actions were
in no way directed at the birds. 572 F.2d at 906-908. 3.

___________________(footnotes)

Because the ESA imposes a scienter requirement ("knowingly") only
for certain civil penalties and misdemeanor sanctions-but not, for
example, in civil injunctive actions-respondents err in relying (Br. 10
& n.10) on several dated dictionaries for the proposition that "harm"
must be limited in all circumstances to purposeful efforts to injure.
Respondents are even further afield in relying (Br. 19 n.24) on
dictionary definitions of "take" that refer to the holding, seizure or
possession of an object. Congress provided its own definition of "take"
in the ESA that includes harass, harm, pursue and wound, none of
which is limited to actual holding, seizure or possession.

3 Respondents' attempt (Br. 21 n.26) to distinguish FMC on the
ground that "[t]he manufacture and use of pesticides * * * are actions
directed at killing animals" is completely without merit. There is no
suggestion in FMC that the result would have been different if the
chemical being manufactured was not a pesticide.

Respondents quote a passing comment in FMC that it "'would
offend reason and common sense' to find that wildlife 'take' includes
'deaths caused by automobiles.'" Resp. Br. 13 n.15; see also id. at 21.
The context shows, however, that the court was concerned only with
basing criminal liability on an act that was not done knowingly. Thus,
in the passage immediately following the one quoted by respondents,
the court observed: "As stated in one of the early decisions under the
[MBTA], '[a]n innocent technical violation on the part of any defendant
can be taken care of by the imposition of a small or nominal

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4

Respondents' basic objection to the "harm" regulation
is that it "focuses exclusively on the ultimate effect of the
act on listed wildlife." Resp. Br. 14. In their view, "harm"
should be construed to reach only purposeful conduct
directed at wildlife because the "take" prohibition is
concerned with the character of the actor's conduct,
rather than its effect on the species. Ibid. That view
ignores the central purpose of the ESA: to conserve
endangered and threatened species. 16 U.S.C. 1531(b).
The Act accomplishes that purpose in part by prohibiting
conduct that undermines a listed species' continuing
survival. For example, the prohibition against wounding a
protected species is not intended to save individual animals
from suffering pain. Wounding is prohibited because it is
likely to impair the animal's ability to engage in activity
essential to its own survival and that of its offspring, e.g.,
by impairing its ability to forage for food, build a shelter,
and breed. Thus, wounding a protected species violates the
ESA even if it is the unintended consequence of other-
wise lawful activity directed at a different object. The
character of the conduct may bear on the appropriate
sanction, but not on the existence of a violation. 4

___________________(footnotes)

fine.' Such situations properly can be left to the sound discretion of
prosecutors and the courts." 572 F.2d at 905 (citation omitted).

4 Respondents argue (Br. 14) that the "harm" regulation "confuses
some remote effect on a species' population with a concrete effect on
some member of that species" and "also ignores the role of intervening
acts in bringing about that generalized effect." Those issues, however,
are properly addressed not by categorically excluding all harms to
wildlife that are caused by habitat modification from the statutory
"take" prohibition, but by applying principles of proximate causation,
based on the regulation's condition that habitat modification is covered
only if it "actually kills or injures wildlife" by significantly impairing
essential behavioral patterns. Compare Jerome B. Grubart, Inc. v.
Great Lakes Dredge & Dock Co., 115 S. Ct. 1043, 1049-1050 (1995); see,

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5

Because the terms that accompany "harm" in the
statutory definition of "take'' are not limited to purposeful
acts directed at wildlife, there is no merit to respondents'
argument that the concededly broad term "harm" should
be narrowly construed in that manner by application of
noscitur a sociis. 5. A narrow construction that excluded

___________________(footnotes)

e.g., Forest Conservation Council v. Rosboro Lumber Co., No. 94-35070
(9th Cir. Mar. 24, 1995); Marbled Murrelet v. Pacific Lumber Co., No.
C-93-1400-LCB (N.D. Cal. Feb. 27, 1995), slip op. 55-60; Gov't Br. 45-46.
Respondents, moreover, ignore the distinction between a violation of
the ESA that is proven through indirect or circumstantial evidence
(such as by proof of a population decline), and a situation in which there
was no ESA violation at all because there was no causal link between
the conduct and injury to wildlife.

5 Contrary to respondents' contention (Br. 15 & n.17), FWS's
discussion of ejusdem generis when it first proposed a revision of the
harm regulation in 1981 (see J.A. 58) did not reflect an agreement with
their position. FWS's interpretation of "take" included negligent
conduct (J.A. 60) and habitat modifications that result in the actual
killing or injury of wildlife (J.A. 61 & n.2, quoting TVA v. Hill, 437
U.S. 153, 165 n.16, 184 n.30 (1978)).

In the same footnote, respondents rely on United States v. Hayashi,
22 F.3d 859 (9th Cir. 1993), which construed "harass" and other forms of
"take" under the Marine Mammal Protection Act of 1972 (MMPA), 16
U.S.C. 1361 et seq. See Gov't Br. 25-26 & n.13. The Ninth Circuit's
conclusion that those terms connote "direct intrusions" meant
something different from what respondents appear to mean by
"directed at." For example, the Hayashi court understood hunt,
capture and kill to involve "direct and significant intrusions upon the
normal, life-sustaining activities of a marine mammal," explaining
that "killing is a direct and permanent intrusion, while hunting and
capturing cause significant disruptions of a marine mammal's natural
state"; that "[t]o 'take' a marine mammal strongly suggests a serious
diversion of the mammal from its natural routine"; and that the MMPA
was aimed at "protecting natural animal behavior." 22 F.3d at 864,
866. The ESA "harm" regulation, which covers significant habitat
modification or degradation that "actually kills or injures" wildlife by

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6

all harm caused by habitat modification would also be
inconsistent with Congress's intent to define "take" "in
the broadest possible manner to include every conceivable
way in which a person can `take' or attempt to `take' any
fish or wildlife," S. Rep. No. 307, 93d Cong., 1st Sess. 7
(1973); see also H.R. Rep. No. 412, 93d Cong., 1st Sess. 11,
15 (1973), and with the central role that habitat protection
plays throughout the Act. Gov't Br. 7-9, 24. 6.

___________________(footnotes)

"significantly impairing essential behavioral patterns," is consistent
with that view.

6 Respondents erroneously rely (Br. 30-31) on the failure by the
Senate committee to include in its bill certain language contained in
another bill that respondents assert was "very similar" to the "harm"
regulation. As we have explained (Gov't Br. 28-29), the other bill was
significantly broader than the regulation because it would have barred
habitat modification per se, without regard to whether there was an
ensuing effect on protected species. Respondents suggest (Br. 31 n.39)
that the committee's omission of the broader provision is explained by
the statements of "several legislators" expressing disapproval of the
inclusion of habitat modification in the "take" prohibition. They cite,
however, only one statement, by Senator Stevens, and that ambiguous
remark does not support their position. The subject of his remark was
whether a single bill should cover endangered flora as well as fauna,
not the definition of "take" applicable to fauna. Thus, the unexplained
fate of the bill proposed early in the legislative process sheds little
light on congressional intent. Cf. Landgraf v. USI Film Products, 114
S. Ct. 1483, 1492, 1495-1496 ( 1994).

Respondents also suggest (Br. 29 n.35, 30) that the legislative
history of the 1973 Act is barren of discussion specifically relating to
the precise issue here because no reasonable person could have
imagined that the statutory text would support the Secretary's
interpretation. That assertion is disproved by respondents' citation
with approval (Br. 34 n.41) to an article, published before the
Secretary's interpretation was proposed, that recognized that "harm"
could be construed to encompass actions, such as timber harvesting,
that destroy habitat. R. Lachenmeier, The Endangered Species Act of
1973: Preservation or Pandemonium?, 5 Envtl. L. 29, 39, 72 (1974).
Furthermore, because respondents have the burden under Chevron

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7

B. Respondents' narrow view of "harm" likewise can-
not be squared with the subsequent amendments to
Sections 7 and 10 of the ESA that specifically addressed
the taking of protected species. As discussed in our
opening brief (at 30-33), this Court's decision in TVA v.
Hill provided the impetus for the 1978 amendments that
created the process for exempting federal actions from
both Section 7 and 9. The Tellico Dam at issue in TVA v.
Hill was not "directed at" wildlife, yet it would have
modified the snail darter's habitat to the point of rendering
it extinct. For that reason, as the Court recognized (437
U.S. at 184-185 & n.30), completion of the dam would have
constituted a prohibited taking under the Secretary's
regulation that, defined "harm" to include "significant
environmental modification or degradation" that kills or
injures wildlife, Gov't Br. 30-31. Congress's recognition
that such a project would require an exception to the
Section 9 "taking" prohibition and implementing "regula-
tions" (see 16 U.S.C. 1536(o) (Supp. III 1979))-including
the "harm" regulation (see Gov't Br. 32-33 & n.20) -
confirms that "take" encompasses habitat modification
that actually kills or injures wildlife.
The 1982 amendments also furnish compelling grounds
for rejecting respondents' contention that a prohibited
taking includes only purposeful conduct specifically
directed at wildlife. In 1982, Congress added to Section 10
a provision for the Secretary to issue permits allowing
"any taking otherwise prohibited by section 1538(a)(1)(B)
of this title if such taking is incidental to, and not the

___________________(footnotes)
                                
U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837
(1984), of demonstrating either that Congress expressed its intent with
respect to the precise issue or that the Secretary's interpretation is
unreasonable, the absence of legislative history contrary to the
Secretary's interpretation cuts against their position.

---------------------------------------- Page Break ----------------------------------------

8

purpose of, the carrying out of an otherwise lawful
activity." 16 U.S.C. 1539(a)(1)(B) (emphasis added). That
statutory text is inconsistent with respondents' notion
that takings that are not purposeful and are not directed at
wildlife (e.g., are "incidental" to otherwise lawful land use)
are not covered by the taking prohibition in 16 U.S.C.
1538(a)(1)(B) in the first place. Similarly, respondents'
contention that the taking prohibition is concerned with
the character of the actor's conduct, not its effect on the
species, is refuted by the statutory requirement that an
"incidental take" permit may be issued only if the
Secretary finds that "the applicant will, to the maximum
extent practicable, minimize and mitigate the impacts of
such taking." 16 U.S.C. 1539(a)(2)(A) and (B)(ii) (emphasis
added); see also Gov't Br. 38-39 & nn.25-26 (discussing
parallel 1982 amendments to 16 U.S.C. 1536(b)(4) and (o), as
well as other amendments building on "harm" regulation).
Respondents suggest that Congress enacted the ex-
empting mechanisms for incidental takes in 1982 only to
address those instances in which a listed species is
inadvertently captured or targeted while the actor is
hunting, fishing or trapping nonlisted species. That
explanation is untenable. "Incidental takes" are "situa-
tions in which it is known that a taking will occur if the
other activity is engaged in but such taking is incidental
to, and not the purpose of, the activity." H.R. Rep. No. 567,
97th Cong., 2d Sess. Pt. 1, at 31 (1982). The foreseeability
of incidental takes shows that Congress was not
addressing accidental killings. Moreover, the House
Report explains that Section 10(a) enables "private land
owners" to address "situations where the unintentional
taking may occur on private lands owned by a developer
who has no need of a Federal permit." Id. at 15; accord id.
at 31. No private landowner expressed concern that
Section 9 interfered with his hunting, trapping or fishing

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9

for nonlisted species on private lands, 7. and incidental takes
that result from commercial fishing, to which respondents
refer (Br. 42), are not ordinarily associated with private
land ownership or development.
The incidental take that provided the model for Section
10(a) was the conversion into a housing complex of an
undeveloped tract that served as habitat for listed
butterflies. Yet because the bulldozing and land-clearing
were "ordinary land use activities" that were not
"directed at" any wildlife or conducted with a predatory
purpose, those activities, despite their seriously adverse
impact on the butterflies, would not have constituted a
"take" under respondents' narrow interpretation. Respon-
dents suggest (Br. 41-42, 43 n.51) that Congress focused on
habitat only because it intended to prescribe a habitat
conservation remedy for takings of listed species that
inadvertently occur as the result of actions undertaken for
the purpose of killing or injuring nonlisted species. That
suggestion cannot be squared with Congress's recognition
that in some instances habitat modification can itself
constitute a "take" that would in turn require a habitat
conservation plan to mitigate adverse impacts. Gov't Br.
35-38. 8

___________________(footnotes)

7 Timber industry witnesses, however, did express concern that the
"take" prohibition interfered with private timber harvests and
attendant land uses that were not undertaken for the purpose of killing
or injuring wildlife, yet had that unintended effect. See Gov't Br. 37 &
n.23; id. at 31 & n.18.

8 Amici California, et al., implausibly suggest (Br. 26) that
Congress believed the land-clearing at the housing development would
have killed or injured listed butterflies, not by destroying their habitat,
but by physical collisions of earthmoving equipment with butterflies or
larvae. The extensive discussion of the project in the Conference
Report makes clear that Congress understood that the ESA posed an
obstacle to the project because it would seriously impair the butterflies'

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10

Congress's refinement of the ESA through the 1978 and
1982 amendments that directly addressed Section 9 tak-
ings constitutes a ratification of the statutory inter-
pretation embodied in the "harm" regulation. At the very
least, those amendments strongly reinforce the reason-
ableness of the Secretary's interpretation, and therefore
require that the regulation be sustained under Chevron. 9.
The present case is not, as respondents suggest (Br. 40-
41), like Brown v. Gardner, 115 S. Ct. 552, 556-557 (1994),
in which there was no "evidence to suggest that Congress
was even aware of the [agency's] interpretive position."
There is ample evidence that Congress was aware both of
the agency's interpretation of "harm" as including certain
incidental takes that could be characterized as habitat
modification, and of private landowners' dissatisfaction
with that interpretation. See Gov't Br. 31-40; see also
Resp. Br. 43 & n.51 (acknowledging awareness manifested
in Senate Report and hearings); Qualitex Co. v. Jacobson
Products Co., No. 93-1577 (Mar. 28, 1995), slip op. 13-14
(relying on amendments enacted against "background" of
administrative and judicial interpretation "strongly

___________________(footnotes)

"habitat," including "their food plants." H.R. Conf. Rep. No. 835, 97th
Cong., 2d Sess. 30-32 (1982); Gov't Br. 35-36.

9 Citing West Virginia Univ. Hospitals, Inc. v. Casey, 499 U.S. 83,
101 (1991), respondents suggest (Br. 44) that even if Congress in 1982
acted on the assumption that "harm" could reach some land uses, it
would be legally irrelevant. West Virginia is inapposite because it
addressed an argument that congressional intent should be divined
from a later Congress's treatment of an issue in a different statute. In
this case, by contrast, Congress enacted amendments to the ESA itself
in 1978 and 1982 that both used the word "take" or "taking" (which had
already been defined in important part in the "harm" regulation) and
established exempting mechanisms that are premised upon an in-
terpretation of "take" that includes killing and injury of protected wild-
life that result from significant habitat modification.

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11

suggest[ing]" that statutory language had "come to
include" color). Nor is this a situation in which Congress
remained silent. It affirmatively responded to the
controversy by amending the Act to allow "incidental
takes," subject to consultation under Section 7 or the
permit process under Section 10. Compare United States
v. Riverside Bayview Homes, Inc., 474 U.S. 121, 136-139
(1985); Red Lion Broadcasting Co. v. FCC, 395 U.S. 367,
380-386 (1969). 10

___________________(footnotes)
               
10 Respondents invoke the rule of lenity to support their argument
that "harm" should be narrowly construed. Resp. Br. 28-29, citing
United States v. Thompson/Center Arms Co., 112 S. Ct. 2102 (1992),
and Crandon v. United States, 494 U.S. 152, 157-158 (1990). Re-
spondents did not make that argument below, and it is in any event
without merit. First, this case involves a facial challenge to a reg-
ulation issued by the agency charged with administering the Act, not
an application of the "take" prohibition in the context of particular
conduct alleged to be in violation of the Act, as in Thompson/Center
Arms and Crandon.  The origins of the rule of lenity in criminal
prosecutions counsel against its invocation in this quite different
setting.
Second, even where it applies, the rule of lenity comes into play only
at the end of the process, if the statute remains ambiguous after
utilizing other tools of statutory construction. See, e.g., Smith v.
United States,  113 S. Ct. 2050, 2059-2060 (1993). Here, as we have
explained, the text, structure and history of the Act refute respondents'
contentions that the "take" prohibition applies only to purposeful
conduct directed at protected wildlife, and that it categorically
excludes all actual killings or injuries of wildlife that result from
significant habitat modification or degradation. At the very least, the
Secretary's longstanding interpretation is reasonable, and therefore is
controlling under Chevron. Cf. Ehlert v. United States, 402 U.S. 99, 105
(1971) (deferring to agency interpretation in criminal prosecution). And
because that interpretation is published in the Code of Federal
Regulations, the notice goal of the rule of lenity is satisfied.
Third, respondents' position that the "take" prohibition is limited to
purposeful conduct directed at wildlife is essentially an argument that

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12

C. The remaining efforts by respondents and their
amici to replace the meaning of "harm" that is now firmly
embedded in the Act are without merit.
1. Respondents contend (Br. 25-26) that if the "take"
prohibition applies to the killing or injuring of wildlife as a
result of significant habitat modification, then it "sub-
sumes" Section 7(a)(2) and renders that section "sur-
plusage." Section 7(a)(2) requires every federal agency,
in consultation with FWS, to ensure that actions it
authorizes, funds or carries out are not likely to "jeopar-
dize the continued existence" of a listed species or destroy
or adversely modify habitat of the species that has been
determined by the Secretary to be critical.
In respondents' view, if everyone has a duty under
Section 9 to avoid inadvertently injuring even one member
of a listed species, there is nothing left of the separate
federal duty to avoid actions that jeopardize the species'
continued existence. Respondents misapprehend the
statutory scheme. The "no jeopardy" standard establishes
an absolute level of protection for a species as against
federal actions covered by Section 7(a)(2) (in the absence
of an exemption granted by the Endangered Species
Committee under Section 7(h)). The "take" prohibition in
Section 9, by contrast, is not absolute; by virtue of the 1982
amendments, FWS may allow "incidental takes" of a pro-
tected species, either in connection with federal actions
through the consultation process under Section 7, or in

___________________(footnotes)
     
scienter must be shown in every application of that prohibition, even in
civil injunctive actions where scienter typically is irrelevant. The
ESA's criminal provision, however, contains its own scienter
requirement ("knowingly"), which furnishes an additional element of a
criminal offense. Compare Thompson/Center Arms, 112 S. Ct. at 2110
(plurality opinion) (criminal offense had no additional element of
willfulness). Accordingly, the rule of lenity furnishes no basis for
reading a scienter element into the basic "take" prohibition.

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13

connection with non-federal actions through the issuance
of incidental take permits under Section 10. See 16 U.S.C.
1536(b)(4), 1639(a)(1)(B) and (2). In addition, because the
Section 9 "take" prohibition does not apply of its own force
to threatened species (such as the northern spotted owl),
but has instead been extended to such species by
regulation under Section 4(d) (see Gov't Br. 5 & n.4), FWS
may carve out exceptions to the "take" prohibition for
threatened species. See pages 19-20, infra. FWS may not,
however, carve out exceptions from Section 7(a)(2) for
threatened species. Similarly, as we explain in our
opening brief (at 41-44), the Secretary's interpretation of
"harm" does not render superfluous the provision in
Section 7(a)(2) for protection of critical habitat.
Several amici assert that inclusion of habitat modifica-
tion resulting in death or injury to protected wildlife in
the definition of "harm" leads FWS to substitute Section
9's harm restrictions for the designation of critical habitat
pursuant to the provisions added to Section 4 of the ESA in
1978 and 1982, which require consideration of economic
and other factors. See State Water Contractors Br. 11-15;
Nat'l Ass'n of Home Builders Br. 4-10; Congressman
Baker Br. 6-21. FWS's approach to designating critical
habitat of course is not at issue in this case. In any event,
amici are wrong in asserting that the Secretary's
interpretation of "harm" limits the role of critical habitat.
To the extent critical habitat plays a relatively limited
independent role as a practical matter under the ESA, it is
primarily because the comprehensive evaluation required
by Section 7 to determine whether a species would be
jeopardized necessarily entails evaluation of impacts on its
habitat, whether or not critical habitat has been for-
mally designated for the species under Section 4.

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14

50 C.F.R. 402.02. 11. As a result, formal designation of
critical habitat often is not necessary to address habitat
modification in the Section 7 context, and "the protection
provided by a critical habitat designation usually only
duplicates the protection provided under the section 7
jeopardy provision. " 57 Fed. Reg. 36,626, 36,627 (1992). 12.
Moreover, amici lose sight of the fact that the 1978 and
1982 amendments to the ESA, which added the provisions
for designation of critical habitat on which they rely, also
added the provisions (discussed above) that strongly
reinforce the Secretary's interpretation of "harm" as
including death or injury to wildlife that is caused by
significant habitat modification. Congress therefore saw
no inconsistency between the Secretary's interpretation

___________________(footnotes)

11 Amici State Water Contractors, et al., argue (Br. 15) that FWS
could conclude that little economic impact is felt from critical habitat
designation only if "harm" is defined to include death or injuries caused
by habitat modification.  However, the very critical habitat
designations they cite explicitly state that the listing of a species and
the concomitant duty to avoid jeopardy under ESA Section 7(a)(2)
encompass most of the federal agency obligations regarding critical
habitat. See, e.g., 59 Fed. Reg. 65,260, 65,262, 65,274-65,275 (1994)
(Delta smelt); 57 Fed. Reg. 36,626, 36,627, 36,630 (1992) (Sacramento
River Winter-run Chinook salmon); id. at 1796, 1812-1813, 1831-1833
(northern spotted owl). The FWS's "incremental approach" to
assessing the economic and other effects of a critical habitat
designation has been challenged and upheld. Trinity County Con-
cerned Citizens v. Babbitt, Civ. No. 92-1194 (D.D.C. Sept. 20, 1993).

12 The clearest instance in which a designation of critical habitat
can afford additional protection to listed species involves unoccupied
potential habitat. Critical habitat is defined as including areas both
"within" and "outside" the areas occupied by the species at the time of
listing. 16 U.S.C. 1532(5)(A) In appropriate cases, designating
unoccupied potential habitat can promote recovery of the species by
providing for "natural range expansion into adjacent suitable habitat."
49 Fed. Reg. 38,904 (1984); see also 57 Fed. Reg. 36,627 (1992).

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15

and the statutory provisions for designation of critical
habitat. That conclusion is reinforced by the fact that in
TVA v. Hill, which was the impetus for the 1978
amendments, this Court recognized that completion of the
Tellico Dam would have violated both Section 7 (by
jeopardizing the continued existence of the snail darter
and destroying critical habitat the Secretary had
designated for the species) and Section 9 (by taking the
snail darter under the Secretary's "harm" regulation).
See 437 U.S. at 1.61-162, 171-172, 184-185 & n.30. And as we
have explained (Gov't Br. 32, 38, 44), Congress specifically
accommodated the overlap of Sections 7 and 9 in this
regard by enacting Section 7(o) in 1978 and reenacting it
in 1982.
2. Some amici argue that "harm" should be narrowly
construed to avoid questions under the Just Compensation
Clause of the Fifth Amendment. See, e.g., American Farm
Bureau Fed'n Br. 20-26. This Court rejected the same
argument in Riverside Bayview Homes, in holding that
adjacent wetlands are included within the Clean Water
Act's prohibition against the discharge of pollutants into
"waters of the United States." There, as here, the statute
proscribed conduct in absolute terms, with exceptions
available by securing a federal permit. This Court
explained that the mere assertion of regulatory juris-
diction by a governmental body does not constitute a
regulatory taking because "the very existence of a permit
system implies that permission may be granted, leaving
the landowner free to use the property as desired," and
"even if the permit is denied, there may be other viable
uses available to the owner." 474 U.S. at 127.
Amici's reliance on Bell Atlantic Tel. Cos. v. FCC, 24
F.3d 1441, 1445 (D.C. Cir. 1994), is misplaced. There, the
broader interpretation of the regulation would in every
case have resulted in a Fifth Amendment taking. Compare

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16

Riverside Bayview Homes, 474 U.S. at 128 n.5 (distin-
guishing United States v. Security Industrial Bank, 459
U.S. 70 (1982), on that ground). Here, there is no
identifiable category of situations in which application of
the "harm'' regulation will necessarily (or even probably)
result in a Fifth Amendment taking. In fact, amici do not
identify a single instance (and we know of none) in which a
plaintiff has even filed a claim alleging, much less proven,
a Fifth Amendment taking as the result of an application
of the "harm" regulation that inhibited land use. 13.
3. Respondents assert that Congress would not have
intended that the ESA interfere with the use of private
property because the land use activities affected by the
regulation are not otherwise substantially regulated.
Resp. Br. 27-28. To the contrary, timber harvesting on
non-federal lands, which is the activity that respondents
allege the "harm" regulation interferes with, often re -
quires a permit. See, e.g., Forest Conservation Council v.
Rosboro Lumber Co., No. 94-35070 (9th Cir. Mar. 24, 1995),
slip op. 3303; J.A. 19; see also Resp. Br. 9 n.9.
Respondents' assumption that Congress invariably acts
with the intent to avoid any effect on private land use also

___________________(footnotes)

13 The suggestion by amici Arizona (Br. 24-25) and Texas (Br. 8-11)
that the "harm" regulation impermissibly intrudes on state sovereignty
is foreclosed by Hodel v. Virginia Surface Mining & Reclamation
Ass'n, 452 U.S. 264, 283-293 (1981). Arizona's argument (Br. 15-18) that
the regulation is unconstitutionally vague is not presented here. The
courts below rejected respondents' vagueness challenge (Pet. App. 24a,
47a-51a, 83a-85a), and respondents did not seek review of that holding.
In any event, the court of appeals correctly held that unless a
regulation is vague in ail its applications, it cannot be declared void on
its face, see Village of Hoffman Estates v. The Flipside, Hoffman
Estates, Inc., 455 U.S. 489, 497 (1982), and that the "harm" regulation
contains limiting features that prevent it from being vague in all
applications. Pet. App. 49a-50a.

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17

is without foundation in law or experience-especially
where, as here, significant environmental values of na-
tional concern are present. See, e.g., Riverside Bayview
Homes (Clean Water Act); Virginia Surface Mining
(Surface Mining Control and Reclamation Act of 1977). By
amending the ESA in 1982 "to increase the flexibility in
balancing species protection and conservation with
development project s," H.R. Rep. No. 567, supra, at 10,
Congress recognized that land use is affected by the Act.
The prohibition on the taking of species, in conjunction
with the program for authorizing incidental takes, casts
jurisdiction over a wider range of activities than ulti-
mately will be restricted. This approach rationally and
flexibly addresses the inherent difficulties involved in
defining prohibited conduct in light of the wide diversity of
species and the range of circumstances in which they live.
FWS's informal discussions with landowners and the
formal Section 10 permit process furnish the means by
which the balance can be struck on a case-by-case basis, so
that land use activities may continue while at the same
time ensuring that the number of "takes" that result will
be minimized.
4. Respondents and their amici speculate about pos-
sible applications of the "harm" regulation, and they urge
the Court to invalidate it in order to prevent such appli-
cations. This case, however, involves a facial challenge to
the regulation (J.A. 28; Pet. App. 24a), and the regulation
therefore must be sustained unless respondents establish
that "no set of circumstances exists under which the
[regulation] would be valid." Reno v. Flores, 113 S. Ct.
1439, 1446 (1993); see also Anderson v. Edwards, No. 93-
1883 (Mar. 22, 1995), slip op. 11 n.6; Gov't Br. 19. This
respondents have failed to do.
There is no merit to respondents' suggestion (Br. 37-38)
that this case challenges a concrete application of the

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18

"harm" regulation to respondents through "owl guide-
lines." In July, 1990, shortly after the northern spotted
owl was listed as a threatened species, FWS prepared a
document entitled "Procedures Leading to Endangered
Species Act Compliance for the Northern Spotted Owl"
(J.A. 36-48). That document provided information on
various aspects of ESA compliance vis-a-vis the owl, and
included a section entitled "Incidental Take Guidelines
under Sections 7 and 10" (J.A. 41-44). It is that section
that respondents refer to as the "owl guidelines." The
courts below did not make any findings regarding the
application of those guidelines (or the "take" prohibition)
to particular parcels of land.
Moreover, respondents fail to mention that they brought
a separate suit challenging the same "owl guidelines," on
the grounds that they were based on a definition of "harm"
that was inconsistent with the ESA and had been
developed without the notice and comment allegedly
required by the Administrative Procedure Act, 5 U.S.C.
553(b). FWS subsequently withdrew the guidance. The
district court then dismissed the complaint as moot,
holding that FWS's rescission of the guidance provided the
plaintiffs with all the relief they sought. Sweet Home
Chapter of Communities for a Great Oregon v. Lujan,
Civ. No. 91-2218 (D.D.C. Feb. 27, 1992), slip op. 5.
On February 17, 1995, FWS proposed new regulations
under Section 4(d) of the Act to address the application of
the "take" prohibition to the northern spotted owl. See
Gov't Br. 5 & n.4. Among other things, the special rule
would exempt private timber harvests from that
prohibition in defined areas. For example, on non-federal
land located in the spotted owl's range but outside speci-
fied zones where full protection is still needed, the rule
would exempt incidental takings unless they result from
harvesting within a 70-acre area closest to an owl's site

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19

center (i.e., nest tree, or primary roost for non-nesting
owls). 60 Fed. Reg. 9484, 9485 (1995). 14. Within special
zones that require somewhat greater protection, small
landowners (owning less than 80 acres) would be exempted
with respect to incidental takings resulting from logging
activities outside an owl's site center. Id. at 9485. The
proposal also would provide additional flexibility for small
landowners, such as a program for owners of between 80
and 5000 acres of forest lands within the special zones to
acquire a Section 10 permit with a minimum of red tape by
using a "short form" habitat conservation plan. Ibid.
The proposed rule for the spotted owl is just one
example of FWS's ongoing policy to assist the public in
determining whether a particular activity would con-
stitute a prohibited act under Section 9 and to streamline
the process for obtaining exemptions. See, e.g., 59 Fed.
Reg. 34,272 (1994) (policy statement committing agencies
to provide guidance and assistance to public to avoid
liability for incidental takes); J.A. 43-48. Another example
has been implemented in Texas, where qualified land-
owners may complete a simplified application form,
contribute to the City of Austin Balcones Canyonlands
Conservation Fund for mitigation of any taking, and
usually within two months receive a permit to take listed
species incidental to construction activities. See, e.g., 59
Fed. Reg. 66,555-66,556 (1994) (permit application notices).
Respondents contend (Br. 37 n.45) that this case differs
from Reno v. Flores because here "[t]here is no dispute

___________________(footnotes)

14 Even within the 70-acre core area.., harvest activities would not
automatically constitute a prohibited taking. The proposed rule simply
does not exclude such actions from coverage should a taking occur. As
a biological matter, there is a substantial risk that such activities
would actually kill or injure spotted owls. But as a legal matter, the

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about [the "harm" regulation's] manner of application and
scope." Even a cursory reading of the amici briefs dispels
any notion that there is unanimity of view as to the scope
and application of the regulation. Contrary to re-
spondents' suggestion (Br. 36), moreover, here, as in Reno
v. Flores, there are no findings of fact or a record con-
cerning the agency's enforcement. Amici's scattershot
introduction of material at this late stage can only provide
a truncated, one-sided (and, we believe, inaccurate) view of
the facts. 15. In any event, amici's arguments go beyond the
scope of a facial challenge. "As the Court of Appeals
* * * invalidated the regulation on its face, [this Court
has] no occasion to consider whether it is valid as applied."
Bowen v. Yuckert, 482 U.S. 137,154 n.12 (1987).

___________________(footnotes)

government or plaintiff in a citizen suit seeking to enforce the "take"
prohibition would have the burden of proving a "take."

15 For example, citing Idaho Farm Bureau Fed'n v. Babbitt, 839 F.
Supp, 739 (D. Idaho 1993), appeals pending, Nos. 94-35164, 94-35230 (9th
Cir.), amici American Farm Bureau Fed'n, et al., assert (Br. 15) that in
1985, FWS banned farmers in southwestern Idaho from pumping
groundwater in order to protect a listed springsnail. To the contrary,
existing groundwater pumping was never banned, and a moratorium
placed in 1982 on new pumping applications was imposed by the State
of Idaho, not FWS or any other federal agency, for reasons unrelated to
any endangered species concerns. 58 Fed. Reg. 5938, 5941-5942 (1993).
Moreover, the springsnail at issue was not even listed until January 25,
1993, years after the alleged ban on new groundwater pumping was
imposed. 839 F. Supp. at 743-744.

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* * * * *

For the foregoing reasons and those stated in our
opening brief, the judgment of the court of appeals should
be reversed.

Respectfully submitted.

DREW S. DAYS, III
Solicitor General

APRIL 1995

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