Animal habitats in harm's way.

• Author: Dill, Starla K.
• Position: Case Note

1. INTRODUCTION

   Timber harvest and ecosystem preservation are at the center of the dispute in Sweet Home Chapter of Communities for a Great Oregon v. Babbitt (Sweet Home III).(1) Environmentalists who seek protection and preservation of the northern spotted owl represent one side of the conflict, while logging community associations who seek economic security represent the other side.

   The ancient forests of the Pacific Northwest contain giant conifers(2) that are both an economic resource and an invaluable ecological asset. These trees are a valuable resource for timber harvest, which supports part of the State of Oregon's economy.(3) By 1978, several analysts had anticipated a shortage in timber supplies from public lands in the Pacific Northwest.(4) The analysts attributed the projected shortage to the exhaustion of ancient forests.(5) At least one study also expected a decline in timber supply from private lands.(6) The listing of the northern spotted owl(7) in 1990 under the Endangered Species Act (ESA)(8) exacerbated the growing concerns about timber shortages because it was expected to restrict timber harvests.

   The trees also maintain forest ecosystems that are rich in biodiversity.(9) Some scientists believe that the largest threat to spotted owl survival is the elimination of habitat.(10) Northern spotted owls generally occupy old-growth or mixed old-growth/mature forests(11) because older forests tend to have the structural attributes that owls need for nesting.(12) Owls prefer to forage for food in older forests and often avoid crossing clearcuts.(13) The owls instead fly through corridors of pristine forested land in order to reach areas that are suitable for foraging.(14) In response to the threat of habitat destruction, the scientific committee that developed the conservation strategy for the northern spotted owl called for preservation of large blocks of ancient forest habitat.(15)

   Logging communities, however, have competing concerns about harvesting the remaining ancient forest areas. Private forest landowners, businesses, and logging communities are concerned about "jobs.... a viable tax base to support community services, and the equity of life that goes along with economic well-being."(16) In response to these concerns, many small logging communities banded together in associations to offer each other support during difficult economic times.(17) One such organization is the Sweet Home Chapter of Communities for a Great Oregon, which is one of the plaintiffs who challenged the Fish and Wildlife Service (FWS) regulation at issue in Sweet Home III.(18)

   This Note explores the conflict between ecology and economy in the context of the current split among the circuits regarding the FWS regulation that defines "harm" under the ESA.(19) In the Palila cases,(20) the Ninth Circuit decided that habitat modification that indirectly injures or kills wildlife falls within the ESA's definition of "harm," and thus is a prohibited taking.(21) The Ninth Circuit therefore supported the definition of "harm" as defined in the FWS regulation. In Sweet Home III, however, the D.C. Circuit invalidated the regulation.(22) The U.S. Supreme Court recently granted certiorari(23) to hear Sweet Home III, so will soon resolve the split between the circuits.

   The remainder of Section I explores the background to the legal controversy in Sweet Home III. It provides a brief overview of the ESA,(24) examines the Ninth Circuit's position in Palila with respect to the FWS definition of harm,(25) and outlines the procedural facts of the Sweet Home cases.(26) Section II then examines the D.C. Circuit's legal arguments in Sweet Home III and analyzes the majority's use, or rather lack of use, of Chevron U.S.A. v. Natural Resources Defense Council27 in resolving the case.(28) This Note concludes that the majority in Sweet Home III misapplied Chevron, and that the Supreme Court should uphold the FWS regulation as a reasonable interpretation of the ESA.(29)

   1. Section 9 of the Endangered Species Act

      When Congress passed the Endangered Species Act in 1973, its stated purpose was to "provide a means whereby the ecosystems upon which endangered species ... depend may be conserved, to provide a program for the conservation of such endangered species . . . and to take such steps as may be appropriate to achieve the purposes of the treaties and conventions set forth in [the Act]."(30) The ESA's statement of purpose remains unchanged to this day.(31) Congress recognized the need to conserve the ecosystems on which endangered animals depend and to take appropriate steps to conserve those animals.(32) As one expert believes, the ESA "elevates the goal of conservation of listed species above virtually all other considerations."(33)

      Section 9 of the ESA prohibits the performance of certain acts involving an endangered or threatened species, such as importing, taking, selling, and possessing.(34) The prohibitions apply to both private individuals and government officials.(35) Taking a species includes such acts as "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct."(36) "Harm" is not defined by the ESA, but is defined by a FWS regulation as follows:

      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.(37) The validity of this regulation is the source of the split between the circuits.(38)

      The term "harm" can be interpreted either narrowly or expansively.(39) The majority in Sweet Home III, for example, adopts a narrow reading, requiring direct physical injury or action toward a listed animal.(40) Such an interpretation necessarily excludes the indirect action involved in habitat modification.(41) Alternatively, under a more expansive reading of harm, takings can include actions that produce a general injury to the species as a whole(42) or indirect actions that result in harm to a particular member of the protected species.(43) Habitat modification that results in injury or death to a listed species would naturally fall under either expansive definition.

      The FWS supports an expansive definition.(44) The FWS regulation does not limit the definition of harm to direct physical injury, but rather includes the impairment of essential behavioral patterns that have "significant and permanent effects on a listed species."(45) Consistent with this interpretation of harm, the FWS issued guidelines indicating that tree harvesting on private or public lands that leaves less than forty percent coverage by suitable habitat around a spotted owl nest may be a taking under the ESA.(46)

   2. The Ninth Circuit and the Palila Decisions

      The FWS is not alone in interpreting the ESA to prohibit habitat modification as part of its general prohibition against harm. The Ninth Circuit reached the same conclusion in the series of Palila decisions.(47) The Palila, a finch-billed bird of the Hawaiian Honeycreeper family, is a listed endangered species that lives in a forest area designated as critical habitat.(48) The State of Hawaii managed feral goats and sheep within the Palila's habitat for sport-hunting purposes.(49) The feral goats and sheep consumed seedlings and plants, thus "prevent[ing] regeneration of the forest, and ... bring[ing] about the relentless decline of the Palila's habitat."(50) One of the issues that the district court decided was whether harm, defined at the time by FWS as "significant environmental modification or degradation which actually injures or kills wildlife,"(51) included the destruction of the Palila's habitat by the sheep and goats. The court, without much discussion or explanation, concluded that Hawaii was taking the Palila in violation of the ESA.(52)

      In Palila II, the Ninth Circuit affirmed the district court's holding as consistent with Congress' express concern about the threat to endangered species through habitat destruction.(53) The court noted that the ESA requires affirmative preservation of an endangered species.(54) While the court did not cite to the FWS regulation, its reasoning was based on legislative history and supports the general idea of including habitat modification as harm.(55)

      The Ninth Circuit reaffirmed its decision and directly supported the FWS regulation in Palila IV.(56) In Palila III, plaintiffs had asked the district court to remove a further threat from the Palila habitat, namely mouflon sheep.(57) The district court found that mouflon sheep, like the goats and sheep of Palila II, also ate plants and seedlings, thereby causing habitat degradation that could potentially trigger the extinction of the Palila.(58) Hawaii argued that mouflon sheep posed only a threat of potential harm to the Palila. It contended that the ESA only prohibited actual harm, meaning those acts "which result in the immediate destruction of the Palila's food sources."(59) The district court disagreed with the State and required that it remove the sheep.(60)

      In Palila IV, the Ninth Circuit refused to distinguish its previous decision in Palila Il and upheld the district court's decision.(61) The court pointed out that the Department of the Interior (DOI) had not disturbed the district court's definition of harm from Palila I when it later amended the FWS regulation.(62) The court also pointed out that DOI indicated that the definition of harm did not require direct injury, but rather included "impairment of essential behavior patterns via habitat modification that can have significant and permanent effects on a listed species."(63) The court found DOI's definition of harm consistent with the stated purpose of the ESA and with its legislative history.(64) The Ninth Circuit, therefore, again supported the...