CHAPTER 2 ANOTHER TAKE ON “TAKE”: THE ENDANGERED SPECIES ACT SECTION 9 PROHIBITION

• Jurisdiction: United States

Endangered Species Act
(Nov 2015)
CHAPTER 2
ANOTHER TAKE ON "TAKE": THE ENDANGERED SPECIES ACT SECTION 9 PROHIBITION
Steven P. Quarles
Partner
Nossaman LLP
Washington, DC
Sarah C. Wells
Nossaman LLP; and Wallace P. Erickson, Western EcoSystems Technology, Inc. ¹

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STEVEN P. QUARLES is a partner in the D.C. office of Nossaman LLP. A graduate of Princeton University and Yale Law School, Steve has served with the Ford Foundation in Brazil, as counsel to the U.S. Senate Committee on Energy and Natural Resources, as Deputy Undersecretary of the Department of the Interior, as a member of the Secretary of the Interior's Federal Wind Turbine Guidelines Advisory Committee, and on the Board of Minerals and Natural Resources and two committees of the National Academy of Sciences. Steve's practice has focused on federal lands, minerals and forest resources, and on federal wildlife law, including the Endangered Species Act (ESA), Migratory Bird Treaty Act (MBTA), and Bald and Golden Eagle Protection Act (BGEPA). Steve represents a broad array of companies, trade associations, States, local governments, and land trusts in the courts and before federal agencies. He also has been involved for the last two decades with every major Congressional effort to amend or reauthorize the ESA. Among his current matters, Steve is working on the preparation of the largest regional, multi-species habitat conservation plans ever proposed (the 9-State Great Plains and 8-State Midwest Wind HCPs), on establishment of the largest ESA conservation bank (for greater sage grouse and proposed for golden eagles in Wyoming), on the first eagle programmatic take permits under BGEPA, with multiple interstate oil and gas pipelines on ESA and MBTA issues, and for a newly formed coalition of utilities and wind companies--Energy and Wildlife Action Coalition--on national policy and litigation matters. Among his many publications are two chapters in recent American Bar Association books on the law of "take" and the ESA and on the ESA and nanotechnology. Steve sits on a number of non-profit boards, including American Forest Foundation, Bat Conservation International, Pacific Forest Trust, Maryland Environmental Trust, Binational Softwood Lumber Council, and Henry M. Jackson Foundation.

I. The Heart of the ESA: The Section 9 "Take" Prohibition

After over forty years of experience, challenges, and change, the Endangered Species Act of 1973 ("ESA" or "Act") remains among the most powerful and controversial environmental laws. The ESA aspired to provide a comprehensive approach to the invariably complex environmental problem of species extinction, and at the heart of this endeavor is the section 9 prohibition against "take" of species that are in danger of extinction. The Act declared as its purpose "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 endangered species and threatened species."² By its leading position in the statement of purpose, ecosystem conservation may appear to be the paramount function of the ESA, but it is not accorded such prominence in the Act's substantive provisions. Instead, the species-focused "take" prohibition is the primal source of the ESA's strength and also the fundamental source of the controversy surrounding the Act's expansive reach. While the ESA was popular at its inception and easily passed through Congress,³ its force and potential impacts only became widely appreciated with the Supreme Court's decision in the case of Tennessee Valley Authority v. Hill.⁴ The Supreme Court's unequivocal interpretation of the strength of the ESA articulated in that case laid the foundation for the Act's worn but apt characterization as the "pit bull" of environmental laws, with teeth capable of crippling a land use or development project.

In the four decades following the passage of the ESA, innumerable judicial opinions, a limited number of amendments, and impactful rulemakings have shaped the form and function of the Act's regulatory scheme that aims to protect listed species and their habitats. The development of the law surrounding "take" of listed species has been central to the overall evolution of the ESA, because the determination of what actions and what results are and are not prohibited by the Act determines the Act's reach, in turn affecting the development of each of the means of compliance made available by other sections of the ESA. Case law addressing incidental "take"--which is defined as "take" that "is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity"⁵ --was inconsistent and unpredictable until the seminal 1995 Supreme Court case of Babbitt v. Sweet Home

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Chapter of Communities for a Great Oregon.⁶ Now, twenty years after Sweet Home, Justice Stevens' and Justice O'Conner's respective majority and concurring opinions are bedrock ESA law, though "questions of proximity and degree" continue to be explored on a case-by-case basis as predicted. That stability in judicial precedent, accompanied by the lack of any new statutory amendments or regulations affecting the section 9 "take" prohibition since Sweet Home, has meant that most of the ESA issues currently garnering attention are found under other provisions of the Act, particularly those--sections 7 and 9--that provide mechanisms to escape "take" liability. However, we are moving into a new era of ESA compliance where the legal standards for determining "take" established by Sweet Home must be aligned with the growing role of biological modeling in the calculation of "take." Scientific modeling has been used increasingly to address uncertainties surrounding both the likelihood of the occurrence of "take" as well as the impacts of "take." As modeling applications have become more common in ESA compliance, tensions arising from conflicting perspectives in science and law regarding causation, probability, and foreseeability of "take" have risen to the forefront of the uncertainties surrounding this central ESA concept.

A. The Preeminent ESA Species Protection Mechanism

The ESA provides protection to fish, wildlife, and plant species that are determined by the Secretary of the Interior or the Secretary of Commerce to be endangered or threatened (collectively, "listed species") and placed--through a rulemaking process described in ESA section 4--on the lists of ESA-protected species in the Code of Federal Regulations.⁷ The Secretaries, through the U.S. Fish and Wildlife Service ("FWS") and National Marine Fisheries Service ("NMFS") (collectively, "Services"), jointly administer the ESA, with the NMFS generally having jurisdiction over marine species and anadromous fish, and the FWS generally having jurisdiction over terrestrial and freshwater species.⁸ Species listed under the ESA receive protection through three distinct mechanisms: (1) the ESA section 7(a)(1) general mandate that federal agencies, in consultation with the Services, "utilize their authorities in carrying out programs for the conservation of endangered species and threatened species";⁹ (2) the ESA section 7(a)(2) requirement that federal agencies, in consultation with the Services, "insure that any action authorized, funded, or carried out by [them] is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of [designated critical] habitat of such species";¹⁰ and (3) the ESA section 9(a)(1) list of prohibited acts, chiefly section 9(a)(1)(B), which declares it "unlawful" for "any person" to "take" an "endangered species of fish or wildlife."¹¹ Of these three species protection mechanisms, the section 9(a)(1) "take" prohibition is the most restrictive. Rather than addressing survival at the species level--as does the

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section 7(a)(1) requirement for consultation on federal agency programs ("conservation of...species" standard) and the section 7(a)(2) requirement for consultation on federal agency actions ("likely jeopardize the continued existence of any" species standard)--the "take" prohibition applies to individual members of listed wildlife species. Further, the "take" prohibition extends more broadly than simply to federal agencies, as do sections 7(a)(1) and 7(a)(2), applying to "any person," which includes the full range of private actors and governmental entities at every level, as well as the officers and employees of those governmental entities.¹² While the language of section 9(a)(1) applies the "take" prohibition only to endangered wildlife species, the FWS has extended the "take" prohibition to threatened wildlife species through a blanket rulemaking under its discretionary authority, found in section 4(d), to extend the prohibition of any or all of the section 9 "prohibited acts" to a threatened species.¹³ Functionally, this "blanket rule" applies the section 9 "take" prohibition to all threatened wildlife species, and the FWS promulgates additional species-specific 4(d) rules as it deems necessary to except certain species or activities from the blanket rule. In contrast, the NMFS promulgates a 4(d) rule for each threatened wildlife species that delineates which section 9 prohibitions will apply.¹⁴

B. The Definition of "Take"

ESA section 9 makes it unlawful for any person subject to the jurisdiction of the United States to "take", any endangered wildlife species, and section 3(19) defines "take" of wildlife to mean "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect" listed wildlife, "or to attempt to engage in any such conduct."¹⁵ The last eight of these verbs are found in previous definitions of "take" in other wildlife laws, and they comport with the historical common law concept of wildlife take, which dealt with the pursuit of wildlife and its...