Continuing a Broad Application of Section 9 of the ESA to Prevent Future Mass Extinctions

Author:Alicia Martinez
Position:J.D. Candidate, American University Washington College of Law 2020.
24 Sustainable Development Law & Policy
continuinG a bRoaD application of Section 9 of
the eSa to pRevent futuRe maSS extinctionS
Alicia Martinez*
Recent studies show a rising need to protect endangered
and threatened species from events of mass extinction.1
The Endangered Species Act of 1973 (ESA) is the pri-
mary mechanism to protect both species and habitats through
the application of civil and criminal penalties.2 One of the two
main habitat protection provisions found in the ESA is Section
9.3 This Section is a criminal provision prohibiting the “taking”
of endangered sh or wildlife under section 9(a)(1), and endan-
gered plants under section 9(a)(2).4 The statutory denition of
“taking” includes “to harass, harm, pursue, hunt, shoot, wound,
kill, trap, capture, or collect, or to attempt to engage in any such
This Article explores the ESAs section 9 habitat protec-
tion provisions and argues that courts have consistently applied
the Palila6 and Sweet Home7 decisions in cases where broad
ndings of proximate cause and foreseeability were needed to
prove a Section 9 taking.8 This Article also emphasizes how
courts and agencies have narrowly and erroneously interpreted
the proximate cause requirement to limit Section 9 takings pro-
tection in climate change cases. This Article recommends that
the federal government and the public, via citizen suits, use this
provision as a main tool in ghting mas s extinctions by apply-
ing a broader scope to Section 9 takings cases including those
concerning climate change and emissions pollution.
I. Background
Two federal agencies, the U.S. Fish and Wildlife Service
(FWS) and the National Marine Fisheries Service (NMFS),
carry out the ESAs mandate to list and protect endangered and
threatened species.9 The rst step to ensure the protection of a
species is for the FWS and the NMFS to follow the delineated
regulatory steps to list a species as threatened or endangered.10
Sections 7 and 9 of the ESA then protect the listed threatened
and endangered species and their habitats.11 Section 9 of the
ESA makes it a criminal offense for any private or public entity
to take a listed species.12 Under the ESA, the taking of an
endangered species is a violation of the Act that can incur a civil
penalty of up to $25,000 and criminal penalties of up to $50,000
and up to one-year imprisonment.13
The Supreme Court has adequately addressed Congress’s
intent to provide broad protection to listed species through the
ESA’s section 9 takings prohibition.14 In Babbitt v. Sweet Home
Chapter of Communities for a Greater Oregon, the Court clari-
ed that a taking includes intentional and direct threats to species
and conrmed that a “harm” impacting a species’ habitat also
counts as a prohibited taking under the ESA.15 In this case, the
Court determined that harm included altering a species’ habitat
in a way that harms the species itself.16 The Court reasoned that
Congress intended to provide broad protection to listed spe-
cies that included indirect or unforeseeable actions that could
negatively impact listed species.17 Furthermore, both the FWS
and the NMFS have codied the Court’s denition of harm and
its application to an endangered or threatened species’ habitat
through the promulgation of “Harm Rules.”18
In addition to the Court’s clarication, two inuential cases
from Hawaii provided the framework for future Section 9 habitat
harm cases. In the rst case, Palila I, plaintiffs brought a suit on
behalf of the endangered palila bird.19 The district court found
that the negative impact caused by the management program
was consistent with the regulatory denitions of harm in Sweet
Home.20 In the second case, Palila II, the district court once
again held that the state’s game management program continued
to constitute harm by negatively impacting the palilas’ habitat.21
II. analysIs
Most courts continue to correctly follow the Palila and
Sweet Home decisions and apply a broad reading to the proxi-
mate cause and foreseeability elements required to prove a
Section 9 taking.22 This broad application is consistent with
Congress’s intent to dene a taking “in the broadest possible
manner to include every conceivable way in which a person can
‘take’ or attempt to ‘take’ any sh or wildlife.”23 However, some
Section 9 takings cases concerning climate change are errone-
ously decided in circumstances where it is difcult to establish a
concise link between the activity that causes harm and the actual
harm.24 In Arizona Cattle Growers’ Association v. United States
Fish & Wildlife,25 the court erred in applying a narrow proxi-
mate cause and foreseeability analysis that resulted in a nding
that the activity did not constitute a Section 9 taking.26
This narrow application of the proximate cause requirement
is incorrect “considering that the policy goal of the ESA is to
conserve species, any injury likely to substantially impact a spe-
cies’ long-term survival should be considered a proximate cause
of harm.”27 In addition, cases such as Defenders of Wildlife v.
Administrator28 and National Wildlife Federation v. Hodel29
clearly demonstrated how to follow the analytical framework set
out by the Palila I and Palila II cases.30 In Defenders of Wildlife,
the court found that the direct or indirect poisoning of eagles by
a registered pesticide constituted a taking.31 In National Wildlife
Federation, the court found that lead poisoning caused by bald
eagles ingesting other birds who consumed or were hit with lead
shots constituted a taking.32 Both court’s ndings that “indirect”
*J.D. Candidate, American University Washington College of Law 2020.
Spring 2019
1 See, e.g., Michelle Innis, Australian Ro dent Is First Mammal Made
Extinct by Hum an-Driven Climate Cha nge, Scientists Say, n.y. timeS
(June 14, 2016),
climate-change-bramble-cay-rodent.html; Carl Zimmer, Ocean Li fe Faces
Mass Extinct ion, Broad Study Sa ys, n.y. timeS (Jan. 15, 2015), https://www.
2 See Babbitt v. Sweet Home Chapter of Cmty. for a Gre ater Or., 515 U.S.
687, 707 (1995) (referring to Congress’s intent to i nclude habitat modication
as an incident al taking).
3 See 16 U.S.C. §§ 1536, 1538 (2012) (applying to all p ersons while the
other main prov ision, section 7’s “duty to insure,” applie s only to the federal
4 Id. § 1536(a)(1)-(2).
5 Id. § 1532(19) (including the wor d “harm” in its denit ion of taking).
6 649 F. Supp. 1070 (D. Haw. 1986) [herein after Palila II]; 639 F.2d 495 (9th
Cir. 1981) [hereinafter Palila I ].
7 515 U.S. 687 (1995).
8 See, e.g., Defenders of Wildlife v. Admr. of Evntl. Prot. Agency, 882 F.2d
1294 (8th Cir. 1989); Nat’l Wildlife Fed’n v. Hodel, 1985 U.S. Dist. LEXIS
16490, *17 (E.D. Cal. 1985).
9 The FWS oversees th e listing and protect ion of land-based sh and
animals. T he NMFS is within the D epartment of Comme rce and is tasked
with listin g and protecting ocea n-based sh and anima ls. 16 U.S.C. § 1532(15)
(dening the ter m “Secretary ” to mean the Secretar y of the Interior or Com-
merce, thus allow ing the delegation to the U.S. Fish and Wild life Service and
the National Mar ine Fisheries Servic e).
10 Id. § 1533(a), (b) (outlining the p rocess for placing a species on t he
endangered or t hreatened lists a nd designating the cr itical habitats for the
listed specie s including going throug h a thorough risk review u sing the best
commercial a nd scientic data available).
11 Id. §§ 1536, 1538.
12 Id. § 1533(d) (authorizing the FWS and NM FS to extend Section 9 prohi-
bitions to thre atened species thro ugh the promulgation of regu lations).
13 Id. § 1540(a), (b) (outlining the ESA’s civil and crimina l violation
14 See Babbitt v. Sweet Home Chap ter of Cmty. for a Greater Or., 515 U.S.
687, 707-11 (1995).
15 See id. at 708 (reasoning tha t adverse habitat modica tion constitutes a
harm and thu s a possible violation of the section 9 t akings prohibition).
16 See id. at 707 (holdi ng that any adverse changes t o a species’ habitat are a
legitimate ap plication of harm under t he section 9 takings pr ohibition).
17 See id. at 704 (deter mining that Cong ress intended for the ESA to apply
“broadly to cover i ndirect as well as pur poseful actions”).
18 50 C.F.R. § 17.3 (codifyi ng the FWS Harm Rule); see also id.§ 222.102
(codifying th e NMFS Harm Rule).
19 See Palila v. Haw. Dep’t. of Land and Nat. Res., 639 F.2d 495, 495-96 (9th
Cir. 1981) (arguing th at the state’s game management prog ram had a negative
impact on the pal ila’s habitat).
20 See Babbitt, 515 U.S. at 707; (resulting i n the FWS’s attempt to update
their Har m Rule to clarify that any a ctions that constit ute harm must result i n
the actual k illing of a protected sp ecies; however, this attempt did no t result
in any substa ntial change as intended ).
21 See Palila v. Haw. Dep’t. of Land and Nat. Res., 649 F. Supp. 1070, 1082-
83 (D. Haw. 1986).
22 See Nat’l Wildlife Fed’n v. Hodel, 1985 U.S. Dist. LEXIS 16490 at
*17 (E.D. Cal. 1985) (applying the expansive read ing of the Palila cases to
prohibit the use of lea d shot in hunting waterfowl be cause bald eagles were
poisoned afte r consuming conta minated birds).
23 See Babbitt, 515 U.S. at 726 (quoting S. Rep. No. 93-307 at 7 (1973) to
support the C ourt’s reasoning that Co ngress intended for a broa d application
of Section 9).
24 See Morrill v. Lujan, 802 F. Supp. 424, 432 (S.D. Ala. 1992) (holding that
“proof of a taki ng requires the plaint iff to establish a causal l ink between the
habitat modic ation of a proposed project and th e potential harm allege d”).
25 273 F.3d 1229 (9th Cir. 2001).
26 See id. at 1242 (holding that ther e was no “rational basis” for conclu ding
that a Section 9 t aking would occur if the c attle continued to gr aze in areas
where endange red species could be found).
27 See Ethan Mooar, Note, Can Cli mate Change Constitute a Taki ng? The
Endangered Sp ecies Act and Greenhou se Gas Regulation, 21 colo. J. intl
envtl. l. & poly 399, 403-04 (2010).
28 882 F.2d 1294 (8th Cir. 1989).
29 No. S-85-0837, 1985 U.S. Dist. LEXIS 16490, at *1 (E.D. Cal. 1985).
30 See Defenders of Wildlife , 882 F.2d at 1300-01 (following Palila I and
Palila II which conclude that a t aking occurs whe n an act has “some pro-
hibited impac t on” or “signicantly impai rs” an endangered spe cies); Nat’l
Wildlif e Fed’n, 1985 U.S. Dist. LEXIS at *17 (following the Palila I and Palila
II framework that a llows for a more indirect or “sec ondary” link be tween a
harming a ctivity and the act ual harm caused to t he species).
31 See Defenders o f Wildlife, 882 F.2d at 1301.
32 See Nat’l Wildlife Fed’n, 1985 U.S. Dist. LEXIS 16490 at *2, *12.
33 See Babbitt v. Sweet Home Chapt er of Communities for Gre ater Or., 515
U.S. 687, 707 (1995) (holding that the Secreta ry’s broad interpret ation of
the word “harm” t o included habitat modica tion was a permissible rea ding
under the ESA).
34 See id. at 698 (taki ng the intended broad pur pose of the ESA and the
Court’s suppor t of this broad purpos e to “extend protection agai nst activities
that cause the pr ecise harms Congr ess enacted the stat ute to avoid” to include
adverse impac t to broader ecosystem s that then causes har m to endangered
and threat ened species).
35 See id. at 698, 700; see also Pal ila v. Haw. Dep’t. of Land and Nat. Res.,
649 F. Supp. 1070, 1075 (D. Haw. 1986).
36 See Forest Conservat ion Council v. Rosboro Lumber Co., 50 F.3d 781, 783
(9th Cir. 1995) (arguing that fa iling to consider any fores eeability of futu re
harm unde r the ESA is “antithetical to [its] basic pu rpose”).
and “secondary” harm to endangered species still constitute tak-
ings under Section 9 permissibly follow and broaden the appli-
cation of the Palila framework. By deciding not to follow this
broad framework in climate change cases, courts deliberately
ignore the ESA’s statutory intent as established by Congress and
claried by Sweet Home.33
The enforcement of Section 9 takings as intended by Congress
and claried by the Supreme Court provides a powerful tool to
protect more habitats and ecosystems from harm.34 Therefore,
courts should continue to apply this broad scope to future cases
in which a threatened or endangered species taking occurred due
to adverse harm to that species’ environment, including cases in
which this adverse harm was caused by climate change.
III. conclusIon
The broad application of Section 9’s prohibition to include
harms threatening broader ecosystems that may cause “indirect”
and “unforeseeable” harm to threatened and endangered species
is a permissible reading of Congress’s intent to protect these
species.35 The prevention of harm should extend to protect a
broader scope of ecosystems that could still foreseeably cause
harm to a protected species if the habitat is harmed.36 Enforcing
agencies should continue to use the Section 9 takings prohibition
as a mode of prevention against impending but avertable mass
extinctions of species.