The take prohibition in section 9 of the Endangered Species Act: contradictions, ugly ducklings, and conservation of species.

AuthorCheever, Federico
  1. INTRODUCTION II. INDIVIDUALS AND POPULATIONS III. UGLY DUCKLING IV. SIGNIFICANCE AND PROBABILITY V. CONCLUSION I. INTRODUCTION

    We live during one of the most dramatic periods of mass extinction in the multibillion-year history of life on Earth. (1) While we can only, with difficulty, estimate the extent of the current mass extinction, (2) it appears to rank among the half dozen biggest since the beginning of the fossil record and rivals the extinction that ended the reign of the dinosaurs. (3) It is transforming the fabric of life on the planet. It is, however, different from the mass extinctions that came before it because its cause is different. The current mass extinction results from human disruption of ecosystems. (4)

    Thirty years ago the United States took an extraordinary step toward confronting this mass extinction crisis by passing a law "to halt and reverse the trend toward species extinction, whatever the cost." (5) In passing the Endangered Species Act of 1973 (ESA), (6) Congress took a bold step, not out of altruism, but out of self-interest. As Congress observed:

    From the most narrow possible point of view, it is in the best interests of mankind to minimize the losses of genetic variations. The reason is simple: they are potential resources. They are keys to puzzles which we cannot solve, and may provide answers to questions which we have hot yet learned to ask. (7) By passing the ESA, Congress did more than mandate the maintenance of a few specimens of imperiled species on the brink of extinction. Congress mandated "conservation" of species and the ecosystems of which they are a part. (8) Congress defined "conservation" to include "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." (9) For a variety of very good reasons, the ESA mandates recovery of species. (10)

    By all rights, the take prohibition in section 9 (11) should rank among the most important provisions of the ESA. The take prohibition is simple, unambiguous, and breathtaking in its reach and power. Section 9(a)(1)(B)-(C) forbids any "person" to "take" any endangered species of fish or wildlife "within the United States or the territorial sea of the United States" or "upon the high seas[.]" (12) Section 3(13) of the ESA defines "person" broadly to include "an individual, corporation, partnership, trust, association, or any other private entity; or any officer, employee, agent, department, or instrumentality of the Federal Government, of any State, municipality, or political subdivision of a State, or of any foreign government ... or any other entity subject to the jurisdiction of the United States." (13) Section 3(19) defines "take" as "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." (14) Congress defined "take" explicitly "in the broadest possible manner to include every conceivable way in which a person can 'take' or attempt to 'take' any fish or wildlife." (15)

    The United States Fish and Wildlife Service (FWS), responsible for enforcing the ESA for most protected species, has further defined "harass" and "harm" in the definition of "take" to include in jury through habitat destruction. FWS defines "harm" to include an act that results in "significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavior patterns." (16) FWS defines "harass" to include an "intentional or negligent act or omission which creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral patterns." (17)

    In Babbitt v. Sweet Home Chapter of Communities for a Great Oregon (Sweet Home), (18) the United States Supreme Court, relying on the purpose of the ESA, upheld FWS's definition of "harm" within the statutory definition of take against a facial challenge. The Court noted that "Congress' intent to provide comprehensive protection for endangered and threatened species supports the permissibility of the Secretary's 'harm' regulation." (19)

    In practical terms, the section 9 take prohibition must be an essential component in any national effort to preserve biological diversity. It is the only provision of the ESA that applies without qualification to the private land on which most species, endangered or not, depend. This fact undergirds the United States Court of Appeals for the District of Columbia Circuit ruling on the reach of Commerce Clause jurisdiction under the ESA in National Ass'n of Home Builders v. Babbitt. (20)

    After Sweet Home and other expansive readings of the language in section 9 in the late 1980s and early 1990s, it seemed possible that section 9 would evolve into the bulwark for species protection it was plainly intended to be. This has not happened. In 2004, nine years after Sweet Home, the federal courts have yet to put jurisprudential flesh on the statutory bones of the section 9 take prohibition. Issues regarding burden of proof have remained stalled at a rudimentary level. (21)

    The reasons for the arrested development of section 9 jurisprudence are numerous. Politics certainly has something to do with it. There are, however, fundamental tensions between section 9 and the test of the ESA, which cannot be separated from its language and history.

    First, the ESA, as a whole, is about the conservation of species--in other words, the recovery of populations that interbreed and persist over time. (22) Section 9, on the other hand, prohibits injuring individual species members. These are two different things. While there is certainly a relationship between protecting species members and protecting species as a whole, the nature of that relationship is anything but straightforward. It varies dramatically from species to species. Perhaps, just as significantly, section 9's emphasis on protection of individuals invites lawyers, versed in tort concepts, to apply those concepts in ways completely unrelated to furthering the purpose of the ESA.

    Second, the take prohibition in section 9 is a straightforward prohibition set among other substantive provisions which delegate initial decision making to a federal agency. Applying the take prohibition, a federal court may determine whether or not a defendant has injured a protected species member by taking evidence and making a finding of fact. For every other significant provision of the Act--the section 7 jeopardy prohibition, the listing and critical habitat designation in section 4, and the issuance of incidental take statements or permits under section 7(b)(4) or 10(a)--a federal agency must make the initial factual determination. In lawsuits brought for violation of those provisions, courts play only their traditional "administrative law" role--reviewing the adequacy of the agencies' decision making. This bias toward administrative law in the statute creates a bias toward administrative law in ESA practice, even with section 9 claims. Lawyers present administrative findings and administrative law arguments and courts rely on administrative findings in making their decisions. Because most of these findings are not informed by the goal of the ESA, they can broaden the gap between section 9 and the purpose of the Act.

    To fashion an effective jurisprudence for the section 9 take prohibition, courts must honestly consider both the evidence of past and probable future injury to individual species members and the effect of that injury on the prospects of the population and species of which that member is a part. We can never forget the prohibition against injury to individuals exists as an instrument to achieve the statute's goal of species conservation.

  2. INDIVIDUALS AND POPULATIONS

    The purpose of the ESA is relatively clear: to "conserve" endangered and threatened species. Congress enacted the ESA to "provide for the conservation, protection, restoration, and propagation of species of fish, wildlife, and plants facing extinction." (23) In support of the Act, President Richard M. Nixon declared, "Nothing is more priceless and more worthy of preservation than the rich array of animal life with which our country has been blessed." (24) The fate of species as a whole and the factors that govern their fate drive application of almost every provision of the ESA.

    Most prominent among the factors governing the fate of species as a whole is habitat. The ESA lists five factors that are considered in determining whether a species (25) should be listed as threatened or endangered:

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

    (B) overutilization for commercial, recreational, scientific, or educational purposes;

    (C) disease or predation;

    (D) the inadequacy of existing regulatory mechanisms; or

    (E) other natural or manmade factors affecting its continued existence. (26)

    The Act lists adequate habitat as the first factor the agency should consider in listing or delisting. Habitat is generally an essential factor in both species survival and recovery. Congress recognized the importance of habitat under the ESA through the designation of critical habitat for recovery, (27) recovery plans that require protection of habitat, (28) protection of critical habitat from "adverse modification," (29) and habitat conservation plans. (30) Again and again, the Act recognizes that habitat conservation is necessary for the survival and recovery of species.

    The language of the section 9 take prohibition, in what appears to be stark contrast to the rest of the law, focuses on in jury to individual species members. The provision prohibits "take." The words in the definition of take--harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect--all describe action generally done to individuals. The...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT