TAKE UNDER THE ENDANGERED SPECIES ACT

JurisdictionUnited States
Federal Regulation of Cultural Resources, Wildlife & Waters of the U.S.
(Apr 2012)

CHAPTER 8A
TAKE UNDER THE ENDANGERED SPECIES ACT

Peg Romanik
Department of the Interior
Office of the Solicitor
Washington, DC
John C. Martin
Crowell & Moring LLP
Washington, DC

PEG ROMANIK is a senior attorney with the Division of Parks and Wildlife, Office of Solicitor, U.S. Department of the Interior. Peg's focus is primarily on section 7 of the ESA. She coordinates national level legal issues across the country. She works with regional and field office attorneys in the Solicitor's Office as well as with other Federal agencies' ESA attorneys. Peg works with FWS biologist both in DC as well as in regional and field offices when vexing section 7 issues arise. She frequently helps teach the section 7 classes at the National Conservation Training Center. Peg also coordinates with various U.S. Attorney offices and the Department of Justice on cases involving the Fish and Wildlife Service. Peg graduated from the University of Notre Dame law school and Michigan State University; but, because of her children's choices in higher education she is also a Longhorn and Tarheel fan.

The stated purposes of the Endangered Species Act (ESA) of 1973 are to provide a means to protect the ecosystems of endangered and threatened species, to provide a program for the conservation of threatened and endangered species, and to promote steps to achieve the purposes of certain specified treaties and conventions set out in the ESA.1 Section 4 of ESA sets out procedures to qualify a plant or wildlife species to become "listed" as a species protected under the ESA. Once a plant or wildlife species has been "listed" under the ESA, as either a "threatened" or "endangered" species, certain specific protections under the ESA are triggered.2

Definition of "Take"

Generally, the ESA prohibits the "taking" of listed fish and wildlife species.3 Specifically, the ESA states that is unlawful for any person to "take any such species within the United States or territorial sea of the United States." The term "take" is defined in the ESA as "to harass, harm, pursue, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct."4 Most of the terms listed as prohibited acts in the definition of "take" are self-evident and relate to acts like deliberate hunting that, traditionally, have been subject to government regulation. Some of the prohibited acts (e.g. harass, harm) in the definition, however, are broader in scope and were not found in traditional conservation laws.

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In 1981, the United States Fish and Wildlife Service (the "Service") and the National Marine Fisheries Service ("NMFS") finalized regulations to define the terms "harm" and "harass". The term "harm" was defined as:

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 shelter. 50 C.F.R. § 17.3

The term "harass" was defined as:

An intentional or negligent act or omission which creates the likelihood of injury to wildlife by annoying it such an extent as to significantly disrupt normal behavior patterns which include, but are not limited to, breeding, feeding, or sheltering.5 50 C.F.R § 17.3.

These definitions were not without controversy. Most of the controversy surrounded the potential consequences for "take" that could be caused by an underlying action's habitat modification. Some landowners and land managers, in particular, were concerned that this definition could include actions that, in the past, were not considered to...

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