They paved paradise and put up a parking lot.

• Author: Keenan, Kelly A.
• Position: Case Note

1. Introduction

   The United States has recognized the importance of biological diversity(1) because of the unlimited benefits that potentially could be conferred from unidentified species.(2) Faced with increasing numbers of species extinctions, Congress enacted the Endangered Species Act (ESA or Act)(3) in 1973 to encourage conservation and to protect biodiversity. However, the species-by-species listing procedure provided by the ESA does not adequately protect the ecosystems of endangered species nor promote biodiversity.(4) According to Edward O. Wilson, "[i]f the biodiversity crisis remains largely ignored and natural habitats continue to decline, we will lose at least one quarter of the earth's species.(5)

   The ESA's current regulatory scheme does not prevent the problems that the Act was intended to solve. Currently, the ESA establishes a general prohibition against the taking of endangered or threatened species.(6) To clarify the "take" prohibition, the Director of the Fish and Wildlife Service (FWS) promulgated a regulation defining the term "harm" within the take prohibition of the ESA.(7) The agency's promulgation of the "harm" regulation, however, has been controversial and the topic of much litigation.(8) Most recently, in Babbitt v. Sweet Home Chapter of Communities for a Great Oregon,(9) the Supreme Court ruled that where habitat modifications directly or indirectly actually kill or injure individually listed members of a species, and where such an effect is proximate and foreseeable, such habitat changes are prohibited by the takings clause of the ESA.(10) Subsequently, private land owners have criticized this ruling as an overly expansive interpretation of the ESA because it prevents them from developing all the viable uses of their land.(11) On the other hand, environmentalists have labelled the Supreme Court's decision a narrow construction of the ESA's purpose of protecting biodiversity.(12)

   This Comment argues that the ESA fails to achieve its stated purpose of biodiversity, and therefore, the United States must shift gears and implement habitat conservation planning. Part II of this Comment provides a brief history of the ESA and the take definition. Part III sets forth the controversial harm regulation. Part IV outlines the procedural history of the most recent leading case interpreting the harm regulation, Babbitt v. Sweet Home Chapter of Communities for a Great Oregon. Part V analyzes the Supreme Court's decision in Sweet Home. Finally, Part VI offers several solutions for dealing with the ambiguous take prohibition and explains why habitat conservation planning offers the most appropriate solution for addressing the decision's subsequent ambiguities.

2. The Endangered Species Act

   In the United States, the ESA has been providing federal protection to endangered species since 1973.(13) The purpose of the ESA is "to provide for conservation, protection and propagation of endangered species of fish and wildlife by Federal action. and by encouraging the establishment of state endangered species conservation programs."(14) According to the Senate Committee Report, the two major sources of the extinction of species are hunting and habitat modifications.(15) In order to curtail the risk of extinction posed to endangered species by hunting and habitat modification, section 9(a)(1)(B) prohibits the taking of endangered species.(16) The takings clause of the ESA states that it "is unlawful for any person subject to the jurisdiction of the United States to ... take any such species within the United States or the territorial sea of the United States."(17) This prohibition applies to both private and governmental parties. Take is defined in the ESA as "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct."(18) Legislative history indicates that take should be defined "in the broadest possible manner to include every conceivable way in which a person can `take' or attempt to `take' any fish or wildlife."(19)

   Three courses of action may be pursued against persons that violate the ESA by taking an endangered species.(20) First, the government can impose civil penalties on a violator.(21) Second, the government can seek to impose Criminal penalties on a violator.(22) Third, citizens are granted the right to bring a civil action in district court.(23) Any person may sue to enjoin violators of the ESA or to compel the Secretary of Interior (Secretary) to apply the take prohibition.(24) A citizen may also specifically sue the Secretary for failure to perform a non-discretionary act.(25) Additionally, the ESA encourages individuals to assist the Secretary in enforcing the Act by rewarding those persons that provide information leading to an arrest, a conviction, a penalty or the forfeiture of property.(26) This is the current statutory scheme in place to regulate the hunting of endangered species and the modification of endangered species' habitats.

3. The Secretary of Interior's Harm Regulation

   To further clarify the application of the term "take," the Secretary promulgated a regulation defining the term "harm" as used within the take definition of the ESA.(27) Currently, harm within the take definition means an act which actually kills or injures within, including "significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering.(28)

   The early application of the harm regulation added controversy to the scope of the take definition. In T.V.A. v. Hill,(29) the Supreme Court interpreted the ESA to prioritize biodiversity -- through the protection of an endangered fish, the snail darter -- over a nearly complete multi-million dollar federal project.(30) The Court emphasized that "examination of the language, history, and structure of the legislation under review ... indicates beyond doubt that Congress intended endangered species to be afforded the highest of priorities.(31) While this case interpreted ESA section 7 rather than ESA section 9, the Court noted in dicta the trial court's finding that the adverse environmental impact caused by construction of the Tellico Dam would also result in a taking of the snail darter.(32) Additionally, the Court recognized that endangered species are "potential resources" that are capable of providing "answers to questions [humans] have not yet learned to ask."(33)

   This holding is significant for several reasons. First, this was a landmark case for environmentalists who succeeded in halting a multi-million dollar major federal action that was near completion, in order to protect a tiny fish. Second, the Supreme Court recognized that the modification of an endangered species' critical habitat can result in the extinction of an endangered species. Third, this case established the primary role of the ESA in protecting endangered species, as well as their critical habitat, from modification and destruction.

   After T.V.A., environmentalists mounted another attack in Palila v. Hawaii Department of Land & Natural Resources.(34) Mouflon sheep grazing on public lands and feeding on the shoots, seedling and bark of the mamane forest -- the critical habitat of the endangered Palila bird -- constituted an impermissible taking under ESA section 9.(35) The mamane pods, flowers, buds, leaves and berries are the food sources for the Palila bird, whose critical habitat was defined by the mamane forests.(36) The district court ruled that

   [c]ontinued grazing by mouflon will continue to suppress

   mamane growth and regeneration. This in turn will harm the

   Palila in one of two ways. Either the mouflon sheep will

   further degrade the mamane ecosystem, thus decreasing the

   remaining Palila habitat and further depressing the Palila

   population. Or, at best, the mouflon will merely slow or

   prevent the recovery of the mamane forest, suppressing the

   available food supply and nesting sites for Palila, and thus

   preventing the Palila population from expanding toward

   recovery.(37)

   The district court viewed this habitat destruction as an impermissible taking because the Hawaii Department of Land & Natural Resources would foreseeably harm the Palilas by allowing the sheep to continue to graze and to significantly impair the Palila's ability to feed.(38) While there was neither actual death nor injury, the court still found a violation of the take clause(39) and ordered the sheep removed from the public lands so that the Palila's food sources could grow and regenerate.(40)

   The Ninth Circuit affirmed the district court's holding and held that the regulation was consistent with the intent of Congress to afford endangered species the highest priority.(41) This case established an important and controversial precedent of protecting endangered species even where the habitat modifications that harm the wildlife are foreseeable, but the modifications neither cause actual nor proximate injury or death.

4. The Procedural History of Sweet Home Chapter of Communities For a Great Oregon v. Babbitt

   Although the Ninth Circuit's broad interpretation of the harm regulation in Palila exists, the District of Columbia Circuit established its own application.(42) In Sweet Home Chapter of Communities for a Great Oregon, a non-profit organization consisting of persons dependent on the forest products industry were seeking a declaratory judgment against the Secretary of Interior and the Director of the FWS because the application of the harm regulation to the red-cockaded woodpecker and the northern spotted owl prevented the loggers from developing all viable uses of their land that happened to be home to endangered species.(43) The loggers argued in Sweet Home I that the Secretary acted beyond his authority when he included habitat modification within the harm regulation.(44) The private property owners and loggers contended that a...