Barg Coffin Lewis & Trapp, LLP Articles

July 1995

U.S. Supreme Court Rules on Habitat Modification under ESA

R. Morgan Gilhuly

The U.S. Supreme Court has upheld a federal regulation prohibiting "habitat modification" that actually kills or injures an endangered species. In Babbitt v. Sweet Home, the Court held that the Interior Department reasonably construed Congress' intent in defining "harm" under the federal Endangered Species Act (ESA) to include such habitat modification.

From "Take" through "Harm" to "Habitat Modification"

Under the ESA it is unlawful for any person to "take" endangered or threatened species. The Act defines "take" to mean "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." A Department of Interior regulation in effect since 1975 defines "harm" to include "significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering." This regulation has been used to stop logging within the habitat of the northern spotted owl and the red-cockaded woodpecker.

The plaintiffs in Sweet Home--property owners, logging companies and families whose livelihoods depend on logging in the Southeast and Pacific Northwest--challenged the regulation on its face, arguing that the ESA prohibits only "direct" harm to endangered species.

Plaintiff's challenge to the regulation was rejected by the United States District Court for the District of Columbia and, initially, by the Court of Appeal for the District of Columbia Circuit. On reconsideration, however, the D.C. Circuit reversed itself, concluding that the word "harm" properly included only the direct application of force, an element that is missing from the concept of habitat modification. The Supreme Court granted review to resolve the conflict between the D.C. Circuit's decision and a Ninth Circuit decision upholding the department's definition of harm. See Palila v. Hawaii Dept. of Land and Natural Resources, 852 F.2d 1106 (1988).

Regulation Upheld as Consistent with Congressional Intent

The Supreme Court found that Congress intended broad protection for endangered species, and that the text of the ESA provided three reasons to conclude that the department's interpretation of "harm" was reasonable.

First, the Court noted that an "ordinary understanding" of the word "harm," when taken in the context of the ESA, naturally included habitat modification that resulted in injury or death to endangered species. The Court noted that unless "harm" included indirect as well as direct harm, the word would only duplicate the meaning of other words used to define "take," such as "harass" or "pursue."

Second, the Court emphasized the ESA's broad purpose, which includes providing "a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved." The committee reports which accompanied the ESA made clear that Congress intended a broad definition of "take." Indeed, the House Report explained that the definition "would allow, for example, the Secretary to regulate or prohibit the activities of birdwatchers where the effect of those activities might disturb the birds and make it difficult for them to hatch or raise their young."

Third, the Court relied on the 1982 amendments to the ESA, which authorized permits for otherwise prohibited takings where the taking is "incidental to, and not the purpose of, the carrying out of an otherwise lawful activity." Unless the incidental take permit requirement were interpreted to prohibit indirect takings, the Court reasoned, applicants would find themselves in the incongruous position of requesting an "incidental" take permit to avoid liability for direct and deliberate action against a protected species.

Significance of Decision May Be Limited in California

In California, Sweet Home may be of limited significance for two reasons. First, the Ninth Circuit had already upheld the Secretary's definition of "harm" in the Palila decision mentioned earlier.

Second, California has its own Endangered Species Act. Although the state ESA goes further than the federal act by protecting additional species, it is more narrowly drawn in that it does not prohibit actions that "harm" or "harass" an endangered species. Based upon this difference between the state and federal laws, the California Attorney General's office recently issued an opinion concluding that the state law does not prohibit habitat modification that results in indirect harm to an endangered species (see June 26 issue of the Monitor, p. 228). Presently, when activity is proposed that might adversely affect endangered species, the California Department of Fish and Game often requests set-asides of habitat or "potential habitat" to mitigate project impacts, notwithstanding the fact that the department's legal authority to request such mitigation is disputed.

Fight Will Continue in Judicial and Legislative Arenas

Because Sweet Home involved a "facial" challenge to the habitat modification regulation, the decision leaves the door open to challenges to the regulation's application in individual cases. For example, the Court noted that "strong arguments" could be made that activities that would cause "minimal or unforseeable harm" would not violate the statute.

Ultimately, Sweet Home may be a Pyrrhic victory for environmentalists. Proposed state and federal legislation would severely restrict governmental agencies' ability to prevent habitat modification on private property, where more than 90 percent of the 781 endangered or threatened species in the U.S. are located.

In California, AB 137 (Olberg, R-San Bernardino) would place the listing of endangered species in the hands of the Legislature, which could list a species only if a case-specific analysis showed that the benefits outweighed the costs. The state would also have to compensate landowners if its endangered species laws resulted in a 20 percent or greater diminishment in the market value of private property. This bill passed the Assembly 41-30 and has been forwarded to the Senate.

In Washington, legislation proposed by Sen. Slade Gorton (R-Washington) would eliminate most wildlife habitat protection restrictions on private land. Similar legislation has been proposed by Rep. Don Young (R-Alaska).

Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, No. 94- 859, 1995 U.S. LEXIS 4463, 1995 WL 382088 (S.Ct., June 29, 1995).

Kelley Taber also contributed to this article.

These materials are provided for information purposes only and are not intended as and cannot be considered legal advice. Before taking action based upon this information, you should consult your legal counsel.

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