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Animal habitats in harm's way

by Starla K. Dill

I. INTRODUCTION

Timber harvest and ecosystem preservation are at the center of the dispute in Sweet Home Chapter of Communities for a Great Oregon v. Babbitt (Sweet Home III).(1) Environmentalists who seek protection and preservation of the northern spotted owl represent one side of the conflict, while logging community associations who seek economic security represent the other side.

The ancient forests of the Pacific Northwest contain giant conifers(2) that are both an economic resource and an invaluable ecological asset. These trees are a valuable resource for timber harvest, which supports part of the State of Oregon's economy.(3) By 1978, several analysts had anticipated a shortage in timber supplies from public lands in the Pacific Northwest.(4) The analysts attributed the projected shortage to the exhaustion of ancient forests.(5) At least one study also expected a decline in timber supply from private lands.(6) The listing of the northern spotted owl(7) in 1990 under the Endangered Species Act (ESA)(8) exacerbated the growing concerns about timber shortages because it was expected to restrict timber harvests.

The trees also maintain forest ecosystems that are rich in biodiversity.(9) Some scientists believe that the largest threat to spotted owl survival is the elimination of habitat.(10) Northern spotted owls generally occupy old-growth or mixed old-growth/mature forests(11) because older forests tend to have the structural attributes that owls need for nesting.(12) Owls prefer to forage for food in older forests and often avoid crossing clearcuts.(13) The owls instead fly through corridors of pristine forested land in order to reach areas that are suitable for foraging. 14) In response to the threat of habitat destruction, the scientific committee that developed the conservation strategy for the northern spotted owl called for preservation of large blocks of ancient forest habitat.(15)

Logging communities, however, have competing concerns about harvesting the remaining ancient forest areas. Private forest landowners, businesses, and logging communities are concerned about "jobs.... a viable tax base to support community services, and the equity of life that goes along with economic well-being."(16) In response to these concerns, many small logging communities banded together in associations to offer each other support during difficult economic times.(17) One such organization is the Sweet Home Chapter of Communities for a Great Oregon, which is one of the plaintiffs who challenged the Fish and Wildlife Service (FWS) regulation at issue in Sweet Home III.(18)

This Note explores the conflict between ecology and economy in the context of the current split among the circuits regarding the FWS regulation that defines "harm" under the ESA.(19) In the Palila cases,(20) the Ninth Circuit decided that habitat modification that indirectly injures or kills wildlife falls within the ESA's definition of "harm," and thus is a prohibited taking.(21) The Ninth Circuit therefore supported the definition of "harm" as defined in the FWS regulation. In Sweet Home III, however, the D.C. Circuit invalidated the regulation.(22) The U.S. Supreme Court recently granted certiorari(23) to hear Sweet Home III, so will soon resolve the split between the circuits.

The remainder of Section I explores the background to the legal controversy in Sweet Home III. It provides a brief overview of the ESA,(24) examines the Ninth Circuit's position in Palila with respect to the FWS definition of harm,(25) and outlines the procedural facts of the Sweet Home cases.(26) Section II then examines the D.C. Circuit's legal arguments in Sweet Home III and analyzes the majority's use, or rather lack of use, of Chevron U.S.A. v. Natural Resources Defense Council27 in resolving the case.(28) This Note concludes that the majority in Sweet Home III misapplied Chevron, and that the Supreme Court should uphold the FWS regulation as a reasonable interpretation of the ESA.(29)

A. Section 9 of the Endangered Species Act

When Congress passed the Endangered Species Act in 1973, its stated purpose was to "provide a means whereby the ecosystems upon which endangered species ... depend may be conserved, to provide a program for the conservation of such endangered species . . . and to take such steps as may be appropriate to achieve the purposes of the treaties and conventions set forth in [the Act]."(30) The ESA's statement of purpose remains unchanged to this day.(31) Congress recognized the need to conserve the ecosystems on which endangered animals depend and to take appropriate steps to conserve those animals.(32) As one expert believes, the ESA "elevates the goal of conservation of listed species above virtually all other considerations."(33)

Section 9 of the ESA prohibits the performance of certain acts involving an endangered or threatened species, such as importing, taking, selling, and possessing.(34) The prohibitions apply to both private individuals and government officials.(35) Taking a species includes such acts as "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct."(36) "Harm" is not defined by the ESA, but is defined by a FWS regulation as follows:

Harm in the definition of "take" in the Act means 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 sheltering.(37) The validity of this regulation is the source of the split between the circuits.(38)

The term "harm" can be interpreted either narrowly or expansively.(39) The majority in Sweet Home III, for example, adopts a narrow reading, requiring direct physical injury or action toward a listed animal.(40) Such an interpretation necessarily excludes the indirect action involved in habitat modification.(41) Alternatively, under a more expansive reading of harm, takings can include actions that produce a general injury to the species as a whole(42) or indirect actions that result in harm to a particular member of the protected species.(43) Habitat modification that results in injury or death to a listed species would naturally fall under either expansive definition.

The FWS supports an expansive definition.(44) The FWS regulation does not limit the definition of harm to direct physical injury, but rather includes the impairment of essential behavioral patterns that have "significant and permanent effects on a listed species."(45) Consistent with this interpretation of harm, the FWS issued guidelines indicating that tree harvesting on private or public lands that leaves less than forty percent coverage by suitable habitat around a spotted owl nest may be a taking under the ESA.(46)

B. The Ninth Circuit and the Palila Decisions

The FWS is not alone in interpreting the ESA to prohibit habitat modification as part of its general prohibition against harm. The Ninth Circuit reached the same conclusion in the series of Palila decisions.(47) The Palila, a finch-billed bird of the Hawaiian Honeycreeper family, is a listed endangered species that lives in a forest area designated as critical habitat.(48) The State of Hawaii managed feral goats and sheep within the Palila's habitat for sport-hunting purposes.(49) The feral goats and sheep consumed seedlings and plants, thus "prevent[ing] regeneration of the forest, and ... bring[ing] about the relentless decline of the Palila's habitat."(50) One of the issues that the district court decided was whether harm, defined at the time by FWS as "significant environmental modification or degradation which actually injures or kills wildlife,"(51) included the destruction of the Palila's habitat by the sheep and goats. The court, without much discussion or explanation, concluded that Hawaii was taking the Palila in violation of the ESA.(52)

In Palila II, the Ninth Circuit affirmed the district court's holding as consistent with Congress' express concern about the threat to endangered species through habitat destruction.(53) The court noted that the ESA requires affirmative preservation of an endangered species.(54) While the court did not cite to the FWS regulation, its reasoning was based on legislative history and supports the general idea of including habitat modification as harm.(55)

The Ninth Circuit reaffirmed its decision and directly supported the FWS regulation in Palila IV.(56) In Palila III, plaintiffs had asked the district court to remove a further threat from the Palila habitat, namely mouflon sheep.(57) The district court found that mouflon sheep, like the goats and sheep of Palila II, also ate plants and seedlings, thereby causing habitat degradation that could potentially trigger the extinction of the Palila.(58) Hawaii argued that mouflon sheep posed only a threat of potential harm to the Palila. It contended that the ESA only prohibited actual harm, meaning those acts "which result in the immediate destruction of the Palila's food sources."(59) The district court disagreed with the State and required that it remove the sheep.(60)

In Palila IV, the Ninth Circuit refused to distinguish its previous decision in Palila Il and upheld the district court's decision.(61) The court pointed out that the Department of the Interior (DOI) had not disturbed the district court's definition of harm from Palila I when it later amended the FWS regulation.(62) The court also pointed out that DOI indicated that the definition of harm did not require direct injury, but rather included "impairment of essential behavior patterns via habitat modification that can have significant and permanent effects on a listed species."(63) The court found DOI's definition of harm consistent with the stated purpose of the ESA and with its legislative history.(64) The Ninth Circuit, therefore, again supported the broader definition of harm used by the FWS.(65)

There is little dispute that the Palila decisions have had a powerful effect on the rights of landowners in the Ninth Circuit. In actuality, landowners outside of the Ninth Circuit have also been affected as their own jurisdictions have chosen to follow the reasoning of Palila.(66) The cases exemplify the conflict between landowners' control of their property and restrictions placed on that control by environmental regulations.(67) A private landowner in one of these circuits is potentially subject to civil or criminal penalties(68) for violating the ESA through habitat modification. This can cause great hardship for private landowners who wish to modify their land for income and financial security.(69)

C. The D.C. Circuit and the Sweet Home Ill Decision

Not every circuit, though, has followed the reasoning in the Palila decisions. In Sweet Home III,(70) the D.C. Circuit held that the FWS regulation on which the Ninth Circuit based Palila IV is beyond the scope of the authority given to the FWS by Congress through section 9 of the ESA.(71)

The path that led to Sweet Home III began in 1992 in federal district court.(72) The plaintiffs were the Sweet Home Chapter of Communities for a Great Oregon,(73) a similar organization from Mill City, Oregon, individual landowners, small logging companies, and similarly interested parties from the Southeastern United States.(74) Plaintiffs argued that the FWS regulation defining harm to include habitat modification placed unauthorized restrictions on harvestable private timber.(75) plaintiffs could not cut down their timber because nests of northern spotted owls were located on or near the areas that plaintiffs planned to harvest.(76) Most likely hoping to avoid Palila, plaintiffs challenged the regulation in the D.C. Circuit, rather than in the Ninth Circuit.(77)

In Sweet Home I, plaintiffs argued to the district court that the ESA's legislative history did not support the FWS regulation; they asserted that Congress did not intend habitat modification to constitute harm, and therefore the FWS regulation was beyond the statutory scope of authority.(78) Plaintiffs pointed to the fact that the original bill sent to the Senate Committee on Commerce included the destruction or modification of habitat in the definition of thing, but the final bill did not.(79) Planitiffs argued that this was direct evidence that Congress did not intend to include habitat modification as a prohibited taking.(80)

The district court disagreed with plaintiffs by stating that Congress wanted the definition of take to be read 'in the broadest possible manner to include every conceivable way in which a person can [take wildlife]."(81) The court further stated that an expansive interpretation of the term take, which would include habitat modification, was consistent with this broad congressional intent.(82) Furthermore, even if the language was ambiguous, the FWS regulation was a reasonable interpretation of the statute.(83) In Sweet Home II, the D.C. Circuit Court of Appeals affirmed Sweet Home I by a two to one vote, agreeing that the FWS regulation was a reasonable interpretation of the ESA.(84)

Nine months later, the D.C. Circuit changed its decision on rehearing.(85) In Sweet Home III, the court reversed itself and held that the FWS regulation was "neither clearly authorized by Congress nor a 'reasonable interpretation' of the statute."(86) The court was fully aware of the Ninth Circuit's reasoning in the Palita cases, but declined to follow the Ninth Circuit, thereby willingly creating a split between the circuits.(87) Chief Judge Mikva, who wrote the majority opinion in Sweet Home II, wrote a dissenting opinion in Sweet Home III.(88)

II. A CRITIQUE OF SWEET Home III

Chief Judge Mikva's criticisms of the majority's opinion center on the majority's use of the Chevron doctrine.(89) The Chevron doctrine controls whenever a court reviews an agency's interpretation of a statute that underlies the agency's regulation.(90) In deciding to affirm or reverse the D.C. Circuit, the Supreme Court will have to apply Chevron, modify it, or abandon it entirely. If the Court properly applies Chevron to the facts of Sweet Home III, it must reverse the D.C. Circuit.

A. The Chevron Analysis

Chevron U.S.A. v. Natural Resources Defense Council involved a challenge brought under the Clean Air Act (CAA).(91) The issue was whether the Environmental Protection Agency's (EPA) "bubble" concept(92) fit within the statutory term 'stationary source.(193) In deciding the validity of EPA's interpretation, the Supreme Court applied a two-prong test:

First, always, is the question whether Congress has directly spoken to the precise

question at issue. If the intent of Congress is clear.... the court, as well as

the agency, must give effect to the unambiguously expressed intent of Congress.

If, however.... the statute is silent or ambiguous with respect to the

specific issue, the question for the court is whether the agency's answer is

based on a permissible construction of the statute.(94) In Chevron, the Court found no specific language about the meaning of stationary source in the statutory construction or legislative history of the 1977 CAA Amendments.(95) The Court then applied the second prong and decided that the bubble concept was a "permissible construction" of the CAA, thereby upholding the EPA regulation.(96)

The two prongs of the Chevron doctrine call for entirely different degrees of review by a court. The first prong requires a court to look for clear congressional intent.97 If Congress directly spoke to the "precise question at issue," a court's only task is to ensure that the regulation is in accord with that intent.(98) Should Congress have failed to address the issue, however, the second prong of Chevron requires much greater deference to the agency.99 If the agency's regulation is a "permissible construction" of the statute, including any reasonable interpretation, a court must uphold the regulation.100 In general, courts equate this reasonableness standard with the arbitrary and capricious standard, which requires a great amount of deference to the agency.(101)

B. The Mistakes of Sweet Home III

The majority in Sweet Home III initially stated that it could reach its holding under either prong of Chevron.(102) However, in its subsequent decision in Sweet Home IV denying rehearing en banc, the majority explained its reasoning in greater detail.(103) The majority noted that courts are often unclear about which prong of the Chevron test they rely upon for a given decision.(104) The majority indicated, however, that it relied only on the first prong of Chevron: "[T]he statute, fairly read in the light of `traditional tools of statutory interpretation,' manifests a clear determination by Congress that the prohibitions of [section] 9 should not reach habitat modifications as defined by [FWS] . . . ."(105) Under Chevron, therefore, the majority found that Congress clearly meant 'take" to include only direct action against animals.106 Since the FVS regulation went beyond that intent, the majority held the regulation invalid.

In his dissent in Sweet Home III, Chief Judge Mikva argued that the majority should have reached the second prong of the Chevron test and deferred to the FVS interpretation of harm.(107) He pointed out that the majority found nothing that unambiguously demonstrated a congressional intent to exclude habitat modification from the ESA definition of harm.(108) Chief Judge Mikva criticized, "[d]espite the command of Chevron, the majority substitutes its own favorite reading of the Endangered Species Act for that of the agency."(109) In his opinion, the word "harm" was ambiguous under the statute such that Chevron demanded deference to the FWS's reasonable interpretation.(110)

Chief Judge Mikva has the better of these two arguments. The majority's premise is faulty because the ESA contains no clear indication of congressional intent to include or exclude habitat modification from its definition of taking. In fact, inclusion of habitat modification better serves the express congressional policy behind the ESA.(111)

Even though the majority based its opinion on a canon of statutory construction and the structure and legislative history of the ESA, the majority's opinion does not demonstrate that congressional intent was clear. The majority, therefore, should have followed the lead of Chief Judge Mikva in reaching the second level of Chevron and deferring to FWS's reasonable interpretation of the ESA.

1. A Canon of Statutory Construction

Basing its reasoning on a canon of statutory construction, noscitur a sociis, the majority concluded that Congress clearly rejected habitat modification from the ESA's statutory definition of harm.(112) A court can use noscitur a sociis to discern the meaning of an ambiguous term among a list of unambiguous ones.(113) The majority declared that "[t]he potential breadth of the word `harm' is indisputable."(114) It then decided that the other words in the definition of take (harass, pursue, hunt, shoot, wound, kill, trap, capture, and collect)(115) all require some form of direct force against an animal.(116) The majority did acknowledge that not all of the words were necessarily restricted to direct force; "pursue" may not result in capture or injury to the animal, "trap" may not involve physical presence of the trapper, and 'harass' can involve shining lights or making noise in the presence of an endangered species. The majority avoided these problems, however, by finding some amount of direct human action in those terms.(117)

Chief Judge Mikva disagreed with the majority's interpretation by pointing out that the word "harass" is just as broad as the term "harm."118 He explained, "`[h]arm' is not a single elastic word among many ironclad ones but an ambiguous term surrounded by other ambiguous terms."(119) Chief Judge Mikva argued, therefore, that the majority's use of noscitur a sociis did not provide unambiguous insight into clear congressional intent as required under Chevron.(120)

Chief Judge Mikva's argument is correct. Furthermore, noscitur a sociis does not necessarily command the conclusion the majority reached. This becomes apparent by applying another canon of statutory interpretation such as plain meaning. The plain meaning of the words included in the ESA's definition of take indicate that the terms are focused on different things. Some prohibit certain kinds of human action from being directed at a particular animal. Hunt, trap, capture, collect, shoot, harass, and harm all focus on what the human is doing. Other terms, however, focus more on the consequences to the animal. An animal can be wounded, harmed, or killed by both direct and indirect action. Harm need not necessarily fall within the former group; it could just as easily fall within the latter. Therefore, the majority's use of noscitur a sociis does not indicate clear congressional intent.(121) If anything, the mere fact the court felt the need to resort to any canon of construction at all indicates that Congress did not speak directly to the issue.

2. The Structure and Legislative History of the ESA

The majority further concluded that neither the structure nor the legislative history of the ESA supported the inclusion of habitat modification as a prohibited harm.(122) The majority based its opinion on three particular pieces of evidence: the existence of the federal land acquisition program, the provisions for incidental takings permits in the ESA's 1982 amendments, and the deletion of the words "habitat modification" from the original version of the ESA.(123) The majority's evidence of clear congressional intent, however, is lacking in this area as well.

The federal land acquisition program authorizes the Secretary of the Interior to "acquire by purchase, donation, or otherwise, lands, waters, or interest therein" for the purpose of protecting endangered or threatened species.(124) The majority in Sweet Home III reasoned that the existence of this program indicated that Congress intended the federal government to shoulder the primary responsibility of habitat preservation.(125) The majority cited congressional floor statements as support for that conclusion.(126)

The majority, however, never explained how the isolated floor statements supported the conclusion that habitat preservation is the primary responsibility of the federal government.(127) While Congress may have intended the federal program to be the exclusive means of habitat preservation, none of the statements quoted by the majority explicitly assert this conclusion.(128) In fact, based on those same statements, one can easily conclude that Congress intended to establish a federal program because private habitat protection under the ESA may not be sufficient in many instances to protect listed species. The existence of the federal program for habitat preservation does not clearly preclude the existence of a private one.

Just as the majority inferred that one program in the ESA, the federal land acquisition program, necessarily excludes habitat modification, the majority could have used similar logic with respect to another ESA program, namely the incidental take permit process. The result would have been that the incidental take permit permit process necessarily includes habitat modification. However, the majority did not apply the same logic to the permit process as it applied to the federal land acquisition program.129 The permit process, which Congress added to the ESA as part of the 1982 amendments, allows the Secretary of the Interior to excuse "any taking otherwise prohibited by [section 9] of this title if such taking is incidental to and not the purpose of the carrying out of an otherwise lawful activity."(130) The FWS argued that this provision for incidental takings was evidence that some takings, such as habitat modification, may indeed be incidental to a normally lawful activity.(131) The court disagreed by explaining that the statute did not clearly indicate that habitat modification was one of the incidental takings excused by permit.(132)

The majority was more than willing to infer exclusion of habitat modification from the definition of harm based on the mere presence of the federal land acquisition program. However, when a similar argument was used with respect to the incidental take permits, the majority faltered. Chief Judge Mikva explained, "By negative inference, [section 1539(a)(1) (B)] demonstrates that Congress thought at least some 'incidental takings" must be prohibited by [section 91 in the first instance [which] suggests that Congress meant habitat modification."(133) The majority refused to draw such a conclusion from the structure of the incidental take permit provision even though it had no difficulty doing so with the federal land acquisition program in support of its own arguments. The majority's inconsistent treatment of the two sections suggests arbitrary analysis. At the very least, it is further proof that Congress has not clearly spoken on the issue, and that the court should have deferred to the reasonable interpretation of the FWS.

The majority's final piece of evidence was that habitat modification was included in the definition of taking in the primary draft of the ESA sent to the Senate Commerce Committee,(134) but was absent from the final version of the bill.(135) The court explained that "Congress's deliberate deletion of habitat modification from the definition of `take' strengthens our conclusion."(136)

The majority again infers a certain conclusion from ambiguous evidence. Congress did not explain why it struck habitat modification from the definition of "take."(137) The omission does not necessarily mean that Congress intended to exclude habitat modification from the definition of taking. The omission could just as easily mean that Congress believed that habitat modification was already included in the other terms, thus making it unnecessary to include habitat modification directly. Once again, the majority's proof does not demonstrate clear congressional intent. In those circumstances, Chevron commands that the court defer to any reasonable interpretation set forth by FWS.(138)

C. The Proper Chevron Result

The majority in Sweet Home III reached the wrong conclusion with the wrong reasoning. The conclusion leads to an illogical result. The majority suggests that animals that die as a result of habitat destruction are not harmed; a taking does not occur when a species' habitat is destroyed, even though a member of that species actually dies as a result.(139) The majority reached this faulty conclusion because it failed to properly follow the mandate of Chevron and defer to the FWS's reasonable interpretation of the ESA.

The majority, however, never reasoned this far in its opinion in Sweet Home III because it stopped its analysis at the first prong of Chevron."(140) As a result, it substituted its own interpretation of the ESA, disguised as upholding Congress' clear intent, for the FWS's interpretation.(141) The majority filled the gaps left by Congress in the statute, which is a task for the agency and not the court.(142) The majority in Sweet Home III should have recognized the existing gaps in the ESA and proceeded to the second prong of Chevron to decide whether the FVS interpretation of the ESA was reasonable.

Had the majority reached the second step, it should have deferred to the FWS regulation unless it found it unreasonable. The majority did state at the beginning of its Sweet Home III opinion that it found the regulation unreasonable,(143) but Chevron clearly requires "considerable weight ... accorded to an executive department's construction of a statutory scheme it is entrusted to administer."(144) The majority would therefore need give more weight to the agency interpretation, or at least would need to address why the interpretation was unreasonable.

The majority would have to stretch its reasoning even further than it did to acheive this result. The majority based its analysis of legislative history on the floor statements of one senator and one representative,(145) an analysis which ignored the general legislative history that reveals congressional intent to protect listed species at a stage before extinction becomes imminent. Habitat preservation is naturally such a stage because of its key role in species conservation.(146)

When the Senate Commerce Committee reported on its recommendations that the ESA be passed into law,(147) the committee stated that the purpose of the ESA was "to provide for conservation, protection, restoration, and propagation of [endangered] species."(148) The committee noted that endangered species were important in order to preserve the balance of nature in the environment.149 It further found that the two most prevalent causes of animal extinction are hunting and natural habitat destruction.(150)

Prior to the ESA's passage, President Nixon said that the existing laws were not adequate to 'act early enough to save a vanishing species."(151) The Senate Commerce Committee acknowledged the President's statement in its report.(152) The Committee, like the President, obviously hoped that the ESA would provide action early enough to save species. The committee expressed the importance that 'take" be interpreted in 'the broadest possible manner to include every conceivable way in which a person can 'take' or attempt to 'take' any fish or wildlife."(153) The committee thus supported the protection of species by a wide array of necessary methods in order to promote conservation over extinction. The FWS regulation carries out this congressional intent to protect species from a broad range of detrimental human behavior and therefore is a reasonable interpretation of the ESA.

III. CONCLUSION

The D.C. Circuit wrongly decided Sweet Home III. The majority relied on techniques of statutory analysis and speculative declarations about the structure and history of the ESA to avoid its duty as required by Chevron. By granting certiorari in this case, the Supreme Court has taken an invitation to revisit Chevron. It should remain true to the Chevron doctrine and uphold the FWS regulation as a permissible construction of an ambiguous statute.

Congress, of course, can settle this controversy as well. Even if the Supreme Court validates the FWS regulation, Congress should still take steps to clarify the meaning of take and to resolve this dispute once and for all. Congress should make the definition of take absolutely clear by explicitly including habitat modification.(154) This language would prohibit a threat of future extinction through habitat modification and would allow the ESA to provide greater protection to endangered species and the ecosystems on which they depend. Congress, though, may not be immediately willing to strengthen the ESA. Nevertheless, Congress should include habitat modification in the definition of take in order to halt the current loss of diversity so that future generations may recognize the long term gains from protecting the natural environment.(155)

Absent such congressional action, however, the final Supreme Court decision will have far-reaching implications for landowners, environmentalists, and species throughout the United States. Whether the decision supports timber workers or spotted owls, the result will determine whether ecosystem preservation or private property rights control the interpretation of the ESA. Landowners and lumber workers, environmentalists and endangered species alike, all have a big stake in that decision. (1) 17 F.3d 1463 (D.C. Cir. 1994), cert. granted, 115 S. Ct. 714 (1995). (2) For example, Douglas firs can reach sixteen feet in diameter; the tallest Douglas fir, according to historic records, reached a height of 385 feet. Elliott A. Norse, Ancient Forests of the Pacific Nortwest 22 (1990). (3) In some areas of the Pacific Northwest, harvesting and processing timber have historically accounted for one-fourth of manufacturing employment. In almost half of Oregon's counties, "forest products have accounted for over half the manufacturing employment." Ray Raphael, More Tree Talk. The People, Politics, and Economics of Timber 247 (1994). (4) Comptroller General, Pub. No. EMD-79-5, Projected Timber Scarcities in the Pacific Northwest: A Critique of 11 Studies, at 1 (1978). (5) Id. at 8. (6) Id. at 3 (summarizing a 1969 study by the U.S. Forest Service and U.S. Department of Agriculture). (7) List of Endangered and Threatened Wildlife, 50 C.F.R. [sections] 17.11(h) (1993) (listing the northern spotted owl as a threatened species). (8) Endangered Species Act of 1973, 16 U.S.C. [subsections] 1531-15 (1988 & Supp. V 1993). (9) See Norse, supra note 2, at 8, 66-69 (discussing the concept of biodiversity in the forests). (10) E.g., Eric D. Forsman et al, Distribution and Biology of the Spotted Owl in Oregon 82 (1987). (11) Id. at 22. "Old-growth" forests have conifers more than 200 years old, while "mature" forests have conifers that are 100-200 years old. Id. (12) Interagency Scientific Committee et al;, A Conservation Strategy for the Northern Spotted Owl 62 (1990). (13) Forsman, supra note 10, at 34-35. (14) Id. at 35. (15) Interagency Scientific Committee et al., supra note 12, at 24, 23-24, 191 (setting out a conservation strategy based on large blocks of habitat termed Habitat Conservation Areas and concluding that "removal of old-growth forests generally results in a decrease in the abundance of spotted owls"). (16) Comptroller General, Supra note 4, at 31 (quoting Oregon State University, Impacts of National Forest Timber Harvest Scheduling Policies on Softwood Stumpage, Lumber, and Plywood Markets: An Econometric Analysis (1976), one of the eleven studies reviewed in the report). (17) Brief for the Sweet Home Chapter of Communities for a Great Oregon at 3-4, Sweet Home Chapter of Communities for a Great Oregon v. Lujan, 806 F. Supp. 279 (D.D.C. 1992) (No. 91-1468) [hereinafter Sweet Home Brief]. (18) Id. at 34. (19) 50 C.F.R. [sections] 17.3 (1993); see infra text accompanying note 37. (20) Palila v. Hawaii Dep't of Land & Natural Resources (Palila II), 639 F.2d 495 (9th Cir. 1981); Palila v. Hawaii Dep't of Land & Natural Resources (Palila IV), 852 F.2d 1106 (9th Cir. 1988). (21) Palila II, 639 F.2d at 498. (22) Sweet Home III, 17 F.2d 1463, 1472 (D.C. Cir. 1994), cert. granted, 115 S. Ct. 714 (1995). (23) 115 S. Ct. 714 (1995). (24) See infra part I.A. (25) See infra part I.B. (26) See infra part I.C. (27) 467 U.S. 837 (1984). (28) See infra part II. (29) See infra part III. (30) 16 U.S.C. [sections] 1531(b) (original version at 87 Stat. 885 (1973)). (31) Congress has not modified the ESA's purpose by amendment. See 16 U.S.C. [sections] 1531(b). (32) Congress' stated purpose can be extremely important in discerning the meaning of ambiguous terms in a statute. Judge Learned Hand once wrote, "[S]tatutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning." Cabell v. Markham, 148 F.2d 737, 739 (2d Cir.), aff'd, 326 U.S. 404 (1945). The ESA's statutory purpose thus sets the stage for all of its provisions and should be kept in mind while examining congressional intent irk the other sections of this note. (33) Daniel J. Rohlf, The Endabgered Species Act: A Guide to its Protections and Implementation 25 (1989). Interestingly, despite this congressional resolve, many experts argue that the ESA is still not strong enough to protect species before sustainable populations vanish. See, e.g., John C. Kunich, The Fallacy of Deathbed Conservation Under the Endangered Species Act, 24 Envtl. 501, 551 (1994) (arguing that "[b]y waiting until a species is on its deathbed, the ESA delays intervention until the point at which, biologically, it is likely too late to save the species"). (34) 16 U.S.C. [sections] 1538(a)(1). Exceptions to these prohibitions are found at 16 U.S.C. [subsections] 1535(g)(2), 1539 (allowing certain takings when the listed species is within a state that is a party to a cooperative conservation agreement with the Secretary of the Interior or when the Secretary issues a special permit). (35) 16 U.S.C. [sections] 1538(a)(1); 16 U.S.C. [sections] 1532(13) (defining "person" as "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"). (36) 16 U.S.C. [sections] 1532(19). (37) 50 C.F.R. [sections] 17.3 (1993). (38) See, e.g., George Guinta, Jr., Comment, Critical Habitat Designations: A Legal Tool for Endangered Species Act Section 9 Investigations, 2 U. Balt. J. Envtl. L. 183, 183-84 (1992) (explaining possible interpretations of the words "harm" and "harass"). (39) Id. (40) Sweet Home III, 17 F.3d at 1465 (D.C. Cir. 1994), cert. granted, 115 S. Ct. 714 (1995). (41) A narrow construction restricts harm to those actions that result in the direct injury or death of the animal. See Guinta, supra note 38, at 184. (42) Palila II, 639 F.2d 495, 498 (9th Cir. 1981). (43) See Guinta, supra note 38, at 184 (quoting Michael E. Field, The Evolution of the Wildlife Taking Concept from its Beginning to its Culmination in the Endangered Species Act, 21 Hous. L. Rev. 457, 502 (1984)); see also Paul D. Ort, Comment, What Does it Take to Take and What Does it Take to Jeopardize? A Comparative Analysis of the Standards Embodied in Sections 7 and 9 of the Endangered Species Act, 7 Tul, Envtl. L.J. 197, 207-08 (1993) (discussing the purpose of the ESA as consistent with an expansive view of taking). (44) 50 C.F.R. [sections] 17.3. (45) Palila IV, 852 F.2d 1106, 1108 (9th Cir. 1988) (citing Endangered and Threatened Wildlife and Plants; Final Redefinition of "Harm," 46 Fed. Reg. 54,748, 54,750 (Nov. 4, 1981)). (46) United States Fish and Wildlife Service, Region One, Procedures Leading to Endangered Species Act Compliance for the Northern Spotted Owl, at 10-11 (July 1990).

The FWS no longer follows the policies stated in that document. Telephone Interview with FWS biologist (name withheld) (Mar. 30, 1995). The current policy can be found in the Record of Decision implementing President Clinton's Northwest Forest Plan. See generally Record of Decision for Amendments to Forest Service and Bureau of Land Management Planning Documents Within the Range of the Northern Spotted Owl (Apr. 13. 1994). (47) Palila v. Hawaii Dep't of Land & Natural Resources (Palila I), 471 F. Supp. 985 (D. Haw. 1979), aff'd, 639 F.2d 495 (9th Cir. 1981) (Palila II); Palila v. Hawaii Dep't of Land Natural Resources (Palila III), 649 F. Supp. 1070 (D. Haw. 1986), aff'd, 852 F.2d 1106 (9th Cir. 1988) (Palila IV). (48) Palila I, 471 P. Supp. at 988-89; see also 16 U.S.C. [sections] 1536 (designation of critical habitat); Guinta, supra note 38, at 183-84. (49) Palila I, 471 F. Supp. at 989. (50) Id. at 990. (51) Id. at 995 (quoting 50 C.F.R. [sections] 17.3 as it was written in 1979). (52) "[T]he acts and omissions of defendants [are] clearly within [FWS] definitions." Id. at 995. (53) Id. at 998 (citing Tennessee Valley Authority v. Hill, 437 U.S. 153, 179 (1978)). (54) Id. at 497. (55) Id. at 496-97. (56) 852 F.2d 1106 (9th Cir. 1988). (57) Palila III, 649 F. Supp. at 1071. (58) Id. at 1072. (59) Id. at 1071. (60) Id. at 1073. (61) Palila IV, 852 F.2d 1106, 1108 (9th Cir. 1988). (62) Id. (Secretary revised the regulation defining harm to specifically include habitat modification, thus not contradicting the district court's interpretation in Palila I). (63) Id. (citing Endangered and Threatened Wildlife and Plants; Final Redefinition of "Harm," 46 Fed. Reg. 54,748, 54,750 (Nov. 4, 1981)). (64) Id. (65) The Ninth Circuit recently continued its tacit approval of the FWS's interpretation of harm under the ESA in National Wildlife Fed'n v. Burlington N. R.R., 23 F.3d 1508 (9th Cir. 1994). Although the Ninth Circuit heard Burlington before the D.C. Circuit heard Sweet Home III, it decided the case after Sweet Home III and did not cite that case in its opinion. Id. at 1508. Burlington involved an alleged taking of grizzly bears. The plaintiffs argued that corn spills from Burlington-Northern trains modified grizzly bear habitat through a change in feeding behavior because the bears ate corn that spilled on the tracks and were consequently struck by trains and killed. Id. at 1509. In deciding whether Burlington-Northern was taking the bears in violation of the ESA, the court followed its own decision in the Palila cases and the FWS regulation defining harm. Id. at 1512. The court determined that the plaintiffs did not demonstrate a significant enough impairment of the grizzly bears' feeding habits to qualify as a habitat modification. Id. at 1513. This finding may have allowed the Ninth Circuit room to avoid addressing the Sweet Home III decision. However, the basis for the finding, which was grounded in the FWS definition of taking, is still at odds with the D.C. Circuit.

A recent opinion by a district court in the Ninth Circuit has directly addressed Sweet Home Ill. Marbled Murrelet v. Pacific Lumber Co., No. C-93-1400-LCB (N.D. Cal. Feb. 27, 1995) (memorandum order including findings of fact and conclusions of law). The district court refused to follow Sweet Home III, citing Palila II as the "controlling law in the Ninth Circuit." Id. at 2 n.2.; see also Forest Conservation Council v. Rosboro Lumber Co., No. 94-35070, 1995 WL 124609 (9th Cir. Mar. 24, 1995) (following Palila and applying the FWS definition of harm); Seattle Audubon Society v. Lyons, 871 F. Supp. 1291, 1313 (W.D. Wash. 1994) (following Palila TV instead of Sweet Home 111); Steven P. Quarles et al., The Unsettled Law of ESA Takings, 8 Nat. Resources & Env't 10, 12 (1993). (66) Sierra Club v. Lyng, 694 F. Supp. 1260, 1270-71 (E.D. Tex. 1988), aff'd sub nom. Sierra Club v. Yeutter, 926 F.2d 429 (5th Cir. 1991); Defenders of Wildlife v. EPA, 882 F.2d 1294, 1301 (8th Cir. 1989).

In Sierra Club v. Lyng, the Forest Service wanted to eradicate the southern pine beetle from the forests by cutting down trees. 649 F. Supp, at 1264. However, the red-cockaded woodpecker, a listed endangered species, relied on the trees for habitat. Id. The district court ruled that the ESA prohibited such an action by the Service, citing Palila IV for the proposition that "`[h]arm' does not necessarily require the proof of the death of specific or individual members of the species." Id. at 1270. The court concluded that the Forest Service harmed the woodpeckers with its method of eradicating the pine beetle by modifying the woodpeckers' habitat. Id. at 1264. The Fifth Circuit affirmed the district court's decision, relying principally on the FWS regulation. Sierra Club v. Yeutter, 926 F.2d 429, 437-39 (5th Cir. 1991).

In Defenders of Wildlife, the Eighth Circuit relied on Palila IV to declare a government action as a taking in violation of section 9 of the ESA. 882 F.2d at 1295. Plaintiffs argued that the EPA's approval pursuant to the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. [subsections] 136a(a), 136j(a)(1)(a) (1988), of the use of strychnine to control prairie dog populations would harm the black-footed ferrets which relied on the prairie dogs as a food source. Id. at 1297. The Eighth Circuit cited Palila IV and the FWS regulation in concluding this was a taking in violation of the ESA; it involved the significant impairment of feeding behavior. Id. at 1300 ("The prohibited impact can arise from acts that `significantly impair .. feeding."'). (67) See Raphael, supra note 3, at 229 ("[T]he conflict of owner control versus environmental restrictions ... is a strong undercurrent in timber politics."). (68) 16 U.S.C. [sections] 1540(a) (providing civil penalties for unauthorized takings); 16 U.S.C. [sections] 1540(b) (providing civil penalties for unauthorized takings). (69) Sweet Home Brief, supra note 17, at 5 (providing an example of a plaintiff who claims economic hardship because of being restricted from harvesting her trees). (70) 17 F.3d 1463 (D.C. Cir. 1994), cert. granted, 115 S. Ct. 714 (1995). (71) Id. at 1464. (72) Sweet Home Chapter of Communities for a Great Oregon v. Lujan (Sweet Home I), 806 F. Supp. 279, 282 (D.D.C. 1992), aff'd, Sweet Home Chapter of Communities for a Great Oregon v. Babbitt (Sweet Home II), 1 F.3d 1 (D.C. Cir. 1994), rev'd on reh'g, Sweet Home III, 17 F.3d 1463 (D.C. Cir. 1994), reh'g en banc denied, Sweet Home IV, 30 F.3d 190 (D.C. Cir 1994), cert. granted, 115 S. Ct. 714 (1995). (73) Sweet Home Chapter is a non-profit organization comprised of individuals and families who directly or indirectly depend on timber supply in the Pacific Northwest. Sweet Home Brief, supra note 17, at 4. (74) Sweet Home Brief, supra note 17, at 7-10. (75) Sweet Home 1, 806 F. Supp. at 282. (76) Sweet Home Brief, supra note 17, at 5. For example, the Forest Service denied an application for tree harvesting because of a spotted owl nest one-half mile from the property where one plaintiff planned to harvest her trees. Id. at 5. (77) Sweet Home I, 806 F. Supp. at 282; see also Quarles et al., supra note 65, at 11; 16 U.S.C. [sections] 1540(c) ("The several district courts of the United States ... shall have jurisdiction over any actions arising under this chapter."). Even though the plaintiffs resided in the Ninth Circuit and the Fifth Circuit, venue was appropriate in the jurisdiction where the defendant

resides. 28 U.S.C. [section] 1391(b) (1988). The Secretary of the Interior officially resides irk Washington D.C. Sweet Home Brief, supra note 17, at 3. (78) 806 F. Supp. at 283. (79) Id. (80) Id. (81) Id. (quoting S. REP. No. 307, 93d Cong., 1st Sess. 7 (1973), reprinted in 1973 U.S.C.C.A.N. 2989, 2995). (82) Id. (83) Sweet Home I, 806 F. Supp. at 284-85. The court refers to the first and second prongs of the Chevron test. See infra text accompanying note 94. (84) Sweet Home II, I F.3d. 1, 4 (D.C. Cir. 1993). (85) Judge Williams, who had agreed with Chief Judge Mikva in Sweet Home II, changed his mind and wrote the opinion in Sweet Home III. Sweet Home III, 17 F.3d 1463, 1465 (D.C. Cir. 1994). (86) Id. at 1464 (citing Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, 84243, 844 (1984)). (87) Id. at 1472. ("[Congress)] creation of the permit scheme is fully consistent with the meaning of `take' as enacted in 1973; the other developments show no more than awareness of the [FWS] view, its survival in Palila, and the absence of any action to endorse or repudiate those developments."). (88) Id. at 1473 (Mikva, C.J., dissenting) ("What was rightly considered good law in [Sweet Home II is now `altered' on the basis of a confusing and misguided legal analysis that creates a needless conflict among the circuits. I dissent."). (89) Id. at 1474. (90) Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, 842-43 (1984). (91) Clean Air Act, 42 U.S.C. [subsections] 7401-7671q (1988 & Supp. V 1993). (92) The bubble concept relates to the grouping of certain industrial pollution devices so that a state could "treat all of the pollution-emitting devices within the same industrial grouping as though they were encased within a `single bubble,'" thus easing regulation on industrial plants. Chevron, 467 [J.S. at 837. (93) Id. (94) Id. at 84243. (95) Id. at 851. (96) Id. at 865. The Court found that the statutory language and the legislative history both supported a holding that the EPA's interpretation was permissible under the statute. Id. at 859-64. The D.C. Circuit, however, argued in Sweet Home TV that the Chevron Court was not clear about which prong it relied on for the holding. 30 F.3d 190, 193 (D.C. Cir. 1994). (97) Chevron, 467 U.S. at 842-43. For example, the Chevron Court commented, "[t]he 1977 Amendments contain no specific reference to the `bubble concept.'" Nor do they contain a specific definition of the term "stationary source." Id. at 852. (emphasis added). The Court further commented, "[t]he legislative history of the portion of the 1977 Amendments dealing with non-attainment areas does not contain any specific comment on the `bubble concept.'" Id. (emphasis added). (98) Id. at 842. (99) Id. at 843. (100) Id. (101) See Kevin W. Saunders, Interpretive Rules with Legislative Effect: An Analysis and a Proposal for Public Participation, 1986 Duke L.J. 346, 365 (1986). (102) Sweet Home III, 17 F.3d 1463, 1464 (D.C. Cir 1994) ("We find that the Service's definition of harm' was neither clearly authorized by Congress nor a `reasonable interpretation' of the statute." (citing Chevron, 467 U.S. at 842-43, 844)). (103) 30 F.3d 190, 193 (D.C. Cir. 1994). (104) Id. (105) Id. (emphasis added). (106) Id. (107) Sweet Home III, 17 F.3d at 1473 (Mikva, C.J., dissenting). (108) Id. at 1476. (109) Id. at 1474. (110) Id. at 1477. (111) See supra notes 30-32 and accompanying text. (112) Sweet Home III, 17 F.3d at 1465. (113) Id. Noscitur a sociis means that "a word is known by the company it keeps ... [and] is often wisely applied where a word is capable of many meanings." Id. (quoting Jarecki v. G.D. Searle & Co., 367 U.S. 303, 307 (1961)). (114) Id. at 1464. (115) 16 U.S.C. [section] 1532(19). (116) Sweet Home III, 17 F.3d at 1465 ("The forbidden acts fit, in ordinary language, the basic model "A hit B."). (117) Id. The majority stated that pursuit "almost always" is a "step toward deliberate capture or destruction"; that trapping requires the trapper to 'have previously arranged for release of the energy that directly captures the animal'; and that harassing an animal with light and sound involves directing "waves and particles" which by themselves are physical forces. Id. (118) Id. at 1475 (Mikva, C.J. dissenting). (119) Id. (120) Id. (121) The ESA's legislative history supports this argument. The House included birdwatching in its definition of "harass." Sweet Home III, 17 F.3d at 1474 (Mikva, C.J., dissenting) citing H.R. Rep. No. 93-412, 93d Cong., 1st Sess. 11 (1973)). Birdwatching involves even less direct action than shining a light because there are no light waves or particles produced by merely watching a bird. (122) Id. at 1466-67. (123) Id. at 1466. (124) 16 U.S.C. [section] 1534(a)(2). (125) Sweet Home III, 17 F.3d at 1466. (126) Id. For example, Senator Tunney said, "[t]hrough these land acquisition provisions, we will be able to conserve habitats necessary to protect fish and wildlife from further destruction." 119 Cong. Rec. 25,669 (July 24, 1973) (statement of Sen. Tunney). (127) Sweet Home III, 17 F.3d at 1466. (128) See id. (129) Id. at 1467. The different treatment might reflect that Congress' intent in passing the 1982 Amendments potentially differed from the original intent behind the 1973 Act. When it decides Sweet Home, the Supreme Court may take the opportunity to comment on the relationship between the 1982 Amendments and the original act. (130) 16 U.S.C. [section] 1539(a)(1)(b). (131) Sweet Home III, 17 F.3d at 1467. (132) Id. (133) Id. at 1477 (Mikva, C.J., dissenting). As support, Chief Judge Mikva cites H.R. Rep. No. 835, 97th Cong., 2d Sess. 30-31 (1982), reprinted in 1982 U.S.C.C.A.N. 2871-72 (stating that Congress modeled the land acquisition program after a California plan for habitat conservation and that the program would "permit cooperation between the public and private sectors in the interest of endangered species and habitat conservation"). Id. (134) S. 1983, 93d Cong., 1st Sess. [section] 3(6) prior to amendment (1973), reprinted in A Legislative History of the Endangered Species Act of 1973, As Amended in 1976, 1977, 1978, 1979, AND 1980, at 225, 228 (1982) (defining "take" to include "the destruction, modification, or curtailment of [a species'] habitat or range"). (135) Sweet Home III, 17 F.3d at 1467. (136) Id. (137) See generally S. 1983, 93d Cong., 1st Sess. [section] 3(6) prior to amendment, [section] 3(12) following amendment (1973), reprinted in A Legislative History of the Endangeted Species Act of 1973, As Amended IN 1976, 1977, 1978, 1979, AND 1980, supra note 134, at 228, 255. (138) See supra note 94 and accompanying text. (139) Even if there, is a dead animal to show to the court, it is open to debate whether the D.C. Circuit would say that the habitat modification "harmed" the animal. Professors William Funk and Daniel Rohlf, Presentation at the Student Animal Legal Defense Fund Marine Wildlife Symposium, Panel on die Endangered Species Act (Sept. 25, 1994). (140) Sweet Home III, 17 F.3d at 1464. (141) Id. at 1474. (142) Chevron U.S.A. v. National Resources Defense Council, 467 U.S. 837, 843 (1984) ("The power of an administrative agency to administer a congressionally created ... program necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, by Congress." (quoting Morton v. Ruiz, 415 U.S. 199, 231 (1974))); id. at 844 (suggesting that courts should not fill gaps when an agency has already done so). (143) Sweet Home III, 17 F.3d at 1464. The majority's analysis of the regulation, however, does not suggest that it ever truly reasoned its decision under Chevron's second step. (144) Chevron, 467 U.S. at 844. (145) Sweet Home III, 17 F.3d at 1466-68 (citing statements made by Senator Tunney and Representative Sullivan). (146) See Kunich, supra note 33, at 511 (stating that species survival is linked to habitat and habitat alteration or limitation). (147) S. Rep. No. 307, 93d Cong., 1st Sess. 7 (1973), reprinted in 1973 U.S.C.C.A.N. 2989, 2989. (148) Id. (149) Id. at 2990. (150) Id. (151) Id. at 2991 (quoting the President's Environmental Message of February 8, 1972). (152) Id. (153) Id. at 2995. (154) Congress could incorporate part of the definition of take from S. 1983, which reads, "the destruction, modification, or curtailment of [a species'] habitat or range." S. 1983, 93d Cong., 1st Sess. [section] 3(b) prior to amendment (1973), reprinted in A Legislative History of the Endangered Species Act of 1973, As Amended in 1976, 1977, 1978, 1979, AND 1980, supra note 134, at 228. (155) See generally Paul R. Ehrlich, The Loss of Diversity: Causes and Consequences, in Biodiversity 21 (1986) (explaining the loss of natural resources and diversity and its potential effects on humans in the Starla K. Dill Student, Northwestern School of Law of Lewis & Clark College, J.D. expected 1996; B.A. English, Arizona State University. I wish to thank Professor Ed Brunet for an earlier review of this note, and Lora Keenan and Nicole Cordan for their energy, advice, and support.

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