7749

• UCREFRP Catalog Number: 7749
• Author: Kohm, K. A., ed.
• Title: Editor
• USFW Year: Series
• USFW - Doc Type: 1991
• Copyright Material: YES

18 The Act's History and Framework
ible" or "irretrievable" commitment of agency resources to a
project until the consultation is completed. For all formal con-
sultations, the FWS or the NMFS must provide a written biolog-
ical opinion detailing the finding upon which it based its
decision. And all consultations must be based on the best scien-
tific and commercial data available.
The Taking Prohibition
The 1973 law declares that it is unlawful to "take" an endan-
gered or threatened species within the United States, its terri-
torial waters, or on the high seas. The act defines the term "take"
in the broadest terms to include "harass, harm, pursue, hunt,
shoot, wound, kill,- trap, capture, or collect, or to attempt to
engage in any such conduct." In Palila v. Hawaii Department of
Land and Natural Resources, the scope of these taking prohibi-
tionswas first revealed.10 The Sierra Club charged that the state
of Hawaii had violated the taking prohibition by maintaining a
population of feral sheep and goats in the native forests that the
endangered palila (a Hawaiian finch) depended upon for nesting
sites. In their finding that the destruction of native forest consti-
tuted ataking under the 1973 act, the court reasserted the com-
prehensive nature of the congressional prohibition. The Fish
and Wildlife Service has subsequently revised its definition of
the word "harm" to read 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 sig-
nificantly impairing essential behavior patterns, including
breeding, feeding or sheltering."' 1 The practical effect of this
revision, however, has been minimal. The new definition essen-
tially clarified what the Palila court understood the Fish and
Wildlife Service's original implementing regulations to require.
In the years since the act was first passed, several exceptions
to the taking provision have been granted. Among these are
provisions for "experimental populations" and "incidental tak-
ings." In 1982, Congress authorized the listing of certain popula-
tions of endangered species to be listed as experimental and
provided for relaxed taking restrictions for these populations.