|
SO REFLECTIONS ON THE ACT
<br />threatened or endangered. The word "taking" comes from a
<br />legal tradition where one "takes possession" of property and
<br />where, in a parallel use, wildlife is free and belongs to no one
<br />until a (licensed) hunter "takes" or captures it whereupon the
<br />animal becomes his possession. In the original act, taking re-
<br />strictions applied only to animals, but the prohibition has been
<br />increasingly applied to plants (McMahan, 1980, pp. 562, 564).
<br />Mixed with ownership, the word becomes a euphemism for tak-
<br />ing life-for killing (or at least capturing or uprooting) an ani-
<br />mal or plant and simultaneously taking the species it instances.
<br />In the decade and a half since Congress first passed the Endan-
<br />gered Species Act, the meaning and scope of "take" have been
<br />explored, fought over, and enlarged. In the 1973 act, "the term
<br />`take' means to harass, harm, pursue, hunt, shoot, wound, kill,
<br />trap, capture, or collect, or to attempt to engage in .any such
<br />conduct."10 The definition has animals in focus. Elaborating,
<br />the act permits certain kinds of taking provided that they do not
<br />jeopardize the species. Additionally, it notes that taking habitat
<br />may be tantamount to taking species.
<br />In the 1988 amendments regarding the protection of plants, it
<br />is unlawful to "remove and reduce to possession" or to "mali-
<br />ciously damage or destroy" listed plants on lands under federal
<br />jurisdiction and "to remove, cut, dig up, or damage and destroy
<br />any such species on any other area in knowing violation of any
<br />law or regulation of any State."I I In a suggested model plant act
<br />for states, "take" means "pick, collect, cut, transplant, uproot,
<br />dig, remove, damage, destroy, trample, kill, or otherwise dis-
<br />turb," but this language has only partially found its way into
<br />state legislation (Fitzgerald, 1986).
<br />Through Section 7 of the ESA, the federal government pro-
<br />hibits its agencies from "taking" animal or plant species on pub-
<br />lic as well as private lands. In theory, the government does this
<br />not only at home but also abroad. But can the federal government
<br />prohibit a private citizen from taking plants on his or her own
<br />land or, with a landowner's consent, on the private lands of
<br />others?12 Congress pragmatically has deferred the question to
<br />state law since property rights and regulations traditionally are
<br />thought to be more appropriate at the state level. At the same
<br />time, Congress has endorsed state laws that do prohibit taking
<br />endangered plants with federal penalties for violators. Increas-
<br />
|