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on0286 MANAGING ESA ISSUES HOLLAND & HART LLP those areas essential to the conservation of a listed species that require special management or protection.s ESA Section 7 requires federal agencies to consult with the appropriate Service to determine whether agency action may affect listed species or their habitat6 An "action" is defined very broadly to include "all activities or programs of any kind authorized, funded, or carried out, in whole or in part, by federal agencies in the United States or upon the high seas," including the "granting of licenses, contracts, leases, easements, rights-of-way, permits, or grants-in-aid.,,7 Section 7 proscribes federal agencies from taking any action that is likely to jeopardize the continued existence of any listed species or result in the destruction or adverse modification of designated critical habitat8 If the agency determines that its action will affect listed species or critical habitat, it must undertake formal consultation with the Service9 The product of the consultation process is generally a biological opinion issued by the Service indicating whether or not the action is likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of critical habitat (a "jeopardy" opinion), or is not likely to result in such effects (a "no jeopardy" opinion).lO A "jeopardy" biological opinion must include reasonable and prudent alternatives, if any, that would alter the action to avoid the likelihood of jeopardizing a listed species or resulting in the destruction or adverse modification of critical habitat. II Section 9 of the ESA broadly prohibits the taking of any listed species of fish or wildlife by "any person.,,12 Both federal and nonfederal (i.e. private and state) actions are within the statutory prohibition. The statute defines "take" as "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.,,13 The Supreme Court's Sweet Home decision upheld the Fish and Wildlife Service's regulatory interpretation of Section 9 to apply the take prohibition to significant habitat modification activities on nonfederalland. 14 The "take" prohibition 5 16 U.S.C. ~ 1532(5). 6 Id ~ 1536(a)(2). 7 50 C.F.R. ~ 402.02. · 16 U.S.C. ~ 1536(a)(2). 950 C.F.R. ~ 402.14(a). 10 See id. ~ 402.14(h)(3). II Id. ~~ 402.14(h)(3), 402.02. 1216 U.S.C. ~ 1538(a)(1). The statutory prohibition applies only to endangered species, id., but has been extended to threatened species by regulation. 50 C.F.R. ~ 1731(a). 13 16 U.S.C. ~ 1532(19). 14 Babbitt v. Sweet Home Chapter of Communities for a Great Oregon. ll5 5. Ct. 2407, 2418 (1995). - 2 -