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Messrs. Quarles and Macleod are partners in, and Mr. Lundquist is special counsel to, the law firm of Crowell & Morillg in Washington, D. C. 10 002423 The Unsettled Law of ESA Takings Steven P. Quarles John A. Macleod Thomas R. Lundquist Section 9 of the Endangered Species Acr (ESA) and implementing regulations make it unlawful for anyone-public official and pri- vate landowner alike-to "rake" members of most fish or wildlife species that have been listed as either endangered or threatened (I isted wild. life species) pursuant to the ESA. 16 u.s.c. !!) 1538 (1988). This "take" prohibition has the greatest potential of the ESA's many provisions to limit private propeny uses. Yet the law of ESA takings is very unsettled and the legality of existing regulations is being questioned in an ongoing lawsuit. The guidance from the COUttS and the U.S. Fish and Wildlife Service (FWS) on what must be proven to es. tablish a taking has been somewhat inconsis- tent. A5 a result, many landowners are left in a quandary over whether activities they desire to undertake will be enjoined or will be subject to penalties because they effect takings. An overview of the series of statutory and regulatory provisions that prohibit takings of most listed wildlife species is provided with a discussion of certain areas where ESA takings law is unsettled. While we have strived to pro- vide a balanced presentation, the reader should be aware that the authors represent landowners and development interests in several cases dis- cussed below (e.g., Sweet Home) and in seek. ing legislative reform of the ESA. Overviev.; of ESA Taking Provisions A5 discussed elsewhere in this issue, sec- tion 4 of the ESA, 16 U.S.c. !!) 1533, creates a rUlemaking procedure for determining species to be, and placing them on lists of, .'endangered Editor's Note: Sweet Home I was decided by tbe D.C. Circuit onjllly 23, 1993. II upheld the harm regulatiotl in a divided opinion. NR&E;SUMMER ]993 species" or the less imperiled "threatened spe- cies." Section 9(a) creates a series of "prohib- ited acts" with respect to endangered species, but notthreatened species. 16 U.S.c. !!) 1538(a). Most important, ESA!!) 9(a)(1)(8) declares that "it is unlawfu I for any person" to "take" any "endangered species of fish or wildlife" anywhere "within the United States." (The "take' prohibition does not apply to listed plant species which are protected against, certain forms of destruction under ESA !!) 9(a)(2).) Thus, the take prohibition applies to all private and governmental "persons" on all lands in the United States. The prohibition against taking en- dangered wildlife is repeated in 50 C.F.R. !!) 17.21(c) (1992). A different set of ESA and regulatory pro- visions makes it unlawful [Q take a .threatened wildlife species. While the ESA itself does not ban the taking of such threatened species, sec- tion 4(d), 16 U.S.c. !!) 1533(d), does grant FWS the discretionary authority to extend any of the "prohibited acts" of ESA!!) 9(a)(l) to a threat- ened wildlife species. FWS has extended the taking prohibition (and all other ESA!!) 9(a)(I) prohibitions) to nearly all threatened wildlife species through a blanket rule codified at 50 C.F.R. !!) 17.31(a). Since ESA !!) 9(a)(I)(G) makes it unlawful to violate an ESA regulation, it is unlawful to take a threatened wildlife spe- cies in violation of 50 C.F.R. !!) 17.31(a). En. vironmental groups have been the most aggressive in bringing ESA taking suits. Now, what does "take" mean? ESA!!) 3(19), 16 U.S.c.!!) 1532(19), states that take "means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." Although the ESA does not define "harass" and "harm," FWS reg- ulations do: Harass in the definition of "take" in the Act means an intentional or negligent act or omis- sion which creates the likelihood of injury to wildlife by annoying it to such an extent as to significamly disrupt normal behavioral pauerns which include, but are not limited [0, breeding, feeding or sheltering. Harm in the definition of "take" in the Act means an act which actually kills or injures wildlife. Such act may include significant hab. itat modification or degradation where it actu- ally kills or injures wildlife by significantly impairing essemial behavioral patterns, includ- ing breeding, feeding or sheltering. 50 C.F.R. !!) 17.3. FWS' regulatory definition of "harm" cre. ates the greatest concerns for landowners. It is the only "take" term that explicitly includes the effects of "habitat modification" or land use actions, such as clearing brush or harvesting