WSP03664 - Laserfiche WebLink

Home Browse Search

on2~2' trees. The courts and FWS have interpreted "harm" in vastly different ways. FWS (in guide. lines for landowners concerning the northern spotted owl) and the courts (in the Palila and Sierra Club decisions against federal and state land management agencies, discussed below) have sometimes opined that "harm" can be es- tablished by proof of habitat modification alone, and have largely assumed the "actual injury" to the listed species required by the harm regu. lation. At other times, the courts and FWS ha\'e been more rigorous in insisting on the actual injury required for "harm." There is substantial controversy about whether the harm regulation is lawful and con- trolling and, if so, how that regulation should be interpreted. Some of the areas of legal un- certainty and the pending cases that may pro- vide greater clarity are described below. Sweet Home I Issues Legality of the Regulatory Definition of "Harm." This is one of the two issues at stake in Sweet Home Chapter of Communities for a Great Oregon v, Lujan, 806 F. Supp. 279 (D.D.C. 1992), appeal pending, No. 92-5255 (D.C. Cir.) (Sweet Home I). Sweet Home [ presents the first judicial challenge that the harm regulation is ultra vires of the ESA and is un- constitutionally vague. Sweet Home contends that the ESA legis- lative intent categorically excludes ordinary land use actions from being takings; therefore, the inclusion of habir.at modification actions in the harm regulation exceeds ESA limits. Plaintiffs rely on (1) statements by several congressional leaders suggesting that land acquisition with compensation under ESA !\\ 5 (not uncompen. sated prohibition of land uses as takings) was Congress' exclusive answer to the problem of adverse habitat modification on private lands; (2) the Senate committee's deletion of habitat modification language from the ESA definition of "take"; (3) the exclusion of private land use actions from the pre-ESA law of wildlife takings, Seal/Ie Audubon Soey v. Evans, 952 F.2d 297, 302-03 (9th Cir. 1991); and (4) several law review articles and a Department of the Interior legal opinion questioning the legality of the "harm" definition. The government successfully defended the harm regulation before the district court by nar. rowly construing it and by relying on legislative histoty regarding the breadth of the taking pro- hibitions. Judge Norma Holloway Johnson ac- cepted FWS' construction. Under that narrowing interpretation, she upheld the harm regulation against ultra vires and void.for-vagueness chal- lenges. See 806 F. Supp. at 282-86. More par- ticularly, Judge Johnson found that harm exists only where there is proof "that actual death or injury to a species has occurred"; habitat mod- ification by itself is not a taking and "habitat modification would not be considered a taking unless there was proof of anendant death or injury" to a listed wildlife species. [d. at 284 n.1,286. The Sweet Home I appeal was argued be. fore a D.C. Circuit panel in February 1993. That court's decision should resolve whether the harm regulation is lawful and, if so, should offer some guidance on what it means. Legality of the Extension of the Taking Prohibition to Threatened Wildlife Spe- cies. This is the second issue addressed in Sweet Home J. A5 noted above, the ESA does not ban the taking of threatened wildlife species. In- sread, ESA !\\ 4 (d) gives FWS the discretionary authority to do so in prescribed circumstances and FWS relied on that authority in issuing 50 C.F.R. !\\ 17.31 (a), which presumptively ex- tends the taking prohibitions to all threatened wildlife species. The Sweet Home plaintiffs believe that ESA !\\ 4(d) only allows FWS to extend the taking prohibitions by a regulation specific to a par- ticular threatened species, and only when FWS documents why such action is "necessary and advisable," ESA!\\ 4(d), for the conservation of that species. Plaintiffs argue that section 17.31 (a) exceeds the lawful ESA !\\ 4(d) au. thority because the regulation extends the take prohibition to all threatened wildlife ,pecies . listed before or after its promulgation and with. out the individualized findings that the exten. sion is "necessary and advisable" for each particular species. If plaintiffs are correct, no valid regulation currently bars the taking of threatened species such as the northern spotted owl. Judge Johnson upheld section 17.31 (a) finding that ESA !\\ 4(d) does not preveIlt FWS from banning the taking of all threatened wild- life in a single blanket rule. 806 F. Supp. at 286-87. This issue, too, has been briefed and argued in the Sweet Home I appeal. Does State Law Limit ESA Takings? Two courts have recently held that state law does not limit ESA takings. This issue ha.< been litigated because several ESA provisions suggest that, often, state law controls on what is an ESA taking. In brief, ESA!\\ 6, 16 U.S.C !\\ 1535, en. courages a state to develop an adequate and ac- tive program for the conservation of listed species. If the program is approved by FWS, the state is emitled to a cooperative agreement and partial federal funding of the program. In a state NR&EjSUMMER Iq93 There is a substantial controversy about whether the harm regulation is lawful and controlling and bow tbat regulation should be interpreted. 11