WSP03664

• File Number: 8065
• Description: Section D General Statewide Issues - Endangered Species Act - Fisheries
• State: CO
• Basin: Statewide
• Date: 8/1/1993
• Author: American Bar Associa
• Title: Natural Resources and Environment - Number 8-Volume 1 - Summer 1993 - Endangered Species Protection
• Water Supply Pro - Doc Type: Publication

Cases applying the
"harm" regulation
have produced
widely differing
interpretations.

12

002~25

with a "full authorities" cooperative agreement,
several ESA provisions-most notably 16 use.
S;S; 1533(d). 1535(c)( I )(E)(ii). 1535(g)(2).
and 1538(a)(1)-suggest that an action is an
ESA taking only to the extent that it violates a
state law or regulation. On the other hand, ESA
S; 6(f) suggests that state laws on takings which
are "less restrictive" than the ESA are pre.
empted.
Recently, one district court found that,
while there are "compelling arguments" on the
other side, "the clear language of S; 6(f) of the
ESA combined with the overwhelming priority
Congress has given (0 the preservation of threat-
ened and endangered species" means that the
"less restrictive takings provisions under Mon.
tana law are preempted by the ESA" and that
rhe federal definition of harm "is controlling."
Swan View Coalition, Inc. v. Turner, 36 Enn!.
Rep. Cas. (BNA) 1643, 1656 (D. Mont. 1992);
accord United States v. Glenn.Colusa Irriga.
tion Dist., 788 F. Supp. 1126, 1134 (E.D. Ca!.
1992).

Affirmative Action and the "Harm"

Form of Taking

Even if the harm regulation is valid, its
meaning is unclear. The cases applying the reg.
ulation have produced widely differing inter.
pretations. We stan with the issue of whether a
person can cause harm through inaction, such
as simply leuing nature take its course. A plain
reading of the harm regulation suggests there
must be an affirmative "act" which modifies
habitat, as contrasted to the "act or omission"
language in the "harass" definition. 50 e.F.R.
S; 17.3.
Yet, the Fifth Circuit, withoIll analysis,
reached the opposite result in Sierra Club ll,
Yeutler, 926 F.2d 429.438 (5th Cir. 1991).
There, the Fifth Circuit stated that the ForeSl
Service was harming the endangered red. cock.
aded woodpecker (RCW) because "it did not
remove midSlory hardwood. . . thus leading to
RCW abandonment of cavity trees." This seems
to suggest that landowners must spend money
to affirmatively manipulate their lands to im-
prove habitat conditions for listed species or
they will violate the harm regulation.
This result, in addition to its manifest un-
fairness, seems to misread the harm regulation
for the reasons identified above. The Yeutler
coun appeared to confuse an agency's respon-
sibilities under ESA S; 7 with its separate dIllies
under ESA S; 9. In fact, the court found that the
Forest Service's failure to implement a hand-
book's measures for RCW protection (which in.
cluded midstory removal standards) approved

NR&E/SUMMER 1993

in consultation with the FWS, violated the duty
to avoid ESA ~ 7 jeopardy to the RCW species.
This confusion between ESA S; 7 (which applies
only to federal agency actions and prohibits
jeopardizing the continued existence of an en-
tire listed species) and ESA S; 9 (which applies
to aU actions and primarily prohibits the takings
of individual members of listed species) infects
much of the case law on ESA takings, including
the Palila cases discussed below.

Habitat M odijication versus
"A ctual Injury"

It is sometimes assened that a certain
amount of habitat modification (e.g., harvesting
forty acres of trees in the habitat occupied by a
listed wildlife species) is, by itself, a taking.
This assertion is at odds with the wording of the
harm regulation, which twice states that habitat
modification does not constitute harm unless it
"actually kills or injures wildlife."
The regulatory preambles to the 1981 reo
definition of "harm" seem equally clear that
actual injury to a member of a listed wildlife
species is the sine qua non for harm. See 46
Fed. Reg. 54,748 (Nov. 4,1981); 46 Fed. Reg.
29,490 Oune 2, 1981). As)udge)ohnson stated
in Sweet Home I, the 1981 redefinition "simply
clarified that habitat modification would not be
considered a taking unless there was proof of
attendant death or injury." 806 F. Supp. ar 284
n.1.
The question then becomes, What does the
"actual injury" requirement mean? There is a
split in authority on three issues, (J) current
injury versus future injury; (2) proven injury
versus assumed injury; and (3) physical injury
versus more esoteric injuries to reproductive
success and the like,
The district court in Sweet Home I implied
that aClUal injury meant some .physical injury
and Slated that "the regulation itself requires a
finding that actual death or injury to a species
has occurred." 806 F. Supp. at 286. The view
that harm requires proof of a current physical
injury or death is contrary to the Ninth Circuit's
stated logic in Palila v. Hawaii Dep't of Land
and Natural Resources, 852 F.2d 1106 (9th
Cir. 1988), which was the last of four reported
Palila decisions. There, the court found that
future harm could be enjoined before any injury
to a listed animal has occurred.
The Palila cases involved a complex situ.
ation where (1) rhe state supposedly was sup.
porting the existence of goat and sheep
populations on state lands that were the re-
maining habitat of the endangered palila bird;
Continued on page 59