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002G76 MANAGfNG ESA ISSUES HOLLAND & HART LLP applies directly under the Act only to species of fish and wildlife listed as "endangered." Section 4 provides that the Service can by regulation adopt a less expansive definition of "take" for a threatened species, recognizing that more flexibility in both the nature of proscribed activities and in the nature of the degree and type of management that can be employed with respect to a given threatened species may be desirable, IS However, the Service has promulgated a regulation making the full statutory definition of "take" applicable to a threatened species, absent a special rule to the contrary. 16 There have been few special rules promulgated to date (the grizzly bear rule, the Louisiana black bear rule, and the California Gnatcatcher rule being the most notable exceptions). 17 The Service's regulation applying "take" to threatened species, combined with the absence of "special rules," suggests that the "take" prohibition ordinarily will apply to any listed species of fish or wildlife, The Section 9 protections for listed plants are distinct and incorporate state plant protection law requirements. Section 9 makes it unlawful for any person to "remove and reduce to possession" any listed plant from federal land areas, or to "maliciously damage or destroy any such species on any such area" 18 That section also prohibits any person to "remove, cut, dig up, or damage or destroy any [listed plant] species on any other area in knowing violation of any law or regulation of any State or in the course of any violation of a State criminal trespass law" 19 The Service may issue a permit under ESA Section 10(a) to authorize the "incidental take" of protected species. An incidental taking is one that is "incidental to, and not the purpose of; the carrying out of an otherwise lawful activity. ..20 Similarly, for activities subject to the federal consultation requirement of Section 7, the biological opinion may include an incidental take statement authorizing such incidental take where it will not jeopardize the species' continued existence21 The statement must include reasonable and prudent measures that the Service deems necessary or appropriate to minimize the impact of any incidental take on the species,22 Two provisions of the Endangered Species Act are of special interest for the Act's developing application to habitat and ecosystem conservation purposes. First, Section I'See 16 U,S,c. ~ 1533(d). 1650 C.F,R. ~ 17,31. 17 See id, ~ 17.40(b), (i); ~ 17.41(b). " 16 U.S,C, ~ 1538(a)(2)(B), 191d. 20 !d. ~ 1539(a)( I)(B). 21 50 C.F,R, ~ 402, 14(i). n ld. - 3 -