1 F.3d 1 (D.C. Cir. 1993), 92-5255, Sweet Home Chapter of Communities for a Great Oregon v. Babbitt

Docket Nº:92-5255.
Citation:1 F.3d 1
Party Name:Envtl. SWEET HOME CHAPTER OF COMMUNITIES FOR A GREAT OREGON, et al., Appellants, v. Bruce BABBITT, Secretary of the Interior, et al., Appellees.
Case Date:July 23, 1993
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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1 F.3d 1 (D.C. Cir. 1993)



al., Appellants,


Bruce BABBITT, Secretary of the Interior, et al., Appellees.

No. 92-5255.

United States Court of Appeals, District of Columbia Circuit

July 23, 1993

Argued Feb. 17, 1993.

Rehearing and Suggestion for Rehearing In Banc

Denied May 2, 1994.

Appeal from the United States District Court for the District of Columbia (91cv01468).

John A. MacLeod, with whom Steven P. Quarles and Thomas R. Lundquist, Washington, DC, were on the brief, for appellants.

Ellen J. Durkee, Attorney, Dept. of Justice, with whom Martin W. Matzen and Jean

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[303 U.S.App.D.C. 43] E. Williams, Attorneys, Dept. of Justice, Washington, DC, were on the brief, for appellees.

Before MIKVA, Chief Judge; WILLIAMS and SENTELLE, Circuit Judges.

Opinion for the Court filed by Chief Judge MIKVA, except section II(A)(1), which is filed per curiam. Opinion concurring in section II(A)(1) filed by Chief Judge MIKVA. Opinion concurring in section II(A)(1) filed by Circuit Judge WILLIAMS.

Opinion dissenting in part filed by Circuit Judge SENTELLE.

MIKVA, Chief Judge:

Appellants, a group of non-profit citizens' groups, lumber companies, and lumber trade associations, oppose two regulations promulgated by the Fish and Wildlife Service ("FWS" or "agency") under the Endangered Species Act ("ESA"), 16 U.S.C. Secs. 1531-44. They appeal a memorandum opinion and order by the district court upholding the regulations by summary judgment and denying appellants' own motion for summary judgment. We find that the challenged regulations are reasonable interpretations of the ESA. We also reject appellants' claim that one of the regulations is void for vagueness. We therefore affirm the district court's judgment.


The Endangered Species Act of 1973 is a multifaceted and comprehensive law directed toward halting the extinction of species. It is implemented primarily by the Fish and Wildlife Service, an agency of the Department of the Interior. The ESA employs a number of techniques to preserve endangered and threatened species, including land acquisition by the government, the implementation of conservation programs by federal agencies, and the prohibition of various federal and private actions that harm listed species.

Among the more important sections of the ESA is 16 U.S.C. Sec. 1538(a)(1), which forbids any person from committing any of a broad array of activities deemed dangerous to the continued survival of endangered fish and wildlife species. This appeal focuses largely on the prohibition against "taking" an endangered species.

[W]ith respect to any endangered species of fish or wildlife listed pursuant to section 1533 of this title it is unlawful for any person subject to the jurisdiction of the United States to ... take any such species within the United States or the territorial sea of the United States[.]

16 U.S.C. Sec. 1538(a)(1)(B) (emphasis added).

The ESA defines "take" as follows: "[T]o harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." 16 U.S.C. Sec. 1532(19) (emphasis added). Much of the controversy surrounding this definition has concerned the meaning of "harm" and the degree to which this term encompasses damage to habitats. One of the FWS regulations challenged by appellants states:

Harm in the definition of "take" in the Act means an act which actually kills or injures wildlife. Such act may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering.

50 C.F.R. Sec. 17.3 (as amended in 1981). Appellants contend that this regulation's inclusion of habitat modification within the meaning of "take" violates the ESA. They also assert that even if the regulation is not ultra vires of the ESA, it is not clear precisely what sort of habitat modification the regulation forbids. They therefore argue that this Court should either declare the regulation void for vagueness or adopt a limiting construction of the regulation, holding that "harm" occurs only where there is an intentionally-caused actual physical injury to a specific member of a listed wildlife species.

The other regulation under review extends the protections for endangered species to threatened species as well. The ESA defines an "endangered species" as "any species which is in danger of extinction throughout all or a significant portion of its range...." 16 U.S.C. Sec. 1532(6). The ESA also protects

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[303 U.S.App.D.C. 44] species that are in less immediate peril but are listed as "threatened species." This term refers to "any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range." 16 U.S.C. Sec. 1532(20).

On its face, 16 U.S.C. Sec. 1538(a)(1) applies its prohibitions, including the prohibition against takings, only to endangered species. However, the ESA allows the FWS to apply these prohibitions to threatened species, as well.

Whenever any species is listed as a threatened species ... the Secretary shall issue such regulations as he deems necessary and advisable to provide for the conservation of such species. The Secretary may by regulation prohibit with respect to any threatened species any act prohibited under section 1538(a)(1) of this title, in the case of fish or wildlife....

16 U.S.C. Sec. 1533(d).

Appellants challenge a FWS regulation which, at one fell swoop, brings all threatened fish and wildlife species into the protective net of 16 U.S.C. Sec. 1538(a)(1).

Except as provided in subpart A of this part, or in a permit issued under this part, all of the provisions in [50 C.F.R. Sec. 17.21, the regulation implementing the section 1538(a)(1) prohibitions] shall apply to threatened wildlife....

50 C.F.R. Sec. 17.31(a) (1978). Appellants argue that this regulation violates the ESA, because Sec. 1533(d) requires the FWS to extend the prohibitions to threatened species on a species-by-species basis and to do so only after making a specific finding that each such extension was "necessary and advisable."

The district court rejected appellants' challenges to both 50 C.F.R. Sec. 17.3 and Sec. 17.31(a) and granted summary judgment to the government. 806 F.Supp. 279. Because all of the issues in this appeal are issues of law, we will review the district court's judgment de novo.


  1. The "harm" regulation

    1. Compliance with the Endangered Species Act

    Appellants argue that the "harm" regulation, 50 C.F.R. Sec. 17.3, violates the ESA, because the statute excludes habitat modification from the types of forbidden actions that qualify as "takings" of species. They assert that the ESA's language and structure, as well as its legislative history, clearly demonstrate that Congress did not intend to prohibit habitat modification when it defined "take" to include "harm" to an endangered species. 16 U.S.C. Sec. 1532(19). They claim that the meaning of harm should therefore be limited to direct physical injury to an identifiable member of a listed wildlife species.

    We hold, per curiam, that the "harm" regulation does not violate the ESA by including actions that modify habitat among prohibited "takings."

    2. The "void for vagueness" claim

    Appellants also maintain that, on its face, the "harm" regulation is void for vagueness. They point out that the Ninth Circuit has interpreted the regulation broadly so that prohibited "harm" includes habitat modification even without proof that death or physical injury to a specific member of a listed species has occurred. Palila v. Hawaii Dept. of Land and Natural Resources, 852 F.2d 1106, 1107-09 (1988). The appellants could also have mentioned that the FWS itself offered a similarly broad interpretation of the regulation when it introduced the current definition of "harm" in 1981:

    Some of the comments in favor of the redefinition ... viewed the action as limiting "harm" to direct physical injury to an individual member of the wildlife species. This was not the intent of the Service and the final redefinition addresses that perception. The purpose of the redefinition was to preclude claims of a Section 9 taking for habitat modification alone without any attendant death or injury of the protected wildlife. Death or injury, however,

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    [303 U.S.App.D.C. 45] may be caused by impairment of essential behavioral patterns which can have significant and permanent effects on a listed species.

    46 Fed.Reg. 54,748, 54,748 (1981).

    Appellants argue that so long as the regulation is subject to such broad constructions, it is impermissibly vague. They claim it will be left to the whims and predictions of biologists to determine when a habitat modification is "significant" and when such a modification "significantly impair[s] essential behavioral patterns." 50 C.F.R. Sec. 17.3 (emphasis added). Property owners, say appellants, will thus be subject to criminal sanctions under the ESA based on "some biologist's subjective view."

    We are urged to address this problem by construing the regulation to state that "harm" occurs only where there is proof of an intentionally-caused physical injury to a specific member of a listed wildlife species. If we determine that the regulation does not require such proof, appellants contend that we should declare the entire regulation void for vagueness.

    It is true, as appellants assert, that regulations with criminal sanctions must "define the criminal offense with sufficient definiteness that...

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