17 F.3d 1463 (D.C. Cir. 1994), 92-5255, Sweet Home Chapter of Communities for a Great Oregon v. Babbitt

Docket Nº:92-5255.
Citation:17 F.3d 1463
Party Name:24 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:March 11, 1994
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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17 F.3d 1463 (D.C. Cir. 1994)

24 Envtl.


al., Appellants,


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

No. 92-5255.

United States Court of Appeals, District of Columbia Circuit

March 11, 1994

Argued Feb. 17, 1993.

Rehearing and Suggestion for Rehearing In Banc Denied May 2, 1994.

On Appeal from the United States District Court for the District of Columbia Circuit (91cv01468) On Appellants' Petition for Rehearing.

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 E. Williams, Attorneys, Dept. of Justice, Washington, DC, were on the brief, for appellees.

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

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Opinion for the Court filed by Circuit Judge WILLIAMS.

Concurring opinion filed by Circuit Judge SENTELLE.

Dissenting opinion filed by Chief Judge MIKVA.


Sweet Home Chapter of Communities for a Great Oregon and a number of other organizations (collectively referred to here as "Sweet Home") sued in district court to invalidate a number of regulations promulgated by the Fish & Wildlife Service of the Interior Department under the Endangered Species Act of 1973 ("ESA" or the "Act"), 16 U.S.C. Secs. 1531-44 (1988). The district court rejected all the challenges, 806 F.Supp. 279, and this court affirmed, unanimously except as to one issue. Sweet Home Chapter v. Babbitt, 1 F.3d 1 (D.C.Cir.1993). The issue that split the court involved the scope of the Act's prohibition of the "taking" of endangered species. On petition for rehearing, and after securing a response from the government, we alter our view on that issue.

The Act makes it a crime for any person to "take" any endangered species of fish or wildlife listed under the Act. ESA Sec. 9(a)(1)(B), 16 U.S.C. Sec. 1538(a)(1)(B). A definitional section of the Act 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.

16 U.S.C. Sec. 1532(19). The Fish & Wildlife Service ("FWS") has in turn defined the component term "harm" in such a way as to encompass any "significant" habitat modification that leads to an injury to an endangered species of wildlife:

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 CFR Sec. 17.3.

The government contends that the Act as originally adopted in 1973 authorized this expansive definition, and that even if it did not, a 1982 amendment to another provision of the ESA, specifically Sec. 10(a)(1)(B) of the Act, 16 U.S.C. Sec. 1539(a)(1)(B), either so changed the context of the "take" definition as to validate the Service's definition, or at any rate ratified that definition.

On petition for rehearing, we reject both theories. We find that the Service's definition of "harm" was neither clearly authorized by Congress nor a "reasonable interpretation" of the statute, see Chevron U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837, 842-43, 844, 104 S.Ct. 2778, 2781-82, 2782, 81 L.Ed.2d 694 (1984), and we find that no later action of Congress supplied the missing authority.

The language, structure and legislative history of the 1973


The Fish & Wildlife Service found habitat modification within the idea of "harm", the most elastic of the words Congress used to define the acts that Sec. 9 of the ESA forbids private individuals to commit. The potential breadth of the word "harm" is indisputable. In Lucas v. South Carolina Coastal Council, --- U.S. ----, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992), for example, the Supreme Court, in exploring the just compensation requirement of the 5th Amendment, observed that "the distinction between 'harm-preventing' and 'benefit-conferring' regulations is often in the eye of the beholder." Id. --- U.S. at ----, 112 S.Ct. at 2897. As a matter of pure linguistic possibility one can easily recast any withholding of a benefit as an infliction of harm. In one sense of the word, we "harm" the people of Somalia to the extent that we refrain from providing humanitarian aid, and we harm the people of Bosnia to the extent that we fail to stop "ethnic cleansing". By the same token, it is linguistically possible to read "harm" as referring to a landowner's withholding of the benefits of a habitat that is beneficial to a species. A farmer who harvests crops or

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trees on which a species may depend harms it in the sense of withdrawing a benefit; if the benefit withdrawn be important, then the Service's regulation sweeps up the farmer's decision.

The immediate context of the word, however, argues strongly against any such broad reading. With the single exception of the word "harm", the words of the definition contemplate the perpetrator's direct application of force against the animal taken: "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect". The forbidden acts fit, in ordinary language, the basic model "A hit B."

For some of the words, to be sure, the application of force may not be instantaneous or immediate, and the force may not involve a bullet or blade. In the case of "pursue", the perpetrator does not necessarily catch or destroy the animal, but pursuit would always or almost always be a step toward deliberate capture or destruction, and so would be picked up by Sec. 1532(19)'s reference to "attempt[s]". While one may "trap" an animal without being physically present, the perpetrator will have previously arranged for release of the energy that directly captures the animal. And one may under some circumstances "harass" an animal by aiming sound or light in its direction, but the waves and particles are themselves physical forces launched by the perpetrator. Interpreting "harass" in the Marine Mammal Protection Act, where it appears as one of the components of "take" (defined as "to harass, hunt, capture, or kill, or attempt to harass, hunt, capture, or kill any marine mammal"), the 9th Circuit applied noscitur a sociis, saying:

The statute groups "harass" with "hunt," "capture," and "kill" as forms of prohibited "taking." The latter three each involve direct, sustained, and significant intrusions upon the normal, life-sustaining activities of a marine mammal; killing is a direct and permanent intrusion, while hunting and capturing cause significant disruptions of a marine mammal's natural state. Consistent with these other terms, "harassment," to constitute a "taking" under the MMPA, must entail a similar level of direct and sustained intrusion.

United States v. Hayashi, 5 F.3d 1278, 1282 (9th Cir.1993). Accordingly the court overturned the defendant's conviction. Although he had fired a rifle twice into the water behind some porpoises, he had not harassed the porpoises within the meaning of the statute, as his acts were not "direct and significant intrusions upon the mammal's ordinary activities." Id. Here, the nine verbs accompanying "harm" all involve a substantially direct application of force, which the Service's concept of forbidden habitat modification altogether lacks. 1

The implications of the Service's definition suggest its improbable relation to congressional intent. Species dependency may be very broad. One adherent of aggressive protection, for instance, notes that "[s]ome scientists believe as many as 35 million to 42 million acres of land are necessary to the survival of grizzlies", about as much land in the northern Rockies of the United States and Canada as is still usable grizzly habitat. Rocky Barker, Saving All the Parts 34 (1993). And for an individual to "knowingly" violate Sec. 9 means criminal penalties of up to a $100,000 fine and imprisonment for one year. See 16 U.S.C. Sec. 1540(b); 18 U.S.C. Secs. 3559(a)(6), 3571(b) and (e) (raising the maximum penalty).

Thus the gulf between the Service's habitat modification concept of "harm" and the other words of the statutory definition, and the implications in terms of the resulting extinction of private rights, counsel application of the maxim noscitur a sociis. "The maxim noscitur a sociis, that a word is known by the company it keeps, while not an inescapable rule, is often wisely applied where a word is capable of many meanings in order to avoid the giving of unintended breadth to the Acts of Congress." Jarecki v. G.D. Searle & Co., 367 U.S. 303, 307, 81 S.Ct. 1579, 1582, 6 L.Ed.2d 859 (1961). See also

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Dole v. Steelworkers, 494 U.S. 26, 36, 110 S.Ct. 929, 935, 108 L.Ed.2d 23 (1990) ("words grouped in a list should be given related meaning") (citations omitted). 2 The Service's interpretation appears to yield precisely the "unintended breadth" that use of the maxim properly prevents.

The structure and history of the Act confirm this reading. The ESA pursues its conservation purposes through three basic mechanisms: (1) a federal land acquisition program, ESA Sec. 5, 16 U.S.C. Sec. 1534; (2) the imposition of strict obligations on federal agencies to avoid adverse impacts on endangered species, ESA Sec. 7, 16 U.S.C. Sec. 1536; and (3) a prohibition on the taking of endangered species by anybody, ESA Sec. 9, 16 U.S.C. Sec. 1538. The Act addresses habitat preservation in two ways--the federal land acquisition program and the directive to federal agencies to avoid adverse impacts. The latter frames the duty in terms that the Service has now transposed to the private anti-"take" provision: every such agency is to "insure that any action authorized, funded, or carried out...

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