Sweet Home Chapter of Communities v. Lujan, Civ. A. No. 91-1468.

• Decision Date: 29 May 1992
• Docket Number: Civ. A. No. 91-1468.
• Citation: 806 F. Supp. 279
• Parties: SWEET HOME CHAPTER OF COMMUNITIES FOR A GREAT OREGON, et al., Plaintiffs v. Manuel LUJAN, Jr., Secretary of the Interior, John F. Turner, Director, U.S. Fish and Wildlife Service, Defendants.
• Court: U.S. District Court — District of Columbia

806 F. Supp. 279

SWEET HOME CHAPTER OF COMMUNITIES FOR A GREAT OREGON, et al., Plaintiffs v. Manuel LUJAN, Jr., Secretary of the Interior, John F. Turner, Director, U.S. Fish and Wildlife Service, Defendants.

Civ. A. No. 91-1468.

United States District Court, District of Columbia.

May 29, 1992.

COPYRIGHT MATERIAL OMITTED

John A. MacLeod, Crowell & Moring, Washington D.C., for Sweet Home Chapter of Communities for a Great Oregon.

Jean Eva Williams, U.S. Dept. of Justice, Environment & Natural Resources Div., Washington, D.C., for Manuel Lujan, Jr.

MEMORANDUM OPINION

NORMA HOLLOWAY JOHNSON, District Judge.

Plaintiffs are various organizations, businesses and individuals, who depend directly or indirectly on the timber industry in the Pacific Northwest and in the Southeast for their livelihood. They challenge two regulations promulgated by the Secretary of the Interior ("the Secretary") as contrary to the Endangered Species Act ("ESA"), 16 U.S.C. §§ 1531-1544 (1988). They also claim that one of these regulations is void for vagueness. Currently pending before the Court are the parties' cross-motions for summary judgment. The parties agree that there are no genuine disputes of material fact and that this case raises purely legal issues. After careful consideration of the submissions of the parties and the entire record herein, and for the reasons out-lined below, the Court will grant defendants' motion for summary judgment and deny plaintiffs' motion for summary judgment.

REGULATORY AND FACTUAL BACKGROUND

The Endangered Species Act, 16 U.S.C. §§ 1531-1544 (1988), was enacted by Congress in 1973 to provide a program for the conservation of endangered species and threatened species and for the preservation of their ecosystems. 16 U.S.C. § 1531(b). Section 4 of the ESA directs the Secretary to designate species of fish, wildlife, or plants as "endangered" or "threatened" in accordance with certain procedures. 16 U.S.C. § 1533(a)(1). The Secretary is also empowered to designate "critical habitat" for such listed species and to develop recovery plans for their survival. 16 U.S.C. §§ 1533(a)(3), 1533(f).

The ESA prohibits certain activities with respect to species that are designated as endangered or threatened. Section 7(a)(2) of the ESA, which applies only to federally-authorized actions, requires all federal agencies to insure that their activities will not "jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species which is determined by the Secretary ... to be critical...." 16 U.S.C. § 1536(a)(2).

Section 9 of the ESA, which applies to both federal and nonfederal actors, addresses prohibited actions with respect to endangered species only. At issue in this case is the scope of the "take" provision, § 1538(a)(1)(B), which makes it unlawful for any person to "take any endangered species within the United States." The ESA defines "take" as follows:

The term "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. § 1532(19). Although the ESA does not define the terms within this definition any further, the Secretary has promulgated a regulation defining the word "harm" as follows:

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. § 17.3 (1991).

The prohibition against "takings" set out in § 1538(a)(1) applies only to those species listed as endangered. However, section 4(d) of the ESA allows the Secretary to extend some or all of the protections in § 1538(a)(1) 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. § 1533(d). Pursuant to this section, the Secretary has adopted a regulation which extends the prohibitions listed in § 1538(a)(1), including the prohibition against "takings," to all wildlife species listed as threatened:

Except as provided in subpart A of this part, or in a permit issued under this subpart, all of the provisions in § 17.21 which restates the prohibitions outlined in 16 U.S.C. § 1538(a)(1) shall apply to threatened wildlife, except § 17.21(c)(5).

50 C.F.R. § 17.31(a) (1991).

Plaintiffs in this action are small landowners, small logging companies, and families allegedly dependent on the forest products industry in the Pacific Northwest and in the Southeast. In order to enforce the regulations at 50 C.F.R. § 17.3 and § 17.31(a) and to avoid "harm"-type takings of the northern spotted owl and other threatened wildlife species, the Fish and Wildlife Service ("FWS") has placed restrictions on timber harvesting. Plaintiffs claim that these restrictions have forced them to lay off employees, limited their income from trust lands, reduced the timber supply, and placed some of the plaintiffs in the position of being unable to support their families. They bring this action challenging the "harm" definition at 50 C.F.R. § 17.3 as contrary to the ESA and void for vagueness. Plaintiffs also challenge the Secretary's regulation at 50 C.F.R. § 17.31(a), extending the protections for endangered species to threatened species, as contrary to the ESA.

DISCUSSION

In reviewing an agency's construction of a statute, a court must first determine "whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter." Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842, 104 S.Ct. 2778, 2781, 81 L.Ed.2d 694 (1984). Where the statute and the intent behind it are ambiguous with respect to a matter at issue, however, a court must decide whether the agency's construction of the statute is "based on a permissible construction of the statute." Chevron, 467 U.S. at 843, 104 S.Ct. at 2782. A court may not substitute its own construction of a statutory provision if the agency's interpretation is "reasonable." Id. at 844, 104 S.Ct. at 2782.

A. The Definition of "Harm" at 50 C.F.R. § 17.3

1. § 17.3 Does Not Violate the ESA

The Secretary's regulation at 50 C.F.R. § 17.3 defines "harm" to mean "an act which actually kills or injures wildlife"; the harm definition in § 17.3 includes "significant habitat modification or degradation where it actually kills or injures wildlife." Plaintiffs argue that, by establishing habitat modification as a form of harm, this regulatory definition goes beyond the definition that Congress intended for the term "take." Under the ESA, the term "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. § 1532(19). Congress made clear that the definition of "take" was to be interpreted "in the broadest possible manner to include every conceivable way in which a person can `take' or attempt to `take' any fish or wildlife." S.Rep. No. 307, 93d Cong., 1st Sess. 7 (1973). See also H.R.Rep. No. 412, 93d Cong., 1st Sess. 11, 15 (1973) ("`Take' is defined broadly"; prohibition against "takings" in Section 9 of ESA "includes, in the broadest possible terms, restrictions on the taking, importation and exportation, and transportation of endangered species.")

Notwithstanding this clear intent by Congress to give an expansive definition to the term "take," plaintiffs insist that Congress did not intend the term to reach habitat modification. In support of this contention, plaintiffs make three principal arguments. First, plaintiffs point out that the original ESA bill which was referred to the Senate Committee on Commerce, S. 1983, defined "take," with respect to fish or wildlife, to include "destruction, modification, or curtailment of its habitat or range." The fact that the bill was reported out of committee without any reference to habitat modification in the definition of "take" is an indication, plaintiffs argue, that the Senate intended the scope of the word "take" not to encompass habitat modification.

Plaintiffs are asking this Court to engage in speculation about legislative intent. The Court acknowledges that S. 1983 offered a different definition of the word "take" than the one that was subsequently adopted by the Senate Committee on Commerce. However, the Court notes that S. 1983 was only one of two endangered species bills under consideration by the Senate Committee on Commerce at that time. The other bill, S. 1592, defines "take" exactly as it now appears in the statute. From this legislative history, the Court can conclude no more than that the Senate chose to adopt the definition in one bill over that in another. There is absolutely nothing in the legislative history of the ESA to indicate that the Senate rejected the definition in S. 1983 specifically because it wanted to exclude habitat modification from the definition of take. In fact, the Senate Report indicates just the opposite, that "take" was being defined "in the broadest possible manner."

It may be, as defendants suggest, that the Senate rejected the definition of "take" in S. 1983 because it did not want habitat modification per se to constitute a taking; or it may be that the Senate chose to leave the decision of whether to define takings to include habitat modification in the hands of the Secretary. However, the Court will not rely upon such speculation to deduce legislative intent.

Plaintiffs' second argument is that...