Court rules on ESA 'take' definition.

In what could be a blow to the ability of environmentalists to challenge timber sales, the 11th Circuit Court of Appeals for the District of Columbia ruled March 11 that habitat modification is not a violation of the Endangered Species Act (ESA).

The ruling contradicts an interpretation upheld on two prior occasions by the Ninth Circuit Court of Appeals. This difference of opinion between the circuit courts paves the way for a possible U.S. Supreme Court showdown.

The 11th Circuit Court ruled 2-1 in favor of the Sweet Home Chapter of Communities for a Great Oregon, a group of Pacific Northwest individuals, communities, companies and associations, in a suit challenging the Fish & Wildlife Service's (FWS) interpretation of the ESA. The court ruled that the FWS incorrectly defined the term "harm" in the ESA.

Section 9 of the ESA makes it unlawful to "take" an endangered species such as the spotted owl. "Take" is a catch-all phrase that includes killing, harming, wounding, shooting, harassing, etc. In its interpretation, the FWS held that it was possible to "take" or harm an endangered species not only by physically injuring it, but also through land-use activities, such as logging, which may impair a species ability to breed, feed or shelter itself

The FWS' interpretation has led to logging restrictions and has been used in court challenges to timber land sales.

The 11th Circuit Court ruled, however, that habitat modification is not included in the language of the ESA and was not the intent of Congress when passing the ESA.

Differs from earlier ruling

The ruling by the 11th Circuit Court is inconsistent with an earlier ruling by the Ninth Circuit Court. In 1981 and 1988, that court ruled on habitat modification as it relates to the Palila bird in Hawaii.

The State of Hawaii maintained a herd of feral goats and sheep, and Mufoln sheep for hunting. The game area overlapped forestland containing the Mamane tree which is the habitat for the Palila bird. The herds were eating the Mamane tree seedlings and subsequently the forest was not expanding. Honolulu judge Samuel King ruled that this habitat modification would "take" the bird and ordered the herds removed.

"In the Ninth Circuit Court's view," said Chip Murray of the American Forest and Paper Assn., "in the future, the Palila bird would not have a place to live."

Judge King made this ruling on two occasions, and each time the case was upheld by the Ninth Circuit Court. In 1981, the court upheld Judge King's ruling that wild goats and sheep were destroying the Palila habitat and had to be removed. In 1988, the court upheld a King ruling ordering the Mufoln sheep's removal.

The Ninth Circuit Court governs the west coast and Hawaii, while the court in the District of Columbia oversees the District of Columbia. Because of this split decision, two opposing rules are being applied in different areas of the country.

David Klinger of the Portland office of the Fish & Wildlife Service said until the situation is clarified, his office "will continue operating under the same definition we have for a number of years. A definition sustained by the Ninth Circuit."

What does the Act say?

It is industry's contention that Congress did not intend for habitat modification to be included in the ESA. According to Murray, Congress had deleted habitat modification from the concept of "take" before enacting the ESA in 1973. The court found this "significant," Murray said.

"The court found that Congress intended to protect habitat in two ways," Murray said. "If the habitat it is on private land, Congress authorized acquisition. If the habitat is on federal land, Congress directed federal agencies to avoid adverse impacts ... Congress did not intend that private citizens be punished for modifying private land habitat in some way."

Kevin Kirchner, of the Sierra Club Legal Defense Fund, disagreed saying the ESA was meant for future interpretations. He added that the agency's definition of "harm" was a reasonable one.

Kirchner added that if the government has no authority to regulate habitat on non-federal lands it would put a "tremendous burden on public lands," when trying to save an endangered species. "There needs to be a mix of what happens on federal lands and non-federal lands with the idea of getting the species off the endangered species list," Kirchner said.

While the ruling is considered a victory of sorts for the forestry industry, it is by no means the final verdict. The Interior Department has until April 25 to decide whether to ask the Appellate Court for a reconsideration of the ruling, said Bob Walker, spokesman for the Interior Department. A decision had not been made by press time.

Should the Interior Department decide not to ask for another hearing, or should the ruling stand, it is likely that the Supreme Court will be asked to review the case. Additionally, the issue could be folded into reauthorization of the ESA

It may be too early to determine the end result of this ruling. Kirchner said he is confident that the original ruling of the definition of harm will be upheld.

Murray said if nothing else, the current ruling will "reign in some of the more radical environmental groups, and radical elements of the Fish & Wildlife Service that think private property is there for them to manage."