The take prohibition in section 9 of the Endangered Species Act: contradictions, ugly ducklings, and conservation of species.

I.   INTRODUCTION
II.  INDIVIDUALS AND POPULATIONS
III. UGLY DUCKLING
IV.  SIGNIFICANCE AND PROBABILITY
V.   CONCLUSION

I. INTRODUCTION

We live during one of the most dramatic periods of mass extinction in the multibillion-year history of life on Earth. (1) While we can only, with difficulty, estimate the extent of the current mass extinction, (2) it appears to rank among the half dozen biggest since the beginning of the fossil record and rivals the extinction that ended the reign of the dinosaurs. (3) It is transforming the fabric of life on the planet. It is, however, different from the mass extinctions that came before it because its cause is different. The current mass extinction results from human disruption of ecosystems. (4)

Thirty years ago the United States took an extraordinary step toward confronting this mass extinction crisis by passing a law "to halt and reverse the trend toward species extinction, whatever the cost." (5) In passing the Endangered Species Act of 1973 (ESA), (6) Congress took a bold step, not out of altruism, but out of self-interest. As Congress observed:

   From the most narrow possible point of view, it is in the best
   interests of mankind to minimize the losses of genetic variations.
   The reason is simple: they are potential resources. They are keys
   to puzzles which we cannot solve, and may provide answers to
   questions which we have hot yet learned to ask. (7)

By passing the ESA, Congress did more than mandate the maintenance of a few specimens of imperiled species on the brink of extinction. Congress mandated "conservation" of species and the ecosystems of which they are a part. (8) Congress defined "conservation" to include "the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this chapter are no longer necessary." (9) For a variety of very good reasons, the ESA mandates recovery of species. (10)

By all rights, the take prohibition in section 9 (11) should rank among the most important provisions of the ESA. The take prohibition is simple, unambiguous, and breathtaking in its reach and power. Section 9(a)(1)(B)-(C) forbids any "person" to "take" any endangered species of fish or wildlife "within the United States or the territorial sea of the United States" or "upon the high seas[.]" (12) Section 3(13) of the ESA defines "person" broadly to include "an individual, corporation, partnership, trust, association, or any other private entity; or any officer, employee, agent, department, or instrumentality of the Federal Government, of any State, municipality, or political subdivision of a State, or of any foreign government ... or any other entity subject to the jurisdiction of the United States." (13) Section 3(19) defines "take" as "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." (14) Congress defined "take" explicitly "in the broadest possible manner to include every conceivable way in which a person can 'take' or attempt to 'take' any fish or wildlife." (15)

The United States Fish and Wildlife Service (FWS), responsible for enforcing the ESA for most protected species, has further defined "harass" and "harm" in the definition of "take" to include in jury through habitat destruction. FWS defines "harm" to include an act that results in "significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavior patterns." (16) FWS defines "harass" to include an "intentional or negligent act or omission which creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral patterns." (17)

In Babbitt v. Sweet Home Chapter of Communities for a Great Oregon (Sweet Home), (18) the United States Supreme Court, relying on the purpose of the ESA, upheld FWS's definition of "harm" within the statutory definition of take against a facial challenge. The Court noted that "Congress' intent to provide comprehensive protection for endangered and threatened species supports the permissibility of the Secretary's 'harm' regulation." (19)

In practical terms, the section 9 take prohibition must be an essential component in any national effort to preserve biological diversity. It is the only provision of the ESA that applies without qualification to the private land on which most species, endangered or not, depend. This fact undergirds the United States Court of Appeals for the District of Columbia Circuit ruling on the reach of Commerce Clause jurisdiction under the ESA in National Ass'n of Home Builders v. Babbitt. (20)

After Sweet Home and other expansive readings of the language in section 9 in the late 1980s and early 1990s, it seemed possible that section 9 would evolve into the bulwark for species protection it was plainly intended to be. This has not happened. In 2004, nine years after Sweet Home, the federal courts have yet to put jurisprudential flesh on the statutory bones of the section 9 take prohibition. Issues regarding burden of proof have remained stalled at a rudimentary level. (21)

The reasons for the arrested development of section 9 jurisprudence are numerous. Politics certainly has something to do with it. There are, however, fundamental tensions between section 9 and the test of the ESA, which cannot be separated from its language and history.

First, the ESA, as a whole, is about the conservation of species--in other words, the recovery of populations that interbreed and persist over time. (22) Section 9, on the other hand, prohibits injuring individual species members. These are two different things. While there is certainly a relationship between protecting species members and protecting species as a whole, the nature of that relationship is anything but straightforward. It varies dramatically from species to species. Perhaps, just as significantly, section 9's emphasis on protection of individuals invites lawyers, versed in tort concepts, to apply those concepts in ways completely unrelated to furthering the purpose of the ESA.

Second, the take prohibition in section 9 is a straightforward prohibition set among other substantive provisions which delegate initial decision making to a federal agency. Applying the take prohibition, a federal court may determine whether or not a defendant has injured a protected species member by taking evidence and making a finding of fact. For every other significant provision of the Act--the section 7 jeopardy prohibition, the listing and critical habitat designation in section 4, and the issuance of incidental take statements or permits under section 7(b)(4) or 10(a)--a federal agency must make the initial factual determination. In lawsuits brought for violation of those provisions, courts play only their traditional "administrative law" role--reviewing the adequacy of the agencies' decision making. This bias toward administrative law in the statute creates a bias toward administrative law in ESA practice, even with section 9 claims. Lawyers present administrative findings and administrative law arguments and courts rely on administrative findings in making their decisions. Because most of these findings are not informed by the goal of the ESA, they can broaden the gap between section 9 and the purpose of the Act.

To fashion an effective jurisprudence for the section 9 take prohibition, courts must honestly consider both the evidence of past and probable future injury to individual species members and the effect of that injury on the prospects of the population and species of which that member is a part. We can never forget the prohibition against injury to individuals exists as an instrument to achieve the statute's goal of species conservation.

II. INDIVIDUALS AND POPULATIONS

The purpose of the ESA is relatively clear: to "conserve" endangered and threatened species. Congress enacted the ESA to "provide for the conservation, protection, restoration, and propagation of species of fish, wildlife, and plants facing extinction." (23) In support of the Act, President Richard M. Nixon declared, "Nothing is more priceless and more worthy of preservation than the rich array of animal life with which our country has been blessed." (24) The fate of species as a whole and the factors that govern their fate drive application of almost every provision of the ESA.

Most prominent among the factors governing the fate of species as a whole is habitat. The ESA lists five factors that are considered in determining whether a species (25) should be listed as threatened or endangered:

(A) the present or threatened destruction, modification, or curtailment of its habitat or range;

(B) overutilization for commercial, recreational, scientific, or educational purposes;

(C) disease or predation;

(D) the inadequacy of existing regulatory mechanisms; or

(E) other natural or manmade factors affecting its continued existence. (26)

The Act lists adequate habitat as the first factor the agency should consider in listing or delisting. Habitat is generally an essential factor in both species survival and recovery. Congress recognized the importance of habitat under the ESA through the designation of critical habitat for recovery, (27) recovery plans that require protection of habitat, (28) protection of critical habitat from "adverse modification," (29) and habitat conservation plans. (30) Again and again, the Act recognizes that habitat conservation is necessary for the survival and recovery of species.

The language of the section 9 take prohibition, in what appears to be stark contrast to the rest of the law, focuses on in jury to individual species members. The provision prohibits "take." The words in the definition of take--harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect--all describe action generally done to individuals. The potentially broader term "harm" has been defined to include only actions that "actually ... injures" wildlife. (31) Injury to species and populations plays no explicit role. Indeed, Justice Scalia's dissent in Sweet Home argued strenuously that FWS's definition of "harm" did prohibit injury to populations and, therefore, was invalid. (32)

The roots of the linguistic contrast between section 9 and the ESA as a whole are no mystery. The ESA represents the confluence of two distinct bodies of federal law: federal environmental law and federal wildlife law. Both are relative newcomers to the ancient body of wildlife law. (33)

The evolution of federal wildlife law began with the Lacey Act of 1900. (34) It continued with the Migratory Bird Treaty Act of 1918, (35) the Bald and Golden Eagle Protection Act (36) and a bewildering variety of additions and amendments. Generally, these federal wildlife laws were not directly concerned with the protection and recovery of species. They evolved around clear prohibitions--against take and commerce--and were enforceable primarily, often exclusively, by the federal government. (37) The case law that has developed has involved numerous criminal prosecutions. (38) Because the prohibitions are established by statute--occasionally clarified by regulation--civil cases and injunctions are relatively rare.

The evolution of federal environmental law began in the 1960s and exploded between 1969 with the enactment of the National Environmental Policy Act of 1969 (NEPA) (39) and 1980 with the passage of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA). (40) While federal environmental law involves extensive, specific prohibitions on the conduct of individuals, states, and federal agencies, the case law that has grown around it has focused almost exclusively on the numerous agency determinations required to give focus and force to those prohibitions. Unlike federal wildlife law, federal environmental law specifically authorizes citizen litigation with citizen suit provisions which augment or supplant the provisions of the Administrative Procedure Act. (41) The focus on citizen litigation and agency determination shifts the balance from criminal to civil law and dramatically increases the importance of injunction as a remedy.

The ESA includes elements drawn from both legal traditions. The Act contains a well-developed citizen suit provision, (42) beneficiary of prototypes established in the Clear Air Act of 1970 (43) and Clean Water Act of 1972. (44) It imposes specific decision-making obligations on expert agencies and more general obligations on the decision making of other federal agencies. While government criminal prosecutions under the ESA are as frequent as FWS's limited resources will allow, the bulk of the case law--largely initiated by citizens' groups---considers civil violation. Injunction is the preferred remedy.

Congress drew most, if not all, of the language of the section 9 take prohibition directly from the wildlife law tradition. (45) The word "Secretary," so prominent in the other significant provisions of the law, makes only marginal appearances in section 9 as the promulgator of regulations and receiver of reports. Therefore, it is no surprise that the language of section 9 focuses on harm to individual species members.

If courts applied the language of section 9 mechanically, without reference to the purpose of the statute of which it is part, they could conceivably hold that the death of a single animal constituted a violation of the statute while the destruction of a continent of habitat--without injuring an individual--did not. They could enjoin an action to capture an individual bird, but declare themselves helpless to stop an action that would drive a species to extinction in a few generations through the reduction of essential migratory paths. (46)

Fortunately, courts have regularly been able to see beyond section 9's focus on the individual and to place the language of section 9 in its statutory context. Injury to an individual remains, justly, the focus of criminal prosecutions. (47) However, in cases in which either the government or, more often, citizen groups seek injunctions against future conduct--most commonly indirect harm through habitat destruction--the actual focus of the judicial inquiry shifts from in jury of individual species members to conservation of the entire species or species populations.

Unfortunately, as we shall see, the individual-oriented language in section 9 has prevented courts from clearly articulating how they take the broader goals of the ESA into account in making their decisions. This has stunted the growth of section 9 jurisprudence.

The tension between the language of section 9 and the rest of the ESA has been evident since the formative years of the ESA jurisprudence. Section 9, however, did net begin to develop a discrete line of case law until after the Supreme Court's landmark decision in Tennessee Valley Authority v. Hill (TVA v. Hill) (48) in 1978.

The palila (Loxiodes bailleui) is a finch-billed member of the Hawaiian honeycreeper family of birds. (49) The palila was listed as an endangered species in 1967. (50) The only remaining population of the bird lives in the limited remaining mamane-naio (Myoporum sandwicense) forest (from approximately 6,400 feet to treeline at approximately 9,500 feet) (51) on the slopes of Mauna Kea on the island of Hawaii. (52) The palila depends on the mamane forest for food, shelter, and nest sites. (53) In 1979--six years after the passage of the ESA and one year after TVA v. Hill--the palila shared its habitat with, among other creatures, populations of feral sheep and goats maintained by the Hawaii Department of Land and Natural Resources for sport hunting. (54) The feral sheep and goats also used the mamane forest for food. (55) Their browsing on the seedlings and shoots of the mamane trees prevented the shoots and seedlings from growing into mature trees, thereby degrading the habitat on which the palila depended. (56) National and local conservation groups, one individual, and the palila (a species) (57) sued to force the Hawaii Department of Land and Natural Resources to remove the feral sheep and goats from the palila's habitat.

The plaintiffs argued that the Department's maintenance of the feral sheep and goats in palila habitat constituted a take in violation of section 9 of the ESA. (58) In June 1979, the United States District Court for the District of Hawaii ruled on the plaintiffs' motion for summary judgment and held that the defendants had violated section 9 by maintaining feral sheep and goats in the habitat of the palila, despite the fact that the plaintiffs had not established that the palila population was declining. (59) The court's ruling was based largely on analysis of harm to the palila submitted by members of the Palila Recovery Team--independent scientists appointed by FWS. (60) In February, 1981, the Ninth Circuit Court of Appeals affirmed. (61)

In December 1985, the palila once again "wing[ed] its way into the federal court as a plaintiff in its own right." (62) While the feral sheep and goats that had been eating its critical habitat in 1979 had been removed, other sheep--mouflon sheep (Ovis musimon)--were still doing the same thing. After new information about the detrimental effects of the mouflon sheep became available, the plaintiffs amended their complaint and sued to have the mouflon sheep removed from palila habitat. (63) On November 18, 1986, after a hearing and expert testimony concerning the effects of the mouflon sheep on palila habitat, the court rendered what was, until 1995, probably the single most important opinion in section 9 law.

The 1986 Palila v. Hawaii Department of Land & Natural Resources (Palila) district court opinion reconfirmed that there was a cause of action under section 9 based on the destruction of the habitat of an endangered species. (64) Further, it established explicitly that the cause of action did not require evidence of the actual death of members of the species or even evidence of population decline. (65) The Mauna Kea mouflon were maintained by the Hawaii Department of Land and Natural Resources for sport hunting; like the feral sheep and goats that were the subject of the earlier litigation, the mouflon are the shoots and sprouts of the mamane tree. (66) While the palila's population had been dangerously low in 1979--at the time of the first litigation--by 1985, its population had stabilized or made a slight comeback. (67) The court interpreted FWS's 1981 definition of the term "harm" as used in the definition of "take." (68) It found that the definition prohibited activities that "significantly modify or degrade the habitat, resulting in actual injury to the wildlife species." (69) The court stated that the prohibition "would include activities that significantly impair essential behavioral patterns to the extent that there is an actual negative impact or injury to the endangered species, threatening its continued existence or recovery." (70)

The defendants had argued that the mouflon sheep did not "harm" the palila because the young mamane shoots which they are were not of any immediate use to the palila. (71) However, the defendants admitted that mouflon sheep were "degrading the mamane forest" and "suppressing the forest's regeneration." (72) Because the palila is completely dependent on the mature mamane forest for its existence, the damage the mouflon sheep were causing might have had dire long-term consequences for the palila. The shoots eaten by the mouflon sheep would never grow into the mature mamane trees the palila required to survive. The court found that the prospect of these long-term consequences was "harm" and therefore a take in violation of section 9. (73) Moreover, the court found that maintenance of the mouflon sheep would be "harm" and, therefore, a take even if it did no more than prevent the recovery of the palila.

   A finding of "harm" does not require death to individual members of
   the species; nor does it require a finding that habitat degradation
   is presently driving the species further toward extinction. Habitat
   destruction that prevents the recovery of the species by affecting
   essential behavioral patterns causes
   actual injury to the species and effects a taking under section 9 of
   the [Endangered Species] Act. (74)

The court ordered the Hawaii Department of Land and Natural Resources to remove all the mouflon sheep from the critical habitat of the palila. (75) In July 1988, in a brief opinion, the Ninth Circuit Court of Appeals affirmed. (76)

The palila cases were section 9 take cases. The section 7 jeopardy prohibition did not apply because the plaintiffs did not allege that the action in question was "funded, authorized or carried out by" the federal government. (77) Applying the language of section 9 mechanically, the holdings in the palila cases make little sense. The courts repeatedly failed to mention any evidence of dead individual birds. In fact, the courts seemed completely uninterested in the issue of whether individual birds had been taken. In the mouflon sheep cases, at least, individual bird mortality could not be presumed from aggregate population data. The actual number of birds was either stable or improving. (78)

On the other hand, in terms of the purpose of the ESA--conservation of species--the court did the right thing. Continued degradation of the mamane forest by feral sheep, feral goats, and mouflon sheep was a significant threat to the recovery and, perhaps, survival of the palila. Conservation of species requires stable habitat in the long term.

The district court may have been correct and it may have been courageous, but it was not entirely forthright. In the sentence, "habitat destruction that prevents the recovery of the species by affecting essential behavioral patterns causes actual in jury to the species and effects a taking under section 9," (79) the court makes it appear that the take prohibition always applies to species as a whole. Along similar lines, the court declared "I understand [section 9] to prohibit activities that significantly modify or degrade the habitat, resulting in actual injury to the wildlife species." (80) The court simply overlooked the individual in jury focus of the section 9 take prohibition. Whether this oversight was intentional is not important, but it is hard to imagine the court believed that Congress intended words like "kill" and "capture" in the statutory definition of take applied primarily to entire species.

In National Wildlife Federation v. Burlington Northern Railroad (Burlington Northern Railroad), (81) the National Wildlife Federation (NWF) sought a preliminary injunction against the railroad company under the ESA. (82) NWF claimed that Burlington Northern (BN) violated section 9 by "modifying grizzly bear [(Ursus arctos horribilis)] feeding behavior through a series of accidental corn spills along BN tracks in northwestern Montana." (83) Three BN trains carrying grain derailed near Glacier National Park during the winter of 1988-1989, spilling nearly 10,000 tons of coin. (84) BN trains struck and killed seven grizzly bears attracted to the food supply at the spill sites, which were located along a four-mile stretch. (85)

The district court found that the killing of seven grizzly bears constituted a take under section 9, but declined to provide injunctive relief for NWF, because NWF failed "to establish 'the possibility' of irreparable injury as a result of the BN's past violation of the ESA." (86) The plaintiffs sought injunctive relief to get BN "to (1) reduce its operating speed around the derailment sites from 25 mph to 15 mph; (2) conduct a feasibility study to determine the possibility of equipping train locomotives with air bags or other bear protective devices; and (3) obtain a permit from the Secretary of Interior authorizing the incidental taking of grizzly bears." (87) The district court declined to issue the injunction and held that the likelihood of future harm had decreased since BN had replaced two affected portions of the track and made improvements to the track design. (88)

On appeal, the Ninth Circuit Court of Appeals considered whether NWF was entitled to injunctive relief for potential future harm to the grizzly bears. The court held that the plaintiffs could establish "harm" if they could "prove that the habitat degradation prevents, or possibly, retards, recovery of the species." (89) The court noted that the ESA does not require a threat of extinction before an injunction may issue because it "would be contrary to the spirit of the stature, whose goal of preserving threatened and endangered species can also be achieved through incremental steps." (90) Despite undisputed past bear mortality and the court's observation that "the operation of a modern railroad in bear country produces some risk to the dwindling population of grizzly bears in the region through which the railroad operates[,]" (91) the court relied on BN's cleanup of the grain spill site and three years without bear mortality. (92)

Although denying the plaintiffs' request for injunction, the court again transcended the individual injury orientation of section 9 and drew its authority from the broader purpose of the ESA. The individual harm case was less than ironclad. Given that BN had "taken" grizzly bears in the past, evidence of direct harm to an individual species member was present, and thus, a tort-style causation analysis would have been proper if the conditions causing the take remained unchanged. BN, however, had upgraded the track to decrease the possibility of future derailment. No bears had died in three years. Thus, the court looked to the likelihood of future harm under a new set of conditions.

Significantly for our purposes, the defendants used expert agency opinion effectively to argue that the bear mortality, no matter how real, was insignificant in a larger context. The court noted the finding of independent experts who believed that "the spills had not caused a significant impact on the grizzly bear habitat in the Northern Continental Divide Grizzly Bear Ecosystem" (93) as "the impacts of the corn spill were of a 'localized nature' and 'cannot be characterized as significant.'" (94) This context apparently made it easier for the court to discount the undisputed evidence of individualized harm--seven dead bears. Like the Palila district court, it circumvented the statutory emphasis on individual harm to make a determination it believed to be consistent with the goal of the ESA.

In Marbled Murrelet v. Pacific Lumber Go., (95) an environmental group brought action under the ESA against the logging company, seeking to enjoin implementation of a timber harvest plan. After an eight-day bench trial and a lengthy fact-specific opinion, the district court found that the marbled murrelet (Brachyrampus marmoratus marmoratus) did, in fact, occupy the proposed timber harvest area, and that Pacific Lumber's implementation of a timber harvest plan would sufficiently "harm" and "harass" the marbled murrelet to constitute a take of the species in violation of the ESA. (96) The court held that a reasonably certain threat of imminent harm to a protected species was sufficient for issuance of an injunction under the ESA. (97) The court permanently enjoined Pacific Lumber from implementing the timber harvest plan. (98)

The court based its decision on the specific facts supporting its finding. The court made reference to the traditional "preponderance of the evidence" standard of review, but did not provide much analysis about what that meant. (99) The court held that the environmental group demonstrated that Pacific Lumber's implementation of the timber harvest plan would sufficiently harm and harass the marbled murrelet to constitute a take of the species in violation of section 9. (100)

In Marbled Murrelet, the court made a detailed, fact-based decision to satisfy the individual in jury orientation of the section 9 take prohibition. The court, however, also took the time to place its ruling in context regarding the Act as a whole. The court noted the significance of the sort of harm at issue for the long-term survival of the species:

   The existing population of the marbled murrelet in the Pacific
   Northwest is known to be declining rapidly.... The two primary
   reasons for this decline are the bird's very low annual reproductive
   potential (1 chick per successful breeding pair), which is
   exacerbated by nest failure due to predation, and the loss of the
   vast majority of the marbled murrelet's old-growth nesting
   habitat. (101)

Logging would not only take birds, it would reduce old-growth habitat and the prospects for the species survival and recovery.

In Forest Conservation Council v. Rosboro Lumber Co. (Rosboro), (102) Forest Conservation Council (FCC) filed a citizen suit under the ESA seeking an injunction to prevent proposed logging in the habitat of a pair of northern spotted owls (Strix occidentalis caurina). FCC lost the case on summary judgment in the district court. (103) The issue on appeal was the scope of the term "harm." Appellee Rosboro Lumber contended "that 'harm' only includes actions that constitute a past or current injury to an endangered or threatened species, or actions that threaten such species with extinction." (104) FCC argued "that 'barre' includes actions that pose an imminent threat of injury to a protected species, including habitat modifications that retard the recovery of such species." (105) The court concluded that "[s]o long as some injury to wildlife occurs, either in the past, present, or future, the injury requirement of the Secretary's new definition would be satisfied," (106) and thus, a showing of an imminent threat of injury to wildlife is within the scope of "harm." (107)

The court held that habitat modification that is reasonably certain to injure an endangered species by impairing its essential behavior patterns satisfied the actual injury requirement and was sufficient to justify a permanent injunction. (108) The court buttressed its holding with rhetoric based on the individual injury orientation of section 9:

   Once a member of an endangered species has been injured, the task of
   preserving that species becomes all the more difficult. As the
   Supreme Court noted, "[e]nvironmental injury, by its nature, can
   seldom be adequately remedied by money damages and is often
   permanent or at least of long duration, i.e., irreparable." ... FCC
   aptly argues that forcing it to wait until after harm has been
   inflicted would render their claims moot before they become
   ripe. (109)

At the same time, like courts before it, the Rosboro court looked beyond the individualized harm to shape its decision to grant an injunction. Citing "Congress' [sic] overriding purpose in enacting the ESA," (110) the court found "[t]he district court's conclusion that the ESA forecloses citizen-suit claims of an imminent threat of harm to protected wildlife ... contrary to the letter and spirit of the statute's purpose--to conserve endangered species." (111)

The take prohibition in section 9 of the ESA made its one and only trip to the United States Supreme Court in 1995. (112) Although significant, the opinions the Court offered fail to resolve the conflict between the individualized in jury focus of section 9 and the species conservation focus of the Act as a whole. In Sweet Home, the plaintiffs, who were allegedly dependent on the forest product industry, challenged FWS's regulatory definition of "harm" in the definition of "take." (113) This was the same regulation central in the palila cases discussed above. There were no facts. The only issue was whether the Secretary exceeded his authority under the ESA by promulgating the regulation. (114)

The majority opinion gave three reasons why the Secretary's interpretation of the word "harm" was reasonable: 1) the "ordinary understanding of the word 'harm' supports it," (115) 2) "the broad purpose of the ESA," (116) and 3) "the provision in the Act's 1982 amendments for issuance of permits for takings that [section] 9(a)(1)(B) would otherwise prohibit, which contemplate takings through habitat destruction." (117)

The more troublesome issues of what might constitute proof of a violation of the regulation were only addressed by Justice O'Connor's concurrence and Justice Scalia's dissent. Justice O'Connor's concurrence focused, at least initially, on harm to individual species members. (118) She employed tort concepts in considering what might constitute a take under section 9. (119) Justice O'Connor urged that a "proximate cause" analysis should be employed in determining whether a proposed activity that destroys habitat of threatened or endangered species is too attenuated for a court to find a take. (120) She declared there was "no indication that Congress, in enacting [section 9], intended to dispense with ordinary principles of proximate causation." (121) O'Connor argued that the word "actually" in the FWS's regulation "invokes principles of proximate causation." (122) O'Connor further concluded that the Ninth Circuit wrongly decided the appeal of the second round of palila cases because the "[d]estruction of the seedlings did not proximately cause actual death or injury to identifiable birds; it merely prevented the regeneration of forest land not currently sustaining actual birds." (123)

However, in a revealing exchange with Justice Scalia, Justice O'Connor came close to transcending the individualized harm standard:

   I do not find it as easy as Justice Scalia does to dismiss the
   notion that significant impairment of breeding injures living
   creatures. To raze the last remaining ground on which the piping
   plover [(Charadrius melodus)] currently breeds, thereby making
   it impossible for any piping plovers to reproduce, would obviously
   injure the population (causing the species' extinction in a
   generation). (124)

Justice O'Connor endeavored to shoe-horn her observation about breeding injury into an individualized harm model, asserting that "by completely preventing breeding, [the action] would also injure the individual living bird, in the same way that sterilizing the creature injures the individual living bird." (125) In return, Justice Scalia mocked:

   Justice O'Connor supposes that an "impairment of breeding"
   intrinsically injures an animal because "to make it impossible for
   an animal to reproduce is to impair its most essential physical
   functions and to render that animal, and its genetic material,
   biologically obsolete." ... This imaginative construction does
   achieve the result of extending "impairment of breeding" to
   individual animals; but only at the expense of also expanding
   "injury" to include elements beyond physical harm to individual
   animals. For surely the only harm to the individual animal from
   impairment of that "essential function" is not the failure of issue
   (which harms only the issue), but the psychic harm of perceiving
   that it will leave this world with no issue (assuming, of course,
   that the animal in question, perhaps an endangered species of slug,
   is capable of such painful sentiments). (126)

Even if one accepts Justice O'Connor's model, there is a slippery slope problem. Extinction in one generation is the "obvious" case. How far does Justice O'Connor's logic lead her toward deemphasizing individual harm in favor of the conservation of the species? What if extinction would take place in rive generations? What if extinction in rive generations were merely a high probability?

Justice O'Connor delegated the business of actually applying some notion of proximate cause in section 9 cases to the lower courts. (127) She declared only that proximate cause "normally eliminates the bizarre," (128) "inject[s] a foreseeability element," (129) and "depends to a great extent on considerations of the fairness of imposing liability for remote consequences." (130)

In truth, proximate cause is a malleable concept of doubtful utility in assessing what constitutes a take under section 9 of the ESA. The analytical tools scientists use to determine the significance of threats or potential threats to species have changed dramatically in the past thirty years. (131) Our knowledge and understanding of species and the critical role habitat plays is still developing. (132) Projects affecting habitat are evaluated on a case-by-case basis, and thus, each species and habitat have different characteristics and threats. What can a general notion of "proximate cause" mean under these circumstances?

If one were determined to apply tort concepts in the ESA context, (133) the only sound basis for applying a policy-oriented concept like proximate cause to the take prohibition would be through explicit consideration of the purpose of the ESA--the conservation of species. Any cause of an injury likely to have a significant effect on the long-term prospects of the species as a whole should be deemed proximate. Many causes that injure individual members of a species through attenuated causal chains, but have no significant effect on the species, could be considered outside the ambit of "proximate cause."

In Loggerhead Turtle v. County Council of Volusia County, Florida (Loggerhead Turtle I), (134) the court evaluated whether artificial beachfront lighting and driving motor vehicles upon the beach constituted a take of sea turtle hatchlings. (135) Volusia County had enacted "a lighting ordinance to regulate public street lights and artificial private lighting along the unincorporated beach areas and in the coastal town of Ponce Inlet." (136) The County's ordinance permitted motor vehicles on the beach from one hour before sunrise to one hour after sunrise. (137) The county also created a conservation zone in which vehicles were generally prohibited. (138)

The case did not turn on whether the lighting ordinance amounted to a take. Rather the question was the appropriate test for a preliminary injunction. The issue of causation arose in the context of issuing the injunction. The plaintiffs claimed that the permitted beach driving caused the death and injury of sea turtles, seeking a preliminary injunction to "prevent vehicular access to the County's beaches during turtle nesting season" (139) and to compel the County to enforce the "'Mode1 Lighting Ordinance for Marine Sea Turtle Protection." (140)

The court, looking primarily to Rosboro and Burlington Northern Railroad, concluded that plaintiffs "seeking a preliminary injunction ... must show: (1) that the wildlife at issue is protected under the [ESA], and (2) that there is a reasonable likelihood that the defendant will commit future violations of the [ESA]." (141) The court noted evidence in the record that "[a]rtificial beachfront lighting significantly increases the incidence of in jury to and mortality of sea turtle hatchlings." (142) The court round that beachfront driving leaves tire ruts that prohibit hatchling from reaching the sea, (143) headlights from nighttime driving disorient hatchlings, (144) and vehicles might run over sea turtle hatchlings or females while they are nesting, or damage the nests themselves. (145) The court concluded that, based on the administrative record, beachfront driving, including driving within the conservation zone, caused harm to the sea turtles. (146) Thus, the court enjoined beach driving. The court, however, declined to issue an injunction compelling the County to enforce Florida's "'Model Lighting Ordinance for Marine Turtle Protection." (147) The court declined to issue the injunction largely because there was insufficient evidence in the record to show that specific lights for which the County was responsible were responsible for harming the sea turtles. (148)

The district court opinion in Loggerhead Turtle I continued the incorporation of tort doctrine into ESA law. The court's opinion focuses on the presence or absence of a culpable act by the defendant and a causal link between that act and the harm done to individual members of the species. Although the test for issuance of a preliminary injunction requires the court to consider the "public interest," Loggerhead Turtle I includes no references to the effect of the court's ruling on the fate of the protected turtle species (or even the effect on the turtle population habituated to nesting on Volusia County's beaches) and almost no reference to the purpose of the ESA. The court noted, in passing, that "Volusia County is the sight [sic] of 2.8% of Loggerhead [sea turtle (Caretta caretta)] nesting activity in the State of Florida, and 3.1% of Green sea turtle [(Chelonia mydas)] nesting activity[,]" (149) but attached no significance to this fact.

In United States v. Town of Plymouth, (150) FWS sought a preliminary injunction pursuant to the ESA to prohibit the town from allowing off-road vehicles (ORVs) to drive on the beach unless appropriate precautions were taken to protect piping plovers. (151) The court held that "[a] movant can make a showing of actual harm by proving that significant modification or damage to the habitat of an endangered or threatened species is likely to occur so as to injure that species." (152) In its proof of harm or causation analysis, the court applied an individualized "actual harm" standard. The court looked to several specific instances of actual killing of birds and destruction of nests in the record to find that FWS proved that ORV access to the Plymouth Long Beach had actually harmed piping plovers and would continue to cause harm to the species. (153)

In contrast to Loggerhead Turtle I, the Town of Plymouth court noted the purpose of the ESA and compared the injunction issued in TVA v. Hill to the case before the court. The court likened the ability of a 2.5 inch piping plover to "stop a behemoth ORV if the government proves a taking under the ESA" to a 3-inch snail darter (Percina tanasi) stopping "a $100 million dam," (154) as "the explicit provisions of the [ESA] require precisely that result." (150) At the same time, focusing on individual harm, the court held that to be entitled to injunctive relief, FWS "must demonstrate that the Town of Plymouth has caused, through action or inaction, the illegal taking of the piping plover on Plymouth Long Beach or that future takes will occur if management of the beach continues on its present course." (156) The court found that the Town of Plymouth stood apart from all private and municipally owned beaches in Massachusetts and other New England states in its failure to manage ORV use. (157) The court granted FWS injunctive relief and prohibited ORVs from traveling on certain sections of the Plymouth Long Beach. (158)

While the holding in Town of Plymouth was better for piping plovers than Loggerhead Turtle I was for endangered turtles, it also elevated largely unexamined notions drawn from tort doctrine over the conservation of species. One comes away from the case with the impression that Plymouth was found in violation and an injunction issued largely because Plymouth had failed to meet some generally recognized standard of care for beach management in the State of Massachusetts.

In 2000, in Loggerhead Turtle v. County Council of Volusia County, Florida (Loggerhead Turtle II), (159) the court considered whether Volusia County's adoption of an inadequate beach lighting ordinance was the "proximate cause" of sea turtle take. The court did not engage in a traditional causation analysis, but instead ruled that the county was not responsible under section 9 for the inadequacies of its plan. (160) The court declared that the ESA "requires no affirmative conservation action by states and local governments" (161) and a local regulation that does not conflict with a federal regulation is valid. (162) Thus, because "the Secretary has not promulgated a lighting ordinance to which [Volusia] County's can be compared[,]" (163) the County is not responsible for the take of sea turtles. (164) Again, tort notions of "standard of care" and "failure of a duty to rescue" eclipse considerations of species conservation.

In Defenders of Wildlife v. Bernal, (165) environmental groups brought action under the ESA to enjoin construction of a school complex on property that contained potential habitat for endangered cactus ferruginous pygmy-owls (Glaucidium brasilianum cactorum). Bernal is in many ways the mirror image of Marbled Murrelet. Both cases focus on the proof of a take for issuance of an injunction. In both cases the question of proof is relatively unclouded by administrative determinations. In Marbled Murrelet, the plaintiffs prevail on the facts. In Bernal, the plaintiffs fail.

To prevail in this action, the plaintiffs had to prove by a preponderance of the evidence that the school district's actions would result in an unlawful take of a cactus ferruginous pygmy-owl. (166) To obtain an injunction the plaintiffs needed to establish that future harm was "reasonably certain." (167) After a three-day bench trial, the district court concluded that the evidence supported a finding that an owl or owls used a portion of the property at issue, but a portion that the defendants did not intend to develop. (168) The court concluded owls would not be taken. (169) The circuit court determined that the district judge's findings were not clearly erroneous and affirmed. (170) The Bernal court made a factual determination based on consideration of individualized harm without considering the long-term effects of the action on the conservation of the tiny Arizona population of cactus ferruginous pygmy-owls. (171)

This aspect of the recent history of section 9 is more than slightly distressing to those of us who wait for section 9 to assume its rightful place as a prominent tool to further the purpose of the ESA. Developments since Sweet Home seem to be drawing section 9 farther and farther from the conservation of species. Following the Supreme Court's leadership, courts in the past few years seem more and more inclined to employ unexamined tort doctrine and ignore the effect of their analysis on the fate of the species Congress intended the ESA to protect.

III. UGLY DUCKLING 

Alas, its focus on individualized harm and the tort concepts imported with it are not the only impediments to the development of the section 9 take prohibition. In 1973, Congress hatched the section 9 take prohibition in a nest with a clutch of other legal mandates--consultation under section 7, (172) listing determinations under section 4, (173) and (late comers) the critical habitat determinations (174) and issuance of incidental take permits under sections 10 (175) and 7(b)(4). (176) All of these other ESA sections are primarily--if not entirely--creatures of administrative law.

Creatures of administrative law? What do we mean by that? We mean that, under the other prominent provisions of the ESA, the initial determinations of how to best further the goals of the ESA are made by the "Secretary"--FWS or National Marine Fisheries Service. (177) Those decisions--listing determinations, jeopardy biological opinions, issuance of incidental take permits, and the like are regularly challenged in court. The frame of reference for the court challenge, however, always remains the initial administrative determination and the information that supports it.

On the other hand, by its terms, section 9 affords the Secretary no opportunity to make an initial decision and no opportunity to gather relevant information. The take has happened or it has not. The decision is the court's to make. Section 9 is unlike the other chicks in the nest.

Most endangered species lawyers are, at heart, administrative lawyers, practiced at establishing that the government did or did not make the right decision based on the information before it, and not traditional trial lawyers, practiced at proving that a particular thing is likely enough to be true to satisfy a judicially-imposed burden of proof. If the take prohibition is ever going to become a more effective tool for protecting species and a less terrifyingly vague directive to habitat-controlling landowners, this must change.

In section 9 cases, ESA lawyers express their administrative law bias by readily accepting administrative decision making in place of judicial fact finding. Using administrative determinations relieves courts of the need to articulate the elements of fact finding under section 9.

Defenders of Wildlife v. Environmental Protection Agency (Defenders of Wildlife) (178) grew out of a long-standing controversy over the approval by the Environmental Protection Agency (EPA) of above-ground use of a variety of pesticides containing strychnine or strychnine sulfate. (179) As early as 1979, FWS had identified 18 endangered species that were "likely to be jeopardized" in violation of section 7 of the ESA by continued above-ground use of strychnine. (180) Yet above-ground use of strychnine continued as EPA slowly proceeded through the process required by the Federal, Insecticide, Fungicide, and Rodenticide Act (FIFRA) (181) for cancellation of pesticide registration. (182) In 1983, EPA announced its intent to limit, but not eliminate, above-ground strychnine use. (183) In 1986, two environmental groups initiated a lawsuit to end the above-ground use of strychnine. (184) The plaintiffs submitted a "non-target kill book" to EPA demonstrating that members of various protected species were dying as a result of strychnine use. (185) EPA did not challenge the information in the non-target kill book. (186)

In April 1988, the United States District Court for the District of Minnesota found that EPA's continued registration of strychnine for aboveground use constituted take under section 9 of the ESA. (187) In August 1989, the Eighth Circuit Court of Appeals affirmed the district court ruling embracing an expansive notion of causation under section 9. (188) The court effectively held that EPA registration of a pesticide "caused" the death of protected species members. (189)

The case involved direct harm, through poisoning, to the protected species, and thus, a traditional causation analysis under tort law was possible. The trail of causation, however, did not lead directly to EPA. The court found EPA liable for take of endangered species under the ESA because strychnine bait "was critical to the resulting poisonings of endangered species," (190) and thus, "[t]he relationship between the registration decision and the deaths of endangered species is clear." (191) It is important to realize how much the trail of proof was transformed by the availability of the defendant's own, uncontested, non-target kill book. The non-target kill book contained evidence of past direct takes and established that the defendant was aware of them. The court did not need to address the probability component of a future action or intent.

In House v. United States Forest Service, (192) individuals and environmental groups brought suit against the Forest Service to prevent a proposed timber sale in the Daniel Boone National Forest. (193) The plaintiffs sought a permanent injunction to prohibit the Forest Service from offering timber for sale on 199 acres in the habitat of the endangered Indiana bat (Myotis sodalis). (194) The plaintiffs asserted that the harm to the habitat would occur in the form of the destruction of the forest canopy which would: 1) destroy the Indiana bat's foraging habitat; and 2) destroy potential roosts. (195) As part of the logging project, FWS prepared a biological evaluation, which evaluated the effects of the project on threatened or endangered species. (196) FWS determined that the timber sale would not adversely affect the bats. (197) Rather than rely on independent fact finding, the court determined that the scientific evidence in the administrative record supported an injunction. (198)

Embracing the forms of administrative law, the court treated the case as a record review case under principles of administrative law, issuing an injunction based on inadequacies in the Forest Service's studies of the effects of logging on bat habitat. (199) Like the Supreme Court's decisions in TVA v. Hill and Sweet Home, the court evaluated the administrative record in terms of consistency with the purpose of the ESA. (200) The defendants argued that the ESA allowed them to "balance their obligations to conserve with competing agency interests." (201) The court disagreed and determined that "the ESA mandates that defendants place conservation above any of the agency's competing interests." (202)

In Strahan v. Coxe, (203) Richard Max Strahan brought suit against Massachusetts officials for allegedly violating the ESA and the Marine Mammal Protection Act by issuing licenses and permits authorizing gillnet and lobster pot fishing. (204) The case was grounded on undisputed evidence from the National Marine Fisheries Service and the State of Massachusetts that northern right whales (Balaena glacialis) had been entangled in fixed fishing gear in Massachusetts waters. (205) As in Defenders of Wildlife v. Environmental Protection Agency, the court determined that the state authorized commercial fishing operations to use gillnets and lobster pots in specifically the manner that is likely to cause a take within the meaning of the ESA. (206)

The defendant in Strahan specifically raised the issued of "proximate cause" and argued that the state's licensure of permits is too attenuated to constitute a take. (207) The defendants compared a permit by the state to gillnet and lobster pot fish to a license to drive an automobile. (208) The defendants argued that the state's licensure of "a generally permitted activity does not cause the taking any more than its licensure of automobiles and drivers solicits or causes federal crimes, even though automobiles it licenses are surely used to violate federal ... laws." (209) The court determined that the manner of fishing permitted by the Commonwealth did not involve a superceding intervening cause as it is not possible to use gillnets and lobster pots without taking northern right whales in violation of the ESA. (210)

The court found that the causal link between the state's conduct and the species in jury, while indirect, was not so removed that it extended outside the realm of causation as understood in common law. Because the type of injury involved direct harm to individual species members, the court's tort analysis of the case was not misplaced since the type of take was in line with the traditional notion of take from wildlife law (i.e., to hunt, capture, or kill). The court held that the state is liable if it issued a permit causing a take and enjoined Massachusetts from issuing permits. (211) While significant in illuminating the analysis of causation, the underlying in jury to various marine species had been documented by the National Marine Fisheries Service and was not at issue. Again, administrative determinations established the elements of a take.

In Bensman v. United States Forest Service, (212) the plaintiffs argued that the Forest Service had violated the ESA by approving a timber sale which would harm or harass the Indiana bat, thus constituting a take. (213) On Match 1, 1997, a windstorm blew down thousands of trees within a twelve-mile corridor, approximately one mile wide. (214) After public comment, "the Forest Service determined that this timber should be salvaged from areas not within the wilderness area." (215) The Forest Service contracted with private contractors to remove trees which were "blown down, leaning, or uprooted." (216) The area near this salvage sale, however, is also a summer home to the endangered Indiana bat. (217) The court, once again transforming the take issue into administrative review, determined that the Forest Service performed little research to determine the exact habitat of the bat, and thus, their decision was arbitrary and capricious. (218)

The court stated that the "prohibition against taking is broadly construed to prohibit nearly any activity which might adversely affect protected species." (219) The court did not use tort language to evaluate the causal link between the Forest Service's approval of the timber salvage sale. Rather, the court effectively used the federal agency administrative process regarding the effect of logging on Indiana bat habitat to shift the burden of proof for the take claim from the plaintiffs to the agency. (220) Interestingly, the court cited Palila for the proposition that "[h]abitat destruction that prevents the recovery of the species by affecting essential behavioral patters causes actual injury to the species and effects a taking under section 9 of the Act." (221) Although not explicitly stated, the court in essence looked to the second round of palila litigation for the purpose of species recovery under the ESA--to bring species to the point where they no longer require protection under the Act. The court issued an injunction prohibiting the salvage sale. (222) Although the Administrative Procedure Act's "arbitrary and capricious" standard of review grants deference to agency decision making, it also imposes an obligation on the agency to justify its conduct in the first instance. (223) Here, the court held that the agency failed to meets its obligation.

Arizona Cattle Growers' Ass'n v. United States Fish & Wildlife Service (ACGA I) (224) significantly increased the importance of establishing the elements of a take without significantly illuminating what those elements were. The plaintiff challenged FWS's issuance of incidental take statements (ITSs), which precluded cattle grazing in specific areas because potential habitat modification might harm several listed species, including the cactus ferruginous pygmy-owl and the razorback suckers (Xyrauchen texanus). (225) The plaintiff claimed that FWS's determination that livestock "takes" members of protected species was arbitrary and capricious. (226) FWS issued ITSs based on its belief that uncurtailed grazing activities would "harm" listed species within the statutory definition of take. (227)

The court, relying on Sweet Home, disagreed, noting that the language of the regulation states that "harm" includes habitat modification or degradation only if it results in actual injury or death to wildlife. (228) The court focused heavily on the fact that evidence was lacking that listed species existed in the project area and concluded that because no listed species existed in the project area, FWS was unable to show that habitat modification would "actually kill or injure wildlife." (229) The court also disagreed with FWS's claim that the plaintiff had the burden to show that no listed species existed in the project area. (230)

Because FWS was unable to provide evidence indicating that the listed species even existed on the allotments, they could not show that the habitat modification would actually kill or injure any endangered species. Thus, the issuance of the ITSs constituted an arbitrary and capricious action and was set aside by the court. (231) Since the court round take to be impossible because no species were present, the court was able to avoid any type of causation or tort analysis to evaluate whether a take had actually occurred. Furthermore, even though habitat may be important to species recovery, the court did not look to the purpose of the ESA, which is to allow species to recover to the point where they no longer require protection under the Act. (232) Here, and in the later Arizona Cattle Growers cases, the evidence necessary to prove take becomes conflated with the deferential administrative standard of review applied to FWS's decision to issue an ITS.

In Arizona Cattle Growers' Ass'n v. United States Fish & Wildlife (ACGA II), (233) the cattle growers challenged FWS's issuance of ITSs, which precluded cattle grazing in specific areas because potential habitat modification might harm listed species. (234) "FWS examined 962 allotments, determining that grazing would have no effect on listed species for 619 of those allotments and cause no adverse effects for 321 of the remaining allotments, leaving 22 allotments." (235) Each of the allotments was approximately 30,000 acres, but several of them were considerably larger. (236)

The court determined that Congress intended one standard for take within both sections 7(b)(4) and 9 and that if the sole purpose of the ITS is to provide shelter from section 9 penalties, it would be nonsensical to require the issuance of an ITS when no take cognizable under section 9 would occur. (237) The court looked to Burlington Northern Railroad for the proposition that "habitat degradation that merely retards recovery of a depleted species" (238) does not constitute harm, unless the plaintiff shows the proposed action significantly impairs the breeding or feeding habits of the species. (239)

Yet, in its analysis of the Cow Flat Allotment, the court upheld FWS's issuance of an ITS, relying on the analysis in a biological opinion (BO) as a "reasonable basis" for the agency's assertion that take was likely. (240) "Having determined that loach minnow [(Tiaroga cobitis)] exist on the allotment, FWS determined that the loach minnow are vulnerable to direct harms resulting from cattle crossings, such as trampling." (241) "Moreover, because the fish use the spaces between large substrates for resting and spawning, sedimentation resulting from grazing in pastures that settles in these spaces can adversely affect loach minnow habitat." (242) The BO determined that "this indirect effect, along with the direct crushing of loach minnow eggs and the reduction in food availability, will result in take of the loach minnow." (243) "The [ITS], however, does not directly quantify the incidental takings of loach minnow and determines that such takings 'will be difficult to detect.'" (244)

   We agree with the district court that the issuance of the Cow Flat
   [ITS] was not arbitrary and capricious. Unlike the other allotments
   in question, [FWS] provided evidence that the listed species exist
   on the land in question and that the cattle have access to the
   endangered species' habitat. Accordingly, [FWS] could reasonably
   conclude that the loach minnow could be harmed when the livestock
   entered the river. (245)

The record before the court indicated that several species, including the razorback sucker and the cactus ferruginous pygmy-owl, were atone time present on the project area but are no longer present. (246) The court, however, did not look to the purpose of recovery under the ESA, but followed the district court's requirement for species to be present in the project area as a necessary element of a take analysis. (247)

Administrative law bias can also shape the arguments lawyers make. In American Bald Eagle v. Bhatti, (248) citizen groups filed action to enjoin limited deer hunting on a state reservation based on alleged risk to bald eagles. (249) The primary issue was whether allowing deer hunting on a Massachusetts reservation constituted a prohibited take of bald eagles (Haliaeetus leucocephalus). (250) Lead shot in deer carcasses can poison eagles who feed on them. (251) The plaintiffs claimed that "some of the deer shot by hunters would not be recovered but would die within the feeding area of the Quabbin bald eagles[.]" (252) The "bald eagles would feed on these unrecovered deer carcasses, consume a portion of the lead in the deer, and be harmed by the lead." (253)

If the plaintiffs' attorneys had evidence of direct harm to an individual species member (i.e., a dead bald eagle in the habitat area), a causation analysis would have been appropriate to determine if the issuance of hunting permits by Massachusetts was killing bald eagles. The court noted that even though bald eagles can be harmed by ingesting lead, "[t]here is no evidence that any eagles at [the reservation] actually ingested lead slug or that any eagles ate deer carrion containing lead slug." (254) Attorneys for the plaintiffs in Bhatti, however, likened the appropriate burden of proof for a take to an administrative risk analysis of the sort common in administrative environmental law. (255) The court was unconvinced:

   [Plaintiffs] ask that we establish a numerical standard for
   determining which actions constitute a "taking" of an endangered
   species. They would have us establish that a one in a million risk
   of harm is sufficient to trigger the protections of the ESA....
   Rather than convince us to adopt a restrictive numerical standard
   for harm under the ESA, [plaintiffs'] analogies to other regulatory
   regimes demonstrate that the exact numerical standard for
   permissible harm or risk of harm varies according to the context....
   [Plaintiffs] have presented no studies that have shown that the use
   of lead sings in deer hunts has been scientifically proven to cause
   harm to bald eagles. (256)

The plaintiffs' attorneys endeavored, without success, to squeeze section 9 into an administrative form. The Bhatti court, having rejected the administrative approach, held that the proper standard for establishing a take under the ESA was "actual harm." (257) Since appellants had not shown that bald eagles had "ingested lead slugs nor fragments thereof during past hunts or will ingest lead slugs or fragments thereof during future hunts," (258) the court determined it had "no reason to consider whether the ingestion of lead slugs or fragments thereof would lead to a disturbance of the eagles' behavior pattern to the extent that it would amount to 'harassment' of the bald eagles." (259) The court specifically rejected any proof based on "potential" harm alone as foundation for an injunction. (260) The court used the rhetoric of individualized harm to avoid the broader issue of the deer hunts' effect on the conservation of bald eagles.

In American Rivers v. United States Army Corps of Engineers, (261) American Rivers sued the Army Corps of Engineers (Corps) and FWS, claiming that the manner in which the Corps operated the dam and reservoir system on the Missouri River had adversely affected the least tern (Sterna antillarum), the Great Plains piping plover, and the pallid sturgeon (Seaphirhynchus albus), all of which are protected under the ESA. (262) FWS did not dispute "harm" to protected species. FWS stated that water releases under the operating plan "would lead to 'inundation after nest initiation' with a predicted loss of up to 121 terns and plovers." (263) Because the evidence of future harm was not disputed, the court was able to find, rather easily, that "the Corps' take of terns and plover is imminent and thus actionable." (264)

Still the court managed to blend section 9 proof with agency obligations under section 7, stating:

   Moreover, the undisputed nature of the harm to the three protected
   species, as well as the degradation of their habitat, that will
   occur from the Corps' management of river flow under the revised
   [operating plan] also demonstrates that the Corps is likely to
   violate its affirmative obligation under ESA Section 7 to "insure"
   that its actions will not harm the species. (265)

IV. SIGNIFICANCE AND PROBABILITY

As with any form of injury, the issues regarding injury to a protected species can be divided into those having to do with "significance"--the likelihood that the harm will be dire and have long term consequences--and "probability"--the likelihood that the harm will actually take place. The prospect of nuclear war is high in significance and, currently, relatively low in probability. The prospects of dandruff and traffic delays are high in probability and relatively low in significance.

The emphasis on in jury to individual species members under the take prohibition can confuse this analysis. In theory, anything that "actually injures," no matter how insignificant to the conservation of species as a whole, is a violation of the take prohibition. In theory, any possible (but not demonstrably imminent) harm is not, no matter how significant the possibility might be. Running over a red-cockaded woodpecker (Picoides borealis) with a truck would be a violation of the ESA. Introducing exotic rodents carrying plague into the habitat of the Preble's meadow jumping mouse (Zapus hudsonius preblei) would not be.

This emphasis on individualized harm does not serve the purpose of the ESA. Fortunately, as we have seen, some courts see fit to look beyond the emphasis on individual in jury and place it in a broader context. Unfortunately, some courts--following the musing of Justice O'Connor in her Sweet Home concurrence do not.

To make the take prohibition an effective tool to further the purpose of the ESA (outside the criminal context), we must deemphasize the "dead bird" approach to take and the tort concepts that travel with it. Once we reject the "dead bird," individualized harm standard for take, then we can consider what the actual standard should be. The actual standard appears to be something we might call "significant take." Significance must be tied to the long-term prospects of out hypothetical dead bird and to the population of which it is part. If a dead species member is not a sufficient basis to prevail on a take claim, neither is it a necessary element.

The perspective of conservation biologists offers a model of species preservation problems, what we have previously called the "probabilities model." (266) The conceptual underpinning of the probabilities model is that the survival of any species over time is a matter of chance and that the probabilities are primarily a function of the population and distribution of the species. A specific detrimental action or project may affect the probabilities of species survival and even drive a species to extinction, but its significance can only be understood in terms of the size and distribution of the population it affects.

"Bad luck" comes to every species whether it is protected by the ESA or not. The only effective way to increase the chances that a species will survive its share of bad luck is to help it maintain or regain a sufficient population and distribution. A recovery-oriented approach to the ESA would give federal agencies the authority to take prospective action to increase the chances of survival of protected species. Merely preventing species from disappearing as a result of a particular individualized harm addresses only one part of a larger problem. To afford species a decent chance of long-term survival, regulators must develop a program to "recover" species to the point at which they are sufficiently numerous and sufficiently widespread to survive one of the catastrophic events which are an inevitable part of life on this planet. This is what Congress intended in its definition of conservation.

The Palila court was right in enjoining long-term injury to recovery, even in the absence of an evidence of individualized injury. The concept of recovery provides the link between the take prohibition and the "probabilities model" based on the observations of conservation biologists, particularly in the "breeding" context by limiting the reach of the take prohibition to only those breeding disruptions which would affect the recovery prospects of the species. Recognition of that relationship would further the purpose of the ESA. If recovery--or at least significant progress toward recovery--is an essential element in the process of avoiding extinction, then actions that prevent recovery significantly increase the probability of extinction and violate the substantive provisions of the ESA intended to prevent extinction. In other words, recovery injury can be significant injury and, therefore, significant take.

V. CONCLUSION

Over the past 15 years--half the life of the Endangered Species Act--courts have grappled unsuccessfully with the proper role of the section 9 take prohibition. The current confusion arises from many sources. Two are embedded in the language and history of the Act itself. First, courts have responded inconsistently to the tension between the emphasis on individual injury in section 9 and the emphasis on species conservation in the Act as a whole. As a result, courts have applied varying standards in determining whether a past or proposed activity constitutes a take under section 9. Second, unlike other significant provisions of the Act, which require courts to fulfill a traditional administrative law review function, section 9 requires courts to evaluate evidence of past and probability of future injury to species in order to make a finding as to whether a take occurred. Plaintiffs' attorneys, experienced in challenging agency findings, have attempted to squeeze section 9 violations into an administrative law rubric.

These consistent sources of confusion have contributed to the apparently arrested development of section 9 jurisprudence. They are, in part, responsible for the fact that section 9 has not become the powerful conservation tool Congress intended it to be.

There is a way out of this mess. The prohibition against injury to individual species members embodied in section 9 exists as an instrument to achieve the Endangered Species Act's goal of species conservation. The primary threat to species survival and the primary limiting factor for species recovery is loss of suitable habitat. Therefore, section 9 cannot be limited to protecting individual species members. As the percentage increase in land development in the United States continues to far exceed its population growth, more and more actual and potential species habitat disappears. Section 9 must protect habitat essential for species conservation.

To make sense of section 9, courts must consider both the evidence of past and likelihood of future injury to individual species members and the effect of that injury on the population of which that member is a part. A coherent application of section 9 starts and ends with courts interpreting it in accordance with the purpose of the ESA--to protect species and the ecosystems upon which they depend in order to allow species to recover to the point where they no longer require protection under the Act.

(1) EDWARD O. WILSON, THE FUTURE OF LIFE 99 (2002). The rate of extinction is "catastrophically high, somewhere between one thousand and ten thousand times the rate before human beings began to exert a significant pressure on the environment." Id.

(2) Id. at 101. Biologists use several methods to estimate the rate of species extinction, which consist of successive approximations utilizing "multiple approaches and trial-and-error measurements." Id. See Nigel E. Stork, Measuring Global Biodiversity and Its Decline, in BIODIVERSITY II, UNDERSTANDING AND PROTECTING OUR BIOLOGICAL RESOURCES 47 (Marjorie L. Reaka-Kudla et al. eds., 1997) ("[A]lmost nothing is known of the distribution and threatened status of most organisms. A global estimate of, for example, 10 million species of all organisms would suggest that nothing is known of the distribution of 86% of species, 7% are known from just one locality, only 7% are known from more than one locality, and the threat of extinction is known for less than 0.5%.").

(3) FRANZ J. BROSWIMMER, ECOCIDE: A SHORT HISTORY OF THE MASS EXTINCTION OF SPECIES 1 (2002). The current rate of extinction is comparable only to three massive extinctions. The first took place "on land and in shallow water environments some 250 million years ago, marking the close of the Permian period." Id. at 1. Paleontologists believe the extinction was caused by a slow change in climate and sea level that occurred "when forces of continental drift caused the Earth's great continents to merge together slowly into a single, gigantic super-continent." Id. The second major extinction took place about 200 million years ago. Id. at 2. "The two main causes are most likely a 1- to 5-mile-wide meteor colliding with the Earth, leaving a 70-mile-wide crater in Quebec, and the eruption of great lava flows beneath what are now the jungles of the Amazon River valley." Id. "The third great mass extinction took place 65 million years ago, annihilating the terrestrial dinosaurs along with hundreds of thousands of other land and aquatic species." Id. It ended "when a giant, 6-mile-wide asteroid or cornet crashed into the surface of the Earth near the Yucatan peninsula." Id.

(4) Id. at 4. Human impact on the global biosphere is unprecedented. The devastating effect includes "worldwide disruption of biochemical cycles, rapid climate change, massive soil erosion, extensive desertification, and the unchecked release of synthetic toxins and genetically modified organism." Id.

(5) Tenn. Valley Auth. v. Hill, 437 U.S. 153, 184 (1978).

(6) Endangered Species Act of 1973, 16 U.S.C. [subsection] 1531-1544 (2000).

(7) H.R. REP. NO. 93412, at 5 (1973).

(8) 16 U.S.C. [section] 1531(b) (2000).

(9) Id. [section] 1532(3).

(10) See generally Federico Cheever, The Road to Recovery: A New Way of Thinking About the Endangered Species Act, 23 ECOLOGY L.Q. 1 (1996); accord Sierra Club v. United States Fish & Wildlife Serv., 245 F.3d 434 (5th Cir. 2001) (holding that critical habitat outside of area currently occupied by protected species should be set aside for both the survival and recovery of the species).

(11) 16 U.S.C. [section] 1538 (2000).

(12) Id. [section] 1538(a)(1)(B)-(C).

(13) Id. [section] 1532(13).

(14) Id. [section] 1532(19).

(15) S. REP. No. 93-307, at 7 (1973), reprinted in 1973 U.S.C.C.A.N. 2989, 2995.

(16) 50 C.F.R. [section] 17.3 (2004).

(17) Id. In 1999, the National Marine Fisheries Service (NMFS) (now NOAA Fisheries) defined "harm" in a way consistent with established FWS precedent. Endangered and Threatened Wildlife and Plants; Definition of Harm, 64 Fed. Reg. 60,727 (Nov. 8, 1999).

(18) 515 U.S. 687, 708 (1995).

(19) Id at 699.

(20) Sec Nat'l Ass'n of Home Builders v. Babbitt, 130 F.3d 1041, 1057 (D.C. Cit. 1997) (holding that section 9(a)(1) of the ESA is constitutional under the Commerce Clause). Plaintiff brought suit claiming that Congress exceeded its power under the Commerce Clause in its application of section 9(a)(1) to the Delhi Sands flower-loving fly (Rhaphiomidas terminatus abdominalis). Id. at 1043. The court held that section 9 is within Congress's power, and thus, FWS's application of section 9 to the fly was constitutional. Id. at 1057. The court offered two justifications under the test outlined in United States v. Lopez, 514 U.S. 549 (1995). First, Congress's power to regulate the channels of interstate commerce provides justification for section 9 because 1) the take prohibition is necessary to allow the government to regulate the transportation of endangered species, and 2) prohibiting illegal take of endangered species is within Congress's authority to "keep the channels of interstate commerce free from immoral and injurious uses." Nat'l Ass'n of Home Builders v. Babbitt, 130 F.3d at 1046 (quoting Heart of Atlanta Motel Inc. v. United States, 379 U.S. 241, 256 (1964)). Secondly, the court held that section 9 affects interstate commerce because it 1) "prevents the destruction of biodiversity and thereby protects the current and future interstate commerce that relies upon it[,]" and 2) "controls adverse effects of interstate competition." Id. at 1052. In its discussion of the importance of biodiversity, the court recognized that the loss of species is so widespread that "approximately 521 of the 1082 species in the United States currently designated as threatened or endangered are found in only one state." Id.

(21) See Paul Boudreaux, Understanding Take in the Endangered Species Act, 34 ARIZ. ST. L.J. 733, 762 (2002) (noting the law's shortcoming in providing concrete standards for the burden of proof.) "Which standard should apply in ESA take cases? Remarkably, there has been little analysis of this essential variable in the cases, and little attention paid to the standard of proof issue in scholarly analysis." Id.

(22) The biological definition of "species" is fairly broad. Generally, it is defined as "a population of organisms whose members are able to interbreed freely under natural circumstances." SYLVIA A. EARLE, SEA CHANGE: A MESSAGE OF THE OCEANS 202 (1995). See also EDWARD O. WILSON, THE DIVERSITY OF LIFE 38 (1992) (using the same definition). Congress has defined the word in terms of "species," "subspecies," and "distinct population segments." For example, the Wild Bird Conservation Act defines species as "any species, any subspecies, or any distinct population segment of a species or subspecies, and includes hybrids of any species or subspecies." 10 U.S.C. [section] 4903(7)(A)-(B) (2000). Under the Endangered Species Act, "species" includes "any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature." 16 U.S.C. [section] 1532(16) (2000).

(23) S. REP. No. 93-307, at 1 (1973), reprinted in 1973 U.S.C.C.A.N. 2989 (emphasis added).

(24) President Nixon's Statement on Signing the Endangered Species Act of 1973, 374 PUB. PAPERS 1027, 1027-28 (Dec. 28, 1973).

(25) "Species" is defined in terms of "populations" and is restricted to vertebrates, which limits the species, subspecies, or variety of flora or fauna that can be listed under the Act. 16 U.S.C. [section] 1532(16) (2000).

(26) Id at [section] 1533(a)(1)(A)-(E) (emphasis added).

(27) Sierra Club v. United States Fish & Wildlife Serv., 245 F.3d 434, 445 (5th Cit. 2001) (holding that critical habitat outside of area currently occupied by species should be set aside for species' survival and recovery).

(28) 16 U.S.C. [section] 1533(f) (2000). As of February 29, 2004, 1,816 plant and animal species are listed as threatened or endangered, and 1,018 species have approved recovery plans. U.S. FISH & WILDLIFE SERV., SUMMARY OF LISTED SPECIES: SPECIES AND RECOVERY PLANS AS OF 2/29/2004, at http://ecos.fws.gov/tess_public /TESSBoxscore?format=display&type=archive&sysdate=2/29/2004.

(29) 16 U.S.C. [section] 1536(a)(2) (2000).

(30) Id. [section] 1539. Sec Nat'l Wildlife Fed'n v. Babbitt, 128 F. Supp. 2d 1274, 1300 (E.D. Cal. 2000) (noting that the ESA requires consideration of the "best scientific and commercial data available" in determining the validity of a habitat conservation plan.).

(31) 50 C.F.R. [section] 17.3 (2004).

(32) Justice Scalia argued that the statutory construction of the ESA does not accord with injury to a species' populations, but rather the Act is limited to injury of an individual species member. He argued that "harm" in the definition of "take" has no legal force of its own as "'harm' is merely one of 10 prohibitory words in [section] 1532(19), and the other 9 fit the ordinary meaning of 'take' perfectly." Sweet Home, 515 U.S. 687, 729 (1995) (Scalia, J., dissenting). Justice Scalia considered "take" within the meaning of the Act to comport with traditional notions of "take" in federal wildlife law. Id. at 717 (Scalia, J., dissenting). Finally, Justice Scalia specifically rejected the argument for evaluating FWS's regulation against the purpose of the Act: "I thought we had renounced the vice of 'simplistically ... assum[ing] that whatever furthers the statue's primary objective must be the law.'" Id. at 726 (Scalia, J., dissenting) (quoting Rodriguez v. United States, 480 U.S. 522, 526 (1987)). "'The Act must do everything necessary to achieve its broad purpose' is the slogan of the enthusiast, not the analytical tool of the arbiter." Id. (Scalia, J., dissenting).

(33) Thomas Lund, Nineteenth Century Wildlife Law: A Case Study of Elite Influence, 33 ARIZ. ST. L.J. 935, 940 (2001); Dale D. Goble and Eric T. Freyfogle, Wildlife Law: A Coming of Age, 33 Envtl. L. Rep. (Envtl. L. Inst.) 10,132, 10,132 (2003); Dean Lueck, The Economic Nature of Wildlife Law, 18 J. LEGAL STUD. 291, 292-99 (1989); Dean Lueck, Property Rights and the Economic Logic of Wildlife Institutions, 35 NAT. RESOURCES J. 625, 651 (1995).

(34) 16 U.S.C. [section] 701 (2000).

(35) 16 U.S.C. [subsection] 703-712 (2000).

(36) 16 U.S.C. [subsection] 668-668d (2000).

(37) There is, however, another series of federal wildlife laws dealing with habitat acquisition. Federal Aid in Wildlife Restoration Act ("Pittman-Robertson Act"), 16 U.S.C. [subsection] 669-669i (2000) (providing federal aid to states for the management and restoration of wildlife); Federal Aid in Sport Fish Restoration Act ("Dingell-Johnson Act'), 16 U.S.C. [subsection] 777-7771 (2000) (providing financial assistance for state fish restoration and management projects); Land and Water Conservation Fund Act of 1965, 16 U.S.C. [subsection] 46014 to 4601-11 (2000) (establishing a fund that subsidizes state and federal land acquisitions and waters for recreational and conservation purposes); Fish and Wildlife Conservation Act of 1980, 16 U.S.C. [subsection] 2901-2911 (2000) (authorizing financial and technical assistance to states for development, revision, and implementation of conservation programs for nongame fish and wildlife); Migratory Bird Hunting and Conservation Stamp Act ("Duck Stamp Act"), 16 U.S.C. [subsection] 718-718j (2000) (requiring waterfowl hunters 16 years of age and older to purchase a federal hunting stamp, the revenue from which is deposited into the Migratory Bird Conservation Fund).

(38) See United States v. Reese, 27 F. Supp. 833, 836 (W.D. Tenn. 1939) (convicting defendants of baiting and killing mourning doves (Zenaida macoura) in violation of the Migratory Bird Treaty Act); Cochrane v. United States, 92 F.2d 623, 624 (7th Cit. 1937) (affirming conviction for baiting and hunting wild ducks in violation of the Migratory Bird Treaty Act); United States v. Tarmon, 227 F. Supp. 480, 482 (D. Md. 1964) (convicting defendants for baiting and hunting wild geese in violation of the Migratory Bird Treaty Act); United States v. Chandler 753 F.2d 360, 361 (4th Cir. 1985) (affirming convictions for baiting and hunting wild ducks in violation of the Migratory Bird Treaty Act); United States v. Sohappy, 770 F.2d 816, 825 (9th Cit. 1985) (affirming convictions for catching, transporting, and selling fish in violation of the Lacey Act.); United States v. Lundquist, 932 F. Supp. 1237, 1239 (D. Or. 1996) (convicting defendant of possession of eagle feathers in violation of Bald and Golden Eagle Protection Act).

(39) 42 U.S.C. [subsection] 4321-4370e (2000).

(40) 42 U.S.C. [subsection] 9601-9675 (2000).

   Two lessons can be drawn from this law explosion. The most serious
   one is that this tremendous growth in environmental law has
   coincided with the decline and collapse of ecological systems. The
   challenge today is not the invention of environmental law but the
   discovery and application of effective environmental law. One reason
   that law is placed upon law that is folded over other law that is
   undergirded by additional law is that earlier efforts to reform
   agencies, revise business behavior, and rechannel human energies
   have failed. The challenge for the current generation of
   environmental lawyers is to discover a version of working law that
   contributes to the fundamental human behavioral and institutional
   changes the topic recommends.

WILLIAM H. ROGERS, JR., ENVIRONMENTAL LAW ix (2nd ed. 1994).

(41) Administrative Procedure Act, 5 U.S.C. [subsection] 551-559, 701-706, 1305, 3105, 3344, 4301, 5335, 5372, 7521 (2000). Several federal environmental law statutes contain "citizen suit" provisions. See, e.g., Endangered Species Act of 1973, 16 U.S.C. [section] 1540(g) (2000); Federal Water Pollution Control Act, 33 U.S.C. [section] 1365(a) (2000); Resource Conservation and Recovery Act, 42 U.S.C. [section] 6972 (2000); Noise Control Act, 42 U.S.C. [section] 4911 (2000); Marine Protection Research and Sanctuaries Act of 1972, 33 U.S.C. [section] 1415(g) (2000); Deepwater Port Act, 33 U.S.C. [section] 1515 (2000); Toxic Substances Control Act, 15 U.S.C. [section] 2619 (2000); Safe Drinking Water Act, 42 U.S.C. [section] 300(j)(8) (2000); Surface Mining Control and Reclamation Act, 30 U.S.C. [section] 1270 (2000); Outer Continental Shelf Lands Act, 43 U.S.C. [section] 1349(a) (2000).

(42) 16 U.S.C. [section] 1540(g) (2000).

(43) 42 U.S.C. [subsection] 7401-7671(q) (2000).

(44) Federal Water Pollution Control Act, 33 U.S.C. [subsection] 1251-1387 (2000).

(45) A variety of other federal laws, notably the Migratory Bird Treaty Act of 1918, 16 U.S.C. [subsection] 703-712 (2000), the Bald Eagle Protection Act of 1940, 16 U.S.C. [subsection] 668-68d (2000), and the Marine Mammal Protection Act of 1972, 16 U.S.C. [subsection] 1361-1421(h) (2000), prohibit take of various members of various species. However, their scope is much more limited than the scope of the section 9 take prohibition because they apply only to specific species and probably do not protect species members from take caused by habitat destruction. See also Wild Free-roaming Horses and Burros Act of 1971, 16 U.S.C. [subsection] 1331-1340 (2000) (prohibiting destruction of wild free-roaming horses that wander onto private property.). The Migratory Bird Treaty Act of 1918 made it unlawful "to pursue, hunt, take, capture, kill, attempt to take, capture, or kill ... any migratory bird" protected by a 1916 treaty between the United States and Great Britain (on behalf of Canada). 16 U.S.C. [section] 703 (2000). The term "take" is not defined in the Act. The Bald Eagle Protection Act of 1940 made it unlawful to "take" any bald eagle (Haliaeetus leucocephalus) anywhere subject to the jurisdiction of the United States except Alaska. 16 U.S.C. [section] 668 (2000). The term "take" was defined as to "pursue, shoot, shoot at, poison, wound, kill, capture, trap, collect, or molest or disturb." Id. [section] 668c. The Marine Mammal Protection Act of 1972, in many ways the direct antecedent of the Endangered Species Act of 1973, makes it unlawful "to take any marine mammal in waters or on lands under the jurisdiction of the United States[.]" 16 U.S.C. [section] 1372(a)(2)(A) (2000). "Take" is defined as "to harass, hunt, capture, or kill, or attempt to harass, hunt, capture, or kill any marine mammal." Id. [section] 1362(13). This definition of "take" is not quite as extensive as the definition included in the Endangered Species Act of 1973 (it did hot include the terms "harm," "pursue," "shoot," "wound," "trap," or "collect") but it certainly gets the idea across. However, the Marine Mammal Protection Act of 1972 only applies to a very limited number of species. For a more extensive discussion of the evolution of "take," see Michael E. Field, The Evolution of the Wildlife Taking Concept from its Beginning to its Culmination in the Endangered Species Act, 21 HOUS. L. REV. 457, 468-74 (1984).

(46) This is essentially what the United States Court of Appeals for the District of Columbia Circuit advocated in the opinion overruled in Sweet Home. Sweet Home Chapter of Cmtys. for a Great Or. v. Babbitt, 17 F.3d 1463, 1465 (D.C. Cir. 1994). The Circuit Court held that the structure of the Act placed the burden of habitat conservation on the government, net private parties. Id. at 1466. The court relied on the maxim noscitur a sociis (a word is known by the company it keeps) to conclude that "the nine verbs accompanying 'harm' all involve a substantially direct application of force, which the [FWS's] concept of forbidden habitat modification altogether lacks." Id. at 1465.

(47) See United States v. McKittrick, 142 F.3d 1170, 1178 (1998) (affirming conviction for "taking, possessing, and transporting a gray wolf in violation of the ESA and the Lacey Act"); United States v. Billie, 667 F. Supp. 1485, 1497 (S.D. Fla. 1987) (holding that taking a Florida panther (Felis concolor coryi) was a general intent crime); United States v. St. Onge, 676 F. Supp. 1044, 1045 (D. Mont. 1988) (concluding that illegally taking a grizzly bear (Ursus arctos horribilis) was net a specific intent crime).

(48) 437 U.S. 153 (1978). See also Federico Cheever, An Introduction to the Prohibition Against Takings in Section 9 of the Endangered Species Act of 1973." Learning to Live With a Powerful Species Preservation Law, 62 U. COLO. L. REV. 109, 143-62 (1991) (discussing case law development after 1978).

(49) Palila v. Haw. Dep't of Land & Natural Res., 471 F. Supp. 985, 988 (D. Haw. 1979).

(50) Native Fish and Wildlife Endangered Species, 32 Fed. Reg. 4001 (Mar. 11, 1967).

(51) Palila, 471 F. Supp. at 988.

(52) Id.

(53) Id. at 989.

(54) Id.

(55) Id. at 990.

(56) Id.

(57) "Plaintiff Palila ... a member of the Hawaiian Honeycreeper family, is an endangered endemic Hawaiian bird more particularly described in Paragraphs 12 through 15 below. Plaintiff Palila has no voice of its own, and it therefore brings this action by its next friends, plaintiffs Sierra Club, National Audubon Society, Hawaii Audubon Society, and Alan C. Ziegler." Complaint for Declaratory and Injunctive Relief at 2, Palila v. Hawaii Dep't of Land & Nat. Res., 471 F. Supp. 985 (D. Haw. 1979) (No. 78-0030), aff'd, 639 F.2d 495 (9th Cit. 1981).

(58) Id. at 987.

(59) Id. at 999.

(60) Id. at 988-91.

(61) Palila v. Haw. Dep't of Land & Nat. Res., 639 F.2d 495, 495 (9th Cir. 1981).

(62) Palila v. Haw. Dep't of Land & Nat. Res., 852 F.2d 1106, 1107 (9th Cir. 1988).

(63) Palila v. Haw. Dep't of Land & Nat. Res., 631 F. Supp. 787, 788 (D. Haw. 1985).

(64) Palila v. Haw. Dep't of Land & Nat. Res., 649 F. Supp. 1070, 1075, 1077 (D. Haw. 1986).

(65) Id. at 1077.

(66) Id. at 107-80.

(67) Id. at 1073.

(68) Id. at 1075.

(69) Id.

(70) Id.

(71) Id.

(72) Id.

(73) See id. (rejecting argument that "any effect the mouflon has on mamane and indirectly on palila is only a 'potential' injury').

(74) Id.

(75) Id. at 1082-83.

(76) Palila v. Haw. Dep't of Land & Natural Res., 852 F.2d 1106, 1110-11 (9th Cir. 1988).

(77) 16 U.S.C. [section] 1536(a)(2) (2000).

(78) Palila, 649 F. Supp. at 1073.

(79) Id. at 1075.

(80) Id. (emphasis added).

(81) 23 F.3d 1508 (9th Cir. 1994).

(82) Id. at 1509.

(83) Id.

(84) Id. at 1510.

(85) Id.

(86) Id.

(87) Id.

(88) Id.

(89) Id. at 1513.

(90) Id. at 1512 n.8.

(91) Id. at 1511.

(92) Id. at 1512.

(93) Id. at 1511.

(94) Id. (quoting Keith Aune, a grizzly bear expert with the Montana Department of Fish, Wildlife and Parks).

(95) 880 F. Supp 1343 (N.D. Cal. 1995).

(96) Id. at 1367-68.

(97) Id. at 1367.

(98) Id. at 1368.

(99) Id. at 1367.

(100) Id. at 1368.

(101) Id. at 1347.

(102) 50 F.3d 781 (9th Cir. 1995).

(103) Id. at 782.

(104) Id. at 783.

(105) Id. at 783-84 (emphasis added).

(106) Id. at 784.

(107) Id.

(108) Id. at 787.

(109) Id. at 785 (internal citation omitted).

(110) Id.

(111) Id.

(112) Sweet Home, 515 U.S. 687 (1995).

(113) Id. at 692.

(114) Id.

(115) Id. at 697.

(116) Id. at 698.

(117) Id. at 709. "[Section] 10(a)(1)(B) strongly suggests that Congress understood [section] 9 to prohibit indirect as well as deliberate takings." Id. at 688.

(118) Id. at 709 (O'Connor, J., concurring).

(119) Id. at 712 (O'Connor, J., concurring).

(120) Id. at 713 (O'Connor, J., concurring).

(121) Id. at 712 (O'Connor, J., concurring).

(122) Id. (O'Connor, J., concurring) (emphasis omitted).

(123) Id. at 714 (O'Connor, J., concurring) (emphasis added).

(124) Id. at 709-10 (O'Connor, J., concurring).

(125) Id. at 710 (O'Connor, J., concurring).

(126) Id. at 734 n.5 (Scalia, J., dissenting).

(127) Id. at 713 (O'Connor, J., concurring).

(128) Id. (O'Connor, J., concurring).

(129) Id. (O'Connor, J., concurring).

(130) Id. (O'Connor, J., concurring).

(131) One method of determining the rate of extinction is Population Viability Analysis (PVA)--the process of identifying the threats faced by a species and evaluating the likelihood that it will exist over a specific period of time. See WILSON, supra note 1, at 101. ("The likelihood that a threatened species will live or die depends on the size of its population, how widely they are dispersed and exchange individuals, how much they fluctuate through time, and the longevity and reproductive rate of the organisms composing them."). PVA is "still only a weak contributor to the study of whole faunas and floras," but it is "being improved rapidly by biologists and is certain to play a role in the future of conservation forecasts." Id. In 1963, E.O. Wilson and Robert MacArthur founded the island biodiversity theory, based on the understanding that large areas of habitat support more species than smaller isolated ones. See WILSON, supra note 22, at 220. The two men "noticed that faunas and floras of islands around the world show a consistent relation between the areas of the islands and the number of species living on them. The larger the area, the more species." Id.

(132) Our understanding of the natural world is extremely limited:

   In the realm of physical measurement, evolutionary biology is far
   behind the rest of the natural sciences. Certain numbers are crucial
   to our ordinary understanding of the universe. What is the mean
   diameter of the earth? It is 12,742 kilometers (7,913 miles). How
   many stars are there in the Milky Way, an ordinary spiral galaxy?
   Approximately [10.sup.11], 100 billion. How many genes are there in
   a small virus? There are 10 (in [phi]X174 phage). What is the mass
   of an electron? It is 9.1 x [10.sup.28] grams. And how many species
   of organisms are there on Earth? We don't know, not even to the
   nearest order of magnitude.

WILSON, supra note 22, at 132.

(133) As Professor James Rasband noted regarding the application of proximate cause:

   It appears as though plaintiffs (whether FWS, NMFS, or a citizen)
   who seek to prove that habitat modification is or will be the
   proximate cause of harm must prove: 1) that the protected species
   occupies the habitat that will be modified; and 2) that the habitat
   modification will: a) cause bodily death or injury to individual
   member(s) of the occupying species; or b) prevent or make impossible
   (or perhaps just significantly hinder, if subsequent cases have not
   supplanted Marbled Murrelet) member(s) of the occupying species
   ability to feed, spawn, breed, or shelter.

James R. Rasband, Priority, Probability, and Proximate Cause: Lessons from Tort Law About Imposing ESA Responsibility for Wildlife Harm on Water Users and Other Joint Habitat Modifiers, 33 ENVTL. L. 595, 618 (2003).

(134) 896 F. Supp. 1170 (M.D. Fla. 1995).

(135) Id. at 1176.

(136) Id. at 1173.

(137) Id. at 1174.

(138) Id.

(139) Id. at 1176.

(140) Id.

(141) Id. at 1180.

(142) Id. at 1174.

(143) Id. at 1175.

(144) Id.

(145) Id.

(146) Id. at 1180-82.

(147) Id. at 1181.

(148) Id.

(149) Id. at 1173 n.1.

(150) 6 F. Supp. 2d 81 (D. Mass. 1998).

(151) Id. at 82.

(152) Id. at 90.

(153) Id. at 90-91.

(154) Id. at 90.

(155) Id. (quoting TVA v. Hill, 437 U.S. 153, 172-73 (1973)).

(156) Id.

(157) Id. at 91.

(158) Id. at 92-93.

(159) 92 F. Supp. 2d 1296 (M.D. Fla. 2000).

(160) Id. at 1307-09.

(161) Id. at 1308.

(162) Id.

(163) Id. at 1308 n.19.

(164) Id.

(165) 204 F.3d 920 (9th Cir. 2000).

(166) Id. at 925.

(167) Id.

(168) Id. at 922.

(169) Id.

(170) Id. at 927.

(171) Cf. Nat'l Ass'n of Home Builders v. Norton, 340 F.3d 835, 852 (9th Cit. 2003) (holding that FWS's finding that the Arizona pygmy-owl population is discrete was hOt arbitrary and capricious, but its finding that the discrete population is significant was arbitrary and capricious). In order to be considered a distinct population segment (DPS), the species must be both discrete and significant. Policy Regarding the Recognition of Distinct Vertebrate Population Segments Under the Endangered Species Act, 61 Fed. Reg. 4722, 4725 (Feb. 7, 1996). Congress has instructed the Secretary to exercise its authority to designate DPSs "sparingly and only when the biological evidence indicates that such action is warranted." S. REP. NO. 96-151, at 7 (1979).

(172) 16 U.S.C. [section] 1536 (2000).

(173) Id. [section] 1533.

(174) Id. [section] 1533(a)(3).

(175) Id. [section] 1539(a)(1)(B).

(176) Id. [section] 1536(b)(4).

(177) The primary responsibility for administering and enforcing the Act lies with the Secretaries of Commerce and Interior. Id. [section] 1532(15). The Secretaries of Commerce and Interior have delegated this responsibility to NMFS and FWS, respectively. 50 C.F.R. [section] 402.01(b) (2004). FWS administers the programs for the Secretary of the Interior and the NMFS administers programs for the Secretary of Commerce. NMFS is responsible for administering the ESA with regard to most marine species, and FWS is responsible for marine mammals such as manatees, dugongs, polar bears, sea otters, and walruses, but not whales, seals, and sea lions. FWS is responsible for all other plant and animal species. See Reorganization Plan No. 4 of 1970, 35 Fed. Reg. 15,627 (Oct. 6, 1970).

(178) 882 F.2d 1294 (8th Cir. 1989).

(179) Id. at 1296.

(180) Id. at 1297.

(181) 7U.S.C. [subsection] 136-136y (2000).

(182) Defenders of Wildlife, 882 F.2d at 1297.

(183) Id.

(184) Id. at 1297-98.

(185) Id. at 1298.

(186) Id.

(187) Defenders of Wildlife v. Envtl. Prot. Agency, 688 F. Supp. 1334, 1354 (D. Minn. 1988).

(188) Defenders of Wildlife, 882 F.2d at 1300-01.

(189) Id.

(190) Id. at 1301.

(191) Id.

(192) 974 F. Supp. 1022 (E.D. Ky. 1997).

(193) Id. at 1024.

(194) Id. at 1024-25.

(195) Id. at 1025.

(196) Id.

(197) Id.

(198) Id. at 1032.

(199) Id.

(200) Id. at 1027.

(201) Id. at 1027 n.8.

(202) Id. at 1027.

(203) 127 F.3d 155 (1st Cit. 1997).

(204) Id. at 158.

(205) Id.

(206) Id. at 164.

(207) Id. at 163.

(208) Id. at 163-64.

(209) Id.

(210) Id. at 164.

(211) Id. at 171.

(212) 984 F. Supp. 1242 (W.D. Mo. 1997).

(213) Id. at 1244.

(214) Id.

(215) Id.

(216) Id. at 1245.

(217) Id.

(218) Id. at 1249.

(219) Id. at 1247 (citing Defenders of Wildlife v. Envtl. Prot. Agency, 688 F. Supp. 1334, 1351 n.33 (D. Minn. 1988)).

(220) See id. (stating that the importance the ESA and the Forest Service's regulations place on protection of endangered and threatened species mandates affirmative evidence that the agency-authorized salvage would not negatively impact Indiana bats).

(221) Id. at 1248 (citing Palila v. Haw. Dep't of Land & Natural Res., 649 F. Supp. 1070, 1076-77 (D. Haw. 1986).

(222) Id. at 1250.

(223) See 5 U.S.C. [section] 706 (2000) (allowing judicial review of federal agency action).

(224) 63 F. Supp. 2d 1034 (D. Ariz. 1998), aff'd 273 F.3d 1229 (9th Cit. 2001).

(225) Id. at 1036, 1042.

(226) Id. at 1038.

(227) Id. at 1042.

(228) Id.

(229) Id. at 1042-43.

(230) Id. at 1044.

(231) Id. at 1045.

(232) See 16 U.S.C. [subsection] 1531(b), 1532(3) (2000) (defining "conserve" as the use of all methods necessary to bring species to the point where they no longer need ESA protection and stating the purpose of the ESA as providing a means whereby ecosystems and listed species may be conserved).

(233) 273 F.3d 1229, 1233 (9th Cir. 2001).

(234) Id. at 1234, 1244-45.

(235) Id. at 1234.

(236) Id.

(237) Id. at 1239-40.

(238) Id. at 1238.

(239) Id.

(240) Id. at 1248-49.

(241) Id. at 1248.

(242) Id.

(243) Id.

(244) Id.

(245) Id.

(246) Id. at 1243-45.

(247) See id. at 1248-49 (contrasting the court's finding that FWS's issuance of ITSs was arbitrary and capricious in allotments where a species' presence is only speculative to its decision to uphold FWS's issuance of an ITS in an allotment where species are actually present).

(248) 9 F.3d 163 (1st Cit. 1993).

(249) Id. at 164.

(250) Id. at 165.

(251) Id. at 165 n.3.

(252) Id. at 164.

(253) Id.

(254) Id. at 166.

(255) Id. at 165.

(256) Id.

(257) Id. at 166.

(258) Id. at 166 n.4.

(259) Id.

(260) See id. at 166 ("Clearly, then, for there to be 'harm' under the ESA, there must be actual injury to the listed species.").

(261) 271 F. Supp. 2d 230 (D.D.C. 2003).

(262) Id. at 236.

(263) Id. at 257.

(264) Id. at 257-58.

(265) Id. at 258.

(266) See Cheever, supra note 10, at 12.

* [c] Federico Cheever, 2004. Professor of Law, University of Denver College of Law. I would like to thank my co-author Michael Balster, the efficient staff and editors of Environmental Law, and all the participants in and organizers of Lewis and Clark Law School's "The Endangered Species Act Turns 30" Conference, particularly Dan Rohlf, Lin Harmon-Walker, and the incomparable Janice Weis.

** [c] Michael Balster, 2004. J.D. expected 2004, University of Denver College of Law; B.S. 1995, The Ohio State University. Registered Professional Engineer. I would like to thank Professor Federico Cheever for the extraordinary opportunity to co-author this article and his valuable mentoring over the past several years, and above all Jennifer Jeffers for her continued inspiration and encouragement.