Babbitt v. Sweet Home Chapter,

Communities for a Great Oregon

No. 94-859

Argued April 17, 1995

Decided June 29, 1995

[U.S. Reports citation not yet available]

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Syllabus



As relevant here, the Endangered Species Act of 1973 (ESA or Act) makes

it unlawful for any person to "take" endangered or threatened species,

9(a)(1)(B), and defines "take" to mean to "harass, harm, pursue,"

"wound," or "kill,"  3(19).  In 50 CFR  17.3, petitioner Secretary of

the Interior further defines "harm" to include "significant habitat

modification or degradation where it actually kills or injures

wildlife."  Respondents, persons and entities dependent on the forest

products industries and others, challenged this regulation on its face,

claiming that Congress did not intend the word "take" to include habitat

modification.  The District Court granted petitioners summary judgment,

but the Court of Appeals ultimately reversed.  Invoking the noscitur a

sociis canon of statutory construction, which holds that a word is known

by the company it keeps, the court concluded that "harm," like the other

words in the definition of "take," should be read as applying only to

the perpetrator's direct application of force against the animal taken.



Held:  The Secretary reasonably construed Congress' intent when he

defined "harm" to include habitat modification.  Pp. ___.



(a) The Act provides three reasons for preferring the Secretary's

interpretation.  First, the ordinary meaning of "harm" naturally

encompasses habitat modification that results in actual injury or death

to members of an endangered or threatened species.  Unless "harm"

encompasses indirect as well as direct injuries, the word has no meaning

that does not duplicate that of other words that  3 uses to define

"take."  Second, the ESA's broad purpose of providing comprehensive

protection for endangered and threatened species supports the

reasonableness of the Secretary's definition.  Respondents advance

strong arguments that activities causing minimal or unforeseeable harm

will not violate the Act as construed in the regulation, but their

facial challenge would require that the Secretary's understanding of

harm be invalidated in every circumstance.  Third, the fact that

Congress in 1982 authorized the Secretary to issue permits for takings

that  9(a)(1)(B) would otherwise prohibit, "if such taking is incidental

to, and not for the purpose of, the carrying out of an otherwise lawful

activity,"  10(a)(1)(B), strongly suggests that Congress understood  9

to prohibit indirect as well as deliberate takings.  No one could

seriously request an "incidental" take permit to avert  9 liability for

direct, deliberate action against a member of an endangered or

threatened species.  Pp. ___.



(b) The Court of Appeals made three errors in finding that "harm" must

refer to a direct application of force because the words around it do.

First, the court's premise was flawed.  Several of the words

accompanying "harm" in  3's definition of "take" refer to actions or

effects that do not require direct applications of force.  Second, to

the extent that it read an intent or purpose requirement into the

definition of "take," it ignored  9's express provision that a "knowing"

action is enough to violate the Act.  Third, the court employed noscitur

a sociis to give "harm" essentially the same function as other words in

the definition, thereby denying it independent meaning.  Pp. ___.



(c) The Act's inclusion of land acquisition authority,  5, and a

directive to federal agencies to avoid destruction or adverse

modification of critical habitat,  7, does not alter the conclusion

reached in this case.  Respondents' argument that the Government lacks

any incentive to purchase land under  5 when it can simply prohibit

takings under  9 ignores the practical considerations that purchasing

habitat lands may be less expensive than pursuing criminal or civil

penalties, and that  5 allows for protection of habitat before any

endangered animal has been harmed, whereas  9 cannot be enforced until a

killing or injury has occurred.  Section 7's directive applies only to

the Federal Government, whereas  9 applies to "any person."  Pp. ___.



(d) The conclusion reached here gains further support from the statute's

legislative history.  Pp. ___.



17 F.3d 1463, reversed.



STEVENS, J., delivered the opinion of the Court, in which O'CONNOR,

KENNEDY, SOUTER, GINSBURG, and BREYER, JJ., joined.  O'CONNOR, J., filed

a concurring opinion.  SCALIA, J., filed a dissenting opinion, in which

REHNQUIST, C.J., and THOMAS, J., joined. STEVENS, J., lead opinion



JUSTICE STEVENS delivered the opinion of the Court.



The Endangered Species Act of 1973, 87 Stat. 884, 16 U.S.C.  1531 (1988

ed. and Supp. V) (ESA or Act), contains a variety of protections

designed to save from extinction species that the Secretary of the

Interior designates as endangered or threatened.  Section 9 of the Act

makes it unlawful for any person to "take" any endangered or threatened

species.  The Secretary has promulgated a regulation that defines the

statute's prohibition on takings to include "significant habitat

modification or degradation where it actually kills or injures

wildlife."  This case presents the question whether the Secretary

exceeded his authority under the Act by promulgating that regulation. I



Section 9(a)(1) of the Endangered Species Act provides the following

protection for endangered species:



Except as provided in sections 1535(g)(2) and 1539 of this title, with

respect to any endangered species of fish or wildlife listed pursuant to

section 1533 of this title it is unlawful for any person subject to the

jurisdiction of the United States to -- *    *    *    *



(B) take any such species within the United States or the territorial

sea of the United States[.] 16 U.S.C.  1538(a)(1).  Section 3(19) of the

Act defines the statutory term "take":



The term "take" means to harass, harm, pursue, hunt, shoot, wound, kill,

trap, capture, or collect, or to attempt to engage in any such conduct.

16 U.S.C.  1532(19).  The Act does not further define the terms it uses

to define "take."  The Interior Department regulations that implement

the statute, however, define the statutory term "harm":



Harm in the definition of "take" in the Act means an act which actually

kills or injures wildlife.  Such act may include significant habitat

modification or degradation where it actually kills or injures wildlife

by significantly impairing essential behavioral patterns, including

breeding, feeding, or sheltering. 50 CFR  17.3 (1994).  This regulation

has been in place since 1975.



A limitation on the  9 "take" prohibition appears in  10(a)(1)(B) of the

Act, which Congress added by amendment in 1982.  That section authorizes

the Secretary to grant a permit for any taking otherwise prohibited by

9(a)(1)(B) "if such taking is incidental to, and not the purpose of, the

carrying out of an otherwise lawful activity."  16 U.S.C. 1539(a)(1)(B).



In addition to the prohibition on takings, the Act provides several

other protections for endangered species.  Section 4, 16 U.S.C.  1533,

commands the Secretary to identify species of fish or wildlife that are

in danger of extinction and to publish from time to time lists of all

species he determines to be endangered or threatened.  Section 5, 16

U.S.C.  1534, authorizes the Secretary, in cooperation with the States,

see 16 U.S.C.  1535, to acquire land to aid in preserving such species.

Section 7 requires federal agencies to ensure that none of their

activities, including the granting of licenses and permits, will

jeopardize the continued existence of endangered species "or result in

the destruction or adverse modification of habitat of such species which

is determined by the Secretary . . . to be critical."  16 U.S.C.

1536(a)(2).



Respondents in this action are small landowners, logging companies, and

families dependent on the forest products industries in the Pacific

Northwest and in the Southeast, and organizations that represent their

interests.  They brought this declaratory judgment action against

petitioners, the Secretary of the Interior and the Director of the Fish

and Wildlife Service, in the United States District Court for the

District of Columbia to challenge the statutory validity of the

Secretary's regulation defining "harm," particularly the inclusion of

habitat modification and degradation in the definition.  Respondents

challenged the regulation on its face.  Their complaint alleged that

application of the "harm" regulation to the red-cockaded woodpecker, an

endangered species, and the northern spotted owl, a threatened species,

had injured them economically.  App. 17-23.



Respondents advanced three arguments to support their submission that

Congress did not intend the word "take" in  9 to include habitat

modification, as the Secretary's "harm" regulation provides.  First,

they correctly noted that language in the Senate's original version of

the ESA would have defined "take" to include "destruction, modification,

or curtailment of [the] habitat or range" of fish or wildlife, but the

Senate deleted that language from the bill before enacting it.  Second,

respondents argued that Congress intended the Act's express

authorization for the Federal Government to buy private land in order to

prevent habitat degradation in  5 to be the exclusive check against

habitat modification on private property.  Third, because the Senate

added the term "harm" to the definition of "take" in a floor amendment

without debate, respondents argued that the court should not interpret

the term so expansively as to include habitat modification.



The District Court considered and rejected each of respondents'

arguments, finding "that Congress intended an expansive interpretation

of the word `take,' an interpretation that encompasses habitat

modification."  806 F.Supp. 279, 285 (1992).  The court noted that in

1982, when Congress was aware of a judicial decision that had applied

the Secretary's regulation, see Palila v. Hawaii Dept. of Land and

Natural Resources, 639 F.2d 495 (CA9 1981) (Palila I), it amended the

Act without using the opportunity to change the definition of "take."

806 F.Supp. at 284.  The court stated that, even had it found the ESA

"`silent or ambiguous'" as to the authority for the Secretary's

definition of "harm," it would nevertheless have upheld the regulation

as a reasonable interpretation of the statute.  Id. at 285 (quoting

Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S.

837, 843 (1984)).  The District Court therefore entered summary judgment

for petitioners and dismissed respondents' complaint.



A divided panel of the Court of Appeals initially affirmed the judgment

of the District Court.  1 F.3d 1 (CADC 1993).  After granting a petition

for rehearing, however, the panel reversed.  17 F.3d 1463 (CADC 1994).

Although acknowledging that "[t]he potential breadth of the word `harm'

is indisputable," id. at 1464, the majority concluded that the immediate

statutory context in which "harm" appeared counseled against a broad

reading; like the other words in the definition of "take," the word

"harm" should be read as applying only to "the perpetrator's direct

application of force against the animal taken. . . .   The forbidden

acts fit, in ordinary language, the basic model `A hit B.'"  Id. at

1465.  The majority based its reasoning on a canon of statutory

construction called noscitur a sociis, which holds that a word is known

by the company it keeps.  See Neal v. Clark, 95 U.S. 704, 708-709

(1878).



The majority claimed support for its construction from a decision of the

Ninth Circuit that narrowly construed the word "harass" in the Marine

Mammal Protection Act, 16 U.S.C.  1372(a)(2)(A), see United States v.

Hayashi, 5 F.3d 1278, 1282 (1993); from the legislative history of the

ESA; from its view that Congress must not have intended the purportedly

broad curtailment of private property rights that the Secretary's

interpretation permitted; and from the ESA's land acquisition provision

in  5 and restriction on federal agencies' activities regarding habitat

in  7, both of which the court saw as evidence that Congress had not

intended the  9 "take" prohibition to reach habitat modification.  Most

prominently, the court performed a lengthy analysis of the 1982

amendment to  10 that provided for "incidental take permits" and

concluded that the amendment did not change the meaning of the term

"take" as defined in the 1973 statute.



Chief Judge Mikva, who had announced the panel's original decision,

dissented.  See 17 F.3d at 1473.  In his view, a proper application of

Chevron indicated that the Secretary had reasonably defined "harm,"

because respondents had failed to show that Congress unambiguously

manifested its intent to exclude habitat modification from the ambit of

"take."  Chief Judge Mikva found the majority's reliance on noscitur a

sociis inappropriate in light of the statutory language and unnecessary

in light of the strong support in the legislative history for the

Secretary's interpretation.  He did not find the 1982 "incidental take

permit" amendment alone sufficient to vindicate the Secretary's

definition of "harm," but he believed the amendment provided additional

support for that definition because it reflected Congress' view in 1982

that the definition was reasonable.



The Court of Appeals' decision created a square conflict with a 1988

decision of the Ninth Circuit that had upheld the Secretary's definition

of "harm."  See Palila v. Hawaii Dept. of Land and Natural Resources,

852 F.2d 1106 (1988) (Palila II).  The Court of Appeals neither cited

nor distinguished Palila II, despite the stark contrast between the

Ninth Circuit's holding and its own.  We granted certiorari to resolve

the conflict.  513 U.S. ___ (1995).  Our consideration of the text and

structure of the Act, its legislative history, and the significance of

the 1982 amendment persuades us that the Court of Appeals' judgment

should be reversed. II



Because this case was decided on motions for summary judgment, we may

appropriately make certain factual assumptions in order to frame the

legal issue.  First, we assume respondents have no desire to harm either

the red-cockaded woodpecker or the spotted owl; they merely wish to

continue logging activities that would be entirely proper if not

prohibited by the ESA.  On the other hand, we must assume arguendo that

those activities will have the effect, even though unintended, of

detrimentally changing the natural habitat of both listed species and

that, as a consequence, members of those species will be killed or

injured.  Under respondents' view of the law, the Secretary's only means

of forestalling that grave result -- even when the actor knows it is

certain to occur -- is to use his  5 authority to purchase the lands on

which the survival of the species depends.  The Secretary, on the other

hand, submits that the  9 prohibition on takings, which Congress defined

to include "harm," places on respondents a duty to avoid harm that

habitat alteration will cause the birds unless respondents first obtain

a permit pursuant to  10.



The text of the Act provides three reasons for concluding that the

Secretary's interpretation is reasonable.  First, an ordinary

understanding of the word "harm" supports it.  The dictionary definition

of the verb form of "harm" is "to cause hurt or damage to:  injure."

Webster's Third New International Dictionary 1034 (1966).  In the

context of the ESA, that definition naturally encompasses habitat

modification that results in actual injury or death to members of an

endangered or threatened species.



Respondents argue that the Secretary should have limited the purview of

"harm" to direct applications of force against protected species, but

the dictionary definition does not include the word "directly" or

suggest in any way that only direct or willful action that leads to

injury constitutes "harm."{10}  Moreover, unless the statutory term

"harm" encompasses indirect as well as direct injuries, the word has no

meaning that does not duplicate the meaning of other words that  3 uses

to define "take."  A reluctance to treat statutory terms as surplusage

supports the reasonableness of the Secretary's interpretation.  See,

e.g., Mackey v. Lanier Collection Agency & Service, Inc., 486 U.S. 825,

837, and n. 11 (1988).{11}



Second, the broad purpose of the ESA supports the Secretary's decision

to extend protection against activities that cause the precise harms

Congress enacted the statute to avoid.  In TVA v. Hill, 437 U.S. 153

(1978), we described the Act as "the most comprehensive legislation for

the preservation of endangered species ever enacted by any nation."  Id.

at 180.  Whereas predecessor statutes enacted in 1966 and 1969 had not

contained any sweeping prohibition against the taking of endangered

species except on federal lands, see id. at 175, the 1973 Act applied to

all land in the United States and to the Nation's territorial seas. As

stated in  2 of the Act, among its central purposes is "to provide a

means whereby the ecosystems upon which endangered species and

threatened species depend may be conserved. . . ."  16 U.S.C.  1531(b).



In Hill, we construed  7 as precluding the completion of the Tellico Dam

because of its predicted impact on the survival of the snail darter. See

437 U.S. at 193.  Both our holding and the language in our opinion

stressed the importance of the statutory policy.  "The plain intent of

Congress in enacting this statute," we recognized, "was to halt and

reverse the trend toward species extinction, whatever the cost. This is

reflected not only in the stated policies of the Act, but in literally

every section of the statute."  Id. at 184.  Although the 9 "take"

prohibition was not at issue in Hill, we took note of that prohibition,

placing particular emphasis on the Secretary's inclusion of habitat

modification in his definition of "harm."{12}  In light of that

provision for habitat protection, we could "not understand how TVA

intends to operate Tellico Dam without `harming' the snail darter."  Id.

at 184, n. 30.  Congress' intent to provide comprehensive protection for

endangered and threatened species supports the permissibility of the

Secretary's "harm" regulation.



Respondents advance strong arguments that activities that cause minimal

or unforeseeable harm will not violate the Act as construed in the

"harm" regulation.  Respondents, however, present a facial challenge to

the regulation.  Cf. Anderson v. Edwards, 514 U.S. ___, ___, n. 6

(1995); INS v. National Center for Immigrants' Rights, Inc., 502 U.S.

183, 188 (1991).  Thus, they ask us to invalidate the Secretary's

understanding of "harm" in every circumstance, even when an actor knows

that an activity, such as draining a pond, would actually result in the

extinction of a listed species by destroying its habitat.  Given

Congress' clear expression of the ESA's broad purpose to protect

endangered and threatened wildlife, the Secretary's definition of "harm"

is reasonable.{13}



Third, the fact that Congress in 1982 authorized the Secretary to issue

permits for takings that  9(a)(1)(B) would otherwise prohibit, "if such

taking is incidental to, and not the purpose of, the carrying out of an

otherwise lawful activity," 16 U.S.C.  1539(a)(1)(B), strongly suggests

that Congress understood  9(a)(1)(B) to prohibit indirect as well as

deliberate takings.  Cf. NLRB v. Bell Aerospace Co. of Textron, Inc.,

416 U.S. 267, (1974).  The permit process requires the applicant to

prepare a "conservation plan" that specifies how he intends to "minimize

and mitigate" the "impact" of his activity on endangered and threatened

species, 16 U.S.C.  1539(a)(2)(A), making clear that Congress had in

mind foreseeable rather than merely accidental effects on listed

species.{14}  No one could seriously request an "incidental" take permit

to avert  9 liability for direct, deliberate action against a member of

an endangered or threatened species, but respondents would read "harm"

so narrowly that the permit procedure would have little more than that

absurd purpose.  "When Congress acts to amend a statute, we presume it

intends its amendment to have real and substantial effect."  Stone v.

INS, 514 U.S. ___, ___ (1995).  Congress' addition of the  10 permit

provision supports the Secretary's conclusion that activities not

intended to harm an endangered species, such as habitat modification,

may constitute unlawful takings under the ESA unless the Secretary

permits them.



The Court of Appeals made three errors in asserting that "harm" must

refer to a direct application of force because the words around it

do.{15}  First, the court's premise was flawed.  Several of the words

that accompany "harm" in the  3 definition of "take," especially

"harass," "pursue," "wound," and "kill," refer to actions or effects

that do not require direct applications of force.  Second, to the extent

the court read a requirement of intent or purpose into the words used to

define "take," it ignored  9's express provision that a "knowing" action

is enough to violate the Act.  Third, the court employed noscitur a

sociis to give "harm" essentially the same function as other words in

the definition, thereby denying it independent meaning.  The canon, to

the contrary, counsels that a word "gathers meaning from the words

around it."  Jarecki v. G. D. Searle & Co., 367 U.S. 303, 307 (1961).

The statutory context of "harm" suggests that Congress meant that term

to serve a particular function in the ESA, consistent with but distinct

from the functions of the other verbs used to define "take."  The

Secretary's interpretation of "harm" to include indirectly injuring

endangered animals through habitat modification permissibly interprets

"harm" to have "a character of its own not to be submerged by its

association."  Russell Motor Car Co. v. United States, 261 U.S. 514, 519

(1923).{16}



Nor does the Act's inclusion of the  5 land acquisition authority and

the  7 directive to federal agencies to avoid destruction or adverse

modification of critical habitat alter our conclusion.  Respondents'

argument that the Government lacks any incentive to purchase land under

5 when it can simply prohibit takings under  9 ignores the practical

considerations that attend enforcement of the ESA.  Purchasing habitat

lands may well cost the Government less in many circumstances than

pursuing civil or criminal penalties.  In addition, the  5 procedure

allows for protection of habitat before the seller's activity has harmed

any endangered animal, whereas the Government cannot enforce the  9

prohibition until an animal has actually been killed or injured.  The

Secretary may also find the  5 authority useful for preventing

modification of land that is not yet but may in the future become

habitat for an endangered or threatened species.  The  7 directive

applies only to the Federal Government, whereas the  9 prohibition

applies to "any person."  Section 7 imposes a broad, affirmative duty to

avoid adverse habitat modifications that  9 does not replicate, and  7

does not limit its admonition to habitat modification that "actually

kills or injures wildlife."  Conversely,  7 contains limitations that  9

does not, applying only to actions "likely to jeopardize the continued

existence of any endangered species or threatened species," 16 U.S.C.

1536(a)(2), and to modifications of habitat that has been designated

"critical" pursuant to  4, 16 U.S.C.  1533(b)(2).{17}  Any overlap that 

5 or  7 may have with  9 in particular cases is unexceptional, see,

e.g., Russello v. United States, 464 U.S. 16, 24, and n. 2 (1983), and

simply reflects the broad purpose of the Act set out in  2 and

acknowledged in TVA v. Hill.



We need not decide whether the statutory definition of "take" compels

the Secretary's interpretation of "harm," because our conclusions that

Congress did not unambiguously manifest its intent to adopt respondents'

view and that the Secretary's interpretation is reasonable suffice to

decide this case.  See generally Chevron U.S.A. Inc. v. Natural

Resources Defense Council, Inc., 467 U.S. 837 (1984).  The latitude the

ESA gives the Secretary in enforcing the statute, together with the

degree of regulatory expertise necessary to its enforcement, establishes

that we owe some degree of deference to the Secretary's reasonable

interpretation.  See BREYER, Judicial Review of Questions of Law and

Policy, 38 Admin.L.Rev. 363, 373 (1986).{18} III



Our conclusion that the Secretary's definition of "harm" rests on a

permissible construction of the ESA gains further support from the

legislative history of the statute.  The Committee Reports accompanying

the bills that became the ESA do not specifically discuss the meaning of

"harm," but they make clear that Congress intended "take" to apply

broadly to cover indirect as well as purposeful actions.  The Senate

Report stressed that "[t]ake" is defined . . . in the broadest possible

manner to include every conceivable way in which a person can "take" or

attempt to "take" any fish or wildlife. S.Rep. No. 93-307, p. 7 (1973).

The House Report stated that "the broadest possible terms" were used to

define restrictions on takings.  H.R.Rep. No. 93-412, p. 15 (1973).  The

House Report underscored the breadth of the "take" definition by noting

that it included "harassment, whether intentional or not."  Id. at 11

(emphasis added).  The Report explained that the definition would allow,

for example, the Secretary to regulate or prohibit the activities of

birdwatchers where the effect of those activities might disturb the

birds and make it difficult for them to hatch or raise their young.

Ibid.  These comments, ignored in the dissent's welcome but selective

foray into legislative history, see post at ___, support the Secretary's

interpretation that the term "take" in  9 reached far more than the

deliberate actions of hunters and trappers.



Two endangered species bills, S. 1592 and S. 1983, were introduced in

the Senate and referred to the Commerce Committee.  Neither bill

included the word "harm" in its definition of "take," although the

definitions otherwise closely resembled the one that appeared in the

bill as ultimately enacted.  See Hearings on S. 1592 and S. 1983 before

the Subcommittee on Environment of the Senate Committee on Commerce, 93d

Cong., 1st Sess., pp. 7, 27 (1973) (hereinafter Hearings).  Senator

Tunney, the floor manager of the bill in the Senate, subsequently

introduced a floor amendment that added "harm" to the definition, noting

that this and accompanying amendments would "help to achieve the

purposes of the bill."  119 Cong. Rec. 25683 (July 24, 1973).

Respondents argue that the lack of debate about the amendment that added

"harm" counsels in favor of a narrow interpretation.  We disagree.  An

obviously broad word that the Senate went out of its way to add to an

important statutory definition is precisely the sort of provision that

deserves a respectful reading.



The definition of "take" that originally appeared in S. 1983 differed

from the definition as ultimately enacted in one other significant

respect:  it included "the destruction, modification, or curtailment of

[the] habitat or range" of fish and wildlife.  Hearings at 27.

Respondents make much of the fact that the Commerce Committee removed

this phrase from the "take" definition before S. 1983 went to the floor.

See 119 Cong. Rec. 25663 (1973).  We do not find that fact especially

significant.  The legislative materials contain no indication why the

habitat protection provision was deleted.  That provision differed

greatly from the regulation at issue today.  Most notably, the habitat

protection in S. 1983 would have applied far more broadly than the

regulation does because it made adverse habitat modification a

categorical violation of the "take" prohibition, unbounded by the

regulation's limitation to habitat modifications that actually kill or

injure wildlife.  The S. 1983 language also failed to qualify

"modification" with the regulation's limiting adjective "significant."

We do not believe the Senate's unelaborated disavowal of the provision

in S. 1983 undermines the reasonableness of the more moderate habitat

protection in the Secretary's "harm" regulation.{19}



The history of the 1982 amendment that gave the Secretary authority to

grant permits for "incidental" takings provides further support for his

reading of the Act.  The House Report expressly states that [b]y use of

the word "incidental" the Committee intends to cover situations in which

it is known that a taking will occur if the other activity is engaged in

but such taking is incidental to, and not the purpose of, the activity.

H.R.Rep. No. 97-567, p. 31 (1982).  This reference to the foreseeability

of incidental takings undermines respondents' argument that the 1982

amendment covered only accidental killings of endangered and threatened

animals that might occur in the course of hunting or trapping other

animals.  Indeed, Congress had habitat modification directly in mind:

both the Senate Report and the House Conference Report identified as the

model for the permit process a cooperative state-federal response to a

case in California where a development project threatened incidental

harm to a species of endangered butterfly by modification of its

habitat.  See S.Rep. No. 97-418, p. 10 (1982); H.R.Conf.Rep. No. 97-835,

pp. 30-32 (1982).  Thus, Congress in 1982 focused squarely on the aspect

of the "harm" regulation at issue in this litigation.  Congress'

implementation of a permit program is consistent with the Secretary's

interpretation of the term "harm." IV



When it enacted the ESA, Congress delegated broad administrative and

interpretive power to the Secretary.  See 16 U.S.C.  1533, 1540(f).  The

task of defining and listing endangered and threatened species requires

an expertise and attention to detail that exceeds the normal province of

Congress.  Fashioning appropriate standards for issuing permits under 10

for takings that would otherwise violate  9 necessarily requires the

exercise of broad discretion.  The proper interpretation of a term such

as "harm" involves a complex policy choice.  When Congress has entrusted

the Secretary with broad discretion, we are especially reluctant to

substitute our views of wise policy for his.  See Chevron, 467 U.S. at

In this case, that reluctance accords with our conclusion, based on the

text, structure, and legislative history of the ESA, that the Secretary

reasonably construed the intent of Congress when he defined "harm" to

include "significant habitat modification or degradation that actually

kills or injures wildlife."



In the elaboration and enforcement of the ESA, the Secretary and all

persons who must comply with the law will confront difficult questions

of proximity and degree; for, as all recognize, the Act encompasses a

vast range of economic and social enterprises and endeavors.  These

questions must be addressed in the usual course of the law, through

case-by-case resolution and adjudication.



The judgment of the Court of Appeals is reversed.



It is so ordered. O'CONNOR, J., concurring



JUSTICE O'CONNOR, concurring.



My agreement with the Court is founded on two understandings.  First,

the challenged regulation is limited to significant habitat modification

that causes actual, as opposed to hypothetical or speculative, death or

injury to identifiable protected animals.  Second, even setting aside

difficult questions of scienter, the regulation's application is limited

by ordinary principles of proximate causation, which introduce notions

of foreseeability.  These limitations, in my view, call into question

Palila v. Hawaii Dept. of Land and Natural Resources, 852 F.2d 1106 (CA9

1988) (Palila II), and with it, many of the applications derided by the

dissent.  Because there is no need to strike a regulation on a facial

challenge out of concern that it is susceptible of erroneous

application, however, and because there are many habitat related

circumstances in which the regulation might validly apply, I join the

opinion of the Court.



In my view, the regulation is limited by its terms to actions that

actually kill or injure individual animals.  JUSTICE SCALIA disagrees,

arguing that the harm regulation "encompasses injury inflicted, not only

upon individual animals, but upon populations of the protected species."

Post at ___.  At one level, I could not reasonably quarrel with this

observation; death to an individual animal always reduces the size of

the population in which it lives, and, in that sense, "injures" that

population.  But, by its insight, the dissent means something else.

Building upon the regulation's use of the word "breeding," JUSTICE

SCALIA suggests that the regulation facially bars significant habitat

modification that actually kills or injures hypothetical animals (or,

perhaps more aptly, causes potential additions to the population not to

come into being).  Because "[i]mpairment of breeding does not `injure'

living creatures," JUSTICE SCALIA reasons, the regulation must

contemplate application to "a population of animals which would

otherwise have maintained or increased its numbers."  Post at ___.



I disagree.  As an initial matter, 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 currently breeds, thereby making it impossible

for any piping plovers to reproduce, would obviously injure the

population (causing the species' extinction in a generation).  But by

completely preventing breeding, it would also injure the individual

living bird, in the same way that sterilizing the creature injures the

individual living bird.  To "injure" is, among other things, "to

impair."  Webster's Ninth New Collegiate Dictionary 623 (1983).  One

need not subscribe to theories of "psychic harm," cf. post at ___, n. 5,

to recognize that 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, in my view, is

actual injury.



In any event, even if impairing an animal's ability to breed were not,

in and of itself, an injury to that animal, interference with breeding

can cause an animal to suffer other, perhaps more obvious, kinds of

injury.  The regulation has clear application, for example, to

significant habitat modification that kills or physically injures

animals which, because they are in a vulnerable breeding state, do not

or cannot flee or defend themselves, or to environmental pollutants that

cause an animal to suffer physical complications during gestation.

Breeding, feeding, and sheltering are what animals do.  If significant

habitat modification, by interfering with these essential behaviors,

actually kills or injures an animal protected by the Act, it causes

"harm" within the meaning of the regulation.  In contrast to JUSTICE

SCALIA, I do not read the regulation's "breeding" reference to vitiate

or somehow to qualify the clear actual death or injury requirement, or

to suggest that the regulation contemplates extension to nonexistent

animals.



There is no inconsistency, I should add, between this interpretation and

the commentary that accompanied the amendment of the regulation to

include the actual death or injury requirement.  See 46 Fed.Reg. 54748

(1981).  Quite the contrary.  It is true, as JUSTICE SCALIA observes,

post at ___, that the Fish and Wildlife Service states at one point that

"harm" is not limited to "direct physical injury to an individual member

of the wildlife species," see 46 Fed.Reg. 54748 (1981).  But one could

just as easily emphasize the word "direct" in this sentence as the word

"individual."*  Elsewhere in the commentary, the Service makes clear

that "section 9's threshold does focus on individual members of a

protected species."  Id. at 54749.  Moreover, the Service says that the

regulation has no application to speculative harm, explaining that its

insertion of the word "actually" was intended "to bulwark the need for

proven injury to a species due to a party's actions."  Ibid.; see also

ibid. (approving language that "Harm covers actions . . . which actually

(as opposed to potentially), cause injury").  That a protected animal

could have eaten the leaves of a fallen tree or could, perhaps, have

fruitfully multiplied in its branches is not sufficient under the

regulation.  Instead, as the commentary reflects, the regulation

requires demonstrable effect (i.e., actual injury or death) on actual,

individual members of the protected species.



By the dissent's reckoning, the regulation at issue here, in conjunction

with 16 U.S.C.  1540(1), imposes liability for any habitat modifying

conduct that ultimately results in the death of a protected animal,

regardless of whether that result is intended or even foreseeable, and

no matter how long the chain of causality between modification and

injury. Post at ___; see also post at ___.  Even if  1540(1) does create

a strict liability regime (a question we need not decide at this

juncture), I see no indication that Congress, in enacting that section,

intended to dispense with ordinary principles of proximate causation.

Strict liability means liability without regard to fault; it does not

normally mean liability for every consequence, however remote, of one's

conduct.  See generally W. Keeton, D. Dobbs, R. Keeton, & D. Owen,

Prosser and Keeton on Law of Torts 559-560 (5th ed. 1984) (describing

"practical necessity for the restriction of liability within some

reasonable bounds" in the strict liability context).  I would not

lightly assume that Congress, in enacting a strict liability statute

that is silent on the causation question, has dispensed with this well

entrenched principle.  In the absence of congressional abrogation of

traditional principles of causation, then, private parties should be

held liable under  1540(1) only if their habitat modifying actions

proximately cause death or injury to protected animals.  Cf. Benefiel v.

Exxon Corp., 959 F.2d 805, 807-808 (CA9 1992) (in enacting the

Trans-Alaska Pipeline Authorization Act, which provides for strict

liability for damages that are the result of discharges, Congress did

not intend to abrogate common law principles of proximate cause to reach

"remote and derivative" consequences); New York v. Shore Realty Corp.,

759 F.2d 1032, 1044, and n. 17 (CA2 1985) (noting that "[t]raditional

tort law has often imposed strict liability while recognizing a

causation defense," but that, in enacting CERCLA, Congress "specifically

rejected including a causation requirement").  The regulation, of

course, does not contradict the presumption or notion that ordinary

principles of causation apply here.  Indeed, by use of the word

"actually," the regulation clearly rejects speculative or conjectural

effects, and thus itself invokes principles of proximate causation.



Proximate causation is not a concept susceptible of precise definition.

See Keeton, supra at 280-281.  It is easy enough, of course, to identify

the extremes.  The farmer whose fertilizer is lifted by tornado from

tilled fields and deposited miles away in a wildlife refuge cannot, by

any stretch of the term, be considered the proximate cause of death or

injury to protected species occasioned thereby.  At the same time, the

landowner who drains a pond on his property, killing endangered fish in

the process, would likely satisfy any formulation of the principle.  We

have recently said that proximate causation "normally eliminates the

bizarre," Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513

U.S. ___, ___ (1995), and have noted its "functionally equivalent"

alternative characterizations in terms of foreseeability, see Milwaukee

& St. Paul R. Co. v. Kellogg, 94 U.S. 469, 475 (1877) ("natural and

probable consequence"), and duty, see Palsgraf v. Long Island R. Co.,

248 N. Y. 339, 162 N. E. 99 (1928).  Consolidated Rail Corp. v.

Gottshall, 512 U.S. ___, ___ (1994).  Proximate causation depends to a

great extent on considerations of the fairness of imposing liability for

remote consequences.  The task of determining whether proximate

causation exists in the limitless fact patterns sure to arise is best

left to lower courts.  But I note at the least, that proximate cause

principles inject a foreseeability element into the statute, and hence,

the regulation, that would appear to alleviate some of the problems

noted by the dissent.  See, e.g., post at ___ (describing "a farmer who

tills his field and causes erosion that makes silt run into a nearby

river which depletes oxygen, and thereby [injures] protected fish").



In my view, then, the "harm" regulation applies where significant

habitat modification, by impairing essential behaviors, proximately

(foreseeably) causes actual death or injury to identifiable animals that

are protected under the Endangered Species Act.  Pursuant to my

interpretation, Palila II -- under which the Court of Appeals held that

a state agency committed a "taking" by permitting feral sheep to eat

mamanenaio seedlings that, when full-grown, might have fed and sheltered

endangered palila -- was wrongly decided according to the regulation's

own terms.  Destruction of the seedlings did not proximately cause

actual death or injury to identifiable birds; it merely prevented the

regeneration of forest land not currently inhabited by actual birds.



This case, of course, comes to us as a facial challenge.  We are charged

with deciding whether the regulation, on its face, exceeds the agency's

statutory mandate.  I have identified at least one application of the

regulation (Palila II) that is, in my view, inconsistent with the

regulation's own limitations.  That misapplication does not, however,

call into question the validity of the regulation itself.  One can

doubtless imagine questionable applications of the regulation that test

the limits of the agency's authority.  However, it seems to me clear

that the regulation does not, on its terms, exceed the agency's mandate,

and that the regulation has innumerable valid habitat related

applications.  Congress may, of course, see fit to revisit this issue.

And nothing the Court says today prevents the agency itself from

narrowing the scope of its regulation at a later date.



With this understanding, I join the Court's opinion. SCALIA, J.,

dissenting



JUSTICE SCALIA, with whom The Chief JUSTICE and JUSTICE THOMAS join,

dissenting.



I think it unmistakably clear that the legislation at issue here (1)

forbade the hunting and killing of endangered animals, and (2) provided

federal lands and federal funds for the acquisition of private lands, to

preserve the habitat of endangered animals.  The Court's holding that

the hunting and killing prohibition incidentally preserves habitat on

private lands imposes unfairness to the point of financial ruin -- not

just upon the rich, but upon the simplest farmer who finds his land

conscripted to national zoological use.  I respectfully dissent. I



The Endangered Species Act of 1973, 16 U.S.C.  1531 et seq. (1988 ed.

and Supp. V) (Act), provides that "it is unlawful for any person subject

to the jurisdiction of the United States to take any [protected] species

within the United States."   1538(a)(1)(B).  The term "take" is defined

as "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or

collect, or to attempt to engage in any such conduct."   1532(19)

(emphasis added).  The challenged regulation defines "harm" thus: "Harm"

in the definition of "take" in the Act means an act which actually kills

or injures wildlife.  Such act may include significant habitat

modification or degradation where it actually kills or injures wildlife

by significantly impairing essential behavioral patterns, including

breeding, feeding or sheltering. 50 CFR  17.3 (1994).  In my view,

petitioners must lose -- the regulation must fall -- even under the test

of Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467

U.S. 837, 843 (1984), so I shall assume that the Court is correct to

apply Chevron.  See ante at ___, and n. 18.



The regulation has three features which, for reasons I shall discuss at

length below, do not comport with the statute.  First, it interprets the

statute to prohibit habitat modification that is no more than the

cause-in-fact of death or injury to wildlife.  Any "significant habitat

modification" that in fact produces that result by "impairing essential

behavioral patterns" is made unlawful, regardless of whether that result

is intended or even foreseeable, and no matter how long the chain of

causality between modification and injury.  See, e.g., Palila v. Hawaii

Dept. of Land and Natural Resources (Palila II), 852 F.2d 1106,

1108-1109 (CA9 1988) (sheep grazing constituted "taking" of palila

birds, since although sheep do not destroy full-grown mamane trees, they

do destroy mamane seedlings, which will not grow to full-grown trees, on

which the palila feeds and nests).  See also Davison, Alteration of

Wildlife Habitat as a Prohibited Taking under the Endangered Species

Act, 10 J. Land Use & Envtl.L. 155, 190 (1995) (regulation requires only

causation-in-fact).



Second, the regulation does not require an "act":  the Secretary's

officially stated position is that an omission will do.  The previous

version of the regulation made this explicit.  See 40 Fed.Reg. 44412,

44416 (1975) ("`Harm' in the definition of `take' in the Act means an

act or omission which actually kills or injures wildlife . . .").  When

the regulation was modified in 1981 the phrase "or omission" was taken

out, but only because (as the final publication of the rule advised)

"the [Fish and Wildlife] Service feels that `act' is inclusive of either

commissions or omissions which would be prohibited by section

[1538(a)(1)(B)]."  46 Fed.Reg. 54748, 54750 (1981).  In its brief here

the Government agrees that the regulation covers omissions, see Brief

for Petitioners 47 (although it argues that "[a]n `omission' constitutes

an `act' . . . only if there is a legal duty to act"), ibid.



The third and most important unlawful feature of the regulation is that

it encompasses injury inflicted, not only upon individual animals, but

upon populations of the protected species.  "Injury" in the regulation

includes "significantly impairing essential behavioral patterns,

including breeding," 50 CFR  17.3 (1994) (emphasis added).  Impairment

of breeding does not "injure" living creatures; it prevents them from

propagating, thus "injuring" a population of animals which would

otherwise have maintained or increased its numbers.  What the face of

the regulation shows, the Secretary's official pronouncements confirm.

The Final Redefinition of "Harm" accompanying publication of the

regulation said that "harm" is not limited to "direct physical injury to

an individual member of the wildlife species,"  46 Fed.Reg. 54748

(1981), and refers to "injury to a population," id. at 54749 (emphasis

added).  See also Palila II, 852 F.2d at 1108; Davison, supra at 190,

and n. 177, 195; M. Bean, The Evolution of National Wildlife Law 344

(1983).



None of these three features of the regulation can be found in the

statutory provisions supposed to authorize it.  The term "harm" in

1532(19) has no legal force of its own.  An indictment or civil

complaint that charged the defendant with "harming" an animal protected

under the Act would be dismissed as defective, for the only operative

term in the statute is to "take."  If "take" were not elsewhere defined

in the Act, none could dispute what it means, for the term is as old as

the law itself.  To "take," when applied to wild animals, means to

reduce those animals, by killing or capturing, to human control.  See,

e.g., 11 Oxford English Dictionary (1933) ("Take . . . To catch, capture

(a wild beast, bird, fish, etc.)"); Webster's New International

Dictionary of the English Language (2d ed. 1949) (take defined as "to

catch or capture by trapping, snaring, etc., or as prey"); Geer v.

Connecticut, 161 U.S. 519, 523 (1896) ("[A]ll the animals which can be

taken upon the earth, in the sea, or in the air, that is to say, wild

animals, belong to those who take them") (quoting the Digest of

Justinian); 2 W. Blackstone, Commentaries 411 (1766) ("Every man . . .

has an equal right of pursuing and taking to his own use all such

creatures as are ferae naturae")).  This is just the sense in which

"take" is used elsewhere in federal legislation and treaty.  See, e.g.,

Migratory Bird Treaty Act, 16 U.S.C.  703 (1988 ed., Supp. V) (no person

may "pursue, hunt, take, capture, kill, [or] attempt to take, capture,

or kill" any migratory bird); Agreement on the Conservation of Polar

Bears, Nov. 15, 1973, Art. I, 27 U.S. T. 3918, 3921, T. I. A. S. No.

8409 (defining "taking" as "hunting, killing and capturing").  And that

meaning fits neatly with the rest of  1538(a)(1), which makes it

unlawful not only to take protected species, but also to import or

export them ( 1538(a)(1)(A)); to possess, sell, deliver, carry,

transport, or ship any taken species ( 1538(a)(1)(D)); and to transport,

sell, or offer to sell them in interstate or foreign commerce (

1538(a)(1)(E), (F).  The taking prohibition, in other words, is only

part of the regulatory plan of  1538(a)(1), which covers all the stages

of the process by which protected wildlife is reduced to man's dominion

and made the object of profit.  It is obvious that "take" in this sense

-- a term of art deeply embedded in the statutory and common law

concerning wildlife -- describes a class of acts (not omissions) done

directly and intentionally (not indirectly and by accident) to

particular animals (not populations of animals).



The Act's definition of "take" does expand the word slightly (and not

unusually), so as to make clear that it includes not just a completed

taking, but the process of taking, and all of the acts that are

customarily identified with or accompany that process ("to harass, harm,

pursue, hunt, shoot, wound, kill, trap, capture, or collect"); and so as

to include attempts.   1532(19).  The tempting fallacy -- which the

Court commits with abandon, see ante at ___, n. 10 -- is to assume that

once defined, "take" loses any significance, and it is only the

definition that matters.  The Court treats the statute as though

Congress had directly enacted the  1532(19) definition as a

self-executing prohibition, and had not enacted  1538(a)(1)(B) at all.

But  1538(a)(1)(B) is there, and if the terms contained in the

definitional section are susceptible of two readings, one of which

comports with the standard meaning of "take" as used in application to

wildlife and one of which does not, an agency regulation that adopts the

latter reading is necessarily unreasonable, for it reads the defined

term "take" -- the only operative term -- out of the statute altogether.



That is what has occurred here.  The verb "harm" has a range of meaning:

"to cause injury" at its broadest, "to do hurt or damage" in a narrower

and more direct sense.  See, e.g., 1 N. Webster, An American Dictionary

of the English Language (1828) ("Harm, v.t.  To hurt; to injure; to

damage; to impair soundness of body, either animal or vegetable")

(emphasis added); American College Dictionary 551 (1970) ("harm . . . n.

injury; damage; hurt:  to do him bodily harm").  In fact, the more

directed sense of "harm" is a somewhat more common and preferred usage;

"harm has in it a little of the idea of specially focused hurt or

injury, as if a personal injury has been anticipated and intended."  J.

Opdycke, Mark My Words:  A Guide to Modern Usage and Expression 330

(1949).  See also American Heritage Dictionary of the English Language

(1981) ("Injure has the widest range. . . . Harm and hurt refer

principally to what causes physical or mental distress to living

things").  To define "harm" as an act or omission that, however

remotely, "actually kills or injures" a population of wildlife through

habitat modification, is to choose a meaning that makes nonsense of the

word that "harm" defines -- requiring us to accept that a farmer who

tills his field and causes erosion that makes silt run into a nearby

river which depletes oxygen and thereby "impairs [the] breeding" of

protected fish, has "taken" or "attempted to take" the fish.  It should

take the strongest evidence to make us believe that Congress has defined

a term in a manner repugnant to its ordinary and traditional sense.



Here the evidence shows the opposite.  "Harm" is merely one of 10

prohibitory words in  1532(19), and the other 9 fit the ordinary meaning

of "take" perfectly.  To "harass, pursue, hunt, shoot, wound, kill,

trap, capture, or collect" are all affirmative acts (the provision

itself describes them as "conduct," see  1532(19)) which are directed

immediately and intentionally against a particular animal -- not acts or

omissions that indirectly and accidentally cause injury to a population

of animals.  The Court points out that several of the words ("harass,"

"pursue," "wound," and "kill") "refer to actions or effects that do not

require direct applications of force."  Ante, at ___ (emphasis added).

That is true enough, but force is not the point.  Even "taking"

activities in the narrowest sense, activities traditionally engaged in

by hunters and trappers, do not all consist of direct applications of

force; pursuit and harassment are part of the business of "taking" the

prey even before it has been touched.  What the nine other words in

1532(19) have in common -- and share with the narrower meaning of "harm"

described above, but not with the Secretary's ruthless dilation of the

word -- is the sense of affirmative conduct intentionally directed

against a particular animal or animals.



I am not the first to notice this fact, or to draw the conclusion that

it compels.  In 1981, the Solicitor of the Fish and Wildlife Service

delivered a legal opinion on  1532(19) that is in complete agreement

with my reading:



The Act's definition of "take" contains a list of actions that

illustrate the intended scope of the term. . . .   With the possible

exception of "harm," these terms all represent forms of conduct that are

directed against and likely to injure or kill individual wildlife. Under

the principle of statutory construction, ejusdem generis, . . . the term

"harm" should be interpreted to include only those actions that are

directed against, and likely to injure or kill, individual wildlife.

Memorandum of April 17, 1981, reprinted in 46 Fed.Reg. 29490, 29491

(emphasis in original).  I would call it noscitur a sociis, but the

principle is much the same:  the fact that "several items in a list

share an attribute counsels in favor of interpreting the other items as

possessing that attribute as well," Beecham v. United States, 511 U.S.

___, ___ (1994).  The Court contends that the canon cannot be applied to

deprive a word of all its "independent meaning," ante at ___.  That

proposition is questionable to begin with, especially as applied to long

lawyers' listings such as this.  If it were true, we ought to give the

word "trap" in the definition its rare meaning of "to clothe" (whence

"trappings") -- since otherwise it adds nothing to the word "capture."

See Moskal v. United States, 498 U.S. 103, 120 (1990) (SCALIA, J.,

dissenting).  In any event, the Court's contention that "harm" in the

narrow sense adds nothing to the other words underestimates the

ingenuity of our own species in a way that Congress did not.  To feed an

animal poison, to spray it with mace, to chop down the very tree in

which it is nesting, or even to destroy its entire habitat in order to

take it (as by draining a pond to get at a turtle), might neither wound

nor kill, but would directly and intentionally harm.



The penalty provisions of the Act counsel this interpretation as well.

Any person who "knowingly" violates  1538(a)(1)(B) is subject to

criminal penalties under  1540(b)(1) and civil penalties under

1540(a)(1); moreover, under the latter section, any person "who

otherwise violates" the taking prohibition (i.e., violates it

unknowingly) may be assessed a civil penalty of $500 for each violation,

with the stricture that "[e]ach such violation shall be a separate

offense."  This last provision should be clear warning that the

regulation is in error, for, when combined with the regulation, it

produces a result that no legislature could reasonably be thought to

have intended:  a large number of routine private activities -- farming,

for example, ranching, roadbuilding, construction and logging -- are

subjected to strict liability penalties when they fortuitously injure

protected wildlife, no matter how remote the chain of causation and no

matter how difficult to foresee (or to disprove) the "injury" may be

(e.g., an "impairment" of breeding).  The Court says that "[the strict

liability provision] is potentially sweeping, but it would be so with or

without the Secretary's `harm' regulation."  Ante, at ___, n. 9.  That

is not correct.  Without the regulation, the routine "habitat modifying"

activities that people conduct to make a daily living would not carry

exposure to strict penalties; only acts directed at animals, like those

described by the other words in  1532(19), would risk liability.



The Court says that [to] read a requirement of intent or purpose into

the words used to define "take" . . . ignore[s] [ 1540's] express

provision that a "knowing" action is enough to violate the Act. Ante, at

___.  This presumably means that, because the reading of  1532(19)

advanced here ascribes an element of purposeful injury to the prohibited

acts, it makes superfluous (or inexplicable) the more severe penalties

provided for a "knowing" violation.  That conclusion does not follow,

for it is quite possible to take protected wildlife purposefully without

doing so knowingly.  A requirement that a violation be "knowing" means

that the defendant must "know the facts that make his conduct illegal,"

Staples v. United States, 511 U.S. ___, ___ (1994).  The hunter who

shoots an elk in the mistaken belief that it is a mule deer has not

knowingly violated  1538(a)(1)(B) -- not because he does not know that

elk are legally protected (that would be knowledge of the law, which is

not a requirement, see ante at ___, n. 9), but because he does not know

what sort of animal he is shooting.  The hunter has nonetheless

committed a purposeful taking of protected wildlife, and would therefore

be subject to the (lower) strict liability penalties for the violation.



So far, I have discussed only the immediate statutory text bearing on

the regulation.  But the definition of "take" in  1532(19) applies

"[f]or the purposes of this chapter," that is, it governs the meaning of

the word as used everywhere in the Act.  Thus, the Secretary's

interpretation of "harm" is wrong if it does not fit with the use of

"take" throughout the Act.  And it does not.  In  1540(e)(4)(B), for

example, Congress provided for the forfeiture of "[a]ll guns, traps,

nets, and other equipment . . . used to aid the taking, possessing,

selling, [etc.]" of protected animals.  This listing plainly relates to

"taking" in the ordinary sense.  If environmental modification were part

(and necessarily a major part) of taking, as the Secretary maintains,

one would have expected the list to include "plows, bulldozers, and

backhoes."  As another example,  1539(e)(1) exempts "the taking of any

endangered species" by Alaskan Indians and Eskimos "if such taking is

primarily for subsistence purposes"; and provides that [n]on-edible

byproducts of species taken pursuant to this section may be sold . . .

when made into authentic native articles of handicrafts and clothing.

Surely these provisions apply to taking only in the ordinary sense, and

are meaningless as applied to species injured by environmental

modification.  The Act is full of like examples.  See, e.g.,

1538(a)(1)(D) (prohibiting possession, sale, and transport of "species

taken in violation" of the Act). [I]f the Act is to be interpreted as a

symmetrical and coherent regulatory scheme, one in which the operative

words have a consistent meaning throughout, Gustafson v. Alloyd Co., 513

U.S. ___, ___ (1995), the regulation must fall.



The broader structure of the Act confirms the unreasonableness of the

regulation.  Section 1536 provides:



Each Federal agency shall . . . insure that any action authorized,

funded, or carried out by such agency . . . is not likely to jeopardize

the continued existence of any endangered species or threatened species

or result in the destruction or adverse modification of habitat of such

species which is determined by the Secretary . . . to be critical. 16

U.S.C.  1536(a)(2) (emphasis added).  The Act defines "critical habitat"

as habitat that is "essential to the conservation of the species,"

1532(5)(A)(i), (A)(ii), with "conservation," in turn, defined as the use

of methods necessary to bring listed species "to the point at which the

measures provided pursuant to this chapter are no longer necessary."

1532(3).



These provisions have a double significance.  Even if  1536(a)(2) and

1538(a)(1)(B) were totally independent prohibitions -- the former

applying only to federal agencies and their licensees, the latter only

to private parties -- Congress's explicit prohibition of habitat

modification in the one section would bar the inference of an implicit

prohibition of habitat modification in the other section. [W]here

Congress includes particular language in one section of a statute but

omits it in another . . . , it is generally presumed that Congress acts

intentionally and purposely in the disparate inclusion or exclusion.

Keene Corp. v. United States, 508 U.S. ___, ___ (1993) (internal

quotation marks omitted).  And that presumption against implicit

prohibition would be even stronger where the one section which uses the

language carefully defines and limits its application.  That is to say,

it would be passing strange for Congress carefully to define "critical

habitat" as used in  1536(a)(2), but leave it to the Secretary to

evaluate, willy-nilly, impermissible "habitat modification" (under the

guise of "harm") in  1538(a)(1)(B).



In fact, however,  1536(a)(2) and 1538(a)(1)(B) do not operate in

separate realms; federal agencies are subject to both, because the

"person[s]" forbidden to take protected species under  1538 include

agencies and departments of the Federal Government.  See  1532(13). This

means that the "harm" regulation also contradicts another principle of

interpretation:  that statutes should be read so far as possible to give

independent effect to all their provisions.  See Ratzlaf v. United

States, 510 U.S. ___, ___.  By defining "harm" in the definition of

"take" in  1538(a)(1)(B) to include significant habitat modification

that injures populations of wildlife, the regulation makes the habitat

modification restriction in  1536(a)(2) almost wholly superfluous.  As

"critical habitat" is habitat "essential to the conservation of the

species," adverse modification of "critical" habitat by a federal agency

would also constitute habitat modification that injures a population of

wildlife.



Petitioners try to salvage some independent scope for  1536(a)(2) by the

following contortion:  because the definition of critical habitat

includes not only "the specific areas within the geographical area

occupied by the species [that are] essential to the conservation of the

species,"  1532(5)(A)(i), but also specific areas outside the

geographical area occupied by the species at the time it is listed [as a

protected species] . . . [that are] essential to the conservation of the

species, 1532A(5)(ii), there may be some agency modifications of

critical habitat which do not injure a population of wildlife.  See

Brief for Petitioners 41, and n. 27.  This is dubious to begin with.  A

principal way to injure wildlife under the Secretary's own regulation is

to "significantly impai[r] . . . breeding," 50 CFR  17.3 (1994).  To

prevent the natural increase of a species by adverse modification of

habitat suitable for expansion assuredly impairs breeding.  But even if

true, the argument only narrows the scope of the superfluity, leaving as

so many wasted words the  1532(a)(5)(i) definition of critical habitat

to include currently occupied habitat essential to the species'

conservation.  If the Secretary's definition of "harm" under

1538(a)(1)(B) is to be upheld, we must believe that Congress enacted

1536(a)(2) solely because in its absence federal agencies would be able

to modify habitat in currently unoccupied areas.  It is more rational to

believe that the Secretary's expansion of  1538(a)(1)(B) carves out the

heart of one of the central provisions of the Act. II



The Court makes four other arguments.  First, the broad purpose of the

[Act] supports the Secretary's decision to extend protection against

activities that cause the precise harms Congress enacted the statute to

avoid. Ante, at ___.  I thought we had renounced the vice of

"simplistically . . . assum[ing] that whatever furthers the statute's

primary objective must be the law."  Rodriguez v. United States, 480

U.S. 522, 526 (1987) (per curiam) (emphasis in original).  Deduction

from the "broad purpose" of a statute begs the question if it is used to

decide by what means (and hence to what length) Congress pursued that

purpose; to get the right answer to that question, there is no

substitute for the hard job (or, in this case, the quite simple one) of

reading the whole text.  "The Act must do everything necessary to

achieve its broad purpose" is the slogan of the enthusiast, not the

analytical tool of the arbiter.



Second, the Court maintains that the legislative history of the 1973 Act

supports the Secretary's definition.  See ante at ___.  Even if

legislative history were a legitimate and reliable tool of

interpretation (which I shall assume in order to rebut the Court's

claim); and even if it could appropriately be resorted to when the

enacted text is as clear as this, but see Chicago v. Environmental

Defense Fund, 511 U.S. ___, ___ (1994); here it shows quite the opposite

of what the Court says.  I shall not pause to discuss the Court's

reliance on such statements in the Committee Reports as "[t]ake" is

defined . . . in the broadest possible manner to include every

conceivable way in which a person can "take" or attempt to "take" any

fish or wildlife. S.Rep. No. 93-307, p. 7 (1973) (quoted ante at ___).

This sort of empty flourish -- to the effect that "this statute means

what it means all the way" -- counts for little even when enacted into

the law itself.  See Reves v. Ernst & Young, 507 U.S. ___, ___ (1993).



Much of the Court's discussion of legislative history is devoted to two

items:  first, the Senate floor manager's introduction of an amendment

that added the word "harm" to the definition of "take," with the

observation that (along with other amendments) it would "help to achieve

the purposes of the bill"; second, the relevant Committee's removal from

the definition of a provision stating that "take" includes "the

destruction, modification or curtailment of [the] habitat or range" of

fish and wildlife.  See ante at ___.  The Court inflates the first and

belittles the second, even though the second is on its face far more

pertinent.  But this elaborate inference from various pre-enactment

actions and inactions is quite unnecessary, since we have direct

evidence of what those who brought the legislation to the floor thought

it meant -- evidence as solid as any ever to be found in legislative

history, but which the Court banishes to a footnote.  See ante at ___,

n. 19.



Both the Senate and House floor managers of the bill explained it in

terms which leave no doubt that the problem of habitat destruction on

private lands was to be solved principally by the land acquisition

program of  1534, while  1538 solved a different problem altogether --

the problem of takings.  Senator Tunney stated: Through [the] land

acquisition provisions, we will be able to conserve habitats necessary

to protect fish and wildlife from further destruction.



Although most endangered species are threatened primarily by the

destruction of their natural habitats, a significant portion of these

animals are subject to predation by man for commercial, sport,

consumption, or other purposes.   The provisions of [the bill] would

prohibit the commerce in or the importation, exportation, or taking of

endangered species. . . . 119 Cong. Rec. 25669 (1973) (emphasis added).

The House floor manager, Representative Sullivan, put the same thought

in this way: [T]he principal threat to animals stems from destruction of

their habitat. . . .  [The bill] will meet this problem by providing

funds for acquisition of critical habitat. . . .  It will also enable

the Department of Agriculture to cooperate with willing landowners who

desire to assist in the protection of endangered species, but who are

understandably unwilling to do so at excessive cost to themselves.

Another hazard to endangered species arises from those who would capture

or kill them for pleasure or profit.  There is no way that Congress can

make it less pleasurable for a person to take an animal, but we can

certainly make it less profitable for them to do so. Id. at 30162

(emphasis added).  Habitat modification and takings, in other words,

were viewed as different problems, addressed by different provisions of

the Act.  The Court really has no explanation for these statements.  All

it can say is that [n]either statement even suggested that [the habitat

acquisition funding provision in  1534] would be the Act's exclusive

remedy for habitat modification by private landowners or that habitat

modification by private landowners stood outside the ambit of [ 1538].

Ante at ___, n. 19.  That is to say, the statements are not as bad as

they might have been.  Little in life is.  They are, however, quite bad

enough to destroy the Court's legislative history case, since they

display the clear understanding (1) that habitat modification is

separate from "taking," and (2) that habitat destruction on private

lands is to be remedied by public acquisition, and not by making

particular unlucky landowners incur "excessive cost to themselves."  The

Court points out triumphantly that they do not display the understanding

(3) that the land acquisition program is "the [Act's] only response to

habitat modification."  Ibid.  Of course not, since that is not so (all

public lands are subject to habitat modification restrictions); but (1)

and (2) are quite enough to exclude the Court's interpretation.  They

identify the land acquisition program as the Act's only response to

habitat modification by private landowners, and thus do not in the least

"contradic[t]," ibid. the fact that  1536 prohibits habitat modification

by federal agencies.



Third, the Court seeks support from a provision which was added to the

Act in 1982, the year after the Secretary promulgated the current

regulation.  The provision states: [T]he Secretary may permit, under

such terms and conditions as he shall prescribe -- *    *    *    * any

taking otherwise prohibited by section 1538(a)(1)(B) . . . if such

taking is incidental to, and not the purpose of, the carrying out of an

otherwise lawful activity. 16 U.S.C.  1539(a)(1)(B).  This provision

does not, of course, implicate our doctrine that reenactment of a

statutory provision ratifies an extant judicial or administrative

interpretation, for neither the taking prohibition in  1538(a)(1)(B) nor

the definition in  1532(19) was reenacted.  See Central Bank of Denver,

N. A. v. First Interstate Bank of Denver, N. A., 511 U.S. ___, ___

(1994).  The Court claims, however, that the provision "strongly

suggests that Congress understood [ 1538(a)(1)(B)] to prohibit indirect

as well as deliberate takings."  Ante at ___.  That would be a valid

inference if habitat modification were the only substantial "otherwise

lawful activity" that might incidentally and nonpurposefully cause a

prohibited "taking."  Of course it is not.  This provision applies to

the many otherwise lawful takings that incidentally take a protected

species -- as when fishing for unprotected salmon also takes an

endangered species of salmon, see Pacific Northwest Generating

Cooperative v. Brown, 38 F.3d 1058, 1067 (CA9 1994).  Congress has

referred to such "incidental takings" in other statutes as well -- for

example, a statute referring to "the incidental taking of . . . sea

turtles in the course of . . . harvesting [shrimp]" and to the "rate of

incidental taking of sea turtles by United States vessels in the course

of such harvesting," 103 Stat. 1038  609(b)(2), note following 16 U.S.C.

1537 (1988 ed., Supp. V); and a statute referring to "the incidental

taking of marine mammals in the course of commercial fishing

operations," 108 Stat. 546,  118(a).  The Court shows that it

misunderstands the question when it says that [n]o one could seriously

request an "incidental" take permit to avert . . . liability for direct,

deliberate action against a member of an endangered or threatened

species. Ante at ___ (emphasis added).  That is not an incidental take

at all.



This is enough to show, in my view, that the 1982 permit provision does

not support the regulation.  I must acknowledge that the Senate

Committee Report on this provision, and the House Conference Committee

Report, clearly contemplate that it will enable the Secretary to permit

environmental modification.  See S.Rep. No. 97-418, p. 10 (1982);

H.R.Conf.Rep. No. 97-835, pp. 30-32 (1982).  But the text of the

amendment cannot possibly bear that asserted meaning, when placed within

the context of an Act that must be interpreted (as we have seen) not to

prohibit private environmental modification.  The neutral language of

the amendment cannot possibly alter that interpretation, nor can its

legislative history be summoned forth to contradict, rather than

clarify, what is in its totality an unambiguous statutory text.  See

Chicago v. Environmental Defense Fund, 511 U.S. ___ (1994).  There is

little fear, of course, that giving no effect to the relevant portions

of the Committee Reports will frustrate the real life expectations of a

majority of the Members of Congress.  If they read and relied on such

tedious detail on such an obscure point (it was not, after all,

presented as a revision of the statute's prohibitory scope, but as a

discretionary waiver provision) the Republic would be in grave peril.



Fourth and lastly, the Court seeks to avoid the evident shortcomings of

the regulation on the ground that the respondents are challenging it on

its face, rather than as applied.  See ante at ___; see also ante at ___

(O'CONNOR, J., concurring).  The Court seems to say that even if the

regulation dispenses with the foreseeability of harm that it

acknowledges the statute to require, that does not matter because this

is a facial challenge:  so long as habitat modification that would

foreseeably cause harm is prohibited by the statute, the regulation must

be sustained.  Presumably it would apply the same reasoning to all the

other defects of the regulation:  the regulation's failure to require

injury to particular animals survives the present challenge, because at

least some environmental modifications kill particular animals.  This

evisceration of the facial challenge is unprecedented.  It is one thing

to say that a facial challenge to a regulation that omits statutory

element x must be rejected if there is any set of facts on which the

statute does not require x.  It is something quite different -- and

unlike any doctrine of "facial challenge" I have ever encountered -- to

say that the challenge must be rejected if the regulation could be

applied to a state of facts in which element x happens to be present. On

this analysis, the only regulation susceptible to facial attack is one

that not only is invalid in all its applications, but also does not

sweep up any person who could have been held liable under a proper

application of the statute.  That is not the law.  Suppose a statute

that prohibits "premeditated killing of a human being," and an

implementing regulation that prohibits "killing a human being."  A

facial challenge to the regulation would not be rejected on the ground

that, after all, it could be applied to a killing that happened to be

premeditated.  It could not be applied to such a killing, because it

does not require the factfinder to find premeditation, as the statute

requires.  In other words, to simplify its task the Court today confuses

lawful application of the challenged regulation with lawful application

of a different regulation, i.e., one requiring the various elements of

liability that this regulation omits. III



In response to the points made in this dissent, the Court's opinion

stresses two points, neither of which is supported by the regulation,

and so cannot validly be used to uphold it.  First, the Court and the

concurrence suggest that the regulation should be read to contain a

requirement of proximate causation or foreseeability, principally

because the statute does -- and "[n]othing in the regulation purports to

weaken those requirements [of the statute]."  See ante at ___, n. 9;

1___, n. 13; see also ante at ___ (O'CONNOR, J., concurring).  I quite

agree that the statute contains such a limitation, because the verbs of

purpose in  1538(a)(1)(B) denote action directed at animals.  But the

Court has rejected that reading.  The critical premise on which it has

upheld the regulation is that, despite the weight of the other words in

1538(a)(1)(B), "the statutory term `harm' encompasses indirect as well

as direct injuries," ante at ___.  See also ante at ___, n. 11

(describing "the sense of indirect causation that `harm' adds to the

statute"); ante at ___ (stating that the Secretary permissibly

interprets "`harm'" to include "indirectly injuring endangered

animals").  Consequently, unless there is some strange category of

causation that is indirect and yet also proximate, the Court has already

rejected its own basis for finding a proximate cause limitation in the

regulation.  In fact, "proximate" causation simply means "direct"

causation.  See, e.g., Black's Law Dictionary 1103 (5th ed. 1979)

(defining "[p]roximate" as "Immediate; nearest; direct") (emphasis

added); Webster's New International Dictionary of the English Language

1995 (2d ed. 1949) ("proximate cause.  A cause which directly, or with

no mediate agency, produces an effect") (emphasis added).  The only

other reason given for finding a proximate cause limitation in the

regulation is that, by use of the word "actually," the regulation

clearly rejects speculative or conjectural effects, and thus itself

invokes principles of proximate causation. Ante at ___ (O'CONNOR, J.,

concurring); see also ante at ___, n. 13 (majority opinion).  Non

sequitur, of course.  That the injury must be "actual" as opposed to

"potential" simply says nothing at all about the length or

foreseeability of the causal chain between the habitat modification and

the "actual" injury.  It is thus true and irrelevant that "the Secretary

did not need to include `actually' to connote `but for' causation," ante

at ___, n. 13; "actually" defines the requisite injury, not the

requisite causality.



The regulation says (it is worth repeating) that "harm" means (1) an act

which (2) actually kills or injures wildlife.  If that does not dispense

with a proximate cause requirement, I do not know what language would.

And changing the regulation by judicial invention, even to achieve

compliance with the statute, is not permissible.  Perhaps the agency

itself would prefer to achieve compliance in some other fashion.  We

defer to reasonable agency interpretations of ambiguous statutes

precisely in order that agencies, rather than courts, may exercise

policymaking discretion in the interstices of statutes.  See Chevron,

467 U.S. at   Just as courts may not exercise an agency's power to

adjudicate, and so may not affirm an agency order on discretionary

grounds the agency has not advanced, see SEC v. Chenery Corp., 318 U.S.

80 (1943), so also this Court may not exercise the Secretary's power to

regulate, and so may not uphold a regulation by adding to it even the

most reasonable of elements it does not contain.



The second point the Court stresses in its response seems to me a

belated mending of its hold.  It apparently concedes that the statute

requires injury to particular animals, rather than merely to populations

of animals.  See ante at ___, n. 13; id. at ___ (referring to killing or

injuring "members of [listed] species" (emphasis added)).  The Court

then rejects my contention that the regulation ignores this requirement,

since, it says, "every term in the regulation's definition of `harm' is

subservient to the phrase `an act which actually kills or injures

wildlife.'"  Id. at ___, n. 13.  As I have pointed out, see supra at

___, this reading is incompatible with the regulation's specification of

impairment of "breeding" as one of the modes of "kill[ing] or injur[ing]

wildlife."



But since the Court is reading the regulation and the statute

incorrectly in other respects, it may as well introduce this novelty as

well -- law a la carte.  As I understand the regulation that the Court

has created and held consistent with the statute that it has also

created, habitat modification can constitute a "taking," but only if it

results in the killing or harming of individual animals, and only if

that consequence is the direct result of the modification.  This means

that the destruction of privately owned habitat that is essential not

for the feeding or nesting, but for the breeding, of butterflies, would

not violate the Act, since it would not harm or kill any living

butterfly.  I, too, think it would not violate the Act -- not for the

utterly unsupported reason that habitat modifications fall outside the

regulation if they happen not to kill or injure a living animal, but for

the textual reason that only action directed at living animals

constitutes a "take." *    *    *    *



The Endangered Species Act is a carefully considered piece of

legislation that forbids all persons to hunt or harm endangered animals,

but places upon the public at large, rather than upon fortuitously

accountable individual landowners, the cost of preserving the habitat of

endangered species.  There is neither textual support for, nor even

evidence of congressional consideration of, the radically different

disposition contained in the regulation that the Court sustains.  For

these reasons, I respectfully dissent. Footnotes STEVENS, J., lead

opinion (Footnotes)



1. The Act defines the term "endangered species" to mean any species

which is in danger of extinction throughout all or a significant portion

of its range other than a species of the Class Insecta determined by the

Secretary to constitute a pest whose protection under the provisions of

this chapter would present an overwhelming and overriding risk to man.

16 U.S.C.  1532(6).



2. The Secretary, through the Director of the Fish and Wildlife Service,

originally promulgated the regulation in 1975 and amended it in 1981 to

emphasize that actual death or injury of a protected animal is necessary

for a violation.  See 40 Fed.Reg. 44412, 44416 (1975); 46 Fed.Reg.

54748, 54750 (1981).



3. Respondents also argued in the District Court that the Secretary's

definition of "harm" is unconstitutionally void for vagueness, but they

do not press that argument here.



4. The woodpecker was listed as an endangered species in 1970 pursuant

to the statutory predecessor of the ESA.  See 50 CFR  17.11(h) (1994),

issued pursuant to the Endangered Species Conservation Act of 1969, 83

Stat. 275.



5. See 55 Fed.Reg. 26114 (1990).  Another regulation promulgated by the

Secretary extends to threatened species, defined in the ESA as "any

species which is likely to become an endangered species within the

foreseeable future throughout all or a significant portion of its

range," 16 U.S.C.  1532(20), some but not all of the protections

endangered species enjoy.  See 50 CFR 17.31(a) (1994).  In the District

Court respondents unsuccessfully challenged that regulation's extension

of  9 to threatened species, but they do not press the challenge here.



6. Senate 1983, reprinted in Hearings on S. 1592 and S. 1983 before the

Subcommittee on Environment of the Senate Committee on Commerce, 93d

Cong., 1st Sess., 27 (1973).



7. Judge Sentelle filed a partial concurrence in which he declined to

join the portions of the court's opinion that relied on legislative

history.  See 17 F.3d 1463, 1472 (CADC 1994).



8. The 1982 amendment had formed the basis on which the author of the

majority's opinion on rehearing originally voted to affirm the judgment

of the District Court.  Compare 1 F.3d 1, 11 (CADC 1993) (Williams, J.,

concurring in part), with 17 F.3d at 1467-1472.



9. As discussed above, the Secretary's definition of "harm" is limited

to "act[s] which actually kil[l] or injur[e] wildlife."  50 CFR  17.3

(1994).  In addition, in order to be subject to the Act's criminal

penalties or the more severe of its civil penalties, one must "knowingly

violat[e]" the Act or its implementing regulations.  16 U.S.C.

1540(a)(1),(b)(1).  Congress added "knowingly" in place of "willfully"

in 1978 to make "criminal violations of the act a general rather than a

specific intent crime."  H.R.Conf.Rep. No. 95-1804, p. 26 (1978).  The

Act does authorize up to a $500 civil fine for "[a]ny person who

otherwise violates" the Act or its implementing regulations.  16 U.S.C.

1540(a)(1).  That provision is potentially sweeping, but it would be so

with or without the Secretary's "harm" regulation, making it unhelpful

in assessing the reasonableness of the regulation.  We have imputed

scienter requirements to criminal statutes that impose sanctions without

expressly requiring scienter, see, e.g., Staples v. United States, 511

U.S. ___ (1994), but the proper case in which we might consider whether

to do so in the  9 provision for a $500 civil penalty would be a

challenge to enforcement of that provision itself, not a challenge to a

regulation that merely defines a statutory term.  We do not agree with

the dissent that the regulation covers results that are not "even

foreseeable . . . no matter how long the chain of causality between

modification and injury."  Post at ___.  Respondents have suggested no

reason why either the "knowingly violates" or the "otherwise violates"

provision of the statute -- or the "harm" regulation itself -- should

not be read to incorporate ordinary requirements of proximate causation

and foreseeability.  In any event, neither respondents nor their amici

have suggested that the Secretary employs the "otherwise violates"

provision with any frequency.



10. Respondents and the dissent emphasize what they portray as the

"established meaning" of "take" in the sense of a "wildlife take," a

meaning respondents argue extends only to "the effort to exercise

dominion over some creature, and the concrete effect of [sic] that

creature."  Brief for Respondents 19; see post at ___.  This limitation

ill serves the statutory text, which forbids not taking "some creature"

but "tak[ing] any [endangered] species" -- a formidable task for even

the most rapacious feudal lord.  More importantly, Congress explicitly

defined the operative term "take" in the ESA, no matter how much the

dissent wishes otherwise, see post at ___, thereby obviating the need

for us to probe its meaning as we must probe the meaning of the

undefined subsidiary term "harm."  Finally, Congress' definition of

"take" includes several words -- most obviously "harass," "pursue," and

"wound," in addition to "harm" itself -- that fit respondents' and the

dissent's definition of "take" no better than does "significant habitat

modification or degradation."



11. In contrast, if the statutory term "harm" encompasses such indirect

means of killing and injuring wildlife as habitat modification, the

other terms listed in  3 -- "harass," "pursue," "hunt," "shoot,"

"wound," "kill," "trap," "capture," and "collect" -- generally retain

independent meanings.  Most of those terms refer to deliberate actions

more frequently than does "harm," and they therefore do not duplicate

the sense of indirect causation that "harm" adds to the statute.  In

addition, most of the other words in the definition describe either

actions from which habitat modification does not usually result (e.g.,

"pursue," "harass") or effects to which activities that modify habitat

do not usually lead (e.g., "trap," "collect").  To the extent the

Secretary's definition of "harm" may have applications that overlap with

other words in the definition, that overlap reflects the broad purpose

of the Act.  See infra at ___.



12. We stated: The Secretary of the Interior has defined the term "harm"

to mean "an act or omission which actually injures or kills wildlife,

including acts which annoy it to such an extent as to significantly

disrupt essential behavioral patterns, which include, but are not

limited to, breeding, feeding or sheltering; significant environmental

modification or degradation which has such effects is included within

the meaning of `harm.'" TVA v. Hill, 437 U.S. 153,  n. 30 (1978)

(citations omitted; emphasis in original).



13. The dissent incorrectly asserts that the Secretary's regulation (1)

"dispenses with the foreseeability of harm" and (2) "fail[s] to require

injury to particular animals," post at ___.  As to the first assertion,

the regulation merely implements the statute, and it is therefore

subject to the statute's "knowingly violates" language, see 16 U.S.C.

1540(a)(1),(b)(1), and ordinary requirements of proximate causation and

foreseeability.  See n. 9, supra.  Nothing in the regulation purports to

weaken those requirements.  To the contrary, the word "actually" in the

regulation should be construed to limit the liability about which the

dissent appears most concerned, liability under the statute's "otherwise

violates" provision.  See n. 9, supra; post at ___.  The Secretary did

not need to include "actually" to connote "but for" causation, which the

other words in the definition obviously require. As to the dissent's

second assertion, every term in the regulation's definition of "harm" is

subservient to the phrase "an act which actually kills or injures

wildlife."



14. The dissent acknowledges the legislative history's clear indication

that the drafters of the 1982 amendment had habitat modification in

mind, see post at ___, but argues that the text of the amendment

requires a contrary conclusion.  This argument overlooks the statute's

requirement of a "conservation plan," which must describe an alternative

to a known, but undesired, habitat modification.



15. The dissent makes no effort to defend the Court of Appeals' reading

of the statutory definition as requiring a direct application of force.

Instead, it tries to impose on  9 a limitation of liability to

"affirmative conduct intentionally directed against a particular animal

or animals."  Post at ___.  Under the dissent's interpretation of the

Act, a developer could drain a pond, knowing that the act would

extinguish an endangered species of turtles, without even proposing a

conservation plan or applying for a permit under  9(a)(1)(B); unless the

developer was motivated by a desire "to get at a turtle," post at ___,

no statutory taking could occur.  Because such conduct would not

constitute a taking at common law, the dissent would shield it from  9

liability, even though the words "kill" and "harm" in the statutory

definition could apply to such deliberate conduct.  We cannot accept

that limitation.  In any event, our reasons for rejecting the Court of

Appeals' interpretation apply as well to the dissent's novel

construction.



16. Respondents' reliance on United States v. Hayashi, 22 F.3d 859 (CA9

1993), is also misplaced.  Hayashi construed the term "harass," part of

the definition of "take" in the Marine Mammal Protection Act of 1972, 16

U.S.C.  1361 et seq., as requiring a "direct intrusion" on wildlife to

support a criminal prosecution.  22 F.3d at 864.  Hayashi dealt with a

challenge to a single application of a statute whose "take" definition

includes neither "harm" nor several of the other words that appear in

the ESA definition.  Moreover, Hayashi was decided by a panel of the

Ninth Circuit, the same court that had previously upheld the regulation

at issue here in Palila v. Hawaii Dept. of Land and Natural Resources,

852 F.2d 1106 (1988) (Palila II).  Neither the Hayashi majority nor the

dissent saw any need to distinguish or even to cite Palila II.



17. Congress recognized that  7 and 9 are not coextensive as to federal

agencies when, in the wake of our decision in Hill in 1978, it added

7(o), 16 U.S.C.  1536(o), to the Act.  That section provides that any

federal project subject to exemption from  7, 16 U.S.C.  1536(h), will

also be exempt from  9.



18. Respondents also argue that the rule of lenity should foreclose any

deference to the Secretary's interpretation of the ESA because the

statute includes criminal penalties.  The rule of lenity is premised on

two ideas:  first, "a fair warning should be given to the world in

language that the common world will understand, of what the law intends

to do if a certain line is passed;" second, "legislatures and not courts

should define criminal activity."  United States v. Bass, 404 U.S. 336,

(1971) (quoting McBoyle v. United States, 282 U.S. 25, 27 (1931)).  We

have applied the rule of lenity in a case raising a narrow question

concerning the application of a statute that contains criminal sanctions

to a specific factual dispute -- whether pistols with short barrels and

attachable shoulder stocks are short-barreled rifles -- where no

regulation was present.  See United States v. Thompson/Center Arms Co.,

504 U.S. 505,  and n. 9 (1992).  We have never suggested that the rule

of lenity should provide the standard for reviewing facial challenges to

administrative regulations whenever the governing statute authorizes

criminal enforcement.  Even if there exist regulations whose

interpretations of statutory criminal penalties provide such inadequate

notice of potential liability as to offend the rule of lenity, the

"harm" regulation, which has existed for two decades and gives a fair

warning of its consequences, cannot be one of them.



19. Respondents place heavy reliance for their argument that Congress

intended the  5 land acquisition provision and not  9 to be the ESA's

remedy for habitat modification on a floor statement by Senator Tunney:

Many species have been inadvertently exterminated by a negligent

destruction of their habitat.  Their habitats have been cut in size,

polluted, or otherwise altered so that they are unsuitable environments

for natural populations of fish and wildlife.  Under this bill, we can

take steps to make amends for our negligent encroachment.  The Secretary

would be empowered to use the land acquisition authority granted to him

in certain existing legislation to acquire land for the use of the

endangered species programs. . . .  Through these land acquisition

provisions, we will be able to conserve habitats necessary to  protect

fish and wildlife from further destruction.



Although most endangered species are threatened primarily by the

destruction of their natural habitats, a significant portion of these

animals are subject to predation by man for commercial, sport,

consumption, or other purposes.  The provisions in S. 1983 would

prohibit the commerce in or the importation, exportation, or taking of

endangered species. . . . 119 Cong. Rec. 25669 (1973).



Similarly, respondents emphasize a floor statement by Representative

Sullivan, the House floor manager for the ESA: For the most part, the

principal threat to animals stems from destruction of their habitat. . .

.  H. R. 37 will meet this problem by providing funds for acquisition of

critical habitat. . . .  It will also enable the Department of

Agriculture to cooperate with willing landowners who desire to assist in

the protection of endangered species, but who are understandably

unwilling to do so at excessive cost to themselves.



Another hazard to endangered species arises from those who would capture

or kill them for pleasure or profit.  There is no way that Congress can

make it less pleasurable for a person to take an animal, but we can

certainly make it less profitable for them to do so. Id. at 30162.



Each of these statements merely explained features of the bills that

Congress eventually enacted in  5 of the ESA and went on to discuss

elements enacted in  9.  Neither statement even suggested that  5 would

be the Act's exclusive remedy for habitat modification by private

landowners or that habitat modification by private landowners stood

outside the ambit of  9.  Respondents' suggestion that these statements

identified  5 as the ESA's only response to habitat modification

contradicts their emphasis elsewhere on the habitat protections in  7.

See supra at ___. O'CONNOR, J., concurring (Footnotes)



1. JUSTICE SCALIA suggests that, if the word "direct" merits emphasis in

this sentence, then the sentence should be read as an effort to negate

principles of proximate causation.  See post at ___, n. 5.  As this case

itself demonstrates, however, the word "direct" is susceptible of many

meanings.  The Court of Appeals, for example, used "direct" to suggest

an element of purposefulness.  See Sweet Home Chapter of Communities for

a Great Oregon v. Babbitt, 17 F.3d 1463, 1465 (CADC 1994).  So,

occasionally, does the dissent.  See post at ___ (describing

"affirmative acts . . . which are directed immediately and intentionally

against a particular animal") (emphasis added).  It is not hard to

imagine conduct that, while "indirect" (i.e., nonpurposeful),

proximately causes actual death or injury to individual protected

animals, cf. post at ___; indeed, principles of proximate cause

routinely apply in the negligence and strict liability contexts. SCALIA,

J., dissenting (Footnotes)



1. The Court and JUSTICE O'CONNOR deny that the regulation has the first

or the third of these features.  I respond to their arguments in ___Part

III, infra.



2. The Court suggests half-heartedly that "take" cannot refer to the

taking of particular animals, because  1538(a)(1)(B) prohibits "tak[ing]

any [endangered] species."  Ante at ___, n. 10.  The suggestion is

half-hearted because that reading obviously contradicts the statutory

intent.  It would mean no violation in the intentional shooting of a

single bald eagle -- or, for that matter, the intentional shooting of

1,000 bald eagles out of the extant 1,001.  The phrasing of

1538(a)(1)(B), as the Court recognizes elsewhere, see, e.g., ante at

___, is shorthand for "take any member of [an endangered] species."



3. This portion of the Court's opinion, see ante at ___, n. 12,

discusses and quotes a footnote in TVA v. Hill, 437 U.S. 153, n. 30

(1978), in which we described the then-current version of the

Secretary's regulation, and said that the habitat modification

undertaken by the federal agency in the case would have violated the

regulation.  Even if we had said that the Secretary's regulation was

authorized by  1538, that would have been utter dictum, for the only

provision at issue was  1536.  See 437 U.S. at 193.  But, in fact, we

simply opined on the effect of the regulation while assuming its

validity, just as courts always do with provisions of law whose validity

is not at issue.



4. The statutory requirement of a "conservation plan" is as consistent

with this construction as with the Court's.  See ante at ___, and n. 14.

The commercial fisherman who is in danger of incidentally sweeping up

protected fish in his nets can quite reasonably be required to "minimize

and mitigate" the "impact" of his activity.  16 U.S.C.  1539(a)(2)(A).



5. JUSTICE O'CONNOR supposes that an "impairment of breeding"

intrinsically injures an animal because [t]o 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. Ante at 2 (concurring opinion).  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).

If it includes that psychic harm, then why not the psychic harm of not

being able to frolic about -- so that the draining of a pond used for an

endangered animal's recreation, but in no way essential to its survival,

would be prohibited by the Act?  That the concurrence is driven to such

a dubious redoubt is an argument for, not against, the proposition that

"injury" in the regulation includes injury to populations of animals.

Even more so with the concurrence's alternative explanation:  that

"impairment of breeding" refers to nothing more than concrete injuries

inflicted by the habitat modification on the animal who does the

breeding, such as "physical complications [suffered] during gestation,"

ante at ___.  Quite obviously, if "impairment of breeding" meant such

physical harm to an individual animal, it would not have had to be

mentioned.



The concurrence entangles itself in a dilemma while attempting to

explain the Secretary's commentary to the harm regulation, which stated

that "harm" is not limited to "direct physical injury to an individual

member of the wildlife species," 46 Fed.Reg. 54748 (1981).  The

concurrence denies that this means that the regulation does not require

injury to particular animals, because "one could just as easily

emphasize the word `direct' in this sentence as the word `individual.'"

Ante at ___.  One could; but if the concurrence does, it thereby refutes

its separate attempt to exclude indirect causation from the regulation's

coverage, see ante at ___.  The regulation, after emerging from the

concurrence's analysis, has acquired both a proximate cause limitation

and a particular animals limitation -- precisely the one meaning that

the Secretary's quoted declaration will not allow, whichever part of it

is emphasized.

