BRUCE BABBITT, SECRETARY OF THE INTERIOR, ET AL., PETITIONERS v. SWEET HOME CHAPTER OF COMMUNITIES FOR A GREAT OREGON ET AL.

 

No. 94-859

 

SUPREME COURT OF THE UNITED STATES

 

515 U.S. 687; 115 S. Ct. 2407; 1995 U.S. LEXIS 4463; 132 L. Ed. 2d 597; 63

U.S.L.W. 4665; 40 ERC (BNA) 1897; 95 Cal. Daily Op. Service 4966; 95 Daily

Journal DAR 8566; 25 ELR 21194; 9 Fla. Law W. Fed. S 291

 

 

 

April 17, 1995, Argued

June 29, 1995, Decided

 

 

 

PRIOR HISTORY: ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT.

 

DISPOSITION: 17 F.3d 1463, reversed.

 

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

pursue," "wound," or "kill," ß 3(19). In 50 CFR ß 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 [**2] 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. 696-708.

 

(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 ß

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 [**3] 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 ß 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," ß 10(a)(1)(B), strongly suggests that

Congress understood ß 9 to prohibit indirect as well as

deliberate takings. No one could seriously request an

"incidental" take permit to avert ß 9 liability for direct,

deliberate action against a member of an endangered or threatened

species. Pp. 696-701.

 

(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 ß 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 ß 9's

express provision that a "knowing" action is enough to violate

the Act. Third, the court employed noscitur [**4] a sociis to

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

definition, thereby denying it independent meaning. Pp. 701-702.

 

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

directive to federal agencies to avoid destruction or adverse

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

conclusion reached in this case. Respondent's argument that the

Government lacks any incentive to purchase land under ß 5 when it

can simply prohibit takings under ß 9 ignores the practical

considerations that purchasing habitat lands may be less

expensive than pursuing criminal or civil penalties and that ß 5

allows for protection of habitat before any endangered animal has

been harmed, whereas ß 9 cannot be enforced until a killing or

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

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

702-704.

 

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

statute's legislative history. Pp. 704-708.

 

 

 

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

[**5] a concurring opinion, post, p. 708. SCALIA, J., filed a dissenting

opinion, in which REHNQUIST, C. J., and THOMAS, J., joined, post, p. 714.

 

COUNSEL: Deputy Solicitor General Kneedler argued the cause for

petitioners. With him on the briefs were Solicitor General Days, Assistant

Attorney General Schiffer, Beth S. Brinkmann, Martin W. Matzen, Ellen J.

Durkee, and Jean E. Williams.

 

John A. Macleod argued the cause for respondents. With him on the brief

were Steven P. Quarles, Clifton S. Elgarten, Thomas R. Lundquist, and

William R. Murray. *

 

 

 

 

 

* Briefs of amici curiae urging reversal were filed for the Environmental

Law Committee of the Association of the Bar of the City of New York by

Brent L. Brandenburg; for Friends of Animals, Inc., by Herman Kaufman; for

the National Wildlife Federation et al. by Patti A. Goldman and Todd D.

True; and for Scientist John Cairns, Jr., et al. by Wm. Robert Irvin,

Timothy Eichenberg, and Patrick A. Parenteau.

 

Briefs of amici curiae urging affirmance were filed for the State of

Arizona ex rel. M. J. Hassel, Arizona State Land Commissioner, et al. by

Grant Woods, Attorney General of Arizona, Mary Mangotich Grier, Assistant

Attorney General, and Gale A. Norton, Attorney General of Colorado; for the

State of California et al. by Daniel Lungren, Attorney General of

California, Roderick E. Walston, Chief Assistant Attorney General, Charles

W. Getz IV, Assistant Attorney General, and Linus Masouredis, Deputy

Attorney General, and for the Attorneys General for their respective States

as follows: Carla J. Stovall of Kansas, Don Stenberg of Nebraska, and Jan

Graham of Utah; for the State of Texas by Dan Morales, Attorney General,

Jorge Vega, First Assistant Attorney General, Javier Aguilar and Sam

Goodhope, Special Assistant Attorneys General, and Paul Terrill and Eugene

Montes, Assistant Attorneys General; for the American Farm Bureau

Federation et al. by Timothy S. Bishop, Michael F. Rosenblum, John J.

Rademacher, Richard L. Krause, Nancy N. McDonough, Carolyn S. Richardson,

Douglas G. Caroom, and Sydney W. Falk, Jr.; for Anderson & Middleton

Logging Co., Inc., by Mark C. Rutzick and J. J. Leary, Jr.; for Cargill,

Inc., by Louis F. Claiborne, Edgar B. Washburn, and David Ivester; for the

Chamber of Commerce of the United States of America et al. by Virginia S.

Albrecht, Robin S. Conrad, Ted R. Brown, and Ralph W. Holmen; for the

Competitive Enterprise Institute by Sam Kazman; for the Davis Mountains

Trans-Pecos Heritage Association et al. by Nancie G. Marzulla; for the

Florida Legal Foundation et al. by Michael L. Rosen and G. Stephen Parker;

for the Institute for Justice by Richard A. Epstein, William H. Mellor III,

and Clint Bolick; for the National Association of Home Builders et al. by D

Barton Doyle; for the National Cattlemen's Association et al. by Roger J.

Marzulla, Michael T. Lempres, and William G. Myers III; for the Mountain

States Legal Foundation et al. by William Perry Pendley; for the Pacific

Legal Foundation et al. by Robin L. Rivett; for the State Water Contractors

et al. by Gregory K. Wilkinson, Eric L. Garner, Thomas W. Birmingham, and

Stuart L. Somach; for the Washington Legal Foundation et al. by Albert

Gidari, Daniel J. Popeo, and Paul D. Kamenar; and for Congressman Bill

Baker et al. by Virginia S. Albrecht.

 

Briefs of amici curiae were filed for the Nationwide Public Projects

Coalition et al. by Lawrence R. Liebesman, Kenneth S. Kamlet, and Duane J.

Desiderio; and for the Navajo Nation et al. by Scott B. McElroy, Lester K.

Taylor, Daniel H. Israel, and Stanley Polack.

 

JUDGES: 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, post, p. 708. SCALIA, J., filed a dissenting opinion,

in which REHNQUIST, C. J., and THOMAS, J., joined, post, p. 714.

 

OPINIONBY: STEVENS

 

OPINION: [*690] [***606] JUSTICE STEVENS delivered the opinion of the

Court. [***HR1A] [1A]

The Endangered Species Act of 1973 (ESA or Act), 87 Stat. 884, 16 U.S.C. ß

1531 (1988 ed. and Supp. V), 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 Act provides the following protection for endangered

species: n1

 

"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 [**6] subject to the jurisdiction of the United

States to--

 

. . . .

 

[*691] "(B) take any such species within the United States or

the territorial sea of the United States." 16 U.S.C. ß

1538(a)(1).

 

 

 

Section 3(19) of the Act defines the statutory term "take":

 

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

[***607] wound, kill, trap, capture, or collect, or to attempt

to engage in any such conduct." 16 U.S.C. ß 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 ß 17.3 (1994).

 

 

 

This regulation has been in place since 1975. n2

 

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n1 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. ß

1532(6).

 

n2 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).

 

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[**7] A limitation on the ß 9 "take" prohibition appears in ß 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 ß 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. ß

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. ß 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 [*692] be endangered [**8] or threatened. Section 5, 16

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

see ß 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. ß 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 [**9]

and degradation in the definition. n3 Respondents challenged the regulation

on its face. Their complaint alleged that application of the "harm"

regulation to the red-cockaded woodpecker, [***608] an endangered

species, n4 and the northern spotted owl, a threatened species, n5 had

injured them economically. App. 17-23.

 

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n3 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.

 

n4 The woodpecker was listed as an endangered species in 1970 pursuant to

the statutory predecessor of the ESA. See 50 CFR ß 17.11(h) (1994), issued

pursuant to the Endangered Species Conservation Act of 1969, 83 Stat. 275.

 

n5 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. ß

1532(20), some but not all of the protections endangered species enjoy. See

50 CFR ß 17.31(a) (1994). In the District Court respondents unsuccessfully

challenged that regulation's extension of ß 9 to threatened species, but

they do not press the challenge here.

 

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[*693] [**10] Respondents advanced three arguments to support their

submission that Congress did not intend the word "take" in ß 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, n6 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 ß 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.

 

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n6 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).

 

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[**11] 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 [*694] Chevron U.S.A. Inc. v. Natural

Resources Defense Council, Inc., 467 U.S. 837, 843, 81 L. Ed. 2d 694, 104

S. Ct. 2778 (1984)). The District Court therefore entered summary judgment

for petitioners and dismissed respondents' complaint.

 

A divided panel of the [**12] Court of Appeals initially affirmed the

judgment of the District Court. 303 U.S. App. D.C. 42, 1 F.3d 1 (CADC

1993). After granting a petition for rehearing, however, the panel

reversed. 305 U.S. App. D.C. 110, 17 F.3d 1463 (CADC 1994). Although

acknowledging that "the 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

[***609] 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, 24 L. Ed. 586 (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 [**13] Act of 1972, 16 U.S.C. ß 1372(a)(2)(A), see

United States v. Hayashi, 5 F.3d 1278, 1282 (1993); from the legislative

history of the ESA; n7 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 ß 5 and restriction on federal agencies' activities regarding

habitat in ß 7, both of which the court saw as evidence that Congress had

not intended the ß 9 "take" prohibition to reach habitat modification.

[*695] Most prominently, the court performed a lengthy analysis of the

1982 amendment to ß 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. n8

 

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n7 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

305 U.S. App. D.C. 110, 17 F.3d 1463, 1472 (CADC 1994).

 

n8 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 303 U.S. App. D.C. 42, 1 F.3d 1, 11 (CADC 1993)

(Williams, J., concurring in part), with 17 F.3d at 1467-1472.

 

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[**14] 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 [**15] 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. 1072 (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.

 

[*696] II [***HR1B] [1B]

[***HR2] [2]

[***HR3A] [3A]

Because this case was decided on motions for summary [***610] 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 n9--is to use his ß 5 authority

[**16] to purchase [*697] the lands on which the survival of the

species depends. The Secretary, on the other hand, submits that the ß 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 ß 10.

[***HR3B] [3B]

 

 

 

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- - n9 As discussed above, the Secretary's definition of "harm" is limited

to "acts which actually kill or injure wildlife." 50 CFR ß 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 violate" the Act or

its implementing regulations. 16 U.S.C. ßß 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 "any person who otherwise violates" the Act or its

implementing regulations. 16 U.S.C. ß 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. 600, 128 L. Ed. 2d 608, 114 S. Ct. 1793

(1994), but the proper case in which we might consider whether to do so in

the ß 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

715. 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.

 

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[**17] [***HR4A] [4A]

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.

[***HR4B] [4B]

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." n10 Moreover, unless [***611] the statutory term "harm"

encompasses [*698] indirect as well as direct injuries, the word has no

meaning that does not duplicate the meaning of other words that ß 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, 100

L. Ed. 2d 836, 108 S. Ct. 2182 (1988). n11 [***HR4C] [4C]

 

 

 

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- - n10 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 717-718. This limitation ill serves the

statutory text, which forbids not taking "some creature" but "taking 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 717-720, 722-723, 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."

[***HR4D] [4D]

n11 In contrast, if the statutory term "harm" encompasses such indirect

means of killing and injuring wildlife as habitat modification, the other

terms listed in ß 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 this page and 699-700.

 

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[**18] [**19] 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, 98 S. Ct. 2279, 57 L. Ed. 2d 117 (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 ß 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. ß 1531(b).

 

[*699] In Hill, we construed ß 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 [**20] 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 ß 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 " [***612] harm." n12 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.

 

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- -

 

n12 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. at 184-185, n. 30 (citations omitted;

emphasis in original).

 

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- -

 

[**21] [***HR1C] [1C]

[***HR3C] [3C]

[***HR4E] [4E]

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. 143, 155-156, n. 6, 131 L.

Ed. 2d 178, 115 S. Ct. 1291 (1995); INS v. National Center for Immigrants'

Rights, Inc., 502 U.S. 183, 188, 116 L. Ed. 2d 546, 112 S. Ct. 551 (1991).

Thus, they ask us to invalidate the Secretary's understanding of "harm" in

every circumstance, even s with the foreseeability of harm" and (2) "fails to require

injury to particular animals," post, at 731. 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. ßß 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 721-722, 732-733. 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."

 

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- -

 

[**22] [***HR4F] [4F]

[***HR5] [5]

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

permits for takings that ß 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. ß 1539(a)(1)(B), strongly suggests

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

deliberate takings. Cf. NLRB v. Bell Aerospace Co., 416 U.S. 267, 274-275,

40 L. Ed. 2d 134, 94 S. Ct. 1757 (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. ß 1539(a)(2)(A), making clear that Congress

had in mind foreseeable rather than merely accidental [***613] effects on

listed species. n14 No one could seriously request an "incidental" take

[*701] permit to avert ß 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 [**23] Congress acts to amend a

statute, we presume it intends its amendment to have real and substantial

effect." Stone v. INS, 514 U.S. 386, 397, 131 L. Ed. 2d 465, 115 S. Ct.

1537 (1995). Congress' addition of the ß 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.

 

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- -

 

n14 The dissent acknowledges the legislative history's clear indication

that the drafters of the 1982 amendment had habitat modification in mind,

see post, at 730, 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.

 

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- - [***HR6A] [6A]

[***HR7] [7]

[***HR8] [8]

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. n15 First,

the court's premise was flawed. Several of the words [**24] that

accompany "harm" in the ß 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 ß 11's express provision that a "knowing" [*702] 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, 6 L. Ed. 2d 859, 81 S. Ct. 1579

(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, 67

L. Ed. 778, 43 S. Ct. 428 (1923). n16 [**25] [***HR6B] [6B]

 

 

 

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- - n15 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 ß 9 a limitation of liability to

"affirmative conduct intentionally directed against a particular animal or

animals." Post, at 720. 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 ß 10(a)(1)(B); unless the developer was

motivated by a desire "to get at a turtle," post, at 721, no statutory

taking could occur. Because such conduct would not constitute a taking at

common law, the dissent would shield it from ß 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.

 

n16 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.

ß 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 II,

852 F.2d 1106 (1988). Neither the Hayashi majority nor the dissent saw any

need to distinguish or even to cite Palila II.

 

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- - [**26] [***HR9] [9]

Nor does the Act's inclusion of [***614] the ß 5 land acquisition

authority and the ß 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 ß 5

when it can simply prohibit takings under ß 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 ß 5 procedure allows for protection

of habitat before the seller's activity has harmed any endangered animal,

[*703] whereas the Government cannot enforce the ß 9 prohibition until an

animal has actually been killed or injured. The Secretary may also find the

ß 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 ß 7 directive applies only to the Federal Government, whereas

the ß 9 prohibition applies to "any person." Section 7 imposes a broad,

affirmative duty to avoid adverse habitat modifications that ß 9 does not

replicate, and ß 7 does not limit its [**27] admonition to habitat

modification that "actually kills or injures wildlife." Conversely, ß 7

contains limitations that ß 9 does not, applying only to actions "likely to

jeopardize the continued existence of any endangered species or threatened

species," 16 U.S.C. ß 1536(a)(2), and to modifications of habitat that has

been designated "critical" pursuant to ß 4, 16 U.S.C. ß 1533(b)(2). n17 Any

overlap that ß 5 or ß 7 may have with ß 9 in particular cases is

unexceptional, see, e. g., Russello v. United States, 464 U.S. 16, and n.

2, 24, 78 L. Ed. 2d 17, 104 S. Ct. 296 (1983), and simply reflects the

broad purpose of the Act set out in ß 2 and acknowledged in TVA v. Hill.

 

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- -

 

n17 Congress recognized that ßß 7 and 9 are not coextensive as to federal

agencies when, in the wake of our decision in Hill in 1978, it added ß

7(o), 16 U.S.C. ß 1536(o), to the Act. That section provides that any

federal project subject to exemption from ß 7, 16 U.S.C. ß 1536(h), will

also be exempt from ß 9.

 

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- -

 

[**28] [***HR1D] [1D]

[***HR10A] [10A]

[***HR11A] [11A]

[***HR12A] [12A]

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, 81 L. Ed. 2d 694, 104 S. Ct. 2778 (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 [*704] Breyer, Judicial Review of

Questions [***615] of Law and Policy, 38 Admin. L. Rev. 363, 373 (1986).

n18 [***HR11B] [11B]

[***HR12B] [12B]

 

 

 

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- - n18 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, 347-350, 30 L. Ed.

2d 488, 92 S. Ct. 515 (1971) (quoting McBoyle v. United States, 283 U.S.

25, 27, 75 L. Ed. 816, 51 S. Ct. 340 (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, 517-518, and n. 9, 119 L.

Ed. 2d 308, 112 S. Ct. 2102 (1992). We have never suggested that the rule

of lenity should provide the standard for reviewing facial challenges to