Cite as 95 C.D.O.S. 4966
BRUCE BABBITT, SECRETARY OF THE INTERIOR, et al., Petitioners
v.
SWEET HOME CHAPTER OF COMMUNITIES FOR A GREAT OREGON et al.
No. 94-859
In the Supreme Court of the United States
On writ of certiorari to the United States Court of Appeals for
the District of Columbia Circuit. 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.
Argued April 17, 1995
Decided June 29, 1995
:::::::::::::::::::::::::::::::::: 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. 7-21.
(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 unforseeable 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. 7-13.
(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. 13-14.
(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. 14-15.
(d) The conclusion reached here gains further support from the
statute's legislative history. Pp. 16-20.
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.
::::::::::::::::::::::::::::::::::: 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:[FOOTNOTE 1]
"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.[FOOTNOTE 2]
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.[FOOTNOTE 3]
Respondents challenged the regulation on its face. Their complaint
alleged that application of the "harm" regulation to the
red-cockaded woodpecker, an endangered species,[FOOTNOTE 4] and
the northern spotted owl, a threatened species,[FOOTNOTE 5] 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,[FOOTNOTE 6] 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;[FOOTNOTE 7] 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.[FOOTNOTE 8]
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[FOOTNOTE 9]-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."[FOOTNOTE
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).[FOOTNOTE 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 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).[FOOTNOTE 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).[FOOTNOTE 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).[FOOTNOTE 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 14-16, 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.[FOOTNOTE 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 865-866. 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.
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 4-5. 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 5, 22.
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 22, 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. atter how long the chain of
causality between modification and injury." Post, at 3-4; see also
post, at 10. 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) (slip op., at 9), 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) (slip op., at 13). 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 8 (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 mamane-naio 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.
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 15-16,
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' . .
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).[FOOTNOTE 1]
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 9, 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.[FOOTNOTE 2]
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 13 (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) (slip op., at 3). The Court contends that the canon
cannot be applied to deprive a word of all its "independent
meaning," ante, at 14. 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 theusly 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
8, 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 13. 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) (slip op., at
6). 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 8,
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 back-hoes."
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) (slip op., at 6), 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), (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) (slip op., at 7-8) (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. ___, ___ (slip
op., at 6-8). 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), 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)
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 10. 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.[FOOTNOTE 3]
Second, the Court maintains that the legislative history of the
1973 Act supports the Secretary's definition. See ante, at 16-18.
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) (slip op., at 9-10); 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 17). 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) (slip op., at
13-14).
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
17-18. 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
18-19, 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 18-19, 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) (slip
op., at 21). 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 12.
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 12-13
(emphasis added). That is not an incidental take at all.[FOOTNOTE
4]
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 11; see also ante, at 1 (O'Connor, J., concurring). The Court
seems to say that even if the regulation dispenses wi 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 8, n. 9; 11-12, n. 13; see also
ante, at 4-6 (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 9. See also ante,
at 9-10, n. 11 (describing "the sense of indirect causation that
'harm' adds to the statute"); ante, at 14 (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 5 (O'Connor, J., concurring); see
also ante, at 11-12, 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 11-12, 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 843-845.
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 11-12, n. 13; id., at 7, 9
(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
11-12, n. 13. As I have pointed out, see supra, at 3, 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."[FOOTNOTE 5]
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 … 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.
FN* 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
22, 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 7 (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 20; indeed, principles
of proximate cause routinely apply in the negligence and strict
liability contexts.
:::::::::::::::::::::::::::::::::: FOOTNOTES
::::::::::::::::::::::::::::::::
FN1. 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).
FN2. 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).
FN3. 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.
FN4. 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.
FN5. 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.
FN6. 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).
FN7. 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).
FN8. 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.
FN9. 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 2.
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.
FN10. 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 4-5.
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 4-7, 11-12, 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."
FN11. 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 9-11.
FN12. 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, 184-185, n. 30 (1978) (citations omitted;
emphasis in original).
FN13. 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 19. 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 8-9,
19-20. 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."
FN14. The dissent acknowledges the legislative history's clear
indication that the drafters of the 1982 amendment had habitat
modification in mind, see post, at 18, 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.
FN15. 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 7.
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 8, 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.
FN16. 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.
FN17. 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.
FN18. 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
(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, 517-518, 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 penaltieloor 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 . .
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 14.
:::::::::::::::::::::::::::: DISSENTING FOOTNOTES
::::::::::::::::::::::::::::
FN1. 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.
FN2. The Court suggests halfheartedly that "take" cannot refer to
the taking of particular animals, because 1538(a)(1)(B)
prohibits "tak[ing] any [endangered] species." Ante, at 9, n. 10.
The suggestion is halfhearted 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 7, is shorthand for
"take any member of [an endangered] species."
FN3. This portion of the Court's opinion, see ante, at 11, n. 12,
discusses and quotes a footnote in TVA v. Hill, 437 U.S. 153,
184-185, 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.
FN4. The statutory requirement of a "conservation plan" is as
consistent with this construction as with the Court's. See ante,
at 12, 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).
FN5. 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 3. 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 3. 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 4-6. 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.
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