OCTOBER TERM, 1994
Syllabus
BABBITT, SECRETARY OF INTERIOR, ET AL.
v.
SWEET HOME CHAPTER OF COMMUNITIES FOR A GREAT OREGON ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA CIRCUIT
No. 94-859. Argued April 17, 1995-Decided June 29,1995
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.
696-708.
(a) The Act provides three reasons for preferring the
Secretary's interpretation. First, the ordinary meaning of "harm"
naturally encompasses habitat modification that results in actual
injury or death to members of an endangered or threatened species.
Unless "harm" encompasses indirect as well as direct injuries, the
word has no meaning that does not duplicate that of other words
that § 3 uses to define "take." Second, the ESA's broad purpose of
providing comprehensive protection for endangered and threatened
species supports the reasonableness of the Secretary's definition.
Respondents advance strong arguments that activities causing
minimal or unforeseeable harm will not violate the Act as construed
in the regulation, but their facial challenge would require that
the Secretary's understanding of harm be invalidated in every
circumstance. Third, the fact that Congress in 1982 authorized the
Secretary to issue permits for takings that § 9(a)(1)(B) would
otherwise prohibit, "if such taking is incidental to, and not for
the purpose of,
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Syllabus
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. 696-70l.
(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. 701-702.
(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. 702-704.
(d) The conclusion reached here gains further support from the
statute's legislative history. Pp. 704-708.
17 F.3d
1463, reversed.
STEVENS, J., delivered the opinion of the Court, in which
O'CONNOR, KENNEDY, SOUTER, GINSBURG, and BREYER, JJ., joined.
O'CONNOR, J., filed a concurring opinion,
post, p. 708.
SCALIA, J., filed a dissenting opinion, in which REHNQUIST, C. J.,
and THOMAS, J., joined,
post, p. 714.
Deputy Solicitor General Kneedler argued the cause for
petitioners. With him on the briefs were Solicitor General Days,
Assistant Attorney General Schiffer, Beth S. Brinkmann, Martin W
Matzen, Ellen J. Durkee, and Jean E. Williams.
689
John A. Macleod argued the cause for respondents. With him on
the brief were Steven P. Quarles, Clifton S. Elgarten, Thomas R.
Lundquist, and William R. Murray.*
*Briefs of
amici curiae urging reversal were filed for
the Environmental Law Committee of the Association of the Bar of
the City of New York by
Brent L. Brandenburg; for Friends of
Animals, Inc., by
Herman Kaufman; for the National Wildlife
Federation et aI. by
Patti A. Goldman and
Todd D.
True; and for Scientist John Cairns, Jr., et aI. by
Wm.
Robert Irvin, Timothy Eichenberg, and
Patrick A.
Parenteau.
Briefs of
amici curiae urging affirmance were filed for
the State of Arizona ex reI. M. J. Hassel, Arizona State Land
Commissioner, et aI. by
Grant Woods, Attorney General of
Arizona,
Mary Mangotich Grier, Assistant Attorney General,
and
Gale A. Norton, Attorney General of Colorado; for the
State of California et aI. by
Daniel Lungren, Attorney
General of California,
Roderick E. Walston, Chief Assistant
Attorney General,
Charles W Getz TV, Assistant Attorney
General, and
Linus Masouredis, Deputy Attorney General, and
for the Attorneys General for their respective States as follows:
Carla J.
Stovall of Kansas,
Don Stenberg of
Nebraska, and
Jan Graham of Utah; for the State of Texas by
Dan Morales, Attorney General,
Jorge Vega, First
Assistant Attorney General,
Javier Aguilar and
Sam
Goodhope, Special Assistant Attorneys General, and
Paul
Terrill and
Eugene Montes, Assistant Attorneys General;
for the American Farm Bureau Federation et aI. by
Timothy S.
Bishop, Michael F.
Rosenblum, John J.
Rademacher,
Richard L. Krause, Nancy N. McDonough, Carolyn S.
Richardson, Douglas G.
Caroom, and
Sydney W Falk,
Jr.; for Anderson & Middleton Logging Co., Inc., by
Mark C.
Rutzick and J. J.
Leary, Jr.; for
Cargill, Inc., by
Louis F.
Claiborne, Edgar B.
Washburn, and
David Ivester; for the Chamber of Commerce
of the United States of America et aI. by
Virginia S.
Albrecht, Robin S.
Conrad, Ted R. Brown, and
Ralph
W Holmen; for the Competitive Enterprise Institute by
Sam
Kazman; for the Davis Mountains Trans-Pecos Heritage
Association et aI. by
Nancie G.
Marzulla; for the
Florida Legal Foundation et aI. by
Michael L. Rosen and G.
Stephen Parker; for the Institute for Justice by
Richard
A. Epstein, William H. Mellor III, and
Clint Bolick; for
the National Association of Home Builders et aI. by
D. Barton
Doyle; for the National Cattlemen's Association et aI. by
Roger J.
Marzulla, Michael T. Lempres, and
William G.
Myers III; for the Mountain States Legal
Foundation et aI. by
William Perry Pendley; for the Pacific
Legal Foundation et aI. by
Robin L. Rivett; for the State
Water Contractors et aI. by
Gregory K. Wilkinson, Eric L.
Garner, Thomas
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JUSTICE STEVENS delivered the opinion of the Court.
The Endangered Species Act of 1973 (ESA or Act), 87 Stat. 884,
16 U. S. C. § 1531 (1988 ed. and Supp. V), contains a variety of
protections designed to save from extinction species that the
Secretary of the Interior designates as endangered or threatened.
Section 9 of the Act makes it unlawful for any person to "take" any
endangered or threatened species. The Secretary has promulgated a
regulation that defines the statute's prohibition on takings to
include "significant habitat modification or degradation where it
actually kills or injures wildlife." This case presents the
question whether the Secretary exceeded his authority under the Act
by promulgating that regulation.
I
Section 9(a)(1) of the Act provides the following protection for
endangered species: 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-
W Birmingham, and Stuart L. Somach; for the Washington Legal
Foundation et al. by Albert Gidari, Daniel J. Popeo, and Paul D.
Kamenar; and for Congressman Bill Baker et al. by Virginia S.
Albrecht.
Briefs of amici curiae were filed for the Nationwide Public
Projects Coalition et al. by Lawrence R. Liebesman, Kenneth S.
Kamlet, and Duane J. Desiderio; and for the Navajo Nation et al. by
Scott B. McElroy, Lester K. Taylor, Daniel H. Israel, and Stanley
Pollack.
1 The Act defines the term "endangered species" to mean "any
species which is in danger of extinction throughout all or a
significant portion of its range other than a species of the Class
Insecta determined by the Secretary to constitute a pest whose
protection under the provisions of this chapter would present an
overwhelming and overriding risk to man." 16 U. S. C. §
1532(6).
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"(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 1975.2
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
2 The Secretary, through the Director of the Fish and Wildlife
Service, originally promulgated the regulation in 1975 and amended
it in 1981 to emphasize that actual death or injury of a protected
animal is necessary for a violation. See 40 Fed. Reg. 44412, 44416
(1975); 46 Fed. Reg. 54748, 54750 (1981).
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be endangered or threatened. Section 5, 16 U. S. C. § 1534,
authorizes the Secretary, in cooperation with the States, see §
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.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,4
and the northern spotted owl, a threatened species,5 had injured
them economically. App. 17-23.
3 Respondents also argued in the District Court that the
Secretary's definition of "harm" is unconstitutionally void for
vagueness, but they do not press that argument here.
4 The woodpecker was listed as an endangered species in 1970
pursuant to the statutory predecessor of the ESA. See 50 CFR §
17.11(h) (1994), issued pursuant to the Endangered Species
Conservation Act of 1969, 83 Stat. 275.
5 See 55 Fed. Reg. 26114 (1990). Another regulation promulgated
by the Secretary extends to threatened species, defined in the ESA
as "any species which is likely to become an endangered species
within the foreseeable future throughout all or a significant
portion of its range," 16 U. S. C. § 1532(20), some but not all of
the protections endangered species enjoy. See 50 CFR § 17.31(a)
(1994). In the District Court respondents
693
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,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 1), 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 (quot-
unsuccessfully challenged that regulation's extension of § 9 to
threatened species, but they do not press the challenge here.
6 Senate 1983, reprinted in Hearings on S. 1592 and S. 1983
before the Subcommittee on Environment of the Senate Committee on
Commerce, 93d Cong., 1st Sess., 27 (1973).
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ing
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 of 1972, 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; 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 modi-
7 Judge Sentelle filed a partial concurrence in which he
declined to join the portions of the court's opinion that relied on
legislative history. See
17 F.3d
1463, 1472 (CADC 1994).
695
fication. 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.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. 1072 (1995).
Our consideration of the text and structure of the Act, its
legislative history, and the significance of the 1982 amendment
persuades us that the Court of Appeals' judgment should be
reversed.
8 The 1982 amendment had formed the basis on which the author of
the majority's opinion on rehearing originally voted to affirm the
judgment of the District Court. Compare
1 F.3d 1,
11 (CADC 1993) (Williams, J., concurring in part), with 17 F. 3d,
at 1467-1472.
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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 redcockaded 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 occur9-is to use his §5 authority to purchase
9 As discussed above, the Secretary's definition of "harm" is
limited to "act[s] which actually kil[l] or injur[e] wildlife." 50
CFR § 17.3 (1994). In addition, in order to be subject to the Act's
criminal penalties or the more severe of its civil penalties, one
must "knowingly violat[e]" the Act or its implementing regulations.
16 U. S. C. §§ 1540(a)(1), (b)(1). Congress added "knowingly" in
place of "willfully" in 1978 to make "criminal violations of the
act a general rather than a specific intent crime." H. R. Conf.
Rep. No. 95-1804, p. 26 (1978). The Act does authorize up to a $500
civil fine for "[a]ny person who otherwise violates" the Act or its
implementing regulations. 16 U. S. C. § 1540(a)(1). That provision
is potentially sweeping, but it would be so with or without the
Secretary's "harm" regulation, making it unhelpful in assessing the
reasonableness of the regulation. We have imputed scienter
requirements to criminal statutes that impose sanctions without
expressly requiring scienter, see,
e. g.,
Staples v.
United States, 511 U. S. 600 (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 715. Respondents
have suggested no reason why either the "knowingly violates" or the
"otherwise violates" provision of the statute-or the "harm"
regulation itself-should not be
697
the lands on which the survival of the species depends. The
Secretary, on the other hand, submits that the § 9 prohibition on
takings, which Congress defined to include "harm," places on
respondents a duty to avoid harm that habitat alteration will cause
the birds unless respondents first obtain a permit pursuant to §
10.
The text of the Act provides three reasons for concluding that
the Secretary's interpretation is reasonable. First, an ordinary
understanding of the word "harm" supports it. The dictionary
definition of the verb form of "harm" is "to cause hurt or damage
to: injure." Webster's Third New International Dictionary 1034
(1966). In the context of the ESA, that definition naturally
encompasses habitat modification that results in actual injury or
death to members of an endangered or threatened species.
Respondents argue that the Secretary should have limited the
purview of "harm" to direct applications of force against protected
species, but the dictionary definition does not include the word
"directly" or suggest in any way that only direct or willful action
that leads to injury constitutes "harm." 10 Moreover, unless the
statutory term "harm" en-
read to incorporate ordinary requirements of proximate causation
and foreseeability. In any event, neither respondents nor their
amici have suggested that the Secretary employs the
"otherwise violates" provision with any frequency.
10 Respondents and the dissent emphasize what they portray as
the "established meaning" of "take" in the sense of a "wildlife
take," a meaning respondents argue extends only to "the effort to
exercise dominion over some creature, and the concrete effect of
[sic] that creature." Brief for Respondents 19; see
post, at 717-718. 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 717-720, 722-723,
thereby obviating the need for us to probe its meaning as we must
probe the meaning of the undefined subsidiary term "harm." Finally,
Congress' definition of "take" includes several words-
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compasses indirect as well as direct injuries, the word has no
meaning that does not duplicate the meaning of other words that § 3
uses to define "take." A reluctance to treat statutory terms as
surplusage supports the reasonableness of the Secretary's
interpretation. See,
e. g., Mackey v.
Lanier Collection
Agency &
Service, Inc., 486 U. S. 825, 837, and
n. 11 (1988).11
Second, the broad purpose of the ESA supports the Secretary's
decision to extend protection against activities that cause the
precise harms Congress enacted the statute to avoid. In
TVA
v.
Hill, 437
U. S. 153 (1978), we described the Act as "the most
comprehensive legislation for the preservation of endangered
species ever enacted by any nation."
Id., at 180. Whereas
predecessor statutes enacted in 1966 and 1969 had not contained any
sweeping prohibition against the taking of endangered species
except on federal lands, see id., at 175, the 1973 Act applied to
all land in the United States and to the Nation's territorial seas.
As stated in § 2 of the Act, among its central purposes is "to
provide a means whereby the ecosystems upon which endangered
species and threatened species depend may be conserved .... " 16 U.
S. C. § 1531(b).
most obviously "harass," "pursue," and "wound," in addition to
"harm" itself-that fit respondents' and the dissent's definition of
"take" no better than does "significant habitat modification or
degradation."
11 In contrast, if the statutory term "harm" encompasses such
indirect means of killing and injuring wildlife as habitat
modification, the other terms listed in § 3-"harass," "pursue,"
"hunt," "shoot," "wound," "kill," "trap," "capture," and
"collect"-generally retain independent meanings. Most of those
terms refer to deliberate actions more frequently than does "harm,"
and they therefore do not duplicate the sense of indirect causation
that "harm" adds to the statute. In addition, most of the other
words in the definition describe either actions from which habitat
modification does not usually result (e. g., "pursue," "harass") or
effects to which activities that modify habitat do not usually lead
(e. g., "trap," "collect"). To the extent the Secretary's
definition of "harm" may have applications that overlap with other
words in the definition, that overlap reflects the broad purpose of
the Act. See
infra this page and 699-700.
699
In
Hill, we construed § 7 as precluding the completion of
the Tellico Dam because of its predicted impact on the survival of
the snail darter. See 437 U. S., at 193. Both our holding and the
language in our opinion stressed the importance of the statutory
policy. "The plain intent of Congress in enacting this statute," we
recognized, "was to halt and reverse the trend toward species
extinction, whatever the cost. This is reflected not only in the
stated policies of the Act, but in literally every section of the
statute."
Id., at 184. Although the § 9 "take" prohibition
was not at issue in
Hill, we took note of that prohibition,
placing particular emphasis on the Secretary's inclusion of habitat
modification in his definition of "harm." 12 In light of that
provision for habitat protection, we could "not understand how TVA
intends to operate Tellico Dam without 'harming' the snail darter."
Id., at 184, n. 30. Congress' intent to provide
comprehensive protection for endangered and threatened species
supports the permissibility of the Secretary's "harm"
regulation.
Respondents advance strong arguments that activities that cause
minimal or unforeseeable harm will not violate the Act as construed
in the "harm" regulation. Respondents, however, present a facial
challenge to the regulation. Cf.
Anderson v.
Edwards,
514 U. S. 143,
155-156, n. 6 (1995);
INS v.
National Center for
Immigrants' Rights, Inc., 502 U. S. 183, 188
(1991). Thus, they ask us to invalidate the Secretary's
understanding of "harm" in every circumstance, even when an actor
knows that an activity, such as draining a
12We stated: "The Secretary of the Interior has defined the term
'harm' to mean 'an act or omission which actually injures or kills
wildlife, including acts which annoy it to such an extent as to
significantly disrupt essential behavioral patterns, which include,
but are not limited to, breeding, feeding or sheltering;
significant environmental modification or degradation which has
such effects is included within the meaning of "harm." ", TVA
v.
Hill, 437 U. S., at 184-185, n. 30 (citations omitted;
emphasis in original).
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pond, would actually result in the extinction of a listed
species by destroying its habitat. Given Congress' clear expression
of the ESA's broad purpose to protect endangered and threatened
wildlife, the Secretary's definition of "harm" is reasonable.13
Third, the fact that Congress in 1982 authorized the Secretary
to issue permits for takings that § 9(a)(1)(B) would otherwise
prohibit, "if such taking is incidental to, and not the purpose of,
the carrying out of an otherwise lawful activity," 16 U. S. C. §
1539(a)(1)(B), strongly suggests that Congress understood §
9(a)(1)(B) to prohibit indirect as well as deliberate takings. Cf.
NLRB v.
Bell Aerospace Co., 416 U. S. 267, 274-275
(1974). The permit process requires the applicant to prepare a
"conservation plan" that specifies how he intends to "minimize and
mitigate" the "impact" of his activity on endangered and threatened
species, 16 U. S. C. § 1539(a)(2)(A), making clear that Congress
had in mind foreseeable rather than merely accidental effects on
listed species.14 No one could seriously request an "incidental"
take
13 The dissent incorrectly asserts that the Secretary's
regulation (1) "dispenses with the foreseeability of harm" and (2)
"fail[s] to require injury to particular animals," post, at 731. As
to the first assertion, the regulation merely implements the
statute, and it is therefore subject to the statute's "knowingly
violates" language, see 16 U. S. C. §§ 1540(a)(1), (b)(1), and
ordinary requirements of proximate causation and foreseeability.
See n. 9, supra. Nothing in the regulation purports to weaken those
requirements. To the contrary, the word "actually" in the
regulation should be construed to limit the liability about which
the dissent appears most concerned, liability under the statute's
"otherwise violates" provision. See n. 9, supra; post, at 721-722,
732-733. The Secretary did not need to include "actually" to
connote "but for" causation, which the other words in the
definition obviously require. As to the dissent's second assertion,
every term in the regulation's definition of "harm" is subservient
to the phrase "an act which actually kills or injures
wildlife."
14 The dissent acknowledges the legislative history's clear
indication that the drafters of the 1982 amendment had habitat
modification in mind, see post, at 730, but argues that the text of
the amendment requires a contrary conclusion. This argument
overlooks the statute's requirement of a "con-
701
permit to avert § 9 liability for direct, deliberate action
against a member of an endangered or threatened species, but
respondents would read "harm" so narrowly that the permit procedure
would have little more than that absurd purpose. "When Congress
acts to amend a statute, we presume it intends its amendment to
have real and substantial effect."
Stone v.
INS,
514 U. S. 386,
397 (1995). Congress' addition of the § 10 permit provision
supports the Secretary's conclusion that activities not intended to
harm an endangered species, such as habitat modification, may
constitute unlawful takings under the ESA unless the Secretary
permits them.
The Court of Appeals made three errors in asserting that "harm"
must refer to a direct application of force because the words
around it do.15 First, the court's premise was flawed. Several of
the words that accompany "harm" in the § 3 definition of "take,"
especially "harass," "pursue," "wound," and "kill," refer to
actions or effects that do not require direct applications of
force. Second, to the extent the court read a requirement of intent
or purpose into the words used to define "take," it ignored § l1's
express provision that a "know-
servation plan," which must describe an alternative to a known,
but undesired, habitat modification.
15 The dissent makes no effort to defend the Court of Appeals'
reading of the statutory definition as requiring a direct
application of force. Instead, it tries to impose on § 9 a
limitation of liability to "affirmative conduct intentionally
directed against a particular animal or animals."
Post, at
720. Under the dissent's interpretation of the Act, a developer
could drain a pond, knowing that the act would extinguish an
endangered species of turtles, without even proposing a
conservation plan or applying for a permit under § 10(a)(1)(B);
unless the developer was motivated by a desire "to get at a
turtle,"
post, at 721, no statutory taking could occur.
Because such conduct would not constitute a taking at common law,
the dissent would shield it from § 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.
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in[g]" action is enough to violate the Act. Third, the court
employed
noscitur a sociis to give "harm" essentially the
same function as other words in the definition, thereby denying it
independent meaning. The canon, to the contrary, counsels that a
word "gathers meaning from the words around it."
Jarecki v.
G.
D. Searle &
Co., 367 U. S. 303, 307
(1961). The statutory context of "harm" suggests that Congress
meant that term to serve a particular function in the ESA,
consistent with, but distinct from, the functions of the other
verbs used to define "take." The Secretary's interpretation of
"harm" to include indirectly injuring endangered animals through
habitat modification permissibly interprets "harm" to have "a
character of its own not to be submerged by its association."
Russell Motor Car Co. v.
United States, 261 U. S. 514, 519
(1923).16
Nor does the Act's inclusion of the § 5 land acquisition
authority and the § 7 directive to federal agencies to avoid
destruction or adverse modification of critical habitat alter our
conclusion. Respondents' argument that the Government lacks any
incentive to purchase land under § 5 when it can simply prohibit
takings under § 9 ignores the practical considerations that attend
enforcement of the ESA. Purchasing habitat lands may well cost the
Government less in many circumstances than pursuing civil or
criminal penalties. In addition, the § 5 procedure allows for
protection of habitat before the seller's activity has harmed any
endangered ani-
16 Respondents' reliance on
United States v.
Hayashi, 22 F.3d
859 (CA9 1993), is also misplaced.
Hayashi
construed the term "harass," part of the definition of "take" in
the Marine Mammal Protection Act of 1972, 16 U. S. C. § 1361
et
seq., as requiring a "direct intrusion" on wildlife to support
a criminal prosecution. 22 F. 3d, at 864.
Hayashi dealt with
a challenge to a single application of a statute whose "take"
definition includes neither "harm" nor several of the other words
that appear in the ESA definition. Moreover,
Hayashi was
decided by a panel of the Ninth Circuit, the same court that had
previously upheld the regulation at issue here in
Palila II,
852 F.2d
1106 (1988). Neither the
Hayashi majority nor the
dissent saw any need to distinguish or even to cite
Palila
II.
703
mal, 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)P 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
17 Congress recognized that §§ 7 and 9 are not coextensive as to
federal agencies when, in the wake of our decision in Hill in 1978,
it added §
7(0), 16 U. S. C. §
1536(0), 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.
704
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Breyer, Judicial Review of Questions of Law and Policy, 38
Admin. L. Rev. 363, 373 (1986).18
III
Our conclusion that the Secretary's definition of "harm" rests
on a permissible construction of the ESA gains further support from
the legislative history of the statute. The Committee Reports
accompanying the bills that became the ESA do not specifically
discuss the meaning of "harm," but they make clear that Congress
intended "take" to apply broadly to cover indirect as well as
purposeful actions. The Senate Report stressed that" '[t]ake' is
defined ... in the broadest possible manner to include every
conceivable way in which a person can 'take' or attempt to 'take'
any fish or wildlife." S. Rep. No. 93-307, p. 7 (1973). The House
Report stated that "the broadest possible terms" were used to
define restrictions on takings. H. R. Rep. No. 93-412, p. 15
(1973). The House Report underscored the breadth of the
18 Respondents also argue that the rule of lenity should
foreclose any deference to the Secretary's interpretation of the
ESA because the statute includes criminal penalties. The rule of
lenity is premised on two ideas:
First, "'a fair warning should be given to the world in language
that the common world will understand, of what the law intends to
do if a certain line is passed'''; second, "legislatures and not
courts should define criminal activity."
United States v.
Bass, 404 U.
S. 336, 347-350 (1971) (quoting
McBoyle v.
United
States, 283 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 penalties provide such
inadequate notice of potential liability as to offend the rule of
lenity, the "harm" regulation, which has existed for two decades
and gives a fair warning of its consequences, cannot be one of
them.
705
"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 726-729, 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
Congo Rec. 25683 (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
706
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from the "take" definition before S. 1983 went to the floor. See
119 Congo 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 provision in S. 1983 would have applied far
more broadly than the regulation does because it made adverse
habitat modification a categorical violation of the "take"
prohibition, unbounded by the regulation's limitation to habitat
modifications that actually kill or injure wildlife. The S. 1983
language also failed to qualify "modification" with the
regulation's limiting adjective "significant." We do not believe
the Senate's unelaborated disavowal of the provision in S. 1983
undermines the reasonableness of the more moderate habitat
protection in the Secretary's "harm" regulation.19
19 Respondents place heavy reliance for their argument that
Congress intended the § 5 land acquisition provision and not § 9 to
be the ESA's remedy for habitat modification on a floor statement
by Senator Tunney:
"Many species have been inadvertently exterminated by a
negligent destruction of their habitat. Their habitats have been
cut in size, polluted, or otherwise altered so that they are
unsuitable environments for natural populations of fish and
wildlife. Under this bill, we can take steps to make amends for our
negligent encroachment. The Secretary would be empowered to use the
land acquisition authority granted to him in certain existing
legislation to acquire land for the use of the endangered species
programs .... Through these land acquisition provisions, we will be
able to conserve habitats necessary to protect fish and wildlife
from further destruction.
"Although most endangered species are threatened primarily by
the destruction of their natural habitats, a significant portion of
these animals are subject to predation by man for commercial,
sport, consumption, or other purposes. The provisions in S. 1983
would prohibit the commerce in or the importation, exportation, or
taking of endangered species .... " 119 Congo Rec. 25669
(1973).
Similarly, respondents emphasize a floor statement by
Representative Sullivan, the House floor manager for the ESA:
"For the most part, the principal threat to animals stems from
destruction of their habitat .... H. R. 37 will meet this problem
by providing
707
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 pro-
funds for acquisition of critical habitat .... It will also
enable the Department of Agriculture to cooperate with willing
landowners who desire to assist in the protection of endangered
species, but who are understandably unwilling to do so at excessive
cost to themselves.
"Another hazard to endangered species arises from those who
would capture or kill them for pleasure or profit. There is no way
that Congress can make it less pleasurable for a person to take an
animal, but we can certainly make it less profitable for them to do
so."
Id., at 30162.
Each of these statements merely explained features of the bills
that Congress eventually enacted in § 5 of the ESA and went on to
discuss elements enacted in § 9. Neither statement even suggested
that § 5 would be the Act's exclusive remedy for habitat
modification by private landowners or that habitat modification by
private landowners stood outside the ambit of § 9. Respondents'
suggestion that these statements identified § 5 as the ESA's only
response to habitat modification contradicts their emphasis
elsewhere on the habitat protections in § 7. See supra, at
702-703.
708
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gram 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-bycase 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
709
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 716. 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 716, 734.
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 cur-
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rently 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 734-735, n. 5, to recognize that to make it impossible for an
animal to reproduce is to impair its most essential physical
functions and to render that animal, and its genetic material,
biologically obsolete. This, in my view, is actual injury.
In any event, even if impairing an animal's ability to breed
were not,
in and of itself, an injury to that animal,
interference with breeding can cause an animal to suffer other,
perhaps more obvious, kinds of injury. The regulation has clear
application, for example, to significant habitat modification that
kills or physically injures animals which, because they are in a
vulnerable breeding state, do not or cannot flee or defend
themselves, or to environmental pollutants that cause an animal to
suffer physical complications during gestation. Breeding, feeding,
and sheltering are what animals do. If significant habitat
modification, by interfering with these essential behaviors,
actually kills or injures an animal protected by the Act, it causes
"harm" within the meaning of the regulation. In contrast to JUSTICE
SCALIA, I do not read the regulation's "breeding" reference to
vitiate or somehow to qualify the clear actual death or injury
requirement, or to suggest that the regulation contemplates
extension to nonexistent animals.
There is no inconsistency, I should add, between this
interpretation and the commentary that accompanied the amendment of
the regulation to include the actual death or injury requirement.
See 46 Fed. Reg. 54748 (1981). Quite the contrary. It is true, as
JUSTICE SCALIA observes,
post, at 716,
711
that the Fish and Wildlife Service states at one point that
"harm" is not limited to "direct physical injury to an individual
member of the wildlife species," see 46 Fed. Reg. 54748 (1981). But
one could just as easily emphasize the word "direct" in this
sentence as the word "individual." * Elsewhere in the commentary,
the Service makes clear that "section 9's threshold does focus on
individual members of a protected species."
Id., at 54749.
Moreover, the Service says that the regulation has no application
to speculative harm, explaining that its insertion of the word
"actually" was intended "to bulwark the need for proven injury to a
species due to a party's actions."
Ibid.; see also
ibid. (approving language that "[h]arm covers actions ...
which actually (as opposed to potentially), cause injury"). That a
protected animal could have eaten the leaves of a fallen tree or
could, perhaps, have fruitfully multiplied in its branches is not
sufficient under the regulation. Instead, as the commentary
reflects, the regulation requires demonstrable effect (i.
e., actual injury or death) on actual, individual members of
the protected species.
By the dissent's reckoning, the regulation at issue here, in
conjunction with 16 U. S. C. § 1540(a)(1), imposes liability for
any habitat-modifying conduct that ultimately results in the death
of a protected animal, "regardless of whether that result is
intended or even foreseeable, and no matter how long
*JU8TICE 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 734-735, 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
17 F.3d
1463, 1465 (CADC 1994). So, occasionally, does the dissent. See
post, at 720 (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 732; indeed, principles of proximate cause
routinely apply in the negligence and strict liability
contexts.
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the chain of causality between modification and injury."
Post, at 715; see also
post, at 719. Even if §
1540(a)(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(a)(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 the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980,
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.
713
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 a 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. 527, 536
(1995), and have noted its "functionally equivalent" alternative
characterizations in terms of foreseeability, see
Milwaukee
&
St. Paul R. Co. v.
Kellogg, 94 U. S. 469, 475 (1877)
("natural and probable consequence"), and duty, see
Palsgraf
v.
Long Island R. Co., 248 N. Y. 339, 162 N. E. 99 (1928).
Consolidated Rail Corporation v.
Gottshall, 512 U. S. 532, 546
(1994). Proximate causation depends to a great extent on
considerations of the fairness of imposing liability for remote
consequences. The task of determining whether proximate causation
exists in the limitless fact patterns sure to arise is best left to
lower courts. But I note, at the least, that proximate cause
principles inject a foreseeability element into the statute, and
hence, the regulation, that would appear to alleviate some of the
problems noted by the dissent. See,
e. g., post, at 719
(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
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SCALIA, J., dissenting
agency committed a "taking" by permitting moufion 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
sustaining 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.
715
I
The Endangered Species Act of 1973 (Act), 16 U. S. C. § 1531
et seq. (1988 ed. and Supp. V), 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 falleven
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 703-704, 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, 852
F.2d 1106, 1108-1109 (CA9 1988)
(Palila II) (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
716
716 BABBITT
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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 their brief here petitioners
agree that the regulation covers omissions, see Brief for
Petitioners 47 (although they argue that "[a]n 'omission'
constitutes an 'act' ... only if there is a legal duty to act"),
ibid.
The third and most important unlawful feature of the regulation
is that it encompasses injury inflicted, not only upon individual
animals, but upon populations of the protected species. "Injury" in
the regulation includes "significantly impairing essential
behavioral patterns, including
breeding," 50 CFR § 17.3
(1994) (emphasis added). Impairment of breeding does not "injure"
living creatures; it prevents them from propagating, thus
"injuring"
a population of animals which would otherwise
have maintained or increased its numbers. What the face of the
regulation shows, the Secretary's official pronouncements confirm.
The Final Redefinition of "Harm" accompanying publication of the
regulation said that "harm" is not limited to "direct physical
injury to an individual member of the wildlife species," 46 Fed.
Reg. 54748 (1981), and refers to "injury
to a population,"
id., at 54749 (emphasis added). See also
Palila II,
supra, at 1108;
717
Davison,
supra, at 190, and n. 177, 195; M. Bean, The
Evolution of National Wildlife Law 344 (1983).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. 1. 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,
1 The Court and JUSTICE O'CONNOR deny that the regulation has
the first or the third of these features. I respond to their
arguments in Part III,
infra.
718
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§ 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
697-698, 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.2
2 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 697, n. 10.
The suggestion is halfhearted because that reading obviously
contradicts the statutory intent. It would
719
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 662
(1985) ("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
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
696, is shorthand for "take any
[member of an endangered]
species."
720
720 BABBITT
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SCALIA, J., dissenting
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 701
(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 wordis 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 Apr. 17, reprinted in 46 Fed. Reg. 29490, 29491
(1981) (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
721
counsels in favor of interpreting the other items as possessing
that attribute as well,"
Beecham v.
United States,
511 U. S. 368,
371 (1994). The Court contends that the canon cannot be applied to
deprive a word of all its "independent meaning,"
ante, at
702. That proposition is questionable to begin with, especially as
applied to long lawyers' listings such as this. If it were true, we
ought to give the word "trap" in the definition its rare meaning of
"to clothe" (whence "trappings")-since otherwise it adds nothing to
the word "capture." See
Moskal v.
United States,
498 U. S. 103,
120 (1990) (SCALIA, J., dissenting). In any event, the Court's
contention that "harm" in the narrow sense adds nothing to the
other words underestimates the ingenuity of our own species in a
way that Congress did not. To feed an animal poison, to spray it
with mace, to chop down the very tree in which it is nesting, or
even to destroy its entire habitat in order to take it (as by
draining a pond to get at a turtle), might neither wound nor kill,
but would directly and intentionally harm.
The penalty provisions of the Act counsel this interpretation as
well. Any person who "knowingly" violates § 1538(a)(1)(B) is
subject to criminal penalties under § 1540(b)(1) and civil
penalties under § 1540(a)(1); moreover, under the latter section,
any person "who otherwise violates" the taking prohibition (i.
e., violates it unknowingly) may be assessed a civil penalty
of $500 for each violation, with the stricture that "[e]ach such
violation shall be a separate offense." This last provision should
be clear warning that the regulation is in error, for when combined
with the regulation it produces a result that no legislature could
reasonably be thought to have intended: A large number of routine
private activities-for example, farming, ranching, roadbuilding,
construction and logging-are subjected to strict-liability
penalties when they fortuitously injure protected wildlife, no
matter how remote the chain of causation and no matter how
difficult to foresee (or to disprove) the "injury" may be (e.
g.,
722
722 BABBITT
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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 696, 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 'knowin[gJ' action is enough to
violate the Act."
Ante, at 701-702. 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. 600, 606
(1994). The hunter who shoots an elk in the mistaken belief that it
is a mule deer has not knowingly violated § 1538(a)(1)(B)-not
because he does not know that elk are legally protected (that would
be knowledge of the law, which is not a requirement, see
ante, at 696-697, 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
723
the Act. And it does not. In § 1540(e)(4)(B), for example,
Congress provided for the forfeiture of "[a]ll guns, traps, nets,
and other equipment ... used to aid the taking, possessing,
selling, [etc.]" of protected animals. This listing plainly relates
to "taking" in the ordinary sense. If environmental modification
were part (and necessarily a major part) of taking, as the
Secretary maintains, one would have expected the list to include
"plows, bulldozers, and backhoes." As another example, § 1539(e)(1)
exempts "the taking of any endangered species" by Alaskan Indians
and Eskimos "if such taking is primarily for subsistence purposes";
and provides that "[n]on-edible byproducts of species taken
pursuant to this section may be sold ... when made into authentic
native articles of handicrafts and clothing." Surely these
provisions apply to taking only in the ordinary sense, and are
meaningless as applied to species injured by environmental
modification. The Act is full of like examples. See,
e. g.,
§ 1538(a)(1)(D) (prohibiting possession, sale, and transport of
"species taken in violation" of the Act). "[I]f the Act is to be
interpreted as a symmetrical and coherent regulatory scheme, one in
which the operative words have a consistent meaning throughout,"
Gustafson v.
Alloyd Co., 513 U. S. 561, 569
(1995), the regulation must fall.
The broader structure of the Act confirms the unreasonableness
of the regulation. Section 1536 provides:
"Each Federal agency shall ... insure that any action
authorized, funded, or carried out by such agency ... is not likely
to jeopardize the continued existence of any endangered species or
threatened species or result in the destruction or adverse
modification of habitat of such species which is determined by
the Secretary ... to be critical." 16 U. S. C. § 1536(a)(2)
(emphasis added).
The Act defines "critical habitat" as habitat that is "essential
to the conservation of the species," §§ 1532(5)(A)(i), (A)(ii),
with "conservation" in turn defined as the use of methods
724
724 BABBITT
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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. 200, 208 (1993)
(internal quotation marks omitted). And that presumption against
implicit prohibition would be even stronger where the one section
which uses the language carefully defines and limits its
application. That is to say, it would be passing strange for
Congress carefully to define "critical habitat" as used in §
1536(a)(2), but leave it to the Secretary to evaluate, willy-nilly,
impermissible "habitat modification" (under the guise of "harm") in
§ 1538(a)(1)(B).
In fact, however, §§ 1536(a)(2) and 1538(a)(1)(B) do not operate
in separate realms; federal agencies are subject to
both,
because the "person[s]" forbidden to take protected species under §
1538 include agencies and departments of the Federal Government.
See § 1532(13). This means that the "harm" regulation also
contradicts another principle of interpretation: that statutes
should be read so far as possible to give independent effect to all
their provisions. See
Ratzlaf v.
United States,
510 U. S. 135,
140-141 (1994). 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
725
species," adverse modification of "critical" habitat by a
federal agency would also constitute habitat modification that
injures a population of wildlife.
Petitioners try to salvage some independent scope for §
1536(a)(2) by the following contortion: Because the definition of
critical habitat includes not only "the specific areas within the
geographical area occupied by the species [that are] essential to
the conservation of the species," § 1532(5)(A)(i), but also
"specific areas outside the geographical area occupied by the
species at the time it is listed [as a protected species] ... [that
are] essential to the conservation of the species," § 1532A(5)(ii),
there may be some agency modifications of critical habitat which do
not injure a population of wildlife. See Brief for Petitioners 41,
and n. 27. This is dubious to begin with. A principal way to injure
wildlife under the Secretary's own regulation is to "significantly
impai[r] ... breeding," 50 CFR § 17.3 (1994). To prevent the
natural increase of a species by adverse modification of habitat
suitable for expansion assuredly impairs breeding. But even if
true, the argument only narrows the scope of the superfluity,
leaving as so many wasted words the § 1532(a)(5)(i) definition of
critical habitat to include currently
occupied habitat
essential to the species' conservation. If the Secretary's
definition of "harm" under § 1538(a)(1)(B) is to be upheld, we must
believe that Congress enacted § 1536(a)(2) solely because in its
absence federal agencies would be able to modify habitat in
currently
unoccupied areas. It is more rational to believe
that the Secretary's expansion of § 1538(a)(1)(B) carves out the
heart of one of the central provisions of the Act.
II
The Court makes four other arguments. First, "the broad purpose
of the [Act] supports the Secretary's decision to extend protection
against activities that cause the precise harms Congress enacted
the statute to avoid."
Ante, at 698.
726
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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.3
Second, the Court maintains that the legislative history of the
1973 Act supports the Secretary's definition. See
ante, at
704-706. Even iflegislative 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. 328, 337
(1994); here it shows quite the opposite of what the Court says. I
shall not pause to discuss the Court's reliance on such statements
in the Committee Reports as "'[t]ake' is defined ... in the
broadest possible manner to include every conceivable way in which
a person can 'take' or attempt to 'take' any fish or wildlife.'" S.
Rep. No. 93-307, p. 7 (1973) (quoted
ante, at 704). This
sort of empty flourish-to the effect that "this statute means what
it means all the way"-
3 This portion of the Court's opinion, see
ante, at 699,
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 id., 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.
727
counts for little even when enacted into the law itself. See
Reves v.
Ernst &
Young, 507 U. S. 170, 183-184
(1993).
Much of the Court's discussion of legislative history is devoted
to two items: first, the Senate floor manager's introduction of an
amendment that added the word "harm" to the definition of "take,"
with the observation that (along with other amendments) it would"
'help to achieve the purposes of the bill'''; second, the relevant
Committee's removal from the definition of a provision stating that
"take" includes " 'the destruction, modification or curtailment of
[the] habitat or range'" of fish and wildlife. See
ante, at
705. 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 706-707, 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 Congo Rec.
25669 (1973) (emphasis added).
728
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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 the 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 707, 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 modifica-
729
tion."
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 agencws.
Third, the Court seeks support from a provision that 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)(l)(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. 164, 185
(1994). The Court claims, however, that the provision "strongly
suggests that Congress understood [§ 1538(a)(1)(B)] to prohibit
indirect as well as deliberate takings."
Ante, at 700. 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).
730
730 BABBITT
v. SWEET HOME CHAPTER,
COMMUNITIES FOR GREAT ORE.
SCALIA, J., dissenting
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 700-701 (emphasis
added). That is not an
incidental take at all.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. 328 (1994).
There is little fear, of course,
4 The statutory requirement of a "conservation plan" is as
consistent with this construction as with the Court's. See
ante, at 700, 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).
731
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 699; see also
ante, at 709 (O'CONNOR, J.,
concurring). The Court seems to say that
even if the
regulation dispenses with the foreseeability of harm that it
acknowledges the statute to require, that does not matter because
this is a facial challenge: So long as habitat modification that
would foreseeably cause harm is prohibited by the statute,
the regulation must be sustained. Presumably it would apply the
same reasoning to all the other defects of the regulation: The
regulation's failure to require injury to particular animals
survives the present challenge, because at least
some
environmental modifications kill particular animals. This
evisceration of the facial challenge is unprecedented. It is one
thing to say that a facial challenge to a regulation that omits
statutory element
x must be rejected if there is any set of
facts on which the statute
does not require x. It is
something quite different-and unlike any doctrine of "facial
challenge" I have ever encountered-to say that the challenge must
be rejected if the regulation could be applied to a state of facts
in which element
x happens to be present. On this analysis,
the only regulation susceptible to facial attack is one that
not
only is invalid in all its applications, but also does not
sweep up
any person who
could have been held liable
under a proper application of the statute. That is not the law.
Suppose a statute that prohibits "premeditated killing of a human
being," and an implementing regulation that prohibits "killing a
human
732
732 BABBITT
v. SWEET HOME CHAPTER,
COMMUNITIES FOR GREAT ORE.
SCALIA, J., dissenting
being." A facial challenge to the regulation would not be
rejected on the ground that, after all, it
could be applied
to a killing that happened to be premeditated. It
could not
be applied to such a killing, because it does not require the
factfinder to find premeditation, as the statute requires. In other
words, to simplify its task the Court today confuses lawful
application of the challenged regulation with lawful application of
a
different regulation, i.
e., one requiring the
various elements of liability that this regulation omits.
III
In response to the points made in this dissent, the Court's
opinion stresses two points, neither of which is supported by the
regulation, and so cannot validly be used to uphold it. First, the
Court and the concurrence suggest that the regulation should be
read to contain a requirement of proximate causation or
foreseeability, principally
because the statute does-and
"[n]othing in the regulation purports to weaken those requirements
[of the statute]." See
ante, at 696-697, n. 9; 700, n. 13;
see also
ante, at 711-713 (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 697-698. See also
ante, at 698,
n. 11 (describing "the sense of indirect causation that 'harm' adds
to the statute");
ante, at 702 (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
733
(5th ed. 1979) (defining "[p]roximate" as "Immediate; nearest;
direct") (emphasis added); Webster's New International
Dictionary 1995 (2d ed. 1949) ("[P]roximate 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 712 (O'CONNOR, J.,
concurring); see also
ante, at 700, 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 "[t]he Secretary did not need to include 'actually'
to connote 'but for' causation,"
ibid.; "actually" defines
the requisite
injury, not the requisite
causality.
The regulation says (it is worth repeating) that "harm" means
(1) an act that (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.
734
734 BABBITT
v. SWEET HOME CHAPTER,
COMMUNITIES FOR GREAT ORE.
SCALIA, J., dissenting
The second point the Court stresses in its response seems to me
a belated mending of its holding. It apparently
concedes
that the statute requires injury
to particular animals
rather than merely to populations of animals. See
ante, at
700, n. 13;
ante, at 696 (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.'''
Ante, at 700, n. 13.
As I have pointed out, see
supra, at 716-717, 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." 5
5JU8TICE O'CONNOR supposes that an "impairment of breeding"
intrinsically injures an animal because "to make it impossible for
an animal to reproduce is to impair its most essential physical
functions and to render that animal, and its genetic material,
biologically obsolete."
Ante, at 710 (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," ibid.
Quite obviously, if "impairment of breeding" meant
735
But since the Court is reading the regulation and the statute
incorrectly in other respects, it may as well introduce this
novelty as well-law a la carte. As I understand the regulation that
the Court has created and held consistent with the statute that it
has also created, habitat modification can constitute a "taking,"
but only if it results in the killing or harming of
individual
animals, and only if that consequence is the direct result of
the modification. This means that the destruction of privately
owned habitat that is essential, not for the feeding or nesting,
but for the
breeding, of butterflies, would not violate the
Act, since it would not harm or kill any living butterfly. I, too,
think it would not violate the Act-not for the utterly unsupported
reason that habitat modifications fall outside the regulation if
they happen not to kill or injure a living animal, but for the
textual reason that only action directed at living animals
constitutes a "take."
***
The Endangered Species Act is a carefully considered piece of
legislation that forbids all persons to hunt or harm endangered
animals, but places upon the public at large,
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 711. 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 711713. 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.
736
736 BABBITT
v. SWEET HOME CHAPTER,
COMMUNITIES FOR GREAT ORE.
SCALIA, J., dissenting
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.
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