1 of 15 documents united states code service

2. Constitutionality

Section 9 of Endangered Species Act of 1973 (16 USCS § 1538) permissibly regulates transportation or sale of protected wildlife and does not constitute taking of property in violation of Fifth Amendment. United States v Kepler (1976, CA6 Ky) 531 F2d 796, 6 ELR 20340.

Because links between species loss and substantial commercial effect were not attenuated under Endangered Species Act (ESA), economic regulatory scheme, taking of Texas cave species were aggregated with other takes, and ESA's take provision was constitutional under Commerce Clause. GDF Realty Invs., Ltd. v Norton (2003, CA5 Tex) 326 F3d 622, 56 Envt Rep Cas 1033, reh den, reh, en banc, den (2004, CA5 Tex) 362 F3d 286, 58 Envt Rep Cas 1187 and cert den (2005) 545 US 1114, 125 S Ct 2898, 162 L Ed 2d 294, 60 Envt Rep Cas 1512.

16 USCS § 1538 is within Congress' Commerce Clause power, and Fish and Wildlife Service application of statute to endangered fly is therefore constitutional. National Ass'n of Home Builders v Babbitt (1997, App DC) 327 US App DC 248, 130 F3d 1041, 45 Envt Rep Cas 1833, 28 ELR 20403, cert den (1998) 524 US 937, 141 L Ed 2d 712, 118 S Ct 2340, 47 Envt Rep Cas 1736.

Application of 16 USCS § 1538(a)(1)(B) to prevent destruction of endangered fly's habitat and eventual extinction was valid exercise of congressional power under Commerce Clause, where land developers and local governments filed action challenging constitutionality of provision when construction of hospital was blocked, because provision had substantial relation to interstate commerce. National Ass'n of Home Builders of the United States v Babbit (1996, DC Dist Col) 949 F Supp 1, 27 ELR 20707, affd (1997, App DC) 327 US App DC 248, 130 F3d 1041, 45 Envt Rep Cas 1833, 28 ELR 20403, cert den (1998) 524 US 937, 141 L Ed 2d 712, 118 S Ct 2340, 47 Envt Rep Cas 1736.

3. Relationship to other provisions

Definitions of "taking" in 16 USCS §§ 1536 and 1538 are identical in meaning and application. Ariz. Cattle Growers' Ass'n v United States Fish & Wildlife, BLM (2001, CA9 Ariz) 273 F3d 1229, 2001 CDOS 10416, 2001 Daily Journal DAR 13005, 53 Envt Rep Cas 1904, 32 ELR 20392 (criticized in Defenders of Wildlife v Hall (2008, DC Mont) 565 F Supp 2d 1160, 68 Envt Rep Cas 1146).

Complaint by federally licensed wild bird importers is dismissed in action arising out of state law prohibiting sale of wild birds not born in captivity, where importers contended federal wildlife importer licenses issued under 16 USCS § 1538 preempted state law under 16 USCS § 1535, because importers licenses were issued under 16 USCS § 1538 which does not give preemptive effect of § 1539; licenses only gave permission to engage in import business and were issued solely to track trade in protective species and therefore do not constitute permits or exceptions preempting restrictive state law. Cresenzi Bird Importers, Inc. v New York (1987, SD NY) 658 F Supp 1441, 17 ELR 20996, affd (1987, CA2 NY) 831 F2d 410, 18 ELR 20036.

Federal agencies were not entitled to Fed. R. Civ. P. 12(b)(1) dismissal of claim by environmental groups that federal agency was liable for violation of Endangered Species Act's "take" provision under 16 USCS § 1538 based on its failure to comply with terms of Incidental Take Statement (ITS) that was issued pursuant to 16 USCS § 1536(b)(4); notwithstanding 16 USCS § 1540(g)'s implied exclusion of suits alleging permit violations, groups' allegation of violation of § 1538(a) was not precluded by fact that it also turned on alleged violation of ITS, which was in some sense permit. South Yuba River Citizens League v Nat'l Marine Fisheries Serv. (2009, ED Cal) 629 F Supp 2d 1123, 70 Envt Rep Cas 1054.

4. Validity of regulations

Fish and Wildlife provision limiting taking of red wolves on private land was valid exercise of Congressional power. Gibbs v Babbitt (2000, CA4 NC) 214 F3d 483, 50 Envt Rep Cas 1863, 30 ELR 20602, cert den (2001) 531 US 1145, 148 L Ed 2d 957, 121 S Ct 1081, 52 Envt Rep Cas 1352.

Regulation implementing 16 USCS § 1538 and defining "harm" to include modification of habitat is not ultra vires of ESA, and is not void for vagueness. Sweet Home Chapter of Communities for a Great Or. v Babbitt (1993, App DC) 303 US App DC 42, 1 F3d 1, 37 Envt Rep Cas 1138, 23 ELR 21151, different results reached on reh (1994, App DC) 305 US App DC 110, 17 F3d 1463, 38 Envt Rep Cas 1202, 24 ELR 20680, reh, en banc, den (1994, App DC) 308 US App DC 128, 30 F3d 190, 39 Envt Rep Cas 1278 and revd on other grounds (1995) 515 US 687, 132 L Ed 2d 597, 115 S Ct 2407, 95 CDOS 4966, 95 Daily Journal DAR 8566, 40 Envt Rep Cas 1897, 25 ELR 21194, 9 FLW Fed S 291, subsequent app (1995, App DC) 1995 US App LEXIS 31484 and (criticized on other grounds in Loggerhead Turtle v County Council of Volusia County (1998, CA11 Fla) 148 F3d 1231, 47 Envt Rep Cas 1014, 41 FR Serv 3d 563, 28 ELR 21546, 11 FLW Fed C 1659).

As Secretary of Commerce's designee under Marine Protection, Research and Sanctuaries Act (16 USCS §§ 1431 et seq.), National Oceanic and Atmospheric Administration's (NOAA's) regulation, promulgated under Endangered Species Act (16 USCS §§ 1531 et seq.), limiting operation of "motorized personal watercraft", but not other vessels, in Monterey Sanctuary was not arbitrary and capricious, where record amply supported NOAA's findings that personal craft were operated in high concentrations of kelp forests, marine mammals, and sea birds, and other vessels tended not to be used in same areas in same manner. Personal Watercraft Indus. Ass'n v Department of Commerce (1995, App DC) 310 US App DC 364, 48 F3d 540, 40 Envt Rep Cas 1411, 25 ELR 20681.

Regulations, promulgated by Secretaries of Interior and Commerce, which are properly sensitive to environmental interest in preservation of threatened and endangered wild sea turtles, are authorized under Endangered Species Act of 1973. Cayman Turtle Farm, Ltd. v Andrus (1979, DC Dist Col) 478 F Supp 125, 9 ELR 20416.

EPA's "about face" from proposed near-absolute ban on strychnine to regulation permitting continued use was not in accordance with law and will be enjoined, because (1) EPA has never obtained "incidental take" authorizations in accordance with 16 USCS § 1536(b)(4), (2) policy allows continued strychnine-caused deaths to birds protected under 16 USCS §§ 668 and 703, and (3) continued registration of strychnine results in takings of endangered and threatened species in violation of 16 USCS § 1538(a)(1)(B). Defenders of Wildlife v Administrator, Environmental Protection Agency (1988, DC Minn) 688 F Supp 1334, 18 ELR 20960, affd in part and revd in part on other grounds (1989, CA8 Minn) 882 F2d 1294, 30 Envt Rep Cas 1460, 19 ELR 21440.

Ranchers' challenge to Fish and Wildlife Service's biological opinion is successful, even though Service says cattle grazing on certain public lands may cause degradation to potential habitats for certain endangered species, where Service presents no proof that species exist in allotments in question, because ranchers demonstrated harm to their livelihood that will result from arbitrary and capricious opinion. Arizona Cattle Growers' Assoc. v United States Fish & Wildlife Serv. (1998, DC Ariz) 63 F Supp 2d 1034, 49 Envt Rep Cas 1371, affd (2001, CA9 Ariz) 273 F3d 1229, 2001 CDOS 10416, 2001 Daily Journal DAR 13005, 53 Envt Rep Cas 1904, 32 ELR 20392 (criticized in Defenders of Wildlife v Hall (2008, DC Mont) 565 F Supp 2d 1160, 68 Envt Rep Cas 1146).

National Marine Fisheries Service's conclusion that it was advisable to prohibit take of wild steelhead salmon in order to promote recovery of natural populations, but not extend such protection to all hatchery fish was affirmed where science indicated that hatchery fish could reduce viability of wild populations by diminishing fitness of wild fish. Cal. State Grange v Nat'l Marine Fisheries Serv. (2008, ED Cal) 620 F Supp 2d 1111, affd (2010, CA9 Cal) 619 F3d 1024, 71 Envt Rep Cas 1583, 40 ELR 20226.

5. What constitutes "taking"

Definitions of "taking" in 16 USCS §§ 1536 and 1538 are identical in meaning and application. Ariz. Cattle Growers' Ass'n v United States Fish & Wildlife, BLM (2001, CA9 Ariz) 273 F3d 1229, 2001 CDOS 10416, 2001 Daily Journal DAR 13005, 53 Envt Rep Cas 1904, 32 ELR 20392 (criticized in Defenders of Wildlife v Hall (2008, DC Mont) 565 F Supp 2d 1160, 68 Envt Rep Cas 1146).

Timber industry group's challenge to Interior regulations implementing Endangered Species Act (ESA) (16 USCS §§ 1531 et seq.) must fail, where challenged regulations define "harm" in 16 USCS § 1532(19) definition of "take" to include habitat modification, which in turn has led to restrictions on timber harvesting threatening livelihood of timber workers, because prohibition against "takings" in 16 USCS § 1538(a)(1) was intended to be very broad and agency interpretation to include even habitat modification which could actually kill or injure wildlife is consistent with language, structure and history of ESA. Sweet Home Chapter of Communities for a Great Or. v Lujan (1992, DC Dist Col) 806 F Supp 279, 35 Envt Rep Cas 1264, dismd without op, in part (1992, App DC) 298 US App DC 99, 976 F2d 47 and affd (1993, App DC) 303 US App DC 42, 1 F3d 1, 37 Envt Rep Cas 1138, 23 ELR 21151, different results reached on reh (1994, App DC) 305 US App DC 110, 17 F3d 1463, 38 Envt Rep Cas 1202, 24 ELR 20680, reh, en banc, den (1994, App DC) 308 US App DC 128, 30 F3d 190, 39 Envt Rep Cas 1278 and revd (1995) 515 US 687, 132 L Ed 2d 597, 115 S Ct 2407, 95 CDOS 4966, 95 Daily Journal DAR 8566, 40 Envt Rep Cas 1897, 25 ELR 21194, 9 FLW Fed S 291, subsequent app (1995, App DC) 1995 US App LEXIS 31484 and (criticized in Loggerhead Turtle v County Council of Volusia County (1998, CA11 Fla) 148 F3d 1231, 47 Envt Rep Cas 1014, 41 FR Serv 3d 563, 28 ELR 21546, 11 FLW Fed C 1659).

Where Asian elephants were listed as endangered under 16 USCS § 1533, circus owner's Asian elephants were not exempt from taking prohibition of 16 USCS § 1538, as defined by 16 USCS § 1532(19), because exemption was unambiguously applicable to other provisions; thus, disputed facts existed, precluding summary judgment, as to whether owner's treatment of elephants not subject to captive-bred wildlife permit constituted taking under Endangered Species Act. ASPCA v Ringling Bros. & Barnum & Bailey Circus (2007, DC Dist Col) 502 F Supp 2d 103, 66 Envt Rep Cas 1243.

Under 16 USCS § 1536(b)(3)(A), illegal take of species occurred when take of that species was result of action by person or agency, and in contrast, takes that resulted from acts of nature did not fall within prohibition of § 9 of Endangered Species Act and under 16 USCS §§ 1532(19), 1538(a)(1), could not be blamed on Federal agency, and because rainfall and other precipitation caused natural filling of lakes in question and as lakes filled, surrounding areas flood which could cause take of listed species and their habitats, that was not illegal take not result of artificial breaching of sand bar between lakes and Pacific Ocean as permitted in defendant Army Corps of Engineers' permit and plaintiff water district's argument to contrary failed. Pac. Shores Subdivision Cal. Water Dist. v United States Army Corps of Eng'rs (2008, DC Dist Col) 538 F Supp 2d 242.

United States Forest Service (USFS) was entitled to summary judgment on claim by grazing allotment permittees who alleged that USFS violated Endangered Species Act, 16 USCS §§ 1531 et seq., by arbitrarily limiting grazing in Malheur National Forest; USFS did not act arbitrarily and capriciously under 5 USCS § 706(2)(A) in choosing bank alteration standard as habitat proxy for "take" of protected steelhead trout for purposes of 16 USCS §§ 1536(b)(4) and 1538. Or. Natural Desert Ass'n v Tidwell (2010, DC Or) 716 F Supp 2d 982.

Environmental group was entitled to summary judgment on its claim that forest projects caused unauthorized "take" of grizzly bears in violation of 16 USCS § 1538(a); take was occurring in areas outside bear recovery zone that was subject to incidental take statement under 15 USCS § 1536(b) and, therefore, take could not be exempted under § 1536(o)(2). Alliance for Wild Rockies v Bradford (2010, DC Mont) 720 F Supp 2d 1193.

In action by environmental groups alleging violation of Endangered Species Act, 16 USCS §§ 1531 et seq., by National Marine Fisheries Service and Army Corps of Engineers in relation to operation of two dams, federal agencies were not entitled to summary judgment on claim that Corps caused "take" under 16 USCS § 1538 without protection of Incidental Take Statement (ITS) under 16 USCS § 1536(b)(4); genuine disputes remained as to whether Corps violated terms and conditions imposed by ITS. South Yuba River Citizens League v Nat'l Marine Fisheries Serv. (2010, ED Cal) 723 F Supp 2d 1247, injunction den, claim dismissed, as moot (2010, ED Cal) 2010 US Dist LEXIS 125403.

6.--Incidental taking

It was not intention of 16 USCS § 1538 to ban all salmon fishing or to place upon defendant Department of Commerce, National Marine Fisheries Service, or Pacific Fishery Council impossible enforcement burden; thus, impossibility of distinguishing visually between listed and unlisted species is sufficient defense to claim that defendants are permitting "take" of 3 listed species because they permit harvesting of salmon; it cannot be believed that Congress intended to ban all salmon fishing whenever one salmon stock, indistinguishable by sight, became endangered; under such circumstances, endangered species constitute "incidental" take. Pacific Northwest Generating Coop. v Brown (1994, CA9 Or) 38 F3d 1058, 94 CDOS 7394, 94 Daily Journal DAR 13563.

Incidental take permit exception, 16 USCS § 1539, does not apply to, and thus does not exempt from liability, activity performed as purely mitigatory measure upon which Fish and Wildlife Service conditions permit. Loggerhead Turtle v County Council of Volusia County (1998, CA11 Fla) 148 F3d 1231, 47 Envt Rep Cas 1014, 41 FR Serv 3d 563, 28 ELR 21546, 11 FLW Fed C 1659, cert den (1999) 526 US 1081, 119 S Ct 1488, 143 L Ed 2d 570, 48 Envt Rep Cas 1352, injunction den, partial summary judgment gr, request den (2000, MD Fla) 92 F Supp 2d 1296, summary judgment gr, partial summary judgment gr, in part, partial summary judgment den, motion to strike den, motion gr, reconsideration den, judgment entered (2000, MD Fla) 120 F Supp 2d 1005, magistrate's recommendation, costs/fees proceeding (2001, MD Fla) 2001 US Dist LEXIS 2611, subsequent app on other grounds (2002, CA11 Fla) 307 F3d 1318, 55 Envt Rep Cas 1161, 33 ELR 20057, 15 FLW Fed C 1104, related proceeding, dismd on other grounds, dismd without prejudice, in part (2005, MD Fla) 2005 US Dist LEXIS 38841, vacated on other grounds, remanded (Jan 18, 2006) and (overruled on other grounds as stated in Dillard v Colbert County Comm'n (2007, MD Ala) 494 F Supp 2d 1297).

Definitions of "taking" in 16 USCS §§ 1536 and 1538 are identical in meaning and application. Ariz. Cattle Growers' Ass'n v United States Fish & Wildlife, BLM (2001, CA9 Ariz) 273 F3d 1229, 2001 CDOS 10416, 2001 Daily Journal DAR 13005, 53 Envt Rep Cas 1904, 32 ELR 20392 (criticized in Defenders of Wildlife v Hall (2008, DC Mont) 565 F Supp 2d 1160, 68 Envt Rep Cas 1146).

Property owners' claim for alleged administrative taking of value of trees they sought to harvest was held to be unripe where owners had never applied for incidental take permit and government had never taken final action. Morris v United States (2004, CA FC) 392 F3d 1372, 59 Envt Rep Cas 1641, 34 ELR 20156.

Plan for mitigation of incidental taking of endangered species was upheld where Fish and Wildlife Service could rationally conclude that plan would improve habitat and enhance survival of species alleged to be at risk. Nat'l Wildlife Fed'n v Norton (2004, ED Cal) 306 F Supp 2d 920, 58 Envt Rep Cas 1618.

Where U.S. Fish and Wildlife Service (FWS) issued incidental take permit (ITP) pursuant to 16 USCS § 1539(a)(1)(B) to city, subject to condition, after it entered into contract with city to complete proposed project, argument waged by intervening builders that FWS was required to issue ITP that corresponded exactly to take that was proposed in city's habitat conservation plan failed. Characterizing FWS' duty as ministerial task violated Endangered Species Act, 16 USCS §§ 1531-1544, by eliminating FWS' duty to use its expertise to restrict impact of proposed project on listed species; no one was entitled to take authorization, and application did not define ITP but, rather, FWS determined terms and conditions under which applicant obtained exception to § 9 of ESA, 16 USCS § 1538. Southwest Ctr. for Biological Diversity v Bartel (2006, SD Cal) 457 F Supp 2d 1070, injunction gr, summary judgment gr, in part, summary judgment den, in part on other grounds, remanded (2006, SD Cal) 470 F Supp 2d 1118 (criticized on other grounds in Spirit of the Sage Council v Kempthorne (2007, DC Dist Col) 511 F Supp 2d 31, 66 Envt Rep Cas 1286, 37 ELR 20235) and app dismd, remanded (2011, CA9 Cal) 2011 US App LEXIS 950.

State agency's conduct does not have to show to be proximate cause of incidental taking of threatened or endangered animals in order for agency to be held liable for violating § 9 of Endangered Species Act (ESA), 16 USCS § 1538(a)(1)(B); while agency cannot be held liable if private parties are left free to act in ways that do not pose threat to endangered and threatened species and third parties' actions constitute independent intervening cause of takings, agency can be held liable if its regulatory activities are stimulus for conduct that results in taking of threatened or endangered species by third parties, i.e. if risk of taking exists even if third parties comply with all of agency's existing applicable laws and regulations. Animal Prot. Inst. v Holsten (2008, DC Minn) 541 F Supp 2d 1073, 67 Envt Rep Cas 1492, findings of fact/conclusions of law, injunction gr (2008, DC Minn) 2008 US Dist LEXIS 53396 (criticized in Animal Welfare Inst. v Martin (2008, DC Me) 588 F Supp 2d 70, 69 Envt Rep Cas 1067).

Animal protection organizations met burden of supporting their claim for declaratory relief against state Department of Natural Resources (DNR), arising from 13 incidental takings of Canada Lynx in state since 2003 where (1) organizations sought to hold DNR liable for violating § 9 of Endangered Species Act (ESA), 16 USCS § 1538(a)(1)(B), by failing to take steps to protect Canada Lynx from Minnesota trappers; (2) organizations showed that DNR had not issued regulations that were focused on preventing trappers from incidentally taking lynx, it had not implemented US Fish and Wildlife Service's recommendations with regard to avoiding such incidental takings, and trappers were not required to read or comply with voluntary recommendations that DNR had issued on that topic; (3) organizations had shown that 13 incidental takings of Canada Lynx had occurred under DNR's existing regulatory scheme, and risk remained that additional incidental takings would occur in future under that scheme; and (4) mere fact that DNR had begun process, after suit was filed, for issuing Incidental Take Permit under 16 USCS § 1539(a)(1)(B), did not mean that organizations were not entitled to declaratory relief to prevent any more incidental takings of lynx until that Permit was actually issued. Animal Prot. Inst. v Holsten (2008, DC Minn) 541 F Supp 2d 1073, 67 Envt Rep Cas 1492, findings of fact/conclusions of law, injunction gr (2008, DC Minn) 2008 US Dist LEXIS 53396 (criticized in Animal Welfare Inst. v Martin (2008, DC Me) 588 F Supp 2d 70, 69 Envt Rep Cas 1067).

In action by environmental groups alleging violation of Endangered Species Act, 16 USCS §§ 1531 et seq., by National Marine Fisheries Service and Army Corps of Engineers in relation to operation of two dams, federal agencies were entitled to summary judgment on claim that Corps caused "take" under 16 USCS § 1538 without protection of Incidental Take Statement (ITS) under 16 USCS § 1536(b)(4); groups offered no authority to support their proposition that ITS might be void ab initio. South Yuba River Citizens League v Nat'l Marine Fisheries Serv. (2010, ED Cal) 723 F Supp 2d 1247, injunction den, claim dismissed, as moot (2010, ED Cal) 2010 US Dist LEXIS 125403.

7.--Harm

Habitat destruction that could drive endangered species to extinction constitutes "harm" and therefore "taking" under Endangered Species Act (16 USCS §§ 1531 et seq.), since Secretary's construction of statute, which is entitled to deference if it is reasonable and not in conflict with Congressional intent, defines "harm" as including not only physical injury, but also injury caused by impairment of essential behavior patterns via habitat modifications that can have significant and permanent effects on listed species, and such construction is consistent with Congressional intent, including intent that term "take" be defined in broadest possible manner; accordingly, district court's interpretation of "harm" as including habitat destruction that could result in extinction, and findings to that effect, are sufficient to sustain order for removal of sheep that destroyed woodland habitat upon which endangered species of bird depends. Palila v Hawaii Dep't of Land & Natural Resources (1988, CA9 Hawaii) 852 F2d 1106, 18 ELR 21199.

Under 50 CFR § 17.3, "harm," as used in Endangered Species Act of 1973, 16 USCS §§ 1532(19) and 1538, includes significant environmental modification or degradation, which actually injures or kills wildlife; thus, where act actually injures or kills wildlife by significantly impairing essential breeding patterns, including breeding, feeding, or sheltering, it constitutes violation of 16 USCS § 1538(a)(1)(B). Palila v Hawaii Dep't of Land & Natural Resources (1985, DC Hawaii) 631 F Supp 787, 16 ELR 20669, findings of fact/conclusions of law (1986, DC Hawaii) 649 F Supp 1070, 17 ELR 20514, affd (1988, CA9 Hawaii) 852 F2d 1106, 18 ELR 21199.

In their claim against developer, plaintiffs failed to prove by preponderance that proposed construction would harm endangered or threatened animal by killing or injuring it and, instead, relied on administrative record to establish their claim against developer under § 9 of Endangered Species Act (ESA), 16 USCS § 1538; however, Fish and Wildlife Service provided no evidence that habitat modification had actually resulted in death or injury of kit fox and administrative record did not demonstrate "reasonably certain threat of imminent harm" to kit fox because fox had been seen only in vicinity of project and not at project site, and inquiry regarding red-legged frogs yielded similar results; therefore, Army Corps of Engineers' actions in regards to developer's project were not arbitrary and capricious and there was no evidence developer had violated ESA § 9. Protect Our Water v Flowers (2004, ED Cal) 377 F Supp 2d 844.

Because animal rights activists produced no evidence of harm to Canada lynx, threatened species, caused by trappers acting in compliance with existing state law, they did not show that state's licensure scheme as recently modified violated Endangered Species Act, 16 USCS §§ 1531 et seq; without more, court could not find that activists satisfied their burden to attain temporary restraining order to enjoin use of Conibear traps for rest of trapping season, or to require state to require 24-hour trap check for all Conibear traps. Animal Welfare Institute v Martin (2008, DC Me) 588 F Supp 2d 110, injunction den, motion den (2009, DC Me) 665 F Supp 2d 19, findings of fact/conclusions of law, injunction den (2009, DC Me) 668 F Supp 2d 254, 71 Envt Rep Cas 1154, affd (2010, CA1 Me) 623 F3d 19, 71 Envt Rep Cas 1705, 41 ELR 20001.